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CAO 99-05 , ." .~ . ~ .~ CITY OF MIAMI BEACH CITY ATTORNEY'S OFFICE TO: Sergio Rodriguez City Manager MurrayH.Dubbin .J~II!~ City Attorney ~ r' April 30, 1999 CAO 99-05 FROM: DATE: \ \ SUBJECT: CMO 2-4/99 - YOUR MEMO OF APRIL 20, 1999 CAN THE HOUSING ORDINANCE (OF MIAMI BEACH) BE MORE RESTRICTIVE THAN THE SOUTH FLORIDA BUILDING CODE? The underlying issue addressed in your inquiry deals with the interpretation and application of Section 58-294 of the City Code of Miami Beach versus the South Florida Building Code Section 1305.2. The cited sections deal with minimum requirements for sleeping space in dwellings. The South Florida Building Code (SFBC) is a part of the Code of Metropolitan Miami Dade County Florida. Accordingly, your inquiry raises issues of preemption, which go substantially beyond the narrow question addressed. For purposes of organization, we will divide your question into two parts: 1) May the Minimum Housing Code of the City of Miami Beach contain regulations which are more restrictive than regulations of the SFBC relating to the same subject? 2) Are the applicable provisions of Section 58-294 of the Miami Beach City Code in conflict with Section 1305.2 of the SFBC? .' QUESTION 1. May the Minimum Housing Code of the City of Miami Beach contain regulations which are more restrictive than regulations of the SFBC relating to the same subject? Section 8-1 of the Code of the Metropolitan Miami-Dade County states: ''The South Florida Building Code, as amended from time to time, is adopted as the Building Code for both the incorporated and unincorporated areas of the County as a uniform Building Code." Section 8-2 of the Code provides in part: "The Building Code Compliance Office is hereby established to ensure that the South Florida Building Code is uniformly enforced throughout the incorporated and unincorporated areas of the County." ~ ~ ".;" Section 8-5 provides in part: ''The South Florida Building Code is applicable in both the incorporated and unincorporated areas of the County." The issue of preemption has arisen on numerous occasions since the adoption of the Home Rule Amendment to the Florida Constitution in 1956 and Adoption of the Dade County Home Rule Charter. Since that time, the courts have generally supported the power of the County to enact ordinances applicable uniformly to municipalities as well as the unincorporated area and which would prevail over conflicting municipal measures, particularly when the rule or regulation at issue was one of area-wide application and not purely a local municipal matter. The Florida Supreme Court in Miami Shores Village v Cowart, 108 So.2d 468 (Fla. 1958) stated: : \ [4] In summary, then, we construe the above-quoted provisions of the Home Rule Amendment as requiring the Charter to provide for municipal autonomy as to the purely local functions or powers of the municipalities in Dade County; and as authorizing regulation and control by the Board (of County Commissioners) on a county-wide basis of those municipal functions and services that are susceptible to, and could be most effectively carried on under, a uniform plan of regulation applicable to the county as a whole." The courts have held that County ordinances prevail over more restrictive municipal ordinances in the following circumstances: Where general ordinances of the City of Miami Beach conflicted with ordinances of Dade County, Miami Reach v Cowart, 116 So. 2d 432 (Fla. 1959). Where the requirements for obtaining a certificate of Competency as a Plumbing Contractor were more stringent in the City of Coral Gables, than provided for in the Code of Dade County, Coral Gahles v RuJ:gjn, 143 So. 2d 859. Where the Metro Dade County Code conflicted with municipal action authorized by State Statute, (as relates to the certification of plumbers), Coral Gahles v Dade County, 189 So. 2d 530,3 DCA 1966. Where the City sought to change a provision of the SFBC City orMiami Reach v Mutual Renefit I.ire Insurance Company, 239 So. 2d 272 (Fla. 3 DCA 1970). There are no reported cases where the municipal law has been held to prevail. Conclusion as to Question 1: In my opinion, the Code of Metropolitan Dade County Florida prevails in a conflict with a Municipal Ordinance relating to subjects that are not purely local in nature but are susceptible to area-wide regulation. That rule would apply whether or not the provisions of the City Ordinance are more restrictive than those of the County. Determination of whether an issue is local in nature or susceptible to area-wide regulations is made by the court. I' i'! , 2 "'!' ,;- QUESTION 2. Are the applicable provisions of Section 58-294 (copy attached) of the Miami Beach City Code in conflict with Section 1305.2 (copy attached) of the SFBC? Question 2 has two sub-questions: First: Is the floor area of rooms for sleeping a subject which is susceptible to County-wide application, or is it more purely of a local nature? As pointed out previously, this is an issue to be determined by the court and so far we have no precedent on this finite issue. However, for purposes of this discussion, let us assume that the subject is susceptible to County-wide application. Second: Is there, in fact, a conflict between the cited provisions of the Miami Beach Minimum Housing Code and the SFBC? , \ The narrow underlying issue is the size of rooms for sleeping purposes. The SFBC simply provides that rooms for sleeping purposes require a minimum floor area of 100 square feet. Section 58-294 of the Miami Beach Minimum Housing Code provides that a room for sleeping purposes requires at least 70 square feet of floor space. However, if there is more than one occupant, the floor area required is 50 square feet per occupant. Accordingly, if there are two occupants, the room would require a minimum of 100 square feet; if three, 150 square feet; etc. Accordingly, insofar as the basic sleeping space is concerned, the SFBC is more restrictive than the City (100 versus 70 square feet). However, while the County Ordinance does not regulate required floor space on a numerical occupancy basis, the City, in fact, does so by requiring 50 square feet per occupant. Conelusion as to Question 2: In my opinion: There is a conflict between the minimum base square footage required for sleeping rooms and the County Code will prevail on that regulation. However, there is no conflict between the County Code and the City Code on the numerical occupancy square footage regulations. That issue is one which has been left for local determination and not subject to the constraints imposed by the cases cited above. Please understand that the facts of this particular inquiry would constitute a case of first impression in Florida. However, iflitigation ensues, I feel that the weight of the law would be on the side of the City.' MHD:lm Encl. ,~ 3