HomeMy Public PortalAbout1773-Special Magistrate for Code EnforcementOrdinance 1773
AN ORDINANCE OF THE CITY OF CRESTVIEW, FLORIDA, AMENDING
AND REPLACING DIVISION-5-CODE ENFORCEMENT BOARD, IN
CHAPTER-2-ADMINISTRATION, ARTICLE -III -BOARDS COMMITTEES
AND COMMISSIONS, IN THE CITY OF CRESTVIEW CODE OF
ORDINANCES WITH DIVISION-5- SPECIAL MAGISTRATES;
PROVIDING FOR AUTHORITY; PROVIDING FOR ESTABLISHMENT OF
SPECIAL MAGISTRATES TO CONDUCT ENFORCEMENT
HEARINGS; PROVIDING FOR APPOINTMENT OF SPECIAL
MAGISTRATES;PROVIDING FOR QUALIFICATIONS OF
SPECIAL MAGISTRATES; PROVIDING FOR POWERS OF
SPECIAL MAGISTRATES; PROVIDING FOR PROCEDURES FOR
ENFORCEMENT HEARINGS; PROVIDING FOR NOTICE AND
APPEALS OF SPECIAL MAGISTRATE HEARINGS; PROVIDING FOR
SEVERABILITY; PROVIDING FOR SCRIVENER'S ERRORS;
PROVIDING FOR LIBERAL INTERPRETATION; PROVIDING
FOR REPEAL OF CONFLICTING CODES AND ORDINANCES; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Crestview currently provides for a code enforcement board in the City of
Crestview Code of Ordinances; and
WHEREAS, Chapter 162, Part I, Florida Statutes, authorizes counties and municipalities, by Ordinance,
to create administrative boards with authority to impose administrative fines and other noncriminal
penalties to enforce any codes and ordinances in force in counties and municipalities, where a pending or
repeated violation continues to exist; and hearings and assess fines against violators of the respective county
or municipal codes and ordinances; and
WHEREAS, Subsection 162.03(2), Florida Statutes, authorizes counties and municipalities, by Ordinance,
to adopt an alternate code enforcement system that gives code enforcement boards or special magistrates
designated by the local governing body, or both, the authority to hold hearings and assess fines against
violators of the respective county or municipal codes and ordinances; and
WHEREAS, designating special magistrates to conduct code enforcement hearings provides for a more
straightforward, convenient, and cost-effective approach to conducting such hearings; and
WHEREAS, Special magistrates have been determined by the City of Crestview to be capable of rendering
decisions fairly and impartially; and
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WHEREAS, the City finds it necessary to provide for notice and appeal procedures to ensure the fairness
and impartiality of code enforcement hearings; and
WHEREAS, the residents of the City of Crestview must abide by City ordinances and benefit from other
resident's abiding by such ordinances; and
WHEREAS, the enforcement of ordinances provides benefits to public health, comfort, convenience,
safety, welfare and prosperity of the residents of the City of Crestview; and
WHEREAS, as a. matter of legislative determination and public policy, the City Council finds it in the
public interest for the provisions, prohibitions, and penalties hereinafter contained and enacted by Florida
Statutes Chapter 162.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF CRESTVIEW, FLORIDA:
SECTION 1 - AUTHORITY. The authority for enactment of this ordinance is F.S.Ch. § 162.
SECTION 2 - FINDING OF FACTS. The preceding, whereas clauses are hereby adopted as findings of
fact.
SECTION 3 — AMENDMENT OF DIVISION 5 OF ARTICLE HI WITHIN CHAPTER 2, CODE OF
ORDINANCES Sections 2-111 through 2-115 of Division 5 of Article III within Chapter 2 of the City of
Crestview Code of Ordinances are repealed in their entirety and replaced with the following sections:
Sec. 2-111 - Purpose.
The purpose of this division is to create the position of special magistrate with authority to impose
administrative fines and other noncriminal penalties to promote, protect, and improve the health, safety
morals, and welfare of the city and to provide an equitable, expeditious, effective and an inexpensive
method of enforcing City codes and ordinances where a pending or repeated violation exists or continues
to exist. This part of this chapter has been enacted pursuant to the authority of F.S. ch. 162, and other
applicable law.
Sec. 2-112 -Definitions.
The following terms shall have the meanings set forth in this division unless the context clearly indicates
otherwise:
City Attorney means the legal counselor or advisor to the City as appointed from time to time by the
City Council, who shall be legal counsel to the code enforcement officer ("CEO") and shall advise the
CEO accordingly concerning the officer's duties, powers, jurisdiction, and authority. The City
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Attorney shall not advise the CEO and the special magistrate simultaneously.
City Council means the elected governing and legislative body of the City.
City Manager means the person appointed by the City Council to direct the administrative and executive
operations of the City.
Code Enforcement Officer means any authorized agent or employee of the City whose duty it is to
enforce codes and ordinances enacted by the City, and who has received appropriate training as
determined by the City. This shall include, but not be limited to, code inspectors, including law
enforcement officers and municipal fire safety inspectors as defined in F.S. ch. 633. Designation of
a code enforcement officer and appropriate training for such officer shall be determined by the City
Manager.
Special magistrate means a special magistrate appointed under this Chapter.
Sec. 2-113 — Creation and Appointment of special magistrates; Jurisdiction; Powers.
(1) Pursuant to F.S. ch. 162, there is hereby created the position of special magistrate. The City
Manager shall appoint at least one special magistrate to exercise the authority and powers set forth
in this division. The City Manager may appoint up to three (3) special magistrates. Appointments
shall be made based on experience or interest in code enforcement, and subject to the following
requirements:
a. A special magistrate must be an attorney and a member in good standing with the Florida
Bar;
b. A special magistrate shall possess knowledge and experience in local government law,
judicial and administrative procedure, and rules of evidence.
c. A special magistrate shall not be a City employee;
d. A special magistrate shall serve a term of two (2) years, and may be reappointed for
succeeding terms; and
The City Manager may suspend or remove a special magistrate at any time, with or
without cause, based on the needs of the City.
(2) A special magistrate shall have jurisdiction to hear and decide cases in which violations are
alleged of any provisions of the City code ordinances and state statutes authorizing hearings by
special magistrates, except as specifically excluded herein.
(3) Special magistrates are vested with all powers provided in Chapter 162, Florida Statutes and with
the following specific powers, which shall not be construed as a limitation on available powers:
a. Control proceedings before the special magistrate.
b. Impose sanctions necessary to maintain dignity of the proceedings and to stop any
activity which impedes or obstructs the administration of justice;
c. Subpoena alleged violators and witnesses
d. Subpoena evidence•
e. Administer and take testimony under oath;
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f. Issue orders having the force of law commanding whatever steps are necessary to bring a
violation into compliance; and
g. Make findings of fact based on the evidence in the record and state conclusions of law.
A special magistrate may request to have independent legal counsel to advise him or her concerning the
duties, powers, jurisdiction, and authority of the office. The City Manager, with consent of the City
Council, may appoint independent legal counsel to advise the special magistrate.
Sec. 2-114 - Enforcement Procedure.
(1) It shall be the duty of the code enforcement officer to initiate enforcement proceedings of the
various codes.
(2) Except as provided in subsections (3) and (4), if a violation of the codes is found, the code
enforcement officer shall notify the violator and give him or her a reasonable time to correct the
violation. Should the violation continue beyond the time specified for correction, the code
enforcement officer shall notify a special magistrate and request a hearing. The special
magistrate through clerical staff provided by the City shall schedule a hearing and written
notice of such hearing shall be hand delivered or mailed to the violated as provided in s. 162.12 of
the Florida Statutes. At the option of the special magistrate, notice may additionally be served by
publication or posting as provided in s. 162.12 of the Florida Statutes. If the violation is corrected
and then recurs or if the violation is not corrected by the time specified for correction by the code
enforcement officer, the case may be presented to the special magistrate even if the violation has
been corrected prior to the hearing, and the notice shall so state.
(3)
If a repeat violation is found, the code enforcement officer shall notify the violator but is not
required to give the violator a reasonable time to correct the violation. The code enforcement
officer, upon notifying the violator of a repeat violation, shall notify a special magistrate and
request a hearing. The special magistrate, through clerical staff provided by the City, shall
schedule a hearing and shall provide notice pursuant to s. 162.12 of the Florida Statutes. The case
may be presented to the special magistrate even if the repeat violation has been corrected prior to
the hearing, and the notice shall so state. If the repeat violation has been corrected, the special
magistrate retains the right to schedule a hearing to determine costs and impose the payment of
reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive
his or her rights to this hearing and pay said costs as determined by the special magistrate.
(4) If the code enforcement officer has reason to believe a violation or the condition causing the
violation presents a serious threat to the public health, safety, and welfare or if the violation is
irreparable or irreversible in nature, the code enforcement officer shall make a reasonable effort
to notify the violator and may immediately notify the special magistrate and request a hearing.
(5)
If the owner of property that is subject to an enforcement proceeding before an special magistrate
or court transfers ownership of such property between the time the initial pleading was served and
the time of the hearing, such owner shall:
a. Disclose, in writing, the existence and the nature of the proceeding to the prospective
transferee.
b. Deliver to the prospective transferee a copy of the pleadings, notices, and other materials
relating to the code enforcement proceeding received by the transferor.
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c. Disclose, in writing, to the prospective transferee that the new owner will be responsible
for compliance with the applicable code and with orders issued in the code enforcement
proceeding.
d. File a notice with the code enforcement officer of the transfer of the property, with the
identity and address of the new owner and copies of the disclosures made to the new
owner, within 5 days after the date of the transfer.
A failure to make the disclosures described in paragraphs (a), (b), and (c) before the transfer creates a
rebuttable presumption of fraud. If the property is transferred before the hearing, the proceeding shall not
be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation
before the hearing is held.
(6) In addition to the enforcement procedures set forth herein, the "Supplemental County or
Municipal Code or Ordinance Enforcement Procedures" set forth in F.S. ch. 162, pt. II, and F.S.
125.69, are hereby incorporated herein by reference.
Sec. 2-115 - Conduct of Hearing.
(1) Upon request of a code enforcement officer, or at such other times as may be necessary, the
special magistrate may call a hearing. Minutes shall be kept by City clerical staff of all hearings
conducted by a special magistrate, and all hearings and proceedings shall be open to the public.
The City shall provide clerical and administrative personnel as may be reasonably required by a
special magistrate for the proper performance of his or her duties.
(2) Each case before a special magistrate shall be presented by the code enforcement officer or by a
member of the administrative staff of the City. If the City prevails in prosecuting a case before the
special magistrate, it shall be entitled to recover all costs incurred in prosecuting the case before
the special magistrate and such costs may be included in the lien authorized under s. 162.09(3) of
the Florida Statutes.
(3) A special magistrate shall proceed to hear the cases on the agenda for that day. All testimony
shall be under oath and shall be recorded. The special magistrate shall take testimony from the
code enforcement officer and alleged violator. Formal rules of evidence shall not apply, but
fundamental due process shall be observed and shall govern the proceedings.
(4) At the conclusion of the hearing, the special magistrate shall issue findings of fact, based on
evidence of record and conclusions of law, and shall issue an order affording the proper relief
consistent with powers granted to the special magistrate in this Chapter. The order may include a
notice that it must be complied with by a specified date and that a fine may be imposed and,
under the conditions specified in s. 162.09(1) of the Florida Statutes, the cost of repairs may be
included along with the fine if the order is not complied with by said date. A certified copy of
such order may be recorded in the public records of the county and shall constitute notice to any
subsequent purchasers, successors in interest, or assigns if the violation concerns real property,
and the findings therein shall be binding upon the violator and if the violation concerns real
property, any subsequent purchasers, successors in interest, or assigns. If an order is recorded in
the public records and the order is complied with by the date specified in the order the special
magistrate shall issue an order acknowledging compliance that shall be recorded in the public
records. A hearing is not required to issue such an order acknowledging compliance.
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Sec. 2-116-Administrative Fines & Penalties; Costs of Repair; Liens.
(1)
A special magistrate, upon notification by a code enforcement officer that an order of the special
magistrate has not been complied with by the set time or upon finding that a repeat violation has
been committed may order the violator to pay a fine in an amount specified in this section for
each day the violation continues past the date set by the special magistrate for compliance or, in
the case of a repeat violation, for each day the repeat violation continues, beginning with the date
the repeat violation is found to have occurred by the code enforcement officer. In addition, if the
violation is a violation described in s. 162.06(4), the special magistrate shall notify the City
Manager, which may make all reasonable repairs which are required to bring the property into
compliance and charge the violator with the reasonable cost of the repairs along with the fine
imposed pursuant to this section. Making such repairs does not create a continuing obligation on
the part of the City to make further repairs or to maintain the property and does not create any
liability against the City for any damages to the property if such repairs were completed in good
faith. If a finding of a violation or a repeat violation has been made as provided in this part, a
hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and
hearing, a special magistrate finds a violation to be irreparable or irreversible in nature, it may
order the violator to pay a fine as specified in paragraph (2)(a).
(2) (a) A fine imposed pursuant to this section shall not exceed $250 per day for a first violation
and shall not exceed $500 per day for a repeat violation, and, in addition, may include all costs of
repairs pursuant to subsection:(1). However, if a special magistrate finds the violation to be
irreparable or irreversible in nature, he or she may impose a fine not to exceed $5,000 per
violation.
(b) In determining the amount of the fine, if any, the special magistrate shall consider the
following factors:
i. The gravity of the violation.
ii. Any actions taken by the violator to correct the violation- and
iii. Any previous violations committed by the violator.
(c) A special magistrate may reduce a fine imposed pursuant to this section.
(3) A certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the
public records and thereafter shall constitute a lien against the land on which the violation exists
and upon any other real or personal property owned by the violator. Upon petition to the circuit
court, such order shall be enforceable in the same manner as a court judgment by the sheriffs of
this state, including execution and levy against the personal property of the violator, but such
order shall not be deemed to be a court judgment except for enforcement purposes. A fine
imposed pursuant to this part shall continue to accrue until the violator comes into compliance or
until judgment is rendered in a suit filed pursuant to this section, whichever occurs first. A lien
arising from a fine imposed pursuant to this section runs in favor of the City, which may execute
a satisfaction or release of lien entered pursuant to this section. After 3 months from the filing of
any such lien which remains unpaid, a special magistrate may authorize the City Attorney to
foreclose on the lien or to sue to recover a money judgment for the amount of the lien plus
accrued interest. No lien created pursuant to the provisions of this part may be foreclosed on real
property which is a homestead under s. 4, Art. X of the State Constitution. The money judgment
provisions of this section shall not apply to real property or personal property which is covered
under s. 4(a), Art. X of the State Constitution.
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(4) Actions for money judgments under this Division may be pursued only on fines or penalties
levied after October 1, 2000.
(5) The special magistrate shall have jurisdiction to assess a reasonable administrative fee to recoup
the actual costs of notice, preparation, and presentation of alleged violations.
Sec. 2-117 - Appeals.
An aggrieved party may appeal a final administrative order of a special magistrate to the circuit court as
provided in Section 162.11 of the Florida Statutes.
Sec. 2-118 - Notices.
All notices required by this part must be provided to the alleged violator using any method authorized by
Section 162.12 of the Florida Statutes.
SECTION 4 — SEVERABILITY. If any word, phrase, sentence, paragraph or provision of this ordinance
or the application thereof to any person or circumstance is held invalid or unconstitutional, such finding
shall not affect other provisions or applications of this ordinance which can be given effect without the
invalid or unconstitutional provision or application, and to this end the provisions of this ordinance are
declared severable.
SECTION 5 — SCRIVENER'S ERRORS. The correction of typographical errors which do not affect the
intent of this Ordinance may be authorized by the city manager or designee, without public hearing, by
filing a corrected or re -codified copy with the City Clerk.
SECTION 6 — ORDINANCE TO BE LIBERALLY CONSTRUED. This Ordinance shall be liberally
construed in order to effectively carry out the purposes hereof which are deemed not to adversely affect
public health, safety, or welfare.
SECTION 7 — REPEAL OF CONFLICTING CODES, ORDINANCES, AND RESOLUTIONS. All
Charter provisions, codes, ordinances and resolutions or parts of charter provisions, codes, ordinances and
resolutions or portions thereof of the City of Crestview, in conflict with the provisions of this Ordinance
are hereby repealed to the extent of such conflict.
SECTION 8 — EFFECTIVE DATE. This ordinance shall take effect on adoption.
PASSED AND ADOPTED ON SECOND READIN Y THE CITY COUNCIL OF CRESTVIEW,
FLORIDA ON THE 47137 , DAY OF , 2020.
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APPROVED BY ME THIS DAY OF
B. WHI� Mayor
ATTEST:
57
ELIZABETH M. ROY
City Clerk
, 2020.
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