Local Governmental Ordinances and Code Provisions Dealing With Code Enforcement Violations

Local Governmental Ordinances and Code Provisions Dealing With Code Enforcement Violations

Deriving Authority From Chapter 162 F.S.

Local Code Enforcement Boards having county wide or municipal jurisdiction have been established by political subdivisions throughout the state of Florida. Deriving authority from F.S. 162 and local ordinances/codes these Local Code Enforcement Boards are empowered with authority to (i) require correction of violations and to (ii) impose administrative fines and penalties for existing and repeated code violations. The provision for imposition of liens and enforcement of same usually follow the provisions of F.S. 162 with some variations depending on the local ordinance or code provisions.

In a title examination process, a notice of violation and/or order imposing fine filed in the Official Records Books are matters which must be properly addressed in the requirement section of the commitment to insure title (or raised as exceptions to title subject to the proposed insured purchaser's and/or lender's closing/title insurance instructions). When raised as a requirement regarding land against which the violation is claimed you must call for: (a) the properly executed release and satisfaction of the recorded order imposing fine from the appropriate governmental agency and (b) obtain documentation from the appropriate governmental agency evidencing that the particular violation affecting the lands has been removed or corrected and no longer constitutes a violation. In any commitment to insure title to lands owned by the violator other than lands upon which the violation exists, you must raise an appropriate requirement for satisfaction and release of the recorded order imposing fine or raise an appropriate exception for same.

Do not rely on judgments in mortgage foreclosure actions or other judicial proceedings to eliminate the code violation or the fine. While code enforcement liens are not enforceable against homestead property, do not rely on this provision of the statute to eliminate the code violation or the fine. F.S. 162.09(3) provides in part that:
"A certified copy of an order imposing fine may be recorded in the Public Records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator."

Under F.S. 162.10 the duration of the lien shall not continue more than 20 years unless sooner satisfied or foreclosed.

Florida Statute 162.09. Administrative fines; costs of repair; liens


(1) An enforcement board, upon notification by the code inspector that an order of the enforcement board has not been complied with by the set time or upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the enforcement board for compliance or, in the case of a repeat violation, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the code inspector. In addition, if the violation is a violation described in s. 162.06(4), the enforcement board shall notify the local governing body, which may make all reasonable repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the local governing body to make further repairs or to maintain the property and does not create any liability against the local governing body for any damages to the property if such repairs were completed in good faith. If a finding of a violation or a repeat violation has been made as provided in this part, a hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and hearing, a code enforcement board finds a violation to be irreparable or irreversible in nature, it may order the violator to pay a fine as specified in paragraph (2)(a).


(2)(a) A fine imposed pursuant to this section shall not exceed $250 per day for a first violation and shall not exceed $500 per day for a repeat violation, and, in addition, may include all costs of repairs pursuant to subsection (1). However, if a code enforcement board finds the violation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000 per violation.


(b) In determining the amount of the fine, if any, the enforcement board shall consider the following factors:


1. The gravity of the violation;


2. Any actions taken by the violator to correct the violation; and


3. Any previous violations committed by the violator.


(c) An enforcement board may reduce a fine imposed pursuant to this section.


(d) A county or a municipality having a population equal to or greater than 50,000 may adopt, by a vote of at least a majority plus one of the entire governing body of the county or municipality, an ordinance that gives code enforcement boards or special magistrates, or both, authority to impose fines in excess of the limits set forth in paragraph (a). Such fines shall not exceed $1,000 per day per violation for a first violation, $5,000 per day per violation for a repeat violation, and up to $15,000 per violation if the code enforcement board or special magistrate finds the violation to be irreparable or irreversible in nature. In addition to such fines, a code enforcement board or special magistrate may impose additional fines to cover all costs incurred by the local government in enforcing its codes and all costs of repairs pursuant to subsection (1). Any ordinance imposing such fines shall include criteria to be considered by the code enforcement board or special magistrate in determining the amount of the fines, including, but not limited to, those factors set forth in paragraph (b).


(3) A certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order shall be enforceable in the same manner as a court judgment by the sheriffs of this state, including execution and levy against the personal property of the violator, but such order shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursuant to this part shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the local governing body, and the local governing body may execute a satisfaction or release of lien entered pursuant to this section. After 3 months from the filing of any such lien which remains unpaid, the enforcement board may authorize the local governing body attorney to foreclose on the lien or to sue to recover a money judgment for the amount of the lien plus accrued interest. No lien created pursuant to the provisions of this part may be foreclosed on real property which is a homestead under s. 4, Art. X of the State Constitution. The money judgment provisions of this section shall not apply to real property or personal property which is covered under s. 4(a), Art. X of the State Constitution.

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"An ordinance of a municipal corporation is a local law, and binds
persons within the jurisdiction of the corporation." Pittsburgh, C., C.
& St L. Ry. Co. v. Lightheiser, 71 N.E. 218, 221; Pennsylvania Co. v.
Stegemeier,
20 N.E. 843.


"Ordinances...are laws passed by the governing body of a municipal
corporation for the regulation of the corporation." Bills v. City of
Goshen, 20 N.E. 115, 117.



"The terms ordinance, by-law, and municipal regulation...are local
regulations for the government of the inhabitants of a particular place,
and though given the force of law by the charter for the purposes of the
municipal government, yet relate to that solely, and prosecutions for
their violation have no reference, as a general rule to the
administration of criminal justice of the state." State v. Lee, 13 N.W.
913.


"Ordinances are laws of municipality made by authorized municipal body
in distinction from general laws of the state and constitute local
regulations for government of inhabitants of particular place." State v.
Thomas, 156 N.W. 2d 745.

"...defining the term criminal offense as any offense for which any
punishment by imprisonment or fine, or both, may by law be inflicted, a
violation of a city ordinance is not a criminal offense...an ordinance
being a regulation adopted by a municipal corporation and not a law in
the legal sense." Meredith v. Whillock, 158 S.W. 1061, 1062.


"A city ordinance is not a law of the same character as a statute. It is
merely a regulation; a rule of conduct passed by the common council for
the direction and supervision of its citizens." People v. Gardner, 106
N.W. 541, 545.


"An ordinance prescribes a permanent rule for conduct of government."
76 N.W. 2d l, 5; 61 A.L.R. 2d 583.


"An ordinance is not, in the constitutional sense, a public law. It is a
mere local rule or by-law, a police or domestic regulation, devoid in
many respects of the characteristics of the public or general laws."

State v. Fourcade, 13 So. 187, 191; McInerney v. City of Denver, 29 P.
516. Since regulations are the work of a corporation, they can only
apply to members of that corporation.

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Exemptions

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.

Mere recording of code enforcement board order, requiring owner to alleviate code violations pertaining to his homestead property or be subject to a fine, as a lien in the public records did not constitute a cloud upon owner's homestead property; however, if owner's property somehow lost its homestead status, city would be able to enforce the order as a lien against the property. Miskin v. City of Fort Lauderdale, App. 4 Dist., 661 So.2d 415 (1995). Homestead 105

Constitutional prohibition against forced sale of homestead did not invalidate lien, but merely rendered the same unenforceable where city recorded code enforcement board's order, requiring owner to alleviate code violations pertaining to his homestead property or be subject to a fine, as a lien in the public records. Miskin v. City of Fort Lauderdale, App. 4 Dist., 661 So.2d 415 (1995). Homestead 105

A municipality may not auction its code enforcement board liens to private parties for enforcement or foreclosure, but the municipality may contract with collection agencies to collect such liens on its behalf. Op.Atty.Gen., 2001- 09, February 22, 2001.

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In general 2
Administrative charges or fees 12
Collection of fines 3.5
Construction with other laws 3
Continuing or repeated violations 8
Enforcement of lien 13
Exemptions 6
Imposition of fines 4
Liens 9
Notice and hearing 11
Penalties other than fines 5
Reduction of fines 7
Res judicata 12.5
Validity 1
Zoning violations 10

1. Validity

Powers given by legislature to code enforcement boards do not unconstitutionally cross line between "quasi-judicial" and "judicial," as such boards may impose fines for code violations, but they cannot impose criminal penalties, and as statute permitting boards to assert lien against real or personal property provide fundamental due process requirements of notice and hearing, making of record, and appeal. Michael D. Jones, P.A. v. Seminole County, App. 5 Dist., 670 So.2d 95 (1996), rehearing denied. Constitutional Law 80(2)
2. In general

Trailer park owners did not fail to exhaust administrative remedies in challenging facial constitutionality of statutes and ordinances governing fines for code violations; failure to exhaust was an affirmative defense not apparent on face of complaint, appeal to Circuit Court was not administrative remedy, and constitutional challenge could not be raised in administrative proceedings. Wilson v. County of Orange, App. 5 Dist., 881 So.2d 625 (2004), clarification denied, review denied 2005 WL 589895. Constitutional Law 46(1)

Owners of trailer park stated claim against county under § 1983 by alleging that, pursuant to statutes and ordinances, county imposed liens and excessive fines without a hearing and based solely upon an affidavit, conducted warrantless searches, and did not train inspectors to avoid these violations; complaint did not contain bald statements without factual basis, but rather explained in detailed terms the statutory scheme as well as the specific actions taken by county. Wilson v. County of Orange, App. 5 Dist., 881 So.2d 625 (2004), clarification denied, review denied 2005 WL 589895. Civil Rights 1395(3)

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. Constitutional Law 278.1; Health 373

When statutory lien is given on compliance with stated requirements, absent language stating otherwise, no lien is acquired unless party asserting lien strictly complies with those requirements. Personal Representative of Estate of Jacobson v. Attorneys' Title Ins. Fund, Inc., App. 3 Dist., 685 So.2d 19 (1996). Liens 8

Statute allowing local government code enforcement boards to impose fines for code violations and file liens does not confer upon boards right to collect, by action at law, money judgment for failure to pay fine; language providing that fine continues "to accrue until the violator comes into compliance or until judgment is rendered in a suit to foreclose on a lien" merely authorized equitable action to enforce lien, and statute, as both punitive statute and statute in derogation of common law, was to be strictly construed, even though its was enacted for public benefit. City of Tampa for Use and Benefit of City of Tampa Code Enforcement Bd. v. Braxton, App. 2 Dist., 616 So.2d 554 (1993). Health 378; Health 366

A city commission does not have the authority to reduce a fine that is imposed by a local code enforcement board in accordance with statute which authorizes the imposition of an administrative fine by a code enforcement board, upon notification by the code inspector that an order of the board has not been complied with by the set time or upon finding that a repeat violation has been committed. Op.Atty.Gen. 93-84.

Local government code enforcement board lacks authority to delegate power to assess fine for noncompliance to code inspector or to establish any presumptions relative thereto and may levy fine against violator only under § 162.09, which authorizes enforcement board to impose fine each day violation continues past date set for compliance only where previous order of board has not been complied with. Op.Atty.Gen. No. 85-33, April 30, 1985.

Local government code enforcement board has no flexibility to assess one fine for noncompliance during brief period after order is given and then no fine or lesser fine for another period of time and lacks authority to assess any fine or administrative fee for violation which has been corrected by time of hearing. Op.Atty.Gen. No. 85-33, April 30, 1985.

Municipal code enforcement board may not refuse to extinguish lien against property cited and fined for violation of municipal ordinance where fine imposed has been paid but property remains in noncompliance; nor may the board levy fine against person who is cited for code violation but who brings property into compliance before case is presented to the board; and board possesses no authority to impose initial fine on violator based solely on its finding that violation has occurred and before board has actually ordered compliance. Op.Atty.Gen. 85-17, Feb. 27, 1985.

The governing body of a county or municipality that has created a local government code enforcement board pursuant to this chapter may not by ordinance require that the local code enforcement board impose an administrative charge or fee on individuals, businesses or other entities found guilty by the board of violation of one or more of that local government's technical codes. Op.Atty.Gen., 84-55, June 7, 1984.
3. Construction with other laws

State administrative enforcement procedures do not preempt alternative enforcement procedures adopted by municipalities. Op.Atty.Gen., 2001-77, October 30, 2001.

A municipality may adopt its own administrative enforcement provisions, but cannot change the procedure for imposing fines under the state administrative enforcement code. Op.Atty.Gen., 2001-77, October 30, 2001.

If the city prosecutes violations of its occupational license tax ordinance enacted pursuant to Chapter 205, Florida Statutes, the code enforcement board would impose the fine prescribed by Chapter 205, Florida Statutes, not the fine imposed by § 162.09. Op.Atty.Gen. 96-72, September 23, 1996.
3.5. Collection of fines

A municipality nay enter into an agreement with a collection agency to compromise code enforcement board liens and pursue collection through litigation. Op.Atty.Gen., 99-03, January 15, 1999.
4. Imposition of fines

Civil penalties against property owner for continuing violations of town code could only accrue until date that summary final judgment was entered in town's action that sought foreclosure of lien on owner's real and personal property. Fong v. Town of Bay Harbor Islands, App. 3 Dist., 864 So.2d 76 (2003). Municipal Corporations 633(7)

While a municipal code enforcement board, at its hearing to determine non-compliance, could establish a specified deadline for compliance and notify the violator of the amount of the fine that could be imposed for non-compliance, a second order of the board was required to impose the fine. Op.Atty.Gen. 97- 26, May 16, 1997.
5. Penalties other than fines

In absence of any provision of law authorizing local government code enforcement board to impose penalty other than fine provided for in § 162.09, board may not require community service rather than payment of monetary fine as method of assuring continued compliance with applicable codes. Op.Atty.Gen. No. 85-33, April 30, 1985.
6. Exemptions

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.
7. Reduction of fines

Once an order imposing a fine has been recorded pursuant to § 162.09(3), the order is a lien that may only be satisfied or released by the local governing body; a code enforcement board does not have the authority to reduce a fine for noncompliance with a recorded order. Op.Atty.Gen., 2002-62, Sept. 11, 2002.

The board of county commissioners has the authority to reduce or satisfy a fine imposed by the county code enforcement board. Op.Atty.Gen. 98-40, June 30, 1998.

Pursuant to West's F.S.A. § 162.09, only a municipal code enforcement board may adopt rules establishing a uniform procedure for considering the reduction of a fine prior to entry of the final administrative order. Op.Atty.Gen. 93-91, Dec. 14, 1993.
8. Continuing or repeated violations

City code enforcement board was not required to make separate finding that same code violation had been repeated by same violator in order to impose fine and thus to establish valid lien on violator's property if fine was not paid. City of Gainesville Code Enforcement Bd. v. Lewis, App. 1 Dist., 536 So.2d 1148 (1988). Municipal Corporations 633(1)

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.
9. Liens

A satisfaction or release of lien entered pursuant to s. 162.09(3), F.S., must be executed by the municipal code enforcement board. Op.Atty.Gen. 93- 91, Dec. 14, 1993.
10. Zoning violations

Violations of county zoning code "run with the land" so that subsequent purchasers of land can be held responsible for bringing their property up to code. Monroe County v. Whispering Pines Associates, App. 3 Dist., 697 So.2d 873 (1997), rehearing denied. Zoning And Planning 761

Mobile home park, as current owner of lot containing mobile homes in violation of county zoning code, had power to bring land into code compliance and, thus, after park was given hearing and time to get variance or comply with code, it was properly held responsible for property's noncompliance. Monroe County v. Whispering Pines Associates, App. 3 Dist., 697 So.2d 873 (1997), rehearing denied. Zoning And Planning 761

Where mobile homes' presence on lot violated county zoning code and penalty for noncompliance with code was lien against the land, mobile home park, as lot's owner, rather than owner of mobile home, was properly deemed to be violator of code; thus, in enforcement proceeding, joinder of mobile home owner was not required. Monroe County v. Whispering Pines Associates, App. 3 Dist., 697 So.2d 873 (1997), rehearing denied. Zoning And Planning 801
11. Notice and hearing

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

Municipal code enforcement board is not authorized to establish plan involving schedule of fines for particular offenses whereby violator may consent to pay designated fine in order to avoid initial hearing nor may board authorize alternative method of delivering notice than that prescribed in West's F.S.A. § 162.09. Op.Atty.Gen., 85-84, Oct. 25, 1985.
12. Administrative charges or fees

Local governing bodies may not empower or require local government code enforcement boards to impose administrative charges or fees. West's F.S.A. §§ 162.01-162.13; West's F.S.A. Const. Art. 1, § 18, Art. 5, § 1. Op.Atty.Gen. 84-55, June 7, 1984.
12.5. Res judicata

Trailer park owners' action facially challenging constitutionality of statutes and ordinances governing fines for code violation, was not barred by res judicata; former action was code enforcement procedure, and thus, cause of action was not the same. Wilson v. County of Orange, App. 5 Dist., 881 So.2d 625 (2004), clarification denied, review denied 2005 WL 589895. Health 392

In trailer park owners' action against county under § 1983, and their facial constitutional challenge to statutes and ordinance governing fines for code violations, county could not raise res judicata on motion to dismiss, as this was an affirmative defense not apparent on face of the complaint. Wilson v. County of Orange, App. 5 Dist., 881 So.2d 625 (2004), clarification denied, review denied 2005 WL 589895. Judgment 948(2)
13. Enforcement of lien

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