CAO June 8, 2010 to Abraham Laeser, Chief Special Masteri OFFICE OF THE CITY ATTORNEY
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F L 0 R I D A
JOSE SMITH
City Attorney
Abraham Laeser
Chief Special Master
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June 8 2010
Telephone (305) 673-7470
Facs><mile (305) 673-7002
Re Legal Notices for Code Enforcement Proceedings pursuant to Section
162 12(1)(a) of the Florida Statutes and Section 30-78(a)(1) of the Miami
Beach City Code
Dear Mr Laeser
This shall serve as the City of Miami Beach s response to your letter of May 14
2010 Your letter requested that alternative procedures be considered for effectuating
the service of notices to alleged corporate violators under the City s code enforcement
process The City is disinclined to implement a new procedure for effectuating notice
upon a corporate entity because such new procedure would violate established Florida
statutory law as set tforth in Section 162 12(1)(a) of the Florida Statutes and as
adopted in our City Code
State and Local Law
ceGl~^.^ ~ ~~ ~ 2(f „3) JF i~` ~~vriuu Jiatl.tca aS auVl.itel: fI l SCCIiGI i JU-7is(d)~ I) OT lnC
Miami Beach City Code clearly provides that a Notice of Violation must be sent via
certified mail return-receipt requested The operative language in both Section
162 12(1)(a) of the Florida Statutes and in Section 30-78(a)(1) of the Miami Beach City
Code provides that
i
1a111 notices i shall be provided to the alleged violator by
fclertified mail, return receipt requested provided if such notice Is
sent under this paragraph to the owner of the property in question
at the address listed in the tax collectors office for tax notices and
at any other address provided to the local government by such
owner and is returned as unclaimed or refused notice may be
provided byi posting and by first class mail directed to the
addresses furnished to the local government with a properly
1700 Convention Center Dave -- Fourth Floor -- Miami Beach, Florida 33139
Abraham Laeser Chief Special Master
June 7 2010
Page 2
executed proof of maeleng or affidavit confirming the first class
malling
(Emphases added) Other alternative methods of providing notice such as hand-
delivery leaveng the notece weth a manager or other person en charge or by publecateon
are also authorezed under Section 162 12(1)(b)-(d)
The Legislature in enacting the requirements of the Local Government Code
Enforcement Boards ~ Act 1 (Act) specifically set forth the legal procedure for
effPCtuat~ng oroper sen~ice over an alleged veol~for rQgardiess cif corporate or non-
corporate status They City s poseteon as to notice es supported by the Floreda Attorney
General who has opened that the statutory requirement that all noteces be by certefled
mail or by hand delivery by the code enspector es excluseve and local governmental
bodies or code enforcement boards possess no authority to effect delivery of notece en
any other fashion Op Atty Gen Fla 85-84 (1984) 2 (Emphases added) More
recently the Floreda Attorney General again opened that [o]nce a munecipality has
created a code enforcement board pursuant to Chapter 162 Floreda Statutes et must
utilize the enforcement mechanesm and procedures set forth en the act to the excluseon
of any others (Emphases added) Op Atty Gen Fla 09-20 (2009)
Followeng these statutory and legal authorities the City has properly issued Its
legal notices to alleged veolators at the address listed In the tax collector s office for tax
notices and when another address has been provided to the local government by the
owner that address is also used The City is not required and Indeed es not authorezed
to establesh an alternate method of serveng Its noteces under Florida Law
II Servece of Process Provisions Inapplicable to Code Enforcement Proceedings
Your suggestion that proper noteces to a corporate entit~~ under the r.+y ; .-ec+o
enforcement system must comply weth Chapter 48 of the Florida Statutes whsle
understandable is inappropreate Section 48 011 is lemited to
Summons subpoenas and other process In civil
actions throughout the state All process except subpoenas shall
be directed to all and singular the sheriffs of the state
(Emphasis added )
' Pursuant to Section 162 03 of the Florida Statutes special magistrates designated by the local governing
body to hold hearings and assess fines for code violations shall have the same status as an enforcement board
under this Chapter and references in this Chapter to an enforcement board shall include a special magistrate
Z See also Aesop v Pierce 19 So 2d 799 805 (Fla 1944) (when the controlling law directs how a thing shall
be done it is in effect a prohibition against it being done in any other way)
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE -MIAMI BEACH FLORIDA 33139
Abraham Laeser Chief Special Master
June 7 2010
Page 3
A notice Issued pursuant to Section 162 12(1)(a) of the Florida Statutes and
Sectlon 30-78(a)(1) of the Mlaml Beach Clty Code Is neither a summons nor a
subpoena The other process referenced In Section 48 011 applies to matters initiated
pursuant to Chapter 48 not Chapter 162 of the Florida Statutes A code enforcement
proceeding Is not a civil action which Is either recognized or acknowledged under the
requirements of Chapter 48 of the Florida Statutes A code enforcement proceeding is
a quasi ~udiciai hearing which is controlled and governed by the specific statutory
mechanism set forth and established in Chapter 162 of the Florida Statutes 3 Another
method of service ~s Lei+her st!pported nor identified under Flor~~±a law and dlrec+'~,,
conflicts with the statutory requirements of Section 162 12(1)(a) of the Florlda Statutes
As such the service method that you suggest would violate the statutory
requirements of Section 162 12(1)(a) of the Florida Statutes and Section 30-78(x)(1) of
the Miami Beach CityE Code and would subject the Clty to unnecessary expense In
utilizing process servers or sheriffs to serve notices Further such practice could
potentially subject the Clty to legal challenges for failing to comply with the clear dictates
of state law Moreover any concerns about the inadequacies of the service method
mandated in Chapter 162 and any due process concerns relative thereto are not
matters over which special masters have jurisdiction 5 but could be appropriately
addressed to the Florida Legislature or In the courts
III Conclusion
In conclusion Section 162 12(1)(a) of the Florlda Statutes and Section 30
78(a)(1) of the Mlaml Beach City Code set forth the specific statutory mechanisms for
serving Notices pursuant to the City s code enforcement system The clear and precise
language of Section 162 12(1)(a) of the Florida Statutes and Section 30 78(a)(1) of the
Mlam- Beach Clfy Code mandate t~1at the nVvDPr of the proper+y gaes+ on receove
notice at the address listed In the tax collector s office for tax notices and at the address
' See Verdi v Metro, Dade County 684 So 2d 870 874 (Fla 3d DCA 1996) (holding that Code
Enforcement proceedings are quasi judicial rather than judicial in nature and that the County s use of hearing officers
in these proceedings is constitutionally authorized )
" Further and assuming arguendo that a code enforcement proceeding is a civil action the City would be
statutorily obligated to effectuate process consistent with Section 48 021 by using a special process server
appointed by the sheriff as provided for in this section or by a certified process server as provided for in Sections
48 25 48 31 (Emphasis added) Thus the City would be legally obligated to initiate its Code Enforcement
proceeding by actually serving the process (ice the Notice of Violation) by a sheriff of the county where the person is
found Under Chapter 162 the City is not required to utilize a sheriff or process server for the purpose of initiating a
code enforcement proceeding and we know of no local government which is serving its notices in such manner
5 A claim that a decision or action by any city official is unconstitutional is properly made in Circuit Court and is not
properly before a Special Master See Kuvin v City of Coral Gables So 2d 2007 WL 2376654 at n 5
(Fla 3 DCA 2007) (filing complaint in circuit court to challenge adjudication by aty hearing officer of code violation
for parking pickup truck in residential driveway ~s the appropriate means to challenge the validity of an allegedly
unconstitutional city ordinance because the hearing officer has no authority over that question )
1
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE -MIAMI BEACH FLORIDA 33139
Abraham Laeser Chief Special Master
June 7 2010
Page 4
specifically provided to the local government by the owner Under no circumstances
does the Act contemplate service to a registered agent nor does it mandate that a
specific individual of the corporate entity be provided with the Notice of Violation unless
the owner has provided such other additional address to the local government The
plain language of the statute is that the owner of the property is notified of the code
enforcement violation and hearing at the address listed with the tax collectors office
and the City is legally prohibited in effectuating delivery of the notice in any other
fashion other than by what has been prescribed in Section 162 12(1)(a) If the method
of service provided for and mandated by Chapter 162 is to be changed the Florida
~eg~SiU+N~re ^-i~.:st do so
Should you have any questions or concerns regarding this correspondence
please do not hesitate in contacting me Otherwise the City expects the Special
Masters to comply with the statutory language of Section 162 12(1)(a) of the Florida
Statutes and Section 30-78(a)(1) of the Miami Beach City Code
ncerely
r
ose Smith
City Attorney
cc Jorge Gonzalez City Manager
JS/AB/DT/sc/mem
F \atto\BOKA\Speclal Master\Legal Notices Re Fla Stat Sec 162 12 and Code Sec 30 78 6 7 10 docx
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE -MIAMI BEACH FLORIDA 33139