Does Florida's Sunshine Law require a special magistrate to let the public speak at code enforcement hearings, and must the magistrate announce the order in a public hearing?

Plain-English summary

Section 286.0114, Florida Statutes, is the Sunshine Law provision that gives members of the public a "reasonable opportunity to be heard" before a board or commission takes official action. Subsection (3)(d) carves out an exception when the body is acting in a quasi-judicial capacity. The question put to the AG was whether that exception applied to a special magistrate hearing code enforcement cases under delegated authority from the Seminole County code enforcement board.

The AG concluded it did. Section 162.03(2), Florida Statutes, gave a code-enforcement special magistrate "the same status as an enforcement board," and the Fifth and Third District Courts of Appeal had already held that code enforcement proceedings under Chapter 162 are quasi-judicial. Combining those, the magistrate sat in the quasi-judicial slot of § 286.0114(3)(d), which removed the public-comment requirement.

The second question concerned the format of the magistrate's order. Section 162.07(4) directs that "at the conclusion of the hearing, the enforcement board shall issue findings of fact, based on evidence of record and conclusions of law, and shall issue an order affording the proper relief consistent with powers granted herein." For a collegial board this is satisfied by a public vote on the finding. For a sole magistrate there is no vote to take. The AG read the statute to require the magistrate to present each outcome at a public hearing, even though the magistrate's deliberative process happens privately on paper. That preserved the spirit of an open, on-the-record disposition without requiring a procedure that did not fit a one-person decisionmaker.

Currency note

This opinion was issued in 2017. 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

Q: Did the public have a right to speak at the special magistrate's hearings under the Sunshine Law?
A: No. Section 286.0114(3)(d) excepts quasi-judicial proceedings from the public-comment requirement. Code enforcement hearings under Chapter 162 are quasi-judicial, and a special magistrate hearing them under delegated authority shares the same status.

Q: Could a violator still address the magistrate?
A: The exception "does not affect the right of a person to be heard as otherwise provided by law." Due process and the procedural rules of the code enforcement scheme give parties an opportunity to present evidence and argument; the AG opinion only addressed the Sunshine Law's separate public-comment guarantee.

Q: Did the magistrate have to read the order out loud at a public hearing?
A: The AG's view was that the outcomes had to be presented at a public hearing. The deliberative work could happen privately on paper, but the announcement of the disposition (the finding and order) was meant to occur in public.

Q: Why does that read into a statute that says nothing explicit about announcing the order?
A: Because for a collegial board, the public-vote step in § 162.07(4) automatically generates a public announcement. The AG read the statute in pari materia to require that a special magistrate also present outcomes in public, on the theory that Chapter 162 does not let the local government skip statutory procedures (Op. Att'y Gen. Fla. 01-77) and the gap should be filled with a "common-sense application of basic principles of due process" (City of Tampa v. Brown).

Q: What kind of "presentation" qualified?
A: The opinion did not prescribe a script. A regularly noticed hearing at which the magistrate states the disposition and renders the written order on the record fits the statutory expectation.

Background and statutory framework

Florida's Sunshine Law (§§ 286.011, 286.0114) requires open meetings and reasonable public participation when a board takes official action. Section 286.0114(3) lists exceptions, including a meeting "during which the board or commission is acting in a quasi-judicial capacity."

Chapter 162, Florida Statutes, allows local governments to enforce their codes through enforcement boards, or, under § 162.03(2), through special magistrates with "the same status as an enforcement board." The board's procedures (notice, hearing, order, findings of fact, conclusions of law, fines) are codified in §§ 162.06 and 162.07.

The two statutes meet in this opinion: a Sunshine Law that ordinarily expects public comment, and a Chapter 162 procedure that is judicial in form. The reasoning relies on the Florida courts' early classification of code enforcement boards as quasi-judicial bodies, which dropped them into the Sunshine Law's pre-built exception.

Citations and references

Statutes:
- § 286.0114, Fla. Stat. (right to be heard at meetings)
- § 162.03, Fla. Stat. (code enforcement boards; special magistrates)
- § 162.07, Fla. Stat. (conduct of hearing)

Cases:
- Michael D. Jones, P.A. v. Seminole County, 670 So. 2d 95 (Fla. 5th DCA 1996)
- Verdi v. Metropolitan Dade County, 684 So. 2d 870 (Fla. 3d DCA 1996)
- City of Tampa v. Brown, 711 So. 2d 1188 (Fla. 2d DCA 1998)

Prior AG opinions:
- Op. Att'y Gen. Fla. 01-77 (2001)
- Informal Op. Att'y Gen. Fla. (Nov. 15, 2016) (related question on oral pronouncement)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/special-magistrate-code-enforcement-hearings
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1499

Original opinion text

March 9, 2017

Mr. Lonnie N. Groot
1001 Heathrow Park Lane
Suite 4001
Lake Mary, Florida 32746

RE: GOVERNMENT IN THE SUNSHINE LAW–SPECIAL MAGISTRATE CODE ENFORCEMENT HEARINGS–inapplicability of Sunshine Law requirement that public be given reasonable opportunity to be heard at quasi-judicial Code Enforcement hearings conducted by Special Magistrate; requirement that outcomes of such hearings be presented at public hearing conducted by Special Magistrate. s. 286.0114, Fla. Stat. (2016), and s. 162.07(4), Fla. Stat. (2016).

Dear Mr. Groot:

You have requested an opinion addressing these matters:

1. You ask whether section 286.0114, Florida Statutes, requires that members of the public be given a reasonable opportunity to be heard at hearings you hold as a special magistrate pursuant to authority delegated from the Seminole County code enforcement board;

2. As a follow-up to a prior informal opinion from this office,[1] you ask whether section 162.07(4), Florida Statutes (providing that the [special magistrate] "shall issue an order affording the proper relief consistent with powers granted herein") requires that you "announce the order in public at a subsequent public hearing" instead of "merely issu[ing] a written order[.]"

In sum:

1. Section 286.0114, Florida Statutes, does not require that members of the public be given a reasonable opportunity to be heard at quasi-judicial code enforcement hearings held by a special magistrate pursuant to authority delegated from the county code enforcement board.

2. Section 162.07(4), Florida Statutes, contemplates that the outcomes of such code enforcement hearings will be presented at a public hearing conducted by the special magistrate.

Question One

Pursuant to section 286.0114, Florida Statutes, members of the public "shall be given a reasonable opportunity to be heard on a proposition before a [county board.]"[2] But this requirement does not apply to "[a] meeting during which the board…is acting in a quasi-judicial capacity."[3]

A special magistrate who has been given "the authority to hold hearings and assess fines" resulting from local code violations has "the same status as an enforcement board under [Chapter 162, Florida Statutes]."[4] As the Fifth District Court of Appeal has recognized, the powers given to code enforcement boards by Chapter 162, Florida Statutes, are quasi-judicial.[5] Therefore, pursuant to the express exception provided in section 286.0114 (3)(d), Florida Statutes, the requirement that members of the public be "given a reasonable opportunity to be heard" does not apply to code enforcement hearings conducted by a special magistrate acting "in a quasi-judicial capacity" pursuant to delegated board authority. This exception "does not affect the right of a person to be heard as otherwise provided by law."[6]

Question Two

As previously recognized, a special magistrate who has been delegated code enforcement board authority as allowed by Chapter 162, Florida Statutes, has "the same status as an enforcement board" under that chapter.[7] In prescribing code enforcement board hearing requirements, section 162.07(4), Florida Statutes ("Conduct of hearing"), provides, in pertinent part:

"(4) At the conclusion of the hearing, the enforcement board shall issue findings of fact, based on evidence of record and conclusions of law, and shall issue an order affording the proper relief consistent with powers granted herein. The finding shall be by motion approved by a majority of those members present and voting, except that at least four members of a seven-member enforcement board, or three members of a five-member enforcement board, must vote in order for the action to be official."

§ 162.07(4), Fla. Stat. (2016) (italicized emphasis added). Pursuant to this procedure, as a result of the board's public vote on its "finding," each outcome of the public hearing on alleged code violations is, necessarily, presented at a public hearing of the board.

The logistics involved when a special magistrate makes findings of fact (including the ultimate finding of whether proven conduct constitutes a code violation) and arrives at conclusions of law are, pragmatically, not the same as those required for a collegial body. The collegial body must both deliberate, and vote to adopt the course of action it will follow,[8] in public. A special magistrate engages in no such public "vote."

On the one hand, as this office has previously stated, a "county choosing to create a code enforcement board under Chapter 162, Florida Statutes, is bound by the requirements or restrictions contained therein and may not alter or amend those statutorily prescribed procedures but must utilize them as they are set forth in the statutes."[9] On the other, as the Second District Court of Appeal observed in City of Tampa v. Brown, "[i]t is necessary to fill the procedural gaps in [chapter 162] by the common-sense application of basic principles of due process."[10]

The question of whether a special magistrate is required to present each outcome of the code enforcement hearings at a public hearing appears to fall between these two guideposts. However, because the statutory provisions contemplate that the board will present the outcomes of code enforcement hearings at a public hearing of the board, it would be most consistent to implement a process whereby the special magistrate similarly presents the outcomes of code enforcement hearings at a public hearing of the special magistrate.

Therefore, I am of the opinion that section 286.0114 (3)(d), Florida Statutes, does not require that members of the public be given a "reasonable opportunity to be heard" at quasi-judicial code enforcement hearings conducted by a special magistrate pursuant to authority delegated by the county code enforcement board, and that section 162.07(4), Florida Statutes, contemplates that the outcomes of code enforcement hearings will be presented at public hearings conducted by the special magistrate.

Sincerely,

Pam Bondi
Attorney General

PB/ttlm

[1] See Informal Attorney General's Opinion dated November 15, 2016, to Mr. Lonnie N. Groot, Esquire (reflecting that § 162.074(4), Fla. Stat., neither specifically requires "that an oral pronouncement" be made regarding the special magistrate's "findings of fact…and conclusions of law," nor provides "a specified timeframe within which the order must be rendered").

[2] § 286.0114(1), Fla. Stat. (2016).

[3] § 286.0114(3)(d), Fla. Stat. (2016).

[4] § 162.03(2), Fla. Stat. (2016).

[5] See Michael D. Jones, P.A. v. Seminole Cty., 670 So. 2d 95, 96 (Fla. 5th DCA 1996) ("The powers given by the Legislature to code enforcement boards by Chapter 162 do not appear to us as having crossed the line between 'quasi-judicial' and 'judicial.'"); accord, Verdi v. Metropolitan Dade County, 684 So. 2d 870, 873-74 (Fla. 3d DCA 1996) ("[C]ode enforcement proceedings are quasi-judicial rather than judicial in nature and…the County's use of hearing officers in these proceedings is constitutionally authorized.").

[6] § 286.0114(3)(d), Fla. Stat. (2016) (italicized emphasis added).

[7] § 162.03(2), Fla. Stat. (2016).

[8] § 162.07(4), Fla. Stat. (2016).

[9] Op. Att'y Gen. Fla. 01-77 (2001).

[10] City of Tampa v. Brown, 711 So. 2d 1188, 1189 (Fla. 2d DCA 1998). In that case, the Court concluded that, because the violator had "received notice, had the opportunity to be heard, and was provided a copy of the final order from which an appeal could be taken[,]" the city was not required to serve the order on the violator by certified mail. Id.