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12-05-00 v CITY OF ATLANTIC BEACH CODE ENFORCEMENT BOARD MINUTES • DECEMBER 5, 2000 Call to order: PRESENT: Curtis Sanders, Chairman Tami Deitchman Richard Mann Karl W. Grunewald Robert Etheridge James Pelkey AND: Alex Sherrer, Code Enforcement Officer Patti Kotchkowski, Secretary ABSENT: E.T. Fernandez, III The meeting was called to order at 7:30 p.m. by Chairman Curtis Sanders, followed by the Pledge of Allegiance to the Flag. 1. The Secretary read the roll, finding that Board Member E. T. Fernandez, III was absent. 2. Approval of the Minutes of the Regular Meeting held on September 12, 2000. Following a brief review of the Minutes of the September 12, 2000 meeting, a motion was made by James Pelky, seconded Tami Deitchman, and unanimously carried to approve the minutes as presented. 3. Recognition of Visitors and Guests regarding any matters that are not listed on the agenda. There were no visitors or guests present at the meeting. 4. Unfinished Business: A. Follow-up on Case No. 00-8878 - Hattie L. Tillman, 64 Jackson Road (RE#172041-0000). Violation of Chapter 12, Section 12-1-7, abandoned vehicles. Code Enforcement Officer Sherrer informed the Board that he had been unable to determine if Ms. Tillman had paid the administration fees. This matter is being investigated by the finance department and the system of tracking such payment is being revamped. Mr. Sherrer indicated that since no liens were posted against Ms. Tillman's property he was • assuming that payment has been made . B. Follow-up on Case No. 00-8985 -J. Malcolm Jones, 161 Beach Ave. • (RE#170215-0000). Violation of Chapter 24, Section 24-157(a), violation of height limitations for fences. Code Enforcement Officer Sherrer summarized this case which involved a fence that exceeded the six foot high limit. Mr. Jones had applied for a variance and the variance was denied. The case came back to the Community Development Board and Mr. Jones was asked to reapply because he had additional information to provide. The Board agreed to reconsider his case, and this matter will be heard in January, 2001. 5. New Business: A. Vote to petition the City Commission for change to Animal Citation Code. Request for Animal Citation hearings be held by county court instead of by the Board. At the last meeting the board discussed whether or not they wanted to continue to hear Animal Citations or have them to go to County Court. The City Manager has asked that the Code Enforcement Board vote on which way they want these cases to be heard so that he can present the recommendations of the board to the Commission so that the City Commission can then direct the City Attorney to draft the appropriate changes to the City Code. • Following a brief discussion; on a motion properly made and seconded the board voted unamimously to send the Animal Citations hearings to the county court. Code Enforcement Officer Sherrer distributed and reviewed the November Code Enforcement Monthly Report. He also distributed a Advisory Legal Opinion on the City of Fernandina Tree ordinance, for informational purposes. New Code Enforcement Secretary Patti Kotchkowski was introduced. 6. Board Member Comments: Richard Mann expressed concern regarding gang graffiti and Alex Sherrer said he would convey his concerns to the Police Chief. 7. Adjournment There being no further discussion or business s come before the Board, the meeting adjourned at 8:00 P.M. dir - Curtis Sanders, Chairman Code Enforcement Board Patti Kotchkows i - Secretary Ili Florida Attorney General Page l of 7 Advisory Legal Opinion Number: AGO 2000-53 Date: September 15, 2000 Subject: Municipalities, enforcement of tree ordinance/fine Mr. Wesley R. Poole Fernandina Beach City Attorney Post Office Box 1280 Fernandina Beach, Florida 32035 RE: MUNICIPALITIES--ORDINANCES--FINES--CODE ENFORCEMENT-- enforcement of tree ordinance and reasonableness of fine . Ch . 162 , Fla. Stat. Dear Mr. Poole: • You have asked for my opinion on substantially the following question: Is the City Commission of the City of Fernandina Beach authorized to adopt and enforce an ordinance pursuant to section 162 .21 , Florida Statutes , prohibiting the removal of trees without a permit with a penalty of $12 ,500 or more for violation of that ordinance? In sum: The City of Fernandina Beach is authorized to utilize enforcement mechanisms other than section 162 .21 , Florida Statutes , to enforce a "tree ordinance" with a penalty greater than that set forth in section 162 .21 , Florida Statutes . For example, Part I , Chapter 162 , Florida Statutes , currently authorizes municipalities to assess fines of up to $15,000 for municipal code violations if the violation is found to be irreversible or irreparable in nature . A number of Florida municipalities, including Tallahassee and Gainesville, currently enforce ordinances regulating the III removal of trees . [1] You have advised this office that the City of Fernandina Beach is considering the adoption of a http://legal 1.firn.edu/ago.nsf/aaee377.../2df8cd9ae4bdbb8a8525695e004dbe41?OpenDocumen 12/4/00 Page 3 of 7 0 - ' court concluded that a city could utilize the code enforcement board scheme of Chapter 162 , Florida Statutes , 111/ and prosecute municipal code violations in county court. As the court recognized, u [t]he Legislature has provided that the code enforcement board procedure is supplemental to other means of securing code compliance. " [5] Thus, a municipality has several options for enforcement of municipal code violations : the code enforcement board mechanisms in Parts I and II, Chapter 162 , Florida Statutes , interlocal agreement, direct enforcement through the county courts , and combinations of these methods . [6] You have advised this office that the City of Fernandina Beach currently prosecutes violations of municipal ordinances exclusively through use of the procedures in Part II , Chapter 162 , Florida Statutes . Part II, Chapter 162 , Florida Statutes , authorizes municipalities to designate employees or agents as code enforcement officers whose duty is to enforce codes and ordinances enacted by the municipality. [7] Under these supplemental procedures , the city designates a code enforcement officer who is authorized to issue citations for civil infractions in violation of duly enacted code or ordinance provisions . [8] These charges 4110 are reviewed by the county court rather than by a municipally created code enforcement board. [9] As provided in this part: " (5) A county or a municipality is authorized to enforce codes and ordinances under the provisions of this section and may enact an ordinance establishing procedures for the implementation of such provisions , including a schedule of violations and penalties to be assessed by code enforcement officers . If a county or municipality chooses to enforce codes or ordinances under the provisions of this section, each code or ordinance or the ordinance enacted by the county or municipality establishing procedures for implementation of this section shall provide : (a) That a violation of a code or an ordinance is a civil infraction. (b) A maximum civil penalty not to exceed $500 . (c) A civil penalty of less than the maximum civil penalty if the person who has committed the civil infraction does not contest the citation. (d) For the issuance of a citation by a code enforcement officer who has reasonable cause to believe that a person has committed an act in violation of a code or an ordinance. • (e) For the contesting of a citation in county court. (f) Such procedures and provisions as are necessary to provide for the enforcement of a code or an ordinance under http://legal 1.firn.edu/ago.nsf/aaee377.../2df8cd9ae4bdbb8a8525695e004dbe41?OpenDocumen 12/4/00 . Page 5 of 7 code enforcement board or special master in determining the amount of fines, including, but not limited to, those factors set forth in paragraph (b) . " 111/ While the City of Fernandina Beach is not required to utilize Part I , Chapter 162 , Florida Statutes , to enforce its "tree ordinance, " these provisions may provide some guidance in crafting an enforcement mechanism for the city. In sum, it is my opinion that the City of Fernandina Beach is authorized to utilize enforcement mechanisms other than section 162 .21 , Florida Statutes, to enforce a "tree ordinance" with a penalty greater than that set forth in section 162 .21 , Florida Statutes . Further, because Chapter 162 , Florida Statutes, currently authorizes municipalities to assess fines of up to $15, 000 for municipal code violations, I cannot say that a court would determine that a fine of $12 ,500 would be clearly unreasonable. Sincerely, Robert A. Butterworth Attorney General Ill RAB/tgh [1] See, e. g. , Tallahassee Code of Ordinances , Part II , Chap. 15 , Art. I , s . 15-6, "Defacing . . . trees" ; Chap. 24 , s . 24-4 , "Protection of Trees from Construction Work" ; Gainesville Code of Ordinances , Part II , Chap. 2 , Art. V. Division 13 , relating to the tree advisory board; Chap. 16 , Art. III , "Perilous Land Code" ; Chap. 23 , Art. IV, "Construction of Sidewalks , Curbs and Gutters" ; and Chap. 30 , "Land Development Code. " [2] See, Ops . Att'y Gen. Fla. 85-84 (1985) (municipal code enforcement board must find that same violation has been repeated by same violator before a fine for each day the repeated violation occurred past the date set for compliance may be imposed by the board) ; 79-109 (1979) (governing body of charter county prohibited in absence of statutory authorization from providing by ordinance for imposition of civil penalties by agencies) ; Broward County v. Plantation Imports, Inc. , 419 So . 2d 1145 (Fla. 4th DCA 1982) (holding 1111 that the provisions of a county ordinance authorizing assessment of penalties by county agency was http://legal 1.firn.edu/ago.nsf/aaee377.../2df8cd9ae4bdbb8a8525695e004dbe41?OpenDocumen 12/4/00 ,I M'N'':;: CODE ENFORCEMENT INVESTIGATION REPORT FOR NOVEMBER 2000 e:� C x; 0 A ?_ M P y N� P P P A Z G y 7y OG v0 cZ LEE 713 �n Z tP 00 1>� NON 7 9Z I N A O �� n o $0 m nO ZG O A D L m �Z OP 13 cf...' 91� On iN y 30 9y 0 N I I 63 A N n CI tP t i. tPG < c� to A V. 9 C N N 13 O Z Z Z N Z 7 y 11 9 < N Z 0 O co y G� -. tf� N < N 13 < N E G 0 Jul-00 CALL INS 1 18 0 0 0 1 2 5 1 10 3 0 1 1 43 CE IDENTIFIED 9 4 0 0 0 6 7 2 0 11 15 1 0 0 55 TOTALS 10 22 0 0 0 7 9 7 1 21 18 1 1 1 98 62 36 0 Auq-00 CALL INS 2 6 3 1 0 2 4 11 4 8 0 0 1 0 42 CE IDENTIFIED 6 14 0 3 189 3 14 14 1 16 22 2 0 0 284 TOTALS 8 20 3 4 189 5 18 25 5 24 22 2 1 0 326 299 27 0 Sep-00 CALL INS 0 4 4 1 0 2 0 1 4 3 0 0 0 0 19 CE IDENTIFIED 1 14 0 28 182 14 8 1 0 7 0 2 0 0 257 TOTALS 1 18 4 29 182 16 8 2 4 10 0 2 0 0 276 229 47 0 Oct-00 CALL INS 11 7 3 0 0 5 0 9 3 6 2 0 0 0 46 CE IDENTIFIED 3 19 0 0 147 7 5 3 0 15 8 1 0 1 209 TOTALS 14 26 3 0 147 12 5 12 3 21 10 1 0 1 255 186 68 3 Nov-00 CALL INS 1 2 2 1 2 4 1 3 4 2 1 0 0 0 23 CE IDENTIFIED 0 4 1 0 342 16 1 1 0 11 14 0 0 3 393 TOTALS 1 6 3 1 344 20 2 4 4 13 15 0 0 3 418 404 44 2 2000 TOTAL CALL INS 15 37 12 3 2 14 7 29 16 29 6 0 2 1 173 CE IDENTIFIED 19 55 1 31 860 47 35 21 1 60 59 6 0 4 1199 34 92 13 34 862 61 42 50 17 89 65 6 2 5 1372 1326 0 111, 0