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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