Loading...
2022-12-06 V. B. Exhibit 1 Exhibit 1 12/06/2022 CITY OF OKEECHOBEE CODE ENFORCEMENT LIEN PROCESS Okeechobee _ Akio- FLORIDA • Founded 1915 NASON, YEAGER, GERSON, HARRIS & FUMERO, PA. R. GREGORY HYDEN, ESQ ° � \I Nason Yeager Florida Statutes Chapter 162 The "Local Government Enforcement Boards Act" ► Fla. Stat. §162.02: "It is the intent of this part to promote, protect, and improve the health, safety, and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities, where a pending or repeated violation continues to exist." (Emphasis added). ► Fla. Stat. §162.03(2): "A....municipality may, by ordinance, adopt an alternate code enforcement system that gives....special magistrates....the authority to hold hearings and assess fines against violators of the respective county or municipal codes and ordinances." ► Fla. Stat. §162.06(b): "A code inspector may not initiate enforcement proceedings for a potential violation of a duly enacted code or ordinance by way of an anonymous complaint. A person who reports a potential violation of a code or an ordinance must provide his or her name and address to the respective local government before an enforcement proceeding may occur." Florida Statutes Chapter 162 The "Local Government Enforcement Boards Act" ► Fla. Stat. §162.06(2): "Except as provided in subsections (3) and (4), if a violation of the codes is found, the code inspector shall notify the violator and give him or her a reasonable time to correct the violation. Should the violation continue beyond the time specified for correction, the code inspector shall notify [the Special Magistrate] and request a hearing. The [Special Magistrate] shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as provided in s. 162.12 to said violator." (Emphasis added). ► Fla. Stat. §162.06(3): "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." (Emphasis added). ► Fla. Stat. §162.06(4): "If the code inspector has reason to believe a violation or the condition causing the violation presents a serious threat to the public health, safety, and welfare or if the violation is irreparable or irreversible in nature, the code inspector shall make a reasonable effort to notify the violator and may immediately notify the enforcement board and request a hearing." (Emphasis added). Florida Statutes Chapter 162 The "Local Government Enforcement Boards Act" ► Fla. Stat. §162.06(5) "If the owner of property that is subject to an enforcement proceeding before....[the] special magistrate, or court transfers ownership of such property between the time the initial pleading was served 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 enforcement official 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 5 days after the date of the transfer. (Emphasis added). Florida Statutes Chapter 162 The "Local Government Enforcement Boards Act" ► 162.07 Conduct of hearing.— • (2) Each case before an enforcement board shall be presented by the local governing body attorney or by a member of the administrative staff of the local governing body. If the local governing body prevails in prosecuting a case before the enforcement board, it shall be entitled to recover all costs incurred in prosecuting the case before the board and such costs may be included in the lien authorized under s. 162.09(3). ► (3) All testimony shall be under oath and shall be recorded. The enforcement board shall take testimony from the code inspector and alleged violator. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. ► (4) At the conclusion of the hearing, the enforcement board 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...The order may include a notice that it must be complied with by a specified date and that a fine may be imposed and, under the conditions specified in s. 162.09(1), the cost of repairs may be included along with the fine if the order is not complied with by said date. A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest, or assigns 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. Florida Statutes Chapter 162 The "Local Government Enforcement Boards Act" ► Fla. Stat. §162.09(1): A[Special Magistrate] upon notification by the code inspector that an order of the enforcement board has not been complied with by the set time or upon finding that a repeat violation has been committed,may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the[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... O. Fla. Stat. §162.09(2)(a):A fine imposed pursuant to this section shall not exceed$250 per day for a first violation and shall not exceed $500 per day for a repeat violation, and, in addition, may include all costs of repairs pursuant to subsection (1). However, if a code enforcement board finds the violation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000 per violation. ► Fla.Stat.§162.09(b): In determining the amount of the fine,if any,the[Special Magistrate]shall consider the following factors: ► 1. The gravity of the violation; ► 2. Any actions taken by the violator to correct the violation;and ► 3. Any previous violations committed by the violator. ► Fla.Stat.§I62.09(c):A[Special Magistrate]may reduce a fine imposed pursuant to this section. ► Fla.Stat. §162.09(d):In addition to such fines,a special magistrate may impose additional fines to cover all costs incurred by the local government in enforcing its codes and all costs of repairs pursuant to subsection(1).Any ordinance imposing such fines shall include criteria to be considered by the special magistrate in determining the amount of the fines,including,but not limited to,those factors set forth in paragraph(b). Code Enforcement Ordinance ► Sec. 18-31: "It is the intent of this article to promote, protect, and improve the health, safety and welfare of the citizens of the city by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in the city where a pending or repeated violation continues to exist." (Emphasis added). ► Sec. 18-33: "'Local Government Code Enforcement Boards Act,' is adopted in its entirety, as presently written or as hereafter amended by the state legislature, as substantive authority for, and to proscribe procedures for, the establishment, organization, and operations of the local code enforcement program for the city." ► Sec. 18-34: "All code enforcement operations for the city shall be administratively handled through the police chief, who shall....take complaints; process complaints; direct the code enforcement officers or law enforcement officers in the investigation into such complaints; schedule code enforcement hearings;....prepare and record official acts and orders of the special magistrate; prepare and file any liens as directed by the special magistrate; and to generally be responsible for all operation and record keeping for the city's code enforcement program." Code Enforcement Ordinance ► Sec. 18-35: ► (a)Any first-time violators of any city ordinance or code, or those not considered to be repeat violators as defined in section 18-32, are required to correct the alleged violation upon receipt of a first notice of violation from the city. If such violation is not corrected, and a second notice must be sent, then the city shall assess and collect from the violator an administrative fee of$50.00 for processing the complaint, plus any additional expense incurred in long distance phone charges; certified mail expense, recording charge, or any such other reasonable administrative expense incurred in processing the complaint, which excludes the salary of the code enforcement officer or city employees, regardless of whether the violator should come into compliance with the cited ordinance or code prior to the public hearing on the violation. ► (b) For those persons who qualify as repeat violators by this article, upon the initiation and processing by the city of any complaint for being in violation of a city ordinance or code, the city shall assess and collect from the violator an administrative fee of$100.00 for processing the complaint, plus any additional expense incurred in long distance phone charges; certified mail expense, recording charge, or any such other reasonable administrative expense incurred in processing the complaint, which excludes the salary of the code enforcement officer or city employees, regardless of whether the violator should come into compliance with the cited ordinance or code prior to the public hearing on the violation. ry'k{ - e r - _ i �a Code Enforcement Ordinance ► Sec. 18-37a) ...[T]he city enacts a system of enforcement of city codes, or such other duties as assigned by the city council, and to retain a magistrate to hear, determine and issue orders on matters of code violations as may be filed by the code officer for the City of Okeechobee. ► Sec. 18-37 (a) The magistrate shall have all powers created by F.S. ch. 162. Additionally,the magistrate shall have all powers delegated by the city council relating to the exercise of its police powers pursuant to F.S. ch. 166. The magistrate shall have the express power to: ► (1) Adopt rules for the conduct of code enforcement meetings and hearings. ► (2) Subpoena alleged violators and witnesses. ► (3) Subpoena evidence as necessary for hearings, including but not limited to physical and documentary evidence, such as records, surveys,plats and photographs. ► (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 violator within ten working days thereafter. ► (6)Establish and enforce fines pursuant to this municipal code. ► (7)Authorize the reduction of any fine he or she has imposed. Code Enforcement Ordinance ► Sec. 18-73 - "The city code enforcement officer shall investigate, write violations, and enforce code violations as necessary....Except in the case of a repeat violator or service threat to the public's health, safety or welfare, or violation threatening imminent or irreparable harm to persons or property, the code officer shall first,prior to issues a citation, provide the violator with a courtesy letter outlining the nature of the violation, and the time periods provided for correction of the problem(s), which shall be not less than five days nor more than 30 days, as deemed appropriate considering the nature of the violation."(Emphasis added). ► Sec. 18-76. — "To achieve uniformity of penalty and enforcement in the process of code enforcement, the code enforcement officer...should observe and follow the listed penalties for the various code violations listed hereafter. Nothing shall prevent however, the code enforcement officer from issuing a lower or higher fine, than that suggested by this article, of up to $250.00 for a first violation and up to $500.00 for second and subsequent violations,when considering the following factors: ► (1)The gravity of the violation and effect of neighboring properties. ► (2)Any actions taken by the violator to correct the problem(s)after their courtesy letter. ► (3)Any previous findings of violations by such violator on the subject property or against other properties owned by such violator. ► (4)The length of time the violation has existed. ► (5)The degree of co-operation offered by the violator in correcting the problem(s). Lien Reductions ► City staff recommend amending the City of Okeechobee's Ordinances to specify that the below criteria are what the Magistrate considers when reviewing lien reductions requests: ► The gravity of the violation P. Whether the maximum fine was imposed originally or whether the City imposed a lesser fine ► Any actions taken by the violator to correct the violation ► Any previous violations committed by the violator ► The property must be in full compliance O. Liens can only be reduced a maximum of 50°A) ► An applicant can only seek a reduction once ► The applicant cannot have any other open code violations for any other property in the City or any liens on the property ► City staff recommend amending the Lien Reduction Application to specify that the City staff will evaluate lien reduction requests based upon the below criteria: ► The gravity of the violation ► Exigent circumstances that were the underlying reason for the untimely compliance ► The duration of the code violation ► Applicant history of unsatisfied code violations or liens "CS Lien Reductions ► City staff recommend amending the City of Okeechobee's Ordinances to specify that the below criteria are what the Magistrate considers when reviewing lien reductions requests: ► The gravity of the violation ► The property must be in full compliance ► Liens can only be reduced a maximum of 60% ► An applicant can only seek a reduction once ► The applicant cannot have any other open code violations for any other property in the City or any liens on the property Lien Reductions ► City staff recommend amending the Lien Reduction Application to specify that the City staff will evaluate lien reduction requests based upon the below criteria: ► The gravity of the violation ► Exigent circumstances that were the underlying reason for the untimely compliance ► The duration of the code violation ► Applicant history of unsatisfied code violations or liens ► No other open code violations at other properties ► No pending foreclosure proceedings ► Owner proactivity in remediating the property