Sunday, February 01, 2009

Code Enforcement and the Fact Not Discussed

In City of Miami v. Cortez, the 3d District overturned a circuit court decision in an appeal of a code enforcement board "mitigation order."

The 3d found that the circuit court failed to comport with the essential requirements of law. It found that any objections to the testimony in the mitigation hearing were not preserved, and that due process had been followed.

Here's how the 3d characterized the background facts:

On October 3, 2003, the City’s Code Enforcement Board ("Board") held a hearing
where property owner Amado Sabina pled guilty to a code violation for
performance of work on a residential property without a final permit. The Board
entered an enforcement order on October 10, 2003. Property owners Sabina and
Eumelia Cortes were afforded 60 days to correct the violation or face a fine of
$250 per day.

The property owners failed to correct the violations
and fines totaling $105,750 were assessed. On June 2, 2005, the Board held a
mitigation hearing to determine whether to reduce the amount of the fines
accrued. All of the witnesses at the hearing were duly sworn. At the conclusion
of that hearing, the Board reduced the fine to $10,000 and entered a mitigation

The property owners appealed the mitigation order to the appellate
division of the circuit court, arguing that the mitigation order should be set
aside because the city inspector had improperly delayed inspection for a period
of six months. However the Board had already accepted this argument in reducing
the fine to $10,000. The appellate division nonetheless reversed both the
enforcement and mitigation orders.

The 3d quashed the decision of the circuit court.

However, it's clear to me that the 3d didn't include the truly relevant facts or address the real due process problem.

I suspect that the owners thought that they had fixed the problem and were shocked that fines were still accruing - this happens ALL THE TIME in these cases. The issue is that these orders end up creating "running fines" and (I think unconstitutionally) put the burden of proof on the owners to demonstrate that the violation no longer exists. Once an order imposing fines is issued, the local governments claim that they are under no further obligation to investigate or to determine whether a violation continues.

When the violation is for work without a permit, the violation generally isn't fixed until a permit is issued, any remedial work is done, and the work is inspected and signed off. This creates a situation where the local government can leave a person in violation by delaying permit decisions or imposing improper conditions, by finding inconsequential problems in the inspection, or by not inspecting. And by not notifying the code enforcement people when the inspection is done.

It's quite possible under the fact here that the property owners in fact got a permit and did anything else they needed to do within the 60 day window, but that the inspections were delayed and then even after the inspection the fines were accruing.

I would argue strongly that if that is the case, then the code enforcement statute is being administered unconstitutionally. I KNOW that this happens every day.

And I'm having to speculate because the opinion in this case is so devoid of the truly relevant facts, but I suspect that this is what the owners showed to the circuit court. So, did the 3d District get it wrong? We really can't tell because the opinion doesn't give use the rel event facts.

LESSON: If a client gets into code enforcement problems, get in the board's face and start objecting to EVERYTHING from the first hearing. Object that the hearings violate due process because the written guidelines are inadequate or lacking; demand rulings on right to cross examine; object to every piece of written evidence that is offered (most of it is hearsay, lots of it is inadmissible). Object to the local ordinance if you can. And demand very specific findings from the Board or Special Magistrate regarding EXACTLY what actions need to be taken to correct the violation. And then appeal the VERY FIRST determination (the "violation" determination).

If it gets to a "penalty" hearing, make the same objections. Then enter evidence on the "four factors" in the section 162.09 regarding the amount of penalty.

The code enforcement system has turned into a maze of abusive traps because the processes are badly written, badly administered, and almost always applied against unrepresented respondents.


  1. Anonymous8:54 AM

    You are SO right!!

    I wish that more attorneys still retained the ability to think.

    My husband went to SM hearing yesterday in Hollywood. The SM was an 80 year old retired attorney. He agreed that our "violation" of having 7 pet hens (son's 4-H) project was not against the City Code (Hollywood 92.02 which states: dogs and other small domestic animals shall be permitted as pets).

    FS defines poultry as a domestic animal. And our banty Ameraucanas weigh about 2 lbs each, they are clearly "small".

    The SM agreed that parrots and other captive birds are also "poultry" and that the City permits those birds to be kept as pets. Seven other people in res. Hollywood were cited for pens and coops 92.36 which deals with the proper keeping of poultry as pets.

    He told us that there is no requirement to enforce laws equitably.

    He agreed that these were ornamental birds and not ever raised for egg or meat production.

    But he went on to say that "there are norms and conventions in the city which dictate how people are to live'. And if the City doesn't like your pet, then you do not have a right to keep it. That the prevailing culture of the town is a certain way and it does not matter that people in China, the Mid East, South and Latin America consider chickens to be the number one pet, here in America, they are not a pet and we are in America and not somewhere else and you have to conform to the norms of the place you live. (My husband is a Syrian American).

    The DOJ has been looking into the case since the beginning and there were gov't reps there recording the hearing which they knew. And he still went on this pre 1964 diatribe, on camera.

    When my husband pointed out that this was "prejudice", the SM and City Attorney both said that they knew, but that was the norm of the town.

    So, obviously we are going to file an appeal.

    I am a telecommuting managerial consultant for the past 18 years. They also sent me a letter saying that it is "illegal for me to work from home". I am an employee, not running a business. They have no right to tell me WHAT I can and cannot do in my bedroom in my house. But now this is another thing they can harass me for. (They cited us for "garbage" the day after we moved in The prejudice is blatant. And that is why DOJ is interested).

    Our house is homesteaded and worth less than the mortgage. We have no assets. My husband has multiple sclerosis and we moved here to the less expensive house as part of his disability planning.

    I am inclined to not even show up for subsequent SM Auto de Fe's. They can rack up their $250 per day fines, but there is no way to collect them.

    I do not want to take my kids' pets from them. The hens were the consolation prize for first moving away from all of their family and friends in NY when their father first got sick and then for moving away from Miami Beach and all of their friends and live there. They are trained and very affectionate and my kids love them.

    THe City looks over our fence, using a chair to stand on (6 ft privacy fence) photographs and then justifies it using Sarantopoulos.

    Dealing with Code Enforcement, one has to wonder if and when US troops are planning to bring democracy to FL.

    PS. We hired an attorney at first, but it was such an absurd exchange (The City Attorney said "we know that it is legal, but we have always interpreted it as prohibited") that we could see that nothing was being achieved except for billable hours for the attorney. When your counsel says to you "are a few chickens worth it?", he does not get it. This is not about chickens, this is about the right to live in your house.

    Now that they have their chicken victory, they will surely go after, "working from home", "planting a xerioscape", "driving a van rather than a car", and all of the other endless nonsense that they have harassed our neighbors over.

  2. I live in Pinellas County, namely St. Petersburg. As an attorney friend of mine once said "they're trying to turn the whole city into a deed restricted neighborhood." My mother's house was built in 1957, it is largely unchanged from the original structure, all the other homes on the street have been remodeled into mansions; which I think is most of the issue, the house is no longer opulent enough to be on the street and they want us out. The leader of the problem is a women who is unfortunately related (by marriage) to a person that sat on the code panel for years and is now running for mayor. I'm convinced she calls Code and throws her name around to harass my mother and I. It's amazing to me that any complaints against my mother's property show up in the public record the next day while my complaints against other properties on the street never appear. They have a policy of being required to check the two lots on either side and the two directly across the street, this time and last time this was not done. They come to the middle of the street to mess with us while driving by a dozen other issues. The bulldike last year put a sign in my yard that they would levy liens for "wood, garbage, etc." in the yard when half the things she checked off were not even there; her answer, "oh we just check that in case there is any." This sign was over our grass, one or two tall pieces in the corner of the lot is not overground, another set of eyes was sent to look...who of course agreed; I finally got a supervisor at the house who did not agree. They demanded a driveway skirt be repaired last year and then every roadblock was put in my way to repair it under the owner exemption for permits (I have durable poa they didn't want to let me get a permit but they sure wanted to drag us to that kangaroo court they call a hearing and fine us) I finally got them to graciously allow me to fix it with no permit...thus they avoided the issue of whether a poa can pull a permit (which there seems to be an ag opinion that I can, but that is of course ignored). I made a complaint to doj under the ada that city was forcing an old disabled women to spend thousands for something her family could fix if they were not denying us permits; they turned it down of course. The person I had give an estimate told me they get a lot of work on that street, it's obevious why, the bag down the street has no life and no hobbies so she calls on everyone. This women thinks she will take my mother's home if she makes enough problems for us. I was just pushed to the point of putting a camera in my yard. This latest time code came into my "court" which is behind my garage (with an attached roof) and clearly behind the front of my house, to yell about some boxes and a bag of aluminum cans I had to take away. They say a statute lets them go into an entrance way and up to the door; i've asked them to produce that statute but they so far have not done so. I know how to do research to a point, if there is a statute I surely can't find it, it may be case law but either way if they use it they should be able to pull it out. City attorney refused to help me just sent me back to code because the "don't represent me" they represent the city.

  3. Anonymous1:03 AM

    Welcome to the USA, with all the laws and code enforcement BS that don't make sense