Last month, five Hollywood homeowners thought they were showing their homes to prospective buyers.  Instead of an offer, they received multiple code violations from the city.

In an effort to address residents’ complaints about unauthorized construction work and illegal renovations, Hollywood officials recently justified rolling out some unconventional investigative methods. Properties listed for sale with major renovations that don’t have any record of building permits were their primary targets. To gain access to these suspect properties and examine their construction, City officials presented themselves as prospective buyers.

Florida State Senator and candidate for mayor of Hollywood, Eleanor Sobel came out strong on the issue. She indicted Hollywood’s Code Compliance department with “trampling on the people’s constitutional rights.”

“This reminds me of past citrus canker intruders on private property which resulted in long-term litigation,” said Sobel. “Those who seek to enforce our laws, whether police officers or not, should always identify themselves and state their intentions upon entering someone’s home or private property. Privacy and property rights are paramount and should never be eroded by government employees entering under false pretenses.”

In response, Sobel has asked the Florida Senate Committee on Community Affairs to complete a thorough review of the practice.

“I have also asked the Florida Attorney General’s office to issue an advisory opinion on the legality of this kind of brazen “big brother” behavior by our City government. It is my sincerest hope that these actions will bring an end to this ill-conceived and illegal Code Compliance policy. This kind of governmental overreach will not be tolerated in the City of Hollywood while I am a State Senator.”

Hollywood officials defend the practice; Mayor Bober condemns it

Hollywood Mayor Peter Bober said it never should have happened in the first place, and it won’t happen again, according to a Channel 10 investigative report published August 26, characterizing it as a ‘government intrusion.’

In the five cases investigated, a significant amount of work done proved to be in violation of Florida building code. The code calls for a permit any time a building undergoes serious construction or renovation. Acquiring these permits can be costly and time-consuming, which leads to cutting corners. Unauthorized renovations and construction have become a significant problem, particularly with investors seeking to quickly flip property for profit.

Mayoral candidate Josh Levy cites the cumbersome permitting process as the source of the unorthodox investigations. “I think perhaps they over reached and didn’t need to operate the way they did,” he said. “I believe as a city we need to look at the underlying reasons why residents resort to doing work without permits in the first place. The answer to that is, that we have a very slow and cumbersome permitting process that needs to be made a lot more resident friendly.”

The city’s employee rules state that ‘deliberate dishonesty or deception’ is strictly prohibited. Nonetheless, investigations were given the blessing by the head of code compliance John Chidsey, the city manager as well as the city attorney.

“The City Attorney’s Office researched this investigative method prior to its use. They advised that there was no case law ruling against this practice,” said Raelin Storey, spokesperson for Hollywood. “In fact, they found precedent that arguably verifies the efficacy of this methodology.”  Commissioner Kevin Biederman also backed the city up. “We need to protect the buyers of properties in Hollywood. It’s like a police officer working undercover,” he said.

“It is the City’s job to enforce the Florida Building Code which is in place to protect property and preserve safety,” added Storey.

Conflicting resident reactions

Some residents also defend and applaud the city’s efforts.  “I agree with the practice, said Kimberly Tanner. “Whatever needs to happen to keep things legit and safe. I’m certain if the homeowners had done things to code and with permits they wouldn’t have been cited now would they?”

“This protects the buyers,” commented resident, Tal Mazor commending the city.  “If I’m buying a house I want to know it’s safe, and not worry that some weekend handyman ‘learned’ how to do plumbing and electrical on my house. Bravo to the City of Hollywood.”

Another Hollywood resident, Edsel Dashco Ford advocates for a better solution. “Other cities have set up a certified inspection requiring the seller to prove that the home is fully up to code and permitted. Realtors fought it and later realized that it actually made their jobs easier in the long run,” he said. “The idea is sound and proven unlike the way the city is going about it.”

But mostly, residents strongly oppose. “As a Realtor, it upsets me that other professionals would feel comfortable wasting our time pretending to be buyers,” said Hollywood resident Judy Leon. “It is unnecessary and unethical! There are other, less controversial, ways to motivate homeowners to get appropriate permits.”

Hollywood commissioner and mayoral candidate Patricia Asseff is also uncomfortable the undercover investigations. “The officers need to disclose who they are and what they are doing,” said Asseff.  “No one should go into someone’s home if they are representing the city without disclosure of who they are. That is what I call transparency.”

In a recent poll conducted online by Hollywood Gazette, 84% of residents who responded think the practice is unethical at best.

code_compliance_pie_chart Hollywood officials go undercover to cite code violations, bypassing warrant or consent
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What about the U.S. Constitution?

To many, this is considered a larger, constitutional violation of the multiple constitutional amendments.

“I am up to code and have been inspected for all work at my house, but I do not want you in my home without permission,” insists Hollywood resident Lynne Bower. “Even a landlord has to give notice that they are coming. The City of Hollywood does not have the right to trample on my rights!”

Precedent throughout the country has historically found housing inspectors are subject to the Fourth Amendment in the course of their duties, with powers substantially limited by constitutional principles.

Course materials intended to train housing inspectors in Kansas about search and seizure issues in code enforcement tell a cautionary tale.

“In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. State of Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment’s protections, ” according to the materials citing Camera v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534, 87 S.Ct. 1727 18 L.Ed.2d 930 (1967). Followed in Board of County Commissioners of Johnson County v. Grant, 264 Kan. 58, 954 P.2d 695 (1998). See also See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967).

The Fourth Amendment to the United States Constitution prohibits ‘unreasonable’ searches and seizures. The Fifth Amendment prohibits the government from denying any citizen of ‘life, liberty or property without due process of law.’ The Sixth Amendment guarantees defendants in a criminal case be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. The Fourteenth Amendment prohibits you from denying any citizen of liberty or property without ‘due process of law.’ Essentially meaning you cannot deprive citizens of any rights guaranteed by the Fourth, Fifth or Sixth Amendments.

Although they claim to have put a halt to the deceptive practice, the city’s spokesperson said they’re not opposed to considering it as a tactic in the future.  “We’re not using this technique at this time, but that’s not to say we’ll never use it again,” said Storey in a statement to the Sun-Sentinel on August 28th.

David Volz contributed to this report.