HomeMy Public PortalAbout2005-03 Amending Code Enforcement DefinitionsORDINANCE NO. 2005-3
AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, AMENDING CHAPTER 2 OF THE VILLAGE CODE,
"ADMINISTRATION," ARTICLE III, "CODE ENFORCEMENT,"
AMENDING SECTION 2-31, "DEFINITIONS," AMENDING
SECTION 2-32, "CIVIL OFFENSES AND PENALTIES," AMENDING
SECTION 2-33, "QUALIFICATIONS OF SPECIAL MASTERS,
APPOINTMENT AND REMOVAL; COMPENSATION," AMENDING
SECTION 2-34, POWERS OF SPECIAL MASTERS," AMENDING
SECTION 2-35, "VILLAGE ATTORNEY TO SERVE AS COUNSEL,"
AMENDING SECTION 2-36, "AUTHORITY TO INITIATE
ENFORCEMENT PROCEEDINGS," AMENDING SECTION 2-37,
"ENFORCEMENT PROCEDURES," DELETING SECTION 2-38,
"CONTENTS AND SERVICE OF WARNING," AMENDING SECTION
2-39, "CONTENTS AND SERVICE OF NOTICE," AMENDING
SECTION 2-40 "RIGHTS OF VIOLATORS; PAYMENT OF FINE;
RIGHT TO APPEAL; FAILURE TO PAY AND CORRECT OR TO
APPEAL," AMENDING SECTION 2-41, "SCHEDULING AND
CONDUCT OF HEARING," AMENDING SECTION 2-42, "CIVIL
PENALTIES AND RELATED TERMS CONSTRUED," AMENDING
SECTION 2-43, "RECOVERY OF UNPAID CIVIL PENALTIES;
UNPAID PENALTY TO CONSTITUTE A LIEN; FORECLOSURE,"
AMENDING SECTION 2-44, "APPEALS OF SPECIAL MASTER'S
ORDER," AMENDING SECTION 2-46, "ADDITIONAL
ENFORCEMENT POWERS," AND DELETING SECTION 2-47,
"SCHEDULE OF CIVIL PENALTIES" OF THE VILLAGE CODE;
ADOPTING AN ALTERNATE CODE ENFORCEMENT SYSTEM;
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
2-31, "Definitions" of the Code of the Village of Key Biscayne, Florida, is hereby amended to read
as follows:
Sec. 2-31. Definitions.
' / Additions to existing Village Code text are indicated by underlining; deletions from Village
Code text are indicated by striketbrottgh.
The following words, terms, and phrases, when used in this article,
shall have the meaning ascribed to them in this section, except where
the context clearly indicates a different meaning:
* * *
* * *
Special MasterMagistrate means a person appointed pursuant to
section 2-33.
* * *
Section 2. That Chapter 2, "Administration," Article III, "Code Enforcement," Section
2-32, "Civil offenses and penalties" of the Code of the Village of Key Biscayne, Florida, is hereby
amended to read as follows:
Sec. 2-32. Civil offenses and penalties.
A violation of the Code shall constitute a civil offense punishable by
civil penalty in the amount prescribed in section 2-47, as may be
2-42.
Section 3. That Chapter 2, "Administration," Article III, "Code Enforcement," Section
2-33, "Qualifications of Special Masters; appointment and removal; compensation" of the Code of
the Village of Key Biscayne, Florida, is hereby amended to read as follows:
Sec. 2-33. Qualifications of Special MastersMagistrates;
appointment and removal; compensation.
(a) Appointments of Special MastersMagistrates shall be made by
the Mayor as needed on the basis of experience or interest in code
enforcement. Such appointments shall be submitted to the Council
for ratification.
(b) Special MastersMagistrates shall be residents of the Village and
shall possess outstanding reputations for civic pride, interest,
integrity, responsibility and business or professional ability.
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(c) Appointments shall be made for a term of one year. Special
MastersMagistrates may be reappointed at the discretion of the
Mayor, subject to ratification by the Council.
(d) Special MastersMagistrates shall not be Village employees but
may-be-compensated-at-a-rate-terbe-determined-br administrative
order. and shall serve without compensation.
Section 4. That Chapter 2, "Administration," Article III, "Code Enforcement," Section
2-34, "Powers of Special Masters" of the Code of the Village of Key Biscayne, Florida, is hereby
amended to read as follows:
Sec. 2-34. Powers of Special MastersMagistrates.
Special MastersMagistrates shall have the power to:
(1) Adopt rules for the conduct of hearings.
(2) Subpoena Violators and witnesses for hearings; subpoenas shall
be served by the Village Police Department or by the Village staff.
(3) Subpoena evidence to hearings.
(4) Take testimony under Oath.
(5) Assess and order the payment of civil penalties as provided in
this article.
(6) Issue orders having the force of law to command whatever steps
are necessary to bring a violation into compliance.
Section 5. That Chapter 2, "Administration," Article III, "Code Enforcement," Section
2-35, " Village Attorney to serve as counsel " of the Code of the Village of Key Biscayne, Florida,
is hereby amended to read as follows:
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Sec. 2-35. Village Attorney to serve as counsel.
The Village Attorney shall provide legal advice to the Special
MastersMagistrates. If an appeal is taken pursuant to section 2-44,
the Village Attorney shall represent the Village at such proceedings.
Section 6. That Chapter 2, "Administration," Article III, "Code Enforcement," Section
2-36, "Authority to initiate enforcement proceedings" of the Code of the Village of Key Biscayne,
Florida, is hereby amended to read as follows:
Sec. 2-36. Authority to initiate enforcement proceedings.
Code Enforcement Officers shall have the authority to initiate code
enforcement proceedings as provided in section 2-37. Special
MastersMagistrates shall not have such authority.
Section 7. That Chapter 2, "Administration," Article III, "Code Enforcement," Section
2-37, "Enforcement Procedures" of the Code of the Village of Key Biscayne, Florida, is hereby
amended to read as follows:
Sec. 2-37. Enforcement Procedures.
(a) A Code Enforcement Officer who finds a violation of the Code
shall issue a Warning Notice to the Violator stating that the Violator
has committed a violation of the Code and shall specify a reasonable
time period within which the Violator must correct the violation.
This determination shall be based on consideration of fairness;
practicality, ease of correction; ability to correct; severity of violation;
nature, extent, and probability of danger or damage to the public; and
other relevant factors relating to the reasonableness of the time period
prescribed.
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(-0(b) If, upon personal investigation, a Code Enforcement Officer
finds that the Violator has not corrected the violation within the time
period specified in the Notice, the Code Enforcement Officer shall
notify the Village Manager or designee in writing and may request a
hearing.
W If the Code Enforcement Officer has reason to believe a
violation presents a serious threat to the public health, safety or
welfare, or if the violation is an Uncorrectable Violation, the Code
Enforcement Officer
shall issue a Notice requiring immediate correction of the violation.
The Code Enforcement Officer shall make a reasonable effort to
notify the Violator and may immediately notify the Village Manager
or designee and request a hearing.
(-OW If a Code Enforcement Officer finds a Repeat Violation, the
Code Enforcement Officer shall issue a Notice to the Violator but is
not required to give a reasonable time to correct the violation. The
Code Enforcement Officer, upon notifying the Violator of a Repeat
Violation, shall notify the Village Manager or designee and request
a hearing.
(e) The current owner of the property is responsible for the
violation in addition to any other party who has possession of the
property or who may have actually caused the violation, even if the
violation was caused by a prior owner or an unknown third party.
The Special Magistrate may find the landlord as well as the tenant
responsible for a violation. A condominium association shall be
responsible for any violation affecting the common elements of the
condominium in addition to any other party who may have actually
caused the violation. If the Special Magistrate enters an order against
a condominium association, there shall be no lien against the common
elements and there shall be no lien against a unit of the condominium
unless the unit owner is also a respondent in the code enforcement
proceeding.
Section 8. 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 deleted as follows:
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Sec. 2-38. .Reserved.
ill-inclutic the following:
f 1) Date and time of issuance.
(2) Name of Code Enforcement Officer issuing the
Warming.
€3)---Name-ancl-address-of -the-Violator:
f 4) The scchon of the Codc that has been violated.
marbe-tiabtt
idoticc.
'tifrecfmail, return receipt requested, provided if
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(3) Leaving the Warning at the Violator's usual place of
(4) In the cast of commercial premises, lcaving the
(c) In addition to serving thc Warning as set forth abovc, at the
County, as specified in Chapter 50, Florida Statutes.
(2) a. In heu of publication as described in pal agraph
(c)(1), such Wanriiig may be posted at least 10 days prior to the
b. Proof of posting shall be by affidavit of thc
,
00 —Evidence -that -air ,ttempt-har becir made -to -hand -deliver -or
,
)L4 Vi rluv 1 as IJ & aaµ v
Warning.
7
(1) Disclose, m writmg, theexistence an o
(4) File a noticc with the code enforcement official of the
5-dayrafterthe-date-of the -transfer:
(-5)-before-the-transfer ereaterrrebuttable-presumptiorr of frand7—If
period -of time -ter correet-the-violation-before-the-hearing-is-heid7
Section 9. 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.
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(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
MasterMagistrate 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 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 MasterMagistrate, 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, or it be
found guilty.
(b) Service of the Notice to the Violator shall be effected either
by:
(1) Cerhficd mail, return receipt requested, provided if
such-Notice-is-sent-underthisparagrapIrter the -owner -of the -property
executed-proof-of-mailinr or -affidavit -confirming -the -first-class
mailing;
City;
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residence -wit -1r any-persorrresiding-therein-who-is--above-1-5-years-of
age-and-informing-sttelr person -of ihe-contents-vf the -Notice; -or
witir the -manager or other person -in -charge: -
nay also be s
(1) a. The Notice shall be pubhshcd oncc dunng cac
week-for-fourconseeutive-weekr(four publications -being -sufficient)
rroot of publication snail be ma as proviaca in
•
' VKVll l\VY1VV 111W, VV t„/V VYVV KY 1V WVY 1V VW,V `/11V1 YV YlaV 11VYK as1`9
WY 1VKVY Y �. V 1V VWri VaaY, Va1V Vf •. aaa Vaa vaaMras V V vaa ya V� Va V 1 MM Vaa ♦. aaa Va:
the-viciatiorris-afteged-ttrexist-and-tire-other-crf,vhiefr shall -be -at
b. Proof of posting shall be by affidavit of the
, ,
cd in subsecti
,
ail be
(1) hand delivery to the violator; or
(2) leaving the notice at the violator's usual place of
residence with any person residing.therein who is 15 years Qf age or
older and informing such person of the contents of the notice; or
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(3) certified mail, return receipt requested, to the violator's
usual place of residence; or
(4) by posting the notice in a conspicuous place on the
premises or real property upon which the violation was observed or
on the personal property which is the subject of the violation. The
posting of the notice shall be deemed proper service, and the time for
compliance stated in the notice shall commence with the date of such
posting.
(c) In the case of commercial premises, notice may be served by
leaving the notice with the manager or other person in charge. A
corporation may also be served at the address of the registered agent
in addition to the address listed in the tax collector's office for tax
notices or the property appraiser's office.
(TM If the owner of property which is subject to an enforcement
proceeding before the Special MasterMagistrate 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.
(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.
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Section 10. That Chapter 2, "Administration," Article III, "Code Enforcement," Section
2-40, "Rights of Violators; payment of fine; right to appeal; failure to pay and correct or to appeal,"
of the Code of the Village of Key Biscayne, Florida, is hereby amended to read as follows:
Sec. 2-40. Rights of Violators; payment of fine; right to
appeal; failure to pay and correct or to appeal.
(a) A Violator who has been served with a Notice shall elect either
to:
(1) Pay the civil penalty in the manner and within the time
indicated on the Notice and correct the violation within the time
specified on the Notice; or
(2) Request an administrative hearing before a Special
MasterMagistrate to appeal the decision of the Code Enforcement
Officer which resulted in the issuance of the Notice.
(b) An appeal of the Notice shall be accomplished by filing a
request in writing to the address indicated on the Notice, not later
than 20 calendar days after the service of the Notice.
(c) If the named Violator, after Notice, fails to pay the civil penalty
and correct the violation within the time specified, or to timely
request an administrative hearing before a Special fvfasterMagistrate,
the Special MasterMagistrate shall be informed of such failure by
report from the Code Enforcement Officer. Such report shall be by
affidavit of the Code Enforcement Officer. Failure of the named
Violator to appeal the decision of the Code Enforcement Officer
within the prescribed time period shall constitute a waiver of the
Violator's right to administrative hearing before the Special
MasterMagistrate. A waiver of the right to administrative hearing
shall be treated as an admission of the violation, and penalties may be
assessed accordingly.
Section 11. That Chapter 2, "Administration," Article III, "Code Enforcement," Section
2-41, "Scheduling and conduct of hearing," of the Code of the Village of Key Biscayne, Florida, is
hereby amended to read as follows:
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Sec. 2-41. Scheduling and conduct of hearing.
(a) Upon receipt of a named Violator's timely request for an
administrative hearing or a written hearing request from the Code
Enforcement Officer as provided for in section 2-37, the Village
Manager or designee shall set the matter down for hearing on the next
regularly scheduled hearing date or as soon thereafter as practicable.
(b) The Village Manager or designee shall send a notice of hearing
by first class mail. or any other method reasonably calculated to effect
delivery, to the named Violator at his last known address. The notice
of hearing shall include but not be limited to the following:
(1) Name of the Code Enforcement Officer who issued the
Notice.
(2) Factual description of the alleged violation.
(3) Date of the alleged violation.
(4) Section of the Code allegedly violated.
(5) Place, date and time of the hearing.
(6) Notice of the right of the Violator to be represented by
an attorney.
(7) Right of the Violator to present evidence and witr
and to cross examine witnesses.
(8) Notice that failure of the Violator to attend the hearing
may result in civil penalty and administrative hearing costs
being assessed.
(9) Notice that requests for continuances will not be
considered if not received in writing by the Special tvfasterMagistrate
at least ten calendar days prior to the date set for the hearing.
(c) The Village Manager or designee shall call hearings on a
monthly basis or upon the request of the Code Enforcement Officer.
(d) A hearing date shall not be postponed or continued unless a
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request for continuance, showing good cause for such continuance, is
received in writing by the Special MasterMagistrate at least ten
calendar days prior to the date set for the hearing.
(e) All hearings of the Special ishasterMagistrate shall be open to
the public. All testimony shall be under Oath. Assuming proper
notice, a hearing may proceed in the absence of the named Violator.
(f) The proceedings at the hearing shall be recorded and may be
transcribed at the expense of the party requesting the transcript.
(g) The Village Clerk shall provide clerical and administrative
personnel as may be reasonably required by each Special
MasterMagistrate for the proper performance of his or her duties.
(h) Each case before a Special MasterMagistrate shall be presented
by the Village Manager or his designee.
(i) The hearing need not be conducted in accordance with the
formal rules relating to evidence and witnesses, but fundamental due
process shall be observed and shall govern the proceedings. Any
relevant evidence shall be admitted if the Special IbfasterMagistrate
finds it competent and reliable, regardless of the existence of any
common law or statutory rule to the contrary.
(j) Each party shall have the right to call and examine witnesses; to
introduce exhibits; to cross examine opposing witnesses on any
matter relevant to the issues even though that matter was not covered
in the direct examination; to impeach any witness regardless of which
party first called that witness to testify; and to offer rebuttal of the
evidence.
(k) The Special MasterMagistrate shall make findings of fact and
conclusions of law based on evidence of record. In order to make a
finding upholding the Code Enforcement Officer's decision, the
Special MasterMagistrate must find that a preponderance of the
evidence indicates that the named Violator was responsible for the
violation of the relevant section of the Code.
(1) The time for correction given by the Code Enforcement Officer
to the named Violator and contained in the Notice is rebuttably
presumed to have been a reasonable time for correction. Upon
presentation of relevant evidence by the named Violator that the time
for correction was not reasonable; however, the Special
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MasterMagistrate may make a redetermination as to reasonableness
of the time for correction contained in the Notice. The Special
MasterMagistrate may not make a determination that the time given
for correction in the Notice was unreasonable unless the time given
for correction has not yet run at the time the Special Master
Magistrate makes his or her decision. If the Special MasterMagistrate
determines that the time given for correction was insufficient, the
penalty for a Continuing Violation shall be calculated from the date
determined by the Special MasterMagistrate to be a reasonable date
for correction.
(m) If the named Violator is found guilty of the violation, he or she
may be held liable for the reasonable cost of the administrative
hearing, at the discretion of the Special MasterMagistrate.
(n) The fact-finding determination of the Special Master
Magistrate shall be limited to whether the violation alleged did occur,
and, if so, whether the person named in the Notice may be held
responsible for that , violation. Based upon this fact-finding
determination, the Special MasterMagistrate shall either affirm or
reverse the decision of the Code Enforcement Officer. The Special
MasterMagistrate may also modify the decision of the Code
Enforcement Officer as to the time for correction contained in the
Notice, subject to the provisions of subsection (1) of this section. If
the Special ib a:sterMagistrate reverses the decision of the Code
Enforcement Officer and finds the named Violator not responsible for
the Code violation alleged in the Notice, the named Violator shall not
be liable for the payment of any civil penalty, absent reversal of the
Special MasterMagistrate's findings pursuant to section 2-44.
(o) A decision of the Special MasterMagistrate affirming the
decision of the Code Enforcement Officer shall include the following
elements:
(1) Amount of civil penalty.
(2) Administrative costs of hearing.
(3) Date by which the violation must be corrected to
prevent presumption of Continuing Violation penalties, if
applicable.
(p) A Special MasterMagistrate shall postpone a hearing if the
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named Violator, prior to the scheduled hearing date, files with the
duly authorized Village board of appropriate jurisdiction, if any, an
administrative appeal concerning the interpretation or application of
the Code provisions upon which the alleged violation was based.
However, once an issue has been determined by a Special
MasterMagistrate in a specific case, that issue may not be further
reviewed by a Village board in that specific case.
(q) Upon exhaustion of a timely filed administrative appeal and
finalization of the administrative order by the duly authorized Village
board of appropriate jurisdiction, the Special MasterMagistrate may
exercise all powers given to him or her by this article. The Special
MasterMagistrate shall not, however, exercise any jurisdiction over
such alleged Code violations until the time allowed for court appeal
of the ruling of such board has lapsed or until such further appeal has
been exhausted.
(r) The Special MasterMagistrate shall be bound by the
interpretations and decisions of duly authorized Village boards
concerning the provisions of the Code within their respective
jurisdictions. If such a board decides that an alleged violation of the
Code is not in accordance with such board's interpretation of the Code
provision on which the violation is based, the Special
MasterMagistrate shall not be empowered to proceed with the
enforcement of the violation.
Section 12. 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) Unless otherwise provided in this Code, Penalties for
violations of the provisions to be enforced through this article shall
be
$250.00 per day for a first violation. The
penalty for a violation relating to the failure to obtain any required
development approvals, including building permits, shall be $500 per
day. The penalty for an Uncorrectable Violation shall not exceed
$5000 per violation.
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(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 a Repeat Violation, the amount of the civil
penalty shall be double-the-amount-of-penaltrpreseribe&-for -the
$500 per day.
amount -of penaltrdue-forthe--first-day-eff the -immediately -preceding
(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
erf $500.00.
(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 erMagistrate 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 MasterMagistrate,
Continuing Violation penalties shall begin to accrue again after the
time for correction has run and the Code Enforcement Officer has
filed an Affidavit of Continuing Violation.. The Code Enforcement
Officer shall serve on the violator a copy of the Affidavit of Non -
Compliance and a Notice of Continuing Violation which shall include
the following:
(1) Date of issuance.
(2) A reference to the order of the Special Magistrate that
continues to be violated.
(3) Notice of the right to request an administrative hearing
before the Special Magistrate and instructions on how to file the
request.
(4) Notice that failure to request an administrative hearing
within 20 days after the date of the Notice of Continuing Violation
shall constitute a waiver of the right to a hearing.
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(5) Notice that the hearing is strictly limited to whether
and when the Violator complied with the order of the Special
Magistrate.
(6) Notice that the Violator shall be liable for the
reasonable costs of the administrative hearing if the Violator is
unsuccessful at the hearing.
At reasonable intervals, a Violator may request an inspection to
determine compliance with an order of the Special Magistrate. After
his inspection, the Code Enforcement Officer shall issue an Affidavit
of Non -Compliance and Notice of Continuing Violation or an
Affidavit of Compliance, in recordable form, as appropriate.
(f) If, pursuant to a finding by the Special Magistrate, the
violation is a violation described in Section 2-37(d0), the Special
Master the Villagc; whichh may, at its discretion, 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 daysthree months, 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 MasterMagistrate's decision, or,
if a proper appeal is made, when the appeal has been finally decided
adversely to the named Violator.
Section 13. 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:
Sec. 2-43. Recovery of unpaid civil penalties; unpaid penalty
to constitute a lien; foreclosure; lien reduction.
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(a) The Village may institute proceedings in a court of competent
jurisdiction to compel payment of civil penalties.
(b) A certified copy of an order imposing a civil penalty may shall
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.
(d) The Violator, or the Violator's successors or assigns. (the
"Applicant") who has an ownership interest in the property
encumbered by a lien for civil penalties. may file a request for a
reduction of the civil penalty before the Special Magistrate only after
a compliance inspection is completed during which a Code
Enforcement Officer finds that all violations were corrected. Upon
receipt of a written request for reduction of civil penalty. and the
filing of an affidavit of partial compliance by the Code Enforcement
Officer which sets forth that all outstanding violations of the Special
Magistrate's order have been corrected, except for payment of any
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outstanding civil penalties, the Village Manager, or designee, shall set
the matter for penalty reduction hearing by the Special Magistrate.
However, if the Village Attorney has commenced action to obtain
compliance with the order of the Special Magistrate, including but
not limited to an action for injunctive relief, foreclosure, or money
judgment, no hearing shall be held for a reduction of civil penalty.
(e) At the hearing, the fact-finding determination of the Special
Magistrate shall be limited to evidence establishing:
1) good cause for a reduction of the civil penalty,
2) the amount of the reduction, and
3) any equitable considerations raised by the Applicant or the
Village relating to good cause or the amount of the reduction.
Said hearing shall not be an opportunity to appeal any finding of fact
or conclusions of law set forth in any prior order of the Special
Magistrate or any administrative determination of the Village.
W The Special Magistrate may reduce a civil penalty once the
Applicant has otherwise complied with an order of the Special
Magistrate based on a showing of good cause, but in no event shall
the civil penalty be reduced below the costs incurred by the Village
in its prosecution of violations, including but not limited to, any
attorney's fees and staff time. In no event, however, shall any
administrative fees previously ordered by the Special Magistrate be
waived or reduced.
(g) In determining good cause, and the amount of the reduction,
if any, the Special Magistrate shall consider:
The gravity of the violation.
al Any actions taken by the Violator or Applicant to
correct the violation.
al Any previous, or other outstanding violations whether
committed by the Violator, or pertaining to the property to which the
lien attaches. unless an order finding a violation is under appeal at the
time of the determination.
20
(4) Whether the violation is irreparable or irreversible in
nature.
(2 Whether the Violator's failure to timely comply with
an order of the Code Enforcement Officer or the Special Magistrate
is due to an inability to comply based on factors beyond the control
of the Violator.
() Upon a finding of good cause, the Special Magistrate has the
sole discretion to grant or deny the request for a reduction of civil
penalty according to the following guidelines, provided the reduction
to an amount that is not less than the costs incurred by the Village:
(1) If compliance occurs within three months of the date
for compliance set forth in the order of the Special Magistrate: a
maximum reduction of 95 percent of the total civil penalty (the
original civil penalty plus the continuing civil penalty amounts);
(2) If compliance occurs more than three months but less
than 12 months from the compliance date, a maximum reduction of
75 percent of the total civil penalty amount;
( If compliance occurs from 12 months to 18 months of
the compliance date; a maximum of 50 percent of the total civil
penalty amount; and
(4) If compliance occurs more than 18 months after the
compliance date, a maximum of 25 percent of the total civil penalty
amount.
U) The Special Magistrate has the authority where there is a
demonstrated showing of financial hardship or other good cause to
reduce the civil penalty below the civil penalty reduction guidelines.
The Special Magistrate shall exercise this authority with great caution
and only in documented and exceptional circumstances. A Violator
alleging financial hardship has the burden of presenting evidence of
inability to pay the civil penalty.
(j) If a civil penalty is reduced, the order of the Special
Magistrate shall provide that, if the Violator fails to pay the reduced
civil penalty by the date ordered by the Special Magistrate, then the
original amount of the civil penalty shall be automatically reinstated.
The Special Magistrate may impose conditions on the granting of a
request for reduction of the civil penalty and may allow additional
21
hearings upon request if necessary to establish compliance with said
conditions before an order reducing the civil penalty is entered.
(k) A certified copy of the order reducing the civil penalty shall
not be recorded in the public records unless the terms of the order
reducing the civil penalty are fully complied with and the order shall
so provide.
�1) Upon receipt of timely payment in full of the amount of the
reduced civil penalty. and the recording costs. the Village Manager,
or designee, shall record a copy of the order reducing the civil penalty
and a satisfaction of lien.
(m) A reduction of civil penalty may only be granted once as to
any violation of an order of the Special Magistrate.
Section 14. That Chapter 2, Administration," Article III, "Code Enforcement," Section 2-
44, "Appeals of Special Master's Order," of the Code of the Village of Key Biscayne, Florida, is
hereby amended to read as follows:
Sec. 2-44. Appeals of Special MasterMagistrate's order.
(a) An aggrieved party, including the Village, may appeal a final
order imposing fines or assessing continuing fines of a Special
MasterMagistrate to the Circuit Court. Such an appeal shall not be a
hearing de novo but shall be limited to appellate review of the record
created before the Special-MasterMagistrate. An appeal shall be filed
within 30 calendar days of the issuance of the order sought to be
overturned. Failure to make such appeal within the prescribed 30 -day
period shall render the findings of the Special MasterMagistrate
conclusive, binding and final.
(b) Unless the findings of the Special MasterMagistrate are
overturned in a proceeding held pursuant to subsection (a) of this
section, findings of the Special MasterMagistrate shall be admissible
in any proceeding to collect unpaid penalties.
(c) No aggrieved party other than the Village may apply to the
Court for relief unless such party has first exhausted the remedies
provided for in this article and has taken all available steps provided
in this article. It is the intention of the Village that all steps provided
22
by this article shall be taken before any application is made to the
Court for relief; and no application shall be made by any aggrieved
party other than the Village to a court for relief except from an order
imposing fines or assessing continuing fines issued by a Special
MasterMagistrate pursuant to this article. It is the intention of the
Village that, notwithstanding anything in this article to the contrary,
the Village shall retain all rights and remedies otherwise available to
it to secure compliance with or prevent violations of the Code. For
purposes of an appeal, the Village Clerk shall make available, for
public inspection and copying, the record upon which each final order
of a Special MasterMagistrate is based. The Village Clerk shall make
a reasonable charge commensurate with the cost for the preparation
of the official record on appeal and transmittal thereof to the Circuit
Court and for making certified copies of any record or portion
thereof.
Section 15. That Chapter 2, Administration," Article III, "Code Enforcement," Section 2-
46, "Additional Enforcement Powers," of the Code of the Village of Key Biscayne, Florida, is hereby
amended to read as follows:
Sec. 2-46. Additional Enforcement Powers.
In addition to the powers and authority given to the Special
MastersMagistrates for the Village pursuant to this article, the Village
may, in its discretion, exercise any powers given to municipalities or
their Special ittfastersMagistrates by F.S. ch. 162, as amended.
Section 16. That Chapter 2, Administration," Article III, "Code Enforcement," Section 2-
47, "Schedule of Civil Penalties," of the Code of the Village of Key Biscayne, Florida, is hereby
deleted as follows:
Sec. 2-47. SclredvIrof civii-penaltiev-Reserved
\Y.� 111V iV a�V �� lLL/� YYYV �V VMY1�11VV Y11V VVVYIVLIY V1 Y11V ,
VVVVWV Ya1V f
may to-the-provisions,afthisartieleTand-the-dollar amount -of civil -penalty
23
eadG Scctwit
r
Description -of Aiicriation Civil -Penalty
Section 17. Alternate Code Enforcement System. Pursuant to Section 162.03(2),
Florida Statutes and the Village's home rule powers, the Village hereby adopts Chapter 2
"Administration," Article III "Code Enforcement" as its alternate code enforcement system.
Section 18. 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 19. 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 20. Effective Date. This Ordinance shall be effective upon adoption on second
24
reading.
PASSED on first reading this 22nd day of February , 2005.
PASSED AND ADOPTED on second reading this 26th day of April , 2005.
AT
CHI'TA H. ALVAREZ, CMC, VILLAGE C
APPROVED AS TO FORM AND LEGAL SUFFI
VILLAGE A TO
z(z 66e_a/
.00
MAYOR ROBERT OLDAKOWSKI
25
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
O.V. FERBEYRE, who on oath says that he or 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 advertisement,
being a Legal Advertisement of Notice in the matter of
VILLAGE OF KEY BISCAYNE - ORDINANCE - APRIL 26, 2005
ORDINANCE AMENDING CHAPTER 2/ "ADMINISTRATION", ETC.
in the XXXX Court,
was published in said newspaper in the issues of
04/14/2005
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 affiant further says that he or
she has neither paid nor promised any person, firm or corporation
any discount, rebate, commission or refund for the purpose
of securing thi advertise r publication in the said
newspaper.
(SEAL)
Sworn to and subscribed before me this
Maria I Mesa
O.V. FERBEYRE personally k (10 Oh Commission DD293855
ofoff Expires March 04, 2008
VILLAGE OF KEY 6IECAYNE
OFD OF THE VILLAGE CLERK
_POM O NOTICE
Notice is hereby given that the following ordinance will be considered
on Second Reading by the Village Council of the Village of Key Biscayne
at a meeting to be held on Tuesday, April 26, 2005 at 7:00 p.m., in the
Council Chamber, located at 560 Crandon Boulevard, Key Biscayne,
Florida:
AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, AMENDING CHAPTER 2 OF THE VILLAGE CODE,
"ADMINISTRATION," ARTICLE 11I, "CODE ENFORCEMENT,"
AMENDING SECTION 2-31, "DEFINITIONS," AMENDING
SECTION 2-32, 'CIVIL OFFENSES AND PENALTIES,"
AMENDING SECTION 2-33, "QUALIFICATIONS OF SPECIAL
MASTERS;. APPOINTMENT AND REMOVAL; COMPENSA-
TION," AMENDINGSECTION 2-34, POWERS OF SPECIAL
MASTERS," AMENDING SECTION 2-35, "VILLAGE ATTOR-
NEY TOSERVEE-AS-COUNSEL," -AMENDING.SECTI N2-36,
"AUTHORITY TO INMATE ENFORCEMENT PROCEED-
INGS," AMENDING SECTION 2-37, "ENFORCEMENT PRO-
CEDURES,' ``DELETI1G'-SECTION 2-38, "CONTENTS AND
SERVICE OF WARY," AMENDING SECTION 2-39,
"CONTENTS AND SERVICE OF NOTICE," AMENDING SEC-
TION 2-44 "RIGHTS O. ,,VIOLATORS; PAYMENT OF FINE;
RIGI T-TO"AP AL; FOBLURE TO PAY AND CORRECT OR
TO "- ME . SECTION 241, "SCHEDULING
AND * RING," 'SEECTION 2-42,
°CIVIL 1'fi S AND RELATED TERMS CONSTRUED,"
AMENIPIREMECTION 2-43, "RECOVERY OF UNPAID CIVIL
PONA = UNPAID PENALTY TO CONSIT TUTS A LIEN;
FORM' AMENDING SECTION 244, _"APPEALS
OF SPE. LlSTER'S ORDER," AMEND SECTION `
2-46, "A �CIf AL ENFORCEMENT POWERS," AND DE-
LETING . 7; "SCHEDULE OF CIVIL PENALTIES"
OF THE VILLAGE CODE ADOPTING AN ALTERNATE CODE
ENFORCEMENT SYSTEM; PROVIDING FOR SEVERABILI-
TY; PROVIDING FOR INCLUSION IN THE VILLAGE CODE;
PROVIDING FOR EFFECTIVE DATE.
The proposed Ordinance may be inspected by the public at the Office of
the Villager Clert. Interested parties may appear at the Public Hearing and
be heard with respect to the proposed Ordinance. Any person wishing to
address the Villagecounai on any item at this Public Hearing is asked to
register with the Village Clerk prior to that item being heard.
-In accordance with the Americans With Disabilities Act of 1990, all per-
sons who are disabled and who need special accommodations to partici-
pate in this proceeding because of that disability should contact the Office
of the Village Clerk, 88 West McIntyre Street, Suite 220, Key Biscayne,
Florida 33149, telephone number (305) 365-5506, not later than two busi-
ness days prior to such proceeding.
Should any person desire to appeal any decision of the Village Council
with respect to any matter to be considered at this meeting, that person
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).
Comments of any interested party relative to this matter may be submit-
ted in writing and or presented in person at the public hearing.
Conchita H. Alvarez, CMC
Village Clerk
4/14 05-4-86/535922M