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Florida Municipal Officials' Manual - Chapter 5
Public Safety
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Section 5-1
Law Enforcement
A municipality may employ a municipal police force consisting of one or more law enforcement officers, or it may permit law enforcement to rest with the county sheriff. All relatively large municipalities do establish their own police departments, but many small towns depend on the county sheriff for minimum law enforcement within the municipal boundaries. Enhanced services usually require an interlocal agreement with the county, setting forth the terms and conditions of services.
A municipality may also enter into an interlocal agreement with an adjoining municipality or municipalities within the same county to provide law enforcement services within the territorial boundaries of the other adjoining municipality or municipalities.
A. Authority
Law enforcement is a traditional function of municipal governments and, as such, is authorized to Florida municipalities by the grants of general-government powers found in Article 8, Section 2, Florida Constitution.
A city council may enact ordinances which are enforceable by city police as municipal laws, so long as said ordinances are not in conflict with any provision of the U.S. Constitution, federal law, state constitution or law, or a preemptive county ordinance.
Municipal law enforcement officers are responsible for the enforcement, not only of municipal ordinances, but of all laws – national, state, and local – within the boundaries of the municipality. In effect, municipal police officers are the principal enforcers of state laws, along with county sheriffs and the Florida Highway Patrol.
In the event of a declared emergency, local law-enforcement authorities are obligated and empowered to enforce all orders, rules, and regulations issued pursuant to the state Emergency Management Act (ch. 252, F.S.).
B. Police Officers: Qualifications
Any person employed or appointed as a law-enforcement officer or correctional officer in Florida must possess minimum qualifications as provided in state law. If your city has police officers, these standards and others will be in your administrative policies.
A few municipal police chiefs in Florida are elected. An elected municipal lawenforcement officer is exempt from these requirements and from programs and benefits specified in state law under ss. 943.085-943.25, F.S.; however, an elected officer may participate in the programs and benefits if he or she complies with qualifications listed in the statute.
C. Police Officers Bill of Rights
Florida statutes provide that all law enforcement officers and correctional officers shall have certain rights and privileges. These include:
1. certain procedural rights of an officer while under investigation,
2. establishment of a complaint review board,
3. right of an officer to bring civil suit, 4. requirement of a notice of disciplinary action before any personnel action can be taken, and
5. no retaliation for exercising the rights granted in this section.
D. Police Officers' Pension Fund
Each municipality with a police department may operate a “Municipal Police Officers’ Retirement Trust Fund.” Provisions for funding of such funds and the operation thereof are detailed in Chapter 185, Florida Statutes.
Municipal police officers’ pension plans are overseen and regulated at the state level by the Division of Retirement in the Florida Department of Management Services.
Each municipality’s pension fund for police officers is to be managed by a board of trustees usually made up of five members. The board of trustees must consist of two residents selected by the city council, police officers elected by participating police officers, and one member selected by the others. The board of trustees has sole authority over administration of the fund (s. 185.05(1), F.S.).
The statutory provisions for police officers’ pension funds are identical, in most details, to the provisions for the firefighters’ pension funds. Refer to the discussion of firefighters’ pension funds in this chapter of the manual and to the discussion concerning the insurance premium tax in Chapter 7, “Municipal Finance,” for more information.
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E. Use of Force
A law enforcement officer or any person summoned or directed to assist an officer need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance.
In order for these to constitute a defense in a civil action for damages brought for the wrongful use of deadly force, the use of deadly force must have been necessary to prevent the arrest from being defeated by flight and some warning must have been given, if feasible.
A correctional officer or other law enforcement officer is justified in the use of any force which he reasonably believes to be necessary to prevent the escape of the arrested person from custody. Some cities have adopted practices above this level through their home rule powers.
F. City-County Relations
When a municipality establishes a municipal police department, its powers are supplemental to the powers of the county sheriff, rather than substitutive for them; the sheriff continues to have formal authority and responsibility to enforce state and county laws within the boundaries of the municipality. Formally, then, when a municipality establishes a police department, law enforcement within municipal boundaries is a responsibility of both the county sheriff and the municipal police department. In practice, however, when a municipality establishes a police department, the county sheriff suspends most routine law-enforcement activities within municipal boundaries. The sheriff and municipal officials will usually negotiate an agreement concerning what the sheriff will do and will not do within city limits. At a minimum, the county sheriff will provide back-up assistance to the municipal police department on an “as needed” basis.
G. Mutual-Aid Agreements
State statutes provide for formal mutual-aid agreements between two or more law-enforcement agencies. Three types of agreements are specified:
1. a voluntary-cooperation agreement, which permits voluntary cooperation and assistance of routine law enforcement nature across jurisdictional lines;
2. a requested-operational-assistance agreement, which permits cooperation in an emergency; or
3. a combination of (1) and (2).
All such agreements must be put in writing. Municipal officials should pursue such agreements in order to have them in place when needed.
H. State Assistance
The principal state agency in the law-enforcement field is the Florida Department of Law Enforcement. For more information on the department’s structure and programs, consult their Web site www.fdle.state.fl.us.
References
Florida Constitution: Article 8, Section 2; Florida Statutes: Chapters 23, 112 (Part 6), 185.252, 776, and 943.
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Section 5-2
Fire Protection
A. Service-Provision Options
Municipal governments enjoy a wide range of options with regard to the matters of whether and how to provide fire-protection services to the residents and property owners of their communities. For a given community, this range of options may be restricted by practical considerations, but several options exist in theory, at least.
In the first place, a municipality is free to decide whether to be involved in fire-protection services at all. Under the home-rule principle and other existing Florida law, a municipality is not required by law to provide fire-protection services; on the other hand, it may do so if it wishes. Some small municipalities have chosen to assume no responsibility for such services, instead leaving the responsibility completely with the county commission, a volunteer fire department, or a special district.
In far greater numbers, municipalities have chosen to assume some responsibility for provision of fire-protection services. Even so, options will exist with respect to the extent and form of municipal-government involvement. These options include the following:
1. limited assumption of responsibility, with the government making only a modest contribution to an other-party provider of the service, such as volunteer fire department;
2. full assumption of responsibility, but with the service function totally contracted-out to another party (county department, volunteer department, fire-protection district, or private firm);
3. full assumption of responsibility, with service provided by a municipal department (which may be staffed by paid employees, by unpaid volunteers, or by a combination of the two); or
4. full assumption of responsibility and with the function performed directly by the municipal government, but with the utilization of a private management firm to provide management and manpower.
A combination of the above arrangements is possible, also, with one approach utilized in part of the municipality’s area and another approach utilized in another part, such as an outlying area which might be better or more economically served by a fire department located outside the city but adjacent to the outlying area.
Of the four alternatives listed above, the most common among Florida’s municipalities is the third option – full assumption of responsibility, with service provided by a municipal department. According to the 2008 Membership Directory published by the Florida League of Cities, roughly 60 percent of the cities and towns list a position of “fire chief” (or comparable title), thereby indicating the existence of a municipal fire department. Of the remaining municipalities, most employ one or another form of the second alternative, including contracting with a county fire department, with an adjacent municipality, with a fire-protection district, or with a nearby private entity which has a private fire-protection capacity (e.g., Walt Disney World).
The fourth alternative listed above – employment of a private management firm to manage and staff the municipality’s performance of the function – is an approach which is being employed by some communities.
One arrangement for fire protection is explicitly provided for by state law – participation in a county-administered Municipal Service Taxing Unit (MSTU). To provide funds for fire control and rescue services, a county commission may establish an MSTU or a Municipal Service Benefit Unit (MSBU) for part or all of the county’s unincorporated area and part or all of any municipality within the county. A tax not to exceed 10 mills may be imposed therein for one or more MSTUs, as may be service charges and special assessments. Inclusion of all or part of a municipality in an MSTU must be approved by municipal ordinance, and withdrawal may be accomplished by municipal ordinance.
B. Aspects of Fire-Protection Services
Today fire-protection services have two principal aspects:
1. The better-known aspect is fire-fighting or, to use a more formal term, fire suppression; the actual fighting of fires was the original activity of fire departments and continues to be the ultimate reason for their existence.
2. Today, however, other aspects of defense against fire – namely, fire prevention and damage mitigation – constitute a second major dimension of fire-protection activities.
Fire-prevention and damage-mitigation efforts are not necessarily restricted to fire departments; other municipal agencies may be assigned major roles, such as the planning and zoning department, the building inspections department, and the code-enforcement board. County agencies may also play roles in fire-protection and damage-mitigation efforts. Therefore, the municipal official should not automatically think only of the fire department when considering fire protection services. It is true, nevertheless, that the fire department should be involved in systematic efforts to prevent fires and to minimize both risks to life and damage to property. Elected officials should see to it that the fire department and other agencies with responsibilities in fire-prevention and damage-mitigation are properly attentive to these responsibilities.
Fire-prevention and damage-reduction measures include activities which eliminate or lessen the possibility of a fire, which reduce the potential magnitude and/or complexity of a fire, and which reduce the likelihood of injury to people in the event of a fire. These measures boil down to three procedures, essentially:
1. development and enforcement of a fire-prevention code,
2. inspection for fire hazards, and
3. public education.
These procedures are discussed in more detail on the following pages. Some Florida cities have combined “public safety departments” providing fire, EMS and law enforcement services. Employees, in some cases, carry certification for all three services.
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C. Fire-Prevention Codes
Each community should have a set of fire-prevention codes, governing such matters as building materials, electrical wiring, heat sources, hazardous materials, construction requirements, and regulation of public assembly.
To be effective, any code must be vigorously enforced. This is the task, primarily, of a fire-safety inspector, or fire marshal. Each municipality “that has fire safety enforcement responsibilities shall employ or contract with a fire-safety inspector.” Qualifications required for the position are listed in the Florida Statutes. All fire-safety inspections required by state or local law must be conducted by a state-certified inspector. Inspections also may be conducted by a firefighter under the supervision of a certified inspector; hence, other firefighters may work under the fire marshal as code inspectors.
Other municipal departments with their own regulatory responsibilities can also play major roles in enforcement of fire-prevention standards by requiring compliance with such standards before issuing licenses and permits. Fire-department personnel must work systematically to keep other municipal departments apprised of fire-prevention standards and to maintain their cooperation in enforcement. Three basic fire-prevention codes are discussed below:
1. minimum fire-safety standards,
2. a building code, and
3. an electrical code.
1. Minimum Fire-Safety Standards
Each municipality with fire-safety responsibilities must adopt minimum fire-safety standards to govern all buildings and structures not regulated by uniform state standards. Each municipality with fire-safety responsibility must adopt the National Fire Protection Association (NFPA) 101, Life Safety Code. More stringent standards subject to certain requirements may be adopted if a city chooses to do so. Certain national codes are identified which shall constitute the minimum standards of any municipality which fails to adopt other standards. Municipal officials are encouraged to be reasonable in the application of standards to buildings which existed prior to January 1, 1988.
2. Building Code
In addition to explicit fire-safety standards, other municipal codes – especially building codes and electrical codes – also address fire-safety. A municipality is required by statute to adopt the Florida Building Code, which shall contain or incorporate all laws and rules that pertain to the design, construction, erection, alteration, modification, repair and demolition of public and private buildings. Municipalities may adopt amendments, pursuant to limitations, to the technical provisions of the Florida Building Code that apply solely within the jurisdiction of the municipality and that provide for more stringent requirements than those specified in the Florida Building Code. Responsibility for enforcement, interpretation, and regulation of the Florida Building Code shall be vested in the municipality. All entities authorized to enforce the Florida Building Code shall comply with applicable standards for issuance of mandatory certificates of occupancy, minimum types of inspections, and procedures for plans review and inspections. An enforcing agency may not issue any permit for construction, erection, alteration, modification, repair, or demolition of any building or structure until the local building code administrator or inspector has reviewed the plans and specifications required by the Florida Building Code and found them to be in compliance with the Florida Building Code. Municipalities and non-charter counties may combine to create multi-jurisdiction enforcement districts.
The Florida Building Code is overseen by the Florida Building Commission.
3. Electrical Code
With respect to the regulation of electrical work, the Legislature has established minimum standards in the form of the State Electrical Code, which consists of several separate codes, most of them promulgated by the National Fire Protection Association. This code applies throughout the state. It is the responsibility of the governing body of each municipality to provide for the enforcement of the code in the areas of its jurisdiction; this may also be accomplished through establishment of a multi-jurisdiction enforcement district. The municipality may adopt and enforce additional or more stringent standards.
D. Fire Inspections
Inspections of homes, public buildings and commercial buildings serve not only to enforce a fire-prevention code but also to spot particular fire hazards which might not be governed by the code. Inspections also serve to educate citizens concerning fire hazards. Inspection can be a regular activity of firemen during hours when they are not involved in fighting fires.
E. Public Education
Educational programs teach people how to recognize and eliminate fire hazards and how to react appropriately in case of fire. Appearances by firemen at schools can be very instructive, as can fire-safety poster contests. Home inspection programs are valuable, and speeches to civic clubs may be helpful, also. Going beyond mere education, some municipalities provide smoke detectors to citizens for free or at a reduced price.
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F. Fire Suppression
Several factors are involved in being adequately prepared for fire-fighting efforts: number of firefighters, their physical condition, and their training; the proximity of firefighting crews and equipment to the locations of fires (i.e., number and location of fire stations); adequacy of equipment; and adequacy of water supply (water pressure, size of water lines, and proximity of hydrants to fire sites).
G. State Responsibilities
The state insurance commissioner also wears the hat of state fire marshal. As such, he or she is responsible for promoting fire prevention through the enforcement of laws and rules affecting fire safety and through the making of rules affecting fire-safety. While the state fire marshal’s rule-making powers are extensive, the department may not adopt minimum fire-safety standards of a general application; however, the Department of Insurance is empowered to establish uniform fire-safety standards for certain types of buildings and facilities, such as health facilities and hospitals. A city may neither add to nor take from such standards, except for sprinkler systems in certain buildings for which the construction contract is let after January 1, 1994.
The state fire marshal’s powers are very broad in that he or she “shall make and promulgate all rules necessary to implement the provisions” of Chapter 633, Florida Statutes, including the promulgation of rules for “prevention of fires.” This extremely general grant of authority permits the state fire marshal much latitude in determining the scope of his or her rule making authority. Chapter 633 and all regulations prescribed by the state fire marshal under it “have the same force and effect in each municipality…”
1. Inspections and Investigations
To assist the state fire marshal in the enforcement of state laws and regulations, agents are employed by the state. These agents maintain a schedule of inspections and of fire investigations. Inspections are primarily for the examination of fire-protection systems (e.g., sprinkler systems), including water mains, standpipes, and hose connections. State agents give first priority to the inspection of buildings of “high-hazard occupancy,” i.e., school buildings, group residential facilities, medical-care facilities, correctional facilities, motels, migrant labor camps, child-care facilities, and buildings containing hazardous materials or having hazardous conditions (e.g., gas stations). State agents will assist local governments in local inspections and investigations on an as-available basis.
Inspections are a major function of the state fire marshal. The marshal and agents are required by Chapter 633, Florida Statutes, to inspect all state-owned or state-leased buildings on a recurring basis, as established by rule, and to inspect all such buildings which involve high-hazard occupancy on an annual basis. In addition, the marshal has expansive authority to inspect “any and all” premises and any fire-control system, during or after construction, to ensure that state standards are satisfied.
2. Regulation of Fire-Protection Industry
A major function of the state fire marshal is the regulation of the fire-protection industry. The marshal licenses annually those in the business of installing and servicing fire extinguishers and fire protection systems, and issues annual permits to individuals actually performing such work. The marshal also enforces continuing-education requirements for annual renewal of permits. All fire-protection systems must be installed and maintained by licensed/certified contractors; equipment must be listed by a nationally recognized testing laboratory; equipment must be installed in accordance with standards of the National Fire Protection Association; and equipment must be installed, inspected, serviced, and maintained in accordance with manufacturer’s specifications. All portable fire extinguishers must meet industry standards and carry a serial number. The sale of certain types of fire extinguishers is prohibited.
3. Certification of Inspectors
“Each…municipality…that has fire safety enforcement responsibilities shall employ or contract with a fire safety inspector,” who must conduct all fire-safety inspections required by law. Recertification of inspectors is required every three years.
4. Other State Agencies
Other elements of the state’s role in fire protection include the Firefighters Standards and Training Council, the Florida State Fire College, and the Florida Fire Safety Board.
H. Firefighters Qualifications
Any person employed or appointed as a firefighter in Florida must possess minimum qualifications as provided in state law. If your city has firefighters, these standards and others will be in your administrative policies.
I. Municipal Powers Regarding Contractors
Despite the sizable role of the state in licensing and regulating fire-protection contractors, municipal governments are free to require municipal approval of plans and work specifications for work to be performed by a licensed contractor and “to regulate the quality and character of work performed by contractors through a system of permits, fees, and inspections” in order to ensure compliance with local construction codes and/or other local laws.
J. Firefighters' Pension Fund
The 1939 Legislature created, under Chapter 175, Florida Statutes, a municipal “Firefighters’ Pension Trust Fund” in each municipality having “a constituted fire department or an authorized volunteer fire department” and not having an otherwise-established pension program providing retirement benefits for firefighters.
1. Design of Programs
This retirement program for firefighters may be set up by the city in complete compliance with Chapter 175, or it may be of the municipality’s own design.
a. Chapter 175 Programs
If set up in compliance with Chapter 175, the program must conform to its prescriptions regarding benefit levels, investment policies, and the composition of the board of trustees of the municipal program.
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b. Programs of Municipal Design
To qualify for participation in state-administered funding, program plans of a municipality’s own design must satisfy certain criteria, including statutory minimum-benefit levels. (Actually, most of these programs provide higher-than-minimum benefit levels.) State-distributed funds must be used in such a program to provide additional or supplemental benefits; such funds may not be merged into a pension fund for firefighters and other employees in such a manner that they are not reserved for the exclusive benefit of firefighters.
2. Board of Trustees
Each municipality’s pension fund for firefighters must be managed by a board of trustees with a minimum of five members. The board of trustees must consist of two residents selected by the municipal council, two firefighters selected by participating firefighters, and one member selected by the other four. The board of trustees has exclusive administration of the fund, but it may only modify the provisions of a retirement plan with the approval of the municipality.
3. Sources of Funding
There are two principal sources of revenue for a firefighters’ pension fund: state collected local excise taxes and payroll deductions.
a. State Collected Local Excise Tax
Municipalities are authorized to levy an excise tax of 1.85 percent of the gross receipts of premiums collected by insurance companies from insurance on real or personal property located within the corporate limits of each municipality. This does not really cost the insurance companies, for amounts paid by the companies are credited against the amount payable by each company to the state for a comparable state excise tax. This excise tax shall be payable annually on March 1 of each year after the passage of an ordinance assessing and imposing the tax authorized by this section. Installments of taxes shall be paid according to the provision of the Florida Statutes.
b. Payroll Deductions
Payroll deductions of 5 percent of firefighters’ salaries can be collected. Certain exceptions are listed in the Florida Statutes. Employee contributions are retained as payroll withholdings by the municipality, which must deposit the receipts thereof with the board of trustees of the pension fund at least monthly. Other forms of possible revenue are recognized in the “Municipal Finance” chapter of this manual for more information concerning funding.
4. “Firefighters’ Presumption”
The requirements of eligibility for normal retirement, early retirement and the requirements of eligibility for disability retirement are stated in the Florida Statutes. A prominent statutory provision affecting disability retirement is the so-called “firefighters’ presumption.” This provision stipulates that certain conditions “resulting in total or partial disability or death shall be presumed to have been accidental and suffered in the line of duty unless the contrary is shown by competent evidence…” In other words, in certain cases of disability or death due to medical condition, it shall be presumed that this condition is job-related, unless the city is able to prove otherwise.
Prior to 1995, this presumption that death or disability is job-related applied to “any condition or impairment of health of a firefighter caused by tuberculosis, hypertension, or heart disease…” In 1995, after a tough legislative struggle, this list was expanded to include conditions caused by hepatitis, meningococcal meningitis, and tuberculosis. The inclusion of HIV/AIDS was sought by the firefighters association, but was narrowly defeated (Chapter 95-285, Laws of Florida).
It should be noted that rarely, if ever, has a city won a case involving a firefighter’s claim for disability-retirement benefits under this statute. Removal or weakening of the firefighters’ presumption is a major legislative goal of the Florida League of Cities at this time.
In any judicial or administrative proceeding brought under the provisions of Chapter 175, F.S., the prevailing party shall be entitled to recover the costs thereof, together with reasonable attorney’s fees.
5. State Role
Municipal firefighters’ pension funds are overseen and regulated at the state level by the Division of Retirement in the Department of Management Services. The department sets the rules which regulate municipal operation of these funds. It is also the duty of the Division of Retirement to ensure that public pension systems are actuarially sound.
6. The Florida Municipal Pension Trust Fund
The Florida League of Cities operates the Florida Municipal Pension Trust Fund. Boards of trustees may obtain professional management and investment services for all pension funds through participation in this common program. For information, contact staff of the Florida League of Cities.
K. Firefighters' Bill of Rights
The 1986 Florida Legislature approved as law the “Firefighters’ Bill of Rights.” This legislation affords certain procedural rights to a firefighter who is subjected to interrogation about suspected misconduct.
References
Florida Statutes: Chapters 112, 125, 175, 394, 396. 553 and 633. Laws of Florida: Chapter 95-285. Florida Administrative Code: Chapters 4-54. Florida Municipal Record: “FLC Responds to Governor’s Committee for the Study of the Construction Industry Recommendations,” 56, 8 (1983); Robert Lewis, “A Review of the Firefighters and Police Officers Pension and Retirement Trust Funds,” Parts I-III, 56, 7-9 (1983); “Performance Audit of the Municipal Police Officers’ and Firefighters’ Retirement Trust Funds Programs of the Department of Insurance,” Office of the Auditor General of the State of Florida, 58,5 (1984); “Firefighter’s Presumption,” 57,1 (1983). Membership Directory, Florida League of Cities.
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Section 5-3
Animal Control and Protection
A. Animal Control
Under its general home-rule powers and specifically under Chapter 828, Florida Statutes, a municipality is authorized to enact city ordinances to require animal control, including “the regulation of the possession, ownership, care, and custody of animals.” Such ordinances, if enacted, must include the procedures, provisions and penalties as defined by state law.
A municipality may perform animal-control activities itself through a municipal department, or it may permit a private organization, such as a humane society, to perform this function. However, cities are not required either to provide animal-control services or to regulate private organizations which engage in such activities.
The appointment of an agent by a county, society, or association to investigate cruelty to animals within a municipality must be approved by the mayor of the city.
Animals running loose are health hazards and public nuisances; consequently, many communities have adopted leash laws which make it a misdemeanor offense for an owner to permit an animal (usually a dog) to run at large. In addition, some animals should simply be excluded from the city. This is particularly true of large carnivorous animals, which are too dangerous; smaller rabies-prone animals, such as raccoons, foxes and skunks; poisonous snakes; and aggressive breeds of dogs, such as pit bulldogs. A city should have procedures in place whereby officials may require that a particular animal be impounded, removed from the community or euthanized.
B. Training
Municipal animal-control officers may complete a minimum standards training course. The training course is mandatory for county-employed officers, but optional for city officers.
The city council may levy and collect a surcharge of up to $5 upon each fine imposed for violation of an ordinance relating to animal control or cruelty. Proceeds shall be used to pay the costs of training for animal-control officers.
References
Florida Statutes: Chapters 166, 534, 585, 767 and 828. Florida Municipal Record: Weverka, J., “Dealing with Animal Problems Before They Become People Problems,” Vol. 59.
Section 5-4
Code Enforcement
The Legislature has provided municipalities with three specific general methods for the enforcement of codes and ordinances:
1. a code-enforcement-board method,
2. a citation method, and
3. a notice to appear method.
Any of these methods may be employed by a municipality to enforce specified codes and ordinances, in addition to other enforcement methods.
A. Code Enforcement Board
One method of code enforcement is the use of one or more code enforcement boards. Such boards, assisted by code inspectors, may impose fines and other noncriminal penalties to enforce a code or ordinance. Code enforcement boards may be created and abolished by ordinance.
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1. Membership
Florida Statutes note the city council shall appoint the members of such code enforcement boards, which must consist of seven members each in cities with population of 5,000 or greater, and of either five or seven members in cities with population of less than 5,000. Members of municipal boards must be residents of the municipality. Appointments shall be made “on the basis of experience or interest in the subject matter jurisdiction” of the board. “Whenever possible,” the membership of each board shall include an architect, a businessperson, an engineer, a general contractor, a realtor, and a sub-contractor. Initial appointments shall be for a mix of one-, two-, and three-year terms, depending on the membership size of the board; thereafter, appointments shall be for three-year terms. A member may be reappointed. Members shall serve without pay, but may be reimbursed for expenses.
2. Counsel
The city council may appoint legal counsel for the board. The city attorney either may serve as counsel to the board or may represent the city by presenting cases before the board, but he or she may not perform in both capacities.
3. Procedures
It is the duty of the code inspector to initiate enforcement proceedings of the various codes. No member of the board shall have the power to initiate proceedings. In the usual case, the code inspector must notify the code violator and give the violator a reasonable time to correct the violation. If the violation is not corrected in the prescribed time, the code inspector shall notify the enforcement board and request a hearing. If the violation is irreparable or irreversible or if the code inspector believes that a violation poses a “serious threat” to the public welfare, the inspector shall make a reasonable effort to notify the violator of such and may immediately notify the enforcement board. If a repeat violation is found, the code inspector is not required to give the violator a reasonable amount of time to correct the violation; he shall notify the violator, notify the board and request a hearing.
Each enforcement board shall have the power to adopt rules, issue subpoena, take testimony under oath and issue orders having force of law. The city shall provide personnel as may be reasonably required by the board. All proceedings shall be open to the public. Formal rules of evidence shall not apply, but fundamental due process shall be observed.
4. Penalties
Additional information on penalties should be obtained from your city’s ordinances. If your city does not provide code enforcement, contact your county’s program (if applicable).
B. Special Masters
Rather than use a code enforcement board, a municipality may appoint one or more “special masters” and empower them to hold hearings and assess fines.
C. Citation Methods
An alternative to the board method for the enforcement of codes and ordinances was provided by the Legislature in 1989 as a simpler and faster alternative. In this approach, there is no code enforcement board; rather, the enforcement process is carried out by code enforcement officers, the county court clerk’s office, and, when necessary, the county court. (Note that “code enforcement officer” is a different statutory designation from that of “code inspector.”) Actually, this so-called citation method consists of two separate approaches which can be found in a city’s procedures.
D. Construction Regulation Board
The statutes authorizing local code enforcement boards do not prohibit a city council from enforcing its codes by other means. One such means is the local construction regulation board, as authorized by Chapter 489, Florida Statutes.
Certification of contractors is performed by the Construction Industry Licensing Board of the Department of Business and Professional Regulation. Ordinarily, a licensed (or certified) contractor may practice in any part of the state by exhibiting his or her current certification and paying appropriate local fees. Within this framework, however, a city council may create a “local construction regulation board,” to which it may appoint not fewer than three persons, all residents of the municipality, “to maintain the proper standard of construction” of the municipality. This board may deny a building permit to a certified contractor if the board finds, through the public-hearing process, that the contractor is guilty of fraud or a willful building-code violation within the municipality or within another municipality within the past 12 months.
References
Florida Statutes: Chapters 162, 166 and 489. Florida Association of Code Enforcement, University of South Florida, Florida Institute of Government, www.faceonline.org.
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Section 5-5
Alcoholic Beverages
The Florida Constitution assigns to counties the option of permitting the sale of intoxicating liquor, wines, and beers. The decision is to be made by a countywide referendum, and any subsequent change thereto must also be by countywide vote. Municipal residents and governments therefore enjoy no power of self-determination on the “wet-or-dry” issue. A municipality, however, may regulate the hours, location and sanitary practices of alcoholic beverage license holders, and it may regulate the type of entertainment and conduct permitted in an establishment licensed to sell alcoholic beverages for consumption on the premises.
A. Tax Rebate
If a county does not permit the sale of alcoholic beverages, all incorporated municipalities within that county may receive rebated portions of the state alcoholic beverage tax collected on the manufacture, distribution, and sale of alcoholic beverages within the county. Thirty-eight percent of the alcoholic beverages license taxes collected by the state from licensees located within an incorporated municipality is returned to the municipality. License taxes are collected by the Division of Alcoholic Beverages and Tobacco of the Florida Department of Business and Regulation and returned to the municipal government on a quarterly schedule. No tax or license regarding alcoholic beverages may be levied by the municipal government. (See the “Municipal Finance” chapter in this manual for more information concerning alcoholic beverage taxes.)
B. Regulation
The state Division of Alcoholic Beverages and Tobacco plays the main role in the regulation of sales of alcoholic beverages. Within the broader framework of state regulation, a city government may regulate the location, business hours, and sanitary conditions of a licensee within the city. On receiving a state alcoholic beverage license, the licensee must then receive city approval of the proposed location. The city may deny approval of a location on the basis of any numerous considerations, such as:
1. proximity to a church or school,
2. safety-code defects,
3. incompatibility with land-use plans,
4. adverse impact on traffic flow,
5. inadequate parking space, or
6. proximity to another licensee.
However, all reasonable standards and conditions placed upon the granting of an alcoholic beverage license must be contained in an ordinance, and a municipality may not deny an alcoholic license arbitrarily.
C. Public Drunkenness
Municipal peace officers may take into custody or send intoxicated persons home or to a health facility, and the law enforcement officer may take reasonable measures to ascertain the commercial transportation used for such purposes is paid for by the person in advance.
References
Florida Statutes: Chapters 561, 562, 567 and 396; Section 856.01. ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146 (Fla. 1st District Court of Appeals, 1979).
Section 5-6
Emergency Management
A. Legal Standing of City Programs
Emergency management is governed by Chapter 252, Florida Statutes, cited as the “State Emergency Management Act.” This chapter creates a Division of Emergency Management under the Governor’s Office, and requires the creation of emergency-management programs at the county level (except as otherwise provided). Municipalities are “authorized and encouraged to create municipal emergency-management programs”; in that event, the activities of the municipal program must be coordinated with those of the county program.
The Florida attorney general has opined that “only counties are authorized to establish local disaster preparedness agencies pursuant to s. 252.38, F.S.” The actual standing of municipalities to establish emergency-management programs, therefore, is unclear. (See AG opinion no. 078-167.) Some cities have chosen some procedural policies for emergency declaration response, recovery and coordination.
Florida disaster response programs both manmade and natural, are considered national models. Florida’s cities have a rich history of assistance and cooperation in these programs.
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B. State Role
The governor has broad powers and responsibilities in times of emergency. In the event of an emergency beyond local control, the governor may assume direct operational control over local emergency-management functions. Executive orders, proclamations, and rules issued by the governor have the effect of law. The governor “shall delegate” emergency responsibilities to the officers and agencies of the state and of counties and municipalities prior to an emergency and shall utilize the services and facilitates as required.
The Governor’s Division of Emergency Management has significant powers of control, coordination and assistance vis-à-vis local emergency-management programs. Municipal programs are subject to the powers of the division. The division may delegate authority to municipalities and counties.
The law enforcement officials of counties and municipalities with emergencymanagement programs shall enforce orders, rules and regulations pertaining to emergency situations.
References
Florida Statutes: Chapter 252. Attorney General’s Opinion no. 078-167.
Section 5-7
Occupational, Business and Professional Regulation
A. Regulatory Powers
As expressed in Article 8, Section 2, Florida Constitution, and the Florida Statutes, Florida’s municipal Home Rule principle gives municipalities a broad regulatory power. This power includes the right to regulate through licensing and permitting.
1. State Preemption
The state has completely preempted the licensing of some professions, occupational groups, and types of businesses. For example, the operator of a bottled-water plant must secure an annual operating permit from the Florida Department of Health on payment of a fee to the department, and “no other fees shall be charged by other governmental agencies for these purposes.” Also, the operation of airports is licensed and regulated by the state, and “no county or municipality…shall license airports or control their locations except by zoning requirements.” Other activities preemptively regulated by the state include telecommunications companies, saltwater fishing, the management of underground petroleum storage tanks, and pest-control services.
The state Legislature has provided, in an implicitly preemptive manner, for state regulation of many occupations by establishing state regulatory boards. (“Regulation of Professions and Occupations” and “Regulation of Trade, Commerce, Investments and Solicitations.”)
State-level regulation of occupations, businesses, and professions involves many state departments and agencies, including the Departments of State, Insurance, Agriculture and Consumer Services, Commerce, Business and Professional Regulation, and others. Of these, the Department of Business and Professional Regulation is most involved in matters affecting municipal licensing of occupations.
1. Shared Authority in Some Areas
In some instances, municipal governments share regulatory authority with a state agency. For example, in the regulation of contractors, the state issues licenses to contractors who pass a state-administered examination, but a local construction regulation board or code enforcement board may deny a local building permit to a state-certified contractor if the local board has found the contractor to be guilty of fraud or of willful building-code violation. In general, municipalities are free to:
1. regulate the quality of work of contractors through a system of fees, permits, and inspections;
2. enforce other laws for protection of public health and safety;
3. adopt any system or permits requiring municipal approval of plans and specifications for work to be performed, before commencement of the work; and
4. collect inspection fees and occupational license taxes.
Another example of shared regulatory authority is the regulation of land surveying. The state regulates this occupation through the licensing of the land surveyors and the adoption of rules governing the practice of the occupation; however, local governments may enact building codes, zoning laws or ordinances that are more restrictive than the state statute and rules.
A third example of shared regulatory authority is provided by the regulation of the practice of massage. In addition to required licensing by a state board, “a county or municipality, within its jurisdiction, may regulate persons and establishments licensed under this chapter.”
B. Regulatory Fees
In exercising its regulatory power, a municipality may levy regulatory fees.
A municipality may levy reasonable business, professional, and occupational regulatory fees, commensurate with the cost of the regulatory activity, including consumer protection, on such classes of businesses, professions, and occupations, the regulation of which has not been preempted by the state or a county pursuant to a county charter.
Municipal regulatory fees must be “reasonable” and “commensurate with the cost of the regulatory activity, including consumer protection.” Thus, a regulatory fee is meant to cover only the expense of the regulatory function, however broadly that might be defined; it is not intended by the Legislature to be source of “profit” for municipalities.
C. Local Business Tax
A municipality “may levy by appropriate resolution or ordinance, an occupational license tax…” In contrast to regulatory fees, local occupational license taxes are a form of general taxation. Local occupational license taxes are not to be considered as regulatory fees; this is stated clearly in the Florida Statutes.
References
Florida Constitution: Article 8, Section 2. Florida Statutes: Chapters 166, 205 and 489; Sections 20.165, 205.022(1), 330.36, 364.01, 370.102, 376.317, 381.294, 472.037, 480.052, 482,242, 492.325 and 500.457.
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