Friday, August 06, 2004

Important 1983 case involving code enforcement

The Fifth DCA just issued this opinion overturning a circuit court dismissal (with prejudice) of a s. 1983 claim and declaratory actions against key components of chapter 162 - code enforcement.

Most practitioners I know think that the statute is a procedural mess. In particular, the statute allows the code enforcement board or a special master to impose fines in an un-noticed hearing, based only on a code enforcement officer's affidavit, after the "violation hearing" has been held and the time for correction has run. Essentially, this gives the "violator" no fair chance to contest the code enforcement official's opinion as to whether actions (if any) taken to correct the violation have been adequate. It also allows the CEB/SM to enter required findings without any means to challenge them.

The 2d DCA found that the statutory provisions violated due process last year in the Massey case, but determined that if local governments provided some kind of notice and hearing before levying the fines, the statute could be saved.

Other problematic provisions of the statute include the "running fine" provision - which allows the CEB/SM to levy "prospective fines" on a daily basis until the property comes into compliance. While it may be acceptable for a "violator" to be found LIABLE for fines until compliance is determined, the burden of proof to demonstrate that the property in fact was in violation on a particular day must remain with the government.

This case is attacking the root problem facially - it will be interesting to see what happens. The 5th rejected several defenses raised by the county and accepted by the circuit court:

1) it rejected the defense that the Plaintiffs' "bald claims" of a constitutional violation were insufficient to establish a 1983 case - essentially you have a government actor (county), acting under color of state law (ch 162 and the local ordinance), and a deprivation of property (the fines) and that's enough;

2) it rejected Orange County's "Matthews test" defense - where the County (straightfaced) argued that the risk of erroneous deprivation was small because the code enforcement officers are "trained" and because some kind of appeal is available and it also rejected the claim that holding a hearing to establish the fines would be unduly burdensome (citing Massey);

3) In the most important aspect for other litigation (the earlier points were pretty obvious, despite the circuit court buying into them), it also rejected the claims that failure to exhaust and res judicata prevent the claim from being brought collaterally. The County claimed that the availability of appeal meant that these claims had to be litigated through the administrative process - the court rejected this under a key haven analysis (option to go either way) and noted that facial constitutional challenges can be brought through dec. actions. In the related argument, it also rejected the claim that the plaintiffs were cut off by res judicata because they COULD have brought the action in the administrative proceeding and appeal. The court, citing Albrecht, held that because there are different elements to the causes - e.g. different facts need to be proved for the constitutional challenges than for the code enforcement action - res judicata didn't bar the collateral proceeding.

WOW - this addresses one of my big concerns after Omnipoint - that the courts would hold on one hand you would be obliged to raise constitutional issues as an affirmative defense (to avoid res judicata issues), but that on the other you wouldn't be allowed to try them (because the admin proceeding/officer can't determine constitutional issues). This case clearly holds that you can attack the facial and even as applied aspects of a statute that has been applied to you outside the narrow parameters of the process provided.

The other way to look at this is that McKinney v Pate's determination that you only get the process given by the statute doesn't hold where the statutory process creates a deprivation of property not created clearly by the statute itself. I'm sure we'll have more on this later :)

Anyway - big case, big implications for code enforcement and constitutional challenges to local administrative ordinances.

1 comment:

  1. Anonymous11:33 AM

    This is a great case for property owners. The problem with the code enforcement process is the fact that once a violation has been established a property owner has no opportunity to establish compliance with a violation order. The order imposing the fine and lien are entered without notice to the property owner and without any opportunity for a hearing to contest the issue of compliance. In fact, the Florida statute actually states that a hearing is not necessary for the order imposing the fine and lien (this is the basis for the facial constitutional challenge). The decision of the Fifth DCA is of great importance to property owners who achieved compliance with the violation order but still had a fine/lien imposed by the Code Enforcement Board without notice or an opportunity for a hearing.