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HomeMy WebLinkAboutItem III (F) Authorization for City Attorney to Bring Circuit Court Action in Code Enforcement Board Case 93-41/Ocoee vs.Joel and/or Jesse Rodriguez AGENDA 4-19-94 Item III F FOLEY & LARDNER III NORTH ORANGE AVENUE, SUITE 1800 ORLANDO, FLORIDA 32801 TELEPHONE 14071 423-7656 FACSIMILE 14071 648-1743 TAMPA, FLORIDA MAILING ADDRESS MILWAUKEE, WISCONSIN JACKSONVILLE, FLORIDA POST OFFICE BOX 2193 MADISON, WISCONSIN TALLAHASSEE, FLORIDA WASHINGTON, D.C. WEST PALM BEACH, FLORIDA ORLANDO. FL. 32802-2193 ANNAPOLIS, MARYLAND CHICAGO. ILLINOIS MEMORANDUM TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq. , City Attorneyea...- DATE: April 13, 1994 RE: Code Enforcement Board Case No. 93-41/Ocoee vs. Joel and/or Jesse Rodriquez Pursuant to the request of the City Manager, we have reviewed the City of Ocoee Code Enforcement Board file in connecti-ith the above-referenced matter. The Code Enforcement Board ("SEB") has fined Joel and/or Jesse Rodriquez for a violation of City Code Section 115-1 with respect to property located at 1260 Russell Drive, Ocoee, Florida 34761. The specific violation involves miscellaneous cages, building materials and junk, etc. in the front and side yards creating a breeding place for vermin. As of this date, the violation has not been cured. A fine continues in the amount of $50.00 per day and currently exceeds $9,850.00. Attached hereto is a memorandum from Ed Jordan of my office setting forth the options available to enforce the CEB Order and collect the fine. After consultation with Mr. Shapiro and Mr. Flippen, it is our recommendation that the City Commission authorize the City Attorney to file a petition with the Circuit Court to enforce the CEB Order. Assuming that this proceeding is uncontested, we estimate that the City will incur attorney's fees of between $1,200 and $2 , 000 to obtain the necessary court order. Additionally, court costs and other expenses of approximately $250 would be incurred. It is unlikely that these expenses will be recoverable. In the event the proceeding is contested, then the attorney's fees could be substantially higher. After the court order is obtained, the City would then incur additional attorney's fees and expenses which we estimate would between $1,250 and $2,500, depending on the effort at The Honorable Mayor and City Commissioners of the City of Ocoee April 13, 1994 Page 2 required to obtain assets necessary to satisfy the lien. These post-petition costs would be recoverable from the defendant in the case. The ultimate goal of the City is to obtain compliance with the CEB Order and the City Code. In the event the filing of the petition results in compliance and payment of the outstanding fines, then the attorney's fees and costs would be substantially reduced. Mr. Flippen will be available at the City Commission meeting to answer any questions which you may have regarding the specifics of the code violation. RECOMMENDATION: It respectfully is recommended that the Mayor and City Commission authorize the City Attorney to file a petition with the Circuit Court to enforce the City of Ocoee Code Enforcement Board Order dated September 28, 1993 and recorded February 25, 1994 in the Public Records of Orange County, Florida in the matter of Ocoee vs. Joel and/or Jesse Rodriquez, Case No. 93-41 and further authorizing the City Attorney to take such actions as the City Attorney may deem necessary or appropriate to enforce the aforementioned Code Enforcement Board Order, including but not limited to the levy against personal property of Joel and/or Jesse Rodriquez. PER:ddh Enclosure cc: Mr. Ellis Shapiro, City Manager (w/enc. ) Mr. Don Flippen, Building Official (w/enc. ) Edward P. Jordan, II, Esq. C:\WPS1\DOCSWC00141E.MOS\PFRDD}ID4.14214/13/94 DEBBIEH I PER MEMORANDUM TO: PAUL E. ROSENTHAL, ESQUIRE FROM: EDWARD P. JORDAN II DATE: April 10, 1994 RE: CITY OF OCOEE - CODE ENFORCEMENT LIEN City of Ocoee v. Joel and/or Jesse Rodriquez Case No. 93-41 As requested, I have reviewed the City of Ocoee Code Enforcement Bozrd ' s ("the Board") file in the above matter for purposes of outlining a strategy for enforcing the Order Imposing Fine and Lien ("Order") , dated September 28 , 1993 . The Order imposes a $50 . 00-a-day fine against the Rodriquez ' for their violation of City Code Section 115-1 . There is nothing in the file to indicate that the Rodriquez ' have brought their property into compliance, and, therefore, I assume that the lien continues to accrue. Therefore, the total amount of the fine, as of today, is $9 , 850 . 00 . The Order was recorded in the Public Records of Orange County on February 25, 1994 , and constitutes a lien on the real and personal property owned by the Rodriquez ' in Orange County. See Fla. Stat. § 162 . 09 (3) . Because the real property is the Rodriquez ' homestead, the City may not foreclose the lien created by the Order, as the lien is not an assessment nor tax within the exceptions to the homestead exemption rule of the Florida Constitution. See Fla. Const. , Art. 10 §4 (a) ; Op. Atty. Gen. No. 85-26, March 26 , 1985 . Because the City may not foreclose on the lien, the City must petition the Circuit Court to enforce the Order, as provided in Section 162 . 09 (3) , which states in pertinent part: Upon petition to the circuit court, such order may be enforced in the same manner as a court judgment by the sheriffs of this state, including levy against the personal property, but such order shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursuant to this party shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. In accordance with Section 162 . 09 (3) , the City must file a petition to enforce the Order. This in effect places the Order within the court ' s jurisdiction for purposes of authorizing levy instructions. Once a petition has been filed, the City may then proceed to enforce the Order in the same manner a judgment creditor would enforce a judgment, including, garnishment, levy on personal property, attachment, or proceedings supplementary. To this end, I would recommend that you first seek approval from the City to file a petition with the Circuit Court. Once the requisite approval is obtained, we can then file the petition and request execution to issue instanter. After the Circuit court grants the City' s petition, the City will then be permitted to proceed with enforcing the Order. -2-