VII (E1) Code Enforcement Matters: City Attorney Report and Recommendation Agenda 8-05-2003
Item VII E 1
FOLEYCLARDNER
ATTORNEYS AT LAW
MEMORANDUM
CLIENT-MATTER NUMBER
O2O377-O O7
TO: The Honorable Mayor and City Commissioners of the City of Ococc
FROM: Paul E. Rosenthal, Esq., City Attorney
DATE: July 28, 2003
CC: Code Enforcement Board
RE: Reduction of Fines Imposed by the Code Enforcement Board and Release of
Code Enforcement Board Liens
ISSUE:
What procedures should be followed in connection with the compromise, satisfaction and
release of fines imposed by the Code Enforcement Board after a certified copy of the Board
Order has been recorded?
DISCUSSION:
The August 51h City Commission Agenda includes items relating to the reduction of fines
imposed by the Code Enforcement Board ("CEB") and the release of liens in connection
therewith. In the past, these matters have been acted upon by the Code Enforcement Board and
have not been brought before the City Commission. We have recently had the occasion to
update our research regarding the authority to reduce or waive fines and to release such liens and
we have concluded that such authority is now vested in the City Commission, rather than the
Code Enforcement Board, after a certified copy of the CEB order imposing a fine is recorded in
the public records. Prior to the recording of such CEB order, CEB and City Commission have
dual authority to reduce a fine.
The provisions of Section 162.09(2)(c), Florida Statutes, expressly authorize a code
enforcement board to reduce a fine imposed by such board. However, Section 162.09(2)(3),
Florida Statutes, provides that upon recording of a certified copy of an order imposing a fine,
such fine thereafter constitutes a lien against the land on which the violation exists and on other
real and personal property of the violator. In the 1994 legislative session, this section was
amended to provide as follows:
"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."
006.303835.1 FOLEY 8 LARDNER
FOLEY : LARDNER
ATTORNEY , AT LAW
In Attorney General Opinion 98-40, the Attorney General concluded that the above amendment
granted the local governing body the authority to reduce or satisfy a fine imposed by a code
enforcement board. Shortly thereafter, Attorney General Opinion 98-50 was issued which also
reaffirmed the right of a code enforcement board to reduce a fine imposed by such board.
More recently Attorney General Opinion 2002-62 was issued (copy attached). In that
opinion, a code enforcement board asked whether they were authorized to reduce a fine for non-
compliance with an order of the board after that order has been recorded pursuant to Section
162.039(3), Florida Statutes. The Attorney General reviewed the statute and previous opinions
and concluded that "a code enforcement board is not authorized to reduce a fine for non-
compliance with an order of the board after that order has been recorded". The Attorney General
further concluded that "upon being recorded, such an order becomes a lien that may only be
compromised, satisfied or released by the local governing body".
Attorney General Opinion 2002-62 was the basis for our earlier conclusion that the City
Commission was authorized to enter into a settlement agreement with the Colony Plaza
Condominium Association regarding the release and satisfaction of the fines and liens imposed
by the CEB.
We concur with the opinion of the Attorney General. In the future, the Mayor and City
Clerk should execute any releases of liens imposed by the CEB. On this basis, the City
Commission may act on the requests for relief from fines and liens which are on the Agenda.
However, it would be advisable to develop a policy regarding the exercise of dual
authority prior to the recording of a CEB lien. In order to reduce the volume of requests which
would now be presented to the City Commission, it would also be advisable to explore whether
the City Commission desires to delegate any of its authority to the CEB. Staff needs direction
from the Commission in this regard.
RECOMMENDATION:
It respectfully is recommended that the City Commission direct the City staff review this
matter with the Code Enforcement Board and that the Code Enforcement Board provide
recommendations to the City Commission regarding policies and procedures for the compromise,
satisfaction and release of fines and liens imposed by the Code Enforcement Board.
End.
PER/jed
2
006.303835.1
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Florida Attorney General
Advisory Legal Opinion
Number: AGO 2002-62
Date: September 11, 2002
Subject: Code enforcement board, reduction of fine
Mr. Bruce W. Jolly
Legal Advisor
City of Fort Lauderdale Code Enforcement Board
1322 Southeast Third Avenue
Fort Lauderdale, Florida 33316
RE: CODE ENFORCEMENT BOARDS-FINES-LIENS-authority of code enforcement
board to reduce fine where order imposing fine recorded. s. 162 .09,
Fla. Stat.
Dear Mr. Jolly:
You have asked for my opinion on substantially the following
question:
Is a code enforcement board authorized to reduce a fine for
noncompliance with an order of the board after that order has been
recorded pursuant to section 162 .09 (3) , Florida Statutes?
In sum:
A code enforcement board is not authorized to reduce a fine for
noncompliance with an order of the board after that order has been
recorded pursuant to section 162 . 09 (3) , Florida Statutes. Rather,
upon being recorded, such an order becomes a lien that may only be
compromised, satisfied or released by the local governing body.
The purpose of Part I of Chapter 162, Florida Statutes, the Local
Government Code Enforcement Boards Act (act) , is "to provide an
equitable, expeditious, effective, and inexpensive method of
enforcing . . . codes and ordinances in force in counties and
municipalities, where a pending or repeated violation continues to
exist. " [1] In order to accomplish this purpose, the act authorizes a
county or municipality, at its option, to create local code
enforcement boards as provided therein. [2] Such code enforcement
boards possess the authority to impose administrative fines and other
noncriminal penalties . [3]
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Section 162. 09, Florida Statutes, makes provision for the
administrative fines that may be imposed by the code enforcement
board, authorizes local governments to make repairs to property in
violation of local codes and provides for the recording of liens
against property upon which a violation exists or other property
owned by the violator. With regard to imposing fines, pursuant to
section 162 .09 (2) (a) , Florida Statutes:
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.
This subsection provides criteria that must be considered by a code
enforcement board in determining the amount of the fine. [4] The
statute also specifically empowers a code enforcement board to
"reduce a fine imposed pursuant to this section. " [51
Section 162 . 09(3) , Florida Statutes, states, in part:
"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. "
Thus, the statute establishes that the lien that results from a fine
imposed pursuant to section 162 .09, Florida Statutes, is granted in
favor of the local governing body. It is the governing body that has
the power to determine whether the lien has been satisfied and that
may execute the legal satisfaction or release from the lien.
In several previously issued Attorney General Opinions this office
has discussed the authority of local code enforcement boards to
reduce the fines imposed by the board pursuant to section 162 .09,
Florida Statutes. In Attorney General Opinion 98-40 it was noted that
while section 162 .09 (2) provides that a code enforcement board may
reduce a fine imposed pursuant to the statute, amendments made in
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1994 provide that a lien arising from such a fine "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. "
Thus, the opinion concludes that, in addition to the code enforcement
board itself, the board of county commissioners has the authority to
reduce or satisfy a fine imposed by the county code enforcement
board. (6) A subsequent opinion, Attorney General Opinion 98-50,
reconfirmed the code enforcement board's authority to reduce fines in
light of the 1994 statutory amendments to section 162.09, Florida
Statutes.
Two later opinions considered the nature of the liens authorized by
section 162 .09(3) , Florida Statutes. In Attorney General Opinion 99-
03 this office discussed whether a city could enter into collection
agreements with a private collection agency allowing the agency to
compromise code enforcement board liens and to pursue collection
through litigation. Focusing on the authority of local governments to
compromise and settle litigation and the home rule powers of
municipalities, the opinion concluded that a municipality was
authorized to enter into an agreement with a collection agency to
settle or compromise outstanding liens from code enforcement
violations and to pursue collection through litigation.
In Attorney General Opinion 01-09, a city official asked whether it
had the power to auction its code enforcement board liens arising
under Part I, Chapter 162, Florida Statutes, to private parties. The
city official had determined that foreclosing on the large number of
liens it had imposed would be impractical and sought to determine
whether the liens could be auctioned to private bidders who could
then foreclose on the property. The money raised by these auctions
was to be used for neighborhood improvements. Noting that the
arrangement discussed in Attorney General Opinion 99-03 did not
result in the complete divestiture of these liens by the local
governing body to a private party, this office concluded that the
statutory scheme did not contemplate the enforcement of liens, or the
issuance of satisfaction or release of code enforcement board liens,
by private third parties outside the control of the local governing
body. Thus, while it was suggested that the city might contract with
a collection agency to pursue collection of code enforcement board
liens on the city's behalf, the opinion concluded that the city was
not authorized to auction its code enforcement board liens to private
parties for foreclosure.
Section 162 .09 (31 , Florida Statutes, clearly provides that " [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. "
Because a lien under section 162 .09 (3) , Florida Statutes, runs in
favor of the local governing body, it is my opinion that only the
governing body may compromise, satisfy or release such a lien. While
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section 162 .09 (2) (c) , Florida Statutes, authorizes an enforcement
board to reduce a fine imposed pursuant to this section, nothing in
the statute appears to extend that authority to reducing the amount
of a lien created when a certified copy of an order imposing a fine
has been recorded in the public records . Statutorily-created agencies
have only such power as is conferred by statute. [7]
In sum, it is my opinion that a code enforcement board is not
authorized to reduce a fine for noncompliance with an order of the
board after that order has been recorded pursuant to section 162.09
(3) , Florida Statutes .
Sincerely,
Robert A. Butterworth
Attorney General
RAB/tgh
[1] Sections 162 .01 and 162 . 02, Fla. Stat.
[2] Section 162. 03 (1) , Fla. Stat.
[3] Section 162 .09, Fla. Stat.
[4] Section 162 .09 (2) (b) , Fla. Stat. , states that
"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. "
[5] Section 162 . 09 (2) (c) , Fla. Stat.
16] The amendments made in 1994 addressed a problem pointed out in
Op. Att'y Gen. Fla, 93-91 (1993) . That opinion concluded, based on
the language of section 162 . 09, Fla. Stat. (1993) , that a city
council had no authority to reduce a fine imposed by a municipal code
enforcement board. Rather it was the code enforcement that possessed
sole authority to reduce such a fine and execute a satisfaction or
release of lien.
(7] See, City of Jacksonville v. Jacksonville Supervisor's
Association, Inc. , 791 So. 2d 508 (Fla. 1st DCA 2001) , and see, State
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ex rel . Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628
(Fla. 1st DCA 1974) , cert. dismissed, 300 So. 2d 900 (Fla. 1974)
(administrative bodies have no common-law powers; they are creatures
of the legislature and what powers they have are limited to the
statutes that create them. ) .
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