09-27-05 Special Item 6CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER - OFFICE MEMORANDUM
To: Honorable Mayor, Vice Mayor &
City Commission ice/
From: Maria V. Davis
City Manager
ORDINANCE
South Miami
All- AmuficaCity
2001
Date: September 2 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.
Additions shown by underlining and deletions shown by eveFAril
Additions shown by underlining and deletions shown by everstn1g,
(1) Code enforcement officers are charged with enforcing the occupational
license, building, zoning, sign, and other related codes and ordinances of
3
the City and all ordinances of the Miami-Dade County and statutes of
4
the state of Florida that the City is authorized to enforce.
5
6
(2) A "code enforcement officer" means any designated employee or agent,
7
including, but not limited to, Community Development Director,
8
inspectors and police officers, of the City whose, duty it is to enforce the
9
applicable laws.
10
11
(3) A "violator" is defined as the property owner, someone in contractual
12
privity with the pEUM owner, • a member of the property owner's
13
family, such as the person's mother —_ r father, brother, sister, son, daughter,
14
or someone residing at the same property, where the violation of the
15
City's code of ordinances occurred and which results in a civil offense,
16
In this chapter, person and violator are used interchangeably.
17
18
(b) Civil offenses. The violation of any applicable law shall constitute a civil
19
offense punishable by civil penalty in the amount prescribed in the schedule of
20
fines included in this section. Failure to correct a violation, pay an
21
administrative fee and fine, or otherwise comply with lawful direction by the
22
code enforcement officer or order of the special master may subject a violator
23
and, or, property owner to civil actions taken in the name of the special
24
master, upon app-ovffil by the eit . . *� for, including, but not limited
25
to, declaratory and injunctive relief, order to abate a nuisance, to take
26
corrective action, to compel payment, to foreclose a lien on the property that
27
is subject to the citation or order, or to foreclose a lien on any personal or
28
other real property of the violator, or to take any other civil action to compel
29
compliance. The City is authorized to withhold the issuance of or void/revoke
30
any occupational license, land use and development approvals, including, but
31
not limited to, zoning amendment, special exception, variance, building
32
permit, final inspection approval, and temporary or final certificate of
33
occupancy and use until the violation is corrected.
34
35
(c) Citations.
36
37
(1) A code enforcement officer is authorized to issue a civil citation to a
38
person when, based upon personal investigation, the officer has
39
reasonable cause to believe that the person has committed a civil
40
violation of an applicable law.
41
(2) A citation shall contain:
42
a. The date and time of issuance.
43
b. The name and address of the person to whom the citation is issued.
44.
c. The date and time the violation was committed.
45
d. The facts constituting reasonable cause.
46
e. The section or paragraph of the applicable law violated.
Additions shown by underlining and deletions shown by everstn1g,
I
f The name and authority of the code enforcement officer.
2
g. The procedure for the person to follow in order to correct the
3
violation and to request in writing a compliance inspection by the
4
code enforcement officer.
5
h. The procedure for the person to follow in order to pay the civil
6
penalty or to contest the citation.
7
i. A statement that if the person elects to appeal the citation that person
8
may be subject to an additional penalty of up to $500 per day maybe
9
imposed upon a determination that a the violation was committed.
10
j. The applicable civil penalty if the person elects not to appeal the
11
citation.
12
k. Whether the civil penalty is a one time fine and or daily continuing
13
fine.
14
1. A statement that if the person fails to pay the civil penalty within the
15
time allowed, or fails to appeal the citation, the person shall be
16
deemed to have waived his or her right to contest the citation and
17
that a lien may be recorded against the property and the citation may
18
be enforced by initiating an enforcement action in county court.
19
(3) Continuing fines may be imposed for those violations which remain
20
uncorrected beyond the prescribed time period for correction included in
21
the civil infraction notice. For each day of continued violation after the
22
time period for correction has run, an additional penalty in the same
23
amount as the fine for the original violation shall be added.
24
(4) In cases of a repeat violation, or if the code enforcement officer has reason
25
to believe that the violation presents a serious threat to the public health,
26
safety or welfare, or if the violation is irreparable or irreversible, the
27
code enforcement officer does not have to provide the violator person
28
with a reasonable time period to 6orrect the violation prior to issuing a
29
citation, and may immediately issue a citation and require immediate
30
corrective action.
31
(5) A "repeat violation" means a violation of a provision of a code or
32
ordinance by a person who has been previously found to have violated
33
or who has admitted violating the same provision within five years prior
34
to the violation jhe same law at the same address by a per-sen; er- by
35
someone %KIIIL"-4&%.- ,pfi•fty with the per-sen; er- by a member of the
36
Per-sen'- --miediate ffimily-, seeh as the per-son's mother-, &ther-, brother-,
37
sister-, son; d-augh.teff, of by someone fesiding v,4h t—he-p en; widlift
38
past five yeas
39
(6) In cases where a violation presents a serious threat to the public health,
40
safety or welfare, the code enforcement officer may also request a
41
special meeting of the special master and the City Manager for the
42
purposes of correcting the violation by, among other things, providing
43
oversight of the corrective action by the violator or property owner,
44
undertaking corrective action by the City in response to the violation,
45
and authorizing legal action against the violator and/or property owner.
46
A serious threat to health and safety includes, but is not limited to a
Additions shown by underlining and deletions shown by ovefafiking,
I
. violation of Chapter 15 entitled "Nuisances," of the CjjY of South Miami
2
Code of Ordinances.
3
4
(d) Notice of civil infraction. Prior to issuing a. citation, the code enforcement
5
officer shall provide give a civil infraction notice as a courtesy to the person
6
that a violation of an applicable law has been committed and shall establish a
7
reasonable time period within which the person must correct the violation.
8
Where the violator is not the owner of the real property on which the violation
9
occurs, the code enforcement officer may also give notice to the owner or to
10
the owner's agent or representative. The time period to correct the violation
.11
shall not exceed 30 days. If, upon personal investigation, a code enforcement
12
officer finds that the person has not corrected the violation within the time
13
period specified in the civil infraction notice, the code enforcement officer
14
shall issue a citation to the person who has committed the violation, and may
15
issue a citation of to the owner of the real property, or to the owners agent or
16
representative.
17
18
(e) Notice of nuisance violation. Code enforcement officers may issue a notice of
19
nuisance violation declaring _a property a public nuisance as provided for in
20
section 15-50 of the City's code of ordinances. The officer shall seek to
21
enforce the City's code as specifically provided for in this chapter and as
22
provided under the supplemental procedures of Chapter 15 of the City of
23
South Miami Code of Ordinances. The special master shall adhere to the
24
emergency hearing procedures specifically adopted at Chapter 15 for public
25
nuisances. Appeals of public nuisance violations shall be to the special master
26
as provided for under section 15 -51.
27
28
(e)(f) Criminal penalty for wilful refusal to sign and accept citation. Any person
29
who willfully refuses to sign and accept a citation shall be guilty of a
30
misdemeanor of the second degree, punishable as provided in § 775.082 or §
31
775.083, Florida Statutes.
32
33
(f)(g) Appeals to special master.
34
35
(1) A violator who has been served with a civil citation shall elect to either:
36
a. Pay the civil penalty in the manner indicated on the citation and to
37
immediately correct the violation; or
38
b. Request a hearing before the special master to appeal the
39
determination of the code enforcement officer which resulted in the
40
issuance of the civil citation.
41
(2) An appeal to the special master shall be accomplished by filing a written
42
request with the code enforcement division of the Building Department,
43
identifying the citation by the citation number or by the address indicated
44
on the citation, no later than 20 days after the service of the citation. An
45
Appeal of a nuisance violation shall be accomplished as provided far under
46
chanter 15 of the City's code of ordinances.
Additions shown by underlining and deletions shown by everstfgdng-
1
(3) Upon receipt of a timely request for a hearing, the code enforcement
2
division will schedule the appeal on the agenda for the next regularly
3
scheduled meeting of the special master. A netiee of heaFing,wfl
4
mailed by e"fied mail ve the last knewn address and,
5
-, .
6
7
(g)(h) Hearings before special master.
8
9
(1) All hearings before the special master shall be conducted as quasi-judicial
10
hearings. All witnesses shall be sworn to tell the truth under penalty of
11
perjury. Although the Florida Rules of Evidence shall not be applied to
12
the proceedings strictly, due process and fundamental fairness shall be
13
accorded to all alleged violators. Hearsay testimony may be considered to
14
give weight or credibility to other evidence, but no order shall be entered
15
based solely on hearsay testimony.
16
(2) In determining appeals, the special master shall determine whether:
17
a. The person and, or, the property owner were properly served with the
18
civil citation and notice of hearing.
19
b. The citation adequately identifies facts constituting reasonable cause
20
and the section or paragraph of the applicable law violated.
21
c. The special master shall consider all the evidence presented during the
22
hearing.
23
(3) The record shall consist of the code enforcement file, the testimony of the
24
code enforcement officer who issued the civil citation and any other
25
evidence accepted by the special master.
26
(4) The special master shall base its determination on substantial, competent
27
evidence in the record and shall issue an order containing a statement of
28
facts, conclusions of law and order. The order may affirm in whole or in
29
part, or reverse, the charge of violation, affirm or modify the fine levied in
30
the ticket, direct additional corrective action by the violator and, or,
31
property owner, request corrective action by the City (including but not
32
limited to, directing code enforcement to reinspect:,_ directing the city
33
attorney r declaratory li , or issuing
y to file suit in court f _U and. injunctive re ef
34
inspection warrants), include the cost of repairs incurred, or that might be
35
incurred by the City, in correcting the violation, request the initiation of
36
enforcement proceedings as provided for under law and take any other
37
action consistent with the powers of the special master.
38
(5) An audiotape and written minutes summarizing the actions of the special
39
master shall be made.
40
41
(h) (i) Enforcement of orders and liens.
42
(1) At any time, the special master, upon its own, at the direction of the City
43
Commission, or upon request of any person, may direct the enforcement
44
of its orders, and respond to a serious threat to the public health, safety or
45
welfare.
Additions shown by underlining and deletions shown by everAffldng.
1
2
3
4
5
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
(2) In any action to enforce an order of the special master or foreclose a lien,
the prevailing party shall be entitled to an order against the other parry
awarding its reasonable attorney's fees incurred in all stages of the
proceeding, and costs.
(i)0) Liens; priority and foreclosure of liens.
(1) A certified copy of an order imposing a fine may be recorded in the public
records of Miami -Dade County and shall, upon recording, constitute a lien
against the land on which the violation exists and upon any other real or
personal property owned by the violator.
(2) Liens shall be enforced by foreclosure in circuit court and subject to the
provisions contained in subsection 162.09(3), Florida Statutes, as
amended; provided, however, that the lien shall have the same priority,
effect and duration as a special assessment lien. Liens shall have a
duration of 20 years.
(j)(k) Appeals. An aggrieved party, including the violator, property owner, local
governing body, and property owners and tenants within 300 feet of the
property that is subject to an order of violation by the special master, may
appeal the final order to the circuit court. In the case of property owners
and tenants, they shall have standing to appeal to the circuit court only if
they appeared at the hearing before the special master and presented
evidence in substantial opposition to the final order of the special master.
The appeal shall not be a hearing de nova but shall be limited to appellate
review of the record. An appeal shall be filed within 30 days of rendition
of the order.
Notices.
(1) All notices required under this chapter shall be provided to the
alleged violator by_
(a) Certified mail, return receipt requested, provided if such
notice is sent under this paragraph to the owner of the property
where the violation occurred 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 famished to the local government with a
properly executed proof of mailing or affidavit confirming the first
class mailing,
Additions shown by underlining and deletions shown by evers# rd g-
I
(b) Hand delivM to either the properly owner or violator by a
2
law enforcement officer, code inWector, or other person designated
3
by the local gg�Lernigg bgd_y-
4
(c) Leaving the notice at the violator's usual place of residence
5
with any person residing therein who is above 15 years of age and
6
informing such person of the contents of the notice; or
7
(d) In the case of commercial premises, leaving the notice with
8
the manager or other person in charge.
9
10
(2) In addition to providing notice as set forth in subsection (1), at the
11
option of the special master, notice may also be served by publication or
12
posting, as follows:
13
14
(a) 1. The notice shall be published once during each week for 4
15
consecutive weeks (four publications being sufficient) in a
16-
newspaper of general circulation in the county where the special
17
master is located. The newspaper shall meet the requirements as
18
are prescribed under chapter 50 of the Florida Statutes. for legal
19
and official advertisements.
20
21
2. Proof of publication shall be made as provided in ss. 50.041
22
and 50,051, Florida Statues.
23
24
(b )1. In lieu of publication as described in pgwgph (a), the
25
notice may be posted at least 10 days prior to the hearing, or prior
26
to the expiration of any deadline contained in the notice, in at least
27
two locations, one of which shall be the property upon which the
28
violation is alleged to exist and the other of which shall be, city
29
hall.
30
31
2. Proof of posting shall be by affidavit, which affidavit shall
32
include a copy of the notice posted and the date and places of its
33
posting,
34
35
(c) Notice by publication or posting may run concurrently
36
wit or may follow, an attempt or attempts to provide notigg-b
37
hand delivery or by mail as required under subsection
38
39
Evidence that an attempt has been made to hand deliver or mail
40
notice as provided in subsection (D(l), and in subsection (D (2),
41
shall be sufficient to show that the notice requirements of this part
42
have been met, without regard to whether or not the alleged
-
43
violator actually received the notice.
44
45
(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
Additions shown by underlining and deletions shown by eversft*ing,
1
2
3
4
5
6
7
8
9
violation and shall not exceed $500 per day for a repeat violation, and, in
addition, may include all costs of oversight of repairs, costs of repairs, and
costs, including reasonable attorneys fees, incurred at all stages of
proceedings defending appeals before the special master and in
prosecuting orders entered by the special master. In the event the special
master finds that a violation presents a serious threat to the public health,
safety or welfare, or the violation is irreparable or irreversible in nature, it
may impose a fine not to exceed $5,000 for each violation.
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)(9A.
FTRST SECOND ADDMONAL
OFFENSE OFTENSE OFFENSES
CLASS I ........................ $150.00 $300.00 $500.00
OVERGROWN LOTS
]ILLEGAL SIGNS
OTHER VIOLATIONS OF EQUIVALENT GRAVITY
CLASS 1V $350.00 $450.00 $500.00
TRIANGLE OF VISIBILITY
VACANT, UNSECURED BUILDING
OTHER FBC VIOLATIONS
ZONING VIOLATIONS/ILLEGAL UNITS
CONSTRUCTION WORK WITHOUT PERMITS
OTHER VIOLATIONS OF EQUIVALENT GRAVITY
$350.00 $500.00 $500.00
Additions shown by underlining and deletions shown by ever-str-iking.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
tq
20
21
22
23
24
25
26
27
28
29
30
31
32
33
'-f MU-Xf-VC 1; . M
MEPARABLE OR IRREVERSIBLE VIOLATIONS
NUISANCE
OTHER VIOLATIONS OF EQUIVALENT GRAVITY
(n(n) In determining the deviation, if any, from the scheduled fine, the
special master shall consider the following factors:
(1) The gravity of the violation.
(2) Actions taken by the violator to correct the violation.
(3) Previous violations committed by the violator.
(4) The benefit received by the violator from the violation.
(5) The violator's ability to pay.
(6) The deterrent effect to be achieved by the fine.
Section 2. All prior orders of the special master, and all pending enforcement actions
and lien foreclosure actions are ratified and are not affected by this ordinance. This ordinance
shall not apply to any notices of violation that were issued prior to the effective date of this
ordinance, except that actions to enforce orders of the former City of South Miami Code
Enforcement Board, or to foreclose liens, resulting from the prior notices of violation, that are
commenced after the effective date of this ordinance shall comply with the procedures stated
herein.
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 or parts of ordinances in conflict with the provisions of this
ordinance are repealed.
Section 5. This ordinance shall take effect 30 days after approval and be published in
the City's Code of Ordinances.
Additions shown by underlining and deletions shown by eveFstrAdng,
I
PASSED AND ADOPTED this
day of
2
3
ATTEST:
APPROVED:
4
5
6
CITY CLERK
MAYOR
7
S
1s' Reading —
9
2nd Reading —
10
I1
COMMISSION VOTE:
12
READ AND APPROVED AS TO FORM:
Mayor Russell:
13
Vice Mayor Palmer:
14
Commissioner Wiscombe:
15
CITY ATTORNEY
Commissioner Birts- Cooper:
16
Commissioner Sherar:
17
18 CADocuments and Settings\Aricke\My Documents\word Documents \OrdinanceSpecialMaster.doc
Additions shown by underlining and deletions shown by eves ng.
F