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HomeMy WebLinkAboutItem #11 Second Reading of Ordinance Amending Chapter 16 – Violations of (X'P tlora o0 AGENDA ITEM COVER SHEET Meeting Date: May 1, 2018 Item # 1/ Reviewed By: C Contact Name: Deputy Chief S. Plasencia Department Director: / hi- Charl . Brown Contact Number: 407-554-7223 City Manager: Rob Fra J Subject: Second Reading of Ordinance Amending Chapter 16-Violations Background Summary: As part of Ordinance 2013-005, the City adopted a Violations Hearing Board to consider appeals related to Notices of Violations issued by the City of Ocoee Police Department, the Ocoee Fire Department, and any other City employee as designated by the Chief of Police. With the growth of the City, consolidating this board into the position of a Violations Hearing Special Magistrate is consistent with the City's business practices and the Red Light Camera Ordinance. This change will standardize the appeal procedures for both citizens and staff. The following items should be adopted following second reading and adoption of the ordinance: A resolution, adopting fines and fees for use by the Violations Hearing Special Magistrate, and an agreement to retain attorney Robin Drage to serve as Violations Hearing Special Magistrate. Issue: Should the Honorable Mayor and Board of City Commissioners approve the amended Chapter 16 — Violations, update the resolution for fines and fees for use by the Violations Hearing Special Magistrate, and approve an agreement with attorney Robin Drage to serve as Violations Hearing Special Magistrate? Recommendations: It is staffs recommendation that the Honorable Mayor and Board of City Commissioners approve the amended Chapter 16 — Violations, the updated resolution for fines and fees for use by the Violations Hearing Special Magistrate, and engage attorney Robin Drage as Violations Hearing Special Magistrate. Attachments: Ordinance Exhibit A - Chapter 16 Violations Resolution adopting fines and fees schedule for Violations Hearing Special Magistrate Violations Hearing Special Magistrate Services Agreement Financial Impact: The hourly fee for the Violations Hearing Special Magistrate is $180.00 per hour. The financial impact is anticipated to be minimal as there has only been one appeal request in the last year. Type of Item: (please mark with an "x") XPublic Hearing For Clerk's Dept Use: Ordinance First Reading Consent Agenda X Ordinance Second Reading X 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. Q,a,2otra,�,) N/A Reviewed by () N/A ORDINANCE NO. AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA AMENDING CHAPTER 16 OF THE CODE OF ORDINANCES OF THE CITY OF OCOEE, ENTITLED VIOLATIONS; ESTABLISHING A VIOLATIONS HEARING SPECIAL MAGISTRATE; PROVIDING FOR POWERS AND DUTIES OF THE VIOLATIONS HEARING SPECIAL MAGISTRATE; PROVIDING FOR NOTICE OF VIOLATION REQUIREMENTS; PROVIDING FOR NOTICE OF VIOLATION FINES AND PROCEDURES; PROVIDING FOR HEARINGS TO CONTEST NOTICES OF VIOLATIONS; PROVIDING FOR FINE COLLECTION PROCEDURES; DISSOLVING THE VIOLATIONS HEARING BOARD; PROVIDING FOR CONFORMING CHANGES AT SECTIONS 113-4, 124-4, AND 153-18 OF THE CODE OF ORDINANCES OF THE CITY OF OCOEE; PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City currently has a provision in Chapter 7 of the Code of Ordinances of the City of Ocoee allowing for one or more Code Enforcement Special Magistrate(s) to conduct hearings regarding code violations; and WHEREAS, the City Commission desires to amend the current code language to allow the Special Magistrate(s) to consider appeals related to Notices of Violations issued by the City of Ocoee Police Department, the Ocoee Fire Department, and any other City employee as designated by the Chief of Police; and WHEREAS, the City Commission desires to dissolve the Violations Hearing Board and allow the Special Magistrate to serve as a Violations Hearing Special Magistrate(s) to consider appeals related to Notices of Violations issued by the City of Ocoee Police Department, the Ocoee Fire Department, and any other City employee as designated by the Chief of Police; and WHEREAS, the City Commission desires to establish in code certain requirements for Notices of Violations, fines, and procedures for payment of fines; and WHEREAS, the City Commission desires to establish the procedures for hearings to contest Notices of Violation before the Violations Hearing Special Magistrate. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: Section 1. 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 2. Chapter 16. Chapter 16 of the Code of Ordinances of the City of Ocoee is hereby amended to read as follows: See Exhibit "A" attached hereto and by this reference made a part hereof. Section 3. Section 113-4. Section 113-4 of the Code of Ordinances of the City of Ocoee is hereby amended to read as follows: 113-4. - Definitions. For the purpose of this Chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning: A. HEARING OFFICER means the Ocoee Violations Hearing Special Magistrate established pursuant to Chapter 16. B. MOTOR VEHICLE means any self-propelled vehicle not operated upon rails or guideway, but does not include bicycles or electric personal assistive mobility devices. Such definition shall include, but not be limited to: automobiles, vans, trucks, motorcycles, motor scooters, dune buggies, snowmobiles, all-terrain vehicles, go-carts, mini-bikes, and trail bikes. C. NOTICE OF VIOLATION means a citation issued for a violation of this Chapter. D. PERSON means any natural person, individual, association, partnership or corporation which includes any officer, employee, department, agency or instrumentality thereof, or any other entity whatsoever or any combination of such, jointly or severally. E. VIOLATOR means the person receiving a Notice of Violation for a violation of this Chapter. Section 4. Section 124-4. The term, "Hearing Board", as defined in section 124-4 of the Code of Ordinances of the City of Ocoee is hereby amended to read as follows: HEARING OFFICER — The Ocoee Violations Hearing Special Magistrate. (All other terms as defined in section 124-4 remain unchanged by this amendment.) Section 5. Section 153-18. Section 153-18 of the Code of Ordinances of the City of Ocoee is hereby amended to read as follows: 153-18. - Definitions. -2- The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning: A. "Golf cart" means a motor vehicle that is designed and manufactured for operation on a golf course for sporting or recreational purposes and that is not capable of exceeding speeds of 20 miles per hour. B. "Golf cart community" means a subdivision or community within the corporate limits of the city within which the Ocoee City Commission has by resolution authorized the operation of golf carts on designated municipal streets within such subdivision or community. C. "Golf cart permitted street" means a municipal street within the corporate limits of the city which has been designated by resolution of the Ocoee City Commission for use by golf carts. D. "Applicant", for the purposes of this article, means a person or entity (including a homeowner's association) who is requesting that the Ocoee City Commission adopt a resolution designating one or more golf cart communities and/or one or more golf cart permitted streets. E. "Hearing Officer" means the Ocoee Violations Hearing Special Magistrate established pursuant to § 16-1 of this Code. Section 6. 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 7. 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 Manager, without need of public hearing, by filing a corrected or recodified copy of same with the City Clerk. Section 8. Effective Date. This Ordinance shall become effective immediately upon passage and adoption. -3- PASSED AND ADOPTED this day of , 2018. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA Melanie Sibbitt, City Clerk Rusty Johnson, Mayor (SEAL) ADVERTISED , 2018 READ FIRST TIME , 2018 READ SECOND TIME AND ADOPTED , 2018 UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 2018. SHUFFIELD, LOWMAN & WILSON By: City Attorney -4- EXHIBIT A Chapter 16 -VIOLATIONS § 16-1. -Creation of Violations Hearing Special Magistrate hearings. A. Creation. There is hereby established the Ocoee Violations Hearing Special Magistrate. The Violations Hearing Special Magistrate shall have the following powers and duties: (1) To consider contests of designated violations of the City Code and to receive and evaluate evidence in connection therewith; and (2) Based upon the evidence presented at such a hearing, to make a determination as to whether a violation of the City Code occurred; and (3) To impose the fines and fees as adopted by a Resolution of the City Commission with respect to City Code violations, including late fees and administrative charges. (4) To make recommendations to the Chief of Police, or his designee as it relates to the hearing of code violations. B. There is hereby created the office of Special Magistrate of the City of Ocoee, Florida, which will be called the"Violations Hearing Special Magistrate." C. Hearings. (1) Regular Hearings. Notice of the place, day and hour of the hearing shall be provided to the public in advance of the hearing. Except as otherwise provided in Chapter 286, Florida Statutes, all hearings shall be open to the public. (2) Special Hearings. Special hearings may be called by the Chief of Police or his designee. Notification of all special hearings shall be posted not less than five days prior to said hearing. Special hearings shall be conducted in the same manner as a regular hearing but shall be limited to the conduct of business specifically set forth in the notice. § 16-2. - Term of Special Magistrate; Clerk for Special Magistrate. A. The City Commission is authorized and hereby provides for the designation of one or more Violations Hearing Special Magistrate(s) for the purposes of conducting administrative hearings regarding violation cases brought by the Police Department. The Violations Hearing Special Magistrate(s) may be the same as the special magistrate designated as Code Enforcement Special Magistrate(s) under chapter 7 of the Code. B. The Violations Hearing 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 Violations Hearing Special Magistrate(s) to conduct hearings concerning ordinances in force within the City. The City Commission shall, on an annual basis, appoint at least one qualified person to serve as Violations Hearing Special Magistrate(s). D. Each Violations Hearing Special Magistrate shall serve for a term of one year in accordance with a contract, and shall serve at the pleasure of the City Commission. Although appointed for one-year terms, Violations Hearing 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. Violations Hearing 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 Violations Hearing 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 Violations Hearing Special Magistrate's business. § 16-2. - Powers and duties of the Violations Hearing Special Magistrate. A. The Violations Hearing Special Magistrate is empowered to hear cases of contested Notices of Violation as issued by Officers and Community Service Officers of the Ocoee Police Department, the Ocoee Fire Department, and any other city employee as designated by the Chief of Police. B. The types of cases heard before the Violations Hearing Special Magistrate shall be determined by the Chief of Police. The Violations Hearing Special Magistrate may not hear cases outside the scope assigned by the Chief of Police. However, this shall not preclude the Violations Hearing Special Magistrate from having discussions and/or making suggestions to the Chief of Police relating to the types of cases heard before the Violations Hearing Special Magistrate. C. The Violations Hearing Special Magistrate shall utilize definitions established by Florida Statutes and/or the Manual on Uniform Traffic Control Devices relating to the definition of terms for traffic violations which are not established by City Ordinance. D. The Violations Hearing Special Magistrate shall adopt rules for transactions of its business and shall keep a record of its resolutions, transactions, findings and determinations. E. If the Violations Hearing Special Magistrate determines that the violation(s) listed in the Notice of Violation was committed, the Violations Hearing Special Magistrate shall impose a fine. If the Violations Hearing Special Magistrate determines that the violation(s) listed in the Notice of Violation was not committed, then the filing fee as provided herein shall be returned. F. The Violations Hearing Special Magistrate should not be used to try to influence the City Commission in budget or personnel matters relating to the Police Department. G. Coordination with the Violations Hearing Special Magistrate shall be the responsibility of the Chief of Police or his or her designee. The Chief of Police shall maintain complete and current files on the Violations Hearing Special Magistrate, its hearings, and its activities. § 16-3. - Notice of violation requirements. A Notice of Violation issued for a violation of the Code shall include: A. The name, address and driver's license number(if applicable) of the violator; and B. Notice that the violation charged is pursuant to the applicable Code provision; and C. The location where the violation occurred; and D. The date and time of the violation; and E. If the violation involves a motor vehicle: (1) The license plate number and registration number of the vehicle; and (2) The make, model, and year of the vehicle; and F. The civil penalty imposed; and G. The procedures for payment of the civil penalty and contesting the notice of infraction; and H. Information advising the violator of the manner and time in which liability as alleged in notice of violation may be appealed and warning that failure to pay the civil penalty or to contest liability in a timely manner is an admission of liability. § 16-4. - Notice of violation vines and procedures. A. Any person violating any provision of this Code who receives a Notice of Violation shall be subject to a fine as set forth in a Resolution adopted by the City Commission. B. Any person who receives a Notice of Violation shall have the following options: (1) Pay the assessed fine pursuant to the instructions on the Notice of Violation; or (2) File a Contesting Affidavit to contest the violation at a hearing before the Violations Hearing Special Magistrate as provided herein. C. The failure to comply with (1) or (2) above within thirty (30) calendar days of the date of the Notice of Violation shall constitute a waiver of the right to contest the Notice of Violation and will be considered an admission of liability. D. Violators who fail to either pay the fine indicated on the Notice of Violation or to request a hearing before the Violations Hearing Special Magistrate may be subject to the following: referral to a collection agency for collection of the fine and/or denial of vehicle registration, or booting of vehicle (for violations related to vehicles and traffic). § 16-5. - Hearings. A. The Violations Hearing Special Magistrate shall hear contests to Notices of Violations. B. Violators who desire to schedule a hearing to contest a Notice of Violation must file a Contesting Affidavit within thirty (30) days from the date of the Notice of Violation with the City Police Department along with the appropriate filing fee, as provided in a fine resolution adopted by the City Commission. C. Upon receipt of a request for a hearing, the City Police Department shall schedule a hearing before the Violations Hearing Special Magistrate to occur within sixty (60) calendar days after receipt of the Contesting Affidavit. The City shall provide notice of the hearing to the violator no less than ten calendar days prior to the date of the hearing. The notice of the hearing shall be delivered via certified U.S. mail to the same address set forth on the Notice of Violation. D. The City representative who issued the Notice of Violation shall testify at the hearing. The violator may also testify and the violator or his or her representative may present witnesses and introduce evidence. E. Based on the evidence presented at the hearing, the Violations Hearing Special Magistrate shall make a determination as to whether the Code violation was committed by the violator. At such hearing or within fifteen (15) days after the hearing, the Violations Hearing Special Magistrate shall issue a written order stating its findings and the amount of the fine, as applicable. F. Formal rules of evidence shall not apply at the hearing and any relevant evidence may be admitted. Hearsay evidence may be admitted, but shall not form the sole basis upon which the Special Magistrate's decision is made. Irrelevant and unduly repetitious evidence may be excluded. The hearing shall be conducted in a manner to ensure that procedural and substantive due process is afforded the violator. G. In addition to the civil penalty imposed pursuant to the resolution adopted in accordance with this Chapter, if the Violations Hearing Special Magistrate determines the violation was committed, the violator shall also responsible for payment of hearing costs, identified as the administrative fee(including filing fee) in the resolution adopted by the City Commission. H. In the event that the City decides to dismiss the Notice of Violation or if the Violations Hearing Special Magistrate dismisses the Notice of Violation, the filing fee shall be refunded. I. In the event that the Violations Hearing Special Magistrate determines that the violation was committed, the violator shall be deemed to have waived his or her right to pay the original amount of the fine as indicated on the Notice of Violation. A fine of up to $250 plus hearing costs as provided in the fine resolution may be imposed by the Violations Hearing Special Magistrate. In such event, the filing fee shall be deducted from the fine. J. Failure to appear before the Violations Hearing Special Magistrate at the time of hearing will result in the imposition of a fine and hearing costs as determined by the Violations Hearing Special Magistrate. § 16-6. - Collection of fines. The City Manager or his/her designee may establish procedures for the collection of a fine imposed herein, and may enforce collect such fine by civil action in the nature of debt. The violator shall also be responsible for payment of any costs incurred by the City in any legal proceedings or other efforts instituted to collect money due under this Chapter. § 16-7. - Dissolution of the Violations Hearing Board. The Violations Hearing Board, established in Ordinance 2013-005, as amended, is hereby dissolved. The Following Pages Indicate Strikethroughs showing Deletions and Underlines showing New Language as adopted. EXHIBIT A Chapter 16-VIOLATIONS § 16-1. -Creation of Violations Hearing Special Magistrate Board; membership; hearingsmcctings. A. Creation. There is hereby established the Ocoee Violations Hearing Special Magistrate. Board {the "Violations Hearing Board"). The Violations Hearing Special Magistrate Board shall have the following powers and duties: (1) To consider contests of designated violations of the City Code and to receive and evaluate evidence in connection therewith; and (2) Based upon the evidence presented at such a hearing, to make a determination as to whether a violation of the City Code occurred; and (3) To impose the fines and fees as adopted by a Resolution of the City Commission with respect to City Code violations, including late fees and administrative charges. (4) To make recommendations to the Chief of Police, or his designee, on matters agreed upon by board members, as it relates to the hearing of and pertaining to code violations. B. There is hereby created the office of Special Magistrate of the City of Ocoee, Florida, which will be called the "Violations Hearing Special Magistrate." Membership; Appointment; Term; {1) Membership. There shall be seven members of the Violations H wring Board and two must-be members of the Citizens Advisory Council of the Ocoee Police Department (the "CACOPD"). •. ••-••e- . _ . ••-. - e •- • a.. • members of the Violations Hearing Board must be residents of the City of Ocoee, own real property in Ocoee, or be an owner of a businesses located in Ocoee. {2) Appointment. Those members serving on the heretofore established Ocoee Police Infraction Hearing Board shall be members of the Violations Hearing Board until such time as their her position prior to the end of their term, the replacement shall be appointed by the Hearing Board shall be appointed by the City Commission from among the membership-of-the CACOPD. The Chief of Police shall provide the City Commission with his recommendation for member of the CACOPD, then such person shall cease to be a member of the Violations Hearing Board. Members of the Violations Hearing Board shall serve two year terms and may be reappointed without regard to the number of terms served previously. {3) Chairperson, Vice Chairperson. The Violations Hearing Board shall elect by majority vote a be filled at the next regular meeting provided at least one week notice of the election is given prior to the meeting. The Chairperson shall preside at all meetings of the Violations Hearing Chairperson. action may be taken if less than three members are present and voting. (6) Removal. A member of the Violations Hearing Board may have his or her membership revoked meeting of the Violations Hearing Board at which a quorum is present. Cause shall include, but not necessarily be limited to, a member's failure to attend three meetings within a 12 month period to properly discharge his or her responsibilities and duties as a member of the Violations member cease to be qualified for membership as provided herein. C. HearingsMeetings. (1) Regular HearingsMeetings. a _- _ __ ••-- _ _ _- _ _ _-_ _ _ ••-• _- _ Violations Hearing Board within a reasonable time prior to the meeting. Notice of the place, day and hour of the hearingmeeting shall be provided to the public in advance of the hearingmeeting. Except as otherwise provided in Chapter 286, Florida Statutes, all hearings meetings shall be open to the public. (2) Special HearingsMeetings. Special hearings meetings may be called by the Chief of Police or his designee_, the Chairperson or the Vice Chairperson, or by a majority of the Violations Hearing Board. Notification of all special hearings meetings shall be posted not less than five days prior to said hearingmeeting. Special hearings meetings shall be conducted in the same manner as a regular hearing meeting but shall be limited to the conduct of business specifically set forth in the notice. 16-2. - Term of Special Magistrate; Clerk for Special Magistrate. A. The City Commission is authorized and hereby provides for the designation of one or more Violations Hearing Special Magistrates for the purposes of conducting administrative hearings regarding violation cases brought by the Police Department. The Violations Hearing Special Magistrate(s) may be the same as the special magistrate designated as Code Enforcement Special Magistrate(s) under chapter 7 of the Code. B. The Violations Hearing 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 Violations Hearing Special Magistrate(s) to conduct hearings concerning ordinances in force within the City. The City Commission shall, on an annual basis, appoint at least one qualified person to serve as Violations Hearing Special Magistrate(s). D. Each Violations Hearing Special Magistrate shall serve for a term of one year in accordance with a contract, and shall serve at the pleasure of the City Commission. Although appointed for one-year terms, Violations Hearing 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. Violations Hearing -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 Violations Hearing 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 Violations Hearing Special Magistrate's business. § 16-2. - Powers and duties of the Violations Hearing Special Magistrate Board. A. The Violations Hearing Special Magistrate Board is empowered to hear cases of contested Notices of Violations as issued by Officers and Community Service Officers of the Ocoee Police Department, the Ocoee Fire Department, and any other city employee as designated by the Chief of Police. B. The types of cases heard before the Violations Hearing Special Magistrate Board shall be determined by the Chief of Police. The Violations Hearing Special Magistrate Board may not hear cases outside the scope assigned by the Chief of Police. However, this shall not preclude the Violations Hearing Special Magistrate Board from having discussions and/or making suggestions to the Chief of Police relating to the types of cases heard before the Violations Hearing Special Magistrate-Beard. C. The Violations Hearing Special Magistrate Beard shall utilize definitions established by Florida Statutes and/or the Manual on Uniform Traffic Control Devices relating to the definition of terms for traffic violations which are not established by City Ordinance. D. The Violations Hearing Special Magistrate Board shall adopt rules for transactions of its business and shall keep a record of its resolutions, transactions, findings and determinations. E. If the Violations Hearing Special Magistrate Board determines that the violation(s) listed in the Notice of Violation was committed, the Violations Hearing Special Magistrate Board shall impose a fine. If the Violations Hearing Special Magistrate Board determines that the violation(s) listed in the Notice of Violation was not committed, then the filing fee as provided herein shall be returned. F. The Violations Hearing Special Magistrate Board should not be used to try to influence the City Commission in budget or personnel matters relating to the Police Department. G. Coordination with the Violations Hearing Special Magistrate Board shall be the responsibility of the Chief of Police or his or her designeeany other departmental member designated by him. The Chief of Police shall maintain complete and current files on the Violations Hearing Special MagistrateBoard, its hearingsmeetings,and its activities. § 16-3. - Notice of violation requirements. A Notice of Violation issued for a violation of the Code shall include: A. The name, address and driver's license number(if applicable) of the violator; and B. Notice that the violation charged is pursuant to the applicable Code provision; and C. The location where the violation occurred; and D. The date and time of the violation; and E. If the violation involves a motor vehicle: (1) The license plate number and registration number of the vehicle; and (2) The make, model, and year of the vehicle; and F. The civil penalty imposed; and G. The procedures for payment of the civil penalty and contesting the notice of infraction; and H. Information advising the violator of the manner and time in which liability as alleged in notice of violation may be appealed and warning that failure to pay the civil penalty or to contest liability in a timely manner is an admission of liability. § 16-4. - Notice of violation fines and procedures. A. Any person violating any provision of this Code who receives a Notice of Violation shall be subject to a fine as set forth in a Resolution adopted by the City Commission. B. Any person who receives a Notice of Violation shall have the following options: (1) Pay the assessed fine pursuant to the instructions on the Notice of Violation; or (2) File a Contesting Affidavit to contest the violation at a hearing before the Violations Hearing Special Magistrate Board as provided herein. C. The failure to comply with (1) or (2) above within thirty (30) calendar days of the date of the Notice of Violation shall constitute a waiver of the right to contest the Notice of Violation and will be considered an admission of liability. D. Violators who fail to either pay the fine indicated on the Notice of Violation or to request a hearing before the Violations Hearing Special Magistrate Board may be subject to the following: referral to a collection agency for collection of the fine and/or denial of vehicle registration, or booting of vehicle (for violations related to vehicles and traffic). § 16-5. - Hearings. A. The Violations Hearing Special Magistrate Beard-shall hear contests to Notices of Violations. B. Violators who desire to schedule a hearing to contest a Notice of Violation must file a Contesting Affidavit within thirty (30) days from the date of the Notice of Violation with the City Police Department along with the appropriate filing fee, as provided in a fine resolution adopted by the City Commission. C. Upon receipt of a request for a hearing, the City Police Department shall schedule a hearing before the Violations Hearing Board Special Magistrate to occur within sixty (60) calendar days after receipt of the Contesting Affidavit. The City shall provide notice of the hearing to the violator no less than ten calendar days prior to the date of the hearing. The notice of the hearing shall be delivered via certified U.S. mail to the same address set forth on the Notice of Violation. D. The City representative who issued the Notice of Violation shall testify at the hearing. The violator may also testify and the violator or his or her representative may present witnesses and introduce evidence. E. Based on the evidence presented at the hearing, the Violations Hearing Board Special Magistrate shall make a determination as to whether the Code violation was committed by the violator. At such hearing or within fifteen (15) days after the hearing, the Violations Hearing Beard-Special Magistrate shall issue a written order stating its findings and the amount of the fine, as applicable. F. Formal rules of evidence shall not apply at the hearing and any relevant evidence may be admitted. Hearsay evidence may be admitted, but shall not form the sole basis upon which the Special Magistrate's Violation Board's decision is made. Irrelevant and unduly repetitious evidence may be excluded. The hearing shall be conducted in a manner to ensure that procedural and substantive due process is afforded the violator. G. In addition to the civil penalty imposed pursuant to the resolution adopted in accordance with this Chapter, if the Violations Hearing Special Magistrate Beard-determines the violation was committed, the violator shall also responsible for payment of hearing costs, identified as the administrative fee (including filing fee) in the resolution -as-adopted by a resolution of the City Commission. H. In the event that the City decides to dismiss the Notice of Violation or if the Violations Hearing Special Magistrate Board dismisses the Notice of Violation, the filing fee shall be refunded. I. In the event that the Violations Hearing Special Magistrate Board determines that the violation was committed, the violator shall be deemed to have waived his or her right to pay the original amount of the fine as indicated on the Notice of Violation. A fine of up to $250 plus hearing costs as provided in the fine resolution may be imposed by the Violations Hearing Special Magistrate Board. In such event, the filing fee shall be deducted from the fine. J. Failure to appear before the Violations Hearing Special Magistrate Board-at the time of hearing will result in the imposition of a fine and hearing costs as determined by the Violations Hearing Special Magistrate Board. § 16-6. -Collection of fines. The City Manager or his/her designee may establish procedures for the collection of a fine imposed herein, and may enforce collect such fine by civil action in the nature of debt. The violator shall also be responsible for payment of any costs incurred by the City in any legal proceedings or other efforts instituted to collect money due under this Chapter. S. 16-7. Dissolution of the Violations Hearing Board. The Violations Hearing Board, established in Ordinance 2013-005, as amended, is hereby dissolved. RESOLUTION NO. 2018- A RESOLUTION OF THE CITY OF OCOEE, FLORIDA, ESTABLISHING A FINE AND FEE SCHEDULE AS AUTHORIZED BY ORDINANCE 2018- , RELATING TO THE VIOLATIONS HEARING SPECIAL MAGISTRATE ESTABLISHED AT CHAPTER 16 OF THE CODE OF ORDINANCES OF THE CITY OF OCOEE; REPEALING RESOLUTION 2013-005; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Ocoee, Florida (the "City Commission") adopted Ordinance 2018- , amending Chapter 16, relating to violations, to allow for enforcement by a Violations Hearing Special Magistrate; and WHEREAS, in accordance with Chapter 16 of the Code of Ordinances of the City of Ocoee ("City Code"), the City Commission shall adopt a Resolution to provide for a fine and fee schedule relating to violations of certain provisions of the City Code. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE,FLORIDA,AS FOLLOWS: SECTION ONE. Authority. The City Commission of the City of Ocoee has the authority to adopt this Resolution pursuant Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes. SECTION TWO. Exhibit A. The City Commission of the City of Ocoee, Florida, hereby adopts a schedule of fines and fees, as may be amended from time to time, for violations of certain provisions of the code of ordinances as provided in EXHIBIT "A", attached hereto and by this reference made a part hereof. SECTION THREE. Repeal of Resolution 2013-005. Resolution 2013-005, adopted by the City Commission on March 5, 2013, is hereby repealed in its entirety. SECTION FOUR. Severability. If any section, subsection, sentence, clause, phrase or portion of this Resolution 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 FIVE. Effective Date. This Resolution shall become effective immediately upon passage and adoption. PASSED AND ADOPTED this day of , 2018. APPROVED: Attest CITY OF OCOEE, FLORIDA Melanie Sibbitt, City Clerk Rusty Johnson, Mayor (SEAL) APPROVED BY THE OCOEE CITY COMMISSION ON , 2018, UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE,APPROVED AS TO FORM AND LEGALITY THIS DAY OF , 2018 SHUFFIELD, LOWMAN & WILSON By: City Attorney EXHIBIT A CITY OF OCOEE ORDINANCE VIOLATION FINE AND FEE SCHEDULE ORDINANCE FINE/FEE Chapter 48—Boats and Boating,Article III,Bow fishing $100.00 Chapter 61—Cemeteries First Offense $50.00 Second and Subsequent Offense $100.00 (second and subsequent offense within 12 months of date of last offense) Chapter 75--Nuisance False Alarm Response Fee Fourth and Subsequent Offense $100.00 (fourth and subsequent false alarms within a six-month period, calculated from the date of the first false alarm) Chapter 113—Noise-Loud,Unnecessary or Disturbing First Offense $50.00 Second and Subsequent Offense $100.00 (second and subsequent offense within 12 months of date of last offense) Chapter 124—Parks,Recreation and other Community Facilities First Offense $50.00 Second and Subsequent Offense $100.00 (second and subsequent each offense within 12 months of date of last offense) Subsection 153-4C—Streets and Sidewalks,Prohibitions(human $100.00 signage) Chapter 153—Streets and Sidewalks,Article III,Golf Carts on $100.00 Public Streets Chapter 164—Registration,Maintenance and Security of Abandoned Real Property Registration $200.00 Failure to Register $500.00 Chapter 168—Vehicles and Traffic Parking $40.00 No Disabled/Handicap Sticker/Placard Permit $250.00 Administrative Fee(including filing fee) $50.00 VIOLATIONS HEARING SPECIAL MAGISTRATE SERVICES AGREEMENT THIS AGREEMENT ("Agreement") is entered into on the _ day of , 2018, by and between the CITY OF OCOEE, a Florida municipal corporation, whose address is 150 N. Lakeshore Drive, Ocoee, Florida 34761 ("Ocoee"), and Robin Drage, Esq., whose address is Post Office Box 536057, Orlando, Florida 32853-6057 ("Special Magistrate"). RECITALS A. Whereas, on May 1, 2018, the City of Ocoee City Commission adopted Ordinance 2018- , amending Chapter 16, relating to violations, to allow for enforcement by a Violations Hearing Special Magistrate; and B. Whereas, Ocoee and Special Magistrate desire to enter into this Agreement to allow Special Magistrate to perform the duties of Violations Hearing Special Magistrate subject to the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, for and in consideration of the foregoing, the mutual promises, covenants, and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree as follows: 1. Qualifications. Special Magistrate warrants that she is fully qualified to perform the duties of Special Magistrate as described in the City of Ocoee Code of Ordinances and under Florida law, and that Special Magistrate is a member in good standing of the Florida Bar. 2. Violations Hearing Special Magistrate. Special Magistrate agrees to personally perform the duties of Violations Hearing Special Magistrate to hear notices of violations of City Code, as set forth in the Code. HEARING OFFICER shall hear all matters assigned to her, unless a conflict of interest exists, and shall prepare and file with the City Manager or designee a written order stating its findings and the amount of fine, if applicable. Special Magistrate shall not delegate or assign his rights or obligations hereunder in whole or in part. 3. City Responsibilities. City shall provide an appropriate location to conduct the proceedings. City shall also provide staff to operate a recording device, schedule hearings, and perform the administrative tasks related to the hearings. All office and overhead expenses not proved by City including but not limited to travel, shall be borne by Special Magistrate. 4. Compensation. Special Magistrate shall be paid One Hundred Eighty and no/100s Dollars ($180.00) per hour for services performed by Special Magistrate as Violations Hearing Special Magistrate. In the event all hearings scheduled for a particular date are cancelled, Special Magistrate shall not be compensated for that date if she is notified at least 48hours in advance. Special Magistrate shall be paid for a minimum of two (2)hours in the vent that less than 48 hours' notice is given. Special Magistrate may perform legal work for other clients in her private practice so long as it does not conflict with her obligations under this Agreement. Special Magistrate shall promptly notify the City of any conflicts or other reason which Special Magistrate feels would make it inappropriate for her to decide a case. Page 1 5. Term and Termination. This Agreement shall consist of one (1) initial three (3) year term beginning May 1, 2018 ("Effective Date"), with two (2) separate one (1)year renewable extensions, for a maximum of five (5) years total under this Agreement unless terminated earlier. Either party may terminate this Agreement at any time by providing thirty(30)days written notice of its intent to terminate to the other. Unless otherwise directed by City, Special Magistrate shall, prior to the termination date, complete all of her duties including, but not limited to, filing written orders, in any case heard by Special Magistrate. . 6. Independent Contractor. City and Special Magistrate intend that the relationship between them shall be that of Special Magistrate as an independent contractor. Special Magistrate and no agent or employee of the Special Magistrate shall be deemed to be an agent or employee of the City. None of the benefits provided by City to its employees including, but not limited to, Worker's Compensation insurance and unemployment insurance, are available to Special Magistrate or the agents or employees of Special Magistrate. 7. Audit. City, at its discretion, may audit or inspect Special Magistrate's books, financial records, ledgers, time sheets, or other records relating to services under this Agreement for a period of three(3)years following termination of this Agreement. 8. Public Records.The City is a public agency subject to Chapter 119, Florida Statutes. The Special Magistrate agrees to comply with Florida's Public Records Law. Specifically,the Contractor shall: A. Keep and maintain public records required by the City to perform the service. B. Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in chapter 119, Florida Statutes, or as otherwise provided by law. C. Ensure that public records that are exempt or confidential and exempt from the public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term and following completion of the Agreement if the Special Magistrate does not transfer the records to the City. D. Upon completion of the Agreement, Special Magistrate agrees to transfer at no cost to the City all public records in possession of the Special Magistrate or keep and maintain public records required by the City to perform the service. If the Special Magistrate transfers all public record to the City upon completion of the Agreement, the Special Magistrate shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Special Magistrate keeps and maintains public records upon completion of the Agreement, the Special Magistrate shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. Page 2 E. A Special Magistrate who fails to provide the public records to City within a reasonable time may be subject to penalties under section 119.10, Florida Statutes. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT 407-905-3100, EXTENSION 1022, CCDL@ci.ocoee.fl.us, WITH AN OFFICE LOCATED AT 150 NORTH LAKESHORE DRIVE, OCOEE, FLORIDA 34761. 9. Entire Agreement. This Agreement contains the entire understanding and agreement between the parties hereto with respect to the subject matter hereof. The Agreement may be modified only by written instrument signed by all parties hereto. 10. Notice. Any notice required or allowed to be delivered under this Agreement shall be provided in writing and sent to the address on page 1 of this Agreement. Notice shall be sent by hand delivery or sent by a nationally recognized overnight delivery service for next business day delivery. 11. Governing Law and Venue. This Agreement is to be governed by, and construed and enforced in accordance with, the laws of the State of Florida. In the event any litigation or other formal legal or equitable proceeding (collectively, the "Litigation") between any of the Parties hereto, or their affiliates, heirs, agents, successors, or assigns, is instituted in connection with the construction, interpretation, or enforcement of this Agreement, the party commencing such litigation shall be required to institute the same in state courts within the jurisdiction and venue of Orange County, Florida 12. No Waiver. No wavier of any provision of this Agreement shall be effective unless it is in writing and signed by the party against whom it is asserted. Any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver. 13. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be original as against any party whose signature appears thereon, and all of which together shall constitute one and the same Agreement. 14. Severability. If any provision of this Agreement is ultimately determined to be invalid or unenforceable, such provision shall be deemed limited by construction in scope and effect to the minimum extent necessary to render the same valid and enforceable, and, in the event no such limiting construction is possible, such invalid or unenforceable provision shall be deemed severed from this Agreement without effecting the validity of any other provision hereof. IN WITNESS WHEREOF the parties hereto have caused this Amendment to be executed by their authorized representatives on the day and year first above written. Page 3 SPECIAL MAGISTRATE CITY OF OCOEE,a Florida Municipal Corporation By: By: Rusty Johnson, Mayor Title: Signature: Date: Attest: Melanie Sibbitt, City Clerk APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2018, UNDER AGENDA ITEM NO. . FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this_day of , 2018. SHUFFIELD LOWMAN & WILSON, P.A. By: City Attorney Page 4 % r COPY OF ADVERTISEMENT Date Published and Media Name SECTION West Orange Times THURSDAY,APRIL 19, 2018 Advertisement or Article FIRST INSERTION CITY OF OCOEE PUBLIC HEARING A Public Hearing before the Ocoee City Commission will be held Tuesday,May 1, 2018 at 6:15 p.m.or as soon thereafter as may be heard,in the Commission Cham- bers of City Hall at 150 North Lakeshore Drive,Ocoee,Florida,to consider the fol- lowing: AN ORDINANCE OF THE CITY OF OCOEE,FLORIDA AMENDING CHAPTER 16 OF THE CODE OF ORDINANCES OF THE CITY OF OCOEE, ENTITLED VIOLATIONS; ESTABLISHING A VIOLATIONS HEARING SPECIAL MAGISTRATE;PROVIDING FOR POWERS AND DUTIES OF THE VIOLATIONS HEARING SPECIAL MAGISTRATE; PROVIDING FOR NOTICE OF VIOLATION REQUIREMENTS;PRO- VIDING FOR NOTICE OF VIOLATION FINES AND PROCEDURES; PROVIDING FOR HEARINGS TO CONTEST NOTICES OF VIOLA- TIONS; PROVIDING FOR FINE COLLECTION PROCEDURES; DIS- SOLVING THE VIOLATIONS HEARING BOARD; PROVIDING FOR CONFORMING CHANGES AT SECTIONS 113-4,124-4,AND 153-18 OF THE CODE OF ORDINANCES OF THE CITY OF OCOEE;PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION; PROVID- ING AN Elk LCTI VE DATE. If a person decides to appeal any decision made by the above City Commission with respect to any matter considered at such hearing,they will need a record of the pro- ceedings,and for such purpose they may need to ensure that a verbatim record of the proceedings is made,which record includes the testimony and evidence upon which the appeal is to be based.All interested parties are invited to attend and be heard with respect to the above.In accordance with the Americans with Disabilities Act, persons needing a special accommodation or an interpreter to participate in this proceeding should contact the City Clerk's office at 407-905-3105 at least two days prior to the date of hearing. April 19,2018 18-02011W