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William B. Esq.
William B. Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 2960
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Hello, I have a situation where a code inspection officer has

Resolved Question:

Hello, I have a situation where a code inspection officer has filed complaints against my property, and subsequently the code enforcement board has levied fines for alleged violations. The property is in Florida, Clearwater area and I am in Virginia. I believe they have not provided proper notice to me according to statute. Each notice has been sent via certified mail and postmarked 12-14 days prior to the hearing, which is not a reasonable time to respond or remedy any alleged violations. This has happened on at least four different occasions. I responded to the board for one complaint and pointed this out, and if anything subsequent notices have arrived with an even shorter timeframe between the postmark and the demanded hearing.

The relevant statutes are FLA 162.06 and 162.12, which are pasted below. My assertion is that 162.06 requires written notice to be provided by mailing (last sentence), as provided in 162.12. In 162.12(1a), all notices must be provided by certified mail, "If any notice sent by certified mail is not signed as received within 30 days after the date of mailing, notice may be provided by posting as described in subparagraphs (2)(b)1. and 2".

To me, this clearly reads that a 30 day period must pass before notice may be provided by posting, as provided in 162.12(2b)1.

The statute further requires that "Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (1), together with proof of publication or posting as provided in subsection (2), shall be sufficient to show that the notice requirements of this part have been met, without regard to whether or not the alleged violator actually received such notice."

The board's Rules of Procedure state that the board must determine if proper notice was sent before a hearing can proceed:

Dunedin Code Enforcement Board Rules of Procedure
Rule 4 Section1
The following procedures will be observed in hearings before the Board:
a. If it is established that proper notice of a hearing has been provided to the Respondent, a hearing may proceed in the absence of the Respondent.


My question is: by sending a notice via certified mail with 12 calendar days between the mailing date and the hearing date, did they meet the requirements of notice according to the statute?

---------------------------------------------
162.06 Enforcement procedure.—
(1) It shall be the duty of the code inspector to initiate enforcement proceedings of the various codes; however, no member of a board shall have the power to initiate such enforcement proceedings.
(2) Except as provided in subsections (3) and (4), if a violation of the codes is found, the code inspector shall notify the violator and give him or her a reasonable time to correct the violation. Should the violation continue beyond the time specified for correction, the code inspector shall notify an enforcement board and request a hearing. The code enforcement board, through its clerical staff, shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as provided in s. 162.12 to said violator.

162.12 Notices.—
(1) All notices required by this part must be provided to the alleged violator by:
(a) Certified mail to the address listed in the tax collector’s office for tax notices, or to any other address provided by the property owner in writing to the local government for the purpose of receiving notices. For property owned by a corporation, notices may be provided by certified mail to the registered agent of the corporation. If any notice sent by certified mail is not signed as received within 30 days after the date of mailing, notice may be provided by posting as described in subparagraphs (2)(b)1. and 2.;

2. Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of its posting.
(c) Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under subsection (1).

Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (1), together with proof of publication or posting as provided in subsection (2), shall be sufficient to show that the notice requirements of this part have been met, without regard to whether or not the alleged violator actually received such notice.
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  William B. Esq. replied 9 months ago.

William B. Esq. :

Thank you for using our service. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

I am sorry to learn of this situation. While I do not understand how asserting your right to reply to an administrative hearing is "taking advantage of the system" (that is your right, and the purpose of the hearing), it does appear that you are not receiving sufficient notice (primarily to correct the violation prior to being referred to the Board). With regard to the mailing, the notice is insufficient - a mailing of notice that is not acknowledged (signed for) cannot be considered a default until 30 days have passed, your notice for 12 days before a hearing is insufficient.

William B. Esq. :

You do have a right to appeal any decision by the board on the facts presented to the Board (and most importantly in these matters - the procedure used by the Board in conducting its hearing, insufficient notice alone is grounds to overturn a decision such as this).

William B. Esq. :

I am certain you already have the code section, but here it is again:


162.11 Appeals.—An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board. An appeal shall be filed within 30 days of the execution of the order to be appealed.

Customer:

Thank you very much for your reply. That is what I had figured. It gets worse: the code inspector, after the harassing phone call, went to the property to check for compliance (this was mainly a tall grass/bushes issue for a vacant property). When he was there he defeated a 6-foot gate to the backyard, then went around back and defeated a lock on a storage room door. He then filed a new complaint that the storage room was unpermitted!

Customer:

The board has already levied a fine of $150 per day for the previous alleged violations. I think they are taking advantage of out-of-state owners.

Customer:

Thanks again for your help. Have a great day!

William B. Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 2960
Experience: I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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