Ordinance No. 5-12-54 Ordinance No. 5 -12 -54
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;
PROVIDING FOR PROCEDURES FOR CONTEST, APPEAL AND REHEARING; PROVIDING
NOTICE REQUIREMENTS, AND PROVIDING AN EFFECTIVE DATE.
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) consecutive terms.
(b) The membership of the code enforcement board shall, whenever possible, include persons in the
following fields:
(1) Architect;
(2) A businessperson;
(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.
(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.
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 Jurisdiction.
(a) The code enforcement board shall have the jurisdiction and authority to hear and decide alleged
violations of the following:
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(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.
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.
(2) 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.
(3) 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, 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.
(4) 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.
(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. 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-judicial or judicial 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.
(6) 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
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prospective transferee.
(b) 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.
(d) 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
(1) 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.
(2) 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 appropriate code or ordinance.
(3) 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.
(4) At the hearing, the burden of proof shall be upon the City to show, by a preponderance of
evidence that a violation does exist.
(5) 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.
(6) Formal rules of evidence shall not apply, but fundamental due process shall be observed
and govern said proceedings.
(7) 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.
(8) 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.
(9) 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 majority of those members present and voting; except that at least four members of the Board must cast
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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
property, 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 by the 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
(1) An aggrieved party, including the City of Atlantic Beach, may request a rehearing 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.
(2) 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. (3) 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.
(4) 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.
(1) 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 (2Xb)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
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notice; or
(d) In the case of commercial premises, leaving the notice with the manager or other
person in charge.
(2) 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 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 Board shall have the power to:
(a) Adopt rules for the conduct of their hearings.
(b) Subpoena alleged violators and witnesses to their hearings.
(c) Subpoena records, surveys, plats and other documentary evidence
to its hearings.
(d) 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 ADMINISTRATIVE FINES; COST OF REPAIRS; CONTESTES; LIENS; MONEY
JUDGEMENTS. (1) 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
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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 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.
(2) In determining the amount of the fine, if any, the Board shall consider the following
factors:
(a) The gravity of the violation;
(b) Any actions taken by the violator to correct the violation; and
(c) Any previous violations committed by the violator.
(3) The Board may reduce a fine imposed pursuant to this section at any time.
(4) 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.
(5) Following the 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 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
judgment except for the enforcement purposes.
(6) A fine imposed pursuant to this part shall continue to accrue until the violator comes into
compliance or until judgment 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 judgment 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
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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
(1) 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.
(2) 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 subject property by a final judgment issued by the court. Upon re quest, the City will prepare and
record a partial release of lien to release the subject property from the code enforcement lien upon
payment of fees for costs and services charged to the requesting party.
Sec. 2. 151. Appeal. (1) 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 days of the
execution of the order to be appealed.
(2) Such an appeal shall not be a hearing de novo, but shall be limited to appellate review of
the record created before the Board.
(3) The Board shall, by rule, establish reasonable charges for the preparation of the record to
be paid by the appealing party.
Section 2. This Ordinance shall take effect immediately upon its fmal passage and adoption.
PASSED by the City Commission of first reading this 12th day of December 2011.
PASSED by the City Commission on second and fmal reading this 4 day of. ;1"; 2012.
ATTEST:
4~ 0
ikit-e....., Li
Donna L. Bartle, CMC Mike Borno
City Cler Mayor, Presiding Officer
41 ,4 /
IAr.
Al • • sen, Esquire
City . ' orney
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