§ 11.06.00. Special magistrate.

(a)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Code inspector means authorized agents or employees of the town whose duty it is to ensure code compliance with the codes which are subject to this article.

Special magistrate means the individual appointed by the town council from time to time as contemplated by F.S. § 162.03(2).

(b)

Function. The special magistrate shall conduct hearings relating to the enforcement and violation of the business tax receipt, fire, building, zoning, sign and other related codes in force in the town. It is not the function of the special magistrate to initiate enforcement proceedings or to inspect for code violations. The special magistrate shall sit as an impartial hearing officer to determine, based on evidence presented during the hearing, if a violation exists.

(c)

Creation, appointment, powers and duties of the special magistrate.

(1)

There is hereby created within the town pursuant to F.S. § 162.03(2), an alternate code enforcement system which gives a special magistrate designated by the town council the authority to conduct hearings and impose and authorize the collection of fines and costs against pending or repeat violators of town codes and ordinances.

(2)

The special magistrate shall be a member of the Florida Bar who possesses an outstanding reputation for civic pride, interest, responsibility, and business or professional ability. The appointment shall be made by the town council on the basis of experience or interest in the fields of zoning, building control and code enforcement.

(3)

The special magistrate shall serve at the pleasure of the town council, and shall not be deemed a town employee.

(4)

The special magistrate shall be compensated for performing said service.

(5)

The town shall provide such clerical, administrative personnel and legal services deemed reasonably necessary to support the special magistrate's activities and assist in the proper performance of duties. The special magistrate shall not be authorized to engage, hire or use any person, except those provided by the town to assist in the performance of duties.

(6)

The special magistrate shall have the jurisdiction and authority to affirm or modify penalties imposed by the town's enforcement board whose jurisdiction was repealed the date Ordinance No. 2012-11 was adopted.

(7)

The special magistrate has the jurisdiction and authority to determine the amount of reasonable expenses incurred by the town as a result of orders issued pursuant to the authority granted herein.

(8)

The jurisdiction of the special magistrate is not exclusive. An alleged violation of a code provision may be pursued by appropriate remedy in court at the option of the town and nothing shall prevent the town from taking such other lawful action, including but not limited to resorting to equitable action, as is necessary to enforce the provisions of respective town codes or ordinances.

(d)

Enforcement procedures. Except where the code inspector has reason to believe that a code violation presents serious threat to the public health, safety and welfare, the code enforcement procedure under this subsection shall be as follows:

(1)

It shall be the duty of the code inspector to initiate enforcement proceedings with respect to each code; the special magistrate shall not have the power to initiate enforcement proceedings.

(2)

Where the code inspector finds a code violation, he shall provide in writing a reasonable time within which to correct the violation. Should the violation continue beyond the time specified in the correction notice, then the code inspector may file an affidavit of violation with the special magistrate. The special magistrate shall assign a case number and mail a copy of affidavit of violation and notification of the date, time and place of the hearing to the violator. Reasonable time shall be ten days; however, where a different time period in which to correct the violation is provided for by the ordinance being enforced, that time period shall constitute reasonable time for that particular violation or in cases of more complexity a greater time period may be granted by the special magistrate.

(3)

If the code inspector has reason to believe a violation presents a serious threat to the public health, safety or welfare, the code inspector may proceed to request an emergency hearing before the special magistrate, notifying the violator, if practical, by any available means. Failure to give notice shall not invalidate emergency action.

(e)

Additional powers. The special magistrate shall have the power to:

(1)

Adopt rules for the conduct of meetings and hearings.

(2)

Serve respondents and subpoena witnesses to hearings. Subpoenas may be served by the town police department.

(3)

Subpoena records, surveys, plats and other documents or materials for its hearings.

(4)

Take testimony under oath.

(5)

Issue orders having the force and effect of law which can command whatever steps are necessary to bring a violation into compliance, such decision to be made at the hearing and reduced to writing and mailed to the respondents within ten days thereafter.

(6)

Establish fines.

(7)

Issue emergency orders when a violation presents a serious threat to the public health, safety or welfare.

(f)

Hearing procedures.

(1)

Each case before the special magistrate shall be initiated and presented by the code inspector or his designee. The burden of proof shall be upon the code inspector to show, by a preponderance of the evidence, a violation does exist. In the event multiple violations are alleged, the respondent shall not be entitled to separate hearings thereon, unless ordered by the special magistrate.

(2)

The town manager or his designee shall represent the town by presenting cases before the special magistrate.

(3)

All hearings shall be held in a designated town facility accessible to the general public.

(4)

All hearings before the special magistrate shall be conducted so as to ensure fundamental due process.

(5)

The case on behalf of the town shall be presented first, and the respondent or his duly designated representative shall then be provided an opportunity to present his case.

(6)

The special magistrate shall take testimony from any witness having knowledge concerning a hearing on a case. All testimony shall be under oath. The special magistrate shall have the power to administer on oath to any witness. Upon direction of the special magistrate, each party shall be permitted the opportunity to inquire of any hearing witness.

(7)

The special magistrate shall not be bound by formal rules of evidence. Irrelevant, immaterial or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in a court of law within the state.

(8)

As soon as practicable after the conclusion of the hearing, the special magistrate shall issue findings of fact based on evidence of record, and conclusions of law, and shall issue an order affording the proper relief consistent with powers granted herein and consistent with F.S. ch. 162.

(9)

The special magistrate shall be bound by the interpretations and decisions of duly authorized boards of the town concerning the provisions of the codes, ordinances and regulations within their respective jurisdictions.

(g)

Rehearing of the special magistrate's decision.

(1)

Either the code inspector or the violator may request a rehearing of the decision of the special magistrate. A request for rehearing shall be made in writing, and shall be delivered to the town clerk within ten days of the date of the special magistrate's order. A request for a rehearing shall be based only on the grounds that the decision was contrary to the evidence or that the hearing involved an error on a ruling of law, which was fundamental to the decision of the special magistrate. The written request for rehearing shall specify the precise reasons therefor.

(2)

The special magistrate shall make a determination as to whether to rehear the matter. If the special magistrate determines a rehearing should be granted, the special magistrate may:

a.

Schedule a hearing where the parties will be given the opportunity to present limited evidence or argument as to the special reasons for which the rehearing was granted; or

b.

Modify or reverse the prior order, without receiving further evidence, providing the change is based on a finding the prior decision of the special magistrate resulted from a ruling on a question of law which the special magistrate has determined to be an erroneous ruling.

(3)

Until the request for rehearing has been denied or otherwise disposed of, the order of the special magistrate shall be stayed, and the time for taking an appeal, pursuant to this section, shall not commence to run until the date upon which the special magistrate has finally disposed of the request for rehearing by denying the same or otherwise.

(h)

Administrative fines; costs of repair; liens.

(1)

The special magistrate, upon notification by the code inspector that an order of the special magistrate has not been complied with by the set time or, upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the special magistrate for compliance or, in the case of a repeat violation, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the code inspector. In addition, if the violation is a violation which presents a serious threat to the public health, safety and welfare, the special magistrate shall notify the town council, 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. If a finding of a violation or a repeat violation has been made, as provided in this section, a hearing shall not be necessary for issuance of the order imposing the fine.

(2)

A fine imposed pursuant to this section shall not exceed $250.00 per day for a first violation and shall not exceed $500.00 per day for a repeat violation, and, in addition, may include all costs of repairs.

(3)

In determining the amount of the fine, if any, the following factors shall be considered:

a.

The gravity of the violation;

b.

Actions taken by the violator to correct the violation;

c.

Previous violations committed by the violator.

(4)

The special magistrate may reduce a fine imposed pursuant to this section.

(5)

A certified copy of an order imposing a fine may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order may be enforced in the same manner as a court judgment by the sheriffs of this state, including levy against the personal property, but such order shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursuant to this section shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the town, and the town council may execute a satisfaction or release of lien entered pursuant to this section. After three months from the filing of any such lien which remains unpaid, the town manager may authorize the town attorney to foreclose on the lien. No lien created pursuant the provisions of this section may be foreclosed on real property which is a homestead under section 4, article X of the state Constitution.

(6)

No lien shall continue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable attorney's fee, that it incurs in the action. The town shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the commencement of the action shall not be good against creditors of subsequent purchasers of valuable consideration without notice, unless a notice of lis pendens is recorded.

(i)

Appeal. Any aggrieved party, including the town, may appeal a ruling or order of the special magistrate to the circuit court of the county. The appeal provided for herein shall be filed within 30 days of the order to be appealed. The record shall be presented to the court on appeal.

(j)

Notices.

(1)

All notices required by this section must be provided to the alleged violator by:

a.

Certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, to the address listed in the tax collector's office for tax notices, or to any other address provided by the property owner, in writing, to the local government for the purpose of receiving notices. For property owned by a corporation, notices may be provided by certified mail with return receipt requested or by registered mail outside the continental United States, to the registered agent of the corporation. If any notice sent by certified mail or registered mail is not signed as received within 30 days after the date of mailing, notice may be provided by posting as described in subsection (j)(2)b.1 and b.2 of this section;

b.

Hand delivery by the sheriff or other law enforcement officer, code inspector, delivery service (e.g., Federal Express, United Parcel Service, DHL and the like), or other person designated by the local governing body;

c.

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

d.

In the case of commercial premises, leaving the notice with the manager or other person in charge.

(2)

In addition to providing notice as set forth in subsection (j)(1) of this section, at the option of the special magistrate, notice may also be served by publication or posting, as follows:

a.

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 the county. The newspaper shall meet such requirements as are prescribed under F.S. ch. 50 for legal and official advertisements.

2.

Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051.

b.

1.

In lieu of publication as described in subsection (j)(2)a of this section, such notice may be posted at least ten 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 office for the town business.

2.

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.

c.

Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under subsection (j)(1) of this section.

Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (j)(1) of this section, together with proof of publication or posting as provided in subsection (j)(2) of this section, shall be sufficient to show that the notice requirements of this section have been met, without regard to whether or not the alleged violator actually received such notice.

(Ord. No. 2012-11, § 1(11.06.00), 12-11-2012; Ord. No. 2013-03, § 1(11.06.00), 6-11-2013; Ord. No. 2018-06, § 1, 11-13-2018)