HomeMy WebLinkAboutOrdinance 2016-485 ORDINANCE NO. 2016 - 485
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, AMENDING CHAPTER 14 OF THE
CODE OF ORDINANCES OF THE CITY OF SUNNY ISLES BEACH TO
ADJUST THE COMPENSATION FOR CODE ENFORCEMENT SPECIAL
MAGISTRATES; PROVIDING FOR SEVERABILITY; PROVIDING FOR
INCLUSION IN THE CODE; PROVIDING FOR REPEAL OF
CONFLICTING PROVISIONS; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City of Sunny Isles Beach (the "City") uses experienced attorneys to
serve as Special Magistrates on an as-needed basis to adjudicate code enforcement hearings; and
WHEREAS, said Special Magistrates are currently being compensated at a flat rate of
Two Hundred and Fifty Dollars ($250.00)per code enforcement hearing, regardless of the number
of hours for each hearing; and
WHEREAS, the flat rate paid by the City to the Special Magistrates has been compared
to what other Miami-Dade County municipalities pay their Special Magistrates; and
WHEREAS, City staff has determined that the City's current pay to Special Magistrates
is lower than what is paid by other Miami-Dade County municipalities; and
WHEREAS, City staff has recommended that the City adjust its current pay to Special
Magistrates from a flat rate of Two Hundred and Fifty Dollars ($250.00) to an hourly rate of One
Hundred and Fifty Dollars ($150.00) with a minimum of two (2) hours per hearing; and
WHEREAS, City staff has also recommend that all references in Chapter 14 ("Code
Enforcement") to "Special Master" be changed to "Special Magistrate"; and
WHEREAS, in order to meet this objective, it is necessary to amend Chapter 14 of the
City Code pertaining to qualifications, responsibilities, and compensation of Special Magistrates.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY
OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Incorporation of Recitals. The foregoing "WHEREAS" clauses are hereby ratified
and confirmed as being true and correct and are hereby made a specific part by this Ordinance
upon adoption hereof.
Section 2. Amendment. Chapter 14 of the City Code is amended to read as follows:
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§ 14-1.—Definitions.
For the purposes of this chapter, the following terms, phrases, words, and their derivations shall
have the meaning given herein. When not inconsistent with the context, words used in the present
tense include future, words in the plural number include the singular number and vice versa. The
word "shall" is always mandatory and not merely directory.
CONTINUING VIOLATION — A violation which remains uncorrected beyond the time period
for correction contained in either the civil violation notice or the final order of the Special Master
Magistrate, whichever is applicable.
REPEAT VIOLATION — A violation of a provision of the Code by a person whom the Code
Enforcement and Licensing Director, or his/her designee, or the Special Master Magistrate has
previously found to have violated the same provision of the Code. A repeat violation can occur
only after correction of the previous violation has been made.
SPECIAL MASTER MAGISTRATE—A person appointed pursuant to § 14-3 of this chapter.
§ 14-3. — Qualifications of Special Masters Magistrates; appointment and removal;
compensation.
Appointments of Special Masters Magistrates shall be made by the Manager, as needed, on the
basis of experience, skills and abilities and, whenever possible, shall include persons with legal,
zoning, engineering and/or construction experience. Such appointments shall be made for a term
of one year and first-time appointments shall be submitted to the Commission for ratification of
the Manager's appointments.
A. Special Masters Magistrates need not be residents of the City but shall possess outstanding
reputations for civic pride, interest, integrity, responsibility and business or professional
ability.
B. Appointments shall be made for a term of one year. Special Masters Magistrates may be
reappointed or removed, without cause, at the discretion of the Manager, subject to
ratification by the Commission. Appointments to fill any vacancy shall be for the
remainder of the unexpired term. Upon the termination of a term of an appointment as
Special Master Magistrate each Special Master Magistrate shall continue to serve as
Special Master Magistrate until a new appointment of a replacement as Special Master
Magistrate has been made by the City Manager and such new appointment has been
ratified by the City Commission. The Special Masters Magistrates so appointed shall
serve on a continually rotating basis.
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C. Special Masters Magistrates shall not be City employees and shall be compensated at a
rate not to exceed S-2-50 One Hundred and Fifty Dollars ($150.00) per hour with a Two
(2) hour minimum per hearing date, which fee shall include case preparation, execution
of final orders and attendance at all hearings, including appeals, if necessary.
D. If a Special Master Magistrate is removed from a case in the event of a conflict of interest,
the case may be assigned to another Special Master Magistrate.
E. If requested by the Special Master Magistrates, the City Attorney shall serve as counsel
to the Special Master Magistrates. If an appeal is taken, the City Attorney shall represent
the City at such proceeding; provided, however, if the City Attorney has represented the
Prosecutor at the earlier proceeding, s/he may not represent the City in that instance.
Special counsel shall be appointed for that representation.
§ 14-4. Powers of Special Master Magistrate.
Special Masters Magistrates shall have the power to:
A. Apply the rules for the conduct of hearings adopted by the Commission.
B. Subpoena violators and witnesses for hearings; subpoenas shall be served by the City
Police Department, or by City staff.
C. Subpoena evidence to hearings.
D. Take testimony under oath and review evidence to make findings of fact and draw
conclusions of law.
E. Assess and order the payment of civil penalties as provided herein.
F. Issue orders having the force of law to command whatever steps are necessary to
bring a violation into compliance.
G. Assess administrative hearing costs of no less than $75.
§ 14-5. Authority to initiate enforcement proceedings.
Code Enforcement Officers shall have the authority to initiate code enforcement proceedings and
to issue notices of civil violations as provided below. Special Masters Magistrates shall not have
such authority. A Code Enforcement Officer shall not by such designation have powers of arrest
or subject the officer to the requirements of§§ 943.085 through 943.255, F.S. (1995).
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§ 14-8. Civil penalties; continued and repeat violations.
G. Continuing violation penalties shall accrue from the date of correction given in the civil
violation notice until the correction is made, and compliance is obtained 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 Magistrate shall determine
a reasonable time period within which correction of the violation must be made, based on
the considerations set forth herein. If correction is not made within the period set by the
Special Master Magistrate, continuing violation penalties shall begin to accrue after the
time allowed for correction has run. No continuing violation penalties shall accrue during
the time period from the date of the civil violation notice until the date of the administrative
hearing, if the named violator timely requests an administrative hearing to appeal the
decision of the Code Inspector. Continuing violation penalties cannot be imposed by the
hearing officer for uncorrectable violations.
H. Civil penalties assessed pursuant to this chapter by the Special Master Magistrate are due
and payable to the City at the close of the hearing and shall become delinquent if not paid
within 10 days after notice to the violator of the Special Master Magistrate's decision
itemizing the civil penalties. If a proper appeal of the Special Master Magistrate's decision
is made, the civil penalties assessed pursuant to this chapter by the Special Master
Maeistrate are due and payable to the City when the appeal has been finally decided
adversely against the named violator.
§ 14-9. 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 civil violation notice shall elect to:
(1) Pay the civil penalty in the manner and within the time indicated on the civil
violation notice and correct the violation within the time specified on the civil
violation notice; or
(2)Request an administrative hearing before a Special Master Magistrate to appeal the
decision of the Code Enforcement Officer that resulted in the issuance of the civil
violation 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
Master Magistrate, the Director shall be informed of such failure by affidavit from 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 Master Magistrate. A
waiver of the right to administrative hearing shall be treated as an admission of the
violation, and penalties may be assessed accordingly.
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§ 14-10. 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 herein, the
office of the City Clerk, in consultation with the Special Master Magistrate, shall set
the matter down for hearing on the next regularly scheduled hearing date or as soon
thereafter as practicable.
B. The office of the City Clerk shall send a notice of hearing by first class mail or by
certified mail to the named violator at his last known address. The Code Enforcement
and Licensing Department may post the hearing notice, at the request of the City Clerk.
The notice of hearing shall include, but not be limited to, the following:
(1) Name of the Code Enforcement Officer who issued the civil violation notice.
(2) Factual description of the alleged violation.
(3) Date of alleged violation.
(4) Section of the Code allegedly violated.
(5) Place, date and time of the hearing.
(6) Right of violator to be represented by an attorney.
(7) Right of violator to present evidence, witnesses and 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 by the
Special Master Magistrate at least five calendar days prior to the date set for the
hearing.
C. If there are cases to be heard, the Special Master Magistrate shall call hearings on a
monthly basis or upon the request of the Director. Except for such circumstances as
described herein, no hearing shall be set sooner than 10 calendar days from the date of
service, not including Saturdays, Sundays and holidays.
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D. A hearing date shall not be postponed or continued unless a request for continuance,
showing good cause for such continuance, is received in writing by the Special Master
Magistrate at least five calendar days prior to the date set for the hearing.
E. All hearings of the Special Master Magistrate 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 by the office of the City Clerk.
G. The City Clerk shall provide clerical services and administrative personnel as may be
reasonably required by each Special Master Magistrate for the proper performance of his
or her duties.
H. Each case before a Special Master Magistrate shall be presented by the Director or his
designee. The Manager shall have the authority to retain legal counsel pursuant to
parameters that may be adopted by the Commission.
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 Master Magistrate
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 witnesses regardless of
which party first called that witness to testify; and to offer rebuttal of the evidence.
K. The Special Master Magistrate 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 Master Magistrate must find that substantial competent
evidence indicates that the named violator was responsible for the violation of the
relevant section of the Code.
L. The time for correction given by the Code Enforcement Officer to the named violator and
contained in the civil violation 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 Master Magistrate may
make a redetermination as to the time period being insufficient. If the Special Master
Magistrate determines that the time given for correction was insufficient, the penalty for
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a continuing violation shall be calculated from the date determined by the Special Master
Magistrate to be a reasonable date for correction.
M. If the named violator is found guilty of the violation, s/he shall be held liable for the
reasonable cost of the administrative hearing cost of no less than $75.
N. The fact-finding determination of the Special Master Magistrate shall be limited to
whether or not the violation alleged occurred, and, if so, whether the person named in the
civil violation notice may be held responsible for that violation. Based upon this fact-
finding determination, the Special Master Magistrate shall either affirm or reverse the
decision of the Code Enforcement Officer. If the Special Master Magistrate reverses the
decision of the Code Enforcement Officer and finds the named violator not responsible
for the Code violation in the alleged civil violation notice because the department did not
present substantial competent evidence to indicate that such violator is responsible for
the violation, then, and in that case,the named violator shall not be liable for the payment
of any civil penalty, absent reversal of the Special Master Magistrate's findings pursuant
to any circuit court appeals.
O. The decision of the Special Master Magistrate affirming the decision of the Code
Enforcement Officer shall include the following elements:
(1) Amount of civil penalty.
(a) Prescribed in the schedule of civil penalties as adopted herein.
(b) Gravity of the violation.
(c) Actions taken to correct said violation.
(d) Any previous violations committed by the violator of a similar nature.
(e) The Special Master Magistrate may mitigate the amount of civil penalties assessed
in an amount up to but not in excess of 50% of the total amount of civil penalty,
not including administrative costs. Provided, however, in no case shall mitigation
occur prior to satisfactory correction of the violation or other permanent
disposition of the building or property that obviates the need for correction. The
administrative costs of the hearing shall not be subject to mitigation at any time.
(2) Administrative costs of the hearing, which shall represent the costs incurred by
the City in preparation for the specific hearing, shall be no less than $75.
(3) Date by which the violation must be corrected to prevent resumption of continuing
violation penalties, if any.
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§ 14-11. Appeal of order of Special Master Magistrate.
A. An aggrieved party, including the City, may appeal a final order of a Special Master
Magistrate 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 Master
Magistrate. 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 thirty-
` day period shall render the findings of the Special Master Magistrate conclusive,
binding and final.
B. Unless the findings of the Special Master Magistrate are overturned, said findings of
the Special Master Magistrate shall be admissible in any proceeding to collect unpaid
penalties.
C. No aggrieved party other than the City may apply to the court for relief unless such
party has first exhausted the remedies provided for in this chapter and has taken all
available steps provided in this chapter. It is the intention of the City that all steps
provided by this chapter 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 City to
a court for relief except from an order issued by a Special Master Magistrate pursuant
to this chapter. It is the intention of the City that, notwithstanding anything in this
chapter to the contrary, the City 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 Clerk shall make available, for public inspection and copying, the record
upon which each final order of a Special Master Magistrate is based. The 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 for making
certified copies of any record or portion thereof.
§ 14-12. Rehearing.
A. Upon a filing of a petition for rehearing by a violator or by the City, a Special Master
Magistrate may rehear a case:
(1) To take additional testimony or issue a new order. The petition must be filed with the
City Clerk and must demonstrate that there is newly discovered evidence which could
not have been discovered through the use of due diligence prior to the original hearing
and which will probably change the result if a rehearing is granted; or
(2) The Special Master Magistrate has overlooked or failed to consider something that
renders the order issued erroneous.
B. Each petition for rehearing must be filed within 10 days of the filing of the last order
issued in the case.
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§ 14-13. Recovery of unpaid civil penalties; unpaid penalties to constitute a lien; foreclosure.
A. A certified copy of an order imposing a civil penalty 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 chapter shall continue to accrue until the violator
complies or until judgment is rendered in a suit to foreclose a lien filed pursuant to this
chapter, whichever occurs first. After three months from the date of filings of any such
lien that remains unpaid, the City may foreclose or otherwise execute the lien.
(1) Prior to the filing of the order imposing any civil penalties, the Code Enforcement
and Licensing Department shall endeavor to notify the subject property owner of any -
civil penalties due to the City as follows:
(a) A "second notice"/intent to lien and demand for payment detailing the nature
of the penalties and amount(s) due if payment of the penalties is not received
within ten calendar days of the date of intent to lien and demand of payment or
the order of the Special Master Magistrate.
(b) A final notice titled "final notice of intent to lien and demand for payment"
thereafter if the subject property owner fails to pay the amounts due within ten
calendar days of the service of the "second notice."
(2) No such notices shall be required if the alleged violator fails to appear at the subject
Special Master Magistrate hearing. In such a case the order of the Special Master
Magistrate shall be the final notice of intent to lien.
(3) Any and all orders recorded by the office of the City Clerk that impose penalties as
prescribed herein shall not be satisfied without the approval of the office of the City
Attorney in conjunction with the Special Master Magistrate based on a
recommendation from the Director of the Code Enforcement and Licensing
Department.
B. The City may institute proceedings in a court of competent jurisdiction to compel
payment of civil penalties and code enforcement liens.
C. No lien provided under this chapter 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
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interest and all costs, including a reasonable Aattorney's fee, incurred in the
foreclosure. The continuation of the lien affected 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. Superiority of lien. Effective July 1, 2009, City code enforcement liens shall remain
in dignity to all other liens, titles, encumbrances and claims until paid. The priority of
the code enforcement liens versus mortgages, liens and encumbrances in existence
prior to July 1, 2009, shall be determined upon the date of recording of the lien.
§ 14-15. Additional enforcement powers.
In addition to the powers and authority given to the Special Masters Magistrates for the City
pursuant to this chapter,the City may, in its discretion,exercise any powers given to municipalities
or their sSpecial masters Magistrates by Florida Statute, Chapter 162, as amended.
Section 3. 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,
clause, 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 4. Inclusion In The Code. It is the intention of the City Commission, and it is hereby
ordained that the provisions of this Ordinance shall become and made a part of the City of Sunny
Isles Beach Code; that the sections of this Ordinance may be renumbered or re-lettered to
accomplish such intentions; and that the word "Ordinance" shall be changed to "Section" or other
appropriate word,,as required.
Section 5. Repealer. All ordinances or part of ordinances in conflict herewith be and the same
are hereby repealed
Section 6. Effective Date. This Ordinance shall become effective upon adoption on second
reading.
PASSED and ADOPTED on first reading the 214 day of V 1.&,\\i/1 2016.
PASSED and ADOPTED on second reading the day of 2016.
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401
George H. Scholl; Mayor
ATTEST: ' • /
� l r
Jane A. Hines, MMC, City Clerk
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
A
e _
rAlgrA
ans Ottinot, ity Attorney
Moved by: L101i
Seconded by: lo Y a,, L.ec....v I+J
Vote: S-b
Mayor Scholl /(Yes) (No)
Vice Mayor Gatto (Yes) (No)
Commissioner Aelion _f,(Yes) (No)
Commissioner Goldman ✓des) (No)
Commissioner Levin (Yes) (No)
11
Words added underlined.words stricken deleted
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Item Coversheet Page 1 of 1
In
ks.'"T'sz, City of Sunny Isles Beach
41- '6: T, 18070 Collins Avenue
.� -, : Sunny Isles Beach,Florida 33160
„�'°,.Flow°o.' (305)947-0606 City Hall
'o.,,' '' (305)949-3113 Fax
MEMORANDUM
TO: The Honorable Mayor and City Commission
FROM: Hans Ottinot,City Attorney
DATE: 9/15/2016
RE: Ordinance amending Chapter 14 of the City Code
RECOMMENDATION:
It is recommended that the City Commission approve the proposed
Ordinance amending Chapter 14 of the City Code.
REASONS:
The City of Sunny Isles Beach (the"City")uses experienced attorneys
to serve as Special Magistrates on an as-needed basis to adjudicate
code enforcement hearings. The City currently compensates Special
Magistrates at a flat rate of Two Hundred and Fifty Dollars ($250.00)
per code enforcement hearing, regardless of the number of hours for
each hearing. The City's code enforcement hearings sometimes last
as long as three hours. The flat rate paid by the City to the Special
Magistrates was recently compared to what other Miami-Dade County
municipalities pay their Special Magistrates.
City staff has determined that the City's current pay to Special
Magistrates is lower than what is paid by other Miami-Dade County
municipalities. City staff has recommended that the City adjust its
current pay to Special Magistrates from the current flat rate of Two
Hundred and Fifty Dollars($250.00)to an hourly rate of One Hundred
and Fifty Dollars ($150.00). Special Magistrates will receive
compensation for a minimum of two (2) hours if the hearing does not
exceed two hours.City staff has also recommend that all references in
Chapter 14 ("Code Enforcement") to "Special Master" be changed to
"Special Magistrate". .
This Ordinance is being requested by the City Manager's Office.
ATTACHMENTS:
Description
Special Magistrate Rate of Pay
Ordinance
Notice of Public Hearing
Item Number:9.C.
http://sunnyisles.novusagenda.com/AgendaWeb/CoverSheet.aspx?ItemID=1969 9/7/2016
I. tsz City of Sunny Isles Beach City Commission oMayor
'Pa)
City y George"Bud"Scholl,rt/ayor
° 1- - =' F 18070 Collins Avenue, Suite 250 Jeanette Gatto, Vice Mayor
>` -`'v'0` n 3 Isaac Aelion, Commissioner
- 10:-. -. .' Sunny Isles Beach; Florida 3�160
= Dana Goldman,Commissioner
■* * (305)947-0606 City Hall Jennifer Levin,Commissioner
�: (305)949-3113 Fax
. X99,;'S"/SAP (305)947-2150 Budding Department Christopher J.Russo City dlanager
P F L O Hans Ottinot,City Attorney
ciTr of suo Pao (305) 947-5107 Fax Jane A.Hines,MNIC,City Clerk
MEMORANDUM
TO: - The Honorable City Commissio, ,I,
FROM: Hans Ottinot, City Attorney j 1110 .
DATE: July 21, 2016
RE: Ordinance amending Chapter 14 of the City Code
RECOMMENDATION
It is recommended that the City Commission approve the proposed Ordinance amending Chapter
14 of the City Code.
REASONS
The City of Sunny Isles Beach (the "City") uses experienced attorneys to serve as Special
Magistrates on an as-needed basis to adjudicate code enforcement hearings. The City currently
compensates Special Magistrates at a flat rate of Two Hundred and Fifty Dollars ($250.00) per
code enforcement hearing, regardless of the number of hours for each hearing. The City's code
enforcement hearings sometimes last as long as three hours. The flat rate paid by the City to the
Special Magistrates was recently compared to what other Miami-Dade County municipalities
pay their Special Magistrates.
. City staff has determined that the City's current pay to Special Magistrates is lower than what is
paid by other Miami-Dade County municipalities. City staff has recommended that the City
adjust its current pay to Special Magistrates from the current flat rate of Two Hundred and Fifty
Dollars ($250.00) to an hourly rate of One Hundred and Fifty Dollars ($150.00). Special
Magistrates will receive compensation for a minimum of two (2) hours if the hearing does not
exceed two hours. City staff has also recommend that all references in Chapter 14 ("Code
Enforcement") to "Special Master" be changed to "Special Magistrate".
This Ordinance is being requested by the City Manager's Office.
SAMPLE INDEX - SPECIAL MAGISTRATE'S RATE OF PAY
WITHIN MIAMI-DADE COUNTY, FLORIDA
MUNICIPALITY RATE OF PAY
Doral $150.00/Hour with minimum of two (2) hours per Hearing
Indian Creek Up to $500.00/Hour within discretion of the Village Manager
Miami Beach $150.00/Hour with maximum payment of$750.00 per Hearing
Miami Gardens $100.00/Hour with minimum payment of$300.00 for each Hearing
North Bay Village $500.00/Hearing
Pinecrest $100.00/Hour
South Miami $150.00/Hour