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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 Page 1 of 8 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 Page 2 of 8 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; Page 3 of 8 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. Page 4 of 8 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. Page 5 of 8 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. Page 6 of 8 (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. Page 7 of 8 APPROVED BY ME THIS DAY OF B. WHI� Mayor ATTEST: 57 ELIZABETH M. ROY City Clerk , 2020. Page 8 of 8