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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 i 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. 0 ' ` (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 2 "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; 3 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 4 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. 5 c? ` I 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 6 2A ` ' 4 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. 7 (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 8