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HomeMy WebLinkAboutOrdinance 98-57 ORDINANCE NO. 98- 5 r:r AN ORDINANCE OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AMENDING ORDINANCE NO. 98-21 ESTABLISHING A CODE ENFORCEMENT PROCEDURE; PROVIDING DEFINITIONS; PROVIDING FOR CIVIL INFRACTIONS AND PENALTIES; QUALIFICATIONS, APPOINTMENT, REMOVAL AND COMPENSATION OF SPECIAL MASTERS; SETTING FORTH THE POWERS OF SPECIAL MASTERS; AUTHORITY TO INITIATE ENFORCEMENT AND SETTLE CASES; PROVIDING FOR ENFORCEMENT PROCEDURES INCLUDING THE CONTENTS AND METHOD OF SERVICE OF CIVIL VIOLATION NOTICES; PROVIDING FOR CIVIL PENALTIES AND RELATED TERMS CONSTRUED; PROVIDING FOR RIGHTS OF VIOLATORS; PAYMENT OF FINE; RIGHT TO APPEAL; FAILURE TO PAY AND CORRECT OR TO APPEAL; WILFUL REFUSAL TO ACCEPT CIVIL VIOLATION NOTICE; SCHEDULING AND CONDUCT OF HEARING; PROVIDING REMEDIES TO RECOVER UNPAID CIVIL PENALTIES; UNPAID PENAL TIES TO CONSTITUTE A LIEN AND PROVIDING FOR FORECLOSURE; PROVIDING FOR APPEALS OF ORDERS OF SPECIAL MASTERS; PROVIDING FOR ADDITIONAL ENFORCEMENT POWERS; ESTABLISHING A SCHEDULE OF CIVIL PENAL TIES; PROVIDING FOR REHEARING; PROVIDING FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR SEVERABILITY, INCLUSION IN THE CODE AND AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, THAT ORDINANCE NO. 98-21 BE AND THE SAME IS HEREBY AMENDED AS FOLLOWS: CODE ENFORCEMENT Section 1. Definitions. For the purposes of this Ordinance, 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. 098-21 Code Enf, Amendment (B) "Code Enforcement Officer" means any authorized agent or employee of the City whose duty it is to assure compliance with the Code. The term officer or inspector shall be interchangeable and shall have identical meaning. (C) "Continuing Violation" means 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, whichever is applicable. (D) "Manager" means the City Manager (E) "Notice of Violation" means a civil violation notice issued to a Violator in accordance with the provisions of this Ordinance. (G) "Repeat Violation" means a violation of a provision of the Code by a person whom the Special Master 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. (H) "Special Master" means a person appointed pursuant to Section 3 of this Ordinance. (I) "Commission" means the City Commission. (J) "City" means the City of Sunny Isles Beach. (K) "Violator" means that person or entity responsible for a violation of the Code and, if different, the owner of the property involved. (L) "Uncorrectable Violation" means a violation which is irreparable or irreversible in nature and which cannot be remedied after the violation has been committed because the violation constitutes a single prohibited act rather than an ongoing condition or circumstance. Section 2. Civil Infractions and Penalties. A violation of the Code shall constitute a civil offense punishable by civil penalty in the amount prescribed in Sections 8 and 15 of this Ordinance. 098-21 Code Enf, Amendment -2- Section 3. Oualifications of Special Masters: Appointment and Removal: Compensation. Appointments of Special Masters shall be made by the Manager, as needed, on the basis of ex erience" . . (A) Special Masters 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 yeat Special Masters 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. (C) Special Masters shall not be City employees and shall be compensated at a rate not to exceed $250 which fee shall include case preparation, execution of final orders, attendance at all hearings including appeals, if necessary. (D) If a Special Master is removed from a case case may be assigned to another Special Master. the (E) If requested by the Special Master, the City Attorney shall serve as counsel to the Special Master. If an appeal is taken, the City Attorney shall represent the City at such proceeding, provided however, ifthe City Attorney has represented the Special Master at the earlier proceeding, s/he may not represent the City in that instance. Special counsel shall be appointed for that representation. Section 4. Powers of the Special Master. Special Masters 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 the City Staff. (C) Subpoena evidence to hearings. 098,21 Code Enf. Amendment -3- (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)_ Section 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 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 Sections 943.085-943.255, F.S. (1995). Section 6. Enforcement Procedures. A Code Enforcement Officer is authorized to issue a _ Notice of Violation, to a person when, based upon personal investigation, the officer has reason to believe that the Violator has committed a civil infraction in violation of a duly enacted Ordinance and shall specify a reasonable time period, not to exceed thirty (30) days, 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; degree of nuisance to neighbors and neighborhood; and other relevant factors relating to the reasonableness of the time period prescribed. (B) If a Code Enforcement Officer has reason to believe that the violation represents a serious threat to the public health, safety or welfare or if the violation is an Uncorrectable Violation as defined above, the correction period shall not be applicable and the Notice of Violation may issue immediately. Section 7. Contents and Service of the _. shall contain: (1) The date and time of issuance. 098-21 Code Enf. Amendment -4- (2) The name and address ofthe person to whom the citation is issued. Name of Code EnfOlCemellt Office! and depc11tment issuing the Notice. (4) The section of the Code that has been violated. The facts constituting reasonable cause. Inst! uctions and date fOl pay ing the ci v il pe!lalt y 01 fOI filing a 1 equest fOI an ., . (9) A statement that each day of continued violation aftel the time peliod fOI conection has!tm shall be deemed a Continuing 'Violation subject to an additional .. . .. (11) A conspicuous statement that failwe to lequest an administrative heating within seven (7) days aftel sel vice of the Notice of Violation shall constitute a waiVe! ofthe ViolatOl's light to an administtati ve hec11ing herOle the Special Mastel, aad that such waivel shall constitute an admission of the violation, and that in such case (12) A statement that the Violatol may be liable [01 the leasonable administtative hec11ing costs should they be fOund gailty. 098-21 Code Enf. Amendment -5- (B) Service ofthe Civil Violation Notice or Citation to the Violator shall be effected by hand delivery to the Violator; by leaving the Civil Violation Notice at the Violator's usual place of residence with any person residing therein who is 15 years of age or older and informing such person of the contents of the Civil Violation Notice; by overnight courier; by certified mail (return receipt requested) to the Violator's usual place ofresidence or other property, which service shall be deemed completed upon signing ofthe receipt; or by posting the Civil Violation Notice in a conspicuous place on the premises or real property upon which the violation was observed. Any method of service of the Civil Violation Notice described above, shall be deemed proper service, and the time for compliance stated in the Civil Violation Notice shall commence with the date of such posting. Section 8. Civil Penalties and Related Terms Construed. (A) Penalties for violations ofthe provisions to be enforced through this Ordinance shall be in the amounts prescribed in the schedule of civil penalties contained in Section 15 of this Ordinance. Provided however, that the maximum civil penalty shall be $250 for a single violation. Ifthe violation is continuing or repetitive, a single violation will occur each day beyond the time for correction set forth in the civil violation notice. (B) For each day of a Continued Violation, an additional penalty in the same amount as that prescribed for in the original violation shall be added. (D) For the first Repeat Violation, the amount of the civil penalty shall be double the amount of the penalty prescribed for the original violation by Section 17 ofthis Ordinance. The amount of civil penalty due for each subsequent Repeat Violation shall be double the amount of penalty due for the first day ofthe immediately preceding violation, provided that the maximum penalty payable for the first day of anyone Repeat Violation shall be $500.00. (E) A Repeat Violation which remains uncorrected beyond the time prescribed for correction in the Civil Violation 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. 098-21 Code Enf, Amendment -6- (G) Continuing Violation penalties shall accrue from the date of correction given in the Civil Violation 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 ofthe violation must be made, based on the considerations set forth in Section 7(A) of this Ordinance. If correction is not made within the period set by the Special Master, Continuin Violation enalties shall be in to accrue a ainst after the time for correction has run. ffl Civil penalties assessed pursuant to this Chapter are due and payable to the City 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 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) Correct the violation within the time specified on the Civil Violation Notice to avoid the civil penalty; or (2) 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 (3) Request an administrative hearing before a Special Master to appeal the decision ofthe Code Enforcement Officer which resulted in the issuance ofthe Civil Violation Notice. (B) An appeal ofthe Civil Violation Notice shall be accomplished by filing a request in writing to the address indicated on the Civil Violation Notice, not later than seven (7) calendar days after the service of the Civil Violation Notice. 098-21 Code Enf, Amendment -7- (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, the Manager 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. A waiver of the right to administrative hearing shall be treated as an admission of the violation, and penalties may be assessed accordingly. Section 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 for in Section 7, the City Manager, in consultation with the Special Master, shall set the matter down for hearing on the next regularly scheduled hearing date or as soon thereafter as practicable. (B) The Manager shall send a notice of hearing by first class mail to the named Violator at his last known address. The notice of hearing shall include, but not be limited to, the following: (1) Name ofthe 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 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 at least five (5) calendar days prior to the date set for the hearing. (C) If there are cases to be heard, the Special Master shall call hearings on a monthly basis or upon the request of the City Manager. Except for such circumstances as described in Section 6(B) above, no hearing shall be set sooner than ten (10) calendar days from the 098-21 Code Enf. Amendment -8- date of service not including Saturdays, Sundays and holidays. (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 at least five (5) calendar days prior to the date set for the hearing. (E) All hearings of the Special Master shall be open to the public. All testimony shall be under oath. Assuming proper notice, a hearing may proceed in the absence ofthe 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 City Clerk shall provide clerical services and the City Manager shall provide administrative personnel as may be reasonably required by each Special Master for the proper performance of their duties. (H) Each case before a Special Master shall be presented by the Manager or his or her 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 finds it competent and reliable, regardless of the existence of any common law or statutory rule to the contrary. (1) 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 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 must find that a preponderance of the evidence indicates that the named Violator was responsible for the violation of the relevant section ofthe 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 may make a redetermination as to the time period being insufficient. If the Special Master 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 Master to be a reasonable date for correction. 098-21 Code Enf. Amendment -9- ~," . The fact-finding determination of the Special Master shall be limited to whether I . the violation alleged did occ~, 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 shall either affirm or reverse the decision of the Code Enforcement Officer as to the time for correction contained in the Civil Violation Notice, subj ect to the provisions of Subsection (L) hereinabove of this Ordinance. If the Special Master reverses the decision ofthe Code Enforcement Officer and finds the named Violator not res onsible for the Code violation alle ed in the Notice of the named Violator shall not be liable for the payment of any civil penalty, absent reversal ofthe Special Master's findings pursuant to Section +41 of this Ordinance. (N) The decision I the Special Master affirming the decision ofthe Code Enforcement Officer, shall include the following elements: (1) (3) Date by which the violation must be corrected to prevent resumption of Continuing Violation penalties, if any. Section 11. Recovery of Unpaid Civil Penalties: Unpaid Penalty to Constitute a Lien: Foreclosure. (A) The City 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 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 Ordinance shall continue to accrue until the Violator complies or until 098-21 Code Enf Amendment -10- judgment is rendered in a suit to foreclose a lien filed pursuant to this Chapter, whichever occurs first. After three (3) months from the date of filings of any such lien which remains unpaid, the City may foreclose or otherwise execute the lien. (C) No lien provided under this Ordinance shall continue for a period longer than twenty (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 12. Appeals of Order. (A) An aggrieved party, including the City, may appeal a final order of a Special Master 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. An appeal shall be filed within thirty (30) calendar days ofthe issuance ofthe order sought to be overturned. Failure to make such appeal within the prescribed thirty (30)-day period shall render the findings of the Special Master conclusive, binding and final. (B) Unless the findings of the Special Master are overturned in a proceeding held pursuant to Section ~ . of this Ordinance, findings of the Special Master 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 Ordinance and has taken all available steps provided in this Ordinance. It is the intention of the City that all steps provided by this Ordinance 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 pursuant to this Chapter. It is the intention ofthe City that, notwithstanding anything-to I this Ordinance 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 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. Section 13. Provisions Contained Herein are Supplemental. Nothing contained in this Ordinance shall prohibit the City from enforcing its Code by any other 098-21 Code Enf, Amendment -11- means. The enforcement procedures outlined herein are cumulative to all others and shall not be deemed to be prerequisites to filing suit for the enforcement of any section ofthis Code. Section 14, Additional Enforcement Powers. (A) In addition to the powers and authority given to the Special Masters for the City pursuant to this Ordinance, the City may, in its discretion, exercise any powers given to municipalities or their special masters by Florida Statute, Chapter 162, as amended. (B) Alternatively, the City may choose to enforce compliance for any code violation, depending on issues of health, safety and welfare, through the filing of an injunction in a court of competent jurisdiction. Section 15. Schedule of Civil Penalties. (A) The schedule of civil penalties, as may be amended from time to time, shall be the same as set forth in Section 8CC-1O ofthe Code of Miami-Dade County as if fully set forth herein and is attached for convenient reference. (B) For violations of an section of this Code for which a specific penalty is not prescribed in Section 17 a penalty shall be imposed which shall not be less than $25.00 nor more than $250,00 per day for a first violation and shall not be less than $50.00 nor more than $500.00 per day for a repeat violation. For the purposes of continuing violations, each day shall constitute a separate violation. Section 16. R~eal of Conflict Provisions. Except for Section 8CC-10 (Schedule of Civil Penalties) which shall remain in full force and effect, the remainder of Chapter 8CC of the Miami-Dade County Code as made applicable to the City by Article 8, Section 8.3 of the City Charter is hereby repealed. Sectionl7. Rehearings. Upon a filing of a petition for re-hearing by a Violator or by the City, a Special Master may re-hear 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 re-hearing is granted, or (2) the Special Master has overlooked or failed to consider something which renders the order issued erroneous. Each petition for re-hearing must be filed within ten (10) days of the filing of the last order issued 098,21 Code Enf, Amendment -12- in the case. Section 18. Severability. The provisions ofthis Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held up to be invalid or unconstitutional, such decision shall not affect the validity ofthe remaining sections, sentences, clauses, and phrases ofthis 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 ofthe Commission, and it is hereby ordained that the provisions ofthis 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 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 ten days after adoption on second reading. PASSED AND ADOPTED ON FIRST READING the 12th day of November, 1998. PASSED AND ADOPTED ON SECOND READING this \~ YOf~'.~ 1998. ;, ..... . ,; l 1 ., A Trr'EST: J " ) . ,. , . ; " '", . - APPROVED AS TO FORM AND LEGAL SUFFICIENCY 098-21 Code Enf. Amendment -13- Moved by: ~~ ~ Seconded by:C1u.v.:~~ 11 ~ VOTE: 5rQ Mayor Samson Vice Mayor Turetsky Commissioner Iglesias Commissioner Kauffman Commissioner Morrow 098-21 Code Enf. Amendment (~es (~es (\(yes ('1'1es (&fYes -14- Ono Ono Ono Ono Ono