Code inspectors require consent or administrative inspection warrants to enter non-public areas in their capacity as code inspectors. See AGO 2002-27. Constitutional prohibitions on unreasonable searches and seizures require this, subject to various exceptions.
Administrative inspection warrants are governed by sections 933.20 through 933.30, Florida Statutes. Owner-occupied family residences are exempt from the provisions of Florida’s administrative inspection warrant act. § 933.21, Fla. Stat.
The above means that absent consent or an exception, a code inspector cannot enter an owner-occupied family residence.
This exemption, however, is not the end of determining the existence of potential code enforcement violations in owner-occupied family residences. Enter Zillow®, Realtor.com®, Trulia®, and the internet as a means to sell real estate.
Before the appearance of these websites, an open house would be the primary opportunity for a code inspector to see inside of an owner-occupied family residence, and, in that context, the code inspector would not be permitted to do anything other than to expressly obtain consent for entry as a code inspector. After the age of internet real estate, however, photographs of the inside of owner-occupied family residences, and all other residences, for that matter, are publicly posted on the internet with descriptions such as: “recently remodeled,” “brand new a/c,” and “newly renovated kitchen.”
Turning back to the constitutional prohibition on unreasonable search and seizure and its interpretation, a person has “no reasonable expectation of privacy in the content [he or she] posted to the internet that anyone with access to the site could view.” United States v. Lockhart, No. 8:20-cv-1376-SDM-UAM, 2023 U.S. Dist. LEXIS 136283 (M.D. Fla. Aug. 7, 2023) (citing Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (“This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”).
Thus, code inspectors may use internet real estate sites, even when they cannot get a warrant to “see” inside a residence. This potential visibility leads to the following caution:
- Ensure public, internet-posted improvements to kitchens, a/cs, and other items that often require permits, have permits.
The impact of these internet posts can be far-reaching because code enforcement violations are ongoing in nature and thus, a code enforcement case can theoretically begin years after the violation was committed. Many internet real estate websites keep photos and descriptions publicly available after the property is marked as closed, which can lead to the following fact pattern:
- Party A performs an illegal (as in no permits despite required permits) renovation in year 1 to Party A’s residence.
- Party A’s realtor, without consulting with Party A, posts pictures of the renovation as part of the attempt to sell the residence in year 6.
- In the same year, the residence is sold to Party B.
- In year 8, nosey neighbor Party C reports Party B to code enforcement.
- In the same year and in its investigation, code enforcement finds the pictures of unpermitted work, cross-checks it with the lack of a permit on the jurisdiction’s database, and issues a code enforcement notice of violation.
How fault can be attributed, e.g., whether there are non-disclosure issues among other issues, I will leave for later analysis, but what is pertinent for this article is whether Party B’s residence will be subject to a code enforcement lien, should one be entered despite Party B having performed no unpermitted work or inviting a code inspector in, and despite there having been no warrant available to the code inspector.
There are certainly potential evidentiary issues in the above-described fact pattern. Still, it is important to keep in mind that code enforcement proceedings are quasi-judicial, and as stated in the governing statutes: “Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings.” § 162.07(3), Fla. Stat.
As a practice observation, code enforcement boards and magistrates are being provided images from internet real estate websites and considering them in their decisions.
To the Party As of the world: pull the required permits. To the realtors: consider speaking with the Party As to prevent unnecessary surprises. To the Party Bs: check the permits against the internet real estate website posting to see if “brand new a/c” means “code case waiting to happen.” Finally, to the Party Cs: mind your own business unless there is an “imminent threat to public health, safety, or welfare or imminent destruction of habitat or sensitive resources.” § 162.06(1)(b), Fla. Stat.
Originally published in the Collier County Bar Association (CCBA) Adverse Witness magazine, October, 2023: https://online.flippingbook.com/view/391736951/10-11/
About the Author
Zachary W. Lombardo, B.C.S., Local Government Law attorney
Zachary (“Zach”) W. Lombardo is an associate attorney at Woodward, Pires & Lombardo, P.A. He is a Board Certified Specialist in City, County & Local Government Law by The Florida Bar and is the City Attorney for Everglades City.
Zach’s primary focus is helping public and private clients in a wide variety of land use and local government matters, including strategizing both advocacy for as well as opposition to:
- comprehensive plan amendments,
- re-zonings,
- variances,
- conditional uses,
- non-conforming uses, and
- right-of-way permits.
He frequently appears before the Marco Island Planning Board, the Marco Island City Council, the Collier County Planning Commission, the Collier County Hearing Examiner, and the Board of County Commissioners of Collier County.
Beyond land use, Zach helps public and private clients navigate various local government and environmental matters such as:
- public records,
- property tax appeals,
- bid protests,
- public contracts,
- interlocal agreements,
- floodplain regulations,
- code enforcement,
- environmental resource permits,
- sovereignty land leases, and
- litigation related to the above.
Zach represents the firm’s various municipal and special district clients.
He is an experienced litigator in state and federal court both at a trial court level and on appeal. In his business matters and contract drafting, Zach focuses on practical solutions.
Related post: Code Enforcement Inspections in Florida: Know Your Rights