HomeMy WebLinkAboutO-93-16 ORDINANCE NO. 0-93-16
AN ORDINANCE OF THE CITY OF SEEASTIAN, INDIAN RIVER
COUNTY, FLORIDA, ~MENDING, IN ITS ENTIRETY, CHAPTER 2,
ARTICLE Vi, DIVISION 2, OF THE CODE OF ORDINANCES~
PERTAINING TO THE CODE ENFORCEMENT BOARD; PROVIDING FOR
REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT
HEREWITH; PROVIDING FOR CODIFICATION; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Sebastian employs the use of a Code
Enforcement Board, pursuant to Chapter 162 of the Florida Statutes,
as a method of enforcing the City's Code of Ordinances and Land
Development Code; and
WHEREAS, Chapter 162 of the Florida Statutes has been
amended by the Florida Legislature, resulting in the need for the
City's ordinance, pertaining to the Code Enforcement Board, to be
amended in order to remain consistent with Chapter 162; and
WHEREAS, the City Council of the City of Sebastian has
further determined that the current ordinance pertaining to the
Code Enforcement Board requires amendments in order to ensure that
the procedure for enforcing the City's code of Ordinances and Land
Development Code is administered in accordance with principles of
due process.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AS FOLLOWS:
Section 1 - Chapter 2, Article VI, Division 2, of the Code
of Ordinances of the City of Sebastian is hereby amended in its
entirety to hereafter provide as follows:
"DIVISION 2. CODE ENFORCEMENT BOARD
Sec. 2-176. Created.
(a) There is hereby created and established the Sebastian Code
Enforcement Board. The Board is created and established pursuant
to the authority granted pursuant to the Local Government Code
Enforcement Boards Act, F.S. §§ 162.01 through 162.13.
(b) Those provisions of the Local Government Code Enforcement
Boards Act, as set forth in F.S. §§ 162.01 through 162.13, which
are not inconsistent with this division, are hereby adopted as
ordinances of the City.
(Code 1980, § 2-91)
Sec. 2-177. Definitions.
The following words, terms and phrases, when used in this
division, shall have the meanings ascribed to them in this section,
except where the context clearly indicates a different meaning:
Board means the Sebastian Code Enforcement Board.
City means the City of Sebastian, Indian River County, Florida.
Code inspector means those employees or other agents of the City
whose duty it is to enforce City codes and/or to present Code
violations to the Board.
Code(s) means the Code of Ordinances
Development Code of the City of Sebastian.
and/or the Land
County means Indian River County, Florida.
Person means any individual, corporation, partnership, firm,
association, legal representative, trustee or receiver.
Repeat violation means a violation of a provision of a code by
a person whom the Code Enforcement Board has previously found to
have violated the same provision within five years prior to the
violation.
Violator means the person responsible for the code violation
which, in the appropriate circumstances, shall either be the
perpetrator of the violation or the owner of the real property upon
which the violation occurred.
(Code 1980, § 2-92).
Cross reference-Definitions and rules of construction
generally, § 1-2, of the Code of Ordinances of the city.
State law reference-similar provisions, F.S. § 162.04 (1991).
Sec. 2-178. Jurisdiction.
(a) Unless exclusive jurisdiction and authority for
enforcement of the City's Code of Ordinances and Land Development
Code is expressly and exclusively granted to one of the city's
other boards, commissions, committees or administrative officials,
the Code Enforcement Board shall have authority and jurisdiction to
hear and determine alleged violations of the Code of Ordinances and
Land Development Code of the City of Sebastian.
(b) The jurisdiction of the Code Enforcement Board shall not
be exclusive, but shall be concurrent with any other Board,
commission, committee or administrative official charged with the
enforcement of the Code of Ordinances or Land Development Code of
the City.
(Code 1980, § 2-93)
Sec. 2-179. Membership; composition.
The Board shall be composed of seven regular members, and at
City Council's discretion, up to two alternate members. All
members shall be appointed by the City Council and the Board shall
consist, whenever possible, of the following:
(1) One architect.
(2) One businessman.
(3) One engineer.
(4) One general contractor.
(5) One realtor.
(6) One subcontractor.
(7) The final member, and alternates if appointed, may be any
qualified resident of the City.
(Code 1980, § 2-94(a))
State law reference-Similar provisions, F.S. § 162.05(2)
(1991).
Sec. 2-180. Quallflcatlons.
Each regular member appointed to the Board shall possess the
following minimum qualifications:
(1)
The architect and the engineer shall be registered under
the laws of the State of Florida regulating the practice
of architecture and engineering or shall possess similar
qualifications under the laws of other states or shall
have actual experience deemed by the City Council to be
equivalent to such registration.
(2)
The general contractor and the subcontractor shall
possess a valid certificate of competency and
occupational license, recognized and accepted under the
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laws of the State of Florida and the codes of the city,
regulating the business of contracting and, where
required, state registration as a contractor, or shall
possess similar qualifications under the laws of other
states, or shall have actual experience deemed by the
City Council to be equivalent to such certification.
(3)
The realtor shall be licensed under the laws of the State
of Florida, licensing real estate brokers as either a
broker or salesman, or shall possess similar
qualifications under the laws of other states or shall
have actual experience deemed by the City Council to be
equivalent to such licensing.
(4)
The businessman shall be actively engaged in any lawful
business within the City, or shall be an officer or
employee of a business entity holding a current and valid
occupational license issued by the City.
(5) Each member shall be a resident of the City. If a member
of the Board ceases to be a resident of the city, such
member shall immediately notify the City Clerk of such
occurrence and their membership on the Board shall
terminate automatically and immediately.
(Code 1980, § 2-94(b))
Sec. 2-181. Terms of office.
(a) Of the regular members initially appointed to the Board:
(i)
Two members shall be appointed for a term of one
year each.
(2)
Three members shall be appointed for a term of two
years each.
(3)
Two members shall be appointed for a term of three
years each.
(b)
After the initial appointments, all subsequent
appointments shall be made for terms of three years each.
(c) In no event shall any individual who has served as a
regular member of the Board for the greater of two consecutive
terms or six consecutive years be reappointed to serve another
consecutive term as a regular member of the Board unless no other
person, who is otherwise legally qualified to serve as a regular
member of the Board, has filed an application, which is then still
pending, with the City Clerk, seeking appointment to serve as a
regular member of the Board.
(Code 1980, § 2-94(c); Ord. No. 0-91-23, § 1, 9-25-91)
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Sec. 2-182. Vacancies and reappointments.
(a) If any member fails to attend two of three successive
Board meetings, without cause, and without prior approval of the
chairman, the Board shall declare the member's office vacant and
the City Council shall promptly fill the vacancy in accordance with
the provisions of this Section.
(b) Ail members of the Board shall serve in accordance with
the requirements of this division. The City Council may suspend or
remove any member, for cause, prior to the expiration of their
term.
(c) Any member may be reappointed to the Board in accordance
with Chapter 162 of the Florida Statutes, subject to the
limitations set forth in section 2-181. Appointments to fill any
vacancy on the Board shall be for the remainder of the unexpired
term of office. Furthermore, two months prior to the expiration of
the term of any member, or in the event of any vacancy, the City
Clerk shall provide the Chairperson, the City Manager and the City
Council with a copy of all pending applications for membership on
the Board, even if the incumbent board member intends to seek
reappointment. Whenever a current or former board member is being
considered for appointment or reappointment to the Board, the City
Council shall consider the number and nature of the memoranda of
conflict previously filed by such person pursuant to Florida
Statute §112.3143.
(Code 1980, § 2-94(d); Ord. No. 0-91-23, §2, 9-25-91)
State law reference-Similar provisions, F.S. § 162.05(3) (d),
(e), (f) (1991).
Sec. 2-183. Quorum.
Four or more members of the Board shall constitute a quorum.
(Code 1980, § 2-96)
State law reference-Similar provisions, F.S. § 162.05(4)
(1991) .
Sec. 2-184. Compensation.
Members of the Board shall serve without compensation, but may
be reimbursed for such travel, mileage expenses and per diem
expenses as may be authorized by the City Council and approved by
the City Manager, or as are otherwise provided by law.
(Code 1980, § 2-97)
State law reference-Similar provisions, F.S. § 162.05(4)
(1991) .
Sec. 2-185. Organization.
(a) The Board officers shall consist of a chairperson, vice-
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chairperson and such other officers as the Board shall deem
necessary.
(b) Officers of the Board shall be elected by a majority vote
of the membership of the Board. The election shall be held at the
first meeting of the Board calendar year when all appointed members
are present.
(Code 1980, § 2-95)
State law reference-Similar provisions, F.S. § 162.05(4)
(1991) .
Sec. 2-186. Rules and regulations.
The Board may adopt such rules and regulations, as are not
inconsistent with the provisions of Chapter 162 of the Florida
Statutes or this division, for the conduct of its hearings.
(Code 1980, § 2-98)
State law reference-Similar provisions, F.S. § 162.08(1)
(1991) .
Sec. 2-187. Clerk.
The City Clerk shall appoint a city employee to be the Board
clerk, who shall perform the functions assigned to the clerk as set
forth in this division.
(Code 1980, § 2-99)
Sec. 2-188. Legal counsel.
The City Council shall, upon recommendation of the Board,
appoint a member of The Florida Bar, to represent and be counsel to
the Board and attend all meetings. The legal counsel shall be
compensated as provided by the City Council.
(Code 1980, § 2-100)
State law reference-Attorneys, F.S. § 162.05(5) (1991).
Sec. 2-189. City attorney.
The City Attorney shall represent the City and the code
inspector before the Board; shall present the City's case on all
formal hearings; and shall have prosecutorial discretion,
including, but not limited to, the right to negotiate a plea with
an alleged violator and present that plea to the Board for
approval; to recommend the disposition of a case to the Board; and
to decline to prosecute a case, similar to the discretion exercised
by the State Attorney of the Nineteenth Judicial circuit in
criminal cases.
(Code 1980, § 2-101)
State law reference-Attorneys, F.S. § 162.05(5) (1991)
Sec. 2-190. Enforcement procedures.
(a) It shall be the duty of the code inspector to enforce the
various codes and initiate enforcement proceedings before the
Board. No member of the Board shall have the power to initiate
enforcement proceedings.
(b) Except as provided in subsection (d) of this section, if
a violation of the codes is found, the code inspector shall notify
the alleged violator and give him reasonable time to correct the
violation. If the violation continues beyond the time specified
for correction, the code inspector shall notify the Board and
request a hearing. The Board, through its clerical staff, shall
schedule a hearing and written notice of such hearing shall be
hand-delivered or mailed as provided in Sec. 2-196 of this
division. At the option of the Board, notice may additionally be
served by publication or posting as provided in Section 2-196 of
this division. 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
Board even if the violation has been corrected prior to the Board
hearing, and the notice of hearing shall so state.
(c) if a repeat violation is found, the code inspector shall
notify the violator, but shall not be 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
Board and request a hearing. The Board, through its clerical
staff, shall schedule a hearing and shall provide notice in the
same manner as provided in Section 2-190(b) of this section. The
case may be presented to the Board even if the repeat violation has
been corrected prior to the Board hearing, and the notice shall so
state.
(d) If the code inspector has reason to believe a 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 Board and request a
hearing.
(Code 1980, § 2-102)
State law reference-F.S. 162.06(1) (1991).
Sec. 2-191. Formal hearing on violations.
(a) Upon request of the code inspector, or at such times as
may be necessary, the chairperson of the Board may call a hearing.
A hearing may also be called by written notice signed by at least
three members of the Board.
(b) Minutes shall be kept of all hearings of the Board.
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(c) The City shall provide clerical and administrative
personnel as may be reasonably required by the Board to properly
perform its duties.
(d) The Board Clerk or his/her designee shall notify, in
writing, the alleged violator of the time and place of the hearing.
Such notice shall be provided to the alleged violator, as provided
by law, in accordance with Sections 2-190 and 2-196 of this
division.
(e) Each case before the Board shall be presented by the City
Attorney with assistance from members of the administrative staff
of the City if necessary.
(f) The burden of proof shall be with the City to show, by a
preponderance of the evidence, that a code violation exists and the
alleged violator committed, or was responsible for committing,
permitting, allowing, authorizing or maintaining the violation.
(g) The Board shall hear the cases on the agenda for that day
unless dismissed or withdrawn by the city or deferred or continued
by the Board. All testimony received by the Board shall be under
oath and shall be recorded.
(h) Ail hearings of the Board shall be opened to the public
and any alleged violator shall be given an opportunity to be heard.
(i) The Board shall first take testimony and other evidence
from the code inspector. The Board shall also take testimony and
other evidence from the alleged violator. If, however, after
receiving testimony and other evidence from the code inspector, the
Board does not believe that the alleged violator has committed the
violation, then the Board may dismiss the case against the alleged
violator without taking the alleged violator's testimony.
(j) Each party to the hearing shall have the right to:
1. Call and examine witnesses;
2. Introduce other evidence and exhibits;
3. cross-examine opposing witnesses;
(k) The alleged violator may be represented by an attorney at
the formal hearing.
(1) Formal rules of evidence shall not apply, but fundamental
due process shall be observed and shall govern the proceeding.
(m) At the conclusion of the hearing, the Board shall issue
findings of fact, based solely on the evidence presented at the
hearing, setting forth the specific facts which the Board
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determines to exist. The Board shall also issue conclusions of
law, based upon the findings of fact, setting forth the specific
code or codes which have been violated, if any. If the Board
determines, as a conclusion of law, that a violation exists, the
Board shall issue an order of enforcement which is consistent with
the powers granted herein. If the Board concludes, based upon the
finding of fact, that no violation has been committed, an order
shall be entered dismissing the City's case.
(n) The findings of fact, conclusions of law, and order of
enforcement shall be by motion, approved by a majority of those
members present and voting, except that at least four members of
the Board must vote in order for the action to be official. The
findings of fact, conclusions of law and order of enforcement shall
be reduced to writing, by the Board clerk, and shall indicate the
names of the Board members voting upon the order and shall indicate
if the individual member voted in the affirmative or in the
negative. The written order shall be signed by the Board chairman
and approved as to form and content by the Board attorney.
(o) No Board member shall vote in any case in which that
member has personal knowledge of the facts of the case pending
before the Board when said personal knowledge, in the opinion of
the Board member, will negatively affect the member's ability to
render a fair and impartial determination of the case.
(p) Every enforcement order shall be filed in the office of
the City Clerk. A copy of the signed order shall be provided to
the violator by U.S. Mail, postage prepaid, sent to the last known
address of the violator. The city Clerk shall place each
enforcement order on the next City Council agenda.
(q) The order may include a notice that it must be complied
with by a specified date and that a fine may be imposed if the
order is not complied with by said date. 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, and the findings therein shall be binding
upon the violator and, any subsequent purchasers, successors in
interest, or assigns. If an order is recorded in the public
records of the County pursuant to this subsection and the order is
complied with by the date specified in the order, the Board shall
issue an order acknowledging compliance that shall be recorded in
the public records of the County. A hearing is not required to
issue such an order acknowledging compliance.
(r) If the Board believes that a violation presents a serious
threat to the public health, safety or welfare, the Board may
request the City Attorney to seek appropriate relief in the name of
the City from the County court or the circuit court.
(Code 1980, § 2-103)
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State law reference-F.S. 162.07 (1991).
2-192. Administrative fines; liens.
(a) The Board, upon notification by the code inspector that
an order of the Board has not been complied with by the set time
or, upon finding that a repeat violation has been committed, may
order the violator to pay a fine in an amount specified in this
section for each day the violation continues past the date set by
the Board for compliance or, in the case of a repeat violation, for
each day the repeat violation continues past the date of notice to
the violator of the repeat violation. If a finding of a violation
or a repeat violation has been made as provided in this part, a
hearing shall not be necessary for issuance of the order imposing
the fine.
(b) (1) A fine imposed pursuant to this section shall not
exceed $250.00 per day for a first violation and shall not exceed
$500.00 per day for a repeat violation.
(2) In determining the amount of the fine, if any, the
Board shall consider the following factors:
a. The gravity of the violation;
Any actions taken by the violator to correct the
violation; and
c. Any previous violations committed by the violator.
(3) The Board may reduce a fine imposed pursuant to this
section. The Board, however, shall create written criteria for the
reduction of fines. Said criteria shall be adhered to when
considering a request to reduce fines.
(c) A certified copy of an order imposing a fine 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 levy against the personal property, 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 to foreclose on a lien filed pursuant to this
section, whichever occurs first. After 3 months from the filing of
any such lien which remains unpaid, the Board may authorize the
City Attorney to foreclose on the lien. No lien created pursuant
to the provisions of this section may be foreclosed on real
property which is a homestead under s. 4, Art. X of the State
Constitution.
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State law reference - F.S. 162.09 (1991).
Sec. 2-193. Duration of lien.
No lien provided under this division shall continue for a
period longer than 20 years after the certified copy of an order
imposing a fine has been recorded, unless within that time an
action to foreclose on the lien is commenced in a court of
competent jurisdiction. In an action to foreclose on a lien, the
prevailing party is entitled to recover all costs, including a
reasonable attorney's fee, that it incurs in the foreclosure. The
continuation of the lien effected by the commencement of the action
shall not be good against creditors or subsequent purchasers for
valuable consideration without notice, unless a notice of lis
pendens is recorded.
State law reference - F.S. 162.10 (1991).
Sec. 2-194. Appeals.
An aggrieved party, including the City, may appeal a final
order of the Board 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 Board. An appeal shall be filed
within 30 days of the executions by the chairperson of the order to
be appealed.
State law reference-F.S. 162.11 (1991).
Sec. 2-195. Subpoena powers.
The Board shall have the authority to subpoena alleged
violators and witnesses to its hearings. The city, the Board or
the alleged violator may request that witnesses and records be
subpoenaed to any emergency or formal hearing. Subpoenas shall be
served as allowable by law. The chairperson of the Board shall
provide the Board clerk with sufficient signed and blank witness
subpoenas to be provided to alleged violators and the City Attorney
for the purpose of subpoenaing witnesses and records. The alleged
violator shall pay to the City a fee of $12.00 for each subpoena
served by the City at the request of the alleged violator.
(Code 1980, § 2-107)
State law reference-F.S. 162.08(2)(3) (1991).
Bec. 2-196. Service of notice.
(a) Ail notices required by this part shall be provided to
the alleged violator by certified mail, return receipt requested;
by hand delivery by the sheriff or other law enforcement officer,
code inspector, or other person designated by the City Council by
Resolution; or by leaving the notice at the violator's usual place
of residence with any person residing therein who is above 15 years
of age and informing such person of the contents of the notice.
(b) In addition to providing notice as set forth in
subsection (a), at the option of.~ the Board, notice may also be
served by publication or posting as allowable by law.
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~Sec.'2-197. Obstructing Inspector..
Whoever opposes, obstructs or resists a code inspector in the
discharge of any duty provided in this division, upon conviction,
shall be guilty of a misdemeanor of the Second degree, punishable
in accordance with the Laws of the State of Florida."
Section 2. CONFLICTS. Ail ordinances or parts of ordinances
in conflict herewith are hereby repealed.
Section 3. CODIFICATION. It is the intention of the City
Council of the City of Sebastian, Indian River County, Florida, and
it is hereby provided that the provisions of this ordinance shall
become and be made a part of the Code of Ordinances of the City of
Sebastian, Florida; that the sections of this ordinance may be
renumbered or relettered to accomplish such intention; and the word
"Ordinance" may be changed to "Section," "Article" or other
appropriate designations.
Section 4. SEVERABILITY. In the event a court of competent
jurisdiction shall hold or determine that any part of this
ordinance is invalid or unconstitutional, the remaining provisions
of this ordinance shall not be affected and it shall be presumed
that the City Council of the city of Sebastian did not intend to
enact such invalid or unconstitutional provision. It shall further
be assumed that the City Council would have enacted the remainder
of this ordinance without said invalid and unconstitutional
provision, thereby causing said remainder to remain in full force
and effect.
Section 5. EFFECTIVE DATE. This ordinance shall become
effective immediately upon its adoption.
The forego~g ordinance was moved for adoption by Council-
member {~Y/~99 . The motion was.seconded by
Council~ember ..... ~~C~Z~ and, upon being put to a
vote, the vote was as follows:
Mayor Lonnie R. Powell
Vice-Mayor Frank Oberbeck
Councilmember Carolyn Corum
Councilmember Norma J. Damp
Councilmember Robert Freeland
The Mayor~thereupon decOr,ed this ordinance duly passed and
adopted this ~_~ day of ~d~--L&t~k~. , 199~.
C I~T I~~ ~ ~
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Katbryn M~ o'Halloran, CMC/AAE
Clerk
i ~{EREB¥ CERTIFY that notice of public hearing on this
ordinance was published in the Vero Beach Press Journal as required
by State . Statute, that one public hearina was held on this
ordinance at 7:00 p.m. on the ~ day of ~~ , 199~, and
the following said public hearing this ordinance wa~ passed by the
Ka~hrynfM. O'Hal~lo~an, CMC/AAE
City Clerk
Approved as to form and content:
Charles I Attorney
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