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(a) Administrative procedures. Upon request of the Code Inspector, or at such other time as may be necessary, the special magistrate or Town Manager, through clerical staff, may call a hearing. The special magistrate shall cause minutes to be kept of all hearings and all hearings and records shall be open to the public. The Town Commission shall provide clerical and administrative personnel as may be reasonably required by the special magistrate for the proper performance of designated duties. The special magistrate may, at any hearing, set future hearing dates and may postpone or continue any matter before the special magistrate to a future date.
(b) Representation. Each case before the special magistrate shall be presented either by the Town Attorney, by the Code Inspector or by the Town Manager or designee. If the Town prevails in prosecuting a case it shall be entitled to recover all costs incurred in prosecuting the case before the special magistrate and such costs may be included in the lien authorized by § 162.07(2), Fla. Stat. Any person accused of a violation may be represented by counsel at the hearing.
(c) Order of procedure and rules of evidence. At any given hearing, the special magistrate shall first take testimony and receive evidence from the Town, and the Town shall have the burden of proving the existence of the alleged violation by the preponderance of the evidence. At the conclusion of the presentation of the evidence of the Town, the alleged violator may present a case and submit evidence. Formal rules of evidence shall not apply, but fundamental procedural due process shall be observed and shall govern the said proceedings. All testimony shall be under oath and recorded.
(d) Findings and orders. At the conclusion of the hearing, the special magistrate shall make a finding of fact, based on the evidence of record, and conclusions of law, and shall issue an order affording such relief as may be consistent with the powers granted herein. The findings and order shall be presented in written form and shall be served personally or by certified mail/return receipt requested upon the violator. The order may include a notice that the order must be complied with by a specific date and that a fine may be imposed if the order is not complied with by said date as provided in § 162.09(1), Fla. Stat. The order may specify the amount of the fine to be imposed and the date on which the fine will commence if the violation is not corrected. If the Town prevails in prosecuting a case before the special magistrate, the cost of prosecution shall be included in the initial order and in any lien authorized under § 11-21 if not paid prior to recording of the lien. The cost of repairs, along with the fine, shall be included in any lien authorized under § 11-21 if the order is not complied with by said date. A certified copy of the initial order may be recorded in the public records of the county and shall constitute notice to all subsequent purchases, successors in interest, or as assigned, if the violation concerns with real property and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchases, successors in interests, 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 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 provided by the general laws of Florida applicable to code enforcement.
(Ord. 2020-05, adopted 10-21-20)
(a) The special magistrate, may either in the initial order or upon notification by the Code Inspector that an order has not been complied with or finding that a repeat violation has been committed, 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 special magistrate finds that the violation is a violation described in § 11-19(d), the special magistrate shall notify the Town of such findings. The Town shall then have the right and power to 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 Town to make further repairs or to maintain the property and does not create any liability against the Town for any damages to the property if such repairs were completed in good faith. If a finding of a violation or repeat violation has been made as provided by this part, a hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and hearing, the special magistrate finds a violation to be irreparable or irreversible in nature, the special magistrate may order the violator to pay a fine as specified in subsection (b) of this section.
(b) Fines.
(1) A fine imposed pursuant to this section shall not exceed $250 per day per each individual violation cited for a first violation and shall not exceed $500 per day per each violation cited for a repeat violation, and in addition, may include all cost of repairs pursuant to this subsection and cost of prosecution provided in § 11-20(d). However, if the special magistrate finds the violation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000 per violation.
(2) In determining the amount of the fine, if any, the special magistrate shall consider the following factors:
(A) The gravity of the violation;
(B) Any actions taken by the violator to correct the violation; and
(C) Any previous violations committed by the violator.
(3) The special magistrate shall be authorized to consider aggravating and mitigating factors when determining the amount of fines and administrative costs associated with code violations. Such factors include, but are in no way limited to, the following:
(A) Mitigating factors.
1. The violation was caused by circumstances beyond the control of the violator, such as a weather event;
2. The violation has a limited impact on the surrounding community due to its nature or location;
3. The amount the fine has accrued to in comparison to the nature of the violation and the value of the property in which the violation has occurred;
4. The violator has violated the Code, at most, only once in the last five years and said violation did not pose a threat to the community;
5. The violator does not have the ability to address the violations due to health issues; inability to enter the property; lack of legal authority; and/or financial reasons;
6. The length of time it took for the violator to bring the property into compliance; or
7. The property has a homestead exemption.
(B) Aggravating factors.
1. The violator is a repeat offender of the same provision of the Code;
2. The violator has created an unsafe condition that threatens public health, safety, and/or welfare;
3. The violation has a high impact on the surrounding community;
4. The length of time it took for the violator to bring the property into compliance; or
5. The subsequent purchaser had or should have had actual and/or constructive knowledge of the fine(s) and/or lien(s).
(C) The special magistrate may reconsider and reduce a fine imposed pursuant to this section. If a violator desires to request reconsideration of a fine, the following procedures must be followed:
1. Any code violation for which an order has been rendered, must be in compliance;
2. A written request must be made to the Code Inspector for an inspection to verify compliance of the violation subject to the order;
3. After the Code Inspector has certified in writing that the violation for which an order has been rendered is in compliance, the violator must, within 20 days of such certification by
the Code Inspector, request in writing to the Code Inspector a reconsideration of the fine imposed by the special magistrate; and
4. The special magistrate may refer to the factors outlined in subsections (b)(2) and (b)(3) of this section in reconsidering whether a fine previously imposed should be reduced. If any fine imposed pursuant to this article has not been formally imposed and recorded as a lien, the special magistrate's decision on a request for reconsideration shall be deemed final. If any fine imposed pursuant to this article has been formally imposed and recorded as a lien in the public records of Brevard County, the special magistrate shall issue a recommendation to the Town Commission as to whether the fine formally imposed as a lien should be reduced. The Town Commission is not bound by the recommendation of the special magistrate and shall have the sole authority to determine for itself whether a fine formally imposed as a lien should be reduced.
(D) A certified copy of an order formally imposing an accruing fine, or an accruing fine plus repair cost and costs of prosecution as a lien may be recorded in the public records, and thereafter, said order shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator. Regardless of the formal imposition and recording of a lien, any fine imposed pursuant to § 11-20(d) shall continue to accrue until compliance of the violation has been acknowledged. Upon petition to the circuit court, such order shall be enforceable in the same manner as a court judgement by the sheriffs of this state, including execution and levy against the personal property of the violator, but such order shall not be deemed to be a court judgement except for enforcement purposes. A fine imposed pursuant to this part shall continue to accrue until the violator comes into compliance or until judgement 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 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 special magistrate may authorize the Town Attorney to foreclose on the lien. No lien created pursuant to the provisions of this part may be foreclosed on real property which is a homestead.
(Ord. 2020-05, adopted 10-21-20)
An aggrieved party, including the Town Commission, may appeal any final administrative order of the special magistrate to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the special magistrate. An appeal shall be filed within 30 days of the rendition of the order to be appealed.
(Ord. 2020-05, adopted 10-21-20)
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