Agenda Item 10CAGENDA ITEM # 10C
SEPTEMBER 9, 2013
ORDINANCE NO. 5 -13 -60
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH,
FLORIDA, AMENDING CHAPTER 2, ADMINISTRATION,
ARTICLE V, BOARDS AND COMMISSIONS, DIVISION 2,
CODE ENFORCEMENT BOARD, TO REPEAL DIVISION 2 IN
ITS ENTIRETY, DISSOLVE THE CODE ENFORCEMENT
BOARD, AND ESTABLISH THE CODE ENFORCEMENT
ORDINANCE OF THE CITY OF ATLANTIC BEACH,
FLORIDA, WHICH AUTHORIZES THE CREATION OF ONE
OR MORE CODE ENFORCEMENT SPECIAL
MAGISTRATES, AND PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF ATLANTIC
BEACH, FLORIDA:
SECTION 1. Division 2, Code Enforcement Board, consisting of Secs. 2 -141 through
2 -160, of Article V, Boards and Commissions, of Chapter 2, Administration, of the Code of
Ordinances of the City of Atlantic Beach, Florida, is hereby repealed.
SECTION 2. The Code of Ordinances of the City of Atlantic Beach, Florida, is hereby
amended by adding a new Division 2 to Article V of Chapter 2, which Division shall read as
follows:
"DIVISION 2. CODE ENFORCEMENT
Sec. 2-141. Title.
This division may be known and cited as the "Code Enforcement Ordinance of
the City of Atlantic Beach, Florida."
Sec. 2 -142. Intent of division.
It is the intent of this division to promote, protect, and improve the health, safety,
and welfare of the citizens of the City by authorizing the creation of one or more
code enforcement special magistrates ( "special magistrate ") with authority to
impose administrative fines and other non - criminal penalties to provide an
equitable and expeditious method of enforcing certain codes and ordinances in
force in the City, where a pending or repeated violation continues to exist.
Sec. 2-143. Definitions.
(a) Unless the context requires otherwise, the terms used in this division shall
have the definitions provided under Chapter 162, Florida Statutes.
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(b) The following words, terms and phrases used in this division, shall have
the meanings ascribed to them in this section, except where the context
clearly indicates a different meaning:
(1) Repeat violation means a violation of a provision of a code or
ordinance by a person whom the code enforcement board or the
special magistrate has previously found to have violated the same
provision within five (5) years prior to the violation.
(2) Code inspector means any authorized agent or employee of the city
whose duty it is to assure code compliance.
(3) Commission means the City Commission of the City of Atlantic
Beach.
(4) City means the City of Atlantic Beach, Florida.
Sec. 2 -144. Code enforcement board dissolved; references revised.
The code enforcement board, heretofore established by the adoption of Ordinance
No. 95- 80 -21, is hereby dissolved effective ; provided, all prior
administrative actions, orders and liens imposed by such code enforcement board
shall remain in full force and effect. No cases shall be referred to the code
enforcement board on and after . All cases remaining pending
before the code enforcement board as of , shall be transferred to
the special magistrate. All references to the code enforcement board occurring
elsewhere within this code, within the city's land development regulations and
within any other codes, ordinances and resolutions of the Commission shall
hereafter be deemed to refer to the special magistrate appointed under the
authority of this division.
Sec. 2 -145. Special magistrate appointment and powers.
(a) The Commission shall appoint a special magistrate or special magistrates,
as needed. Appointments shall be made on the basis of experience and
interest in the subject matter, in the sole discretion of the Commission. A
special magistrate must be a member in good standing of The Florida Bar.
(b) The special magistrate shall serve at the pleasure of the Commission.
(c) The amount of compensation paid to a special magistrate shall be
determined by the Commission.
(d) The special magistrate shall have the power to:
(1) Adopt rules for the conduct of code enforcement hearings
provided, however, that the rules shall be uniform for all special
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magistrates.
(2) Subpoena alleged violators and witnesses to code enforcement
hearings.
(3) Subpoena evidence.
(4) Take testimony under oath.
(5) Issue orders having the force of law to command whatever steps
are necessary to bring a violation into compliance.
Sec. 2 -146. Notification of violators; requests for hearings.
(a) It shall be the duty of the code inspector to initiate enforcement
proceedings of the various codes and ordinances under the jurisdiction of
the special magistrate and more particularly set out hereinafter; however,
no special magistrate shall have the power to initiate such enforcement
proceedings.
(b) Except as provided in subsection (c), if a violation of any such code or
ordinance is found, the code inspector shall notify the violator and give
him or her a reasonable time to correct the violation. Should the violation
continue beyond the time specified for correction, the code inspector shall
notify the special magistrate and request a hearing. The special magistrate,
through his /her clerical staff, shall schedule a hearing, and written notice
of such hearing shall be hand delivered or mailed as provided in Section
162.12, Florida Statutes, to the_property owner and /or the violator. At the
option of the special magistrate, notice may additionally be served by
publication or posting as provided Section 162.12, Florida Statutes. If the
violation is corrected and then recurs, or if the violation is not corrected by
the time specified for correction by the code inspector, the case may be
presented to the special magistrate even if the violation has been corrected
prior to the hearing, and the notice shall so state.
(c) 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 special magistrate and request a hearing. The
special magistrate, through his/her clerical staff, shall schedule a hearing
and shall provide notice pursuant to Section 162.12, Florida Statutes. The
case may be presented to the special magistrate even if the repeat violation
has been corrected prior to the hearing and the notice shall so state. If the
repeat violation has been corrected, the special magistrate retains the right
to schedule a hearing to determine costs and impose the payment of
reasonable enforcement fees upon the repeat violator. The repeat violator
may choose to waive his or her rights to this hearing and pay said costs as
determined by the special magistrate.
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(d) If the code inspector has reason to believe 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 inspector shall make a
reasonable effort to notify the property owner and /or violator, and may
immediately notify the special magistrate and request a hearing.
(e) If the owner of property that is subject to an enforcement proceeding
before an enforcement board, special magistrate, or court transfers
ownership of such property between the time the initial pleading was
served and the time of the hearing, such owner shall:
(1) Disclose, in writing, the existence and the nature of the proceeding
to the prospective transferee.
(2) Deliver to the prospective transferee a copy of the pleadings,
notices, and other materials relating to the code enforcement
proceeding received by the transferor.
(3)
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 proceeding.
(4) File a notice with the code inspector 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, within 5 days after the date of
the transfer.
A failure to make the disclosures described in paragraphs (e)(1) through
(e)(3) 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 a reasonable period to
correct the violation before the hearing is held.
Sec. 2 -147. Conduct of hearings.
(a) Upon request of the code inspector, or at such other times as may be
necessary, the special magistrate may call a code enforcement hearing.
Minutes shall be kept of all hearings by the special magistrate, through
his/her clerical staff; and all hearings and proceedings shall be open to the
public and recorded, The City shall provide clerical and administrative
personnel as may be reasonably required by the special magistrate for the
proper performance of his /her duties.
(b) Each case before the special magistrate shall be presented by the City's
code inspection staff or the city attorney.
(c)
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The special magistrate shall proceed to hear the cases on the agenda for
that day. All testimony shall be under oath and shall be recorded. The
special magistrate shall take testimony from the code inspector, alleged
violator, and any witnesses. Formal rules of evidence shall not apply, but
fundamental due process shall be observed and shall govern the
proceedings.
(d) The special magistrate may, at his/her option, issue findings of fact, based
on evidence of record and conclusions of law; and may issue an order
affording the proper relief consistent with powers granted in this division
and in Chapter 162, Florida Statutes at the conclusion of the hearing. All
such findings of fact, conclusions of law, and orders shall be issued not
later than thirty (30) days from the date of the hearing. The order may
include a notice that it must be complied with by a specified date and that
a fine may be imposed if the order is not complied with by said date. A
certified copy of such order 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.
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 special magistrate shall issue an order acknowledging
compliance that shall be recorded in the public records. A hearing is not
required to issue such an order acknowledging compliance.
(e) Notification of the special magistrate's action shall be delivered by the city
to the violator by regular mail within ten (10) days of the date that order is
executed.
Section 2 -148. Jurisdiction of special magistrate
(a) Except as otherwise provided in this Code of Ordinances, the special
magistrate shall have the jurisdiction and authority to hear and decide
alleged violations of the codes of the City, including, but not limited to 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 [Florida Statutes], as adopted by the State of Florida and by
the City.
(3) International Property Maintenance Code as adopted by the City.
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(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 special magistrate 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 -149. Penalties for violation.
(a) The special magistrate upon notification by the code inspector that an
order of the special magistrate 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 this section for each day
the violation continues past the date set by the special magistrate for
compliance or, in the case of a repeat violation, for each day the repeat
violation continues past the date of notice to the violator of the repeat
violation. If a finding of a violation or a repeat violation has been made as
provided in this division, a hearing shall not be necessary for issuance of
the order imposing the fine.
(b) A fine imposed pursuant to this section shall not exceed two hundred fifty
dollars ($250.00) per day for a first violation and shall not exceed five
hundred dollars ($500.00) per day for a repeat violation, and in addition
may include all costs of repairs pursuant to
Fla.Stat. 162.09(1). However, if a violation is found to be irreparable or
irreversible in nature, the special magistrate may impose a fine not to
exceed $5,000.00 per violation.
In determining the amount of the fine, if any, the special magistrate shall
consider the following factors:
(1) The gravity of the violation;
(2) Any actions taken by the violator to correct the violation;
(3) Any previous violations committed by the violator;
(4) The complexity and resources required to complete the
investigation; and
(5) The cost and outcome of the hearing.
(c) A certified copy of an order imposing a fine may be recorded in the public
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records, 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 may be enforced in
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 a court judgment except for enforcement
purposes. A fine imposed pursuant to this section 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, and the city may execute a satisfaction or release of lien
entered pursuant to this section. After three (3) months from the filing of
any such lien that remains unpaid, the city may foreclose on the lien or to
sue to recover a money judgment for the lien plus accrued interest. No lien
created pursuant to the provisions of this section may be foreclosed on real
property that is a homestead under Section 4, Division X of the State
Constitution. The money judgment provisions of this section shall not
apply to real or personal property that is covered under Section 4(a),
Division X of the State Constitution.
Sec. 2 -150. Duration of lien.
No lien provided under this division shall continue for a period longer than twenty
(20) years after the certified copy of an order imposing a fine has been recorded,
unless within 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 continuation of the lien effected by the commencement of
the action shall not be good against creditors or subsequent purchasers for
valuable consideration without notice, unless a notice of lis pendens is recorded.
Sec. 2-151. Appeals.
An aggrieved party, including the city, may appeal a final administrative order of
the special magistrate to the circuit court. Such an appeal shall not be a hearing de
novo but shall be limited to appellate review of the record created before the
special magistrate. An appeal shall be filed within thirty (30) days of the
execution of the order to be appealed.
Sec. 2-152. Notices.
(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
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at the address listed in the public records of Duval County for tax
notices, and at any other address provided to the city by such
owner and is returned as unclaimed or refused, notice may be
provided by publication or posting as described in paragraphs (2)
or (3) below and by first class mail directed to the addresses
furnished to the city 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
inspector, private process server, or other person designated by the
local governing body;
(c)
Leaving the notice 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.
(2) In addition to providing notice as set forth in subsection (1), at the option
of the special magistrate, notice may also be served by publication or
posting, as follows:
(3)
(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 the city where the special
magistrate hearing is located. 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 Sections 50.041
and 50.051, Florida Statutes.
In lieu of or in addition to publication as described in paragraph (2), such
notice may be posted at least 10 days prior to the hearing, or prior to the
expiration of any deadline contained in the notice, in at least two locations,
one of which shall be the property upon which the violation is alleged to
exist and the other of which shall be the Atlantic Beach City Hall. 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.
(4) Notice by publication or posting may run concurrently with, or may
follow, an attempt or attempts to provide notice by hand delivery or by
mail as required under subsection (1).
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Evidence that an attempt has been made to hand deliver or mail notice as provided
in subsection (1), together with proof of publication or posting as provided in
paragraphs (2) or (3), shall be sufficient to show that the notice requirements of
this part have been met, without regard to whether or not the alleged violator
actually received such notice.
Sec. 2 -153. Provisions division supplemental.
It is the legislative intent of this division to provide an additional or supplemental
means of obtaining compliance with the local codes. Nothing contained in this
division shall prohibit the Commission from enforcing its codes by any other
means.
Secs. 2 -154 — 2 -160. Reserved. "
SECTION 3. If any section, phrase, sentence or portion of this ordinance is for any
reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall
be deemed a separate, distinct, and independent provision, and such holding shall not affect the
validity of the remaining portions of this ordinance.
SECTION 4. This ordinance shall take effect immediately upon its final passage and
adoption.
PASSED by the City Commission on first reading this day of
2013.
PASSED by the City Commission on second reading this day of
2013.
ATTEST:
DONNA L. BARTLE, CITY CLERK MIKE BORNO, MAYOR
Approved as to form and correctness:
ALAN C. JENSEN, ESQUIRE
CITY ATTORNEY