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Code Enforcement Problems

Sometimes a property can become the subject of a law enforcement action by a local or county Code Enforcement Board. The Board is responsible to prosecute property owners when their property does not comply with the current municipal or county codes. These prosecutions can result in huge monetary fines imposed upon the property, sometimes wrongfully, as the author has found. The property owner should defend himself against such actions to prevent an injustice and the possible loss of the property.

Code Enforcement Boards are authorized by the Florida Statutes. They consist of appointed members of the Board, and the staff. The staff includes Code Inspectors who look for violations and issue Citations to properties they find to be in violation of the codes. Sometimes the Inspector does not carefully research his case, and a Citation can be issued which is not accurate. The property owner should research his facts carefully to try to prove that the Citation is not valid. Fines can run at up to $500.00 per day, and they can accumulate day after day until the property comes into compliance. One problem with this is that Board members are not specially trained in code compliance and may not understand why a property is not unlawful. Another problem is that some cities in Palm Beach County do not have an official process for declaring a property to be in compliance and so the fine can run literally forever, even if the alleged violation is cured. This occurs typically in situations where there is a neighborhood association with political clout which can intimidate the Inspectors and prevent them from finding a property in compliance.

The author encountered a situation in West Palm Beach where this occurred. A property owner was cited for numerous violations, and fines were imposed. The property owner corrected the violations, or proved that they did not exist, but the Inspectors would not come out to declare the violation in compliance with the code. Thus the fines accumulated even though the violation ended. There is a court case in Florida finding this practice to be unconstitutional, and anyone caught in such a situation may have to file suit to declare the use in compliance and terminate the code enforcement action. Often legal nonconforming use are wrongfully cited as being in violation when they were, in fact, legal when they commenced. Newly adopted codes do not require that such nonconforming uses change to comply with the new code.

A related type of proceeding is the Nuisance Abatement Board, which is a similar board with powers to stop nuisance. The nuisance must be related to drug sales, prostitution and gang related activity. The type of property usually involved in such actions is something like an old hotel which has been forced to rent rooms to prostitutes or drug dealers because they are the only customers. The presence of these people at the hotel is declared a nuisance, and the Board has the power to order that the hotel stop renting to such people. Sometimes such an order can have the effect of depriving the property owner of any reasonable use of the property, and if this occurs the order is subject to challenge. Of course, it is unfair to blame the property owner for the illegal behavior of non-owners upon the property, but the law does not concern itself with this.

Codes may also be enforced using injunctive relief actions in Circuit Court, under Chapter 60, Florida Statutes. The right to a court trial on a claim that a nuisance exists may be more protective than ending up in front of a municipal board composed of ordinary citizens who do not understand the law. In addition, if warranted, there is the right to trial by jury, a right not available in front of these municipal boards.

The author has had cases in which the alleged violation simply did not exist, under the applicable code. Without effective representation, however, such a false violation may result in fines being imposed even though the use is lawful.

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