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HomeMy WebLinkAboutItem #18 First Reading of Ordinance Establishing a Code Enforcement Special Magistrate OCOe florid. AGENDA ITEM COVER SHEET Meeting Date: January 3, 2017 Item # /8' Reviewed By: Contact Name: Scott Cookson, City Attorney Department Director: ��..•• Contact Number: 407-581-9800 City Manager: Rob Frank Subject: First Reading of Ordinance Establishing a Code Enforcement Special Magistrate Background Summary: On October 25, 2016, the City of Ocoee Code Enforcement Board (CEB) considered an action brought by Code Enforcement on property located at 1 Taylor Street. Following a CEB ruling finding a violation but allowing an unprecedented 22 months for the property owner to come into compliance with the City Code, City staff began exploring options and alternatives to ensure more consistent and reasonable code enforcement adjudication in the future. A previous memorandum to the City Commission was circulated by the City Attorney on November 1, 2016 summarizing the matter and offering some options that the City might consider with regard to future code enforcement adjudication. Following a brief discussion at the November 1, 2016 City Commission meeting, the Commission requested additional information on the City's options to support and encourage more meaningful enforcement of the City's codes while maintaining the CEB. On December 6, 2016, the City Commission discussed options relating to abolishing the CEB and/or establishing a Special Magistrate for code enforcement matters. At the end of the discussion, the Commission voted to retain the CEB to hear primarily residential violations and, in addition, to establish a Special Magistrate to primarily hear matters relating to violations on properties zoned other than residential. A proposed ordinance is attached. This ordinance will allow the City to retain the CEB and also establishes a Special Magistrate for code enforcement matters. The proposed ordinance provides that the jurisdiction of the CEB and Special Magistrate is nonexclusive; however, gives primary jurisdiction regarding violations relating to residentially zoned properties to the CEB and primary jurisdiction regarding violations relating to properties zoned other than residential to the Special Magistrate. The ordinance presented at the December 6, 2016 meeting to establish a Special Magistrate for all code enforcement issues has also been attached for your reference. Issue: Should the Honorable Mayor and City Commissioners approve an ordinance retaining the CEB and establishing a special magistrate for code enforcement matters? Recommendation: Staff respectfully requests the Honorable Mayor and City Commissioners approve the ordinance retaining the CEB and establishing a Special Magistrate for code enforcement matters. Attachments: Ordinance retaining the CEB and establishing a Special Magistrate for code enforcement matters. Ordinance establishing a Special Magistrate to handle all code enforcement matters. Financial Impact: An attorney will be retained as Special Magistrate. Via, • r lease mark with an"x") 'c Hearing For Clerk's Dept Use: x Ordi ance First Reading Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda Commission Approval Discussion&Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. N/A Reviewed by () N/A 2 Board & Special Magistrate Ordinance ORDINANCE 2017- AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, AMENDING CHAPTER 7 OF THE CITY OF OCOEE CODE, RELATING TO ENFORCEMENT OF CODE; ESTABLISHING THE CODE ENFORCEMENT SPECIAL MAGISTRATE; PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE. WHEREAS, as provided in Article VIII of the Constitution of the State of Florida and chapters 163 and 166, Florida Statutes, the City of Ocoee (the "City") enjoys all home rule authority, police power, land development and zoning authority, and governmental and proprietary powers necessary to conduct municipal government and perform municipal functions; and WHEREAS, the City may exercise any power for municipal purposes, except as expressly prohibited by law; and WHEREAS, the City has found that there is a need to establish a Special Magistrate for the purpose of hearing code enforcement violations; and WHEREAS, the City Commission in good faith determines that this Ordinance is in the best interest of the City and its residents and promotes the health, safety, and welfare of the public. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby ratified and confirmed as true and correct and incorporated herein by this reference. Section 2. Authority. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes. Section 3. Chapter 7. Chapter 7, relating to Enforcement of Code, is hereby amended as follows: See Exhibit "A" attached hereto and by this reference made a part hereof. Section 4. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. Section 5. Codification. It is the intention of the City Commission of the City that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the City; and that sections of this Ordinance may be renumbered or relettered and the word "ordinance" may be changed to "chapter," "section," "article," or such other appropriate word or phrase in order to accomplish such intentions; and regardless of whether such inclusion in the Code is accomplished, sections of this Ordinance may be renumbered or relettered and the correction of typographical errors which do not affect the intent may be authorized by the City Marshall, without need of public hearing, by filing a corrected or recodified copy of same with the City Clerk. Section 6. Effective Date. This Ordinance shall be in force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED this day of , 2017. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA Melanie Sibbitt, City Clerk Rusty Johnson, Mayor (SEAL) ADVERTISED , 20_ READ FIRST TIME , 20_ READ SECOND TIME AND ADOPTED , 20_ UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 20 . SHUFFIELD, LOWMAN &WILSON, P.A. By: City Attorney EXHIBIT "A" Chapter 7 of the City of Ocoee Code, is hereby amended as follows with strikethroughs showing deletions and underlines showing new language: Section 7-1. -Title. This chapter may be cited as the "Ocoee Code Enforcement Board and Special Magistrate Ordinance." Section 7-2. - Intent. This chapter is intended to promote, protect and improve the health, safety and welfare of the citizens of the City of Ocoee, Florida, by creating an administrative Board and providing a Special Magistrate with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective and inexpensive means of enforcing the codes and ordinances in force in the City of Ocoee, Florida, where a pending or repeated violation continues to exist. Section 7-3. - Establishment of Code Enforcement Board and Special Magistrate; jurisdiction. A. The City of Ocoee, Florida will have one administrative Board as provided in this chapter and which will be called the "Code Enforcement Board of the City of Ocoee, Florida." B. There is hereby created the office of special magistrate of the City of Ocoee, Florida which will be called the "Code Enforcement Special Magistrate." C. Both the T--14 BoardBoard and Special Magistrate will have jurisdiction to enforce any of the codes and ordinances in force in the City of Ocoee, Florida, where a pending or repeated violation continues to exist. The jurisdiction of the Board and Special Magistrate shall be nonexclusive; provided, however, that the Board shall have primary jurisdiction regarding violations relating to residentially zoned properties and the Special Magistrate shall have primary jurisdiction regarding violations relating to properties zoned other than residential.- D. It is the legislative intent of this Chapter to provide an additional or supplemental means of obtaining compliance with the codes and ordinances of the city. Nothing contained in this chapter shall prohibit the City Commission from enforcing such codes and ordinances by any other means. The City Commission may appoint one (1) or more special magistrates to hear any, or all code violations in accordance with the procedure shown herein. Any alleged violation of city codes and ordinances may be pursued by appropriate remedy in court, or as may otherwise be provided by law. E. The Code Enforcement Board or Special Magistrate may be abolished by ordinance. Section 7-4. - Definitions. As used in this chapter, the following terms shall have the meanings indicated: BOARD —The Code Enforcement Board of the city. BOARD ATTORNEY — The person appointed by the City Commission pursuant to § 7- 5A of this chapter to act as legal counsel for the Board. CITY —The City of Ocoee, Orange County, Florida. CITY ATTORNEY — The person appointed by the City Commission to act as attorney and counselor for the city. CITY COMMISSION —The legislative body of the city. CLERK — The person designated by the City Manager to act as Clerk for the Bea-rdBoard and Special Magistrate. It includes persons designated to act as Deputy Clerks, as provided in section §-7-5H. CODE —The Code of the city. CODE INSPECTOR —Any authorized agent or employee of the city who has, as a duty or as a part of his duties, the duty to assure compliance with the Code or any portion thereof. REPEAT VIOLATION — A violation of a provision of a code or ordinance by a person who has been previously found through the BoardBoard and Special Magistrate to have violated or who has admitted violating the same provision within five years prior to the violation, notwithstanding the violations which occurred at different locations. SPECIAL MAGISTRATE (or Code Enforcement Special Magistrate) – The person authorized to hold hearings and assess fines against violators of the City Codes and ordinances. Section 7-5. - Membership of Board; terms of office; organization. A. The City Commission will appoint a seven-member Board and a Board Attorney. The City Commission may appoint up to two alternate members to serve on the Board in the absence of Board members. Board members will be residents of the city. Appointments will be made on the basis of experience or interest in Code enforcement, in the sole discretion of the City Commission. Board membership will, when practicable, include an architect, a businessman, an engineer, a general contractor, a subcontractor and a realtor. B. The initial appointments to the Board will be as follows: (1) Two members shall be appointed for terms of one year each. (2) Three members shall be appointed for terms of two years each. (3) Two members shall be appointed for terms of three years each. C. All subsequent regular appointments to the Board will be for terms of three years. D. If a Board member fails to attend two of three successive Board meetings without cause and without prior approval of the Board Chairman, the Board will declare the member's office vacant and promptly report the vacancy to the City Commission, which will promptly fill the vacancy. Appointment to fill a vacancy on the Board will be for the remainder of the unexpired term of the vacant office. E. Board members will serve without compensation and at the pleasure of the City Commission. Board members may be reimbursed for travel, mileage and per diem expenses as authorized by the City Commission. F. Board members will elect a Chairman (who will be a voting member) from the Board members. The presence of four or more members will constitute a quorum of the Board. G. The City Attorney will not be appointed to be or act as the Board Attorney. H. The City Manager will designate a city employee as Clerk for the Board. The City Manager may designate additional city employees as Deputy Clerks as he deems appropriate to the efficient conduct of the Board's business. Board members, the Board Attorney, the City Attorney and Code inspectors will not be the designated Clerk or Deputy Clerk. I. The Clerk will be the custodian of the records of the Board, subject to supervision and control of the City Clerk. J. The Board Attorney will serve at the City Commission's pleasure. Section 7-5.5 —Term of Special Magistrate; Clerk for Special Magistrate. A. The City Commission is authorized and hereby provides for the designation of one (1) or more Code Enforcement Special Magistrates for the purposes of conducting administrative hearings regarding code violation cases brought by Code Inspectors. B. The Code Enforcement Special Magistrate shall be an attorney duly licensed to practice law in the State of Florida. C. The City may utilize the services of one or more Code Enforcement Special Magistrate(s) to conduct hearings concerning codes and ordinances in force within the City. The City Commission shall, on an annual basis, appoint at least one qualified person to serve as Code Enforcement Special Magistrate(s). D. Each Code Enforcement Special Magistrate(s) shall serve for a term of one year, and may be reappointed for consecutive one-year terms. Although appointed for one- year terms, Code Enforcement Special Magistrate(s) shall be subject to removal by the City Commission, with or without cause, from his or her position at any time during his or her term. Code Enforcement Special Magistrate(s) shall not be considered to be City employees, though they may receive compensation for their services at a rate to be determined by the City Commission. E. The City Attorney will not be appointed to be or act as the Code Enforcement Special Magistrate. F. The City Manager will designate a city employee as Clerk for the Special Magistrate. The City Manager may designate additional city employees as Deputy Clerks as he deems appropriate to the efficient conduct of the Special Magistrate's business. Board members, the City Attorney, and Code inspectors will not be the designated Clerk or Deputy Clerk. G. The Clerk will be the custodian of the records of the Special Magistrate, subject to supervision and control of the City Clerk. Section 7-6. - Procedure. A. It will be the duty of the Code Inspector to initiate proceedings to enforce the Code. No member of the BoardBoard or Special Magistrate may initiate Code enforcement proceedings. B. Except as provided in Subsections C and D, if the Code Inspector finds a violation of the Code, he will first give the violator written notice thereof and a reasonable time to correct the violation. If the violation continues beyond the time set for correction, the Code Inspector will initiate proceedings before the BeardBoard or Special Magistrate by filing a written statement of violations with the Clerk. The BoardBoard or Special Magistrate, through its clerical staff, will schedule a hearing on the alleged violation and give the alleged violator written notice thereof. At the option of the Board or Special Magistrate, notice may additionally be served by publication as provided in section §-7-10 of this chapter. The notice will inform the alleged violator of the following: (1) The nature of the alleged violation. (2) The time and place of the hearing. (3) The alleged violator may appear in person before the BoardBoard or Special Magistrate and present evidence relevant to the matter under consideration by the BoardBoard or Special Magistrate, may subpoena witnesses to testify at the hearing, and may be represented before the BoardBoard or Special Magistrate by legal counsel of his or her own choosing at his or her own expense. (4) 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 BoardBoard or Special Magistrate even though the violation has been corrected before the hearing. C. If a repeat violation is found, the Code Inspector shall notify the violator but is not required to give the violator a reasonable time to correct the violation. The Code Inspector, upon notifying the violator of a repeat violation, shall notify the BoardBoard or Special Magistrate and request a hearing. The BoardBoard or Special Magistrate, through its clerical staff, shall schedule a hearing and shall provide notice pursuant to section 7-10 of this chapter. The case may be presented to the Bea-FdBoard or Special Magistrate even if the repeat violation has been corrected prior to the BoardBoard or Special Magistrate hearing, and the notice shall so state. D. If the Code Inspector has reason to believe a violation or the condition causing the violation presents a serious threat to public health, safety and welfare or if the violation is irreparable or irreversible in nature, the Code Inspector will make a reasonable effort to notify the violator and may immediately notify the Bea-rdBoard or Special Magistrate and request a hearing. E. Transfer of ownership. (1) If the owner of property which is subject to an enforcement proceeding before the BoardBoard or Special Magistrate transfers ownership of such property between the time the initial notice was provided and the time of the hearing, such owner shall: (a) Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee. (b) Deliver to the prospective transferee a copy of the pleadings, notices and other materials relating to the code enforcement proceeding received by the transferor. (c) Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding. (d) File a notice with the Code Inspector of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within five days after the date of the transfer. (2) A failure to make the disclosures described in Subsections E(1)(a), (b) and (c) above before the transfer creates a rebuttable presumption of fraud. If the property is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation before the hearing is held. Section 7-7. - Conduct of hearings. A. The Board will conduct hearings at each Board meeting, unless there are no matters then pending before the Board for hearing. A hearing also may be called either by the Chairman of the Board,_ or by written notice signed by at least three members of the Board, or by the Special Magistrate, as applicable. Minutes shall be kept of all hearings by the BoardBoard and Special Magistrate, and all hearings and proceedings shall be open to the public. B. Cases before the BeardBoard or Special Magistrate will be presented by the City Attorney or a member of the city's administrative staff as determined by the City Manager. The BoardBoard or Special Magistrate will take testimony from the Code Inspector in each case presented to the dBoard or Special Magistrate for hearing. If the city prevails in prosecuting a case before the BeardBoard or Special Magistrate, the city shall be entitled to recover all costs incurred in prosecuting the case before the BaardBoard or Special Magistrate, including but not limited to any fees paid to the Special Magistrate. C. Testimony before the Beard Board or Special Magistrate will be under oath and shall be recorded. The Clerk is authorized and empowered to administer oaths to persons testifying before the BeardBoard or Special Magistrate. The Board Chairman or presiding Board member, Special Magistrate, and Board Attorney are also authorized and empowered to administer oaths to persons testifying before the Board or Special Magistrate. D. The alleged violator will have the right to appear in person before the BeardBoard or Special Magistrate, to testify personally and present other evidence relevant to the matter under consideration by the BoardBoard or Special Magistrate, to subpoena witnesses to testify at the hearing and to be represented before the BeardBoard or Special Magistrate by legal counsel of his own choosing at his own expense. E. Formal rules of evidence will not apply, but fundamental due process will be observed and govern the proceedings. F. At the conclusion of each hearing, the BoardBoard or Special Magistrate will issue findings of fact based on the evidence presented during the hearing and conclusions of law and will issue an order affording proper relief consistent with the powers granted the BoardBoard or Special Magistrate by the provisions of this chapter. G. Findings by the Board will be by motion approved by a majority of those members present and voting, but at least four members present must vote on the motion for the action to be official. H. The order may include a notice that it must be complied with by a specified date; that a fine may be imposed and, under the conditions specified in §section -7-9C of this chapter, the cost of repairs may be included along with the fine if compliance does not occur by that date; that the violation is presumed to continue until the violator gives the city written notice of compliance; that the violator must give the city written notice of compliance before the city will conduct a compliance inspection; and that if the compliance inspection discloses noncompliance, the fine will continue to accrue until compliance occurs. A certified copy of such an order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest or assigns, if the violation concerns real property, and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers, successors in interest or assigns. If an order is recorded in the public records pursuant to this subsection and the order is complied with by the date specified in the order, the BoardBoard or Special Magistrate shall issue an order acknowledging compliance that shall be recorded in the public records. A hearing is not required to issue such an order acknowledging compliance. Section 7-8. - Powers of Board and Special Magistrate. The Board and/or Special Magistrate will have the power to: A. Board adopt Adept rules for its administration and Board and Special Magistrate to adopt rules for the and the conduct of its hearings, provided that they are not inconsistent with the provisions of this chapter or Chapter 162 of the Florida Statutes. B. Subpoena alleged violators, witnesses and evidence to its hearings. The BoardBoard or Special Magistrate may, by its rules, provide for the issuance of subpoenas in the name of the BoardBoard or Special Magistrate under this provision by its Clerk and, at the request of the Code Inspector, the City Attorney, other members of the city's administrative staff responsible to present cases before the BoardBoard or Special Magistrate or the alleged violator. C. Cause subpoenas issued by the BoardBoard or Special Magistrate to be served by the City Police Department or the County Sheriff. D. Take testimony under oath. E. Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance. F. Authorize the City Attorney to foreclose on a lien arising from the recording in the official county records of certified copies of the BoardBoard or Special Magistrate's orders imposing penalties after three months from the filing of the lien have elapsed and the lien remains unpaid. Section 7-9. - Administrative fines; costs of repairs; liens; settlements. A. If the Code Inspector notifies the BeardBoard or Special Magistrate of a failure to comply with a compliance order of the gear-GI-Board or Special Magistrate by the date set in the order, the BeardBoard or Special Magistrate may issue an order requiring the violator to pay a fine not to exceed $250 for each day the violation continues past the date set by the BeaFdBoard or Special Magistrate for compliance, and in addition, the fine may include all costs of repairs pursuant to Subsection C of this section. B. If the Code Inspector notifies the Boa-rdBoard or Special Magistrate and the BoardBoard or Special Magistrate so finds that a repeat violation has been committed, the BeardBoard or Special Magistrate may issue an order requiring the violator to pay a fine not to exceed $500 for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the Code Inspector, and in addition, the fine may include all costs of repairs pursuant to Subsection C of this section. C. In addition, if the violation is a violation described in §section 7-6D of this chapter, the BeaFdBoard or Special Magistrate shall notify the City Commission, which may make all reasonable repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the city to make further repairs or to maintain the property and does not create any liability against the city for any damages to the property if such repairs were completed in good faith. D. If a finding of a violation or a repeat violation has been made as provided in this chapter, a hearing shall not be necessary for issuance of the order imposing the fine. E. In determining the amount of the fine, if any, the Bea-FdBoard or Special Magistrate will consider the following factors: (1) The gravity of the violation. (2) Any actions taken by the violator to correct the violation. (3) Any previous violations committed by the violator. F. City policy is to accomplish compliance with the City Code as economically as possible for all parties. Therefore, after a property owner has been properly noticed of a violation but prior to a hearing before the Be-ardBoard or Special Magistrate, the City Manager or designee is authorized to enter into negotiations and a settlement agreement with the violator. Failure of the violator to comply with the settlement agreement or a recurrence of the violation shall result in prosecution of the original violation as well as the repeat violation, if applicable. The City Manager or designee shall establish the perimeters to be followed for settlement negotiations. Pre-hearing settlement negotiations shall not be grounds for continuing or otherwise delaying a hearing on the violation unless agreed to in writing by both parties. G. Following the hearing before the BeafdBoard or Special Magistrate, a certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the official county records and will thereafter constitute a lien against the land on which the violation exists and on any other real or personal property owned by the violator. Upon petition to the Circuit Court, such order shall be enforceable in the same manner as a court judgment by the sheriffs of Florida, including execution and levy against the personal property of the violator, but such order shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursuant to this chapter shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the City Commission, and the City Commission may execute a satisfaction or release of a lien entered pursuant to this section, unless otherwise provided herein. After three months from the filing of any such lien which remains unpaid, the BeardBoard or Special Magistrate may authorize the City Attorney to foreclose on the lien or to sue to recover a money judgment for the amount of the lien plus accrued interest. No lien created pursuant to the provisions of this part may be foreclosed on real property which is a homestead under § 4, Article X of the State Constitution. The money judgment provisions of this section shall not apply to real property or personal property which is covered under § 4(a), Article X of the State Constitution. H. After an order assessing a fine against a violator has been issued and compliance has been achieved, nothing herein shall prohibit the—Beard, City Commission, or City Manager or designee from reducing, eliminating, satisfying, or otherwise settling the assessed fine or lien or the Board or Special Magistrate from recommending that the City Commission or City Manager or designee reduce, eliminate, satisfy, or otherwise settle the assessed fine or lien. The City Manager or designee shall establish the procedures to be followed for reducing, eliminating, satisfying, or otherwise settling the assessed fine or lien and for recording satisfaction thereof in the official county records. I. The lien will be automatically extinguished 20 years after the date the certified copy of the order imposing a fine is recorded, unless within that time an action is commenced pursuant to this chapter in a court of competent jurisdiction. In an action to foreclose on a lien or for a money judgment, the prevailing party is entitled to recover all costs, including a reasonable attorney's fee, that it incurs in the action. The City Commission shall be entitled to collect all costs incurred in recording and satisfying a valid lien. Commencement of an action pursuant to § 7-9G of this chapter will not cause a continuation of the lien as against creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. J. The Clerk is authorized and empowered to issue certified copies of the BoardBoard or Special Magistrate's records. K. Actions for money judgments under this chapter may be pursued only on fines levied after October 1, 2000. Section 7-10. - Notices. A. All notices required by this chapter will be provided to the alleged violator by: (1) Certified mail, return receipt requested, provided that if such notice is sent under this subsection to the owner of the property in question at the address listed in the Tax Collector's office for tax notices, and at any other address provided to the city by such owner and is returned as unclaimed or refused, notice may be provided by posting as described in Subsection B below and by first class mail directed to the addresses furnished to the city with a properly executed proof of mailing or affidavit confirming the first class mailing; (2) Hand delivery by the Sheriff or other law enforcement officer or Code Inspector or process server designated pursuant to Chapter 48, Florida Statutes; (3) 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; or (4) In the case of commercial premises, leaving the notice with the manager or other person in charge. B. In addition to providing notice as set forth in Subsection A, at the option of the BeardBoard or Special Magistrate, notice may also be served by publication or posting, as follows: (1) Such notice shall be published once during each week for four consecutive weeks, four publications being sufficient, in a newspaper of general circulation in Orange County. The newspaper must meet such requirements as are prescribed under Chapter 50 of the Florida Statutes for legal and official advertisements. Proof of publication shall be made as provided in FS §§ Sections 50.041 and 50.051, Florida Statutes. (2) In lieu of publication as described in Subsection B(1), such notice may be posted at least 10 days prior to the hearing, or prior to the expiration of any deadline contained in the notice, in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at the primary city government office. Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of its posting. (3) Notice by publication may run concurrently with or may follow an attempt or attempts to provide notice by hand delivery or by mail as required under Subsection A. Evidence that an attempt has been made to hand deliver or mail notice as provided in Subsection A, together with proof of publication or posting as provided in Subsection B, will be sufficient to show that the notice requirements of this chapter have been met without regard to whether or not the alleged violator actually received such notice. Section 7-11. - Enforcement by other provisions. Nothing in this chapter will be deemed to prohibit the city from enforcing its codes by any other means; the provisions of this chapter are merely an additional or supplemental means of obtaining compliance with the city's codes. Section 7-12. - Appeals. Final administrative orders of the BoardBoard or Special Magistrate may be appealed to the Circuit Court for Orange County, Florida, by any party to the proceeding in which the order is issued, provided that the appeal is filed within 30 days of execution of the order to be appealed. Special Magistrate Ordinance ORDINANCE 2017- AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, AMENDING CHAPTER 7 OF THE CITY OF OCOEE CODE, RELATING TO ENFORCEMENT OF CODE; ABOLISHING THE CODE ENFORCEMENT BOARD; ESTABLISHING THE CODE ENFORCEMENT SPECIAL MAGISTRATE; PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE. WHEREAS, as provided in Article VIII of the Constitution of the State of Florida and chapters 163 and 166, Florida Statutes, the City of Ocoee (the "City") enjoys all home rule authority, police power, land development and zoning authority, and governmental and proprietary powers necessary to conduct municipal government and perform municipal functions; and WHEREAS, the City may exercise any power for municipal purposes, except as expressly prohibited by law; and WHEREAS, the City has found that there is a need to abolish the Code Enforcement Board and establish a Special Magistrate for purposes of hearing code enforcement violations; and WHEREAS, the City Commission in good faith determines that this Ordinance is in the best interest of the City and its residents and promotes the health, safety, and welfare of the public. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby ratified and confirmed as true and correct and incorporated herein by this reference. Section 2. Authority. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes. Section 3. Chapter 7. Chapter 7, relating to Enforcement of Code, is hereby amended as follows: See Exhibit "A" attached hereto and by this reference made a part hereof. Section 4. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. Section 5. Codification. It is the intention of the City Commission of the City that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the City; and that sections of this Ordinance may be renumbered or relettered and the word "ordinance" may be changed to "chapter," "section," "article," or such other appropriate word or phrase in order to accomplish such intentions; and regardless of whether such inclusion in the Code is accomplished, sections of this Ordinance may be renumbered or relettered and the correction of typographical errors which do not affect the intent may be authorized by the City Marshall, without need of public hearing, by filing a corrected or recodified copy of same with the City Clerk. Section 6. Effective Date. This Ordinance shall become effective January 3, 2017. PASSED AND ADOPTED this day of , 2017. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA Melanie Sibbitt, City Clerk Rusty Johnson, Mayor (SEAL) ADVERTISED , 20_ READ FIRST TIME , 20_ READ SECOND TIME AND ADOPTED , 20_ UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 20_. SHUFFIELD, LOWMAN &WILSON, P.A. By: City Attorney EXHIBIT "A" Chapter 7 of the City of Ocoee Code, is hereby amended as follows with strikethroughs showing deletions and underlines showing new language: Section 7-1. -Title. This chapter may be cited as the "Ocoee Code Enforcement Beard-Special Magistrate Ordinance." Section 7-2. - Intent. This chapter is intended to promote, protect and improve the health, safety, and welfare of the citizens of the City of Ocoee, Florida, by creating an administrative Board an office of special magistrate with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective,and inexpensive means of enforcing the codes and ordinances in force in the City of Ocoee, Florida, where a pending or repeated violation continues to exist. Section 7-3. - Establishment of Office of Special Magistrate Established; jurisdiction. A. There is hereby created the office of special magistrate of the The City of Ocoee, Florida - __ • _ . _.. . - . _ •_ _ • _ . _ - _ _ which will be called the "Code Enforcement Special MagistrateBoard of the City of Ocoee, Florida." B. The Except as provided in chapter 16 and chapter 168 of the Code, the Code Enforcement Special Magistrate Beard-will have jurisdiction to enforce any of the codes and ordinances in force in the City of Ocoee, Florida, where a pending or repeated violation continues to exist. Section 7-4. - Definitions. As used in this chapter, the following terms shall have the meanings indicated: . BOARD ATTORNEY The person appointed by the City Commission pursuant to§ 7 CITY—The City of Ocoee, Orange County, Florida. CITY ATTORNEY — The person appointed by the City Commission to act as attorney and counselor for the city. CITY COMMISSION —The legislative body of the city. i CLERK — The person designated by the City Manager to act as Clerk for the Board. It includes persons designated to act as Deputy Clerks, as provided in § 7-5H. CODE —The Code of the city. CODE INSPECTOR —Any authorized agent or employee of the city who has, as a duty or as a part of his duties, the duty to assure compliance with the Code or any portion thereof. REPEAT VIOLATION — A violation of a provision of a code or ordinance by a person who has been previously found through the Board to have violated or who has admitted violating the same provision within five years prior to the violation, notwithstanding the violations which occurred at different locations. SPECIAL MAGISTRATE (or Code Enforcement Special Magistrate) – The person authorized to hold hearings and assess fines against violators of the City Codes and ordinances. Section 7-5. - Term of Special Magistrate; Clerk for Special Magistrate . A. The City Commission • __._ - _ - ••-- _ Me • .- - __ _ A •• in the absence of Board members. Board members will be residents of the city. in the sole discretion of the City Commission. Board membership will, when practicable, and a realtor is authorized and hereby provides for the designation of one (1) or more Code Enforcement Special Magistrates for the purposes of conducting administrative hearings regarding code violation cases brought by Code Inspectors. B. The Code Enforcement Special Magistrate shall be an attorney duly licensed to practice law in the State of Florida. The initial appointments to the Board will be as follows: {1) Two members shall be appointed for terms of one year each. {2) Three members shall be appointed for terms of two years each. {3) Two members shall be appointed for terms of three years each. C. All subsequent regular appointments to the Board will be for terms of three years. D. If a Board member fails to attend two of three successive Board meetings without E. Board members will serve without compensation and at the pleasure of the City Commission. Board members may be reimbursed for travel, mileage and per diem expenses as authorized by the City Commission. F. Board members will elect a Chairman (who will be a voting member)from the Board C. The City may utilize the services of one or more Code Enforcement Special Magistrate(s) to conduct hearings concerning codes and ordinances in force within the City. The City Commission shall, on an annual basis, appoint at least one qualified person to serve as Code Enforcement Special Magistrate(s). D. Each Code Enforcement Special Magistrate(s) shall serve for a term of one year, and may be reappointed for consecutive one-year terms. Although appointed for one-year terms, Code Enforcement Special Magistrate(s) shall be subject to removal by the City Commission, with or without cause, from his or her position at any time during his or her term. Code Enforcement Special Magistrate(s) shall not be considered to be City employees, though they may receive compensation for their services at a rate to be determined by the City Commission. GE. The City Attorney will not be appointed to be or act as theme Code Enforcement Special Magistrate. #F. The City Manager will designate a city employee as Clerk for the Special MagistrateBoard. The City Manager may designate additional city employees as Deputy Clerks as he deems appropriate to the efficient conduct of the Special Magistrates' Board's business. Board members, the City Attorney, and Code inspectors will not be the designated Clerk or Deputy Clerk. fG. The Clerk will be the custodian of the records of the Special MagistrateBeard, subject to supervision and control of the City Clerk. J. The Board Attorney will serve at the City Commission's pleasure. Section 7-6. - Procedure. A. It will be the duty of the Code Inspector to initiate proceedings to enforce the Code. No member of the Board Special Magistrate may initiate Code enforcement proceedings. B. Except as provided in Subsections C and D, if the Code Inspector finds a violation of the Code, he will first give the violator written notice thereof and a reasonable time to correct the violation. If the violation continues beyond the time set for correction, the Code Inspector will initiate proceedings before the-Beard Special Magistrate by filing a written statement of violations with the Clerk. The BoardSpecial Magistrate, through its clerical staff,will schedule a hearing on the alleged violation and give the alleged violator written notice thereof. At the option of the BoardSpecial Magistrate, notice may additionally be served by publication as provided in § 7-10 of this chapter. The notice will inform the alleged violator of the following: (1) The nature of the alleged violation. (2) The time and place of the hearing. (3) The alleged violator may appear in person before the BoardSpecial Magistrate and present evidence relevant to the matter under consideration by the BoardSpecial Magistrate, may subpoena witnesses to testify at the hearing, and may be represented before the BoardSpecial Magistrate by legal counsel of his or her own choosing at his or her own expense. (4) 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 BoardSpecial Magistrate even though the violation has been corrected before the hearing. C. If a repeat violation is found, the Code Inspector shall notify the violator but is not required to give the violator a reasonable time to correct the violation. The Code Inspector, upon notifying the violator of a repeat violation, shall notify the BoardSpecial Magistrate and request a hearing.The BoardSpecial Magistrate,through its clerical staff, shall schedule a hearing and shall provide notice pursuant to § 7-10 of this chapter. The case may be presented to the BeardSpecial Magistrate even if the repeat violation has been corrected prior to the BoardSpecial Magistrate hearing, and the notice shall so state. D. If the Code Inspector has reason to believe a violation or the condition causing the violation presents a serious threat to public health, safety and welfare or if the violation is irreparable or irreversible in nature, the Code Inspector will make a reasonable effort to notify the violator and may immediately notify the BoardSpecial Magistrate and request a hearing. E. Transfer of ownership. (1) If the owner of property which is subject to an enforcement proceeding before the BoardSpecial Magistrate transfers ownership of such property between the time the initial notice was provided and the time of the hearing, such owner shall: (a) Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee. (b) Deliver to the prospective transferee a copy of the pleadings, notices and other materials relating to the code enforcement proceeding received by the transferor. (c) Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding. (d) File a notice with the Code Inspector of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within five days after the date of the transfer. (2) A failure to make the disclosures described in Subsections E(1)(a), (b) and (c) above before the transfer creates a rebuttable presumption of fraud. If the property is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation before the hearing is held. Section 7-7. - Conduct of hearings. A. Upon request of the code inspector, or at other times as may be necessary, the Special Magistrate The Board will conduct may call a hearing,_s at each Board meeting, unless there are no matters then pending before the Board for hoaxing. A hearing also may be called either by the Chairman of the Board or by written notice signed by the Special Magistrate. at Ic\qst three members of the Board. Minutes shall be kept of all hearings by the Special MagistrateBea-rd, and all hearings and proceedings shall be open to the public. B. Cases before the BeardSpecial Magistrate will be presented by the City Attorney or a member of the city's administrative staff as determined by the City Manager. The BeardSpecial Magistrate will take testimony from the Code Inspector in each case presented to the_-BeardSpecial Magistrate for hearing. If the city prevails in prosecuting a case before the Special MagistrateBeard, the city shall be entitled to recover all costs incurred in prosecuting the case before the Special Magistrate, including but not limited to any fees paid to the Special MagistrateBoard. C. Testimony before the Bea-FdSpecial Magistrate will be under oath and shall be recorded. The Clerk is authorized and empowered to administer oaths to persons testifying before the BeardSpecial Magistrate.The Special Magistrate is Board Chairman or presiding Board member and Board Attorney are also authorized and empowered to administer oaths to persons testifying before the Special MagistrateBeard. D. The alleged violator will have the right to appear in person before the BeardSpecial Magistrate, to testify personally and present other evidence relevant to the matter under consideration by the BeardSpecial Magistrate, to subpoena witnesses to testify at the I hearing, and to be represented before the Board-Special Magistrate by legal counsel of his or her own choosing at his or her own expense. E. Formal rules of evidence will not apply, but fundamental due process will be observed and govern the proceedings. F. At the conclusion of each hearing, the BeardSpecial Magistrate will issue findings of fact based on the evidence presented during the hearing and conclusions of law and will issue an order affording proper relief consistent with the powers granted to the Special MagistrateBeard by the provisions of this chapter. G. Findings will be by motion approved by a majority of those members present and The order may include a notice that it must be complied with by a specified date; that a fine may be imposed and, under the conditions specified in § 7-9C of this chapter, the cost of repairs may be included along with the fine if compliance does not occur by that date; that the violation is presumed to continue until the violator gives the city written notice of compliance; that the violator must give the city written notice of compliance before the city will conduct a compliance inspection; and that if the compliance inspection discloses noncompliance, the fine will continue to accrue until compliance occurs. A certified copy of such an order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest or assigns, if the violation concerns real property, and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers, successors in interest or assigns. If an order is recorded in the public records pursuant to this subsection and the order is complied with by the date specified in the order, the BeardSpecial Magistrate shall issue an order acknowledging compliance that shall be recorded in the public records. A hearing is not required to issue such an order acknowledging compliance. Section 7-8. - Powers of Special MagistrateBoard. The Special Magistrate Board will have the power to: A. Adopt rules for the conduct of its hearings, provided that they are not inconsistent with the provisions of this chapter or Chapter 162 of the Florida Statutes. B. Subpoena alleged violators, witnesses and evidence to its hearings. The BoardSpecial Magistrate may, by its rules, provide for the issuance of subpoenas in the name of the Board under this provision by its Clerk and, at the request of the Code Inspector, the City Attorney, other members of the city's administrative staff responsible to present cases before the BeardSpecial Magistrate, or the alleged violator. C. Cause subpoenas issued by the Special Magistrate-Boars to be served by the City Police Department or the County Sheriff. D. Take testimony under oath. E. Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance. F. Authorize the City Attorney to foreclose on a lien arising from the recording in the official county records of certified copies of the Special MagistrateBeard's orders imposing penalties after three months from the filing of the lien have elapsed and the lien remains unpaid. Section 7-9. - Administrative fines; costs of repairs; liens; settlements. A. If the Code Inspector notifies the SeardSpecial Magistrate of a failure to comply with a compliance order of the SeardSpecial Magistrate by the date set in the order, the BeardSpecial Magistrate may issue an order requiring the violator to pay a fine not to exceed $250 for each day the violation continues past the date set by the BeardSpecial Magistrate for compliance, and in addition, the fine may include all costs of repairs pursuant to Subsection C of this section. B. If the Code Inspector notifies the Sear-421-Special Magistrate and the BeardSpecial Magistrate so finds that a repeat violation has been committed, the Bea-rdSpecial Magistrate may issue an order requiring the violator to pay a fine not to exceed $500 for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the Code Inspector, and in addition, the fine may include all costs of repairs pursuant to Subsection C of this section. C. In addition, if the violation is a violation described in § 7-6D of this chapter, the Sea-rdSpecial Magistrate shall notify the City Commission, which may make all reasonable repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the city to make further repairs or to maintain the property and does not create any liability against the city for any damages to the property if such repairs were completed in good faith. D. If a finding of a violation or a repeat violation has been made as provided in this chapter, a hearing shall not be necessary for issuance of the order imposing the fine. E. In determining the amount of the fine, if any, the Sea-rdSpecial Magistrate will consider the following factors: (1) The gravity of the violation. (2) Any actions taken by the violator to correct the violation. (3) Any previous violations committed by the violator. F. City policy is to accomplish compliance with the City Code as economically as possible for all parties. Therefore, after a property owner has been properly noticed of a violation but prior to a hearing before the BeardSpecial Magistrate, the City Manager or designee is authorized to enter into negotiations and a settlement agreement with the violator. Failure of the violator to comply with the settlement agreement or a recurrence of the violation shall result in prosecution of the original violation as well as the repeat violation, if applicable. The City Manager or designee shall establish the perimeters to be followed for settlement negotiations. Pre-hearing settlement negotiations shall not be grounds for continuing or otherwise delaying a hearing on the violation unless agreed to in writing by both parties. G. Following the hearing before the BoardSpecial Magistrate, a certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the official county records and will thereafter constitute a lien against the land on which the violation exists and on any other real or personal property owned by the violator. Upon petition to the Circuit Court, such order shall be enforceable in the same manner as a court judgment by the sheriffs of Florida, including execution and levy against the personal property of the violator, but such order shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursuant to this chapter shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the City Commission, and the City Commission may execute a satisfaction or release of a lien entered pursuant to this section, unless otherwise provided herein. After three months from the filing of any such lien which remains unpaid, the SeardSpecial Magistrate may authorize the City Attorney to foreclose on the lien or to sue to recover a money judgment for the amount of the lien plus accrued interest. No lien created pursuant to the provisions of this part may be foreclosed on real property which is a homestead under § 4, Article X of the State Constitution. The money judgment provisions of this section shall not apply to real property or personal property which is covered under§ 4(a), Article X of the State Constitution. H. After an order assessing a fine against a violator has been issued and compliance has been achieved, nothing herein shall prohibit the Bead,City Commission, or City Manager or designee from reducing, eliminating, satisfying, or otherwise settling the assessed fine or lien or the Special Magistrate from recommending that the City Commission or City Manager or designee reduce, eliminate, satisfy, or otherwise settle the assessed fine or lien. The City Manager or designee shall establish the procedures to be followed for reducing, eliminating, satisfying, or otherwise settling the assessed fine or lien and for recording satisfaction thereof in the official county records. I. The lien will be automatically extinguished 20 years after the date the certified copy of the order imposing a fine is recorded, unless within that time an action is commenced pursuant to this chapter in a court of competent jurisdiction. In an action to foreclose on a lien or for a money judgment, the prevailing party is entitled to recover all costs, including a reasonable attorney's fee, that it incurs in the action. The City Commission shall be entitled to collect all costs incurred in recording and satisfying a valid lien. Commencement of an action pursuant to § 7-9G of this chapter will not cause a continuation of the lien as against creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. J. The Clerk is authorized and empowered to issue certified copies of the BeardSpecial Magistrate's records. K. Actions for money judgments under this chapter may be pursued only on fines levied after October 1, 2000. Section 7-10. - Notices. A. All notices required by this chapter will be provided to the alleged violator by: (1) Certified mail, return receipt requested, provided that if such notice is sent under this subsection to the owner of the property in question at the address listed in the Tax Collector's office for tax notices, and at any other address provided to the city by such owner and is returned as unclaimed or refused, notice may be provided by posting as described in Subsection B below and by first class mail directed to the addresses furnished to the city with a properly executed proof of mailing or affidavit confirming the first class mailing; (2) Hand delivery by the Sheriff or other law enforcement officer or Code Inspector or process server designated pursuant to Chapter 48, Florida Statutes; (3) 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; or (4) In the case of commercial premises, leaving the notice with the manager or other person in charge. B. In addition to providing notice as set forth in Subsection A, at the option of the Bea-rdSpecial Magistrate, notice may also be served by publication or posting, as follows: (1) Such notice shall be published once during each week for four consecutive weeks, four publications being sufficient, in a newspaper of general circulation in Orange County. The newspaper must meet such requirements as are prescribed under Chapter 50 of the Florida Statutes for legal and official advertisements. Proof of publication shall be made as provided in €S-§ sections 50.041 and 50.051, Florida Statutes. (2) In lieu of publication as described in Subsection B(1), such notice may be posted at least 10 days prior to the hearing, or prior to the expiration of any deadline contained in the notice, in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at the primary city government office. Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of its posting. (3) Notice by publication may run concurrently with or may follow an attempt or attempts to provide notice by hand delivery or by mail as required under Subsection A. Evidence that an attempt has been made to hand deliver or mail notice as provided in Subsection A, together with proof of publication or posting as provided in Subsection B, will be sufficient to show that the notice requirements of this chapter have been met without regard to whether or not the alleged violator actually received such notice. Section 7-11. - Enforcement by other provisions. Nothing in this chapter will be deemed to prohibit the city from enforcing its codes by any other means; the provisions of this chapter are merely an additional or supplemental means of obtaining compliance with the city's codes. Section 7-12. -Appeals. Final administrative orders of the BoardSpecial Magistrate may be appealed to the Circuit Court for Orange County, Florida, by any party to the proceeding in which the order is issued, provided that the appeal is filed within 30 days of execution of the order to be appealed. •