HomeMy WebLinkAboutOrdinance_02-10_03/23/2010ORDINANCE NO.2-10
AN ORDINANCE OF THE VILLAGE COUNCIL OF THE VILLAGE
OF TEQUESTA, FLORIDA, AMENDING THE VILLAGE CODE OF
ORDINANCES AT CHAPTER 2. ADMINISTRATION. ARTICLE
IV. CODE ENFORCEMENT. BY AMENDING THIS ARTICLE TO
UPDATE LANGUAGE REGARDING THE CODE ENFORCEMENT
SPECIAL MAGISTRATE IN CONFORMANCE WITH STATE
STATUTES, TO CLARIFY THE JURISDICTION OF THE
SPECIAL MAGISTRATE, TO PROVIDE FOR INTERNAL
CONSISTENCY WITH THE VILLAGE CODE, AND TO REVISE
THE PROCESS FOR FINE MITIGATION; PROVIDING THAT
EACH AND EVERY OTHER SECTION AND SUBSECTION OF
CHAPTER 2. SHALL REMAIN IN FULL FORCE AND EFFECT AS
PREVIOUSLY ADOPTED; PROVIDING A CONFLICTS CLAUSE,
A SEVERABILITY CLAUSE AND AUTHORITY TO CODIFY;
PROVIDING AN EFFECTIVE DATE; AND FOR OTHER
PURPOSES.
WHEREAS, the ViOage Council of the Village of Tequesta desires to
revise the process for code enforcement fine mitigation by eliminating the
necessity that mitigation requests be brought before the Village Council; and
WHEREAS, the Village Council further desires to update its code
enforcement ordinance to provide for internal consistency with the village code
and to clarify the jurisdiction of the special magistrate; and
WHEREAS, the Village Council believes that these revisions to the Code
of Ordinances is in the best interests of the Village of Tequesta, and will promote
the public health, safety and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF
THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, AS
FOLLOWS:
Section 1: Chapter 2. Administration. of the Code of Ordinances of the
Village of Tequesta is hereby amended at Article IV. Code Enforcement. by
amending this article to update language regarding the code enforcement special
magistrate in conformance with state statutes, to clarify the jurisdiction of the
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special magistrate, to provide for internal consistency with the village code, and
to revise the process for fine mitigation; providing that Article IV. Code
Enforcement. shall hereafter read as follows:
ARTICLE IV. CODE ENFORCEMENT
DIVISION 1. GENERALLY
Sec.2-131. Definitions.
The following words, terms and phrases, when used in this article, shall have the
meanings ascribed to them in this section, except where the context clearly
indicates a different meaning:
Code enforcement officer means any authorized agent or employee of the village
whose duty it is to ensure code compliance.
Repeat violation means a violation of a provision of a Code provision or
ordinance by a person who has been previously found through a code
enforcement board or special magistrate, or any other quasi~udicial or judicial
process, to have violated or who has admitted violating the same Code provision
within five years prior to the violation, notwithstanding that the violations may
occur at different locations.
Secs.2-132--2-150. Reserved.
DIVISION 2. SPECIAL MAGISTRATE
Sec. 2-151. Designation; term; qualifications.
(a) There is hereby established a special magistrate who shall be designated by
the village council.
(b) The special magistrate shall be appointed for a term of two years.
(c) The special magistrate shall be an attorney and a member of the Florida
Bar.
(d) The special magistrate shall serves at the discretion and by appointment of
the village council and may be removed from such position with or without cause.
Sec. 2-152. Duties; hearings; clerical and administrative personnel.
(a) The special magistrate shall preside over all code enforcement matters as +#
necessary.
(b) Minutes shall be maintained at all hearings presided over by the special
magistrate. All hearings shall be open to the public. The village shall provide
clerical and administrative personnel as may be required by the special
magistrate for the proper pertormance of the duties of the special magistrate.
Sec. 2-153. Presentation of cases by village attorney.
The village attorney or his designee shall represent the village by presenting
cases before the special magistrate.
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Sec.2-154. Jurisdiction.
(a) The special magistrate shall have the jurisdiction and authority to hear and
decide any alleged violations of
(1) Any codes, ordinances or resolutions of the village;
(2) Any statute, code, rule or regulation incorporated into the village's code of
ordinance by reference.
(3) Any condition of any development order.
(b) The jurisdiction of the special magistrate shall not be exclusive and shall not
prohibit the village from enforcing its codes, rules, regulations or orders by other
legal means. Secs. 2-155--2-180. Reserved.
DIVISION 3. ENFORCEMENT PROCEDURE
Sec.2-181. Generally.
(a) An alleged violation of any of the village's codes, rules, regulations or orders
shall be filed with the special magistrate by the code enforcement officer.
(b) It shall be the duty of the code enforcement officer to initiate enforcement
proceedings for violations of the various village codes, rules, regulations or
orders; however, the special magistrate shall not have the power to initiate such
enforcement proceedings.
(c) Except as provided in subsections (d) and (e) of this section, if a violation is
found, the code enforcement officer shall notify the violator and give him a
reasonable time to correct the violation. Should the violation continue beyond the
time specified for correction, the code enforcement officer shall notify the special
magistrate and through clerical staff shall schedule a hearing. Notice of such
hearing shall be hand delivered or mailed as provided in section 2-191 to the
violator. Notice may additionally be served by publication or posting as provided
in section 2-191. If the violation is corrected and then recurs or if the violation is
not corrected by the time specified for correction by the code enforcement officer,
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.
(d) If a repeat violation is found, the code enforcement officer shall notify the
violator but is not required to give the violator a reasonable time to correct the
violation. The code enforcement officer, upon notifying the violator of a repeat
violation, shall notify the special magistrate and through clerical staff shall
schedule a hearing. Notice of such hearing shall be hand delivered or mailed as
provided in #$ section 2-191 to the violator. 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 fines
and costs and impose the payment of same upon the repeat violator.
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(e) If the code enforcement officer 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 enforcement officer shall make a reasonable effort to notify the violator and
may immediately notify the special magistrate and schedule a hearing.
Sec. 2-182. Duties of person transferring ownership of property.
(a) If the owner of property which is subject to an enforcement proceeding
before the special magistrate 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 provisions or ordinance and
with orders issued in the code enforcement proceeding.
(4) File a notice with the code enforcement officer 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.
(b) A failure to make the disclosures described in subsections (a)(1), (2), and (3)
of this section 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 of time to correct the
violation before the hearing is held.
Sec. 2-183. Burden of proof.
At the hearing, the burden or proof shall be upon the village to show by
competent substantial evidence that a violation did occur or does exist or has
been repeated. Assuming proper notice of hearing has been given to the
respondent, either as actual notice, or as otherwise provided in this division, a
hearing may proceed in the absence of a respondent.
Sec. 2-184. Testimony, evidence and witnesses.
(a) All testimony shall be under oath and shall be recorded. Formal rules of
evidence shall not apply but fundamental due process shall be observed and
shall govern the proceedings. Irrelevant, immaterial and unduly repetitious
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 would
be admissible in a trial in the courts of the state. Documentary and physical
evidence may be admitted.
(b) The special magistrate may inquire of any witness who is testifying before
him. The respondent or his attorney and the village attorney or the code
enforcement officer shall be permitted to inquire of any witness before the special
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magistrate. The special magistrate may call any witness deemed necessary to
provide a full and fair hearing of the case.
Sec. 2-185. Issuance of order.
{a} At the conclusion of the hearing, the special maaistrate shall issue findings
of facts based on the evidence on the record and conclusions of law, and shall
issue an order affording the proper relief consistent with the powers granted in
this article. The order shall be stated orally at the meeting, and shall be reduced
to writing and provided to the alleged violator within ten working days after the
hearing. The order may include a notice that it must be complied with by a
specified date and that a fine, as well as the cost of repairs, as provided in
section 2-187, may be imposed if the order is not complied with by such date. A
certified copy of such order may be recorded in the public records of Palm Beach
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 or successors in interest or assigns.
Sec. 2-186. Powers of special magistrate.
The special magistrate shall have the power to:
(1) Adopt rules for the conduct of the special magistrate 's meetings and
hearings.
(2) Subpoena alleged violators (respondents) and witnesses to the special
magistrate 's hearings.
(3) Subpoena evidence as necessary for the special magistrate 's hearings,
including but not limited to physical and documentary evidence such as records,
surveys, plats and photographs.
(4) Take testimony under oath.
(5) Issue orders having the force and effect of law which can command
whatever steps are necessary to bring a violation into compliance.
(6) Establish and enforce fines pursuant to this division.
(7) Authorize the village attorney to foreclose on liens imposed pursuant to this
division which remain unpaid after a period of three months.
(8) Authorize the reduction of any fine imposed.
Sec. 2-187. Imposition of fine; authority of village to make repairs; payment of
cost of repairs.
(a) The special magistrate, upon notification by the code enforcement officer
that an order 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 division 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 found to have occurred by the code enforcement officer. In
addition, if the violation is a violation described in section 2-181(e), upon request
of the village, the special magistrate may authorize the village to make all
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reasonable repairs which are required to bring the property into compliance and
charge the violator with the reasonable cost of the repairs along with the fine
imposed pursuant to this section. Making such repairs does not create a
continuing obligation on the part of the village to make further repairs or to
maintain the property and does not create any liability against the village for any
damages to the property if such repairs were completed in good faith. If, after
due notice and hearing, the special magistrate finds a violation to be irreparable
or irreversible in nature, he 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, he may impose a fine not to exceed $5,000.00 per
violation.
Sec. 2-188. Determination of amount of fine; imposition of lien.
(a) In determining the amount of the fine, if any, the special magistrate shall
consider the gravity of the violation, any actions taken by the violator to correct
the violation, and any previous violations committed by the violator.
(b) A certified copy of an order imposing a fine may be recorded in the public
records in the office of the clerk of the circuit court in and for Palm Beach County,
and, once recorded, 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 the state, including a levy against the personal
property, but such order shall not be deemed otherwise to be a judgment of a
court, except for enforcement purposes. A fine imposed pursuant to this division
shall continue to accrue until the violator comes into compliance or until a
judgment is rendered in a suit to foreclose on a lien filed pursuant to section 2-
189, whichever occurs first. A lien arising from a fine pursuant to this section runs
in favor of the village and the village may execute a satisfaction or release of lien
entered pursuant to this division.
Sec. 2-189. Foreclosure of lien.
(a) After three months from the filing of any a lien pursuant to section 2-188
which remains unpaid, the village may foreclose the lien in the same manner as
mortgage liens are foreclosed or sue to recover a money judgment for the
amount of the lien plus accrued interest, together with costs and a reasonable
attorney's fee. The village shall be entitled to collect all costs incurred in
recording and satisfying a valid lien. Such lien shall be superior to all other liens
except a lien for taxes, and shall bear interest at the rate of ten percent per
annum from the date filed.
(b) No lien created pursuant to the provisions of this division may be foreclosed
on real property which is a homestead under section 4, article X of the state
constitution. The money judgment provisions of this section shall not apply to real
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property or personal property which is covered under section 4(a), article X of the
state constitution.
Sec. 2-190. Duration of lien; collection of costs of lien and foreclosure action.
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 section 2-189 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 village 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 creditors or subsequent purchasers for valuable consideration
without notice, unless a notice of lis pendens is recorded.
Sec.2-191. Notices.
(a) All notices required by this division shall be provided to the alleged violator
by:
(1) Certified mail, return receipt requested, provided that if such notice is sent
under this subsection 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 local government 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 local
government with a properly executed proof of mailing or affidavit confirming the
first class mailing;
(2) Hand delivery by the sheriff or other law enforcement officer, code
enforcement officer, or other person designated by the village council;
(3) 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
(4) In the case of commercial premises, leaving the notice with the manager or
other person in charge.
(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 the village hall. Proof of posting shall be by affidavit of
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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 to provide notice by hand delivery or by mail as required under
subsection (a) of this section.
(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 subsection (b) of this section, shall be sufficient to show
that the notice requirements of this division have been met, without regard to
whether or not the alleged violator actually received such notice.
Sec.2-192. Appeals.
Any aggrieved party, including the village, may appeal a ruling or order of the
special magistrate to the circuit court. Such appeal shall not be a hearing de
novo, but shall be limited to appellate review of the record created before the
special magistrate. The appeal must be filed within 30 days after the hearing at
which the order being appealed was rendered. The village shall establish
reasonable charges for the preparation of the record to be paid by the petitioner.
Sec. 2-193. Commencement of lien foreclosure proceedings.
The village attorney is hereby authorized and directed to institute in the circuit
court of the 15th Judicial Circuit, State of Florida, foreclosure proceedings to
foreclose any and all liens imposed pursuant to this article. Such proceedings
shall be commenced by the village attorney from three months to 20 years after
the order of the special magistrate imposing the lien has been recorded in the
public records of Palm Beach County.
Sec. 2-194. Reduction of fine or lien.
(a) The owner of real property against which a fine or lien has been imposed
pursuant to this division may apply to the special magistrate, through the village
attorney or his designee, for a satisfaction of the fine or lien with less than full
payment. No such application shall be considered ripe for review and action by
the special magistrate until the applicant has first shown that:
(1) All ad valorem property taxes, special assessments, village utility charges
and other government-imposed liens against the subject real property have been
paid.
(2) The applicant is not personally indebted to the village for any reason.
(3) All village code violations have been corrected under necessary permits
issued therefore.
(b) In considering an application to reduce a fine or lien imposed pursuant to
this division, no reduction shall be approved by the special magistrate, unless the
special magistrate shall make a specific finding that no violation of any ordinance
described in section 2-154 exists on the subject real property.
(c) The balance of any fine imposed pursuant to this division that is reduced by
the special magistrate shall be paid on such terms as approved by the special
magistrate.
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(d) If the property for which an application for a fine reduction is being
considered is owned by a government or quasigovernment entity, the special
magistrate may reduce such fine even if the violation has not been corrected.
Sec. 2-195. Citations authorized.
The code enforcement officer is authorized, upon approval by the Chief of Police,
to issue a citation to a person when, based upon personal investigation, the
officer has reasonable cause to believe that the person has committed a civil
infraction in violation of a duly enacted Code provision or ordinance and that the
county court will hear the charge.
Sec. 2-196. Procedure for issuance of citations.
Prior to issuing a citation, the code enforcement officer shall provide notice to the
person that the person has committed a violation of a Code provision or
ordinance and shall establish a reasonable time period within which the person
must correct the violation. If, upon investigation, the code enforcement officer
finds that the person has not corrected the violation within the time period, the
code enforcement officer may issue a citation to the person who has committed
the violation. If the violation is a repeat violation, presents a serious threat to the
public health, safety, or welfare, or is irreparable or irreversible, the code
enforcement officer does not have to provide the person with a reasonable time
period to correct the violation prior to issuing a citation, but instead may
immediately issue a citation.
Sec. 2-197. Form and contents of citations.
A citation issued by the code enforcement officer shall be in a form prescribed by
the village and shall contain:
(1) The date and time of issuance.
(2) The name and address of the person to whom the citation is issued.
(3) The date and time the civil infraction was committed.
(4) The facts constituting reasonable cause.
(5) The number or section of the Code provision or ordinance violated.
(6) The name and authority of the code enforcement officer.
(7) The procedure for the person to follow in order to pay the civil penalty or to
contest the citation.
(8) The applicable civil penalty if the person elects to contest the citation.
(9) The applicable civil penalty if the person elects not to contest the citation.
(10) A conspicuous statement that if the person fails to pay the civil penalty
within the time allowed, or fails to appear in court to contest the citation, the
person shall be deemed to have waived his right to contest the citation and that,
in such case, judgment may be entered against the person for an amount up to
the maximum civil penalty.
Sec. 2-198. Disposition of copies of citations.
After issuing a citation to an alleged violator, the code enforcement officer shall
deposit the original citation and one copy of the citation with the county court.
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Sec. 2-199. Adoption of schedule of violations and penalties.
The village council may enact a schedule of violations and penalties to be
assessed by code enforcement officers. Such ordinance shall provide:
(1) That a violation of a Code provision or an ordinance is a civil infraction.
(2) A maximum civil penalty not to exceed $500.00.
(3) A civil penalty of less than the maximum civil penalty if the person who has
committed the civil infraction does not contest the citation.
Sec. 2-200. Grounds for issuance of citation; right to contest issuance.
(a) The issuance of a citation shall be by a code enforcement officer who has
reasonable cause to believe that a person has committed an act in violation of a
Code provision or an ordinance.
(b) The violator may contest the issuance of a citation in county court.
Sec. 2-201. Refusal to sign and accept citation.
Any person who willfully refuses to sign and accept a citation issued by a code
enforcement officer shall be guilty of a misdemeanor of the second degree,
punishable as provided in F.S. § 775.082 or 775.083.
Sec. 2-202. Enforcement of building code.
The provisions of this division shall not apply to the enforcement pursuant to F.S.
§§ 553.79 and 553.80 of the Florida Building Code adopted pursuant to F.S. §
553.73 as applied to construction, provided that a building permit is either not
required or has been issued by the village.
Cross references: Buildings and building regulations, ch. 14.
State law references: Similar provisions, F.S. § 162.21(7).
Sec. 2-203. Provisions supplemental.
The citation method of enforcement as set forth in secs. 2-195 through 2-202 are
additional and supplemental means of enforcing village codes or ordinances and
may be used for the enforcement of any code or ordinance, or for the
enforcement of all codes and ordinances. Nothing contained in this division shall
prohibit the village from enforcing its codes or ordinances by any other means.
State law references: Similar provisions, F.S. § 162.21(8).
Secs.2-204--2-230. Reserved.
Section 2: Each and every other section and subsection of Chapter 2.
Administration. shall remain in full force and effect as previously enacted.
Section 3: .All Ordinances or parts of Ordinances in conflict herewith be
and the same are hereby repealed.
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Section 4: Should any Section or provision of this Ordinance or any
portion thereof, any paragraph, sentence or word be declared by a Court of
competent jurisdiction to be invalid, such decision shall not affect the validity of
the remainder of this Ordinance.
Section 5: Specific authority is hereby granted to codify this Ordinance.
Section 6: This Ordinance shall become effective immediately upon
passage.
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Upon Second Reading this 23~d day of March 2010, the foregoing Ordinance was
offered by Council Member Humpage who moved its adoption. The motion was
seconded by Council Member Turnquest and upon being put to a vote, the vote was as
follows:
For Adoption Against Adoption
Mayor Pat Watkins X
Vice-Mayor Tom Paterno X
Council Member Vince Arena X
Council Member Jim Humpage X
Council Member Calvin Turnquest X
The Mayor thereupon declared the Ordinance duly passed and adopted this 23`d day of
March, 2010.
ATTEST:
~~ -.
Lori McWilliams, CMC
Village Clerk
MAYOR OF TEQUESTA
~~ ~~~~
Pat Watkins
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