[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

Legal Opinion: GCH-0078

Index: 2.245

Subject: PH Due Process Determination: Florida

September 4, 1992

DUE PROCESS DETERMINATION

for the

STATE OF FLORIDA

TABLE OF CONTENTS

I. Jurisdiction

II\. Elements of Due Process

III\. Overview of Florida Eviction Procedures

IV\. Analysis of Florida Eviction Procedures for Each of the Regulatory

Due Process Elements

A. Action for Possession under section 83.59 of the Florida

Statutes Annotated

B. Summary Procedure for Possession under section 51.011 of the

Florida Statutes Annotated

V. Conclusion

ANALYSIS

I. Jurisdiction: Florida.

II\. Elements of Due Process.

Section 6(k) of the United States Housing Act of l937 (42 U.S.C.

1437d(k), as amended by section 503(a) of the National Affordable
Housing Act

of 1990, Pub. L. 101-625, approved November 28, 1990), provides that:

For any grievance concerning an eviction or termination of tenancy that

involves any criminal activity that threatens the health, safety, or

right to peaceful enjoyment of the premises of other tenants or

employees of the public housing agency or any drug-related criminal

activity on or near such premises, the agency may . . . exclude from its

grievance procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing in court

which the Secretary determines provides the basic elements of due

process . . .

The statutory phrase, \"elements of due process,\" is defined by HUD at
24

CFR Section 966.53(c) as:

. . . an eviction action or a termination of tenancy in a State or local

court in which the following procedural safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for terminating the

tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence presented by the

PHA including the right to confront and cross-examine witnesses

and to present any affirmative legal or equitable defense which

the tenant may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures satisfy this

regulatory definition is called a \"due process determination.\" This
due

process determination is based on HUD\'s analysis of the laws of the
State of

Florida to determine if an action for possession and a summary procedure
under

Florida laws require a hearing with all of the regulatory \"elements of
due

process,\" as defined in Section 966.53(c).

HUD finds that the requirements of Florida law governing both an action

for possession under section 83.59 of the Florida Statutes Annotated,
and a

summary procedure for possession under section 51.011 of the Florida
Statutes

Annotated, include all of the elements of basic due process, as defined
in 24

CFR Section 966.53(c). This conclusion is based upon requirements
contained

in the Florida Constitution, statutes, case law and court rules.

III\. Overview of Florida Eviction Procedures.

In Florida there are two methods for a landlord to recover possession of

real property from a tenant. A landlord may bring either:

\(1\) an action for possession in the county courts pursuant to section
83.59

of the Florida Statutes Annotated, or

\(2\) a summary procedure for possession in the county courts pursuant
to

section 51.011 of the Florida Statutes Annotated.

Both forms of possessory action are subject to provisions of the

\"Florida Residential Landlord and Tenant Act\" (FRLTA) at Chapter 83,
Part II

of the Florida Statutes Annotated (F.S.). (F.S. 83.40 - 83.61).

To regain possession of the leased property by either form of possessory

action, the landlord must send notice of lease termination to the
tenant.

F.S. 83.56(a). If the tenant has not vacated the premises after the

appropriate period, the landlord may commence an action for possession
in the

county court where the premises is located. F.S. 83.59.

Both actions for possession are generally governed by the Florida Rules

of Civil Procedure (FRCP) and the Florida Evidence Code. F.S. 90.102;
FRCP

Rule 1.010. The Florida Rules of Civil Procedure govern summary
proceedings,

except when the section or statute which allows for a summary action
provides

a different procedure. F.S. 51.011.

Summary Procedure

The FRLTA authorizes the use of a summary procedure for possession.

F.S. 83.59(2). The summary procedure for possession is brought under
section

51.011 of the Florida Statutes Annotated.

The summary procedure under F.S. 51.011 appears to be an abbreviated

form of the action for possession under F.S. 82.59. The primary
distinction

is that the summary procedure provides a condensed timetable to expedite
the

eviction. Thus, a summary procedure is the preferred action for a
landlord

seeking the swift eviction of a tenant.

Florida Due Process Clause

Article I, section 9 of the Florida Constitution provides (in language

substantially identical to the due process clause in the Fourteenth
Amendment

of the United States Constitution) that \"no person shall be deprived of
his

life, liberty, or property without due process of law . . . .\" The
Florida

Constitution is the supreme law of the jurisdiction (subject to the
United

States Constitution and federal laws).

IV\. Analysis of Florida Eviction Procedures for Each of the

Regulatory Due Process Elements.

The following discussion will consider separately each element of the

regulation\'s due process definition, and demonstrate that each element
is

satisfied in both the county court action for possession under F.S.
83.59 and

the county court summary procedure for possession under F.S. 51.011.

A. Action for Possession under F.S. 83.59.

1\. Adequate notice to the tenant of the grounds for terminating

the tenancy and for eviction (24 CFR Section 966.53(c)(l)).

Under Florida law, the tenant must comply with lease provisions,

statutory directives and reasonable rules and regulations. F.S.
83.56(1).

Failure to comply with any of these provisions justifies the landlord\'s

termination of the lease agreement. F.S. 83.56(1)(a). The landlord must

deliver a written notice to the tenant describing the noncompliance, and

informing the tenant of the landlord\'s intent to terminate the rental

agreement. F.S. 83.56(a). The notice of lease termination must
substantially

state as follows:

You are advised that your lease is terminated effective immediately.

You shall have 7 days from the delivery of this letter to vacate the

premises. This action is taken because . . . . (cite the

noncompliance) . . . .

F.S. 83.56(1)(a). The notice must be mailed or delivered to the tenant.
F.S.

83.56(4). When the tenant is absent from the premises, a copy of such
notice

must be left at the residence. F.S. 83.56(4). Thus, the tenant is given

notice of the grounds for terminating the tenancy in the notice of lease

termination prior to commencement of the action.

If the rental agreement is terminated and the tenant remains on the

premises, the landlord may proceed with an action for possession. F.S.

83.59(1). Actions for possession under the FRLTA are commenced in the
county

court where the premises are located. The landlord is required to file a

complaint which describes the premises in dispute. F.S. 83.59(2). The

complaint must state the facts that authorize recovery of the premises.
F.S.

83.21, F.S. 83.59(2). Rule 1.110(b) of the Florida Rules of Civil
Procedure

provides that:

\[a\] pleading which sets forth a claim for relief . . . must state a

cause of action and shall contain . . . (2) a short and plain statement

of the ultimate facts showing that the pleader is entitled to relief . .

. .

Service upon the defendant is made by delivering a copy of the complaint

to a party or his attorney. FRCP Rule 1.080(b). In addition, section
48.183

of the Florida Statutes Annotated provides that:

\[in an\] action for possession of residential premises . . . if neither

the tenant nor a person residing therein who is 15 years of age or older

can be found at the usual place of residence of the tenant after at

least two attempts to obtain service . . . summons may be served by

attaching a copy to a conspicuous place on the property described in the

complaint or summons.

The Florida law requires adequate notice to the tenant of the action,

and of the grounds for termination and eviction. The due process clause
of

the Florida Constitution also requires adequate notice. Fla. Const. art.
1,

Section 9.

2\. Right to be represented by counsel (24 CFR Section

966.53(c)(2)).

The defendant-tenant\'s right to be represented by counsel is implied by

various provisions of the Florida Rules of Civil Procedure and by the
laws

governing an action for possession. For example, FRCP Rule 1.080
provides

that when a party is represented by an attorney, service of process
shall be

made upon the attorney. FRCP Rule 1.080. Section 83.47 of the Florida

Statutes Annotated provides that the prevailing party in an action for

possession may recover \"reasonable court costs, including attorney\'s
fees,

from the nonprevailing party.\" F.S. 83.48.

The due process clause of the Florida Constitution guarantees the

defendant-tenant the right to be represented by counsel. Fla. Const.
art. 1,

Section 9.

3\. Opportunity for the tenant to refute the evidence presented

by the PHA, including the right to confront and cross-

examine witnesses (24 CFR Section 966.53(c)(3)).

Proceedings in Florida courts are subject to the Florida Evidence Code.

F.S. 90.102. Generally, all relevant evidence is admissible unless
limited by

law. F.S. 90.402. Relevant evidence may only be excluded if its
probative

value is substantially outweighed on grounds of prejudice, confusion, or

needless presentation of cumulative evidence. F.S. 90.403. The court
must

determine the admissibility of evidence and the qualifications of a
witness.

F.S. 90.105.

Every person is deemed competent to be a witness unless specifically

disqualified by statute. F.S. 90.601. However, a witness is required to
have

personal knowledge of matters which are the subject of testimony and
evidence

must be presented to substantiate this. F.S. 90.604.

The defendant-tenant may refute the credibility of the plaintiff\'s

witness. The credibility of a witness may be impeached by any party.
F.S.

90.608. Evidence of reputation may be used to attack the credibility of
a

witness. F.S. 90.690. Such evidence, however, may only refer to
character

for truthfulness or untruthfulness. F.S. 90.690(1). A witness\'
credibility

may also be attacked by evidence of a prior conviction of a crime which

involved dishonesty or was punishable by death or imprisonment for a
year or

more. F.S. 90.609. A witness\' prior statement is also subject to

examination. F.S. 90.614.

The defendant-tenant is entitled to cross-examine plaintiff\'s
witnesses.

Cross-examination is limited, however, to the subject matter of direct

examination and matters relating to witness credibility. F.S. 90-612.
\"A

fair and full cross-examination of a witness on the subjects opened by
the

direct examination is an absolute right, as distinguished from a
privilege,

and must always be accorded to the person against whom the witness is
called.\"

24 Fla. Jur. 2d, Evidence and Witnesses, Sec. 572. The Florida Rules of
Civil

Procedure provide that unwilling or hostile witnesses may be
interrogated by

leading questions. Also, an adverse party may be called and interrogated
by

leading questions and may contradict or impeach his or her testimony.
FRCP

Rule 1.450.

Florida law, including the due process clause of the Florida

Constitution, guarantees the right to refute evidence and the right to

confront and cross-examine witnesses. Fla. Const. art. 1, Section 9.

4\. Opportunity to present any affirmative legal or equitable

defense which the tenant may have (24 CFR Section

966.53(c)(3)).

The Florida Rules of Civil Procedure provide that the defendant in any

litigation is entitled to state defenses to each claim asserted in the

complaint. FRCP Rule 1.110(c). Neither the Rules of Civil Procedure, nor
the

laws governing an action to recover possession, limit the types of
defenses

which may be raised by the defendant-tenant.

A defendant-tenant, therefore, is permitted to raise any available

equitable or legal defense against the owner\'s action for possession.

5\. A decision on the merits (24 CFR Section 966.53(c)(4)).

A decision on the merits, based on the law and facts, is required by the

due process clause of the Florida Constitution. Fla. Const. art. 1,
Section

9\.

B. Summary Procedure for Possession under F.S. 51.011.

1\. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction (24 CFR Section

966.53(c)(l)).

Under Florida law, the tenant must comply with lease provisions,

statutory directives and reasonable rules and regulations. F.S.
83.56(1).

Failure to comply with any of these provisions justifies the landlord\'s

termination of the lease agreement. F.S. 83.56(1)(a). The landlord must

deliver a written notice to the tenant describing the noncompliance and

informing the tenant of the landlord\'s intent to terminate the rental

agreement. F.S. 83.56(a). The notice of lease termination must
substantially

state as follows:

You are advised that your lease is terminated effective immediately.

You shall have 7 days from the delivery of this letter to vacate the

premises. This action is taken because . . . . (cite the

noncompliance) . . . .

F.S. 83.56(1)(a). The notice must be mailed or delivered to the tenant.
F.S.

83.56(4). When the tenant is absent from the premises, a copy of such
notice

must be left at the residence. F.S. 83.56(4). Thus, the tenant is given

notice of the grounds for terminating the tenancy in the notice of lease

termination prior to commencement of the action.

If the rental agreement is terminated and the tenant remains on the

premises, the landlord may proceed with an action for possession. F.S.

83.59(1). Actions for possession under the FRLTA are commenced in the

county court where the premises are located. Section 83.59 provides that
the

\"landlord is entitled to the summary procedure provided in section

51.011 . . . .\"

The landlord is required to file a complaint which describes the

premises in dispute. F.S. 83.59(2). The complaint must state the facts
that

authorize recovery. F.S. 83.21, F.S. 83.59(2). Rule 1.110(b) of the
Florida

Rules of Civil Procedure provides that:

\[a\] pleading which sets forth a claim for relief . . . must state a

cause of action and shall contain . . . (2) a short and plain statement

of the ultimate facts showing that the pleader is entitled to relief . .

. .

Service upon the defendant is made by delivering a copy to a party or

his attorney. FRCP Rule 1.080(b). In addition, section 48.183 of the
Florida

Statutes Annotated provides that:

\[in an\] action for possession of residential premises . . . if neither

the tenant nor a person residing therein who is 15 years of age or older

can be found at the usual place of residence of the tenant after at

least two attempts to obtain service . . . summons may be served by

attaching a copy to a conspicuous place on the property described in the

complaint or summons.

The Florida law requires adequate notice to the tenant of the action,

and of the grounds for termination and eviction. The due process clause
of

the Florida Constitution also requires adequate notice. Fla. Const. art.
1,

Section 9.

2\. Right to be represented by counsel (24 CFR 966.53(c)(2)).

The defendant-tenant\'s right to be represented by counsel is implied by

various provisions of the Florida Rules of Civil Procedure and by laws

governing an action for possession. For example, FRCP Rule 1.080
provides

that when a party is represented by an attorney, service of process
shall be

made upon the attorney. FRCP Rule 1.080. Section 83.47 of the Florida

Statutes Annotated provides that the prevailing party in an action for

possession may recover \"reasonable court costs, including attorney\'s
fees,

from the nonprevailing party.\" F.S. 83.48.

The due process clause of the Florida Constitution guarantees the

defendant-tenant the right to be represented by counsel. Fla. Const.
art.

1, Section 9.

3\. Opportunity for the tenant to refute the evidence presented

by the PHA, including the right to confront and cross-

examine witnesses (24 CFR Section 966.53(c)(3)).

Proceedings in Florida courts are subject to the Florida Evidence Code.

F.S. 90.102. Generally, all relevant evidence is admissible unless
limited by

law. F.S. 90.402. Relevant evidence may only be excluded if its
probative

value is substantially outweighed on grounds of prejudice, confusion, or

needless presentation of cumulative evidence. F.S. 90.403. The court
must

determine the admissibility of evidence and the qualifications of a
witness.

F.S. 90.105.

Every person is deemed competent to be a witness unless specifically

disqualified by statute. F.S. 90.601. However, a witness is required to
have

personal knowledge of matters which are the subject of testimony and
evidence

must be presented to substantiate this. F.S. 90.604.

The defendant-tenant may refute the credibility of the plaintiff\'s

witness. The credibility of a witness may be impeached by any party.
F.S.

90.608. Evidence in the form of reputation may be used to attack the

credibility of a witness. F.S. 90.690. Such evidence, however, may only
refer

to character for truthfulness or untruthfulness. F.S. 90.690(1). A
witness\'

credibility may also be attacked by evidence of a prior conviction of a
crime

which involved dishonesty or was punishable by death or imprisonment for
a

year or more. F.S. 90.609. A witness\' prior statement is also subject
to

examination. F.S. 90.614.

The defendant-tenant is entitled to cross-examine plaintiff\'s
witnesses.

Cross-examination is limited, however, to the subject matter of direct

examination and matters relating to witness credibility. F.S. 90-612.
\"A

fair and full cross-examination of a witness on the subjects opened by
the

direct examination is an absolute right, as distinguished from a
privilege,

and must always be accorded to the person against whom the witness is
called.\"

24 Fla. Jur. 2d Evidence and Witnesses, Sec. 572. The Florida Rules of
Civil

Procedure provide that unwilling or hostile witnesses may be
interrogated by

leading questions. Also, an adverse party may be called and interrogated
by

leading questions, and may contradict or impeach his or her testimony.
FRCP

Rule 1.450.

Florida law, including the due process clause of the Florida

Constitution, guarantees the right to refute evidence and the right to

confront and cross-examine witnesses. Fla. Const. art. 1, Section 9.

4\. Opportunity to present any affirmative legal or equitable

defense which the tenant may have (24 CFR Section

966.53(c)(3)).

The Florida Rules of Civil Procedure provide that the defendant in any

litigation is entitled to state defenses to each claim asserted in the

complaint. FRCP Rule 1.110(c). The summary procedure requires that
\"\[a\]ll

defenses of law or fact shall be contained in defendant\'s answer. . .
.\" F.S.

51.011(i). Neither the Rules of Civil Procedure, nor the laws governing

summary procedure, limit the types of defenses which may be raised in a

summary procedure to recover possession.

A defendant-tenant, therefore, is permitted to raise any available

equitable or legal defense against the owner\'s action for possession.

5\. A decision on the merits (24 CFR Section 966.53(c)(4)).

A decision on the merits, based on the law and facts, is required by the

due process clause of the Florida Constitution. Fla. Const. art. 1,
Section

9\.

V. Conclusion.

Florida law governing both an action for possession in the county courts

under F.S. 83.59, and a summary procedure for possession in the county
courts

under F.S. 51.011, requires that the tenant have the opportunity for a
pre-

eviction hearing in court which provides the basic elements of due
process as

defined in 24 CFR Section 966.53(c) of the HUD regulations.

By virtue of this due process determination by HUD under section 6(k) of

the U.S. Housing Act of l937, a PHA in Florida may evict a public
housing

tenant pursuant to a county court decision in either an action for
possession

under F.S. 83.59, or a summary procedure for possession under F.S.
51.011, for

any grievance involving any criminal activity that threatens the health,

safety, or right to peaceful enjoyment of the premises of other tenants
or

employees of the PHA or any drug-related criminal activity on or near
such

premises. The PHA is not required to first afford the tenant the
opportunity

for an administrative hearing on the eviction.