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96-14 ORDINANCE NO. 96-14 AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA, PROVIDING FOR THE ESTABLISHMENT OF THE CITY'S CODE ENFORCEMENT PROCESS; PROVIDING FOR DEFINITIONS; PROVIDING FOR CIVIL OFFENSES AND PENALTIES; PROVIDING FOR QUALIFICATIONS OF AND POWERS OF SPECIAL MASTERS; PROVIDING FOR THE CITY ATTORNEY TO SERVE AS COUNSEL; PROVIDING FOR AUTHORITY TO INITIATE ENFORCEMENT PROCEDURES; PROVIDING FOR ENFORCEMENT PROCEDURES; PROVIDING FOR CONTENTS AND SERVICE OF WARNINGS AND NOTICES; PROVIDING FOR RIGHTS OF VIOLATORS; PROVIDING FOR SCHEDULING AND CONDUCT OF HEARING; PROVIDING FOR CIVIL PENALTIES AND RECOVERY OF UNPAID CIVIL PENALTIES; PROVIDING FOR APPEALS OF SPECIAL MASTER'S ORDER; PROVIDING FOR SUPPLEMENTAL PROVISIONS; PROVIDING FOR ADDITIONAL ENFORCEMENT POWERS; PROVIDING FOR A SCHEDULE OF CIVIL PENALTIES; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPLACEMENT OF CODE ENFORCEMENT PROVISIONS PROVIDED BY METRO DADE COUNTY CODE SEC 8CC, ET. SEQ. AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council, upon the recommendation of the City Manager, deems it necessary and a priority to expedite the establishment of the City's code enforcement operations, and WHEREAS, the City Council has determined that it is in the best interest of the City to adopt an Ordinance outlining and implementing the Code Enforcement Process to be utilized to achieve compliance and preserve the character of the community. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF AVENTURA, FLORIDA, THAT: Section 1. Code Enforcement Process. This Ordinance shall establish the code enforcement process to be utilized by the City of Aventura. The City Manager or his designee shall establish administrative procedures to implement the requirements of this Ordinance. Section 2. Definitions. The following words, terms and phrases, when used in this Ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Code means collectively the City Code of Ordinances and applicable sections of the County Code as made applicable to the City pursuant to section 8.03 of the City Charter. Code Enforcement or Compliance Officer means any authorized agent or employee of the City whose duty it is to ensure compliance with the Code. Continuing Violation means a violation which remains uncorrected beyond the time period for correction contained in either the civil violation Notice or the final order of the Special Master, whichever is applicable. Manager means the City Manager. Notice means a civil violation Notice issued to a Violator in accordance with the provisions of this Ordinance. Repeat Violation means a violation of a provision of the Code by a person whom the Special Master has previously found to have violated the same provision of the Code. A Repeat Violation can occur only after correction of the previous violation has been made. Shaft. The word "shall" is always mandatory and not merely directory. Special Master means a person appointed pursuant to Section 4. Uncorrectable Violation means a violation which is irreparable or irreversible in nature and which cannot be remedied after the violation has been committed because the violation constitutes a single prohibited act rather than an ongoing condition or circumstance. Violator means that person responsible for a violation of the Code. Warning means a written Warning issued to a Violator in accordance with the provisions of this Ordinance. Section 3. Civil offenses and penalties. A violation of the Code, as enforced pursuant to this Ordinance, shall constitute a civil offense punishable by civil penalty in the amount prescribed in Section 18, as may be modified in accordance with Section 13. Section 4. Qualifications of Special Masters; appointment and removal; compensation. (a) Appointments of Special Masters shall be made by the City Manager as needed on the basis of experience or interest in code enforcement. Such appointments shall be submitted to the Council for ratification. (b) Special Masters shall be residents of the City at least six months prior to appointment and during service for the City, and shall possess outstanding reputations for civic pride, interest, integrity, responsibility and business or professional ability. 2 (c) Appointments shall be made for a term of one year. Special Masters may be reappointed at the discretion of the City Manager, subject to ratification by the Council. (d) Special Masters shall not be City employees but may be compensated at a rate to be determined by administrative order of the City Manager. Section 5. Powers of Special Masters. Special Masters shall have the power to: (1) Adopt rules for the conduct of hearings. (2) Subpoena Violators and witnesses for hearings; subpoenas shall be served by the City Police Department or by the City staff. (3) Subpoena evidence to hearings. (4) Take testimony under Oath. (5) Assess and order the payment of civil penalties as provided in this Ordinance. (6) Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance. Section 6. City Attorney to serve as counsel. The City Attorney shall provide legal advice to the Special Masters. If an appeal is taken pursuant to Section15, the City Attorney shall represent the City at such proceedings. Section 7. Authority to initiate enforcement proceedin.qs. Code Enforcement Officers shall have the authority to initiate code enforcement proceedings as provided in Section 8. Special Masters shall not have such authority. Section 8. Enforcement procedures. (a) A Code Enforcement Officer who finds a violation of the Code shall issue a Warning to the Violator stating that the Violator has committed a violation of the Code and shall specify a reasonable time period within which the Violator must correct the violation. This determination shall be based on consideration of fairness; practicality; ease of correction; ability to correct; severity of violation; nature, extent, and probability of danger or damage to the public and promote, protect, and improve the health, safety and welfare of the citizens; and other relevant factors relating to the reasonableness of the time period prescribed. 3 (b) If, upon personal investigation, a Code Enforcement Officer finds that the Violator has not corrected the violation within the time period specified in the Warning, the Code Inspector shall issue a Notice to the Violator stating that the Violator has committed a violation of the Code and shall determine a reasonable time period within which the Violator must correct this violation. (c) If, upon personal investigation, a Code Enforcement Officer finds that the Violator has not corrected the violation within the time period specified in the Notice, the Code Enforcement Officer shall notify the City Manager or his designee in writing and may request a hearing. (d) If the Code Enforcement Officer has reason to believe a violation presents a serious threat to the public health, safety or welfare, or if the violation is an Uncorrectable Violation, the Code Enforcement Officer need not give the Violator a Warning and may issue a Notice requiring immediate correction of the violation. The Code Enforcement Officer shall make a reasonable effort to notify the Violator and may immediately notify the City Manager or his designee and request a hearing. (e) If a Code Enforcement Officer finds a Repeat Violation, the Code Enforcement Officer shall issue a Notice to the Violator but is not required to give a reasonable time to correct the violation. The Code Enforcement Officer, upon notifying the Violator of a Repeat Violation, shall notify the City Manager or his designee and request a hearing. Section 9. Contents and service of Warnin.q. (a) A Warning shall include the following: (1) Date and time of issuance. (2) Name of Code Enforcement Officer issuing the Warning. (3) Name and address of the Violator. (4) The section of the Code that has been violated. (5) Brief description of the nature of the violation, including location, date and time of violation. (6) Amount of the civil penalty for which the Violator may be liable. (7) Time within which the violation must be corrected. (8) Statement that the failure to correct the violation by the time period indicated in the Warning will result in the issuance of a Notice. 4 (b) Service of the Warning to the Violator shall be effected by hand delivery to the Violator; by leaving the Warning at the Violator's usual place of residence with any person residing therein who is 15 years of age or older and informing such person of the contents of the Warning; by certified mail, return receipt requested, to the Violator's usual place of residence; or by posting the Warning in a conspicuous place on the premises or real proper~y upon which the violation was observed. The posting of the Warning shall be deemed proper service, and the time for compliance stated in the Warning shall commence with the date of such posting. Section 10. Contents and service of Notice. (a) A Notice shall include: (1) Date and time of issuance. (2) Name of Code Enforcement Officer issuing the Notice. (3) Name and address of the Violator. (4) The section of the Code that has been violated. (5) Brief description of the nature of the violation, including location, date and time of violation. (6) Amount of the civil penalty for which the Violator may be liable. (7) Instructions and date for paying the civil penalty or for filing a request for an administrative hearing before a Special Master to appeal the civil penalty. (8) Time within which the violation must be corrected. (9) A statement that each day of continued violation after the time period for correction has run shall be deemed a Continuing Violation subject to an additional penalty in the same amount without the need for additional Notices. (10) A statement that the filing of a request for an administrative hearing will toll the accrual of Continuing Violation penalties. (11) A statement that failure to request an administrative hearing within 20 days after service of the Notice shall constitute a waiver of the Violator's right to an administrative hearing before the Special Master, and that such waiver shall constitute an admission of the violation, and that in such case, judgment may be entered against the Violator for the amount of the civil penalty. 5 (12) A statement that the Violator may be liable for the reasonable administrative hearing costs should he be found guilty. (b) Service of the Notice to the Violator shall be effected by hand delivery to the Violator; by leaving the Notice at the Violator's usual place of residence with any person residing therein who is 15 years of age or older and informing such person of the contents of the Notice; by certified mail, return receipt requested, to the Violator's usual place of residence; or by posting the Notice in a conspicuous place on the premises or real property upon which the violation was observed. The posting of the Notice shall be deemed proper service, and the time for compliance stated in the Notice shall commence with the date of such posting. Section 11. Rights of Violators; payment of fine; right to appeal; failure to pay and correct or to appeal. (a) A Violator who has been served with a Notice shall elect either to: (1) Pay the civil penalty in the manner and within the time indicated on the Notice and correct the violation within the time specified on the Notice; or (2) Request an administrative hearing before a Special Master to appeal the decision of the Code Enforcement Officer which resulted in the issuance of the Notice. (b) An appeal of the Notice shall be accomplished by filing a request in writing to the address indicated on the Notice, not later than 20 calendar days after the service of the Notice. (c) If the named Violator, after Notice, fails to pay the civil penalty and correct the violation within the time specified, or to timely request an administrative hearing before a Special Master, the Special Master shall be informed of such failure by report from the Code Enforcement Officer. Such report shall be by affidavit of the Code Enforcement Officer. Failure of the named Violator to appeal the decision of the Code Enforcement Officer within the prescribed time period shall constitute a waiver of the Violator's right to administrative hearing before the Special Master. A waiver of the right to administrative hearing shall be treated as an admission of the violation, and penalties may be assessed accordingly. Section 12. Scheduling and conduct of hearing. (a) Upon receipt of a named Violator's timely request for an administrative hearing or a written hearing request from the Code Enforcement Officer as provided for in Section 8, the City Manager or his designee shall set the matter down for hearing on the next regularly scheduled hearing date or as soon thereafter as practicable. 6 (b) The City Manager or his designee shall send a notice of hearing by first class mail to the named Violator at his last known address. The notice of hearing shall include but not be limited to the following: (1) Name of the Code Enforcement Officer who issued the Notice. (2) Factual description of the alleged violation. (3) Date of the alleged violation. (4) Section of the Code allegedly violated. (5) Place, date and time of the hearing. (6) Notice of the right of the Violator to be represented by an attorney. (7) Right of the Violator to present evidence and witnesses, and to cross examine witnesses. (8) Notice that failure of the Violator to attend the hearing may result in civil penalty and administrative hearing costs being assessed. (9) Notice that requests for continuances will not be considered if not received by the Special Master at least ten calendar days prior to the date set for the hearing. (c) The City Manager or his designee shall call hearings on a monthly basis or upon the request of the Code Enforcement Officer. No hearing shall be set sooner than 20 calendar days from the date of service of the Notice. (d) A hearing date shall not be postponed or continued unless a request for continuance, showing good cause for such continuance, is received in writing by the Special Master at least ten calendar days prior to the date set for the hearing. (e) All hearings of the Special Master shall be open to the public. All testimony shall be under Oath. Assuming proper notice, a hearing may proceed in the absence of the named Violator. (f) The proceedings at the hearing shall be recorded and may be transcribed at the expense of the party requesting the transcript. (g) The City Clerk shall provide clerical and administrative support as may be reasonably required by each Special Master for the proper performance of his duties. (h) Each case before a Special Master shall be presented by the City Manager or his designee. 7 (i) The hearing need not be conducted in accordance with the formal rules relating to evidence and witnesses, but fundamental due process shall be observed and shall govern the proceedings. Any relevant evidence shall be admitted if the Special Master finds it competent and reliable, regardless of the existence of any common law or statutory rule to the contrary. (j) Each party shall have the right to call and examine witnesses; to introduce exhibits; to cross examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called that witness to testify; and to offer rebuttal of the evidence. (k) The Special Master shall make findings of fact and conclusions of law based on evidence of record. In order to make a finding upholding the Code Enforcement Officer's decision, the Special Master must find that a preponderance of the evidence indicates that the named Violator was responsible for the violation of the relevant section of the Code. (I) The time for correction given by the Code Enforcement Officer to the named Violator and contained in the Notice is rebuttably presumed to have been a reasonable time for correction. Upon presentation of relevant evidence by the named Violator that the time for correction was not reasonable; however, the Special Master may make a redetermination as to reasonableness of the time for correction contained in the Notice. The Special Master may not make a determination that the time given for correction in the Notice was unreasonable unless the time given for correction has not yet run at the time the Special Master makes his decision. If the Special Master determines that the time given for correction was insufficient, the penalty for a Continuing Violation shall be calculated from the date determined by the Special Master to be a reasonable date for correction. (m) If the named Violator is found guilty of the violation, he may be held liable for the reasonable cost of the administrative hearing, at the discretion of the Special Master. (n) The fact-finding determination of the Special Master shall be limited to whether the violation alleged did occur, and, if so, whether the person named in the Notice may be held responsible for that violation. Based upon this fact-finding determination, the Special Master shall either affirm or reverse the decision of the Code Enforcement Officer. The Special Master may also modify the decision of the Code Enforcement Officer as to the time for correction contained in the Notice, subject to the provisions of subsection (I) of this section. If the Special Master reverses the decision of the Code Enforcement Officer and finds the named Violator not responsible for the Code violation alleged in the Notice, the named Violator shall not be liable for the payment of any civil penalty, absent reversal of the Special Master's findings pursuant to Section 15. 8 (o) A decision of the Special Master affirming the decision of the Code Enforcement Officer shall include the following elements: (1) Amount of civil penalty. (2) - Administrative costs of hearing. (3) Date by which the violation must be corrected to prevent resumption of Continuing Violation penalties, if applicable. (p) A Special Master shall postpone a hearing if the named Violator, prior to the scheduled hearing date, files with the duly authorized City board of appropriate jurisdiction, if any, an administrative appeal concerning the interpretation or application of the Code provisions upon which the alleged violation was based. This postponement provision shall not apply to political sign violations. However, once an issue has been determined by a Special Master in a specific case, that issue may not be further reviewed by a City board in that specific case. (q) Upon exhaustion of a timely filed administrative appeal and finalization of the administrative order by the duly authorized City board of appropriate jurisdiction, the Special Master may exercise all powers given to him by this Ordinance. The Special Master shall not, however, exercise any jurisdiction over such alleged Code violations until the time allowed for court appeal of the ruling of such board has lapsed or until such further appeal has been exhausted. (r) The Special Master shall be bound by the interpretations and decisions of duly authorized City boards concerning the provisions of the Code within their respective jurisdictions. If such a board decides that an alleged violation of the Code is not in accordance with such board's interpretation of the Code provision on which the violation is based, the Special Master shall not be empowered to proceed with the enforcement of the violation. Section 13. Civil penalties and related terms construed, (a) Penalties for violations of the provisions to be enforced through this Ordinance shall be in the amounts prescribed in the schedule of civil penalties contained in Section 18. (b) For each day of a Continuing Violation, an additional penalty in the same amount as that prescribed for in the original violation shall be added. (c) For the first Repeat Violation, the amount of the civil penalty shall be double the amount of penalty prescribed for the original violation by Section 18. The amount of civil penalty due for each subsequent Repeat Violation shall be double the amount of penalty due for the first day of the immediately preceding violation; provided, that the 9 maximum penalty payable for the first day of any one Repeat Violation shall be $500.00. (d) A Repeat Violation which remains uncorrected beyond the time prescribed for correction in the Notice shall be treated as a Continuing Violation, and the additional penalty for each day of continued violation shall be double the amount due for the first day of the Repeat Violation. (e) Continuing Violation penalties shall accrue from the date of correction given in the Notice until the correction is made or until a request for administrative hearing is filed, whichever comes first. If the named Violator requests an administrative hearing and loses his appeal, the Special Master shall determine a reasonable time period within which correction of the violation must be made, based on the considerations set forth in Section 8(a). If correction is not made within the period set by the Special Master, Continuing Violation penalties shall begin to accrue again after the time for correction has run. (f) Civil penalties assessed pursuant to this Ordinance are due and payable to the City on the last day of the period allowed for the filing of an appeal from the Special Master's decision, or, if a proper appeal is made, when the appeal has been finally decided adversely to the named Violator. Section14. Recovery of unpaid civil penalties; unpaid penalty to constitute a lien; foreclosure. (a) The City may institute proceedings in a court of competent jurisdiction to compel payment of civil penalties. (b) A certified copy of an order imposing a civil penalty may be recorded in the public records and thereafter shall constitute a lien against the property 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. ^ civil penalty imposed pursuant to this Ordinance shall continue to accrue until the Violator complies or until judgment is rendered in a suit to foreclose on a lien filed pursuant to this Ordinance, whichever occurs first. After three months from the date of filing of any such lien which remains unpaid, the City may foreclose or otherwise execute on the lien. (c) No lien provided under this Ordinance 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 a lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party may recover interest and all costs, including a reasonable attorney's fee, incurred in the foreclosure. The continuation of the lien effected by the commencement of the action shall not be good 10 against creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. Section. 15. Appeals of Special Master's order. (a) An aggrieved party, including the City, may appeal a final order of a Special Master 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 Master. An appeal shall be filed within 30 calendar days of the issuance of the order sought to be overturned. Failure to make such appeal within the prescribed 30-day period shall render the findings of the Special Master conclusive, binding and final. (b) Unless the findings of the Special Master are overturned in a proceeding held pursuant to subsection (a) of this section, findings of the Special Master shall be admissible in any proceeding to collect unpaid penalties. (c) No aggrieved party other than the City may apply to the Court for relief unless such party has first exhausted the remedies provided for in this Ordinance and has taken all available steps provided in this Ordinance. It is the intention of the City that all steps provided by this Ordinance shall be taken before any application is made to the Court for relief; and no application shall be made by any aggrieved party other than the City to a court for relief except from an order issued by a Special Master pursuant to this Ordinance. It is the intention of the City that, notwithstanding anything in this Ordinance to the contrary, the City shall retain all rights and remedies otherwise available to it to secure compliance with or prevent violations of the Code. For purposes of an appeal, the City Clerk shall make available, for public inspection and copying, the record upon which each final order of a Special Master is based. The City Clerk shall make a reasonable charge commensurate with the cost for the preparation of the official record on appeal and transmittal thereof to the Circuit Court and for making certified copies of any record or portion thereof. Section 16, Ordinance provisions are supplemental. Nothing contained in this Ordinance shall prohibit the City from enforcing its Code by any other means. The enforcement procedures outlined in this Ordinance are cumulative to all others and shall not be deemed to be prerequisites to filing suit for the enforcement of any section of this Code. Section 17. Additional enforcement powers. In addition to the powers and authority given to the Special Masters for the City pursuant to this Ordinance, the City may, in its discretion, exercise any powers given to municipalities or their Special Masters by F.S. ch. 162, as amended. .Section 18. Schedule of civil penalties. (a) The following table outlines the sections of the Code, as they may be 11 amended from time to time, which may be enforced pursuant to the provisions of this Ordinance, and the dollar amount of civil penalty for the violation of these sections as they may be amended. Each "Description of Violation" below is for informational purposes only and is not meant to limit or define the nature of the violation or the subject matter of the listed Code sections. To determine the exact nature of the activity proscribed or required by the Code, the relevant Code section must be examined. (b) The following is the schedule of civil penalties. Code Description Civil Section of Violation Penalty (RESERVED) (c) For violations of any section of this Code for which a specific penalty is not prescribed in this section, a penalty shall be imposed which shall not exceed $250.00 per day for a first violation and shall not exceed $500.00 per day for a Repeat Violation. For the purposes of Continuing Violations, each day shall constitute a separate violation. Section 19. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 20. Replacin.q County Code Provisions. Pursuant to City Charter Sec. 8.03, the provisions of Sec. 8CC, Et. Seq. Of the County Code are hereby replaced by this ordinance. This shall not impair any prosecutions which are pending under Sec. 8CC. Section2'l. Effective Date. This Ordinance shall be effective immediately upon adoption on second reading. 12 The foregoing Ordinance was offered by Vice Mayor Rogers-Libert,who moved its adoption on first reading. This motion was seconded by Councilmember Cohen, and upon being put to a vote, the vote was as follows: Councilmember Arthur Berger yes Councilmember Jay Beskin yes Councilmember Ken Cohen yes Councilmember Harry Holzberg yes Councilmember Jeffrey Perlow yes Vice Mayor Patricia Rogers-Libert yes Mayor Arthur I. Snyder yes The foregoing Ordinance was offered by Councilmember who moved its adoption on second reading. This motion was seconded b~ Councilmember Co~e~ ., and upon being put to a vote, the vote was as follows: Councilmember Arthur Berger ~h~- Councilmember Jay Beskin yes Councilmember Ken Cohen yes Councilmember Harry Holzberg ~,es Councilmember Jeffrey Perlow yes Vice Mayor Patricia Rogers-Libert yes Mayor Arthur I. Snyder )res PASSED AND ADOPTED on first reading this 20th day of August, 1996. PASSED AND ADOPTED on second read~~ 'of September, 1996. ,~RTHUR I. SNYOE MAYOR ATTEST: TERESA M. SMITH CITY CLERK APPROVED AS TO LEGAL SUFFICIENCY: CITY ATTORNEY 13