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:
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(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.
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(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
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MY COMMISSION fF CC 885640
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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