09-20-05 Item 8CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER- OFFICE MEMORANDUM
To: Honorable Mayor, Vice Mayor &
City Commission /
From: Maria V. Davis
City Manager
ORDINANCE
South Miami
Ail- AmedcaCity
2001
Date: September 20, 2005
Agenda Item #
Re: Amending Section 2 -25 of the City's
Code of Ordinances
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, RELATING TO CODE ENFORCEMENT; AMENDING
AND REVISING SECTION 2 -25, ENTITLED "CODE ENFORCEMENT
PROCEDURES "; PROVIDING AN ENFORCEMENT MECHANISM VIA NOTICES OF
VIOLATION AND APPEAL TO THE SPECIAL MASTER OF NUISANCE
VIOLATIONS UNDER CHAPTER 15 OF THE CITY OF SOUTH MIAMI CODE OF
ORDINANCES; REVISING THE ENFORCEMENT POWERS OF THE SPECIAL
MASTER; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND
AN EFFECTIVE DATE.
BACKGROUND AND ANALYSIS
The amendment of Chapter 15 of the City of South Miami Code of Ordinances resulted in the
creation of new Sections 15 -50, 15 -51 and 15 -52 of the City's Code of Ordinances. The
amendment to Chapter 15 has also necessitated the revision of Section 2 -25 of the Code of
Ordinances entitled "Code Enforcement Procedures."
The revision of Section 2 -25 provides the Code Enforcement Division with a mechanism to
enforce nuisance violations through a "Notice of Nuisance Violation" (new Section 2 -25 (e)).
Code Enforcement officers will have the ability to issue a notice declaring a property a public
nuisance. The revision also provides for enforcement of the nuisance violation, appeals to the
Special Master, and revised enforcement powers for the Special Master.
RECOMMENDATION
We recommend approval of the attached ordinance.
W
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(1) Code enforcement officers are charged with enforcing the occupational
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license, building, zoning, sign, and other related codes and ordinances of
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the City and all ordinances of the Miami-Dade County and statutes of
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the state of Florida that the City is authorized to enforce.
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(2) A "code enforcement officer" means any designated employee or agent,
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including, but not limited to, Community Development Director
,code
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inspectors and police officers, of the City whose duty it is to enforce the
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applicable laws.
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(3) A "violator" is defined as the property owner, someone in contractual
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privity with the property owner, a member of the property owner's
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family, such as the person's mo1her, father, brother sister, so dau&ter
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or someone residing at the same property, where the violation of the
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City's code of ordinances occurred and which results in a civil offense.
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In this chapter, person and violator are used interchanggab I .
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(b) Civil offenses. The violation of any applicable law shall constitute a civil
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offense punishable by civil penalty in the amount prescribed in the schedule of
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fines included in this section. Failure to correct a violation, pay an
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administrative fee and fine, or otherwise comply with lawful direction by the
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code enforcement officer or order of the special master may subject a violator
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and, or, property owner to civil actions taken in the name of the special
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master, . al by the eity eefmnis4eii-, for, including, but not limited
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to, declaratory and injunctive repel; order to abate a nuisance, to take
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corrective action, to compel payment, to foreclose a lien on the property that
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is subject to the citation or order, or to foreclose a lien on any personal or
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other real property of the violator, or to take any other civil action to compel
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compliance. The City is authorized to withhold the issuance of or void/revoke
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any occupational license, land use and development approvals, including, but
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not limited to, zoning amendment, special exception, variance, building
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permit, final inspection approval, and temporary or final certificate of
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occupancy and use until the violation is corrected.
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(c) Citations.
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(1) A code enforcement officer is authorized to issue a civil citation to a
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person when, based upon personal investigation, the officer has
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reasonable cause to believe that the person has committed a civil
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violation of an applicable law.
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(2) A citation shall contain:
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a. The date and time of issuance.
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b. The name and address of the person to whom the citation is issued.
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c. The date and time the violation was committed.
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d. The facts constituting reasonable cause.
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e. The section or paragraph of the applicable law violated.
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f The name and authority of the code enforcement officer.
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g. The procedure for the person to follow in order to correct the
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violation and to request in writing a compliance inspection by the
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code enforcement officer.
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h. The procedure for the person to follow in order to pay the civil
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penalty or to contest the citation.
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i. A statement that if the person elects to appeal the citation that person
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may be subject to an additional penalty of up to $500 per day ffmy-he
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upon a determination that a the violation was committed.
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j. The applicable civil penalty if the person elects not to appeal the
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citation.
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k. Whether the civil penalty is a one time fine and or daily continuing
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fine.
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1. A statement that if the person fails to pay the civil penalty within the
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time allowed, or fails to appeal the citation, the person shall be
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deemed to have waived his or her right to contest the citation and
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that a lien may be recorded against the property and the citation may
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be enforced by initiating an enforcement action in county court.
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(3) Continuing fines may be imposed for those violations which remain
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uncorrected beyond the prescribed time period for correction included in
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the civil infraction notice. For each day of continued violation after the
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time period for correction has run, an additional penalty in the same
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amount as the fine for the original violation shall be added.
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(4) In cases of a repeat violation, or if the code enforcement officer has reason
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to believe that the violation presents a serious threat to the public health,
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safety or welfare, or if the violation is irreparable or irreversible, the
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code enforcement officer does not have to provide the violator person
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with a reasonable time period to correct the violation prior to issuing a
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citation, and may immediately issue a citation and require immediate
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corrective action.
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(5) A "repeat violation== means a violation of a provision of a code or
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ordinance by a person who has been previously found to have violated
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or who has admitted violating the same pEo
yision W� ithin five rears prior
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to the violation.the same law at the same address by a person; er b
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per-son's immedi-4—Ph—ily —A — person's dier; fi%theF,-bwther-,
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past -9— --af-
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(6) In cases where a violation presents a serious threat to the public health,
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safety or welfare, the code enforcement officer may also request a
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special meeting of the special master and the City Manager for the
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purposes of correcting the violation by, among other things, providing
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oversight of the corrective action by the violator or property owner,
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undertaking corrective action by the City in response to the violation,
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and authorizing legal action against the violator and/or property owner,
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A serious threat to health and safety includes, but is not limited to a
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I violation of Chapter 15 entitled "Nuisances," of the City of South Miami
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Code of Ordinances.
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(d) Notice of civil infraction. Prior to issuing a. citation, the code enforcement
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officer shall provide give a civil infraction notice as a courtesy to the person
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that a violation of an applicable law has been committed and shall establish a
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reasonable time period within which the person must correct the violation.
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Where the violator is not the owner of the real property on which the violation
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occurs, the code enforcement officer may also give notice to the owner or to
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the owner's agent or representative. The time period to correct the violation
shall not exceed 30 days. If, upon personal investigation, a code enforcement
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officer finds that the person has not corrected the violation within the time
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period specified in the civil infraction notice, the code enforcement officer
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shall issue a citation to the person who has committed the violation, and may
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issue a citation of to the owner of the real property, or to the owner's agent or
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representative.
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(e Notice of nuisance violation. Code enforcement officers may issue a notice of
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nuisance violation declaring a propga a public nuisance as provided for in
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section 15-50 of the City's code of ordinances. The officer shall seek to
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enforce the City's code as specifically pLovided, for in this chapter and as
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provided under the supplemental procedures of Chapter 15 of the !City of
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South Miami Code of Ordinances. The special master shall adhere to the
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emergency hearing pfocedures specifically adopted at Chapter 15 for public
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nuisances. Appeals of public nuisance violations shall be to the special master
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as provided for under section 15 -51.
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(e)(f) Criminal penalty for willful refusal to sign and accept citation. Any person
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who willfully refuses to sign and accept a citation shall be guilty of a
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misdemeanor of the second degree, punishable as provided in § 775.082 or §
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775.083, Florida Statutes.
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(4)(g) Appeals to special master.
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(1) A violator who has been served with a civil citation shall elect to either:
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a. Pay the civil penalty in the manner indicated on the citation and to
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immediately correct the violation; or
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b. Request a hearing before the special master to appeal the
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determination of the code enforcement officer which resulted in the
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issuance of the civil citation.
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(2) An appeal to the special master shall be accomplished by filing a written
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request with the code enforcement division of the Building Department,
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identifying the citation by the citation number or by the address indicated
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on the citation, no later than 20 days after the service of the citation. An
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Meal of a nuisance violation shall be accomplished as provided for under
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chapter 15 of the City's code of ordinances.
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(3) Upon receipt of a timely request for a hearing, the code enforcement
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division will schedule the appeal on the agenda for the next regularly
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scheduled meeting of the special master. A nebee W. be
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(g)(h) Hearings before special master.
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(1) All hearings before the special master shall be conducted as quasi-judicial
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hearings. All witnesses shall be sworn to tell the truth under penalty of
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perJury. Although the Florida Rules of Evidence shall not be applied to
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the proceedings strictly, due process and fundamental fairness shall be
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accorded to all alleged violators. Hearsay testimony may be considered to
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give weight or credibility to other evidence, but no order shall be entered
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based solely on hearsay testimony.
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(2) In determining appeals, the special master shall determine whether:
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a. The person and, or, the property owner were properly served with the
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civil citation and notice of hearing.
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b. The citation adequately identifies facts constituting reasonable cause
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and the section or paragraph of the applicable law violated.
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c. The special master shall consider all the evidence presented during the
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hearing.
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(3) The record shall consist of the code enforcement file, the testimony of the
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code enforcement officer who issued the civil citation and any other
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evidence accepted by the special master.
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(4) The special master shall base its determination on substantial, competent
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evidence in the record and shall issue an order containing a statement of
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facts, conclusions of law and order. The order may affirm in whole or in
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part, or reverse, the charge of violation, affirm or modify the fine levied in
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the ticket, direct additional corrective action by the violator and, or,
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property owner, request corrective action by the City (iincluding, but not
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limited to, directing code enforcement to reinspect, directing the city
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attorney r declaratory and injunctive rehef- or issuing
y to file suit in court f
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inspection warrants), include the cost of repairs incurred, or that might be
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incurred by the City, in correcting the violation, request the initiation of
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enforcement proceedings as provided for under law and take any other
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action consistent with the powers of the special master.
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(5) An audiotape and written minutes summarizing the actions of the special
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master shall be made.
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(h) (i) Enforcement of orders and liens.
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(1) At any time, the special master, upon its own, at the direction of the City
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Commission, or upon request of any person, may direct the enforcement
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of its orders, and respond to a serious threat to the public health, safety or
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welfare.
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(2) In any action to enforce an order of the special master or foreclose a lien,
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the prevailing party shall be entitled to an order against the other party
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awarding its reasonable attorney's fees incurred in all stages of the
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proceeding, and costs.
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Liens; priority and fibreclosure of liens.
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(1) A certified copy of an order imposing a fine may be recorded in the public
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records of Miami-Dade County and shall, upon recording, constitute a lien
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against the land on which the violation exists and upon any other real or
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personal property owned by the violator.
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(2) Liens shall be enforced by foreclosure in circuit court and subject to the
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provisions contained in subsection 162.09(3), Florida Statutes, as
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amended; provided, however, that the lien shall have the same priority,
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effect and duration as a special assessment lien. Liens shall have a
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duration of 20 years.
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(j)(k) Appeals. An aggrieved party, including the violator, property owner, local
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governing body, and property owners and tenants within 300 feet of the
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property that is subject to an order of violation by the special master, may
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appeal the final order to the circuit court. In the case of property owners
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and tenants, they shall have standing to appeal to the circuit court only if
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they appeared at the hearing before the special master and presented
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evidence in substantial opposition to the final order of the special master.
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The appeal shall not be a hearing de novo but shall be limited to appellate
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review of the record. An appeal shall be filed within 30 days of rendition
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of the order.
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Nefiees. �1iC ®N he in the by
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162.12, Fl e ida Stataes; a - am lidded, entitled' tk O.-
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Ol Notices.
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(1) All notices required under this chapter shall be provided to the
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alleged violatgLby-
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(a) Certified mail, return receipt requested, provided if such
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notice is sent under this pgg"a h to the owner of the PLopgm
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where the violation occurred at the address listed in the tax
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collector's office for tax notices, and at M other address provided
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to the local government by such owner and is returned as
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unclaimed or refused, notice may be provided by posting as
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described in subparagrUhs (2)(b) 1. and 2- and by first class mail
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directed to the addresses fin-nished to the local government with a
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properly executed proof of mailing or affidavit confirming the first
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class mailing;
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(b) Hand delivery to either the pLoj2gM owner or violator by a
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law enforcement officer, code ingector, or other person designated
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by the Local governing b9dy-,
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(c) Leaving the notice at the violator's usual place of residence
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with M person residkg therein who is above 15 years of age and
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informing such person of the contents of the notice; or
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(d) In the case of commercial premises, leaving the notice with
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the manager or other person in charge
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(2) In addition to providing_ notice as set forth in subsection (1), at the
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option of the special master notice may also be served by publication or
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posting, as follows:
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(a) 1. The notice, shall be published once during each week for 4
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) in a
consecutive weeks (four publications being sufficient
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newspaper of general circulation in the county where the special
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master is located. The newspaper shall meet the requirements as
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are prescribed under chapter 50 of the Florida Statutes, for legal
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and official advertisements.
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2. Proof of publication shall be made as provided in ss. 50.041
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and 50.051, Florida Statues.
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)1. In lieu of publication as described in paragraph (a), the
(b -
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notice play be posted at least 10 days prior to the hearing, or prior
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to the expiration of and deadline contained in the notice, in at least
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two locations, one of which shall be the property Won which the
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violation is alleged to exist and the other of which shall be, city
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hall.
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2. Proof of posting shall be by affidavit, which affidavit shall
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include a copy of the notice posted and the date, and places of its
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P09-im
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(c) Notice by publication or postipg may run concurrently
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, an attempt or attempts to provide notice by
with or may follow
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hand delivery or by mail as required under subsection (1).
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Evidence that an attempt has been made to hand deliver or mail
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notice as provided in subsection (D(l), and in subsection (D (2),
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shall be sufficient to show that the notice requirements of this part
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have been met, without regard to whether or not the alleged
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violator actually received the notice.
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(1) (m)Schedule of fines. Fines shall be imposed for violations of applicable
46
laws as provided below. A fine shall not exceed $250 per day for a first
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s
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•
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* If a person elects to appeal the citation he /she may be subject to an additional penalty of up to
$500.00 per day as provided for under section 2- 25(c)(2)(9).
i'
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$150.00
OVERGROWN #
ILLEGAL
O-Y,viv, AmLumvvs # #
# ', #
R# gal PTA I ! 1
TRASH
GARBAGE
ANIMALS
COMM. 1 IN # 1 DISTRICT
OTHER VIOLATIONS OF EQUIVALENT GRAVITY
i1
OVERGROWN VACANT LOTS
NOISE
ROW OBSTRUCTIONS
CRASS IV $350.00
i
$325.00
$500.00
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$500.00
•
•
THREAT TO PUBLIC BEALM SAFETY & WELFARE
IRREPARABLE OR IRREVERSIBLE VIOLATIONS
NUISANCE
OTHER VIOLATIONS • EQUIVALENT GRAVITY
Section 3® If any section, clause, sentence, or phrase of this ordinance is for any
reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not
affect the validity of the remaining portions of this ordinance.
Section 4. All ordinances • parts • ordinances in conflict with the provisions • s
ordinance are repealed.
Nection 5. This ordinance shall take effect 30 days after approval and be published in
the City's Code of Ordinances.
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PASSED AND ADOPTED flus day •
CITY CLERK -
I N W" I IN" "IN 9 Z 3 u UX11, V MM" I Eli I I M I, i
1'` Reading —
2nd Reading —
C:\Documents and Settings\ArickeMy DocumentsWord Documents\OrdinanceSpecialMaster.doe
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