2010-09 Code Amendment - Code Enforcement Special MagistrateORDINANCE 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 IN 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 st~islo;~):
ARTICLE VI. CODE ENFORCEMENT ~A~4R~
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
clearly. indicates a different meaning:
Attorney.- means the attorney Berney for the village who will
represent the village in proceedings before a special ma istrate.
Code inspector.- means those authorized agents or employees ofthe
village whose duty it is to ire ensure ewe compliance with the codes referred
to shave below; inc ,a;.,°, '",* ^*r-lim=t~~t13e-~i~lage-~ge~bt~~g
Bear
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 ma isg trate 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 proceedings in
accordance with the provisions of this article.
Sec.2-173. Applicability.
The ^°a° °-~~ ~°°~°~+ ''°~•a ~ecial ma isg trate 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 of North Palm Beach Code, including the
Fl
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the appearance code and Apper~ appearance plan (Appendix A), and
the sign code.
Chapter 7, Village of North Palm Beach Code, containing the
bulkhead lines code.
Chapter 12, Village of North Palm Beach Code, including the fire
• prevention code.
Page2of11
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 Magistrates.
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al Appointment. 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 any time for any or no reason. The special magistrate shall serve with
compensation in an amount established by the village council.
(b) PolaaeY and authori .tom he special magistrate shall have the power and
authority granted by the provisions of this article and Chapter 162, Florida Statutes.
(c) Qualifications. The special magistrate shall be an attorney and
member of good standing with the Florida Bar with a minimum often (10) years
of Florida local government or municipal experience.
Page4of11
• Sec. 2-175. Enforcement procedure.
(a) It shall be the duty of the code inspector to initiate enforcement
proceedings of the various codes. No ~ecial ma isg trate 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 °~~ ~^°-~°~+
~ecial ma isg trate and request a hearing pursuant to the procedure in
section 2-176. The ^^a° °~~ r^°-~°~~''^~~a special ma isg trate• through its villa e
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 ^^a° °~~ r^°~~°~+''^°~a 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
~ecial ma isg trate even if the violation has been corrected
prior to the beard 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 ~ecial ma isg_ trate 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 ^^a° °~~ r^°~~°~+''^°~a special magistrate and request a hearing
pursuant to the procedure in section 2-176. The ^^a° °^~ ~^°~~°~+''^°--a special
ma isg trate' through its village clerical staff, shall schedule a hearing and shall
provide notice pursuant to section 2-181. The case may be presented to the cede
special ma isg trate even if the repeat violation has been
corrected prior to the beard hearing, and the notice shall so state. If the repeat
violation has been corrected, the Eea° °~~ ~^°-~°~+ ''^~ra ~ecial ma isg trate
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 EoQ° °~~ r^°•~°~+ ''^°~a ~ecial ma isg trate. 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 °~~ ~^°~°°~+ ''^~ra, special master ma isg trat~ or court
transfers ownership of such property between the time the initial pleading was
served and the time of the hearing, such owner shall:
Page5of11
• (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 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.
Sec. 2-176. Conduct of hearing.
' .The ~ecial ma ism
shall attempt to eeHe 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 special ma isg trate 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 ma isg trate for the proper performance of fts his or her duties.
(b) Each case before the special ma isg trate shall be
presented by the Village's administrative staff or the attorney. If the lec-~1
ge~eg-bevy village prevails in prosecuting a case before the °~~ -°°-„°M+
bed special ma isg trate, it shall be entitled to recover all costs incurred in
prosecuting the case before the beard special ma isg trate and such costs may be
included in the lien authorized under section 2-178.
(c) The °-~~ -^°-~°^* ~°^ra ~ecial ma isg trate shall proceed to hear the
cases on the agenda for that day. All testimony shall be under oath and shall be
recorded. The special ma isg trate 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.
Page6of11
(d) At the conclusion of the hearing, the special
ma isg trate 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. T>7° ~.,a:..,.~ ~>,.,11 >,° 1.„ ...,°~;°., ., ,°a >,,, „ w+„ „~ ~>,,,~°
° ~° °
•~* -•°~° ~ °--a°r ~ r *'~° °°*~°~ *°''° °~°~~'. 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 ma is~ t~ shall have the power to:
(1) Adopt rules for the conduct of its hearings. 'T"~° °''°~~~~ °~ +'~°
~n
r~rt~3e-uiiegEEd ~~iviut9r-=pie~ ^ecri~t6~uEl~Eht'~ +1•°
o.,a °,,;.i°.,..° ~~ ;* a°°.~,~ ., .... ~„ ,.°..,~., t1,° , .,1.,*;,,., „ ;mot,
~t,° v;ll.,,.° r„a° r~°„t;,,.,i ; °~+;,... +t,°.. ~1,° t,°~ra ~t,„n t7°.,,- ~.ti,~
~~tkc~illage,~Ilagiv-wit~es^~es--~e~~enEe~ --a~3~the--alleges
def ° Tt1° ,,;n.,,.° ~t,.,ll t7.,,,° +t,° WR>7~ ~„ ,... ° ° *i,° .,11°,.~
`viviuter-im'lu--iai--vva~c~-in°c avsaeEi ••~ «. +l~° ill°..°.i
=NlAtie~~ v:1~~Ee~e~~.°a .,>,,,,,° ~>7„n i,° ,,,, +>7°
(2) Subpoena alleged violators and witnesses to its code enforcement
hearings. Subpoenas maybe 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.
Page7of11
Sec. 2-178. Fines; liens.
• (a) Generall . The ex~semen~be-ate ~ecial ma isg trate, upon
y
notification by the code inspector that a previous order of the
~ecial ma isg trate has not been complied with by the set time or, upon finding
that *'~° ~ ^'~+~^~ '~~~ ''°°~ ~° °°+°a '~~• +''° ° ^'°+^~ 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 continues1
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
special ma isg trate shall notify the '^°~' °^ ~^ ''^a~•
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 '^°~' '-^~~°~~~~~-''^a~~
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 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. If, after due notice and
hearing, ~ °^a° °~~ r°°~~°~*'~^°ra the special ma isgr trate finds a violation to be
irreparable or irreversible in nature, ft 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° °~~ ~^°--~°~*'~^~ra the special ma isg trate finds the violation to be irreparable
or irreversible in nature, ft he or she may impose a fine not to exceed five
thousand dollars ($5,000.00) per violation.
(b) Determination of amount offine. 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 ^^a° °~~ r°°~~°~~'~^°~a special ma isg trate
may reduce a fine imposed pursuant to this section.
Ele-shad-Een~~ta-aee~e=an~i~--
,~
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 village. and the '^°°' ''^a~~ 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
special ma ism may authorize the '^^°' ~-^•~°~~~^ '~^a~•
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
village shall be entitled to collect all costs incurred in recording and satisfying a
valid lien. The continuation of the lie 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 °~~ r^°-„°~* ''^°ra ~ecial ma ism 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 ma istrate. 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 r wired b this art shall be rovided to the alle ed
~1 Y p p g
violator by:
Page9of11
(a) Certified mail, return receipt requested, provided if such notice is
sent under this paragraph to the owner of the property in question
• at the address listed in the tax collector's office for tax notices, and
at any other address provided to the 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'^^~' ~^.,°.....;.,,. ~.^a~~
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 ^^a° °-~~ -^°m°„* ~^°'-a special ma isg trate, 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 ewe
°~~ r^°-~°-~* ~^°ra 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 villa.
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 b,~y 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 JUNE, 2010.
PLACED ON SECOND, FINAL READING AND PASSED THIS 8th DAY OF JULY, 2010.
(Village Seal)
~m~~ ~ ~~~
MAYOR
ATTEST:
~-
VILLAGE LERK
Page 11 of 11
APPROVED AS TO FORM AND