HomeMy WebLinkAboutHandouts_Special Meeting_Tab 02_06/29/2015 � ORI3ETT WI IITE
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KEITH W. DAVIS
ATTORNEY AT LAW
Board Certified in Cit�, Coienty rmd Locnl Govel Law
MEMORANDUM
TO: Mayor Brennan and Town Council Members
CC: Village Manager Couzzo
FROM: Viilage Attorney Davis
DATE: June 25, 2015
RE: Code Compliance and Community Appearance
In response to concerns regarding general community appearance and the Village's
code compliance process which have been raised by members of the Village Council,
and with direction from the Village Manager, I have prepared this Memorandum to offer
explanations and suggestions regarding these topics. First is an overview of the
Village's code compliance processes. Second is a review of two scholarly articles that
focus on improving compliance with local codes. Third are suggestions which could be
impfemented to expedite the Village's compliance process, and enhance general
community appearance.
Florida's statutory code enforcement process
Chapter 162, Florida Statutes, provides a uniform code enforcement process for
local government. Most local (municipal and county) jurisdiction, utilize this uniform
process, which provides that code compliance proceedings are to be heard by a code
enforcement board or special magistrate. The fundamental elements of this process
require the provision of due process, compliance with the essential requirements of law,
and the presence of competent, substantial evidence to support the findings of the
special magistrate.
The enforcement procedure and notice requirements for local code enforcement
proceedings are found at sections 162.06 and 162.12, F/orida Statutes. These sections
provide that once a"violation of the codes is found, the code inspector shall notify the
violator and give him or her a reasonable time to cure the violation (emphasis added)".
The first notice of a violation may be provided by certified mail' to the address listed in
the county property appraiser's database. The notice should describe the violation and
give the violator a reasonable opportunity to correct the violation. It should also advise
' Local government is not required to send notice via certified mail, return receipt requested. Section 162.12(1)(a),
Florida Statutes (2015), provides that notice via certified mail is sufficient. Notice via certified mail, return receipt
requested, is "an option of the local government" Id.
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the violator that a failure to comply within the time provided may result in the case being
presented to the special magistrate who may levy fines against the property.
If notice is sent by certified mail and is not signed as receiving within 30 days
after the postmarked date, notice may be effected via posting on the subject property
and at Village Hall. Alternatively, notice may be effectuated via hand delivery at the
violator's usual residence with any person that resides there and is over fifteen years of
age, or leaving the violation with the manager of a commercial business. Notice by
posting may occur simultaneous with attempts to provide notice via certified mail or
hand delivery. Proper notice, coupled with an opportunity to be heard by the decision-
making authority constitute due process for purposes of code compliance proceedings.
The case may be heard by the special magistrate if the violation is not remedied
as provided in the notice of violation. Notice of the hearing before the special
magistrate must be provided to the violator in the same manner as the notice of
violation.
At the hearing, the violation is presented to the special magistrate. The
government presents its evidence and the respondent is likewise given an opportunity
to present a defense. At the conclusion of the hearing, the magistrate will issue findings
of fact and an order granting the proper relief. Typically, this order will include a notice
that it must be complied with by a specified date, and wiN describe that a fine may be
imposed if the order is not complied with by the date specified. If the order is not
complied with by the set time, the special magistrate may order the violator to pay a fine
for each day the violation continues past the date set-out in the order.
Village of Tequesta's code enforcement process
The Village utilizes the uniform method of code compliance described above.
Our code compliance process is codified at Chapter 2, Article IV of the Village Code of
Ordinances. In addition, prior to implementing the above process, violators are issued a
friendly notice of violation , which provides a short time for the violator to achieve
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compliance, before being issuing the formal notice of violation. The formal r►otice of
violation gives the violator a reasonable time to achieve compliance and provides notice
to the violator that the Village may bring the matter to the special magistrate if
compliance is not achieved within the time provided.
If the violation is not remedied in the reasonable time provided in the formal
notice of violation, as determined by the code compliance officer, a notice of hearing is
served on the violator as described above. Village code compliance hearings are held
on the fourth Thursday of each month.
Alternate methods of code enforcement
Section 162.The law allows a local government to create its own alternate
method of code enforcement which differs from the uniform method descried above.
However, any process for enforcing Iocal codes must contain the fundamental elements
noted above (the provision of due process, compliance with the essential requirements
of law, and the presence of competent, substantial evidence to support the findings of
the special magistrate). Since the uniform method of code enforcement utilized by the
Village has been judicially tested and approved in terms of these fundamental elements,
it is recommended that the process remain as currently adopted.
Scholarly views on improving compliance with code enforcement
Code violations and code compliance are a widespread problem that receives
little attention. The article that was reviewed for this memo includes notes that "until the
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study reported in this article, no systemic nationwide research ha[d] examined
compliance with building and development-management codes."
The traditional view of code enforcement is that community aesthetics suffer
when local government lacks capacity to compel code compliance by identifying
violations and prosecuting violators. This view is known as systemic code enforcement.
The alternative perspective is that code compliance can be maintained through creating
an environment where violations are less likely to occur. The latter view is achieved by a
facilitative code enforcement philosophy; reward good behavior and punish the knowing
and repeat offenders. Administrators must decide which of these views to emphasize
when crafting a successful code enforcemer�t program.
Systematic code enforcement emphasizes deterrence via enforcement as the
method to achieve voluntary compliance. Proponents of systematic code enforcement
feel compliance occurs only when the cost of disobeying the law exceeds the cost of
noncompliance; a market approach. Deterrence is achieved through an ingrained desire
to comply with local code due to the financial costs of compliance.
Faciiitative code enforcement does not adopt the market approach of systematic
code enforcement. Research shows that a market approach may not be best.
Noncompliance is often a result of ignorance of the code, negligence, incompetence,
and principled disagreement with the requirements of ordinances and permits.
Proponents of facilitative code enforcement train inspectors to use cooperative
approaches to deal with code enforcement violations. These approaches include: using
flexible guidelines when assessing compliance; explaining the sections of code violated
to violators, advising how to fix the violations, and bargaining with violators to agree on
a compliance schedule; using incentives to reward violators that make an honest effort
to comply; and providing technical assistance in interpreting the code to residents and
businesses.
In Improving Compliance With Regulations: Choices and Outcomes For Local
Govemmeni�, Burby et al. gathered and analyzed data on compliance with building
codes to determine whether systemic code enforcement, facilitative code enforcement,
or a mix of both yielded higher levels of compliance. Burby et al. also analyzed which
policy decisions and actions created higher levels of code compliance. The study was
based on an empirical analysis of data from 990 local governments of all sizes.
In evaluating enforcement philosophies, Burby et al. determined that a facilitative
approach was most important to creating an environment of voluntary compliance. This
approach was meaningless without proactive agency leadership and adequate legal
capacity. Proactive leadership and legal support signaled that local government was
serious about code enforcement.
Effective legal support did not involve throwing the book at violators; it invo{ved a
counselor that staff can turn to and ask when to go easy on violators and when to refer
cases for prosecution. Local code inspectors must be able to exercise discretion so
violators can engage in a dialogue with inspectors to understand how the code is
applied to the context of their property. When discretion is not given to inspectors,
violators are less likely to understand the rationale behind the code and willingly comply.
Although code is written to be unambiguous and "one size fits all", this not always the
case in the field.
Increased capacity for compliance had the largest effect on overall compliance.
Increased staffing was determined to be the most effective method of increasing
capacity, and had the largest effect on overall compliance (voluntary and enforced).
Z Kagan and Scholz 1984
3 American Planning Association. Journal of the American Planning Association; Summer 1998; 64, 3.
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Highest rates of compliance were achieved when staff capacity was increased,
combined with increased efforts devoted to enforcement tasks, and when technical
support (via local government staf� was made available to local residents and
businesses.
Burby et al. concluded that highest levels of compliance required both increased
enforcement capacity and fostering a voluntary commitment to comply with code. While
adequate capacity to detect and correct code compliance was an important factor, the
highest rate of compliance required creating commitment within residents and builders
to voluntarily comply with local building and development-management codes. If the
voluntary commitment of residents and builders was achieved through a facilitative
enforcement approach, then the additional cost of increased enforcement capacity
(through higher levels of staffing) could be offset.
In conclusion, Burby et al. determined that successful agencies must be
dedicated to correcting and pr�eventing violations. Increased capacity for code
enforcement through higher levels of staffing had a significant effect on increasing
compliance rates. Compliance rates were highest when increased capacity was
employed in an agency with a facilitative enforcement philosophy. Facilitative code
enforcement philosophies involve: adequate numbers of technically competent staff;
strong proactive leadership; adequate fegal support; and a strong effort to check
building and development plans, inspect building and development sites, and provide
technical assistants.
Expediting the Village's code enforcement process
Any attempt to expedite the code enforcement process must be balanced with
the violator's right to due process. Code enforcement proceedings are a quasi judicial
proceeding, which require notice and due process. The decision to issue a violation or
assess a fine against a violator must be supported by competent substantial evidence.
Most Village code enforcement proceedings involve the following procedure: friendly
notice of viotation, formal notice of violation, notice of hearing, order finding violation,
notice of hearing, and order assessing fine. Status hearings, fine reduction hearings,
affidavits of compliance, and orders of compliance are not discussed in this
memorandum. This process has not been questioned on appeal.
The Village's code enforcement process could be expedited by strict adherence
to the statutory code enforcement process. Strict adherence to the procedure described
in Florida Statutes would eliminate the friendly notice of violation that is issued before a
formal notice of violation simultaneous provision of notice of violation and notice of
(violation) hearing to violators, and elimination of all hearings subsequent to an order of
violation.
The double notice currently provided by the Village is bittersweet: it allows for a
more friendly, small-town approach to compliance, but the property may remain
noncompliant for a greater amount of time. The friendly notice of violation fosters
voluntary compliance by violators and creates a facilitative code enforcement
environment. If the friendly notice component was removed from the Village code
compliance process, then violators would have less time to become compliant and
4 The Village code enforcement officer issues friendly notices of violation at his discretion. Although most violators
are provided with a frienddy notice of violation, the Village code enforcement of�icer does not issue a friendCy notice
of violation for repeat and egregious violators. In these instances, the violator is issued a(formal) notice of violation.
The Village code of ordinances allows the code enforcement officer to immediately schedule a hearing after making
a reasonable effort to notify the violator when the code enforcement officer has reason to believe a violation presents
a serious threat to public health, safety, and welfare. Code 2015, § 2-181(e).
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effective notice of (formal) violation would become (more) important to assure due
process.
Many jurisdictions issue simultaneous notices of violation and hearing. Under the
Village's current process, a violator is given time to after receiving a friendly notice of
violation and additional time to comply after the (formal) notice of violation is issued. If
the violator does not comply by the date in the (formal) notice of violation, then the
violator is given to appear at a hearing before the special magistrate. Ifi the speciaf
magistrate issues an order finding violation, the violator is given additional time to
comply before an order assessing fine is levied. The violator is given more than ample
time to comply.
ff a simultaneous notice of violation and hearing is issued, then the time frame to
comply is shortened. Additionally, Florida's statutory process does require notice before
an order assessing fine is issued. So long as the violator was given notice of the initial
hearing and served with the order finding violation that stated a reasonable (and certain)
date to comply by, an order assessing fine may be sought without notice.
If the property exchanges hands, the new owner must be given notice and
reasonable time to comply. If the Village expedites the current code enforcement
process, then it must take additional steps to assure that initial notice is effective and
due process is provided. Any attempts to expedite the code enforcement process will
come with more recalcitrant violators and increased chances of appeals based on due
process failures and bitter residents.
Increasing code enforcement capacity in Tequesta should increase compliance
rates in the community as described by Burby et al. tncreasing code enforcement staff
(i.e., code enforcement officers) may be the most effective method to increase enforced
compliance. Increases in staff should not come with a harsher, throwing the book at
vio{ators, approach to code enforcement. Staff should be encouraged to exercise their
own discretion in issuing code violations and be available to explain the code of
ordinances and development regulations to violators and potential developers.
Increased levels of enforcement capacity do not necessarily involve hiring
additional code inspectors. 1n opinion 2002-84, the attorney general concluded that
volunteers may be designated as code enforcement officers under Chapter 162, Florida
Statutes Section 162.04(2), Florida Statutes, defines code inspector to mean "any
authorized agent or employee of the county or municipality whose duty it is to assure
code compliance" (emphasis added). Nothing in Chapter 162, Florida Statutes, requires
that a code enforcement officer be a compensated employee. Section 2-131 of the
Village code of ordinances provides that the code enforcement officer may be any agent
or employee of the Village whose duty it is to ensure code compliance.
Conclusion
ln conclusion, the Village may expedite the current code enforcement process by
one or more of the following: eliminating the friendly notice of violation, providing
simultaneous notice of violation and hearing, and seeking an order assessing find
without hearing. Any attempt to expedite the current process will involve a greater need
to assure due process (through effective notice) and risk of recalcitrant residents and
appeals to the circuit court. Burby et al.'s study indicates that administration should
consider adopting a systemic and facilitative code enforcement philosophy to increase
enforced and voluntary compliance. A facilitative and systemic approach to code
5 Opinion 2002-84 does note that section 162.04, Florida Statutes, provides the municipality with the authority to
prescribe the training and qualifications of any agent who may be a code enforcement officer.
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enforcement, combined with increased levefs of code enforcement staff wi11 yieid the
highest levels of overall compliance.
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