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HomeMy Public PortalAbout2000-09 Amending Chapter 2 of the Code Administration re Code EnforcementORDINANCE NO. 2000-9 AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AMENDING CHAPTER 2 OF THE VILLAGE CODE, "ADMINISTRATION," ARTICLE III, "CODE ENFORCEMENT," SECTION 2-38, "CONTENTS AND SERVICE OF WARNING" AND SECTION 2-39, "CONTENTS AND SERVICE OF NOTICE" OF THE VILLAGE CODE PROVIDING FOR SERVICE TO COMMERCIAL PREMISES AND PROVIDING PROCEDURE FOR NOTICE OF TRANSFER OF PROPERTY SUBJECT TO CODE ENFORCEMENT PROCEEDINGS; AMENDING SECTION 2- 42, "CIVIL PENALTIES AND RELATED TERMS CONSTRUED," PROVIDING THAT THE VILLAGE MAY REPAIR A VIOLATION THAT PRESENTS A SERIOUS THREAT TO THE PUBLIC HEALTH, SAFETY, AND WELFARE AND MAY CHARGE THE VIOLATOR WITH THE REASONABLE COSTS OF REPAIRS; AMENDING SECTION 2-43 "RECOVERY OF UNPAID CIVIL PENALTIES; UNPAID PENALTY TO CONSTITUTE A LIEN; FORECLOSURE", PROVIDING THAT VILLAGE MAY INITIATE LEGAL PROCEEDINGS TO RECOVER A CODE ENFORCEMENT LIEN IN THE FORM OF A MONEY JUDGMENT; AMENDING SECTION 2-45, "ARTICLE PROVISIONS ARE SUPPLEMENTAL," PROVIDING THAT PROVISIONS OF ARTICLE ARE SUPPLEMENTAL AND CUMULATIVE TO ALL OTHERS; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE VILLAGE CODE; PROVIDING FOR EFFECTIVE DATE. IT IS HEREBY ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS: Section 1. That Chapter 2, "Administration," Article III, "Code Enforcement," Section 2-38, "Contents and service of Warning" of the Code of the Village of Key Biscayne, Florida, is hereby amended to read as follows: Sec. 2-38. Contents and service of Warning. (a) A Warning shall include the following: (1) Date and time of issuance. (2) Name of Code Enforcement Officer issuing the Warning. (3) Name and address of the Violator. (4) The section of the Code that has been violated. (5) Brief description of the nature of the violation, including location, date and time of violation. (6) Amount of the civil penalty for which the Violator may be liable. (7) Time within which the violation must be corrected. (8) Statement that the failure to correct the violation by the time period indicated in the Warning will result in t h e issuance of a Notice. (b) Service of the Warning to the Violator shall be effected either by: (1) Certified mail, return receipt requested, provided if such Warning is sent under this paragraph to the owner of the property in question at the address listed in the tax collector's office for tax notices, and at any other address provided to the City by such owner and is returned as unclaimed or refused, the Warning may be served by posting as described in subparagraphs (c)(2)a. and b. and by first class mail directed to the addresses furnished to the City with a properly executed proof of mailing or affidavit confirming the first class mailing; (2) Hand delivery by the Village Police Department or other law enforcement officer, code enforcement officer or other person designated by the City; (3) Leaving the Warning at the Violator's usual place of residence with any person residing therein who is above 15 years of age and informing such person of the contents of the Warning; or (4) In the case of commercial premises, leaving the Warning with the manager or other person in charge. (c) In addition to serving the Warning as set forth above, at the option and discretion of the Village Manager, the Warning may also be served by publication or posting as follows: 2 (1)a. The Warning shall be published once during each week for four consecutive weeks (four publications being sufficient) in a newspaper of general circulation in Miami -Dade County, as specified in Chapter 50, Florida Statutes. b. Proof of publication shall be made as provided in Sections, 50.041 and 50.051, Florida Statutes. (2)a. In lieu of publication as described in paragraph (c)(1), such Warning may be posted at least 10 days prior to the expiration of any deadline contained in the Warning in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at Village Hall. b. Proof of posting shall be by affidavit of the person posting the Warning, which affidavit shall include a copy of the Warning posted and the date and places of its posting. (3) Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under subsection (b). (d) Evidence that an attempt has been made to hand deliver or mail the Warning as provided in subsection (b), together with proof of publication or posting as provided in subsection (c), shall be sufficient to show that the requirements of this Article have been met, without regard to whether or not the Violator actually received such Warning. (e) If the owner of property which is subject to an enforcement proceeding before the Special Master or court transfers ownership of such property between the time the initial pleading was served and the time of the hearing, such owner shall: (1) Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee. (2) Deliver to the prospective transferee a copy of the pleadings, notices, and other materials relating to the code enforcement proceeding received by the transferor. (3) 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. 3 (4) File a notice with the code enforcement official 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 (1), (2), and (3) 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. Section 2. That Chapter 2, "Administration," Article III, "Code Enforcement," Section 2-39, "Contents and service of Notice," of the Code of the Village of Key Biscayne, Florida, is hereby amended to read as follows: Sec. 2-39. Contents and service of Notice. (a) A Notice shall include: (1) Date and time of issuance. (2) Name of Code Enforcement Officer issuing the Notice. (3) Name and address of the Violator. (4) The section of the Code that has been violated. (5) Brief description of the nature of the violation, including location, date and time of violation. (6) Amount of the civil penalty for which the Violator may be liable. (7) Instructions and date for paying the civil penalty or for filing a request for an administrative hearing before a Special Master to appeal the civil penalty. (8) Time within which the violation must be corrected. (9) A statement that each day of continued violation after the time period for correction has run shall be deemed 4 a Continuing Violation subject to an additional penalty in the same amount without the need for additional Notice. (10) A statement that the filing of a request for an administrative hearing will toll the accrual of Continuing Violation penalties. (11) A statement that failure to request an administrative hearing within 20 days after service of the Notice shall constitute a waiver of the Violator's right to an administrative hearing before the Special Master, and that such waiver shall constitute an admission of the violation, and that in such case, judgment may be entered against the Violator for the amount of the civil penalty. (12) A statement that the Violator may be liable for the reasonable administrative hearing costs should he or she be found guilty. (b) Service of the Notice to the Violator shall be effected either by: (1) Certified mail, return receipt requested, provided if such Notice is sent under this paragraph to the owner of the property in question at the address listed in the tax collector's office for tax notices, and at any other address provided to the City by such owner and is returned as unclaimed or refused, notice may be provided by posting as described in subparagraphs (c)(2)a. and b. and by first class mail directed to the addresses furnished to the City with a properly executed proof of mailing or affidavit confirming the first class mailing; (2) Hand delivery by the sheriff or other law enforcement officer, code enforcement officer or other person designated by the City; (3) Leaving the Notice at the Violator's usual place of residence with any person residing therein who is above 15 years of age and informing such person of the contents of the Notice; or (4) In the case of commercial premises, leaving the Notice with the manager or other person in charge. (c) In addition to providing service of the Notice as set forth above, at the option and discretion of the Village Manager, the Notice 5 may also be served by publication or posting as follows: (1)a. The Notice shall be published once during each week for four consecutive weeks (four publications being sufficient) in a newspaper of general circulation in Miami -Dade County, as specified in Chapter 50, Florida Statutes. b. Proof of publication shall be made as provided in Sections, 50.041 and 50.051, Florida Statutes. (2)a. In lieu of publication as described in paragraph (c)(1), such Notice may be posted at least 10 days prior to the hearing, or prior to the expiration of any deadline contained in the Notice, in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at Village Hall. b. Proof of posting shall be by affidavit of the person posting the Notice, which affidavit shall include a copy of the Notice posted and the date and places of its posting. (3) Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under subsection (b). (d) Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (b), together with proof of publication or posting as provided in subsection (c), shall be sufficient to show that the notice requirements of this Article have been met, without regard to whether or not the alleged Violator actually received such Notice. (e) If the owner of property which is subject to an enforcement proceeding before the Special Master or court transfers ownership of such property between the time the initial pleading was served and the time of the hearing, such owner shall: (1) Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee. (2) Deliver to the prospective transferee a copy of the pleadings, notices, and other materials relating to the code enforcement proceeding received by the transferor. 6 (3) 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. (4) File a notice with the code enforcement official 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 (1), (2), and (3) 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. Section 3. That Chapter 2, "Administration," Article III, "Code Enforcement," Section 2-42, "Civil penalties and related terms construed," of the Code of the Village of Key Biscayne, Florida, is hereby amended to read as follows: Sec. 2-42. Civil penalties and related terms construed. (a) Penalties for violations of the provisions to be enforced through this article shall be in the amounts prescribed in the schedule of civil penalties contained in section 2-47. (b) For each day of a Continuing Violation, an additional penalty in the same amount as that prescribed for in the original violation shall be added. (c) For the first Repeat Violation, the amount of the civil penalty shall be double the amount of penalty prescribed for the original violation by section 2-47. The amount of civil penalty due for each subsequent Repeat Violation shall be double the amount of penalty due for the first day of the immediately preceding violation; provided, that the maximum penalty payable for the first day of any one Repeat Violation shall be $500.00. (d) A Repeat Violation which remains uncorrected beyond the time prescribed for correction in the Notice shall be treated as a Continuing Violation, and the additional penalty for each day of continued violation shall be double the amount due for the first day of the Repeat Violation. 7 (e) Continuing Violation penalties shall accrue from the date of correction given in the Notice until the correction is made or until a request for administrative hearing is filed, whichever comes first. If the named Violator requests an administrative hearing and loses his appeal, the Special Master shall determine a reasonable time period within which correction of the violation must be made, based on the considerations set forth in section 2-37(a). If correction is not made within the period set by the Special Master, Continuing Violation penalties shall begin to accrue again after the time for correction has run. (f) If the violation is a violation described in Section 2-37(d), the Special Master shall notify the Village, which may make all reasonable repairs that are required to bring the property into compliance and charge against the Violator the cost of the repairs along with the fine imposed pursuant to this Section. The Village shall have a lien upon the property in such amount until paid, which lien shall be prior to all other liens on such property, except taxes. Such lien, when delinquent for more than 30 days, may be foreclosed in the manner provided for the foreclosure of mortgages on real property. Making such repairs does not create a continuing obligation on the part of the local governing body to make further repairs or to maintain the property and does not create any liability against the Village for any damages to the property if such repairs were completed in good faith. (g) Civil penalties assessed pursuant to this article are due and payable to the Village on the last day of the period allowed for the filing of an appeal from the Special Master's decision, or, if a proper appeal is made, when the appeal has been finally decided adversely to the named Violator. Section 4. That Chapter 2, "Administration," Article III, "Code Enforcement," Section 2-43, "Recovery of unpaid civil penalties; unpaid penalty to constitute a lien; foreclosure," of the Code of the Village of Key Biscayne, Florida, is hereby amended to read as follows: Section 2-43. Recovery of unpaid civil penalties; unpaid penalty to constitute a lien; foreclosure. (a) The Village may institute proceedings in a court of competent jurisdiction to compel payment of civil penalties. 8 (b) A certified copy of an order imposing a civil penalty may be recorded in the public records and thereafter shall constitute a lien against the property 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 may be enforced in the same manner as a court judgment by the sheriffs of this State, including levy against the personal property, but such order shall not be deemed to be a court judgment except for enforcement purposes. A civil penalty imposed pursuant to this article shall continue to accrue until the Violator complies or until judgment is rendered in a suit to foreclose on a lien filed pursuant to this article, whichever occurs first. After three months from the date of filing of any such lien which remains unpaid, the Village may foreclose or otherwise execute on the lien. Alternatively, the Village may sue to recover a money judgment for the amount of the lien plus accrued interest. Upon payment of the civil penalty or notice of assessment by the Violator or the successor(s), assign(s) or heir(s) of the Violator, the Village Clerk is authorized to execute and record in the Public Records of Miami - Dade County the appropriate Release of Lien document. (c) No lien provided under this article shall continue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action to foreclose on a lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party may recover interest and all costs, including a reasonable attorney's fee, incurred in the foreclosure. The continuation of the lien effected by the commencement of the action shall not be good against creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. Section 5. That Chapter 2, Administration," Article III, "Code Enforcement," Section 2- 45, "Article provisions are supplemental, " of the Code of the Village of Key Biscayne, Florida, is hereby amended to read as follows: Sec. 2-45. Article provisions are supplemental. Nothing contained in this article shall prohibit the Village from enforcing its Code by any other means including, but not limited to, a summons, an arrest, a notice to appear, civil action for injunctive relief, a stop work order or demolition. The enforcement procedures outlined in this article are cumulative to all others and shall not be 9 deemed to be prerequisites to filing suit for the enforcement of any section of this Code. Section 6. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 7. Inclusion in the Code. It is the intention of the Village Council, and it is hereby ordained that the provisions of this Ordinance shall become and made a part of the Code of the Village of Key Biscayne; that the sections of this Ordinance may be renumbered or relettered to accomplish such intentions; and that the word "Ordinance" shall be changed to "Section" or other appropriate word. Section 8. Effective Date. This Ordinance shall be effective upon adoption on second reading. PASSED on first reading this 6th day of June , 2000. PASSED AND ADOPTED on second reading this 11th day of July , 2000. �' ./ AYOR JOE I. RASCO CONCHITA ALVAREZ, CMC, VILLAGE CLERK APPROVE3‘...._1 S TO FORM AND LEGAL SUFFICIENCY: RICHARD JAY WEISS, VILLAGE ATTORNEY 10 MIAMI DAILY BUSINESS REVIEW Published Daily except Saturday, Sunday and Legal Holidays Miami, Miami -Dade County, Florida. STATE OF FLORIDA COUNTY OF MIAMI-DADE: Before the undersigned authority personally appeared Octelma V. Ferbeyre, who on oath says that she is the Supervisor, Legal Notices of the Miami Daily Business Review f/k/a Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Miami - Dade County, Florida; that the attached copy of advertise- ment, being a Legal Advertisement of Notice in the matter of VILLAGE OF KEY BISCAYNE MEETING JULY 11, 2000 ORDINANCE AMENDING CHAPTER 2, ETC. in the XXXXX waa pufb1listtesl in saValtri paper in the issues of Court, Affiant further says that the said Miami Daily Business Review is a newspaper published at Miami in said Miami - Dade County, Florida, and that the said newspaper has heretofore been continuously published in said Miami -Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter at the post office in Miami in said Miami -Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and that she affiant further any person, mission or ment for 2 day of .. (SEAL) Octelma V. Fer ation an purpose o he said n ther paid nor promised discount, rebate, com- securing this advertise- spaper. before me this2000 A.D .;. M'-.RIAI. MESA MY COMMISSION fF CC 885640 ay546WW4Wit14,N04 Bonded Thru Notary Pubic Underwriters VILLAGE OF KEY BISCAYNE OFFICE OF THE VILLAGE CLERK .PUBLIC IAIOTICE Notice is hereby given that the following ordinance will be considered on Second Reading by the Key Biscayne Village Council at a meeting to be held on Tuesday, July 11, 2000at 7:00 p.m.,.inthe Council Chamber, located at 85 West McIntyre Street Second Floor, Key Biscayne, Fiori- ` dad: ', AN ORDINANCE OF THE VIUAGE OF KEY B, AYN, FLORIDA, AMENDING CHAPTER 2 OF THE VI E CODE, "ADMINIST TION, -ARTICLE III, "CODE ENFORt ENT," SEC- TION 2-38, VONTENTS AND SERVICE OF WARN 3" AND SEC- TION 2-39, "QDNTENTS AND SERVICE OF NOTICIrOF THE VIL- LAGE COM PROVIDING FOR SERVICE !TO COMMERCIAL PREMISES A'4D PROVIDING PROCEDURE FOR NOTICE OF TRANSFER OF PROPERTY SUBJECT TO CODE" ENFORCE- MENT PROtiEDINGS; AMENDING SECTION 2-42, "CIVIL PEN- ALTIES AND RELATED TERMS CONSTRUED,' PROVIDING THAT THE AMU -AGE MAY ' REPAIR A VIOLATION THAT PRESENTS ,,At SERIOUS THREAT TO THE PUBUC HEALTH, SAFETY, APO WELFARE AND MAY CHARGE THE VIOLATOR WITH THE I ll)j SONABLE COSTS OF REPAIRS; AMENDING SECTION 2-4ECOVERY OF UNPAID CNIL PENALTIES; UN- PAID PENALTVIO CONSTITUTE A LIEN; FORECLOSURE', PRO- VIDING THATIOLLAGE MAY INITIATE LEGALPROCEEDINGS TO RECOVER /1/4011ME ENFOICEMENT LIEN IN THE FORM OF A MONEY JUST; NGSECTION2'45r,'ARTICLE PRO- VISIONS ARE' SUPPLEMENTAL," PROVIDING- THAT PROVI- SIONS OF ARTICLE ARE SUPPLEMENTAL AND CUMULATIVE TO All FOR INCLUS� THE CODE; P O DINGOVIDING fOR I FOR EFFFECTIVE DATE. - Interested parties are invited to appear and be heard. A copy of the pro- posed ordinance may be obtained at Village Hall, Office of the Village Clerk, 91 West McIntyre Street, Suite 203, Key Biscayne, Florida 33149. In acco►dancemith the Americans Act of 1990, all per- sons who are diSepIedjind who need specialaccommodations to partici- pate in this prom of thattisability should contact the Office of the Village Clerk, WI West Mdntyre Sheet, 4Surte 203, Key Biscayne, Florida 33149, telephone number(305) 385-5508. not later than two busi- ness days prior to such proceeding. " Should any persondesireto appeal any dept of the Village Council with respect to any matter tote considered at this meeting, that pew shall insure that a verbatim record of the proceedings is made including all - testimony and evidence upon which any appeal may be based (F.S.286.0105). 6/27 Conchita.H. Alvarez, CMC Village Clerk 00-4-05/66917M