Agenda 07/09/2013 Item #17B 7/9/2013 17.B.
EXECUTIVE SUMMARY
Recommendation to adopt an ordinance amending Ordinance No. 2007-44, as amended,
the "Collier County Consolidated Code Enforcement Ordinance," relating to the
superiority of a lien on property imposed by an order of the Code Enforcement Board or
the Special Magistrate.
OBJECTIVE: That the Board of County Commissioners (Board) adopts an ordinance
amending the Collier County Consolidated Code Enforcement Ordinance as it relates to the
superiority of a lien on property imposed by an order of the Code Enforcement Board or the
Special Magistrate.
CONSIDERATIONS: Collier County Ordinance No. 2007-44 as adopted on May 8, 2007,
consolidated the former Code Enforcement Board and Public Nuisance Abatement Ordinance,
the Code Enforcement Citation Ordinance, and the Code Enforcement Special Master Ordinance
into a single ordinance and established an affirmative defense to certain alleged code violations.
Ordinance No. 2007-44, as subsequently amended, also provides that liens imposed on property
through an order of the Code Enforcement Board or the Special Magistrate shall be superior to
the interest on such property of any owner, lessee, tenant, mortgagee, or other person except the
lien of county taxes. This provision has been in our code (and the codes of many other local
jurisdictions) for quite some time.
This particular provision came under question recently in the case of City of Palm Bay v. Wells
Fargo Bank, N.A., in which the Fifth District Court of Appeals concluded that the City's super
priority ordinance was invalid with respect to a Wells Fargo mortgage that was recorded prior in
time to the City's Code lien as it conflicts with the state recording statute. On May 16, 2013, the
Supreme Court of Florida upheld the Fifth District's decision. A copy of the Supreme Court
ruling is included in the back up for your reference.
For the purposes of conforming our Code to this decision, the County Attorney is proposing the
following amendment to the Consolidated Code Enforcement Ordinance:
ARTICLE IV. Procedures Governing the Code Enforcement Board, Nuisance
Abatement Board, and the Special Magistrate
* * * * * *
Section 5. Penalties before Enforcement Board and Special Magistrate.
* * * * * *
(5) A certified copy of an Enforcement Board or Special Magistrate's Order imposing a
fine may be recorded in the public records and thereafter shall constitute a lien
against the land on which the violation occurred or exists, and upon any other real or
personal property owned by the Violator; and except as otherwise provided by law,
including mortgages recorded prior in time and the lien of county taxes, shall be
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superior to the interest on such parcel or property of any owner, lessee, tenant, after-
recorded mortgagee, or other person except the lien of county taxes, and shall be
coequal with county taxes enforced in the same manner as a court judgment by the
sheriffs of this state, including levy against personal property, but shall not be
deemed to be a court judgment except for enforcement purposes. After three months
from the filing of any such lien which remains unpaid, the enforcement board may
authorize the county attorney to foreclose on the lien or forward the lien to a
collection agency. No lien created pursuant to this Section may be foreclosed on real
property that is a homestead under Article X, Section 4 of the Florida Constitution.
* * * * * *
At its June 11, 2013 regular meeting (Item 16-K-2),the Board authorized the County Attorney to
advertise the proposed amendment for future consideration.
FISCAL IMPACT: The cost for advertising the proposed ordinance was $259.38.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: The proposed amendment was drafted by the County Attorney,
and is approved as to form and legality. A simple majority vote is required to enact the proposed
amendment. -JAK
RECOMMENDATION: That the Board of County Commissioners adopts the attached
ordinance which will amend Ordinance No. 2007-44, as amended, the "Collier County
Consolidated Code Enforcement Ordinance."
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
2
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COLLIER COUNTY
Board of County Commissioners
Item Number: 17.17.B.
Item Summary: Recommendation to adopt an ordinance amending Ordinance No. 2007-
44, as amended, the "Collier County Consolidated Code Enforcement Ordinance," relating to
the superiority of a lien on property imposed by an order of the Code Enforcement Board or the
Special Magistrate.
Meeting Date: 7/9/2013
Prepared By
Name:NeetVirginia
Title:Legal Assistant/Paralegal,County Attorney
6/21/2013 11:18:56 AM
Submitted by
Title: County Attorney
Name: KlatzkowJeff
6/21/2013 11:18:59 AM
Approved By
Name: KlatzkowJeff
Title: County Attorney
Date: 6/21/2013 2:02:40 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 6/21/2013 2:12:23 PM
Name: FinnEd
Title: Senior Budget Analyst, OMB
Date: 6/24/2013 2:50:35 PM
Name: OchsLeo
Title: County Manager
Date: 6/30/2013 4:14:06 PM
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COLLIER COUNTY
CONSOLIDATED CODE ENFORCEMENT ORDINANCE
ORDINANCE NO. 2013 -
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA, AMENDING ORDINANCE NO. 2007-44 ,
AS AMENDED, KNOWN AS THE CONSOLIDATED CODE
ENFORCEMENT ORDINANCE, BY MODIFYING ARTICLE IV, SECTION
5, AS IT RELATES TO THE SUPERIORITY OF A LIEN ON PROPERTY
IMPOSED BY AN ORDER OF THE CODE ENFORCEMENT BOARD OR
SPECIAL MAGISTRATE; PROVIDING FOR CONFLICT AND
SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF
LAWS AND ORDINANCES; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Article VIII of the Constitution of Florida authorizes Florida counties to
exercise broad home rule powers; and
WHEREAS, Section 125.01(1), Florida Statutes, provides that the legislative and
governing body of a County shall have the power to carry on County government and that said
power includes, but is not restricted to, a number of powers set forth in Section 125.01, so long as
any powers exercised are not inconsistent with general or special laws; and
WHEREAS, Section 125.01(1)(t), Florida Statutes, provides that a county may adopt
ordinances and resolutions necessary for the exercise of its powers and prescribe fines and
penalties for the violation of ordinances in accordance with law; and
WHEREAS, Sections 125.01(3)(a) and (b), Florida Statutes, recognize that the
enumeration of powers in Section 125.01(1), Florida Statutes, incorporates all implied powers
necessary or incident to carry out those powers and that Section 125.01, Florida Statutes, shall be
liberally construed in order to effectively carry out the purpose of the section and to secure for
counties the broad exercise of home rule powers authorized by the State Constitution; and
WHEREAS, pursuant to Chapter 162, Florida Statutes, "The Local Government Code
Enforcement Boards Act," the Board of County Commissioners of Collier County (Board) duly
enacted Collier County Ordinance No. 2007-44, known as "The Collier County Consolidated
Code Enforcement Ordinance,which superseded and repealed prior ordinances; and
WHEREAS, the Board subsequently amended Ordinance No. 2007-44 through its
adoption of Ordinance No. 2010-04; and
Words Underlined are added;Words Stmek—Thfotigh are deleted.
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WHEREAS, in light of the May 16, 2013 decision of the Supreme Court of Florida, it is
necessary to modify Ordinance No. 2007-44, as amended, as it relates to the superiority of a lien
on property imposed by an order of the Code Enforcement Board or the Special Magistrate.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY,FLORIDA that:
SECTION ONE: AMENDMENT TO ARTICLE IV, SECTION 5 OF ORDINANCE NO.
2007-44,AS AMENDED.
Article IV, Section 5 is hereby amended to read as follows:
ARTICLE IV. Procedures Governing the Code Enforcement Board,Nuisance Abatement Board,
and the Special Magistrate
* * * * * *
Section 5. Penalties before Enforcement Board and Special Magistrate.
(1) Upon a finding of violation, the Enforcement Board or Special Magistrate may order the
Violator to pay a fine which shall not exceed $1,000.00 per day per violation for each day the first
violation continues past the date set for compliance by the Enforcement Board or Special
Magistrate; or in the case of a repeat violation, may order the repeat Violator to pay a fine which
shall not exceed $5,000.00 per day per violation for each day the repeat violation continues past
the date set for compliance by the Code Enforcement Board, or from the time the violation has
been repeated, and a hearing shall not be necessary for the issuance of the Order. If the
Enforcement Board or Special Magistrate finds a violation to be irreparable or irreversible in
nature, it may impose a fine not to exceed$15,000.00 per violation.
(2) In determining the amount of the fine, if any, the Enforcement Board or Special Magistrate,
as the case may be, shall consider the following factors:
(a) The gravity of the violation;
(b) Any actions taken by the Violator to correct the violation; and
(c) Any previous violations committed by the Violator.
(3) The Nuisance Abatement Board may order the Violator to pay a fine which shall not exceed
$250.00 per day for each day the first violation continues past the date set for compliance; or in
the case of a repeat Violator, may order the repeat Violator to pay a fine which shall not exceed
$500.00 per day.
(4) Where the Nuisance Abatement Board hears an administrative action, based on a stolen
property nuisance, against a property owner operating an establishment where multiple tenants, on
one site, conduct their own retail business,the property owner shall not be subject to a lien against
his or her property or the prohibition of operation provision if the property owner evicts the
business declared to be a nuisance within 90 days after notification by registered mail to the
AosAr
Words Underlined are added;Words ck-Through are deleted.
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property owner of a second stolen property conviction of the tenant. The total fines imposed
pursuant to the authority of§ 893.138,Florida Statutes, shall not exceed $15,000.00.
(5) A certified copy of an Enforcement Board or Special Magistrate's Order imposing a fine may
be recorded in the public records and thereafter shall constitute a lien against the land on which the
violation occurred or exists, and upon any other real or personal property owned by the Violator;
and except as otherwise provided by law, including mortgages recorded prior in time and the lien
of county taxes~ shall be superior to the interest on such parcel or property of any owner, lessee,
tenant, after-recorded mortgagee, or other person = -- - , - • - -- • - ••. - , and shall be
coequal with county taxes enforced in the same manner as a court judgment by the sheriffs of this
state, including levy against personal property, but shall not be deemed to be a court judgment
except for enforcement purposes. After three months from the filing of any such lien which
remains unpaid, the enforcement board may authorize the county attorney to foreclose on the lien
or forward the lien to a collection agency. No lien created pursuant to this Section may be
foreclosed on real property that is a homestead under Article X, Section 4 of the Florida
Constitution.
(6) No lien provided under this division shall continue for a period longer than 20 years after the
certified copy of an Order imposing a fine has been recorded, unless within that time an action to
foreclose on the lien is commenced in a court of competent jurisdiction. The continuation of the
lien effected by the commencement of the action shall not be good against creditors or subsequent
purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded.
SECTION TWO: CONFLICT AND SEVERABILITY.
In the event this Ordinance conflicts with any other ordinance of Collier County, the more
restrictive shall apply. If any phrase or portion of this Ordinance, or the particular application
thereof, shall be held invalid or unconstitutional by any court, administrative agency or other body
with appropriate jurisdiction, the remaining section, subsection, sentences, clauses or phrases and
their application shall not be affected thereby.
SECTION THREE: INCLUSION IN THE CODE OF LAWS AND ORDINANCES.
The provisions of this Ordinance shall become and be made a part of the Code of Laws and
Ordinances of Collier County, Florida. The sections of the Ordinance may be renumbered or
relettered to accomplish such, and the word "ordinance"may be changed to "section", "article", or
other appropriate word.
SECTION THREE: EFFECTIVE DATE.
This Ordinance shall become effective upon filing with the Florida Department of State.
Words Underlined are added;Words Struck Stivek—Threugh are deleted.
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PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier
County, Florida,this day of , 2013.
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA
By: By:
, Deputy Clerk GEORGIA A. HILLER, ESQ.
CHAIRWOMAN
it Appro �'-• �, .rm and legality:
Jeffrey ' ' atzkow
County ' tt l+■,` ey
Words Underlined are added;Words Strusk-Thfough are deleted.
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5uprtmc Court ot , 'toriba:
No. SC11-830
CITY OF PALM BAY,
Appellant,
vs.
WELLS FARGO BANK, N.A.,
Appellee.
[May 16, 2013]
CANADY, J.
In this case we consider whether a municipal ordinance may validly
establish superpriority status for municipal code enforcement liens. In City of
Palm Bay v. Wells Fargo Bank, N.A., 57 So. 3d 226 (Fla. 5th DCA 2011), the
Fifth District Court of Appeal concluded that such an ordinance superpriority
provision is invalid because it conflicts with a state statute and that the City's lien
accordingly did not have priority over the lien of Wells Fargo's mortgage that was
recorded before the City's lien was recorded. Palm Bay sought review, and we
accepted jurisdiction based on the Fifth District's certification of the following
question of great public importance:
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Whether under Article VIII, section 2(b), Florida Constitution, section
166.021, Florida Statutes and Chapter 162, Florida Statutes, a
municipality has the authority to enact an ordinance stating that its
code enforcement liens, created pursuant to a code enforcement board
order and recorded in the public records of the applicable county, shall
be superior in dignity to prior recorded mortgages?
City of Palm Bay v. Wells Fargo Bank, N.A., 67 So. 3d 271, 271 (Fla. 5th DCA
2011) (mem.).
On appeal, the City argues that the ordinance superpriority provision is
within the "broad home rule powers" of the City. Petitioner's Brief on the Merits
at 5, City of Palm Bay v. Wells Fargo Bank, N.A., No. SC11-830 (Fla. May 16,
2013). The City contends that because the Legislature has made certain exceptions
to the general rules governing the priority of liens, municipalities have the power
to likewise make exceptions. For the reasons we explain, we conclude that the
Fifth District correctly decided that the ordinance superpriority provision is invalid.
Accordingly, we answer the certified question in the negative. Before explaining
our conclusion, we will review the pertinent provisions of the Palm Bay ordinance,
the constitutional and statutory provisions relevant to the City's exercise of power,
and the statutory framework governing the priority of interests based on recorded
instruments.
I. BACKGROUND
City of Palm Bay Ordinance 97-07 provides for the operation of the City's
Code Enforcement Board and contains the following superpriority provision:
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Liens created pursuant to a Board order and recorded in the
public record shall remain liens coequal with the liens of all state[,]
county[,] district[,] and municipal taxes, superior in dignity to all
other liens[,] titles[,] and claims until paid, and shall bear interest
annually at a rate not to exceed the legal rate allowed for such liens
and maybe foreclosed pursuant to the procedures set forth in Florida
Statutes, Chapter 173.
City of Palm Bay, Ordinance No. 97-07, § 1 (1997).
Chapter 162, Florida Statutes (2004), contains the Local Government Code
Enforcement Boards Act. Section 162.03, Florida Statutes (2004), authorizes
municipalities to establish by ordinance local code enforcement boards. Section
162.09(3), Florida Statutes (2004), provides that"[a] certified copy of[a code
enforcement] order imposing a fine, or a fine plus repair costs, may be recorded in
the public records and thereafter shall constitute a lien against the land on which
the violation exists and upon any other real or personal property owned by the
violator." The Act contains no provision expressly authorizing municipalities to
establish superpriority for such liens.
Article VIII, section 2(b), Florida Constitution, contains a general provision
relating to the exercise of municipal powers: "Municipalities shall have
governmental, corporate and proprietary powers to enable them to conduct
municipal government, perform municipal functions and render municipal
services, and may exercise any power for municipal purposes except as otherwise
provided by law." (Emphasis added). Section 166.021, Florida Statues (2004),
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contains general provisions governing the exercise of municipal powers under the
framework established in article VIII, section 2(b). Section 166.021(1) states: "As
provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the
governmental, corporate, and proprietary powers to enable them to conduct
municipal government, perform municipal functions, and render municipal
services, and may exercise any power for municipal purposes, except when
expressly prohibited by law." Section 166.021(3) provides in pertinent part as
follows:
The Legislature recognizes that pursuant to the grant of power
set forth in section 2(b), Art. VIII of the State Constitution, the
legislative body of each municipality has the power to enact
legislation concerning any subject matter upon which the state
Legislature may act, except:
(c) Any subject expressly preempted to state or county
government by the constitution or by general law . . . .
The priority of interests in real estate under Florida law is generally
determined by the operation of three statutes. Section 28.222(2), Florida Statutes
(2004), requires the clerk of the circuit court to record instruments in the official
records and to "keep a register in which he or she shall enter at the time of filing
the filing number of each instrument filed for record, the date and hour of filing,
the kind of instrument, and the names of the parties to the instrument." Section
695.11, Florida Statutes (2004), provides that "[t]he sequence of[official register
numbers required under section 28.222] shall determine the priority of recordation"
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so that "[a]n instrument bearing the lower number in the then-current series of
numbers shall have priority over any instrument bearing a higher number in the
same series." The legal significance of priority of recordation comes into play in
the context of the rule established in section 695.01(1), Florida Statutes (2004),
which provides as follows: "No conveyance, transfer, or mortgage of real property,
or of any interest therein . . . shall be good and effectual in law or equity against
creditors or subsequent purchasers for a valuable consideration and without notice,
unless the same be recorded according to law."'
The Legislature has, however, provided separately for the priority of certain
liens over the priority established under chapter 695. For example, section
197.122(1), Florida Statutes (2004), provides that "[a]11 taxes imposed pursuant to
the State Constitution and laws of this state shall be a first lien, superior to all other
liens." Similarly, section 170.09, Florida Statutes (2004), provides that special
1. The Fifth District states that section 695.11 "codifies . . . the common law
rule of first in time, first in right." Palm Bay, 57 So. 3d at 227. Although it has no
bearing on the preemption question at issue in this case, we note that this
characterization of Florida law is misleading. The comment incorrectly leaves
section 695.01(1) out of consideration and suggests that priority of recordation
necessarily establishes priority of right. A thoughtful discussion of the operation
of Florida law in determining priority of interests in real property is contained in
Argent Mortgage Co., LLC, v. Wachovia Bank N.A., 52 So. 3d 796 (Fla. 5th DCA
2010); see also Van Eepoel Real Estate Co. v. Sarasota Milk Co., 129 So. 892 (Fla.
1930).
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assessment liens are "coequal with the lien of all state, county, district, and
municipal taxes, superior in dignity to all other liens, titles, and claims, until paid."
II. ANALYSIS
Based on the provisions of article VIII, section 2(b), Florida Constitution,
and the related provisions in section 166.021, we have acknowledged that "[i]n
Florida, a municipality is given broad authority to enact ordinances under its
municipal home rule powers." City of Hollywood v. Mulligan, 934 So. 2d 1238,
1243 (Fla. 2006). We have also stated that—as is recognized in section 166.021-
"a municipality may legislate concurrently with the Legislature on any subject
which has not been expressly preempted to the State." Hollywood, 934 So. 2d at
1243. But we have never interpreted either the constitutional or statutory
provisions relating to the legislative preemption of municipal home rule powers to
require that the Legislature specifically state that the exercise of municipal power
on a particular subject is precluded. Instead, we have held that"[t]he preemption
need not be explicit so long as it is clear that the legislature has clearly preempted
local regulation of the subject." Barragan v. City of Miami, 545 So. 2d 252, 254
(Fla. 1989). We have also recognized that where concurrent state and municipal
regulation is permitted because the state has not preemptively occupied a
regulatory field, "a municipality's concurrent legislation must not conflict with
state law." Thomas v. State, 614 So. 2d 468, 470 (Fla. 1993).
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The critical phrase of article VIII, section 2(b)—"except as otherwise
provided by law"—establishes the constitutional superiority of the Legislature's
power over municipal power. Accordingly, "[m]unicipal ordinances are inferior to
laws of the state and must not conflict with any controlling provision of a statute."
Thomas, 614 So. 2d at 470. When a municipal "ordinance flies in the face of state
law"—that is, cannot be reconciled with state law the ordinance "cannot be
sustained." Barragan, 545 So. 2d at 255. Such"conflict preemption" comes into
play"where the local enactment irreconcilably conflicts with or stands as an
obstacle to the execution of the full purposes of the statute." 5 McQuillin Mun.
Corp. § 15:16 (3d ed. 2012).
Here, it is undisputed that the Palm Bay ordinance provision establishes a
priority that is inconsistent with the priority established by the pertinent provisions
of chapter 695. In those statutory provisions, the Legislature has created a general
scheme for priority of rights with respect to interest in real property. Giving effect
to the ordinance superpriority provision would allow a municipality to displace the
policy judgment reflected in the Legislature's enactment of the statutory
provisions. And it would allow the municipality to destroy rights that the
Legislature established by state law. A more direct conflict with a statute is hard to
imagine. Nothing in the constitutional or statutory provisions relating to municipal
home rule or in the Local Government Code Enforcement Boards Act provides any
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basis for such a municipal abrogation of a state statute. The conflict between the
Palm Bay ordinance and state law is a sufficient ground for concluding that the
ordinance superpriority provision is invalid.
We categorically reject the City's argument that the legislative enactment of
exceptions to a statutory scheme provides justification for municipalities to enact
exceptions to the statutory scheme. No authority supports this argument. The
power to create exceptions to a legislative scheme is the power to alter that
legislative scheme. "Fundamental to the doctrine of preemption is the
understanding that local governments lack the authority to craft their own
exceptions to general state laws." 5 McQuillin Mun. Corp. § 15:18 (3d ed. 2012).
Although municipalities generally have "the power to enact legislation concerning
any subject matter upon which the state Legislature may act," § 166.021(3), Fla.
Stat. (2004), in exercising their power within that scope municipalities are
precluded from taking any action that conflicts with a state statute. In this context,
concurrent power does not mean equal power.
III. CONCLUSION
The Fifth District correctly concluded that the superpriority provision of the
Palm Bay ordinance is invalid because it conflicts with state law. We approve that
determination and answer the certified question in the negative.
It is so ordered.
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POLSTON, C.J., and LEWIS, QUINCE, and LABARGA, JJ., concur.
PERRY, J., dissents with an opinion, in which PARIENTE, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PERRY, J., dissenting.
The majority holds that the City of Palm Bay's home rule authority does not
provide it with the authority to enact an ordinance providing code enforcement
liens superior priority over prior recorded mortgages. Because I disagree that the
ordinance irreconcilably conflicts with the mechanical recording statute provided
in section 162.09, Florida Statutes (2004), or that the Florida Legislature has
expressed a scheme "so pervasive as to evidence an intent to preempt the particular
area,"2 I would find that the city's ordinance was properly enacted. Accordingly, I
dissent.
The majority reasons that section 162.09(3) "contains no provision expressly
authorizing municipalities to establish special priority for such liens." Maj. op. at
3. However, this is not the appropriate test to determine whether a municipality
has exceeded its powers. The City of Palm Bay does not require the Legislature's
express permission to act under its home rule powers. Section 1 66.021(1) states in
relevant part that "municipalities . . . may exercise any power for municipal
2. Sarasota Alliance for Fair Elections Inc. v. Browning, 28 So. 3d 880, 886,
888 (Fla. 2010).
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purposes, except when expressly prohibited by law." Further, section
166.021(3)(c) provides that the municipality has the power to enact legislation
concerning any subject matter upon which the Legislature may act except"[a]ny
subject expressly preempted to state or county government by the constitution or
by general law. . . ." (Emphasis added). Thus, it is not whether the Legislature has
expressly authorized municipal power, but whether such power has been expressly
prohibited. Here, there has been no express preemption that would prohibit the
City's action.
Because the language contained in sections 162.09, 695.11, and related
provisions does not expressly conflict with the ordinance, the City was within its
authority to enact the ordinance. The majority avoids this outcome by relying on a
single line from this Court's decision in Barragan v. City of Miami, 545 So. 2d
252, 254 (Fla. 1989), stating, "[t]he preemption need not be explicit so long as it is
clear that the legislature has clearly preempted local regulation of the subject."
Maj. op. at 6. The majority's reliance on Barragan here is misguided and
misleading.
Barragan concerned an ordinance that permitted the City to deduct workers'
compensation benefits from an employee's pension benefits in contradiction to the
provisions of section 440.21, Florida Statutes (1987). Because the workers'
compensation scheme outlined in chapter 440 explicitly applied to every employer
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and employee working in the state, the City's ordinance was expressly preempted
by the statute. See Barragan, 545 So. 2d at 254 (citing § 440.03, Fla. Stat. (1987)).
In Barragan, Chief Justice Ehrlich emphasized that, "The city should not be
permitted to do indirectly that which it cannot do directly." Id. at 255 (Ehrlich,
C.J., concurring in result only). In contrast, here the mechanical recording statute
does not provide an all-encompassing lien priority scheme. Clearly there is no
express preemption of the subject matter concerning the City's ordinance. Yet, the
majority maintains that"the Palm Bay ordinance is invalid because it conflicts
with state law." Again, the majority applies the improper test.
Express preemption is not the same as implied preemption or conflict—this
Court has previously distinguished between these concepts. See Sarasota Alliance
for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886, 888 (Fla. 2010) (defining
implied preemption as "when the legislative scheme is so pervasive as to evidence
an intent to preempt the particular area, and where strong public policy reasons
exist for finding such an area to be preempted by the Legislature" and conflict as
"when two legislative enactments cannot coexist"); see also Phantom of Brevard
Cnty. v. Brevard Cnty., 3 So. 3d 309, 314 (Fla. 2008); City of Hollywood v.
Mulligan, 934 So. 2d 1238, 1243, 1246-47 (Fla. 2006) (internal quotations
omitted). Here, section 166.021 provides that the City may act except where
expressly preempted, not impliedly preempted or in conflict. These are distinct
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tests that should not be conflated. However, no matter the test applied here, there
is no preemption evident in the statutes, neither explicit nor implicit.
While the majority recognizes that municipalities can legislate concurrently
Y
with the Legislature, see Maj. op. at 6 (citing City of Hollywood, 934 So. 2d at
1243), the majority nevertheless "categorically reject[s] the City's argument that
the legislative enactment of exceptions to a statutory scheme provides justification
for municipalities to enact exceptions to the statutory scheme." Maj. op. at 8. To
read the statute and ordinance as unable to coexist ignores that the Legislature has
not previously regarded the mechanical recording statute as a pervasive scheme
without exemptions. See § 170.09, Fla. Stat. (2004) (providing lien priority and
superiority for non-home rule municipality special assessments); § 197.552, Fla.
Stat. (2004) (providing superiority for tax deeds except to municipal liens);
§ 718.116(5)(a), Fla. Stat. (2004) (providing superior lien priority for
condominium assessments); § 713.07(2), Fla. Stat. (2004) (providing lien priority
for construction liens). Additionally, lien priority can be altered by contract.
Likewise, courts have recognized liens with superior priority despite their inferior
filing dates. In Gailey v. Robertson, 98 Fla. 176 (Fla. 1929), this Court found that
a"mortgagee has no greater vested right . . . than the fee simple owner and the
rights of both must yield alike to the sovereign power when exercised to impose
proper and lawful taxes." Id. at 179. The Court accordingly found that the
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mortgage held by Gailey was not prior in dignity to the lien claimed by the city of
Winter Haven, despite its prior recording date. Id. at 177. In First Nationwide
Mortg. Corp. v. Brantley, 851 So. 2d 885 (Fla. 4th DCA 2003), the Fourth District
found that a city lien was not superior to the mortgage because it "was not the
result of municipal services, special assessments or any other type lien covered
under section 23-68 of the City's Code of Ordinances." Id. at 887.
I would find that the Legislature has therefore not expressed a pervasive
scheme the statutes on the issue are scattered and separately enacted. Because
the Legislature has provided several exemptions to the "first in time" rule, the City
may likewise legislate such a rule under its home rule authority. See Wyche v.
State, 619 So. 2d 231, 238 (Fla. 1993) ("Although municipalities and the
legislature may legislate concurrently in areas not expressly preempted to the state,
a municipality's concurrent legislation may not conflict with state law.").
I would likewise find that there is nothing in section 695.11 that expressly
preempts the City of Palm Bay's ordinance. As described in Argent Mortgage Co.
v. Wachovia Bank, N.A., 52 So. 3d 796, 800 (Fla. 5th DCA 2010), section 695.11
is a"mechanism for determining the time at which an instrument was deemed to be
recorded." Because there is no express limitation by section 695.11, The City of
Palm Bay had authority under section 166.021 to enact the ordinance.
Accordingly, I dissent.
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7/9/2013 17.B.
PARIENTE, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
Fifth District- Case No. 5D09-1810
(Brevard County)
James David Stokes, City Attorney, Andrew Patrick Lannon, Palm Bay, Florida,
and Steven L. Brannock, Tampa, Florida,
for Petitioner
Matthew J. Conigliaro and Leah A. Sevi of Carlton Fields, P.A., St. Petersburg,
Florida, Michael K. Winston of Carlton Fields, P.A., West Palm Beach, Florida,
for Respondent
Mark Partick Barnebey, Scott Ellis Rudacille, and Kurt Eugene Lee of Kirk
Pinkerton, P.A., Sarasota, Florida,
for Amicus Curiae City of Palmetto
Jamie Alan Cole and Susan Lanelle Trevarthen of Weiss Serota Helfman Pastoriza
Cole & Boniske, P.L., Fort Lauderdale, Florida, Edward G. Guedes of Weiss
Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, Florida,
for Amicus Curiae Florida League of Cities
Erin Jane O'Leary, Catherine Dwyer Reischmann, William Edward Reischmann,
Usher Larry Brown of Brown, Garganese, Weiss & D'Agresta, P.A., Orlando,
Florida,
for Amicus Curiae City of Casselberry, Florida, City of Palm Coast, Florida,
and City Winter Park, Florida
Heather M. Christman of Christman Law, P.L., Winter Haven, Florida and Stephen
Russell Senn of Peterson & Meyers, P.A., Lakeland, Florida,
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• .
• , . 7/9/2013 17.B.
for Amicus Curiae Peter and Laurie Pepe and Port Malabar Country Club,
Inc.
Alan Beaumont Fields, Tallahassee, Florida and Homer Duvall, III, St. Petersburg,
Florida,
for Amicus Curiae Florida Land Title Association
Virginia Bullerman Townes and Carrie Ann Wozniak of Akerman Senterfitt,
Orlando, Florida,
for Amicus Curiae Florida Bankers Association
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7/9/2013 17.B.
•
26D Wednesday,June 26,2013 A NAPLES DAILY NEWS
•
Legal Legais Le is
NOTICE OF MEETING NOTICE OF MEETING
NOTICE TO CONSIDER ORDINANCE
Notice is hereby given that on Tuesday, July.9, 2013, in the Boardroom, 3rd Floor,
Administration Building, Collier County Government Center, 3299 East Tamiami
Trail, Naples, Florida, the Board of County Commissioners will consider the
enactment of a County Ordinance. The meeting will commence at 9:00 A.M. The
title of the.proposed Ordinance is as follows:
•
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER
COUNTY, FLORIDA, AMENDING ORDINANCE NO.2007-44,AS AMENDED, KNOWN
AS THE CONSOLIDATED CODE ENFORCEMENT ORDINANCE, BY MODIFYING
ARTICLE IV, SECTION 5, AS IT RELATES TO THE SUPERIORITY OF A LIEN ON
PROPERTY IMPOSED BY AN ORDER OF THE CODE ENFORCEMENT BOARD OR
SPECIAL MAGISTRATE; PROVIDING FOR CONFUCT AND SEVERABILITY;PROVIDING
FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES;AND PROVIDING AN
EFFECTIVE DATE.
Copies of the proposed Ordinance are on file with the Clerk to the Board and are
available for inspection. All interested parties are invited to attend and be heard.
NOTE: All persons wishing to speak on any agenda item must register with the
County administrator prior to presentation of the agenda item to be addressed.
Individual speakers will be limited to 3 minutes on any rtem. The selection of an
individual to speak on behalf of an organization or group is encouraged. If
recognized by the Chairman, a spokesperson for a group or organization may be
allotted 10 minutes to speak on an rtem.
Persons wishing to have written or graphic materials included in the Board agenda
packets must submit said material a minimum of-3 weeks prior to the respective
public hearing. In any case, written materials intended to be considered by the
Board shall be submitted to the appropriate County staff a minimum of seven days
prior to the public hearing. All material used in presentations before the Board
will become a permanent part of the record.
Any person who decides to appeal a decision of the Board will need a record of the
proceedings pertaining thereto and therefore, may need to ensure that a verbatim
record of the proceedings is made, which record includes the testimony and
evidence upon which the appeal is based.
If you are a person with a disability who needs any accommodation in order to par-
ticipate in this proceeding, you are entitled, at no cost to you, to the provision of
certain assistance. Please contact the Collier County Facilities Management Depart-
ment, located at 3335 Tamiami Trail East, Suite #101, Building W, Naples, Florida
34112, (239) 252-8380. Assisted listening devices for the hearing impaired are avail-
able in the County Commissioners'Office.
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY,FLORIDA
GEORGIA A.HILLER,ESQ,CHAIRWOMAN
DWIGHT E.BROCK,CLERK
By: Teresa Cannon,Deputy Clerk
(SEAL)
June 26 7013 No.1993267
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