MIAMI MIRROR TRUE REFLECTIONS

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VOLUNTARY COMPLIANCE
When violations go unpunished
September 3, 2012 By David Arthur Walters THE MIAMI MIRROR Chapter 489 of the Florida Statues governing contracting in the state provides that, The registration or certification number of each contractor shall appear in each offer of services, business proposal, bid, contract, or advertisement, regardless of medium, as defined by board rule, used by that contractor or business organization in the practice of contracting. Chapter 481 has a similar provision for architects and interior designers. Anyone who is aware of this law and who perambulates Miami Beach will notice quite a few signs advertising contractors that visibly violate the law. If the law is not enforced, why would they abide by it, or any other law for that matter?

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Now the failure of a contractor to put a license number on a sign is certainly a minor violation, but the Broken Windows theory of law enforcement seems to prove that the toleration of small infractions serves as a welcome mat for the commission of major violations. The mere absence of a license number on the sign of a major city contractor could serve as a sign of laxity or selective enforcement. Indeed, the major complaint of Miami Beach residents, many of whom have not voiced their complaints for fear of retaliation from city officials, is that laws, and especially quality-of-life ordinances, are not being enforced or are being enforced in a prejudicial manner. Selective enforcement had become such a volatile issue that the possibility caused a code compliance administrator attending a July 2010 neighborhood meeting at the Las Olas Caf in South Beach to blurt out, We do not have selective enforcement in South Beach! Public officials had gathered there for a neighborhood walkaround, and were conferring about the great job they had done in the neighborhood. The only member of the public, who attended because he was invited to it as sort of practical joke, was shushed by an assistant city manager when he attempted to point out that quality of life ordinances were not being enforced in the hood, that the neighborhood was overrun by criminals, and that the Muslim owners of a nearby business were being discriminated against by a compliance officer. The assistant city manager adjourned the meeting and cancelled the walkaround. A subsequent investigation of the alleged selective enforcement discovered that the citation of the restaurant was not discriminatory but was the outcome of random enforcement. Numerous photographs of Washington Avenue sign violations were sent to Compliance, but the reporter was advised that nothing could be done without a formal complaint being lodged, which was really not the intention of the reporter. Most residents are not aware of the local sign ordinances and the considerable expense merchants suffer to have signs that comply in the first place. As for contractors, it costs little or nothing to put their license number on a sign, which is mandated to protect the public. One would think they would make an effort to do so in order to promote their businesses: Beware of Unlicensed Contractors Our License Number is GCA999999. But violations are apparently legion:

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If a major contractor for the city is unaware of the Chapter 489 requirement for signs, one could hardly expect smaller fry to know anything about it. But that gives cause to wonder, What other laws are they unaware of? Plenty if they go unenforced until some fool complains. Chapter 489 provides that counties and municipalities may elect to enforce certain provisions of the state law, but putting license numbers on signs does not appear to be one of them, so it would be unfair to pin lax enforcement on the city compliance officers although that is where the responsibility would logically reside. We called Miami Beach Compliance Supervisor George Castell about a contractors sign with no license number, stretched across a fence on a vacant property. He was uncertain about who enforces the license number provision of the state law, but the sign was taken down in a jiffy, apparently because it had no local permit. We decided to get information from the state agency that enforces the regulations, Floridas Department of Business and Professional Regulation. First of all, we asked about the G3C signs we were seeing on construction sites all over the beach. Business must be booming for that contractor, which is a good sign for the beach. And we wondered whether a contractors No Trespassing and Hard Hat Area warning signs could be construed as advertisements.

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We asked if the law applies to the No Trespassing sign DBPR spokesperson Beth Frady responded on July 12 with, Construction companies are required to provide their license number on advertisements, and the signs you referenced which appear near jobs construction companies are currently performing are considered a form of advertisement. If you would like, please feel free to send us the names of the companies and the locations where you allege the companies have not listed their license number and our Division of Regulation would be more than happy to check on it for you. Thank you, our journalist-at-large replied. My role is not to complain about code violations. I am examining your agency's enforcement of the code. In respect to the plethora of advertisements absent license numbers, please advise if the provision is enforced without complaints being made, and exactly who has the authority to enforce i.e. to issue citations. Do you have inspectors driving and walking around looking for violations in Miami Beach? How many? I see this sort of violating every day just walking around, and wonder if it is indicative of lax state enforcement in general (unless someone complains). I am thinking if the task were delegated to the local code enforcement officers, who patrol regularly, enforcement would be improved. Per Florida Statute Chapter 455.225 (1)(A) the Department, specifically the Division of Regulation, is charged with investigating any complaint that is filed if the complaint is in writing, signed by the complainant and legally sufficient. Based off of this statute, our Division of Regulation acts primarily off of complaints submitted to the Department. We do have jurisdiction to initiate a case if we have reason to believe a licensee is in violation of the statute or respective practice act, but to that end, we would either need to witness the violation or receive information indicating an alleged violation. The Division of Regulation has 5 investigators and 2 inspectors who are not sworn law enforcement located in our Miami District office. Since enforcement of the sign ordinance did not seem to be within the purview of Miami Beach code compliance officers, and since state investigators are few in number, we inquired into the
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possibility of bounty hunting. We were thinking of an aspiring paparazzi whose photographs of a celebrity were stolen. He had to pawn his camera and needed to get it out of hock. And there had been some interest expressed around town in forming a limited liability company called Dirty Rats LLC to engage in whistle blowing and confidential information services for a percentage of the take, in direct competition with a growing number of law firms specializing in that industry under euphemistic nomenclature. Is there a fine for not having the number on the sign? If so, how much is it? And if one contractor puts up say 22 signs, would there be a fine for each one? If so, would the state be willing to pay a bounty to a professional photographer for taking the pictures and signing affidavits attesting to location et cetera? To my knowledge, the agency does not contract with bounty hunters. Our general department policy is to prioritize compliance and to engage in strong but fair enforcement when necessary. In these situations, our focus would be compliance rather than punitive enforcement measures. Licensees would likely be issued notices or receive verbal warnings to come into compliance. We asked Ms. Brady to apprise us of exactly what the parameters are for necessary." That is, when it is necessary to take punitive action instead of otherwise encouraging compliance? Enforcement is determined on a case-by-case basis, she said. Then enforcement is apparently discretionary and arbitrary, i.e. based on the prejudices, biases, and intuition of officials who decide such matters. We often hear complaints about the unjust prosecutorial discretion or selective and prejudicial enforcement in our society. Liberality for the sake of freedom is frequently offered as justification. But compliance will suffer without punitive justice. After all, everybody is supposed to be punished for breaking a law. Otherwise it is not a law. We might ask the Internal Revenue Service how many people would actually comply with the tax laws if compliance were voluntary as once advertised, or if haphazardly enforced. Compliance without determinate punishment behind it seems to be the modus operandi in Florida, and especially so the farther south one goes in the Sunshine State. We have heard the phrase mouthed by several enforcement agencies. We became familiar with it during our investigation of an unlicensed general contractor, who borrows license numbers to put on permits when he bothers to get a permit, and practices getting ahead of the job according to the motto Everybody Does It, a practice that can save a lot of money on permit fees if enforcement does not catch up with the violations. Apparently the volume of contractors in proportion to enforcement staff is such that a virtual honor system exists unless someone actually complains. And when honest inspectors catch up, only a small fine is imposed. The big fines are often whittled down ninety percent, or even to nothing. Almost everybody does it because they can get away with it, and to such an extent that violating the law becomes the law of the land. Putting a license number on a sign seems like a trivial requirement. But give people a profitable inch and they will take a mile. And why even bother to read legal provisions that are not enforced? Whoever complains is considered an enemy of the

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state, an outlaw who should be punished instead of the people who are breaking the letter of the law.

Deposition at Rack at Tower of London

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