O87-14ORDINANCE NO. 87- /~/
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA,
AMENDING ARTICLE V CODE ENFORCEMENT
BOARD, SECTION 2-74; PROVIDING FOR THE
ELIMINATION OF ALTERNATE BOARD MEMBERS;
PROVIDING FOR A REPEALING CLAUSE;
PROVIDING A SAVINGS CLAUSE; .PROVIDING AN
EFFECTIVE DATE AND FOR OTHER PURPOSES.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON
BEACH, FLORIDA:
Section 1. That Section 2-74 of the Code of Ordinances is
amended by adding the words shown in underlined type and by
deleting the words in struck-through type as follows:
Section 2-74. Creation, appointment, organization of
board.
The city commission may appoint one (1) or more
seven-member code enforcement boards7 -a~emg -w&eh -~we -%~}
a~e~maees and legal counsel for such boards. The members
shall have the following qualifications and terms of office:
(a)
Members of an enforcement board shall be residents
of the city. Appointments shall be made by the
city commission on the basis of experience or
interest in the fields of zoning and building
control. The membership of an enforcement board
shall whenever possible be as follows:
(1) An architect.
(2) A businessperson.
(3) An engineer.
(4) A general contractor.
(5) A subcontractor.
(6) A realtor.
(b)
In order that terms of office of all members will
not expire at the same time, the initial
appointments to an enforcement board shall be as
follows:
Two members and -ehe -eae -~} -a~erna~e shall be
appointed for a term of one (1) year.
Two (2) members shall be appointed for a term of
two (2) years.
Two (2) members shall be appointed for a term of
three (3) years.
The seventh regular member of the board appointed
when the number of board members was raised from
six (6) shall at the time of his appointment serve
fOr a period of three (3) years, a~-~he-seee~
a~e~a~e~s-~§~a~-~e~m-sha~-B~-.~_a_~e~_~
~w~-~-yea~s?
Thereafter, all appointments and terms shall be
for a term of three (3) years. Any member may be
reappointed from term to term upon approval of the
city commission. Appointments to fill any vacancy
on an enforcement board shall be for the remainder
of the unexpired term of office. Any member who
fails to attend two (2) out of three (3)
successive meetings without cause and without
prior approval of the chairman shall automatically
forfeit his' appointment and the city commission
shall promptly fill such vacancy. The members
shall serve at the pleasure of the city commission
and may be removed as Provided in the City Code of
Ordinances for removal of members of the planning
and zoning board.
(c)
The members of an enforcement board shall elect a
chairman. The presence of four (4) or more
members shall constitute a quorum of the
enforcement board. Members shall serve without
compensation, but may be reimbursed for such
travel expenses, mileage expenses, and per diem
expenses as may be authorized by the city
commission.
(d) The board attorney shall either be counsel to an
enforcement board or shall represent the city by
presenting cases before the board.
+e~--~he-a~%eraa%e-members-e~-a-Bear~-sha~-a~ea~-a&~
mee~§s-~-~he-Bea~-Bu~-sha~-ae~-e~y-~_~he
~e~m~a~-memBe~-~he~eef=--When-an-a~e~aee_memhe~
ae~s?-ehe-m~mees-e~-~he-mee~-sha~_~e~ee~_~he
aBsemew-~&saB~e~-er-~&s~ma~&~&e~-member-&~-whose
Section 2. Ail ordinances in conflict herewith are hereby
repealed.
Section 3. That should any section or provision of this
Ordinance or any portion thereof be declared by a court of
competent jurisdiction to be invalid, such decision shall
not affect the remainder of this Ordinance.
Section 4. This Ordinance
· mmediately upon passage.
shall become effective
FIRST READING this ~A~ day of
1987.
&~ ~--~ , 1987. . ay of
ATTEST:
Clty~erk
CITY OF BOYNTON BEACH, FLORIDA
Commissioner ~
(:Corporate Seal)
3
ROBERT A. BUTTERWORTH
DEPAI~TMEI~TT OF LEGAL A~'FAII~S
OFFICE OF THE AUORNEY GENERAL
THE CAPITOL
'TALLAHA$S~. FLORIDA
City of Port St. Lucie - · · : . ~-~
Port St. Lucie, Florida 33452.
.-
Attention:- Mr. Joseph Ma'si
.:--?'-_ Assistant City Attorney
Re: LOCAL'~GOVERNMENT CODE ENFORCEMENT. BOARDS
: ACT--MUNICIPALITIES--appointment of one
or more alternate members of] code enforce-
ment'.board-, unauthorized..ss. 162.03(1)
and 16-2.05, F.S. (1986 Supp.).
Dear Mr. Gilbert:
This is in response to your request for an opinion on
substantially-the' .following question: ..
..MAY A MUNICIPALITY APPOINT ONE OR MORE
INDIVIDUALS TO SERVE AS ALTERNATE MEMBERS
-- OF A':CODE ENFORCEMENT BOARD, IN ADDITION
TO THE-BOARD'S SEVEN REGULAR MEMBERS?.
Chapter 162~:-'~'~;S. '(1986 Supp.), Ruthorizes counties and
municipalities' to create' quasi-judicial administrative code
enforcement "boards to prov.ide an equitable, 'expeditious,
effective, and inex~ensive method of-"enforcing the codes and
ordinances - in force in counties .and .muni'cipalities.
Section 162.02, F.S. (1986 Supp.). Section 162.03(1), F.S. (1986
Supp.), provides that "[e]ach county or municipality may, at its
option, create or abolish by ordinance local government code
enforcement boards as provided herein." (e.s.) See, AGO's 86-10,
85-84, 85-27, 85-1-7 and 84-5'5, concluding that ~ municipality or
its governing body derives ~neither any delegated authority from
Ch. 162 nor any home rule 'power from s. 2(b), Art. VIII,
State Const., or S. 166.021, F.S., to enforce its codes in any
An Affirmative Action/Equal Opportunity Employer
Mr. Spencer Gilbert
Page Two
m~nner other than as provided in. Ch. 162 or 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. .. .
Section 162~05, F.S. (1986 Supp.), provides for the' composition
of and appointment procedures with respect to the code
enforc~men~ boards authorized to be created by ordinance by
counties and municipalities pursuant to Ch. 162, F.S.
(1986 Supp.). SPecifically, s. 162.05(1), F.S. (1986 Supp.),
pro~ides that a local governing body "may appoin, t one or more
sev_~n-_member code enforcement'boards .... (e'~s..) Cf.,
~. i~f~f),"'F.s. (1986 supp.) (".loca. 1 governing .bod.y m~-~ns
governing body of county or municipality, however designated).
Section-'i62.05(2),. F.S. (1986 Supp.), specifically provides for
· e
.the appolntm nt of seven members of .an ~nitial board to staggered
terms such that appoin.tment.s thereaf{.er'shall be for terms of
three years. That section further prdV~des in pertinent part as
--An appointment to fill any vacancy on an
enforcement board shall be for the remainder
of the unexpired term of office. If any
member fails to attend two of three successive
meetings without cause and without prior
approval of the chairman, the enforcement
board shall declare the member's office vacant;
and the local governing body shall promptly
fill such vacancy.
See also~ s. 162.05(3) and (4}, F.S. (1986 Supp.}, providing for
Certain other duties and r'esponsibilities of the members of a
code enforcement board and further providing for legal counsel
for a board and for representation of the municipality or county
in the presentation of cases to a board.
Section 16-2.05, F.S. (1986 Supp.), do'es not provide for or
authorize a county or municipality to appoint one or more
ind%viduals~o serve as alternative members of a code enforcement
board, in :aadition to the statutorily required seven members of
such a board. Moreover, to the extent that s. 162.05~2), F.S.
(1986 S. upp.), specifically provides for a method of filling
vacancies on a code enforcement board and imposes such
responsibility on the local governing body to promptly fill a
vacancy when such vacancy is declared by a code enforcement
87-2~-
Mr. Spencer Gilbert
· Page Three
87-2~
board, I am of the view that a municipality is not authorized by"
Ch..162, F.S. (1986 Supp.), to anticipate such prospective
vacancies-by appointing one or more individuals to serve as
alternate members of such'a board.. Such a procedure would appear
to constitute a variance from the 'statutorily prescribed method
of appointing members of code enforcement boards without
authorization by statute. See, Alsop v. Pierce, 19 So.2d 799
(Fla. 1944}, holding that a legislative direction as to the
manner of doing a thing is an implied prohibition .against its
being done in any Other manner. See also, Dobbs v. 'Sea Isle
Hotel, 56 So.2d 341 (Fla. 1952), and Ideal Farms Drainage
DiStrict v. Certain Lands, 19 S°.2d 234 (Fla. 19'44} (under rule
essi express legislative
me )n of thin~s not mentioned)
Theref. ore, unless .a.n.d until _/e.gts~atively or judicially
determined otherwise, it i.s my opinion/hat a municipality is not
authorized by law to appoint one or. more individuals to serve as
alternate members of'a code enforcement board-
- -- ...... ., -- ~~u~- tO the
Doaro s statutorlAy prescribed seven regular members.
Sincerely,
Prepared
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
Kent L. Weissinger
Assistant Attorney General
RAB/KLW/gk