ORDINANCE NO. 566
AN ORDINANCE OF THE TOWN COMMISSION OF THE TOWN OF OCEAN RIDGE, FLORIDA, AMENDING CHAPTER 16, ARTICLE I, SECTIONS 16-1 THROUGH 16-12 OF THE CODE OF ORDINANCES PROVIDING FOR (1) SUBSTITUTING “SPECIAL MAGISTRATE” FOR “SPECIAL MASTER”; (2) THE EX OFFICIO APPOINTMENT OF SPECIAL MAGISTRATES; AND (3) FINE ASSESSMENT HEARINGS; PROVIDING FOR CODIFICATION; PROVIDING FOR REPEAL OF ALL ORDINANCES IN CONFLICT; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Chapter 16, Article I, Code of Ordinances, provides for code enforcement procedures by establishing a hearing officer, providing notice and conducting hearings; and
WHEREAS, the Town of Ocean Ridge utilizes the provisions of Chapter 162, Florida Statutes, as the means of enforcing its codes, and the Town does not have the authority to alter the statutorily prescribed enforcement procedures set forth therein; and
WHEREAS, Section 16-1, Code of Ordinances provides for the establishment and qualifications of a special master; and
WHEREAS, the most recent edition of Chapter 162, Florida Statutes, refers to the use of a “special magistrate” instead of “special master”; and
WHEREAS, Section 5(a), Art. II, Florida Constitution, contains a dual office holding prohibition; and
WHEREAS, there are or may be occasions when the Town of Ocean Ridge appoints a special magistrate who has also been appointed as special magistrate for another town or city; and
WHEREAS, an exception to dual office holding prohibition contained in Section 5(a), Article II, Florida Constitution, has been recognized and provides that an officer may be appointed to perform the functions of office ex officio; and
WHEREAS, Section 16-10, Code of Ordinances provides for the procedure to request that a fine or lien imposed be reduced and the conditions and criteria therefore; and
WHEREAS, Chapter 162, Florida Statutes provides the conditions and criteria for reducing a fine or lien; and
WHEREAS, Chapter 162, Florida Statutes, requires a second hearing before imposing a fine at which time the factors set forth in Chapter 162 shall be considered; and
WHEREAS, although it is the practice of the Town of Ocean Ridge to perform a second hearing prior to imposing a fine, Section 16-9, Code of Ordinances does not clearly set forth this procedure; and
WHEREAS, the Town Commission has determined that it is in the best interests of the Town to provide for code enforcement procedures, establishing a hearing officer, providing notice and conducting hearings which comply with Chapter 162, Florida Statutes; Section 5(a), Article II, Florida Constitution, and the recent authorities interpreting these laws.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COMMISSION OF THE TOWN OF OCEAN RIDGE, FLORIDA:
Section 1 – Amendment. An amended Chapter 16, Article I of the Code of Ordinances of the Town of Ocean Ridge, is hereby adopted to read in its entirety as follows:Sec. 16-1. Special magistrate; establishment; qualifications.
(a) There is hereby established a special magistrate, appointed pursuant to F.S. ch. 162, who shall be designated by the town commission as its hearing officer for code enforcement matters.
(b) To be eligible for service as a special magistrate, a person must:
(1) Be a retired state judge; or
(2) Be a member in good standing of the Florida Bar for a minimum of five years.
(c) Special magistrates shall be appointed by the town commission. If the special magistrate serves other local governments as a special magistrate, the special magistrate shall be appointed to serve in an ex officio capacity. Such service to other local governments does not create duties inconsistent with serving as a special magistrate to the Town of Ocean Ridge. A special magistrate’s term of appointment shall be limited to two years. A special magistrate may be reappointed by the town commission. If a special magistrate is unable to hear a case due to a voting conflict or conflict of interest, the case may be assigned to another special magistrate, who shall also serve in an ex officio capacity
(d) A special magistrate shall preside over code enforcement matters once a month or more often if necessary.
(e) A special magistrate shall serve at the pleasure of the town commission and may be removed from service at any time, without cause, by a majority vote of the town commission.
(f) A special magistrate shall be compensated at a rate to be determined by the town commission.
(Code 1993, § 16-2)
Cross reference–Enforcement of land development code, § 67-172.
The special magistrate shall have jurisdiction and authority to hear and decide alleged violations of the Code of Ordinances except as otherwise provided in the Code of Ordinances or by law. The jurisdiction of the special magistrate shall be in addition to, and not in lieu of, any other procedures or remedies available to the town to enforce its Code of Ordinances.
(Code 1993, § 16-3)
State law reference – Jurisdiction, intent, F.S. § 162.02
Sec. 16-3. Enforcement procedures.
(a) The code inspectors have the primary duty of enforcing the various codes and initiating enforcement proceedings before the special magistrate. No special magistrate shall have the power to initiate such enforcement proceedings.
(b) Except as provided in (c) and (d) of this section, if a violation of the codes is found, the code inspector shall notify the violator of the violation and give the violator a reasonable time, in light of the nature of the violation, to correct the violation. Should the violation continue beyond the time specified for correction, the code inspector shall set a hearing and notify the violator of the hearing as provided herein. Written notice of such hearing shall be hand delivered or mailed as provided in section 16-12(a) to the violator. At the option of the special magistrate, notice may additionally be served by publication or posting as provided in section 16-12(b). 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 special magistrate 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 request the special magistrate to set a hearing and to notify the violator of the hearing as provided in section 16-12. The notice shall state that the case may be presented to the special magistrate even if the repeat violation has been corrected prior to the hearing date.
(d) If the code inspector has reason to believe a violation or the condition causing the 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 violator and may immediately notify the special magistrate and request a hearing.
(e) If the owner of property which is subject to an enforcement proceeding before a 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 nature of the proceeding to the prospective transferee.
(2) Deliver to the prospective transferee a copy of the 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 enforcement official 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 five days after the date of the transfer.
(5) If the property is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation before the hearing is held. Nothing herein shall prevent the town from continuing to prosecute the pending code enforcement proceeding to its conclusion against the new owner.
(Code 1993, § 16-4)
State law reference-Enforcement procedures, F.S. § 162.06)
Sec. 16-4. Duty, authority of town attorney, assistant town attorney to represent
town at hearings.
The town attorney, any assistant town attorney, or any attorney designated by the town attorney shall represent the town and the code inspectors before the special magistrate. They shall present the town case at all formal hearings and shall have prosecutorial discretion including, but not limited to, the right to negotiate a settlement with a violator and present that settlement to the special magistrate for approval, to recommend the disposition of a case to the special magistrate, and to decline to prosecute a case, similar to the discretion exercised by the state attorney in criminal cases.
(Code 1993, § 16-5)
(a) Minutes shall be kept of all hearings by the special magistrate, and all hearings and proceedings shall be open to the public. Any person whose interests may be affected by the matter before the special magistrate shall be given an opportunity to be heard.
(b) 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 and alleged violator. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings.
(c) At the conclusion of the hearing, the special magistrate shall issue findings of fact, based on evidence of record, and conclusions of law, and shall issue an order affording the proper relief consistent with the powers granted herein. The order may include a notice that it must be complied with by a specified date and that a fine may be imposed and, where provided and authorized in this Code, the cost of repairs may also be included along with the fine if the order is not complied with by the specified 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, 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 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.
(d) If the town prevails in prosecuting the case before the special magistrate, it shall be entitled to recover all costs incurred in prosecuting the case before the special magistrate and in any appeals from the special magistrate’s order.
(Code 1993, § 16-6)
State law reference-Conduct of haring. F.S. § 162.07.
(a) All relevant evidence shall be admitted at special magistrate hearings if in the opinion of the special magistrate it is the type of evidence upon which reasonable and responsible persons would normally rely in the conduct of business affairs, regardless of the existence of any common law or statutory rule which might make such evidence inadmissible over objections in civil actions. The special magistrate may exclude irrelevant or unduly repetitious evidence.
(b) Hearsay evidence may be accepted for the purpose of supplementing or explaining any direct evidence, but such hearsay evidence shall not in and of itself be considered sufficient to support a finding or decision unless the evidence would be admissible over objections in a civil action.
(c) Each party to the hearing shall have the right to:
(1) Call and examine witnesses;
(2) Introduce exhibits;
(3) Cross examine opposing witnesses;
(4) Impeach witnesses;
(5) Rebut evidence.
(d) The violator may be represented by an attorney.
(e) The violator or the town may cause the proceedings to be recorded by a certified court reporter or other certified recording instrument.
(Code 1993, § 16-7)
State law reference-Evidence, F.S. § 162.08.
The town or town attorney, or the alleged violator, may request the special magistrate to issue subpoenas for witnesses and records. Subpoenas shall be served by officers of the towns public safety department.
(Code 1993, § 16-8)
State law reference-Powers, F.S. § 162.08.
(a) Every enforcement order of the special magistrate shall be final subject to the right of the town or the violator to appeal a ruling or order of the special magistrate by certiorari in the Circuit Court of the Fifteenth Judicial Circuit of Florida in and for the county. An appeal shall be filed within 30 days of the rendition of the order to be appealed.
(b) Every enforcement order of the special magistrate shall be in writing and shall include findings of fact and conclusions of law.
(c) Every enforcement order shall be signed by the special magistrate and shall be filed in the office of the town clerk. A copy of the signed order shall be sent by certified mail, return receipt requested, to the violator.
(Code 1993, § 16-9)
State law reference-Appeal, F.S. § 162.11.
Sec. 16-9. Administrative fines; costs of repair; liens.
(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 provided in (b) of 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, beginning with the date the repeat violation is determined to have occurred by the code inspector. In addition, if the special magistrate finds that the violation is one that presents a serious threat to the public health, safety and welfare or if the violation is irreparable or irreversible in nature, or if the violation is a violation for which any provisions of this Code authorize the town to make reasonable repairs, improvements or maintenance on the property of the violator, the special magistrate shall notify the town manager, who may make all reasonable repairs, improvements or maintenance which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs, improvements or maintenance, along with the fine imposed pursuant to this section. Making such repairs, improvements or maintenance does not create a continuing obligation on the part of the town to make further repairs or to improve or maintain the property and does not create any liability against the town for any damages to the property if such repairs, improvements or maintenance were completed in good faith. If a finding of a violation or a repeat violation has been made as provided in this division, the code inspector shall provide notice to the violator as set forth in section 16-12 and a fine assessment hearing will be conducted. If, after due notice and hearing, the special magistrate finds a violation to be irreparable or irreversible in nature, it may order the violator to pay a fine as specified in subsection (b) of this section.
(b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first violation and shall not exceed $500.00 per day for a repeat violation, and, in addition, may include all costs of repairs pursuant to subsection (a) of this section. However, if the special magistrate finds the violation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000.00 per violation.
(c) 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; and
(3) Any previous violations committed by the violator.
(d) The special magistrate may reduce a fine imposed pursuant to this section, as provided in section 16-10.
(e) A certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the public 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 within the county in which the lien is recorded. Upon petition to the circuit court, such order shall be enforceable 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 to be 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 filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the town commission and the town commission may execute a satisfaction or release of lien entered pursuant to this section and may settle a lien. After three months from the filing of any such lien which remains unpaid, the special magistrate may authorize the town attorney to foreclose on the lien or to sue to recover a money judgment for the amount of the lien plus accrued interest; provided, however, actions for money judgments pursuant to this chapter may be pursued only on fines levied after October 1, 2000. No lien created pursuant to the provisions of this division may be foreclosed on real property which is a homestead under section 4, art. X of the state constitution. The money judgment provisions of this section shall not apply to real property or personal property which is covered under section 4(a), article X, of the state constitution.
(Code 1993, § 16-10)
State law reference-Administrative fines, costs of repair, liens, F.S. § 162.09.
and criteria therefor.
(a) The owner or occupant of real property against which a fine has been imposed pursuant to section 16-9 may apply to the special magistrate for reduction in cases where the order imposing a fine has not yet been recorded.
(b) Where recording of the lien has already occurred the owner or occupant of real property against which a fine or lien has been imposed pursuant to section 16-9 must apply to the Town Commission in order to satisfy or release a lien for less than full payment of the fine and additional interest and costs assessed. No such application shall be considered until the applicant has first shown that:
(1) All ad valorem property taxes, special assessments, town utility charges and other government-imposed fees, charges, taxes and liens against the subject real property have been paid.
(2) The applicant is not personally indebted to the town for any reason.
(3) All town code violations have been corrected under necessary permits issued therefor.
(b) Applications for relief under this section shall be made to the special magistrate, through the town, for any fine imposed pursuant to section 16-9 which has not yet been recorded in the office of the clerk of the circuit court and has not yet become a lien. Once a fine imposed pursuant to section 16-9 has been recorded in the office of the clerk of the circuit court and has become a lien, the special magistrate shall have no authority to reduce or compromise said fine. Once a fine imposed pursuant to section 16-9 has been recorded in the office of the clerk of the circuit court and has become a lien, the applicant may apply to the town commission for relief under this section.
(c) In considering an application to reduce a fine or lien imposed pursuant to section 16-9, no satisfaction thereof shall be approved by the special magistrate or town commission, as appropriate, with less than full payment thereof, unless the special magistrate or town commission, as appropriate, shall make a specific finding that no violation of any ordinance of this Code exists on the subject real property.
(d) The balance of any fine or lien imposed pursuant to section 16-9 that is reduced by the special magistrate or town commission, as appropriate, shall be paid on such terms as approved by the special magistrate or town commission, as appropriate.
(e) If the property for which an application for a fine reduction is being considered is owned by a governmental or quasi-governmental entity, the special magistrate or town commission, as appropriate, may reduce such fine even if the violation has not been corrected.
(Code 1993, § 16-11)
State law reference-Authority to reduce fines, F.S. § 162.09(c).
No lien provided under this article shall continue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action is commenced pursuant to subsection 16-9(e) in a court of competent jurisdiction. In an action to foreclose on a lien or for a money judgment, the prevailing party is entitled to recover all costs, including a reasonable attorney’s fee that it incurs in the action. The town commission shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the commencement of the action shall not be good against subsequent creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded.
(Code 1993, § 16-12)
State law reference-Duration of lien, F.S. § 162.10.
(a) All notices required by this article shall be provided to the alleged violator by:
(1) Certified mail, return receipt requested, provided if such notice is sent under this subsection (a)(1) 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 town by such owner and is returned as unclaimed or refused, notice may be provided by posting as described in subsection (b)(2) of this section and by first class mail directed to the addresses furnished to the town with a properly executed proof of mailing or affidavit confirming the first class mailing; or
(2) Hand delivery by the sheriff or other law enforcement officer, code inspector, or other person designated by the town commission; or
(3) Leaving the notice at the violators 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
(4) In the case of commercial premises, leaving the notice with the manager.
(b) In addition to providing notice as set forth in subsection (a) of this section at the option of the special magistrate, notice may also be served by publication or posting, as follows:
(1) 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 county. The newspaper shall meet such requirements as are prescribed under F.S. ch. 50, for legal and official advertisements. Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051.
(2) In lieu of publication as described in subsection (b)(1) of this section, such notice may be posted at least ten 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 at town 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.
(3) 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 (a) above.
(c) Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (a) of this section, together with proof of publication or posting as provided in (b) of this section, shall be sufficient to show that the notice requirements of this article have been met, without regard to whether or not the alleged violator actually received such notice.
(Code 1993, § 16-13)
State law reference-Notices, F.S. § 162.12.
Section 3. Conflict. All ordinances or parts of ordinances in conflict herewith are hereby repealed.
Section 4. Severability. If any word, clause, sentence, paragraph, section or part thereof contained in this Ordinance is declared to be unconstitutional, unenforceable, void or inoperative by a court of competent jurisdiction, such declaration shall not affect the validity of the remainder of the Ordinance.
Section 5. Effective Date. This Ordinance shall become effective immediately upon adoption.
FIRST READING this day of 2006.
SECOND AND FINAL READING this day of 2006.
Commissioner offered the foregoing Ordinance and its adoption. The motion was seconded by Commissioner and upon being put to a vote, the vote was as follows:
KENNETH M. KALEEL, Mayor
GEOFFREY A. PUGH, Vice Mayor
DR. LYNN L. ALLISON, Commissioner
ELIZABETH P.B. BINGHAM, Commissioner
NANCY L. HOGAN, Commissioner
The Mayor thereupon declared this Ordinance approved and adopted by the Town
Commission of the Town of Ocean Ridge, Florida, on second reading, this day of 2006.
TOWN OF OCEAN RIDGE, FLORIDA
KENNETH M. KALEEL, MAYOR