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2009-11-101 CITY OF OKEECHOBEE NOVEMBER 10, 2009 REGULAR CODE ENFORCEMENT BOARD MEETING SUMMARY OF BOARD ACTION I. CALL TO ORDER - Vice Chairperson: November 10, 2009 Regular Meeting, 6:30 p.m. II. PLEDGE OF ALLEGIANCE - Chairperson. III. BOARD MEMBERS AND STAFF ATTENDANCE - Secretary. Chairperson Jamie Gamiotea Vice Chairperson Frank Irby Board Member Judy Douglas Board Member Randy Huckabee Board Member Bill Ledferd Board Member Jim Pippin Board Member Rennae Sweda Alternate Member Melissa Close Board Attorney John Cook Fire Chief/Code Enforcement Officer Herb Smith Code Enforcement Officer Fred Sterling Board Secretary Sue Christopher November 10, 2009 Code Enforcement Board meeting was called to order at 6:40 p.m. by Vice Chairperson Irby. Absent with consent Present Present Absent with consent Absent with consent (Melissa Close filled the seat for Member Ledferd) Present Present Present Absent Present Present Present PAGE 1 oF4 IV. MINUTES - Secretary. A. Motion to dispense with the reading and approve the Member Sweda moved to dispense with the reading and approve the Summary of Board Action for October 13, 2009; seconded Summary of Board Action for the October 13, 2009 Regular by Member Pippin. Meeting. VOTE GAMIOTEA - ABSENT IRBY - YES DOUGLAS - YES HUCKABEE - ABSENT LEDFERD - ABSENT PIPPIN - YES SWEDA - YES CLOSE - YES Motion Carried. 610 611 NOVEMBER 10, 2009 - CEB REGULAR MEETING - PAGE 2 OF 4 AGENDA it BOARD ACTION • DISCUSSION • VOTE V. AGENDA - Chairperson. A. Requests for the addition, deferral or withdrawal of items on III Code Officer Sterling requested the withdrawal of Case 09-094 due to not receiving proper notification and Case 09-096 due today's agenda. to compliance. VI. NEW BUSINESS. A. Disposition of Cases presented by Code Officer Sterling : No. 09-088 Code Officer Sterling testified this property was found in compliance as of October 14, 2009. Marvin Brantley addressed the Marvin Brantley.1905 S Parrott Avenue Board stating he could keep it clean, but he believes in order to sell his merchandise it needs to be out where it can be seen Request for fine reduction. during business hours. He said he had been working with Code Officer Sterling and he thought everything was alright. Then he received a notice of violation and a fine of $500.00 per day was imposed by the Code Board. Robin Tresch spoke on behalf of Mr. Brantley stating she also felt it could be kept clean and at the same time display a few items in front of the fence so people could see it. Chief Smith reminded the Board according to City Ordinances putting anything in front of the fence is a violation and the Code Board does not have authority to make exceptions to a City Ordinance. Chief Smith suggested Mr. Brantley talk with the City Attorney and Code Enforcement Officers to discuss his options. At this time Mr. Brantley requested the Board consider reducing the existing fine to an amount he could pay without placing a financial burden on him. Member Sweda moved to reduce the fine on Case 09-088 Marvin Brantley from the accrued sum of $16,500.00 to the sum of $1,000.00 based on the testimony of Code Officer Sterling that the property is now in compliance; seconded by Member Close. VOTE GAMIOTEA - ABSENT IRBY - NO DOUGLAS - YES HUCKABEE - ABSENT LEDFERD - ABSENT PIPPIN - YES SWEDA - YES CLOSE - YES MOTION CARRIED. NOVEMBER 10, 2009 -CEB REGULAR MEETING - PAGE 3 OF 4 612 No, 09-093 Super Stop Petroleum Inc. 510 NE Park Street Ch 30 Sec 30-44 General cleaning and beautification No. 09-095 Citimortgage Inc.135 SE 13" Avenue Ch 30 Sec 30-44 General cleaning & beautification No. 09-097 Bank of New York Trust Co. 805 SE 10" Street Ch 30 Sec 30-44 General cleaning and beautification Code Officer Sterling testified he had been in contact with the property owner who stated the new tenant leasing the property mowed the front but did not realize the back section was his responsibility. Mr. Sterling added there was also a fenced area in the back being used by vagrants which needs to be removed. Mr. Sterling recommended the Board allow the new tenant some time to bring the property into compliance. Member Sweda moved to find Case 09-093 Super Stop Petroleum, Inc. in violation of Ch 30 Sec 3044 based on the testimony of Code Officer Sterling imposing a fine of $25.00 per day commencing fifteen (15) days after receipt of notification; seconded by Member Pippin VOTE GAMIOTEA - ABSENT IRBY - YES DOUGLAS - YES HUCKABEE - ABSENT LEDFERD -ABSENT PIPPIN - YES SWEDA - YES CLOSE - YES MOTION CARRIED. Code Officer Sterling testified property was in foreclosure. Therefore, notice of violation/hearing was sent to the attorney for Citimortgage and received by certified mail. However, nothing has been done to clean the property. Member Close moved to find Citimortgage, Inc. in violation of Ch 30 Sec 30-44 General cleaning and beautification based on the testimony of Code Officer Sterling imposing a fine of $15.00 per day commencing five (5) days after receipt of notification; seconded by Member Pippin. VOTE GAMIOTEA - ABSENT IRBY - YES DOUGLAS - YES HUCKABEE - ABSENT LEDFERD -ABSENT PIPPIN - YES SWEDA - NO CLOSE - YES MOTION CARRIED. Code Officer Sterling testified this property was in foreclosure. Therefore, notice of violation/hearing was sent to the attorney for Bank of New York Trust and received by certified mail. Mr. Sterling stated previously it had been cleaned but this time nothing had been done to bring the property into compliance. Member Douglas moved to find Case 09-097 Bank of New York Trust Co. in violation of Ch 30 Sec 3044 General cleaning and beautification based on the testimony of Code Officer Sterling, imposing a fine of $25.00 per day commencing five (5) days after receipt of notification; seconded by Member Pippin. VOTE GAMIOTEA - ABSENT IRBY - YES DOUGLAS - YES HUCKABEE - ABSENT LEDFERD -ABSENT PIPPIN - YES SWEDA - YES CLOSE - YES MOTION CARRIED. WK NOVEMBER 10, 2009 - CEB REGULAR MEETING - PAGE 4 OF 4 AGENDA BOARD ACTION - DISCUSSION VOTE No. 09-098 Code Officer Sterling stated property was in foreclosure. Therefore, notice of violation/hearing was sent to the attorney for Bank Bank of America. 301 SE 3" Street of America and received by certified mail. Mr. Sterling testified property is overgrown and needs to be mowed. Member Sweda Ch 30 Sec 30-44 General cleaning and beautification moved to find Case 09-098 Bank of America in violation of Ch 30 Sec 30-44 General cleaning and beautification based on the testimony of Code Officer Sterling, imposing a fine of $25.00 per day commencing five (5) days after receipt of notification; seconded by Member Close. VOTE GAMIOTEA - ABSENT IRBY - YES DOUGLAS - YES HUCKABEE - ABSENT LEDFERD -ABSENT PIPPIN - YES SWEDA - YES CLOSE - YES MOTION CARRIED. ADJOURNMENT - VICE CHAIRPERSO IRB //Y. THERE BEING NO FURTHER ITEMS ON THE AGENDA, VICE CHAIRPERSON IRBY ADJOURNED THE MEETING AT 7:40 P.M. _4 jl rank Irby, Vic Ch ' rson ATTEST: Sue Christopher,Secretary PLEASE TAKE NOTICE AND BE ADVISED that when a person decides to appeal any decision made by the Code Enforcement Board with respect to any matter considered at this meeting, he/she may need to insure that a verbatim record of the proceeding is made, which record includes the testimony and evidence upon which the appeal is to be based. Code Enforcement Board media is for the sole purpose of backup for official records of the fire department. NDEPENDENT _ ®NEWSPAPERS OKEFCHOBEE NEWS 707S.W. 17th Street, Suite D, Okeechobee, FL34974 J STATE OF FLORMA COUNTY OF OKEECHOBEE Before the undersigned authority personally appeared Judy Kasten, who on oath says she is Advertising Director of the Okeechobee News, a three times a week Newspaper published at Okeechobee, in Okeechobee County, Florida, tha the attached copy of advertisement being a—<j in the matter of in the 19th Judicial. istrict of the Circuit Court of Okeechobee County, Florida, was published in said newspaper in the issues of r Affiant further says that the said Okeechobee News is a newspaper published at Okeechobee, in said Okeechobee County, Florida, and that said newspaper has heretofore been published continuously in said Okeechobee County, Florida each week and has been entered as second class mail matter at the post office in Okeechobee, in said Okeechobee County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement, and afiant fur- ther says that she has neither paid nor promised any person, firm or corporation any discount, rebate, com- mission or refund for the purpose of securing this advertisement for publication in the said newspaper. Judy Kasten worn to and subscribed before me this day of Notary Public, State of Florida at Large \CkC:.•''3 P?OTARY PIJBL -STATE Or FLORIDA Angie Bridges : Commission # DD7 79718 =' Expires: APR. 20, 2012 £ON11E J MRU ATLANTIC BONDING CO., IIvC. (863) 763-3134 CITY CODE ENFDRCEMENT lDARD'ME"= S HEREBY GIVEN M the Qb of Okeetfw_ n mg no or CITY OF OKEECHOBEE CODE ENFORCEMENT BOARD NOVEMBER I Ol 2009 OFFICIAL AGENDA I. CALL TO ORDER - Chairperson: November 10, 2009 Regular Meeting, 6:30 p.m. II. PLEDGE OF ALLEGIANCE • Chairperson. III. BOARD MEMBERS AND STAFF ATTENDANCE • Secretary. Chairperson Jamie Gamiotea Vice Chairperson Frank Irby Board Member Judy Douglas Board Member Randy Huckabee Board Member S01 Ledford Board Member Jim Pippin ✓ Board Member Rennae Sweda Alternate Member Melissa Close/ Board Attorney John Cook rq Fire Chief/Code Enforcement Officer Herb Smith ✓ Code Enforcement Officer Fred Sterling✓ Secretary Sue Christopher ✓ IV. MINUTES • Secretary. A. Motion to dispense with the reading and approve the Summary of Board Action for the October 13, 2009 Regular Meeting. V. AGENDA • Chairperson. A. Requests for the addition, deferral or withdrawal of items on today's agenda. �r PAGE 1 of 2 VI. NEW BUSINESS. A. Disposition of Cases presented by Code Officer Sterling: Case No, Name & Address 09-088 Marvin Brantley 1905 S Parrott Avenue 09-093 Super Stop Petroleum Inc. 510 NE Park Street 09-094 David & Maria Terrazas 1012 SE 51' Street 09-095 Citimortgage Inc. 135 SE 13' Avenue 09-096 Chase Home Finance 1103 SE 8' Avenue 09-097 Bank of New York Trust Co. 805 SE 10"' Street 09-098 Bank of America 301 SE 3nd Street VII. ADJOURN MEETING - Chairperson. Violation Request for fine reduction Ch 30 Sec 30-44 General cleaning & beautification Ch 30 Sec 30-44 General cleaning & beautification Ch 30 Sec 30-44 General cleaning & beautification Ch 30 Sec 30-44 General cleaning & beautification Ch 30 Sec 30-44 General cleaning & beautification Ch 30 Sec 30-44 General cleaning & beautification PLEASE TAKE NOTICE AND BE ADVISED that when a person decides to appeal any decision made by the City Code Enforcement Board with respect to any matter considered at this meeting, he/she may need to insure that a verbatim record of the proceeding is made, which record includes the testimony and evidence upon which the appeal is to be based. Code Enforcement Board media is for the sole purpose of backup for official records of the Fire Department PAGE 2 OF 2 Cq /'1 0- a t arA L ti ackl 4,e"?41 'L e lug i��l�n �rahw G:'- a 01, 0� -o u y�lQ D °I — Gq3 1�' d /V ov qoq A112 �' �Xr11bIT �.:l� CODE ENFORCEMENT BOARD NOd2Mb� 1 ai-;LOQ*/ November 10, 2009 Case No. Name Fine Started 90 Ds Code Board Action av 07-160 08-114 Arthur Davis $25/day 6/30/08 9/27/08 1100 Blk NW 61h St. (Lots:11- 14) Suet -Fong Tsang $50/day 10/29/08 1/26/09 800 Blk NW 12`h St. 08-122 Cody Brown $50/day 10/20/08 1/17/09 813 SE 3`d St. 08-173 Marie Fenton $50/day 4/02/09 7/01/09 700 Blk SE 12" Ave. 09-063 David & Kimberly Black $25/day 9/23/09 12/21/09 609 SE I I" Ave. 09-069 Stanley P. Lemos $25/day 9/23/09 12/21/09 914 SE 14" Court 09-070 Stanley P. Lemos $25/day 9/23/09 12/21/09 1004 SE 14' Court 09-072 Arthur Davis $25/day 9/16/09 12/14/09 1100 Blk NW 6`h St. (Lots:6 - 8) 09-088 Marvin Brantley $500/day 9/11/09 12/9/09 1905 S Parrott Ave. 6/10/08 - Imposed fine on 6/30/08 for general cleaning. 10/14/08- Recommended to proceed with foreclosure (approved 10/21/08 for Lots: 11 - 14 Blk: 18) 10/14/08 - Imposed fine on 10/29/08 for general cleaning - In compliance as of 5/12/09-fine stopped 5/12/09 - Recommend to proceed with foreclosure 10/14/08 - Imposed fine on 10/20/08 for general cleaning and public nuisances. - In compliance as of 3/17/09 - fine stopped 3/10/09 - Imposed fine on 4/2/09 for general cleaning - In compliance as of 4/20/09 - fine stopped 9/08/09 - Imposed fine on 9/23/09 for general cleaning - In compliance as 10/26/09 - fine stopped 9/08/09 - Imposed fine on 9/23/09 for general cleaning 9/08/09 - Imposed fine on 9/23/09 for general cleaning 10/13/09 - Imposed fine on 9/16/09 for a repeat violation of general cleaning 10/13/09 - Imposed fine on 9/11/09 for a repeat violation of junk/public nuisance - In compliance as of 10/14/09 - fine stopped G\�y OF ' O/V, m O 1915City of Okeechobee November 10, 2009 MEMO TO: Code Board City Administrator Fire Chief re: Can a code board reduce a fine the once imposed, has been recorded as a lien in the public records? Again we address this issue; the office of the attorney general has given conflicting opinions on this, the most recent I found to be in 2002. The most recent opinion states that the code board clearly can reduce a FINE, (FS 162.09 2-c) "an enforcement board may reduce a fine imposed pursuant to this section"; but that once Sue records the fine as a LIEN in the public records, a different section applies, being FS 162.09 (3), which states: "Alien 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" There may exist subsequent opinions or in course materials the board received this year at their seminar, but until further research changes the attorney general opinion, I must advise that we must refer all requests for lien reductions to the city council for consideration, c J ook ity Attorney 55 S.E. Third Avenue • Okeechobee, Florida 34974-2903 • (863) 763-3372 • Fax: (863) 763-1686 Statutes & Constitution :View Statutes :->2009->Ch0162->Section 09 : Online Sunshine Page 1 of 2 Select Year: 2009 Go The 2oo9 Florida Statutes Ti e XI COUNTY ORGANIZATION AND INTERGOVERNMENTAL RELATIONS Chapter.1�2 view Eire COUNTY OR MUNICIPAL CODE Ch Rteer 162.09 Administrative fines; costs of repair; liens.-- ENFORCEMENT (1) An enforcement board, upon notification by the code inspector that an order of the enforcement board has not been complied with by the set time or upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the enforcement board for compliance or, in the case of a repeat violation, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the code inspector. In addition, if the violation is a violation described in s. 1.62.06(4), the enforcement board shall notify the local governing body, which may make all reasonable repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the local governing body to make further repairs or to maintain the property and does not create any liability against the local governing body for any damages to the property if such repairs were completed in good faith. If a finding of a violation or a repeat violation has been made as provided in this part, a hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and hearing, a code enforcement board finds a violation to be irreparable or irreversible in nature, it may order the violator to pay a fine as specified in paragraph (2)(a). (2)(a) 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. (b) 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. (c) An enforcement board may reduce a fine imposed pursuant to this section. http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_Strin... 11 /10/2009 Statutes & Constitution :View Statutes :->2009->Ch0162->Section 09 : Online Sunshine Page 2 of 2 (d) A county or a municipality having a population equal to or greater than 50,000 may adopt, by a vote of at least a majority plus one of the entire governing body of the county or municipality, an ordinance that gives code enforcement boards or special magistrates, or both, authority to impose fines in excess of the limits set forth in paragraph (a). Such fines shall not exceed $1,000 per day per violation for a first violation, $5,000 per day per violation for a repeat violation, and up to $15,000 per violation if the code enforcement board or special magistrate finds the violation to be irreparable or irreversible in nature. In addition to such fines, a code enforcement board or special magistrate may impose additional fines to cover all costs incurred by the local government in enforcing its codes and all costs of repairs pursuant to subsection (1). Any ordinance imposing such fines shall include criteria to be considered by the code enforcement board or special magistrate in determining the amount of the fines, including, but not limited to, those factors set forth in paragraph (b). (3) 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. After 3 months from the filing of any such lien which remains unpaid, the enforcement board may authorize the local governing body attorney to foreclose on the lien or to sue to recover a money judgment for the amount of the lien plus accrued interest. No lien created pursuant to the provisions of this part may be foreclosed on real property which is a homestead under s. 4, Art. X of the State Constitution. The money judgment provisions of this section shall not apply to real property or personal property which is covered under s. 4(a), Art. X of the State Constitution. History.--s. 1, ch. 80-300; s. 8, ch. 82-37; s. 2, ch. 85-150; s. 8, ch. 86-201; s. 2, ch. 87-391; s. 8, ch. 89-268; s. 4, ch. 94-291; s. 1, ch. 95-297; s. 5, ch. 99-360; s. 1, ch. 2000-125; s. 65, ch. 2004-11. Note. --Former s. 166.059. Copyright © 1995-2009 The Florida Legislature • Privacy 5t_at.ement • r_(w iact_L)s http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search Strin... 11/10/2009 Advisory Legal Opinion - Code enforcement board, reduction of fine Page 1 of 5 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."[l] In order to accomplish this purpose, the act authorizes a county or municipality, at its option, to create local code enforcement boards as provided therei.n.[2] Such code enforcement boards possess the authority to impose administrative fines and other noncriminal penalties.[3] Section 162.09, Florida Statutes, makes provision for the http://vvww.myfloridalegal.comlago.nsf/printview/80l25F88720EF64485256C3100570A... 11 /10/2009 Advisory Legal Opinion - Code enforcement board, reduction of fine Page 2 of 5 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."[5] 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 1994 provide that a lien arising from such a fine "runs in favor of http://www.mytloridalegal.comlago.nsf/printview/80l25F88720EF64485256C3100570A... 11 /10/2009 Advisory Legal Opinion - Code enforcement board, reduction of fine Page 3 of 5 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(3), 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 section 162.09(2)(c), Florida Statutes, authorizes an enforcement http://www.myfloridalegal.comlago.nsf/printview/80l25F88720EF64485256C3100570A... 11 /10/2009 Advisory Legal Opinion - Code enforcement board, reduction of fine Page 4 of 5 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. [6] 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 ex rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628 (Fla. 1st DCA 1974), cent. dismissed, 300 So. 2d 900 (Fla. 1974) tttp://www.myfloridalegal.com/ago.nsf/printview/80125F88720EF64485256C 'l t nn5?n e Advisory Legal Opinion - Code enforcement board, reduction of fine Page 5 of 5 (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.). /www.myfloridalegal.com/ago.nsf/printview/80125F88720EF64485256CI1 005-7n e 1 1 /1 A E xh; b;-t *,j November 1011 City of Okeechobee Code Board Meeting November loth, 2009 Case 09mO88 Marvin Brantley 1905 South Parrott Avenue _ ". ' ,may •,(� ,, �, �� t � ;i 5 g� �• f9i`„•f f • ��i B li p..f �i •� ` � i��j 4 (:T i, cc 1 A ''ism yr.R� t R, a k'��.. � .,t• -•� -� . fir, ; t3 +�Y t :... t � r s "WAtli" i} r A x, �� K, . _ � • _ fie ' # r'� ,r A 't +" r 8 i Case #09mO93 Super Stop Petroleum, Inc. 510 NE Park Avenue Untended Vegetation/General Cleaning 08/06/2009 — Sent Courtesy Letter. 08/12-09/02/2009 — Inspected the property 4 times. 09/15/2009 — Mailed Notice of Violation. 09/17/2009 — Notice of Violation Received, signed for by Rebekah Whiteh 09/14-10/27/2009 — Inspected property 4 times. 10/27/2007 — Mailed Notice of Hearing. 10/28/2009 — Notice of Hearing received, signed for by Rebekah Whitehea 11/03/2009 — Spoke to Pamela from the MAC Group, will have it mowed 4 11/04/2009 — Spoke to the maintenance people, will work on it this weeker 11/09/2009 — Inspected property, front mowed, nothing done in back. now so Case #09mO94 David & Maria Terrazas 1012 SE St" Street Untended Vegetation/General Cleaning Case #09-095 Marshall Waldron/CitiMortgage 135 SE 13th Avenue Untended Vegetation/General Cleaning Property In Foreclosure P r.iu= � Y} 71T 08/10/2009 — Sent Courtesy Letter. 09/15/2009 — Inspected property, wrote Notice of Violation. Sent to Mr. Waldron & Shapiro & Fishman, attorneys for CitiMortgage. 09/16/2009 — Notice of Violation received, signed for by C. Gailio. 10/05/2009 — Notice sent to Mr. Waldron returned, Unclaimed. 10/27/2009 — Mailed Notice of Hearing to attorney. 10/28/2009 — Notice of Hearing received, signed for by Erica Weaver', 08/10/2009—11/06/2009 Inspected the property 6 times. Case #09mO97 Bank of New York 805 SE loth Street Untended Vegetation/General Cleaning Property in Foreclosure 0 08/26/2009 — Sent Courtesy Letter to Mr. Aguirre.. 08/28/2009 Sent Courtesy Letter to Albertelli Law, attorney for Bank of New York. 09/24/2009 — Mailed Notice of Violation to Albertelli Law. 09/28/2009 — Notice of Violation received, signed for by Peter Jazbson. 10/27/2009 — Mailed Notice of Hearing to Albertelli Law. 10/29/2009 — Notice of Hearing received, signed for by Peter Jazbson. 08/26/2009—11/06/2009 — Inspected property 6 times. Case #09-098 Robert Smythers/Bank of America 301 SE 3rd Street Untended Vegetation/General Cleaning Property in Foreclosure 08/27/2009 — Sent Courtesy Letter to Veschio Law Group, attorneys for Bank of America. 09/24/2009 — Mailed Notice of Violation to Veschio Law Group. 09/28/2009 — Notice of Violation received, signed for by Merilee Hill. 10/27/2009 — Mailed Notice of Hearing to Veschio Law Group. 10/29/2009 — Notice of Hearing received, signed for by Marilee Hill. 08/27/2009 11/06/2009 — Inspected property 6 times.