Agenda Item 8E AGENDA ITEM # 8E
NOVEMBER 28, 2011
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Proposed Ordinance Amending Chapter 2 Administration
Division 2. Code Enforcement Board of the City Code.
SUBMITTED BY: Michael Griffin, CBO, CFM Interim Community Development
Director/Building Official
DATE: November 17, 2011
BACKGROUND:
This is to advise the City Commission that staff is proposing an ordinance (attached)
amending Chapter 2. Administration, Division 2. Code Enforcement Board (CEB) of the City of Atlantic
Beach code. The reason for the amendment is in response to a District Court of Appeal of Florida decision.
Basically, the proposed changes provide an appeal process and do not otherwise impact our enforcement of
the City codes on citizens.
Staff will send a letter to the violator following the Code Enforcement Officer (CEO)
determination that the violation has not been corrected as required by the CEB. This is the process being
recommended by the court to satisfy the due process requirement of F.S. 162. This process allows the
violator the opportunity to have the CEB determine if compliance is made as directed.
Also included in the proposed amendments are the procedural portions of Florida Statue 162
related to notice requirements, hearing process and collection/filing of a lien. Additionally, the requirement
for the CEB to meet once every two months has also been removed.
BUDGET: No budget impact
RECOMMENDATION: Motion to adopt the proposed amendments to Chapter 2 Administrative
Division 2 Code Enforcement Board
ATTACHMENT: Proposed Ordinance
Reviewed by City-m1 "
AGENDA ITEM # 8E
NOVEMBER 28, 201 I
Ordinance No.
AN ORDINANCE AMENDING CHAPTER 2 DIVISION 2 CODE ENFORCEMENT BOARD OF
THE CITY CODE PROVIDING FOR POWERS OF THE CODE ENFORCEMENT BOARD;
PROVIDING FOR ENFORCEMENT PROCEDURES; PROVIDING FOR HEARING
PROCEDURES; PROVIDING FOR ADMINISTRATIVE FINES LIENS AND MONEY
JUDGEMENTS; PROVIDING FOR A FEE STRUCTURE FOR RELEASE OF LIENS;
PROVING FOR PROCEDURES FOR CONTEST, APPEAL AND REHEARING; PROVIDING
NOTICE REQUIREMENTS
WHEREAS, the Local Government Code Enforcement Boards Act (Chapter 162, Florida
Statutes) provides cities with the authority to, by ordinance, adopt a code enforcement system
which gives code enforcement boards the authority to hold hearings and assess fines against
violators or City codes and ordinances;
WHEREAS, it is found that the Code Enforcement Board will promote, protect and
improve the health, safety, and welfare of all the citizens of the City, and that it is in the best
interest of the citizens of the City that the Code Enforcement Board be established to enforce
all codes and ordinances in the City of Atlantic Beach; and
WHEREAS, various procedural improvements have been suggested and recognized as
being necessary for the continued success of the City's code enforcement system and
beneficial to the citizens of Atlantic Beach.
NOW THEREFORE, BE IT ENACTED BY THE CITY COMMISSION ON BEHALF OF
THE PEOPLE OF THE CITY OF ATLANTIC BEACH, FLORIDA:
SECTION 1. Chapter 2 ADMINISTRATION Division 2. CODE ENFORCEMENT BOARD
of the Code of Ordinances of the City of Atlantic Beach, Florida, is hereby amended to read as
follows:
CODE ENFORCEMENT BOARD
Sec. 2 -141. Created; membership; terms.
(a) There is hereby created a code enforcement board of the city, which shall consist of
seven (7) board members and one (1) alternate member, who shall serve on the board
in the absence of board members, to be appointed by the mayor and approved by the
city commission. All board members and the alternate member of the board shall be
residents of the city and shall serve without compensation. Board members may serve a
maximum of three (3) consecutive terms. Service as an alternate member, however,
shall not preclude service thereafter as a board member for a maximum of three (3)
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consecutive terms.
(b) The membership of the code enforcement board shall, whenever possible, include
persons in the following fields:
(1) Architect;
(2) A businessman;
(3) An engineer;
(4) A general contractor;
(5) A realtor;
(6) A subcontractor;
(7) A person with zoning and building experience.
(c) The initial appointments to the code enforcement board shall be as follows:
(1) Two (2) members shall be appointed for a term of one (1) year.
(2) Three (3) members shall be appointed for a term of two (2) years.
(3) Two (2) members shall be appointed for a term of three (3) years.
Thereafter, each term shall be for a period of three (3) years.
(d) Any member may be reappointed from term to term upon approval of the city
commission.
Sec. 2 -142. Removal; filling vacancies.
Members of the code enforcement board may be removed from office by the city
commission for cause upon written charges and after public hearing. Any member who fails to
attend two (2) of three (3) successive meetings without cause and without prior approval of the
chair shall have his /her office declared vacant by the code enforcement board, and the city
commission shall promptly fill such vacancy. Vacancies shall be filled by appointment by the
mayor and approval of the city commission for the unexpired terms affected.
Sec. 2 -143. Meetings; election of officers; quorum.
(a) At the first meeting of the code enforcement board, the members of the board shall elect
a chairman and a vice - chairman to preside in the absence of the chairman. The
presence of four (4) or more members shall constitute a quorum necessary to take
action. Meetings of the beaFd shall eGGuF no less fteqUeRtly than ORGe eveFY tWO (2)
(b) Special meetings of the board may be convened by the chairman upon the giving of
notice thereof to each other member of the board. Unless waived by a majority of the
board, notice of a special meeting shall be given at least twenty -four (24) hours prior
thereto.
Sec. 2 -144. Minutes of hearings; clerical and administrative personnel.
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Minutes shall be maintained of all hearings held by the code enforcement board, and all
hearings shall be open to the public. The city commission shall provide clerical and
administrative personnel as may be reasonably required by the board for the proper
performance of its duties.
Sec. 2 -145. City attorney.
The city attorney shall either be counsel to the code enforcement board or shall
represent the city by presenting cases before the board; but in no case shall the city attorney
serve in both capacities. Each case before the board shall be presented by either the city
attorney or by a member of the administrative staff of the municipality.
Sec. 2-146. Jurisdiction.
(a) The code enforcement board shall have the jurisdiction and authority to hear and decide
alleged violations of the following:
(1) City of Atlantic Beach Code of Ordinances, per Chapter 162, Florida Statutes.
(2) State of Florida Building Code, administration section of Chapter 553, as adopted
by the State of Florida and by the city.
(3) International Property Maintenance Code as adopted by the city.
(4) All other local codes and ordinances as allowed by Chapter 162, Part 1., Florida
Statutes, Local Government Code Enforcement Boards, as it may be amended
from time to time.
(b) The jurisdiction of the code enforcement board shall not be exclusive. Any alleged
violation of any of the provisions of subsection (a) may be pursued by appropriate
remedy in court at the option of the administrative official whose responsibility it is to
enforce that respective code or ordinance.
Sec. 2 -147. Procedure; enforcement and hearings.
SeGtiORS 162.06 and 162.07.
2 -147.1 ENFORCEMENT PROCEDURES
1) For the purpose of this Ordinance "code officer" means any authorized agent or
employee of the City of Atlantic Beach whose duty it is to insure compliance with the code and
ordinances of the City.
u It shall be the duty of the code officer to initiate enforcement proceedings of the
various codes and ordinances. No member of the Board shall have the power to initiate such
enforcement proceedings.
u Except as provided in subsections (4) and (5) below, if a violation of the codes or
ordinances is found the code inspector shall first notify the violator and give him /her reasonable
time to correct the violation. Should the violation continue beyond the time specified for
correction the code officer shall notify the Board and request a hearing. The Board or their
clerical staff shall schedule a hearing and notice of such hearing shall be provided to said
violator pursuant to Section 2 -147.4 or this Ordinance. If the violation is corrected and then
recurs or if the violation is not corrected by the time specified for correction by the code officer,
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the case may be presented to the Board even if the violation has been corrected prior to the
hearing, and the notice shall so state.
If the code officer has reason to believe a violation or the condition causing a
violation presents a serious threat to the public health, safety, and welfare, or if the violation is
irreparable or irreversible in nature the code officer shall make a reasonable effort to notify the
violator and may immediately notify the Board and request a hearing.
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. The code inspector, upon
notifying the violator, of a repeat violation shall notify the Board and request a hearing, The
Board through their clerical staff, shall schedule a hearing and shall provide notice pursuant to
Section 2 -147.4 of this Ordinance. The case may be presented to the Board even if the repeat
violation has been corrected prior to the hearing, and the notice shall so state. "Repeat violation"
means a violation of a provision of a code or ordinance by a person who has been previously
found through a code enforcement board or any other quasi - iudicial or iudicial process, to have
violated or who has admitted violating the same provision with 5 years prior to the violation,
notwithstanding the violations occur at different locations.
U If the owner of property to which is subject to an enforcement proceeding before
the Board or a court transfers ownership of such property between the time the initial pleading
was served and the time of the hearing, such owner shall:
(a) Disclose in writing, the existence and the nature of the
proceeding to the prospective transferee.
Deliver to the prospective transferee a copy of the pleadings,
notice and other material relating to the code enforcement proceeding
received by the transferor.
(c) Disclose in writing, to the prospective transferee that the new
owner will be responsible for compliance with the applicable code and
with orders issued in the code enforcement proceedings.
(e) File a notice with the code officer or clerical staff of the transfer of
the property, with the identity and address of the new owner and copies of
the disclosures made to the new owner, with 5 days after the date of the
transfer.
A failure to make the disclosures described in paragraphs (a), (b), and (c) before
the transfer creates a rebuttable presumption of fraud, if the property is transferred
before the hearing the proceeding shall not be dismissed, but the new owner shall be
provided reasonable period of time to correct the violation before the hearing is held.
2- 147.2. HEARING PROCESS
Administrative Support Staff for the Board shall establish annually a schedule of
periodic meetings In addition upon request of the code officer, or at such other times as may
be necessary, the Chair of the Board may call a hearing of the Board.
Upon scheduling of a hearing the Board shall cause notice therefore to be
furnished to the alleged violator by such methods as described in Section 12 of this Ordinance.
Said notice of hearing shall contain the date time and place of the hearing and shall include the
sworn statement of the code inspector setting for the nature of the violation and reference to the
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appropriate code or ordinance.
Assuming proper notice of the hearing has been provided to the alleged violator
as provided in subsection (2) above a hearing may proceed in the absence of the alleged
violator.
At the hearing the burden of proof shall be upon the City to show, by a
preponderance of evidence that a violation does exist.
All testimony shall be under oath and shall be recorded; The Board shall take
testimony from the City and alleged violator, and from such other witnesses as may be called by
the respective parties.
Formal rules of evidence shall not apply, but fundamental due process shall be
observed and govern said proceedings.
M Irrelevant immaterial or unduly 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 world be admissible State of
Florida Rules of Evidence.
Any member of the Board or attorney appointed to serve as counsel to the
Board may inquire of any witness before the Board. The alleged violator, or the violator's
attorney or representative and the City shall be permitted to inquire of any witness before the
Board and shall be permitted to present brief opening and closing statements.
At the conclusion of the hearing, The Board shall issue finding of fact, based on
evidence of record and conclusion of law, and shall issue an order affording the proper relief
consistent with powers granted by Chapter 162 Florida Statutes, the Ordinance and any other
Ordinance granting authority to the Code Enforcement Board. In a Board hearing, the finding
shall be by motion approved by a maiodty of those members present and voting; except that at
least four members of the Board must cast a vote in order for the action to be official. The order
may include 'a notice that it must be complied with by a specified date and that a fine will be
imposed should the compliance not be achieved and under the conditions specified in Section
9 of this Ordinance and any such costs incurred in the prosecuting this case may be included
along with the fine if the order is not complied with by said date, The order shall be reduced to
writing and mailed to the alleged violator with fifteen working days after the hearing. A certified
copy of such order may be recorded in the public records of Duval County and shall constitute
notice to any subsequent purchasers successors in interest or assigns if the violation concerns
real property, and the findings therein shall be binding upon the violator and, if the violation
concerns real propertv, any subsequent purchasers successors in interest or assigns. If an
order is recorded in the public records pursuant to this subsection and the order is complied with
b the he date specified in the order, the Board shall issue an order acknowledging compliance that
shall be recorded in the public records. A hearing is not required to issue such an order showing
compliance.
10 The City shall present each case before the Board. If the City prevails in
prosecuting a case before the Board it shall be entitled to recover all costs incurred in
prosecuting the case.
2- 147.3. REHEARING
An aggrieved party, including the City of Atlantic Beach, may request a rehearing
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of the initial order of the Board. Any such rehearing shall be filed within 10 days of the execution
of the order to be appealed. Consideration of a request for rehearing shall be scheduled by the
administrative staff for the next available hearing date by the entity that issued the order. Notice
of the hearing date shall be provided by the administrative staff via first class mail to the entity
that files the request for rehearing.
Any request for rehearing must be made in writing and be based on the following
grounds:
(a) That there exists new and material evidence which, if introduced at the
hearing would probably have changed the Code Enforcement Board decision and could
not with reasonable diligence have been discovered before and produced at the hearing;
and
(b) Given this evidence, the order issued is contrary to the law and evidence.
A request for a rehearing shall not toll the time for the taking of an appeal nor
shall it toll any fines mandated by the order in question, should the request for rehiring be
denied.
If the request for rehearing is granted, the Code Enforcement Board shall
schedule the case for consideration at a future hearing, to be heard de novo.
2 -147.4 NOTICE REQUIRMENTS.
All notices required by this part shall be provided to the alleged violator by:
(a) Certified mail, return receipt requested, provided if such notice is sent
under this paragraph to the owner of the property in question at the address
listed in the tax 'collector's office for tax notices, and at any other address
provided to the city code enforcement staff or administrative staff of the Code
Enforcement Board by such owner and is returned as unclaimed or refused,
notice may be provided by posting as described in subparagraphs (2)(b)1 and 2
and by first class mail directed to the addresses furnished to the City of Atlantic
Beach with a properly executed proof of mailing or affidavit confirming the first
class mailing;
(b) Hand delivery by the sheriff or other law enforcement officer, code officer,
or other person designated by the City of Atlantic Beach.
(c) Leaving at the violator's usual place of residence with any person residing
therein who is above 15 years of age and informing such person of the contents
of the notice; or
(d) In the case of commercial premises, leaving the notice with the manager
or other person in charge.
In addition to providing notice as set forth in section 2 -147 of this ordinance, at
the option of the Board , notice may also be served by first -class mail and
publication or posting, as follows:
(a) Such notice shall be published once during each week for four
consecutive weeks (four publications being sufficient) in a newspaper of general
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circulation in Atlantic Beach. The newspaper shall meet such requirements as
are prescribed under Chapter 50, Florida Statutes, for legal and official
advertisements.
(b) Proof of publication shall be made as provided in Section 50.041 and
Section 50.051 Florida Statutes.
(c) Proof of publication shall be made as provided in Section 50.041 and
Section 50.051 Florida Statues
(d) Proof of posting shall be by affidavit of the person posting the notice,
which affidavit shall include a copy of the notice posted and the date and places
of its posting_
(e) Notice by publication or posting may run concurrently with, or may follow,
and attempt or attempts to provide notice by hand delivery or by mail as required
by Section 2 -147.4 of this Ordinance.
_f Evidence that an attempt has been made to hand deliver or mail notice as
provided in Section 12 (1) of this Ordinance, together with proof of publication or
posting as provided in Section 12 (2) of this Ordinance, shall be sufficient to
show that the notice requirements of this Ordinance, shall be sufficient to show
that the notice requirements of this Ordinance have been met, without regard to
whether of not the alleged violator actually received such notice.
Sec. 2-148. Powers
The Gode enforGement board shall have the powers as set fGrth in Florida Statutes 168.
The Board shall have the power to:
(a) Adopt rules for the conduct of their hearings.
Subpoena alleged violators and witnesses to their hearings.
(c) Subpoena records, surveys, plats and other documentary evidence
to its hearings.
Take testimony under oath. -
(e) Issue orders having the force and effect of law, commanding whatever
steps are necessary to bring a violation into compliance.
�f Establish and levy fines pursuant to Section 9
Sec. 2 -149 Pena 10 ° ADMINISTRATIVE FINES; COST OF REPAIRS; CONTESTES;
LIENS; MONEY JUDGEMENTS.
Penaltaes and l shall be as set forth On Flor*da Statutes SeGtmon 162.09.
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The Board , upon notification by the code officer that an order of the Board has not been
complied with by the set time or, upon finding that a repeat violation has been committed, may
order the violator to pay a fine in an amount specified in the section for each day the violation
continues past the date set by the Board for compliance or, in the case of a repeat violation, for
each day the repeat violation continues, beginning with the date the violation is a violation
described in Section 7 (4) of this Ordinance, the Board shall notify the City Commission, which
may authorize the making of all reasonable repairs which are required to bring the violations /s
into compliance and charge the violator with the reasonable cost of the repairs along with the
fine imposed pursuant to the section. Making such repairs does not create a continuing
obligation on the part of the City to make further repairs to maintain the property and does not
create any liability against the City for any damages to the property if such repairs were
completed in good faith. If a finding of a violation or a repeat violation has been made as
provided in this section, a hearing shall not be necessary for the issuance of the order imposing
the fine. A fine imposed pursuant to the section shall not exceed $500 per day for a first
violation and shall not exceed $250 per day for or a repeat violation, and, in addition, may include
all costs incurred in the enforcing this ordained and all costs of repairs pursuant to this section.
If after due notice and hearing, the Board finds a violation to be irreparable or irreversible in
nature, it may order the violation to pay a fine not to exceed $5,000 per violation.
In determining the amount of the fine, if any, the Board shall consider the
following factors:
(a) The gravity of the violation;
Any actions taken by the violator to correct the violation; and
(c) Any previous violations committed by the violator.
The Board may reduce a fine imposed pursuant to this section at any time.
Notice of finding by the code officer of non - compliance with the prior order of the
Board shall be mailed to the violator. The violator may contest in writing the findings of the code
officer. Such contest must be postmarked within 10 days of the post mark date on the
non - compliance notice and mailed to the administrative staff as designated by the Board. Upon
receipt of a contest letter, the Administrative Support Staff for the Board shall provide notice to
the violator of the contest hearing date and time. If the violator, after filing the written contest,
fails to attend the next noticed meeting, the violator's contest shall be considered withdrawn by
the Board. Any review of a contest heard under this section shall be constrained to whether the
code officers finding of non - compliance are supported by the evidence presented that the
violation as the date of the inspection remained uncured, At the hearing, the burden of proof
shall be upon the violator to show, by a preponderance of the evidence that a violation did not
exist at the time of the inspection. Upon hearing from the violator or his attorney and the
administrative staff, the Board shall either dismiss the case or uphold the finding of the code
officer.
Following the he failure of the violator to file a contest within the time permitted
under the above section, or the upholding of the finding of the code officer by the Board, a
certified copy of an order imposing a fine, or a fine plus repair costs may be recorded in the
public records of Duval County, Florida, and thereafter, shall constitute a lien against the land
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 shall be enforceable the same manner as a court
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judgment by the sheriffs of this state, including execution and levy against the personal property
of the violator, but, such order shall not be deemed otherwise to a court iudgment except for the
enforcement purposes.
A fine imposed pursuant to this part shall continue to accrue until the violator
comes into compliance or until iudgment is rendered in a suit to foreclose on a lien filed
pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to
this section runs in favor of the City of Atlantic Beach and the Board may execute a satisfaction
or release of lien entered pursuant to this section. After 3 months for the filing of any such liens
with remains unpaid, the Board may authorize the local governing body attorney to foreclose on
the lien or to sue to recover a money iudgment for the amount of the lien plus accrued interest.
No lien created pursuant to the provision of this section may be foreclosed on real property
which is a homestead under Section 4, Article X of the 'Florida State Constitution. The money
judgment provision of this section shall not apply to real property or personal property which is
covered under s. 4(a), Art. X of the Florida Constitution.
Sec/ 2 -150. Duration of lien
Dur-atiGn of liens and fbFeG PFGGeedings shall be as set forth On Florida Statutes
SeGtwon 162.10. This pmvisiGn shall apply tG all GGde enfemement board liens whether
M No lien provided by this ordinance shall continue for a period longer that 20 years
after the certified copy of an order imposing the fine has been recorded, unless with that time an
action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to
foreclose on a lien the prevailing party is entitled to recover all costs, including a reasonable
attorney's fees that it incurs in the 'foreclosure. The City shall be entitled to collect all costs
incurred in recording and satisfying a valid lien. The continuation of the lien affected by the
commencement of the action to foreclose shall not be good against the creditors or subsequent
purchasers for valuable consideration with notice, unless a notice of lis pendens is recorded.
In circumstances where the City of Atlantic Beach's interest in a property has
been foreclosed and the property has been sold at a foreclosure sale, the City's lien is not
satisfied but removed from the subiect property by a final iudgment issued by the court. Upon
request the City will prepare and record a partial release of lien to release the subiect property
from the code enforcement lien upon payment of fees for costs and services charged to the
requesting party.
Sec. 2. 151. Appeal.
Appeals shall be as set foFth on FIGFida Statutes SeGtion 162.11.
An aggrieved party, including the City Commission, may appeal a final
administrative order of the Board to the Circuit Court. Any such appeal shall be filed with 30
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days of the execution of the order to be appealed.
Such an appeal shall not be a hearing de novo, but shall be limited to appellate
review of the record created before the Board.
The Board shall, by rule, establish reasonable charges for the preparation of the
record to be paid by the appealinq_party.
Section 2. This Ordinance shall take effect immediately upon its final passage and adoption.
PASSED by the City Commission of first reading this day of 2011.
PASSED by the City Commission on second and final reading this day of , 2012.
ATTEST:
Donna L. Bartle, CIVIC Mike Borno
City Clerk Mayor, Presiding Officer
Alan Jensen, Esquire
City Attorney