Friday, February 26, 2010

Two Comments You Must Read

This is the conversation I had hoped for. Although I wish these comments were not anonymous, I think they are important enough to merit their own posting. note: I added paragraph breaks to improve readability.

First on the red light posting, the commenter writes:

Anonymous said...

About the Red Light Running: I think the camera thing is a great idea, however, I too, must stop and think of the legality of it all as it pertains to Code Enforcement. The cities are saying that these tickets will be handled under Code Enforcement Proceedings thereby allowing for a fine to be imposed by a Code Board or a Special Magistrate without putting points on a person's license. Florida Statute 162 is the Code Enforcement Statute that every city, municipality, ect. follows. Florida Statute 162 specifically states that as part of a persons(alledged violator) right to due process (remember under Code Enforcement Statute FS 162) is the "right to cross-examine a witness" there is no way to cross-examine a camera.

That right there would violate a persons due process rights (in code enforcement)there must be an officer there to observe the violation. If there is no officer to observe a violation in Code Enforcement, the Officer can obtain a sworn affidavit from someone else, but that is not generally a practice accepted by the Board or Special Magistrates and is used as a last resort, but again, a camera cannot make a sworn affidavit.

Also under the due process of a violator under Code Enforcement they have to be given a "reasonable" time to correct a violation. So how do undue or correct running a red light, once it happens it happens and I agree that it is illegal to run a red light, it may just have to be handled by a Traffic Magistrate in a different form or venue so it will not fall under Code Enforcement.

Again, just my opinion and you may want to look into this. This is why there is so much controversy about the red-light camera issue, I think most people agree, as I do, that no matter it is still illegal to run a red light whether you get caught or not.

My take: - Very good points. I understand that the witness in these cases is the officer who reviews the video, so I believe it does actually conform to code since there is a witness but I will research this further.

Then onFebruary 25, 2010 11:12 AM:

I just want to make a few comments, not here to initiate war or anything like that.

On Oscar's house:

First, he did submit plans and obtain a Building Permit for the addition on his house.

Second,if this structure did not get inspections or pass inspections, that falls on the Building Official who should have been following up on the building of said structure.

At this point, it is my opinion that this issue is beyond code enforcement as far as the structure goes and I will explain why: If the structure is deemed unfit or unsafe (which must be done by the Building Official) or Miami-Dade Unsafe Structure Board-NOT Code Enforcement Officers then it is up to The Unsafe Structure Board to order it be brought up to standard or order the structure to be removed. The cost of the removal of the structure would probably be placed upon NBV to do this and then a Lien would be filed against the property for the amount of such removal of the unsafe structure.

Now, if it is true that a Foreclosure proceeding has already begun, it negates all Code Enforcement Fines and Liens on or to be placed on this property because it is in Foreclosure by the bank or basically it runs in favor of the first lien holder which would be the bank/mortgage company.

Secondly, it is against the law to place a Lien against a Homesteaded property, in the first place and like I said, even if it were done, it would be wiped clean in favor of the first mortgage holder in a Foreclosure proceeding.

Next, the IRS IS THE ONLY OTHER ENTITY THAT CAN TAKE POSSESSION OF A HOMESTEADED PROPERTY OTHER THAN A BANK IN A FORECLOSURE PROCEEDING. So, if there is an IRS Tax Lien, as reported, more than likely the IRS will get possession of this property at some point in time. So, be that as it may, one of two things will happen, the First Mortgage Holder will take possession by Foreclosure or the IRS by Tax Lien. Either way, all Liens due or owed NBV will be wiped away, so essentially there is no avenue for Code Enforcement fines or liens at this time, its a waste of time to go that avenue.

Also, if NBV takes the burden of the expense to remove said structure because it is deemed unsafe by the Miami-Dade Unsafe Structure Board, chances are they will NOT re-coup these monies.

In any instance, Oscar Alfonso appears to be losing this property and has no reason to try and fix it up or clean it up and more than likely will not fix it or clean it up. It is a shame that he does not want to have a nice property and leaves it a mess, but the reality of it all is that it is beyond Code Enforcement actions at this time. Code Enforcement on this property at this time, will do no good.

I may be incorrect and you can correct me if I am wrong, but this is just one opinion and an opinion only. You may want to look into this, as these reasons may be the reasons why Oscar just does not care and will live there without paying his mortgage or taxes, ect. until he is forced to leave either by Foreclosure or the IRS.

Also, since it is really illegal to place a Code Enforcement Lien against a Homesteaded property, there is also no reason for him to go out and clean up the yard area (front and rear) either. Its really a shame that there is nothing that can be done right now and basically the Manager giving him 30 days to clean it up means nothing because in reality nothing can be done about it.

My Take: I really don't have one. This is a very compelling point and not one I had heard before. I will look into it.

Thanks. Just so you know, you are not "starting a war", far from it. In fact, if you are comfortable with not being anonymous, I would love to turn a post over to you or collaborate on one.

Kevin Vericker

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