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Law lets code officials sue critics

The provision may "kill free speech or squelch complaints," a lobbyist for the American Civil Liberties Union says.

On April 28, state Rep. Mike Fasano claimed a victory for the little guy.

That day, Fasano got final approval of his bill to stop the government from suing its citizens. To Fasano, a New Port Richey Republican, "the person with humble means" should be able to protest government action without worrying about "lawsuits lurking in the shadows."

The little guy's safety survived for just two weeks.

On the last day of the session, Fasano and his peers unanimously voted to let county building code administrators sue anybody who complains about them.

Fasano said he didn't know what he and his colleagues had approved. Drafted by the Building Officials Association of Florida, the measure bounced from House to Senate and back again, before being tacked onto another bill that sprinted through the Legislature in the havoc of the session's last hours.

"Are we preventing a citizen, silencing a citizen from filing a complaint because of fear of retaliation?" Fasano asked. "If what you're telling me is correct, this is not what should be done."

Larry Spalding, lobbyist for the American Civil Liberties Union, says such measures are designed to "kill free speech and squelch complaints."

"I don't like these things that are used as weapons against people," he said, "The intent really is to intimidate people by statute."

The folks who drafted the legislation, called the "building code enforcement officials' bill of rights," say it should curb overzealous state regulators and residents with a vendetta.

"We've suffered what we believe are unnecessary complaints," explains Robert McCormick, the association's executive director. "This is directed at those individuals or entities who filed claims (against building officials) in retribution. I can't give a specific instance, but I know it happens."

McCormick said the Department of Business and Professional Regulation sometimes resorts to trickery when investigating complaints.

"A DBPR regulator will come into a building official's office and throw his arm around you and be your good buddy," he said. "So you'll tell them something in kind of a relaxed atmosphere that ends up being in the report as a statement. You're quoted as being part of the investigation."

In addition to the right to sue their critics, the measure also gives code administrators protections similar to those given law-enforcement officers.

The measure says that when a complaint against a county code enforcer is filed with the Department of Business and Professional Regulation, the agency must:

Notify the county official within 10 days.

Question him or her at a convenient time and place.

Tape record interviews upon request and provide transcripts within three days.

Not use offensive language or promise rewards to get the building official to answer questions.

Bring the complaint to a probable cause panel within 180 days, whether the investigation is completed or not.

If any of the time limits aren't met, the complaint is thrown out and cannot be refiled.

McCormick acknowledged that tossing out complaints because of missed deadlines might penalize the resident filing the complaint.

"Does the public suffer? I don't know. But do building department employees have any right to fair treatment? Yes," he said.

McCormick said building code administrators could not sit for exams to upgrade their licenses while state agency investigations of them were pending, which could cost them money and career advancement.

The investigative provisions and deadlines don't apply to any other industry regulated by the agency, including architects, accountants, real estate brokers, building contractors and the like.

"The DBPR investigates embalmers and barbers and others. But I don't know of a barber's livelihood and reputation being held hostage by an infraction they might have committed," he said.

McCormick said because the agency's investigative process was so slow, building officials sometimes waited for two years or more while the complaint is resolved.

"That's not speedy enough," he said.

Why such delays?

Turnover in the agency's legal staff, he said. The turnover was created when Cynthia Henderson ousted five agency lawyers or investigators soon after Gov. Jeb Bush appointed her the department's new secretary. "That represented delays while the new prosecuting attorneys tried to get up to speed," McCormick said.

Rep. Jeff Miller, R-Milton, who co-sponsored the measure, said his intent was not to give the building officials the ability to launch lawsuits.

Rather, he said, the intent was to "give criteria to be followed in order for building officials to get due process."

Judd Bagley, a spokesman for the Department of Business and Professional Regulation, said his agency modified the original proposal "to make it acceptable."

"We believe what was approved by the Legislature is a good amendment, a good piece of legislation. It adds guidelines and time frames under which an investigation should be carried out," he said. "It's doing nothing more than putting into legislative form the goals the department has had for some time."

Fasano, who said he only "vaguely remembers" the measure, wants the provision regarding lawsuits removed.

"It's very sad if we passed something like that," he said. "This is one of the reasons we've got to slow down the legislative process in those last days of the session. . . . You get amendments put on like this, and many members are not familiar with the impact of them.

"It's a shame the session is over. Next year, we need to change this immediately."