Could Layton change Florida's Chapter 162 code-enforcement procedure in a city ordinance?

Plain-English summary

Layton asked the Attorney General's office about a proposed code-enforcement ordinance. The office declined to comment on the proposal itself because it treated questions about contemplated legislation as outside its opinion authority. It nonetheless explained the state-law framework: Chapter 162 supplied administrative procedures and fines for local code violations without specified criminal penalties, and a city choosing those procedures could not alter them through local home-rule legislation.

The letter also said Chapter 162 was supplemental to other means of securing code compliance. Municipalities could use other lawful enforcement methods; using Chapter 162's board or special-master route did not give the city power to rewrite that route. Its concise distinction was: “once a municipality has adopted the procedures of Chapter 162 ... it may not alter or amend those statutorily prescribed procedures,” while Chapter 162 “does not preempt or otherwise operate to prevent a city from enforcing its codes by other means.”

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Did the AG decide whether Layton's draft ordinance was valid?
No. The letter said the office could not address the proposed ordinance at that time and offered only informal comments on state-law authority.

Could a city change Chapter 162's board procedures by ordinance?
The letter said no. If a municipality chose Chapter 162's scheme, it had to use the procedures prescribed there rather than add or alter board duties and procedures through home-rule legislation.

Was a Chapter 162 board the only way to enforce a municipal code?
No. The letter said Chapter 162 did not prevent enforcement through other means. It cited an earlier AG opinion on a county-board interlocal agreement and a court decision recognizing the statutory scheme as supplemental.

Could the city use both a board and a court process?
The letter cited Goodman v. County Court in Broward County, Florida for the proposition that a city could use the Chapter 162 board scheme and prosecute municipal violations in county court. It did not approve a particular Layton enforcement plan.

Background and statutory framework

Chapter 162 established an administrative route for local codes and fines, against constitutional limits on administrative penalties noted by the letter. The office's earlier opinions held that Chapter 162 did not delegate power to municipalities to regulate code enforcement boards or alter statutory procedures. At the same time, home-rule power and the supplemental character of Chapter 162 allowed other enforcement routes. The proposed Layton text was outside the office's review.

Citations and references

• Chapter 162, Florida Statutes: code-enforcement procedures and their supplemental character.
• Section 166.021, Florida Statutes: municipal home rule discussed in the letter.
• Section 16.01(3), Florida Statutes: limits on Attorney General opinion authority.
• Goodman v. County Court in Broward County, Florida, 711 So. 2d 587 (Fla. 4th DCA 1998): board and county-court enforcement discussed by the letter.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipality-code-enforcement-
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8285

Original opinion text

Mr. Michael A. Meadows

Vernis & Bowling of The Florida Keys, P.A.

Islamorada Professional Center

81990 Overseas Highway, 3rd Floor

Islamorada, Florida 33036

Dear Mr. Meadows:

Thank you for contacting the Florida Attorney General's Office regarding a proposed ordinance of the City of Layton. Attorney General McCollum has asked me to respond to your letter.

After reviewing the information you have submitted, it does not appear that this is a matter upon which this office may comment at this time. The Florida Attorney General is statutorily limited to providing legal advice and opinions on questions of state law. See section 16.01(3), Florida Statutes. Your letter asks that we comment on a proposed ordinance of the City of Layton. Hypothetical questions, that is, questions premised on proposed legislation or contemplated legislation, are outside the scope of our authority. However, in an effort to be of assistance to you, I offer the following informal comments.

Chapter 162, Florida Statutes, establishes administrative enforcement procedures and a means of imposing administrative fines by local governing bodies for violations of local codes and ordinances for which no criminal penalty has been specified. Such a mechanism is necessitated by the provisions of Article V, section 1, and Article I, section 18, Florida Constitution, which state that commissions established by law or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices, and that no administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.[1]

This office, in a number of previous opinions, has stated that a local government or its governing body derives no delegated authority from Chapter 162, Florida Statutes.[2] Further, municipalities derive no home rule power from Article VIII, section 2(b), Florida Constitution, or section 166.021, Florida Statutes, to regulate the code enforcement boards or to impose any duties or requirements on such boards or to otherwise regulate the statutorily prescribed enforcement procedure.[3] Thus, once a municipality has adopted the procedures of Chapter 162 to enforce its municipal codes and ordinances, it may not alter or amend those statutorily prescribed procedures, but must utilize them as they are set forth in the statutes.[4]

However, as this office and the courts have recognized, a municipality retains the authority, utilizing its home rule powers, to adopt ordinances and enforce its codes by means other than Parts I and II of Chapter 162, Florida Statutes. In Attorney General's Opinion 2000-34, this office concluded that a municipality was authorized to enter into an interlocal agreement with the county to have municipal code infractions handled by the county's code enforcement board. The Fourth District Court of Appeal, in Goodman v. County Court in Broward County, Florida,[5] concluded that a city could utilize the code enforcement board scheme of Chapter 162, Florida Statutes, and prosecute municipal code violations in county court. As the court recognized, "[t]he Legislature has provided that the code enforcement board procedure is supplemental to other means of securing code compliance."[6]

Thus, the City of Layton has a number of options for adopting a scheme for code enforcement. If it utilizes the provisions of Chapter 162, Florida Statutes, to enforce its municipal codes and ordinances, it may not alter or amend those statutorily prescribed procedures by relying on the statutory scheme as set forth in the statutes. However, the code enforcement procedures contained in Chapter 162 do not preempt or otherwise operate to prevent a city from enforcing its codes by other means.

I am enclosing copies of several Attorney General Opinions discussing these issues and trust that you will find them helpful in advising your client. The topic of code enforcement is one upon which this office has issued numerous opinions. Should you wish to do additional research on this issue, you may wish to review these opinions at www.myfloridalegal.com.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/t

-----------------------------------------

[1] See Ops. Att'y Gen. Fla. 85-84 (1985) (municipal code enforcement board must find that same violation has been repeated by same violator before a fine for each day the repeated violation occurred past the date set for compliance may be imposed by the board) and 79-109 (1979) (governing body of charter county prohibited in absence of statutory authorization from providing by ordinance for imposition of civil penalties by agencies); Broward County v. Plantation Imports, Inc., 419 So. 2d 1145 (Fla. 4th DCA 1982) (holding that the provision of a county ordinance authorizing assessment of penalties by county agency was unconstitutional, and agreeing with conclusion in Op. Att'y Gen. Fla. 79-109). See also Ops. Att'y Gen. Fla. 84-51 (1984) (ordinance of noncharter county not a "law" within the purview of s. 5(c), Art. II, State Const.) and 84-39 (1984) (municipal ordinance not a "law" within the meaning of s. 8, Art. I, State Const.).

[2] See, e.g., Ops. Att'y Gen. Fla. 04-50 (2004), 01-77 (2001), and 00-53 (2000).

[3] See Ops. Att'y Gen. Fla. 00-53 (2000), 97-26 (1997), 86-10 (1986), 85-84 (1985), 85-27 (1985), 85-17 (1985), and 84-55 (1984).

[4] See Op. Att'y Gen. Fla. 01-77 (2001) (Legislature's code enforcement procedures are additional or supplemental means of securing compliance with local codes and do not preempt or otherwise operate to prevent city from enforcing its codes by other means; however, if city seeks to utilize provisions of Chapter 162, Florida Statutes, to authorize an administrative agency such as code enforcement board or special master to impose fines, it may not change the procedures prescribed therein).

[5] 711 So. 2d 587 (Fla. 4th DCA 1998), rev. denied, 727 So. 2d 905 (Fla. 1998).

[6] Id. at 589. And see, Deehl v. Weiss, 505 So. 2d 529 (Fla. 3rd DCA 1987) (municipality could determine which code violations would be heard by code enforcement board and mere establishment of board did not require municipality to make it the enforcement arm of all of its codes). Cf., Metropolitan Dade County v. Hernandez, 708 So. 2d 1008 (Fla. 3rd DCA 1998) (county enforcement scheme utilizing both Parts I and II of Chapter 162, Florida Statutes, approved); Verdi v. Metropolitan Dade County, 684 So. 2d 870 (Fla. 3rd DCA 1996) (county may use any combination of Chapter 162 methods for code enforcement procedures).