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Code Enforcement Cases

Author johnbsims3
Admin 

#1 - Posted: 21 Oct 2006 08:58 
Code Enforcement Cases

No administrative lien arose in favor of county code enforcement board where, contrary to statutory requirements for creation of lien, notice of lien was mailed only by regular and not by certified mail to home of alleged violator, and board recorded only an uncertified copy of order imposing fine. Personal Representative of Estate of Jacobson v. Attorneys' Title Ins. Fund, Inc., App. 3 Dist., 685 So.2d 19 (1996). Health 368

A citizen who engages in conduct which is found to be a repeat violation as defined in West's F.S.A. 162.04 may be fined only for those days the repeat violation continues after notice to the violator. Op.Atty.Gen. 92- 27, 4-2-92.

Municipality may not provide for continued running of fine against property owner for noncompliance with city codes after lien has been recorded against property of the violator; similarly, municipality may not amend original lien to include portion of fine accumulating after lien is filed. Op.Atty.Gen. 86-10, Jan. 29, 1986.

Code enforcement board must find that same violation has been repeated by same violator before it may impose fine for each day repeated violation continues past date set for compliance. Op.Atty.Gen., 85-84, Oct. 25, 1985.

City was required under due process clause to provide owner of real property with notice of code enforcement liens, opportunity to be heard, and copy of final orders from which appeal could be taken, but city was not required to use certified mail in serving final orders. City of Tampa v. Brown, App. 2 Dist., 711 So.2d 1188 (1998), rehearing denied, review granted 728 So.2d 200, review dismissed as improvidently granted 748 So.2d 1002.

If owners sold homestead property after county recorded order imposing fine, no lien would then exist in hands of purchasers; however, if owners failed to invest proceeds of that sale into another homestead within reasonable period of time, those proceeds could be reached by creditors, and if owners retained ownership but abandoned property as homestead, order against them could be enforced as lien. Demura v. County of Volusia, App. 5 Dist., 618 So.2d 754 (1993). Homestead 76; Homestead 105

No lien created pursuant to administrative fine can exist as to homestead property. Demura v. County of Volusia, App. 5 Dist., 618 So.2d 754 (1993). Homestead 105

Mere recording by county of order imposing fine could not constitute cloud against title to homestead, and thus suit to quiet title on property claimed as homestead would not lie; appropriate action for property owners seeking to avoid cloud on title was declaratory judgment action seeking determination that property was in fact homestead property, if this point were in dispute. Demura v. County of Volusia, App. 5 Dist., 618 So.2d 754 (1993). Quieting Title 7(1)

Lien created under 162.09, for administrative fine ordered by code enforcement board, is unenforceable against homestead property for foreclosure if owner successfully asserts homestead status as defense; such lien is neither tax nor assessment within exceptions to Const. Art. 10, 4(a)'s rule of homestead exemption from forced sale. Op.Atty.Gen. No. 85-26, March 26, 1985.

WOLK and Helen J. Wolk, Petitioners,
v.
ORANGE COUNTY, FLORIDA
2004 WL 2246242 (U.S.)
For opinion see 125 S.Ct. 49
THE PRESENCE IN THE STATUTORY/ORDINANCE SCHEME OF THE HEARING PROVIDED UNDER FS 162.07/OCC 11-35 FOR THE INITIAL DETERMINATION AS TO WHETHER A VIOLATION OF THE CODES EXISTS DOES NOT SATISFY THE REQUIREMENTS OF DUE PROCESS BECAUSE, WHERE AN ORDER IS ISSUED CONDITIONALLY IMPOSING A FINE ON A PARTY UPON THAT PARTY'S FAILURE TO DO SOME ACT, DUE PROCESS REQUIRES A SECOND HEARING AS TO WHETHER OR NOT THAT PARTY IN FACT FAILED TO DO THAT ACT BEFORE THE FINE MAY BE IMPOSED. ... 1
Where an order is issued conditionally imposing a fine on a party for that party's failure to do some act by a date in the future, due process requires that there be a second hearing afforded as to whether or not that party failed to do the specified act by the specified date before the fine may constitutionally be imposed on him. See, e.g., Mercer v. Mitchell, 908 F.2d 763 (11th Cir. 1990); First Maryland Leasecorp. v. M/V Golden Egret, 764 F.2d 749 (11th Cir. 1985).
Thus, when the CEB, like the district courts in the above-cited cases, issues an order at the initial hearing conditionally imposing a fine on a respondent property owner for failure to have corrected alleged violations on his property by a date in the future, due process requires that the CEB, like those district courts, hold a second hearing to determine if the property owner in fact did not comply with its order before imposing the fine or lien. Therefore, the code enforcement scheme purporting to provide as it does for the imposition of fines and liens on a property owner for his alleged failure to have complied with the order of the CEB issued at the initial hearing without a second hearing to determine his asserted non-compliance renders that scheme unconstitutional on its face, and makes the imposition of a fine and lien on the property owner without notice and hearing pursuant to that scheme a violation of the owner's constitutional rights.
And this is really only common sense. The issue to be determined at the initial hearing pursuant to FS 162.07/OCC 11-35 is whether a violation of the codes exists on the owner's property. The issue that is determinative of the prospective deprivation posed by this statutory/ordinance scheme - the deprivation of money and interference with use of real property incident to the imposition of code enforcement fines - is whether the owner failed to correct those violations within the time provided by the CEB in its order issued at the initial hearing. Obviously, the initial hearing cannot be a hearing as to whether the owner complied with an order issued at that hearing to correct certain conditions on the property by some date in the future. Thus, while FS 162.07/OCC 11-35 do provide for an evidentiary hearing, it is not a hearing as to the issue that *4 is determinative of the deprivation at issue. Therefore, the presence of this hearing in the statutory/ordinance scheme is all but irrelevant to the issue at bar. At present, there is no hearing provided under the code enforcement scheme relative to the issue that is determinative of the deprivation of rights of the property owner posed by that scheme.
Once it is realized that we are dealing here with the complete absence of a hearing required by due process, it becomes apparent why the lower court rulings in this case are a departure from previous Supreme Court jurisprudence on procedural due process rather than an extension of it as contended by the respondents. This Court's decision in Mathews v. Eldridge, 424 U.S. 319 (1976), which the respondents claim to be subserved by the lower court rulings in this case, never altered the "root requirement" of due process that some form of hearing be afforded before an interest protected by the Fifth and Fourteenth Amendments [FN3] is divested. Boddie v. Connecticut, 401 U.S. 371, 379 (1971). In fact, Mathews reaffirmed it:
FN3. All references to constitutional amendments in this reply are to the Amendments to the Constitution of the United States. Therefore, references to these amendments will be made by the number of the amendment only, e.g., "the Fifth Amendment".


This Court consistently has held that some form of hearing is required before an *5 individual is finally deprived of a property interest. Mathews, supra, 424 U.S. at 333.

Author johnbsims3
Admin 

#2 - Posted: 10 Dec 2006 07:14 
CODE ENFORCEMENT CASES

Code enforcement daily fine terminates once judgment is entered. Fong v. Town of By Harbor Islands, 864 So. 2d 76, 29 Fla. L. Weekly D55 (Fla. 3d DCA Dec. 24, 2003).

Trial court erred by stating in judgment that town's code enforcement lien shall remain upon real property until property is sold, a owner of homestead property is entitled to invest proceeds into another homestead within a reasonable time. Fong v. Town of By Harbor Islands, 864 So. 2d 76, 29 Fla. L. Weekly D55 (Fla. 3d DCA Dec. 24, 2003).

Trial court erred in granting summary judgment of foreclosure in favor of code enforcement board as there were material issues of fact in dispute as raised in property owner's affidavits that he was promised fines would be reduced to costs if he purchased the property and brought it into compliance. Jones v. State, 857 So. 2d 969, 28 Fla. L. Weekly D2445 (Fla. 2d DCA Oct. 24, 2003).

Circuit court departed from essential requirements of law by not reversing nuisance board's finding there was criminal activity constituting a nuisance as property owner had not been given adequate opportunity to abate the nuisance. Powell v. City of Sarasota, 857 So. 2d 326, 28 Fla. L. Weekly D2383 (Fla. 2d DCA Oct. 15, 2003).

Circuit court departed from essential requirements of law in reversing Code Enforcement Board's determination that owner's use of agricultural property to store a mobile home was a violation of County Code. Orange County v. Lewis, 859 So. 2d 526, 28 Fla. L. Weekly D2335 (Fla. 5th DCA Oct. 10, 2003).

Circuit court departed from essential requirements of law in upholding hearing officer's finding of a code violation as a property owner's parking a boat in front of his house on two separate occasions does not constitute storage. Castro v. Miami-Dade County Code Enforcement, 844 So. 2d 784, 28 Fla. L. Weekly D1168 (Fla. 3d DCA May 14, 2003).

Charlotte County Code Enforcement Board violated due process by imposing lien based on inspector's affidavit homeowners had not complied with previous order rendered after hearing giving homeowners thirty days to apply for a permit without giving homeowners notice and an opportunity to be heard as to whether they had done so. Massey v. Charlotte County, 842 So. 2d 142, 28 Fla. L. Weekly D407 (Fla. 2d DCA Feb. 7, 2003).

Orange County Code Enforcement Board violated due process by not allowing owner of agriculturally zoned land to submit testimony that a bushhog, a bulldozer, a crane, a backhoe and various other equipment were used for farm purposes raised in defense to claim he was operating an unauthorized "junkyard." Kupke v. Orange County, 838 So. 2d 598, 28 Fla. L. Weekly D413 (Fla. 5th DCA Feb. 7, 2003)(on motion for reconsideration of opinion reported at 27 Fla. L. Weekly D241).

Code Enforcement Board erred in finding owner operated unauthorized junkyard because of storing a bushhog, a bulldozer, a crane, a backhoe and various other machinery without granting the owner an opportunity to present evidence that all these items had a legitimate farm related use. Kupke v. Orange County, 838 So. 2d 598, 27 Fla. L. Weekly D2416 (Fla. 5th DCA Nov. 8, 2002).

City was entitled to money judgment for code enforcement fines accruing from October 1, 2000, as fines were "levied" and imposed on each day violations continued. Deluca Properties, Inc. v. City of Wildwood, 830 So. 2d 206, 27 Fla. L. Weekly D2415 (Fla. 5th DCA Nov. 8, 2002).

Miami-Dade County's alternate system for enforcing its Code does not require it to grant a grace period and permits it to impose a fine without prior notice and an opportunity to cure. Miami-Dade County v. Brown , 814 So. 2d 518, 27 Fla. L. Weekly D922 (Fla. 3d DCA April 24, 2002).

Circuit court departed from essential requirements of law in reversing code enforcement order finding business failed to obtain permit to operate adult use establishment on basis that county had not presented actual magazines and videos as unrefuted testimony of witnesses constituted competent, substantial evidence supporting special master's findings. City of Sarasota v. Pleasures II Adult Video, Inc., 26 Fla. L. Weekly D2480 (Fla. 2d DCA Oct. 12, 2001).

Trial court erred in reweighing the evidence and substituting its findings for those of the City Code Enforcement Board. City of Deerfield Beach v. Boca Dominium, 795 So.2d 145 (Fla. 4th DCA 2001).

Property owner must raise factual issues challenging code enforcement lien before code enforcement board and cannot later raise them in foreclosure action. Kirby v. City of Archer , 790 So.2d 1214 (Fla. 1st DCA 2001).

Author johnbsims3
Admin 

#3 - Posted: 1 Jan 2007 08:25 
Property owner must raise factual issues challenging code enforcement lien before code enforcement board and cannot later raise them in foreclosure action. Kirby v. City of Archer , 790 So.2d 1214 (Fla. 1st DCA 2001).

Charlotte County Code Enforcement Board violated due process by imposing lien based on inspector's affidavit homeowners had not complied with previous order rendered after hearing giving homeowners thirty days to apply for a permit without giving homeowners notice and an opportunity to be heard as to whether they had done so. Massey v. Charlotte County, 842 So. 2d 142, 28 Fla. L. Weekly D407 (Fla. 2d DCA Feb. 7, 2003).

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