Senate Bill 0946c1

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    Florida Senate - 1999                            CS for SB 946

    By the Committee on Comprehensive Planning, Local and Military
    Affairs; and Senators Forman and Meek




    316-1740-99

  1                      A bill to be entitled

  2         An act relating to local government code

  3         enforcement; amending s. 125.69, F.S.;

  4         providing an exception from certain notice

  5         requirements under certain circumstances;

  6         requiring owners of property subject to an

  7         enforcement proceeding to disclose certain

  8         information prior to transfer of such property;

  9         creating a presumption of fraud under certain

10         circumstances; authorizing local governing

11         bodies to make certain repairs under certain

12         circumstances; providing for absence of

13         liability for such repairs under certain

14         circumstances; amending s. 162.03, F.S.;

15         specifying the status of special masters;

16         amending s. 162.04, F.S.; revising a

17         definition; amending s. 162.06, F.S.; requiring

18         owners of property subject to enforcement

19         proceedings to provide disclosure and notice to

20         prospective transferors under certain

21         circumstances; providing a rebuttable

22         presumption; providing for continuation of

23         enforcement proceedings under certain

24         circumstances; providing procedures; amending

25         s. 162.09, F.S.; specifying that certain

26         actions taken by a local government do not

27         create continuing obligations or liabilities

28         under certain circumstances; clarifying

29         enforcement of orders imposing certain fines or

30         costs; amending s. 162.12, F.S.; revising

31         prescribed methods for providing certain

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  1         notices; clarifying the time period for posting

  2         certain notices; amending s. 162.23, F.S.;

  3         providing an additional exception to

  4         requirements to provide reasonable time to

  5         correct violations under certain circumstances;

  6         providing an effective date.

  7

  8         WHEREAS,  Florida's procedures for local government

  9  code enforcement are meant to secure speedy compliance with

10  local codes and ordinances while protecting the rights of

11  property owners and the public health, safety, and welfare,

12  and

13         WHEREAS, the procedures set forth in chapter 162,

14  Florida Statutes, contain several alternative methods of code

15  enforcement for local governments to choose from, but the

16  choices are in need of some clarification regarding

17  legislative intent, and

18         WHEREAS, it was intended by the Legislature that the

19  procedure for a special master or hearing officer was to be in

20  all respects the equivalent of the procedure for a code

21  enforcement board, and

22         WHEREAS, substantial delay has been encountered in code

23  enforcement proceedings when the owner of a noncomplying

24  property transferred ownership to a third party, with some

25  local governments being required to begin the entire code

26  enforcement process all over again with respect to the new

27  owner, which was not the intent of the Legislature, and

28         WHEREAS, some local governments have been reluctant to

29  use their power to repair unsafe noncomplying property because

30  of concerns about future liability, and

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  1         WHEREAS, creating a presumption of receipt of a notice

  2  sent by certified mail, return receipt requested, when

  3  properly addressed to the owner, would alleviate the current

  4  problem of violators evading or greatly delaying code

  5  enforcement proceedings by refusing to sign for such notice,

  6  and

  7         WHEREAS, some local governments are construing the

  8  posting procedure contained in s. 162.12(2), Florida Statutes,

  9  as mandating that they must prove that the notice so posted

10  was continuously present for the entire 10-day posting period,

11  and some violators were frustrating the intent of the posting

12  provision by removing and secreting the posted notice before

13  the 10 days had expired, which was not the intent of the

14  Legislature, and

15          WHEREAS, it is the intent of the Legislature to cure

16  the ambiguities and loopholes in chapter 162, Florida

17  Statutes, just described, NOW, THEREFORE,

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19  Be It Enacted by the Legislature of the State of Florida:

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21         Section 1.  Subsection (2) of section 125.69, Florida

22  Statutes, 1998 Supplement, is amended to read:

23         125.69  Penalties; enforcement by code inspectors.--

24         (2)  The board of county commissioners of each county

25  may designate its agents or employees as code inspectors whose

26  duty it is to assure code compliance.  Any person designated

27  as a code inspector may issue citations for violations of

28  county codes and ordinances, respectively, or subsequent

29  amendments thereto, when such code inspector has actual

30  knowledge that a violation has been committed.

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  1         (a)  Prior to issuing a citation, a code inspector

  2  shall provide notice to the violator that the violator has

  3  committed a violation of a code or ordinance and shall

  4  establish a reasonable time period within which the violator

  5  must correct the violation. Such time period shall be no more

  6  than 30 days.  If, upon personal investigation, a code

  7  inspector finds that the violator has not corrected the

  8  violation within the time period, a code inspector may issue a

  9  citation to the violator.  A code inspector does not have to

10  provide the violator with a reasonable time period to correct

11  the violation prior to issuing a citation and may immediately

12  issue a citation if the code inspector has reason to believe

13  that the violation presents a serious threat to the public

14  health, safety, or welfare, or if the violation is irreparable

15  or irreversible.

16         (b)  A citation issued by a code inspector shall state

17  the date and time of issuance, name and address of the person

18  in violation, date of the violation, section of the codes or

19  ordinances, or subsequent amendments thereto, violated, name

20  of the code inspector, and date and time when the violator

21  shall appear in county court.

22         (c)  If a repeat violation is found subsequent to the

23  issuance of a citation, the code inspector is not required to

24  give the violator a reasonable time to correct the violation

25  and may immediately issue a citation.  For purposes of this

26  subsection, the term "repeat violation" means a violation of a

27  provision of a code or ordinance by a person who has

28  previously been found to have violated the same provision

29  within 5 years prior to the violation at the same property or

30  contiguous property.

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  1         (d)  If the owner of property which is subject to an

  2  enforcement proceeding before county court transfers ownership

  3  of such property between the time the initial citation or

  4  citations are issued and the date the violator has been

  5  summoned to appear in county court, such owner shall:

  6         1.  Disclose in writing the existence and the nature of

  7  the proceeding to the prospective transferee.

  8         2.  Deliver to the prospective transferee a copy of the

  9  pleadings, notices, and other materials relating to the county

10  court proceeding received by the transferor.

11         3.  Disclose in writing to the prospective transferee

12  that the new owner will be responsible for compliance with the

13  applicable code and with orders issued in the county court

14  proceeding.

15         4.  File a notice with the code enforcement official of

16  the transfer of the property, with the identity and address of

17  the new owner and copies of the disclosures made to the new

18  owner, within 5 days after the date of the transfer.

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20  A failure to make the disclosure described in subparagraphs

21  1., 2., and 3. before the transfer creates a rebuttable

22  presumption of fraud.  If the property is transferred before

23  the date the violator has been summoned to appear in county

24  court, the proceeding shall not be dismissed but the new owner

25  will be substituted as the party of record and thereafter

26  provided a reasonable period of time to correct the violation

27  before the continuation of proceedings in county court.

28         (e)  If the code inspector has reason to believe a

29  violation or the condition causing the violation presents a

30  serious threat to the public health, safety, and welfare or if

31  the violation is irreparable or irreversible in nature, or if

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  1  after attempts under this section to bring a repeat violation

  2  into compliance with a provision of a code or ordinance prove

  3  unsuccessful, the local governing body may make all reasonable

  4  repairs which are required to bring the property into

  5  compliance and charge the owner with the reasonable cost of

  6  the repairs along with the fine imposed pursuant to this

  7  section. Making such repairs does not create a continuing

  8  obligation on the part of the local governing body to make

  9  further repairs or to maintain the property and does not

10  create any liability against the local governing body for any

11  damages to the property if such repairs were completed in good

12  faith.

13         (f)(c)  Nothing in this subsection shall be construed

14  to authorize any person designated as a code inspector to

15  perform any function or duties of a law enforcement officer

16  other than as specified in this subsection.  A code inspector

17  shall not make physical arrests or take any person into

18  custody and shall be exempt from requirements relating to the

19  Special Risk Class of the Florida Retirement System, bonding,

20  and the Criminal Justice Standards and Training Commission, as

21  defined and provided by general law.

22         (g)(d)  The provisions of this subsection shall not

23  apply to the enforcement pursuant to ss. 553.79 and 553.80 of

24  building codes adopted pursuant to s. 553.73 as they apply to

25  construction, provided that a building permit is either not

26  required or has been issued by the county.  For the purposes

27  of this paragraph, "building codes" means only those codes

28  adopted pursuant to s. 553.73.

29         (h)(e)  The provisions of this subsection may be used

30  by a county in lieu of the provisions of part II of chapter

31  162.

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  1         (i)(f)  The provisions of this subsection are

  2  additional or supplemental means of enforcing county codes and

  3  ordinances. Except as provided in paragraph (h)(e), nothing in

  4  this subsection shall prohibit a county from enforcing its

  5  codes or ordinances by any other means.

  6         Section 2.  Subsection (2) of section 162.03, Florida

  7  Statutes, is amended to read:

  8         162.03  Applicability.--

  9         (2)  A charter county, a noncharter county, or a

10  municipality may, by ordinance, adopt an alternate code

11  enforcement system which gives code enforcement boards or

12  special masters designated by the local governing body, or

13  both, the authority to hold hearings and assess fines against

14  violators of the respective county or municipal codes and

15  ordinances. A special master shall have the same status as an

16  enforcement board under this chapter. References in this

17  chapter to an enforcement board, except in s. 162.05, shall

18  include a special master if the context permits.

19         Section 3.  Subsection (5) of section 162.04, Florida

20  Statutes, is amended to read:

21         162.04  Definitions.--As used in ss. 162.01-162.13, the

22  term:

23         (5)  "Repeat violation" means a violation of a

24  provision of a code or ordinance by a person who whom the code

25  enforcement board has been previously found to have violated

26  the same provision within 5 years prior to the violation at

27  the same property or contiguous property.

28         Section 4.  Subsection (5) is added to section 162.06,

29  Florida Statutes, to read:

30         162.06  Enforcement procedure.--

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  1         (5)  If the owner of property which is subject to an

  2  enforcement proceeding before an enforcement board, special

  3  master, or court transfers ownership of such property between

  4  the time the initial pleading was served and the time of the

  5  hearing, such owner shall:

  6         (a)  Disclose in writing the existence and the nature

  7  of the proceeding to the prospective transferee.

  8         (b)  Deliver to the prospective transferee a copy of

  9  the pleadings, notices, and other materials relating to the

10  code enforcement proceeding received by the transferor.

11         (c)  Disclose in writing to the prospective transferee

12  that the new owner will be responsible for compliance with the

13  applicable code and with orders issued in the code enforcement

14  proceeding.

15         (d)  File a notice with the code enforcement official

16  of the transfer of the property, with the identity and address

17  of the new owner and copies of the disclosures made to the new

18  owner, within 5 days after the date of the transfer.

19

20  A failure to make the disclosures described in paragraphs (a),

21  (b), and (c) before the transfer creates a rebuttable

22  presumption of fraud. If the property is transferred before

23  the hearing, the proceeding shall not be dismissed, but the

24  new owner shall be provided a reasonable period of time to

25  correct the violation before the hearing is held.

26         Section 5.  Subsections (1) and (3) of section 162.09,

27  Florida Statutes, are amended to read:

28         162.09  Administrative fines; costs of repair; liens.--

29         (1)  An enforcement board, upon notification by the

30  code inspector that an order of the enforcement board has not

31  been complied with by the set time or, upon finding that a

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  1  repeat violation has been committed, may order the violator to

  2  pay a fine in an amount specified in this section for each day

  3  the violation continues past the date set by the enforcement

  4  board for compliance or, in the case of a repeat violation,

  5  for each day the repeat violation continues, beginning with

  6  the date the repeat violation is found to have occurred by the

  7  code inspector. In addition, if the violation is a violation

  8  described in s. 162.06(4), the enforcement board shall notify

  9  the local governing body, which may make all reasonable

10  repairs which are required to bring the property into

11  compliance and charge the violator with the reasonable cost of

12  the repairs along with the fine imposed pursuant to this

13  section. Making such repairs does not create a continuing

14  obligation on the part of the local governing body to make

15  further repairs or to maintain the property and does not

16  create any liability against the local governing body for any

17  damages to the property if such repairs were completed in good

18  faith. If a finding of a violation or a repeat violation has

19  been made as provided in this part, a hearing shall not be

20  necessary for issuance of the order imposing the fine. If,

21  after due notice and hearing, a code enforcement board finds a

22  violation to be irreparable or irreversible in nature, it may

23  order the violator to pay a fine as specified in paragraph

24  (2)(a).

25         (3)  A certified copy of an order imposing a fine, or a

26  fine plus repair costs, may be recorded in the public records

27  and thereafter shall constitute a lien against the land on

28  which the violation exists and upon any other real or personal

29  property owned by the violator. Upon petition to the circuit

30  court, such order shall be enforceable may be enforced in the

31  same manner as a court judgment by the sheriffs of this state,

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  1  including execution and levy against the personal property of

  2  the violator, but such order shall not be deemed to be a court

  3  judgment except for enforcement purposes. A fine imposed

  4  pursuant to this part shall continue to accrue until the

  5  violator comes into compliance or until judgment is rendered

  6  in a suit to foreclose on a lien filed pursuant to this

  7  section, whichever occurs first. A lien arising from a fine

  8  imposed pursuant to this section runs in favor of the local

  9  governing body, and the local governing body may execute a

10  satisfaction or release of lien entered pursuant to this

11  section. After 3 months from the filing of any such lien which

12  remains unpaid, the enforcement board may authorize the local

13  governing body attorney to foreclose on the lien. No lien

14  created pursuant to the provisions of this part may be

15  foreclosed on real property which is a homestead under s. 4,

16  Art. X of the State Constitution.

17         Section 6.  Subsection (1) and paragraph (b) of

18  subsection (2) of section 162.12, Florida Statutes, are

19  amended to read:

20         162.12  Notices.--

21         (1)  All notices required by this part shall be

22  provided to the alleged violator by:

23         (a)  Certified mail, return receipt requested, provided

24  if such notice is sent under this paragraph to the owner of

25  the property in question at the address listed in the tax

26  collector's office for tax notices, and at any other address

27  provided to the local government by such owner, it shall be

28  presumed that the notice was received by the owner,

29  notwithstanding that the certified mail envelope may be

30  returned by the post office as unclaimed or refused; by

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  1         (b)  Hand delivery by the sheriff or other law

  2  enforcement officer, code inspector, or other person

  3  designated by the local governing body; or by

  4         (c)  Leaving the notice at the violator's usual place

  5  of residence with any person residing therein who is above 15

  6  years of age and informing such person of the contents of the

  7  notice; or

  8         (d)  In the case of commercial premises, leaving the

  9  notice with the manager or other person in charge.

10         (2)  In addition to providing notice as set forth in

11  subsection (1), at the option of the code enforcement board,

12  notice may also be served by publication or posting, as

13  follows:

14         (b)1.  In lieu of publication as described in paragraph

15  (a), such notice may be posted for at least 10 days prior to

16  the hearing, or prior to the expiration of any deadline

17  contained in the notice, in at least two locations, one of

18  which shall be the property upon which the violation is

19  alleged to exist and the other of which shall be, in the case

20  of municipalities, at the primary municipal government office,

21  and in the case of counties, at the front door of the

22  courthouse in said county.

23         2.  Proof of posting shall be by affidavit of the

24  person posting the notice, which affidavit shall include a

25  copy of the notice posted and the date and places of its

26  posting.

27

28  Evidence that an attempt has been made to hand deliver or mail

29  notice as provided in subsection (1), together with proof of

30  publication or posting as provided in subsection (2), shall be

31  sufficient to show that the notice requirements of this part

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  1  have been met, without regard to whether or not the alleged

  2  violator actually received such notice.

  3         Section 7.  Subsection (2) of section 162.23, Florida

  4  Statutes, is amended to read:

  5         162.23  Notice to appear.--

  6         (2)  Prior to issuing a notice to appear, a code

  7  enforcement officer shall provide written notice to the person

  8  that the person has committed a violation of a code or

  9  ordinance and shall establish a reasonable time period within

10  which the person must correct the violation.  Such time period

11  shall be no fewer than 5 days and no more than 30 days.  If,

12  upon personal investigation, a code enforcement officer finds

13  that the person has not corrected the violation within the

14  prescribed time period, a code enforcement officer may issue a

15  notice to appear to the person who has committed the

16  violation.  A code enforcement officer is not required to

17  provide the person with a reasonable time period to correct

18  the violation prior to issuing a notice to appear and may

19  immediately issue a notice to appear if a repeat violation is

20  found, or if the code enforcement officer has reason to

21  believe that the violation presents a serious threat to the

22  public health, safety, or welfare or that the violator is

23  engaged in violations of an itinerant or transient nature, as

24  defined by local code or ordinance within the jurisdiction, or

25  if the violation is irreparable or irreversible.

26         Section 8.  This act shall take effect October 1, 1999.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 946

  3

  4  The CS differs from the bill in the following ways:

  5  Section 1 incorporates most provisions from sections 2, 3 and
    4 of the bill into chapter 125, F.S.;
  6
    Clarifies that violation of the same code provision on
  7  contiguous properties constitutes a repeat violation;

  8  Substitutes the terms purchaser with transferee, seller with
    transferor, violator with owner, and served with issued;
  9
    Clarifies that disclosure of code violations from the seller
10  to the buyer must be in writing; and

11  Clarifies that violations "of an itinerant or transient
    nature", as presented in section 6 of the bill, are as defined
12  by local code or ordinance.

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