FLORIDA ASSOCIATION OF CODE ENFORCEMENT

1. FLORIDA ASSOCIATION OF CODE ENFORCEMENT Brian J. Sherman, Esq. Goren, Cherof, Doody, and Ezrol P.A. bsherman@gorencherof.com (954) 771-4500

2. Complex Code Enforcement • Evidentiary Issues • Mobile Homes • Nuisance Properties • Foreclosures • Wildlife • Site Plans

3. Intent • It is the intent of this part to promote, protect, and improve the health, safety, and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities, where a pending or repeated violation continues to exist.

4. Purpose of Code Enforcement • Quality of Life • Maintain City Standards • Civil Enforcement Branch • Maintain Property Values

5. Evidence • § 162.07(3), Florida Statutes: • Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. • What are the formal rules? • What is due process?

6. Due Process • Art. I, § 9, Fla. Const. • No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself Two Types: • Procedural Due Process • Substantive Due Process

7. Procedural Due Process • Notice • Opportunity to be heard • Chapter 162, Florida Statutes outlines the procedural steps Massey v. Charlotte County, 842 So. 2d 142 (Fla. 2dDCA 2003)

8. Procedural Due Process Massey v. Charlotte County, 842 So. 2d 142, 146 (Fla. 2dDCA 2003) The Code Enforcement Board provided notice and an opportunity to be heard before issuing its preliminary order finding the Masseys in violation of the building code, as required by the statute. Thus, it is clear the Masseys received due process leading up to the entry of the July 11 order finding them in violation of the building code. Thereafter, however, the Code Enforcement Board entered the lien order based solely upon the code inspector's affidavit. The Masseys were not provided notice of the meeting at which the propriety of the fines and lien were addressed or any opportunity to be heard at the meeting or thereafter.

9. Procedural Due Process • City of Tampa v. Brown, 711 So. 2d 1188, 1189 (Fla. 2dDCA 1998) • It is necessary to fill the procedural gaps in this statute by the common-sense application of basic principles of due process. • The violator received notice, had the opportunity to be heard, and was provided a copy of the final order from which an appeal could be taken. • Nothing more is required.

10. Substantive Due Process • This applies to the adoption of the ordinance itself. • All. of Auto. Mfrs., Inc. v. Jones, 897 F. Supp. 2d 1241, 1251 (N.D. Fla. 2012). • A statute will be upheld under Florida's substantive Due Process Clause if it “bears a rational relation to a legitimate legislative purpose in safeguarding the public health, safety, or general welfare and is not discriminatory, arbitrary, or oppressive.” • Police Power of the State allows laws reasonably construed as expedient for protections of the public health, safety, welfare, or morals. • Different standards apply when applied to protected classes.

11. Fun Fact • Difference between a Jogging and Running? • Jogging is done at speeds under 6 mph. • Over 6 mph is running!

12. Evidence • What is Evidence • How do we present such evidence? • 4 types • Testimonial • Real • Representative • Circumstantial

13. Evidence • Testimony: Live Testimony • Code Officers • Residents • Respondents • Witnesses Subpoena may be necessary to ensure testimony § 162.08, Florida Statutes • Subpoena alleged violators and witnesses to its hearings. • Subpoenas may be served by the sheriff of the county or police department of the municipality. • Subpoena evidence to its hearings.

14. Evidence • Testimony: Live Testimony • Hearsay: • Out of court. • Statement, oral or written • Made by a declarant. • For the truth of the matter asserted. • An Order Finding Violation may not based on hearsay alone. • No formal rules of evidence.

15. Evidence • Real Evidence • Tangible Items • Papers • Documents

16. Evidence • Representative Evidence • Photographs • Diagrams • Site Plans

17. Evidence • Circumstantial Evidence • Circumstantial evidence need not exclude every other reasonable hypothesis than the one contended for, but must outweigh all contrary inferences. • Evidence from which contrary though equally reasonable inferences might be drawn 24 Fla. Jur2d Evidence and Witnesses § 486

18. Evidence • Quasi Judicial Proceedings • Testimony • Trier of fact weighs credibility • Representative • Who took the picture? • When was it taken? • Does it fairly and accurately represent the location at the date and time this was taken?

19. Evidence • Hearsay: Hearsay Exceptions • Records are hearsay • Statements of the Respondent are hearsay • Special Rules for Documents • Business Records – are hearsay • Records made at or near the time the information was provided • Regular practice to make such a report • Made by a Person with Knowledge • The report is trustworthy

20. Evidence • Public Records have a hearsay exception • Must be Certified Records • Copies of the City Code.

21. Competent Substantial Evidence • Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonable inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. In employing the adjective ‘competent’ to modify the word ‘substantial,’ we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the ‘substantial’ evidence should also be ‘competent.’Lopez v. Miami-Dade County Florida Code Enforcement, 01-239 AP, 2002 WL 220925 (Fla. Cir. Ct. 2002)

22. Fun Fact • Who Wrote the story that Frozen was based on: • Hans Christian Andersen wrote the Snow Queen

23. Mobile Homes • Generally: • The Mobile Home Park owns the land. • The Mobile Home Owner owns the mobile home and rents the land from the mobile home park.

24. Mobile Homes • § 723.024, Fla. Stat. Ann. • (1) If a unit of local government finds that a violation of a local code or ordinance has occurred, the unit of local government shall cite the responsible party for the violation and enforce the citation under its local code and ordinance enforcement authority. • (2) A lien, penalty, fine, or other administrative or civil proceeding may not be brought against a mobile home owner or mobile home for any duty or responsibility of the mobile home park owner under s. 723.022 or against a mobile home park owner or mobile home park property for any duty or responsibility of the mobile home owner under s. 723.023.

25. Mobile Homes

26. Mobile Homes

27. Mobile Homes

28. Mobile Homes

29. Mobile Home Park Owners • § 723.022, Fla. Stat. Ann. • A mobile home park owner shall at all times: • (1) Comply with the requirements of applicable building, housing, and health codes. • (2) Maintain buildings and improvements in common areas in a good state of repair and maintenance and maintain the common areas in a good state of appearance, safety, and cleanliness. • (3) Provide access to the common areas, including buildings and improvements thereto, at all reasonable times for the benefit of the park residents and their guests. • (4) Maintain utility connections and systems for which the park owner is responsible in proper operating condition. • (5) Comply with properly promulgated park rules and regulations and require other persons on the premises with his or her consent to comply therewith and conduct themselves in a manner that does not unreasonably disturb the park residents or constitute a breach of the peace.

30. Mobile Home Owners • § 723.023, Fla. Stat. Ann. • A mobile home owner shall at all times: • (1) Comply with all obligations imposed on mobile home owners by applicable provisions of building, housing, and health codes, including compliance with all building permits and construction requirements for construction on the mobile home and lot. The home owner is responsible for all fines imposed by the local government for noncompliance with any local codes. • (2) Keep the mobile home lot which he or she occupies clean, neat, and sanitary, and maintained in compliance with all local codes. • (3) Comply with properly promulgated park rules and regulations and require other persons on the premises with his or her consent to comply with such rules and to conduct themselves, and other persons on the premises with his or her consent, in a manner that does not unreasonably disturb other residents of the park or constitute a breach of the peace.

31. Mobile Homes • Who is responsible?

32. Fun Fact • “Worth Your Salt” • Salt was a valuable • Latin – Salarium – was the salt provided to Roman Soldiers or allowance provided for the purchase of salt. Salt was used to preserve food • This is why what we are paid is called a salary.

33. Nuisance Properties

34. Nuisance • § 823.05, Fla. Stat. Ann. • Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people as described in s. 823.01, or any house or place of prostitution, assignation, lewdness or place or building where games of chance are engaged in violation of law or any place where any law of the state is violated, shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures, and contents are declared a nuisance. All such places or persons shall be abated or enjoined as provided in ss. 60.05 and 60.06.

35. Nuisance • § 60.05, Fla. Stat. Ann. • (1) When any nuisance as defined in s. 823.05 exists, the Attorney General, state attorney, city attorney, county attorney, or any citizen of the county may sue in the name of the state on his or her relation to enjoin the nuisance, the person or persons maintaining it, and the owner or agent of the building or ground on which the nuisance exists. • (2) The court may allow a temporary injunction without bond on proper proof being made. If it appears by evidence or affidavit that a temporary injunction should issue, the court, pending the determination on final hearing, may enjoin: • (a) The maintaining of a nuisance; • (b) The operating and maintaining of the place or premises where the nuisance is maintained; • (c) The owner or agent of the building or ground upon which the nuisance exists; • (d) The conduct, operation, or maintenance of any business or activity operated or maintained in the building or on the premises in connection with or incident to the maintenance of the nuisance.

36. Nuisance • § 60.06, Fla. Stat. Ann. • The court shall make such orders on proper proof as will abate all nuisances mentioned in s. 823.05, and has authority to enforce injunctions by contempt but the jurisdiction hereby granted does not repeal or alter s. 823.01.

37. 6700 NW 67th Avenue • Complaint • Service • Default • Settlement • Contempt of Court

38. Fun Fact • June 13th is National Kitchen Klutzes of America Day.

39. Foreclosures • Municipal Liens may be foreclosed by operation of law. • § 162.09(3), Florida Statutes: • Code Enforcement Liens attach to any property owned by the violator. • Local governments are not required to release foreclosed liens. • Records must be maintained by local governments pursuant to Chapter 119, Florida Statutes.

40. Ober v. Town of Lauderdale-by-the-Sea4D14-4597, 2016 WL 4468134(Fla. 4th DCA 2016) • On November 26, 2007, a non-party bank recorded a lis pendens on the subject property as part of a foreclosure proceeding against a non-party homeowner. • On September 22, 2008, the bank obtained a final judgment of foreclosure. • Town recorded 7 liens after the final judgment, but before the foreclosure sale, and an additional three liens thereafter.

41. Ober v. Town of Lauderdale-by-the-Sea4D14-4597, 2016 WL 4468134(Fla. 4th DCA 2016) • The lis pendens statute serves to discharge liens that exist or arise prior to the final judgment of foreclosure unless the appropriate steps are taken to protect those interests. However, it does not affect liens that accrue after that date. The ten liens that were involved in the case before us were all recorded and based on conduct which occurred after the date of the first final judgment.

42. Ober v. Town of Lauderdale-by-the-sea, 218 So. 3d 952, 953 (Fla. 4th DCA 2017) • We grant appellant James Ober's motion for rehearing, withdraw our opinion of August 24, 2016, and substitute the following. • The practical problem in this case is the long lag time between the foreclosure judgment and the foreclosure sale. Resolution of the competing interests—of the Town, the lending and title insurance industries, property owners, and buyers at foreclosure sales—is in the province of the legislature.

43. Ober v. Town of Lauderdale-by-the-Sea • We grant Appellee’s February 7, 2017 Motion for Certification of a Question of Great Public Importance and certify the following question to the Florida Supreme Court: • WHETHER, PURSUANT TO SECTION 48.23(1)(D), FLORIDA STATUTES, THE FILING OF A NOTICE OF LIS PENDENS AT THE COMMENCEMENT OF A BANK’S FORECLOSURE ACTION PREVENTS A LOCAL GOVERNMENT FROM EXERCISING AUTHORITY GRANTED TO IT BY CHAPTER 162, FLORIDA STATUTES, TO ENFORCE CODE VIOLATIONS EXISTING ON THE FORECLOSED PROPERTY AFTER FINAL FORECLOSURE JUDGMENT AND BEFORE JUDICIAL SALE, WHERE THE LOCAL GOVERNMENT’S INTEREST OR LIEN ON THE PROPERTY ARISES AFTER FINAL JUDGMENT AND DID NOT EXIST WITHIN THIRTY (30) DAYS AFTER THE RECORDING OF THE NOTICE OF LIS PENDENS.

44. Town of Lauderdale-By-The-Sea v. Ober, SC17-748, 2017 WL 3883662(Fla. Sept. 6, 2017) • This cause having heretofore been submitted to the Court on Certified Great Public Importance pursuant to Article V, Section 3(b), Florida Constitution (1980), and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), and the Court having determined that it should decline to exercise jurisdiction, it is ordered that the Petition for Review is denied. • No Motion for Rehearing will be entertained by the Court. See Fla. R. App. P. 9.330(d)(2).

45. Foreclosures • Effect of the Lis Pendens. • Surplus Funds • Lien Status after foreclosure • Case Status after foreclosure • 162.09(3) – Bleeding liens

46. Nuisance Wildlife • 68A-9.010 Taking Nuisance Wildlife. • Any person owning property may take nuisance wildlife. • Nuisance Wildlife: • causes (or is about to cause) property damage, • presents a threat to public safety, or • causes an annoyance within, under or upon a building.

47. Nuisance Wildlife • Muscovy Duck • 379.231 Regulation of nonnative animals. • (1) It is unlawful to import for sale or use, or to release within this state, any species of the animal kingdom not native to Florida unless authorized by the Fish and Wildlife Conservation Commission. • May be humanely euthanized

48. Nuisance Wildlife • Raccoons • Native • 68A-4.001 General Prohibitions. • Intentionally placing food or garbage, allowing the placement of food or garbage, or offering food or garbage in such a manner that it attracts coyotes, foxes or raccoons and in a manner that is likely to create or creates a public nuisance is prohibited. • May be captured by the landowner or with the landowner’s permission. • Hunting and trapping requires a permit.

49. Nuisance Wildlife • Iguanas • Invasive • Not Protected • Cruelty against animals always a crime • May be captured and euthanized by landowner • No permit is needed • Cannot be relocated or released

50. Site Plans • Chapel Trail Trade Center