5708-94 ORDINANCE NO. 5708..94
AN ORDINANCE OF THE CITY OF [il.FARWATER, FLORIDA,
CREATING RTICLE VII WITHIN CHAPTER 2, CODE OF
ORDINANCES, RELATING TO CODE ENFORCEMENT; TRANSFERRING
SECTIONS 2.211 THROUGH 2.221 , RELATING TO THE MUNICIPAL
CODE. ENFORCEMENT BOARD, TO DIVISION 'I WITHIN ARTICLE
VII , AND CREATING SECTIONS 2.665 THROUGH 2.676 WITHIN
DI`JISI0)NI 2 OF ARTICLE VII , ADOPTING AN ALTERNATIVE CODE
ENFORCEMENT SPECIAL MASTER SYSTEM; PROVIDING FOR
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EXPEDITED ENFORCEMENT °PROCEDURES; PROVIDING FOR THE
ENFORCEMENT OF CODES AND ORDINANCES OF THE CITY BY A
CODE ENFORCE ENT SPECIAL MASTER; ESTABLISHING THE POWERS
OF THE CODE ENFORCEMENT SPECIAL MASTER; PROVIDING FOR
NOTICE,, HEARING, AND PROCEDURAL MATTERS; PROVIDING FOR
THE ASSESSMENT OF ADMINISTRATIVE FINES; PROVIDING FOR
PENALTIES, AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Florida Legislature has authorized municipalities to adopt an
alternate code enforcement system which give code enforcement special ;taster$ the
authority to hold hearings and assess -`fines against violators of municipal cedes
and ordinances, and
WHEREAS,; the City Commission has created a municipal code enforcement board
vested with such powers: as authorized by the Florida Legislature through Part I
of Chapter 162,, Florida Statutes; and
WHEREAS', The City Commission finds that the °adoption of an alternative code
enforcement system using a special master and enforcement procedures as provided
herein would serve the public health, safety and welfare; now, therefore,
BE IT ORIDAINED BY THE CITY COMMISSION OF THE CITY OF CLEARW TER,
FLORIDA
Section 1 . Article VII is created within Chapter 2, Code of Ordinances,
entitled "Code Enforcement, " and Divisions 1 and 2-are created within Article VII
entitled "Municipal Code Enforcement Board" and "Code Enforcement Special
Master, " respectively. Sections 2.211 through 2.221 are transferred to Article'
VII and renumbered as Sections 2.650 through 2.660, respectively, within Division
I of Article VII.
Section 2. Sections 2.655 through 2.676, Code of Ordinances, are hereby
created within the new Division 2 of Article VII of Chapter 2, Code of
Ordinances, to read:
Article VII . Cade Enforcement
Division 2. Code Enforcement Special Master.
Sec. 2.665. Create d;, purpose; powers.
(1) There is hereby created, pursuant to Section 162.03, Florida Statutes
(1993) , the position of code enforcement special master for the City of
Clearwater, Florida. The code enforcement special master small exist for the
purpose of enforcing t(le codes and ordinances of the c 1 Cy and sha I I lave Sian
power and duties to enforce such codes and ordinances, conduct hearings, and
assess fines , as provided herein.
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(2.) Code enforcement special master.
(a) The city commission may appoint one or more code enforcement
special master for the purp se of enforcing the codes and ordinances of the c ity.
Each code enforcement special master shall serve at the pleasure of the city
commission.
(b) The code enforcement; special master shall be an attorney. the
appointment shall be made by the city Commission on the basis of experience or
interest in the fields of zoning, building control , and code enforcement.
(c) The code enforcement special master shall not be 'a city
employee, but may: be compensated' at a rate_ established by resolution of the city
commission based '`upon` recommendation of the city manager and city attorney. In
addition, the code enforcement special master may be reimbursed for ;such gavel ,
mileage, and per Hem as may be authorized by the City commission.
(d) The city commission shall provide such cerical and
ad inistrative personnel as the city commission shall deem is reasonably required
to support the otivi ies of the code enforcement special master for the proper
performance of his duties The code enforcement special master shall not be
authorized to engage`, hire, or use any person, " except those ;;provided or
authorized by the city commission, to assist him in the performance' of his
duties.
(e) The cone enforcement special master shall have the powers and
duties as sot forth in this article and shall have jurisdiction over alleged
violations of thEs provisions of this code as set forth it Section '2.667.
Sec. 2.666. Definitions.
As used in this article, the following words and terms shall have the
following meanings:
"Code inspector" means those authorized agents or employees of -the city
whose duty it is to ensure compliance with the codes and ordinances of the city.
"Hearing" means a regular or special convening by the code` enforcement
special master to transact any business within the powers of the special,master,
including hearings on alleged violations of codes and ordinances.
"Prosecutor" means the city attorney or assistant city attorney, or an
attorney appointed by the city attorney to present cases to the code enforcement
special master on behalf of the City.
"Repeat violation" means a violation of a provision of a code or ordinance,
of the city by a person whom the special master, the code enforcement board or
county court previously has found to have violated the same provision within five
years prior to the violation
"Rules" means the rules of procedure for the code enforcement special
master.
"`,pecial master" means the code enforcement special master appointed by the
city commission
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"Violator" rineans a person alleged to, or who has been found .to have
violaM a code or ordinance of the city which the code enforcement special
master hays jurisdiction to enforce.
Sec. 2.667. Arri diction.
(1) The cod e enforcement special master shall have the jurisdiction and
Mho ity to hear and decide ,alleged violations of the codes and ordinances of
the city as the sgrme may be amended from time to time.
(2) The jurisdiction of the code enforcement special master shall not be
exclu iye, and nothing contained in this article shall prevent the city from
faking such other !awful action, including but not limited to resorting to such
equitable action as may be necessary to enforce the codes and ordinances of the
ity dare jurisdiction of the municipal code enforcement board, or 'any other
board of the city, shall not be construed to limit the powers of those` boards so'
as to prevent them from exercising their~ authority on nutters of common
jurisdiction with the code enforcement "special master,
Sec. 2.668. Procedure, initiation of proceedings.
11) proceedings before the code enforcement special master shall oily be
initiated by e code enforcement inspector. When: a code inspector finds or is
made` aware of the violation of d code or ordinance of the city, the code.
inspector shall issue a notice of violation to the violator,
( ) Except in the case of a repeat violation!, the code inspector who
finds a violation ;shall determine a reasonable time period within ,which the
viol.ator must Correct the violation. This determination shall be based on
considerations of fairness , practicality, ease.of correction, ability to correct,
severity of violation, nature, extent, and probability of dagger or damage to the
public, and other relevant factors relating to the reasonableness of the time
period prescribed.
(3) The notice of violation shall include, but not be limited to the
fol low inn:
(a) date of issuance;
t,b) name of code inspector �nd division or department issuing the
notice;
4;d ) name and address of violator;
(d') section number or numbers of the code sections or ordinances
(e) brief description of the nature of the violation, including
location, date, and time of violation;
1f) time within which the violation must be corrected, except in
the case of a repeat violation or recurring violatio.i;
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fig) notice that the violator may be liable for the reasonable costs
of the investigation, prosecution and the administrative hearing should he be
found guilty of the violation.
(4) Should a. violation continue beyond the time specified in the notice
for correction, the code inspector shall notify the special master and request
a hearing. The special master shall schedule a hearing, and written notice of
such hearing shall be provided to t violator volator as provided in this article. If
'the violation is corrected and then recurs, the case may be presented to the
special master evens if the violation is corrected prior to the hearing, and the
notice shall so state.
(5') If a repeat violation is found, the code inspector shall notify the
violator, but is not required to give the violator a reasonable time to correct'
the violation. Upon notifying the violator of a repeat violation, the code
inspector shall notify the special master and request a hearing,. The special
master shall schedule a hearing and shall provide notice of the hearing as
provided in this article. The case may be presented to the special master even
if the repeat etiolation has been corrected prior-to the hearing, and the notice
shall so state. Repeat violation penalties shall accrue from the date of the
issuance of the notice of violati"on until correction is made or until further
order of the special master.
(6) If the alleged violator fails to attend the hearing before the
special master, such failure shall constitute a waiver of the violator' s right
to an administrative hearing before the special master and shall be deemed an
admission of' the violation and the special master shall impose civil penalties
and costs as provided in this article.'
Sec. 2.669. Hearing procedures.
(1) At a hearing before the code: enfr-rcement special master, the 'burden
of proof shall be upon the City to show, by e, , reponderance of the evidence, that
a violation does exist. The case, on behalf of the city shall be presented
first; and the alleged violator, cr his duly designated representative, shall;
then be provided an opportunity to present his case. All hearings shall be held
at city hall , or such other place as designated by the special master and shall
be open to the public.
(2) The city attorney, or his designee, or a code enforcement inspector"
shall present all cases to the special master. If the city prevails in
prosecuting a case before the special master, the city shall be entitled to
recover all costs incurred in prosecuting the case before the special master.
(3) All test.imory shall be under oath. The special master shall have the
power to administer at) oath to any witness. The special master shall take'
testimony from the code inspector, the alleged violator, and any other person
familiar with the case or having knowledge concerning it. The special master
shall not be bound by formal rules of evidence. Irrelevant, immaterial or duly
repetitious evidence shall be excluded, but all other evidence of a type commonly
relied upon by reasonably prudent persons in the conduct of their affairs shall
be admissible, whether or not such. evidence �,ould be admissible in a trial in a
court of law within the state. Any part of the evidence may be received in
written form. The alleged violator, or his duly authorized representative, and
the prosecutor or, inspector shall be permitted to cross-examine any wit—ness
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bef re the special master. All hearings before the special master shall be
conducted so as to ensure fundamental due process.
( ). At the conclusion of the hearing, the special piaster may issue
findings of fact and conclusion of law, and shall issue an order affording the
proper r-lief consistent with the powers granted to the special master. At the
conclusion of the hewing, the special master may render his order orally Ire
such event, the order shall be reduced to writing and mailed to the a �leged
violator withi"n a reasonable time following the date of the hearing. Should `the'
special piaster find he is unable to render a decision because of questions of law
or other matters oa suchi a nature that a decision cannot be immediately made, the
special master may withhold rendering his decision until a later date'. In such
case, further discussion of the pending matter shall only take place at a public
hearing held by ti,le special roaster.
If the special master finds that the alleged violator did not ,commit
the violation as alleged, the violation shad be dismissed. In such case;, the
alleged violator shall not be liable for the payment of any civil penalties or
reasonable costs of the investigation, prosecution and the administrative
hearing;;
(o) If the special master finds that the alleged violator committed the
violation as +alleged, the special master shall issue findings of fact and
conclusions of law; which shall include an order that shall have the force of
law. The order shall set forth the steps necessary to be accomplished in 'order
to bring a violation into compliance with the code or ordinance that has` been,
violated; shall , if applicable, specify the date by which the violation must be
corrected; shall , if applicable, specify that a fine may be imposed if the order
is not complied with by such date; and shall , if applicable, impose the accrued
civil penalties upon such violator and assess such other civil penaltiles as
provided in this article.. the special master may impose reasonable costs
incurred by the city for the investigation and prosecution of the matter and for
the 'administrative hearing.
(7) A certified copy of an order of the code enforce mE,t special master
may be recorded in the public records of the county and shall constitute notice ;
to any subsequent purchasers, successors in interest, or assigns if the violation
concerns-real. property, and the findings and orders therein shall be binding upon
the violator and,, if the violation concerns real property, any subsequent.
purchasers, successors in interest or assigns. If an order is recorded in the
public records pursuant to this section and the order is complied with by the
date specified in the order, the code enforcement special master shall issue an
order acknowledging compliance that shall be recorded in the public records. A
herring is not requ;red to issue such an order acknowledging compliance.
(8) Upon being notified by the code inspector that an order issued by the
special roaster has not been complied with within the time established in such
order or upon finding that a repeat violation has been committed, the special
master may order thEl ;violator to pay a fine to the city in an amount specified'
in this article for each day the violation continues past the compliance date
established in his order or-, in the case of a repeat violation for each day the
rea'e'at violation continues past the date of notice to the violator of the repeat
violation. If a finding of a violation or repeat violation has been made as
provided in this article, a hearing shall not be necessary for issuance of the
order imposing the fine.
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Sec 2. 70 Dowers.
The special master shall have the power to:
(1) Establish rules of procedure for the conduct of hearings;
(2) Issue subpoenas for records, surveys, plats, documentar y materials
or any other evidence;
31 Subpoena witnesses to appear at its hearings. Subpoenas may be
served by any person authorized under law.
Take testimony under oath;
(S`) issue orders having the force and effect of law which can command
such steps as are necessary to bring a violation into compliance with the code
or ordinance that has been violated
(6) Order the payment of fines as is provided for in this article and the
payment of reasonable costs incurred by the city for the investigation and
prosecution of the matter and for the administrative hearing.
Sec. 2.571. Subpoena procedures.
Subpoenas shall be issued it the name of the special master and shall be
signed by the cite clerk. Both the code inspector and the alleged violator, or
his designated representative, shall be entitled to request the issuance of
subpoenas. The special master shall have the right to refuse to issue subpoenas
which relate tol wiltnesses or evidence not located within the city limits , in any
sitda-Lion where the requests for a subpoena would serve to prevent the
expeditious enforcing of the codes, ordinances, and ,regulations with-En the
jurisdiction of the special master or when the quantity of subpoenas requested
is unreasonably burdensome. Persons subpoenaed shall be entitled to a witness
fee and €mileage compensation as provided for in Section 92.142, Florida Statutes,
as amerded. The witness fee, mileage payment, and any charge for the service of
the subpoena 'shall be borne by the party requesting the subpoena and shall be
paid in 'advance of the subpoena being issued. The names of persons for whom
subpoenas have been issued shall be deemed a matter of public record.
Sec. 2.572. Penaties.
(1) The special master may order a violator -to pay a fine not exceeding
250.00 for each first ;,iolation, a, fine not exceeding $500.00 per day for each
repeat violation, and all accrued fines and costs as provider' for in this
article.
(2) The special master may reduce a fine imposed pursuant to this
article. V
(S) A certified copy of an order imposing a fine may be recorded in the
public records of the county. Upon recording, the order shall constitute a lieu
against the land on which the violation exists and upon any other real or
personal pr
oper°ty owned by the violator. Such lien shall be superior to all
other liens, excepts a lien for taxes. Upon petition to the circuit court.;, such
order may be enforced in the same manner as a court .judgment by the sheriffs of
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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 fine imposed pursuant to this article shall continue to accrue
until the violator comes into compliance or until judgment in a suit to foreclose
on a lien filed pursuant to this article, whichever occurs first. Should: any
such <lien remain unpaid after three months from the date of its filing, the
special master may authorize the city attorney or his designee to foreclose the
same in the same manner as is provided by law for -the foreclosure of other
municipal liens or alternatively, as provided by law for the foreclosure of
mortgages. No lien created pursuant to this article may be .foreclosed on real
property which is homestead under Section 4, Art. X of the Florida Constitution.
(5) in an action to enforce an order or to foreclose on a lien as
provided in this section, the prevailing party shall be entitled to recover all
costs, including a reasonable attorneys fee, that it incurs thereby. The city
shall be entitled to collect all costs 'incurred in recording aril satisfying a
valid lien. The continuation of the lien effected by the commencement of the
actions shall not be ,good against creditors or subsequent purchasers for valuable
consideration without notice, unless a notice of its pendens is recorded.
Sec, 2.673`. Notices.
All 'notices required by this article shall be provided in accordance with
the provisions of Section 162.12, Florida Statutes , as amended.
Sec. ;2.67 . public records; record on appeal .
(2) All documents, minutes; and records of the special master shalfl be
public records.
(2)' If a part, to the proceedings before the special master should decide ,
to appeal the decision of the _special master, a verbatim record of the
proceedings may be required, or may be desirable. It shall be the sole
responsibility of each party to the proceedings to ensure that a record is made
which' includes the testimony upon which an appeal may be taken.
Sec. 2.675. Appeall .
An aggrieved party, including the city, may appeal a ruling or order of the
special master by commencing appropriate proceedings in the circuit court, for
Pinellas County. An appeal shall be filed within 30 days of the execution of the
order to be appealed. Such appeal shall not be a hearing de novo, but shall be
1 im; �.eo to review of the record creaked before the special raster.
Sec. 2.676. rehearing of Code enforcement special master action.
(1) Either the prosecutor or, the violator may request a rehearing of the
decision of the special master. A request for rehearing hall be made;, in
writing, and shall be delivered to the city clerk within ten days of the date
that the special maSter mails his or her written order pursuant to Section 2,669,.
A request for rehearing shall be based only on the ground that the decision was
contrary to the evidence or that the hearing involved an error on a ruling of law
which was fundamental to the decision of the special roaster. The written. request
for rehearing shall specify the pre i se reasons therefor.
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(2) The special master shall make a determination as to whether or' not
to rehear the mac�ter. If the special master determines he wi 11 grant a
rehearing,; he may:
(a) Schedule a hearing where the parties will be given the
epportunity of presenting evidence or argument limited by the special master to
the specific reasons for which the rehearing was granted; or
(o), Modify or reverse his prior order, without receiving further
evidence, providing that the change is based on a finding that the prior decision
of
the special master resulted from a rut ing or. a quest ion of law which the
special master has been informed was an erroneous ruling,
(3) Until a ;request for rehearing has been denied or otherwise disposed
off, the order of the special master shall. be stayed; and the time for taking an
appeal shall not commence until the date upon whicii 'the special raster has
finally dispose of -he request for rehearing by denying the same, or otherwise.
Section 3. This ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING December 2, 1994
PASSED ON SECOND AND FINAL READING
AND ADOPTED January 5, ,1995
Rita Garvey
Mayor-Commissioner-
Attest:
Cyh i a E. iaoudeau
Cif Clerk
'r
Appro as to norm a
1 ega f ' n ,
e
Interim City t orney
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