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HomeMy WebLinkAbout2010-09 Code Amendment - Code Enforcement Special Magistrate• ORDINANCE 2010-09 AN ORDINANCE OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, AMENDING CHAPTER 2, "ADMINISTRATION" OF THE VILLAGE CODE OF ORDINANCES BY AMENDING ARTICLE VI, "CODE ENFORCEMENT BOARD," TO PROVIDE FOR THE APPOINTMENT OF CODE ENFORCEMENT SPECIAL MAGISTRATES 1N LIEU OF A CODE ENFORCEMENT BOARD, TO REMOVE REDUNDANT AND UNDULY RESTRICTIVE LANGUAGE AND TO ENSURE COMPLIANCE WITH CHAPTER 162, FLORIDA STATUTES; AMENDING SECTIONS 2-172, "DEFINITIONS," 2-173, "APPLICABILITY," 2- 174, "ORGANIZATION OF BOARD," 2-175, "ENFORCEMENT PROCEDURE," 2-176, "CONDUCT OF HEARING, 2-177, "POWERS OF ENFORCEMENT BOARD," 2-178, "FINES; LIENS," 2-179, "DURATION OF LIEN," 2-180, "APPEAL," AND 2-181, `NOTICES;' ADOPTING NEW SECTION 2-183, "PROVISIONS SUPPLEMENTAL;" PROVIDING FOR TRANSITION OF PENDING MATTERS; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village Council wishes to amend Article VI of the Chapter 2 of the Village Code of Ordinances to provide for the appointment of Code Enforcement Special Magistrates to preside over code enforcement cases, remove redundant and unduly restrictive language, ensure compliance with Chapter 162, Florida Statutes, and provide for the transition of pending matters from the Code Enforcement Board to the Special Magistrate; and WHEREAS, the Village Council determines that the adoption of this Ordinance is in the interests ofthe health, safety and welfare ofthe Village and its residents. NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, as follows: Section 1. The foregoing recitals are ratified as true and correct and are incorporated herein. Section 2. The Village Council hereby amends Chapter 2, "Administration," of the Village Code of Ordinances by amending Article VI, "Code Enforcement Board," to read as follows (additional language underlined and deleted language is strislert-threugh): ARTICLE VI. CODE ENFORCEMENT BOARD Sec. 2-171. Declaration of legislative intent. It is the intent of this article to promote, protect and improve the health, safety and welfare of the citizens of the village and to provide an equitable, expeditious, effective and inexpensive method of enforcing the hereinafter described codes and ordinances of the village where a pending or repeated violation continues to exist. Page 1 of 11 Sec. 2-172. 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 clearlyindicates a different meaning: Attorney.- means the attorney Forney for the village who will advise the code enf a nt bo r,1 of legal r lei a et er lebal asaista a ed represent the village in proceedings before a special magistrate. Code inspector means those These authorized agents or employees of the village whose duty it is to insure ensure Bede compliance with the codes referred to above below; including, b t not limited t<, tl;c village manager, building R'nfereementbo•• a -Vlage-ofNorth Pak: Beach Code Enforcement Beard. 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, special magistrate or any other quasi-judicial or judicial process, to have violated or who has admitted violating the same provision within five (5) years prior to the violation, notwithstanding the violations occur at different locations. Special magistrate means a special magistrate appointed by the village council pursuant to section 2-174 to conduct code enforcement proceeding s in accordance with the provisions of this article. Sec. 2-173. Applicability. The code enf rcement board special magistrate shall enforce and have jurisdiction of the following codes: Chapter 4, Village of North Palm Beach Code, containing the animals and fowl code. Chapter 5, Village of North Palm Beach Code, containing the docks and waterways code. Chapter 6, Village Florida building code, the appearance code and the sign code. Chapter 7, Village bulkhead lines code. of North Palm Beach Code, including the the g code, the -mechanic l code, the plumbing code, Appendix A, appearance plan (Appendix A). and of North Palm Beach Code, containing the Chapter 12, Village of North Palm Beach Code, including the fire prevention code. Page 2of11 Chapter 14, Village of North Palm Beach Code, containing the health and sanitation code. Chapter 15, Village of North Palm Beach Code, containing the housing code. Chapter 17, Village of North Palm Beach Code, containing the business tax code. Sections 18-34 and 18-35 of Chapter 18. Chapter 19, Village of North Palm Beach Code, containing the noise control code. Chapter 24, Village of North Palm Beach Code, containing the streets, sidewalks and driveways code. Chapter 25, Village of North Palm Beach Code, containing the swimming pool code. Chapter 27, Village of North Palm Beach Code, containing the trees and shrubbery code, including landscaping of yards and parking lots. Chapter 28, Village of North Palm Beach Code, containing the franchise ordinance for the use of the village rights -of -way for utilities Chapter 36, Village of North Palm Beach Code, containing the subdivision code. Chapter 45, Village of North Palm Beach Code, containing the zoning code. Sec. 2-174. Special Maeistrates. (a) Qu . ifie .tion Ua tc ma. The village council shall appointa ceven member code, enforcement board and legal counsel for the board. The members shall ha e the fo110 � in a �nBOns-and to a e- (1) Members of the enforcement board shall be residents of the village,Appeintments shall be made by the village council on the basis-ef-experienee-ef-Mt-erest--M-the-fields-ef-zening-and-building trot Tho mbe ship oftho f �o rba shall h 0o0 e„�,..o o 0 Pess;blo include• a. An architect; b. A u iness ; e: An engineer; d. n o e al „ ntr ct„r; c. A subcontractor; Page 3 of 11 (2) A realtor; g. 1`1 I : order. that the terms of ofce of .,ll mbers , it note eat the -same- a e-initi l ointments-te-theenforceme shall be as f llowR a. Two (2) members shall be appointed for a term of one (1) year; b. Threc (3) members shall h • E. T e-'members shall be appointed for a term of three (3) Thereafter, all appaintments shall 'ee made for a tcrm of three (3) years. Appointments t„ fl, the enf , e„t board shall bc for the Wider of the unexpired term ofof € pen =ste-attendtwo (2) of chafrinsa, the board shall declare thc mcmbcr's office vacant and thc village The members shall se eat the pleasure ofthe v;ll.,ge c ei (b) Officers; n. The members of the enforcement -beard -shall -elect a chairman from its members who shall be ., voting member. The presence of four (1) or more members, shall constitute a querum--ewe- nforeement-boar 4emberss sh la�erve-with pensation, ctcpensas .as �i y be authorized by the village c cil (c) Attorney. The village attorney shall bc counsel to the coda enforcement bear.& (a) Avvointment. The village council may appoint one or more special magistrates to conduct code enforcement hearings. The special magistrate shall serve at the pleasure of the village council and may be removed by the village council at anv time for anv or no reason. The special magistrate shall serve with compensation in an amount established by the village council. (b) Porter and authority. The special magistrate shall have the power and authority granted by the provisions of this article and Chapter 162. Florida Statutes. (c) Oualifications. The special magistrate shall be an attorney and member of good standing with the Florida Bar with a minimum of ten (10) years of Florida local government or municipal experience. Page 4of11 • Sec. 2-175. Enforcement procedure. (a) It shall be the duty of the code inspector to initiate enforcement proceedings of the various codes. No member e f „ board special magistrate shall have the power to initiate such enforcement proceedings. (b) If a violation of the codes is found, the code inspector shall notify the violator, unless paragraph (c) of this section applies, and give the violator a reasonable time to correct the violation. Should the violation continue beyond the time specified for correction, the code inspector shall notify the enforcement beard special magistrate and request a hearing pursuant to the procedure in section 2-176. The code enf rcement board special magistrate, through its village clerical staff, shall schedule a hearing and written notice of such hearing shall be hand delivered or mailed as provided in section 2-181 to said violator. At the option of the code -enforcement -board special magistrate. notice may additionally be served by publication or posting as provided in section 2-181. 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 enforcement board special magistrate even if the violation has been corrected prior to the board hearing, and the notice shall so state. (c) 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. (d) 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 code enf rcement board special magistrate and request a hearing pursuant to the procedure in section 2-176. The cede -enforcement -board special magistrate, through its village clerical stag shall schedule a hearing and shall provide notice pursuant to section 2-181. The case may be presented to the cede enforcement board special magistrate even if the repeat violation has been corrected prior to the board hearing, and the notice shall so state. If the repeat violation has been corrected, the codc enforcement —beard 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 code enforcemcnt board special magistrate. Written notice, with a scheduled hearing, shall be provided pursuant to section 2-181. (e) If the owner of property which is subject to an enforcement proceeding before the enforcement board, special master 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: Page 5 of 11 • • (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. 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 (5) days after the date of the transfer. A failure to make disclosures described in sub -paragraphs (e)(1), (2), (3), and (4) 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. (3) Sec. 2-176. Conduct of hearing. (a) The chairman of the enforcemcnt board may call hearings of the e„f r ent bo rd „d he .,ls be called b. ritten otic ed b. nt least three (-(3) members -of tleen€orcement-boavaii . T e-en orcement boardi-at -anry hearing, may set a future hearing date. The enforcement board special magistrate shall attempt to convene conduct hearings no less frequently than once every two (2) months, but yet meet more or less often as the demand necessitates. Minutes shall be kept of all hearings by the enforcement board special magistrate and all hearings and proceedings shall be open to the public. The village clerk shall provide clerical and administrative personnel as may be reasonably required by the special magistrate for the proper performance of its his or her duties. (b) Each case before the special magistrate shall be presented by the Village's administrative staff or the attorney. If the local geve; y village prevails in prosecuting a case before the enforcement special ma2istrate. it shall be entitled to recover all costs incurred in prosecuting the case before the bid special ma2istrate and such costs may be included in the lien authorized under section 2-178. (c) 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 ma2istrate shall take testimony from the code inspector and alleged violator and from any witness called on behalf of either the village or the alleged violator. Formal rules of evidence shall not apply; however, fundamental due process shall be observed and govern said proceedings. Both the village and the alleged violator shall have the right to subpoena witness to testify at the hearing. Page 6 of 11 (d) 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 powers granted herein. The-findings-shall-be-lmetien-appreved-by-a-majority-of-these „, nt .,a . ontiept that ate slt f , .. (4) member of e thent bo r l e ,.�e en e must -vote in order f r 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 may be imposed and, under the conditions specified in section 2-178, the cost of repairs may be included along with the fine if the order is not complied with by said date. Sec. 2-177. Powers of the special magistrate. The special magistrate shall have the power to: (1) Adopt rules for the conduct of its hearings. The chairman of the shall advise the alleged . „later o f t,,e rode ectio awhich he sed ana shall frst se elm to determ e ir«llleged violator ocent to pare ge. If he alleged:olator admits guilt then the board shall li and evidence it deems „ t„ emedy the violation o punish the offder f the alleged . olater states he -is n plating the Village Cade [section] ; estion then ke board shall l,ea« fiat from the villagevillage witnesses and evidenee, and -the --alleged violator shall have -the right to cros^rexaminev ge witness tthe close of the presentation of the villages case against the alleged violator,t a alleged violator ,loll be permitted to present his violator and his witnesses. The burden of proving the alleged violation o f the V ll ge Cede c described above sh.,ll be ..r tl,e village to prove by a preponderance of evidence that the alleged (2) Subpoena alleged violators and witnesses to its code enforcement hearings. Subpoenas may be served by the village's police department. (3) Subpoena evidence to code enforcement hearings. (4) Take testimony under oath. (5) Issue orders having the force of law commanding whatever steps are necessary to bring a violation into compliance. 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 the 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. Page 7of11 • Sec. 2-178. Fines; liens. (a) Generally. The eafercement—be-ard special magistrate, upon notification by the code inspector that a previous order of the special magistrate has not been complied with by the set time or, upon finding that the same violation h bacn rcpctcd by the same violator 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 for compliance, or, in the case of a repeat violation, for each day the repeat violation continues,_ past the date of netiee t„ the . olater o f the re eat olation beginning with the date the repeat violation is found to have occurred by the code inspector. In addition, if the violation is a violation described in subsection 2-175(c), the enforcement boar'' special magistrate shall notify the local body village, which may make all 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 local goveming body village to make further repairs or to maintain the property and does not create any liability against the local govarr irg body village 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 article, a hearing shall not be necessary for issuance of the order imposing the fine. It after due notice and hearing, a code enf rcement boa"'' the special magistrate finds a violation to be irreparable or irreversible in nature, it he or she may order the violator to pay a fine as hereinafter specified. 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 subsection (a). However, if a code enf "cement board the special magistrate finds the violation to be irreparable or irreversible in nature, it he or she may impose a fine not to exceed five thousand dollars ($5,000.00) per violation. (b) Determination of amount of fine. 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. (c) Reduction of fine. The code e f cement boar.? special magistrate may reduce a fine imposed pursuant to this section. " fine imrosea pursuant to this artiele-shall continue-te-accrue , nti the . olator to eomYliance or until judgment is rendered in a gait to foreclose on a lien filed pursuant to this section :.h ehev0 s iraE Page8of11 (d) Copies of orders imposing fines. 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. 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 to be a court judgment except for enforcement purposes. 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 filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the local g body village, and the local n body village may execute a satisfaction or release of lien entered pursuant to this section. After three (3) months from the filing of any such lien which remains unpaid, the enforcement board special magistrate may authorize the heal -governing -body village 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 Article X, Section 4 of the State Constitution. The money judgment provisions of this section shall not apply to real property or personal property which is covered under § 4(a), Art. X of the State Constitution. Sec. 2-179. Duration of lien. No lien 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 is commenced pursuant to section 2-178 of this Code 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 local governing body village shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the line 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. 2-180. Appeal. An aggrieved party, including the village council, may appeal a final administrative order of the special magistrate to the circuit court of -the cou„ty. 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. 2-181. Notices. (1) All notices required by this part shall be provided to the alleged violator by: Page 9of11 (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 tothe local government by such owner and is returned as unclaimed or refused, notice may be provided by posting as described in subparagraphs (2)(b)1. and 2. and by first class mail directed to the addresses furnished to the local government 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, or other person designated by the village; (c) Leaving the notice at the violator's usual place of residence with any person residing therein who is above fifteen (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 code enf rcement board special magistrate, notice may also be served by publication or posting, as follows: (a) 1. Such notice shall be published once during each week for four (4) consecutive weeks (four publications being sufficient) in a newspaper of general circulation in the county where the eede enforcement board village is located. The newspaper shall meet such requirements as are prescribed under chapter 50 of the Florida Statutes for legal and official advertisements. 2. Proof of publication shall be made as provided in Sections 50.041 and 50.051, Florida Statutes. (b) 1. In lieu of publication as described in paragraph (a), such notice may be posted for at least ten (10) days prior to the hearing, or prior to the expiration of any deadline contained in the notice in at least two (2) locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at thep mafy-Feunicipa1 government „' a village hall. 2. 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. (c) 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). Page 10 of 11 • • 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 subsection (2) 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. 2-182. Actions for money judgments; limitation. Actions for money judgments may be pursued only on fines levied after October 1, 2000. Sec. 2-183. Provisions supplemental. Nothing contained within this article shall prohibit the village from enforcing its codes by anv other means. Section 3. Upon the effective date of this Ordinance, the Code Enforcement Special Magistrate(s) appointed by the Village Council pursuant to Section 2-174 above shall have the power and authority to assume all responsibilities and duties of the Code Enforcement Board and take whatever actions are necessary, including, but not limited to, certifying or reducing fines and authorizing the foreclosure of liens, to resolve any matter pending before, or previously determined by, the Code Enforcement Board. Section 4. The provisions of this Ordinance shall become and be made part of the Code of Ordinances for the Village of North Palm Beach, Florida. Section 5. If any section, paragraph, sentence, clause, phrase or word of this Ordinances is for any reason held by a court of competent jurisdiction to be unconstitutional, inoperative or void, such holding shall not affect the remainder of the Ordinance. Section 6. All ordinances and resolutions, or parts of ordinances and resolutions, in conflict herewith are hereby repealed to the extent of such conflict. Section 7. This Ordinance shall be effective immediately upon adoption. PLACED ON FIRST READING THIS 24th DAY OF DUNE, 2010. PLACED ON SECOND, FINAL READING AND PASSED THIS 8th DAY OF JULY, 2010. iffage TEST: 1 D c rtt d� `/LimloViLLAGE LERK APPROVED AS TO FORM AND aF(GAL SUFFICIEN VILIGE ATTORNEY Page 11 of 11 MAYOR