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(A) A Special Magistrate shall have the power to:
(1) Adopt rules for the conduct of code enforcement hearings;
(2) Subpoena alleged violators and witnesses to its hearings;
(3) Subpoena evidence, records, surveys, plats and other material;
(4) Take testimony under oath; and
(5) Issue orders following a hearing, which shall have the force of law and which shall set forth the steps necessary to bring a violation into compliance with the code or ordinance that has been violated, including requirements for compliance by a specific date and daily fines if the violation continues beyond the compliance date.
(B) A Special Magistrate shall not have the power to consider requests for reconsideration or rehearing that would extend the respondent's time for seeking an appeal.
(Ord. 2022-11, passed 1-20-22)
The following conflict of interest provisions shall apply to the Special Magistrate:
(A) A Special Magistrate shall not engage in ex parte communications with any party, representative of a party, or interceding person concerning an alleged violation.
(B) No person who is, or may become, a party to a hearing before a Special Magistrate shall engage in ex parte communications with any Special Magistrate concerning that violation. This restriction shall extend to any person appearing or interceding on behalf of a party, whether or not such person may have a direct personal or financial interest in the property subject of the alleged violation.
(Ord. 2022-11, passed 1-20-22)
(A) The code compliance officers have the primary duty of enforcing the various codes and initiating enforcement proceedings before the Special Magistrate. No Special Magistrate shall have the power to initiate such enforcement proceedings.
(B) A code compliance officer 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 city before an enforcement proceeding may occur. This division does not apply if the code enforcement officer has reason to believe that the violation presents an imminent threat to public health, safety, or welfare or imminent destruction of habitat or sensitive resources.
(C) Each case before the Special Magistrate shall be presented by the code compliance officer issuing the notice of violation, the code compliance supervisor, other person with knowledge of the violation or the attorney representing the city.
(D) All testimony shall be under oath and shall be recorded. The Special Magistrate shall take testimony from the code compliance officer and the alleged violator. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings.
(E) The Special Magistrate has discretion to continue a code enforcement hearing at any time and may request additional information from either party.
(F) If a code enforcement hearing is continued, a date certain for the continued code enforcement hearing shall be announced at the public hearing or a notice shall be provided to the respondent if a date is not available at the code enforcement hearing.
(G) Upon completion of all the evidence, the Special Magistrate shall close the code enforcement hearing.
(H) The Special Magistrate shall immediately deliberate in open session before the public. Although the public is welcome at the code enforcement hearings, they shall not be allowed to participate in or address the Special Magistrate during deliberation.
(I) 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. The order shall 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 F.S. § 162.09(1), as may be amended from time to time, the cost of repairs may be included along with the fine if the order is not complied with by the specified date.
(J) If the city prevails in enforcing a case before the Special Magistrate, it shall be entitled to recover all costs incurred in enforcing the case before the Special Magistrate, and in any appeals from the Special Magistrate's order. Such costs include but shall not be limited to: investigative costs, administrative costs, prosecution costs, and preparation of the record on appeal.
(K) A certified copy of the order required in division (I) may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest, or assigns if the violation concerns real property, and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers, successors in interest, or assigns. If an order is recorded in the public records pursuant to this subsection and the order is complied with by the date specified in the order, the 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.
(L) In all proceedings and hearings before the Special Magistrate, the Special Magistrate shall not be empowered to consider or rule upon the validity of any city ordinance. The Special Magistrate shall presume the validity of all city ordinances, except where a court of competent jurisdiction has determined an ordinance to be invalid. Furthermore, the Special Magistrate shall not be empowered to determine if the Special Magistrate has jurisdiction with respect to any alleged violation of a city ordinance; if the alleged violation derives from any city ordinance, the Special Magistrate has jurisdiction and may proceed with the Special Magistrate's enforcement duties pursuant to F.S. Chapter 162, and the Code of Ordinances.
(Ord. 2022-11, passed 1-20-22)
(A) Upon being notified by the code compliance officer that a previous order of the Special Magistrate has not been complied with by the time specified in such order, or finding that a repeat violation has been committed, the Special Magistrate may impose a fine at the daily rate previously set by the Special Magistrate, 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 a code compliance officer.
(B) If there is reason to believe that a violation or a 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 Special Magistrate shall notify the City Council, which may authorize reasonable repairs or other corrective actions required to bring the property into compliance, or otherwise secure the property, and charge the violator with the reasonable costs of the repairs or other corrective actions along with the fines imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the city to make further repairs or to maintain the property and does not create any liability against the City Council for damages to the property if such repairs were completed in good faith. 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 by the Special Magistrate.
(Ord. 2022-11, passed 1-20-22)
(A) When the Special Magistrate determines that the factors and criteria in subsection (B) exist in any matters regarding violations of the Palm Bay Code of Ordinances that involve multifamily of more than three (3) units and commercial structures, the Special Magistrate may impose the following fines:
(1) For a first violation, a fine not exceed one thousand dollars ($1,000.00) for each day that the violation continues past the date set for compliance.
(2) Five thousand dollars ($5,000.00) per day per violation for repeat violations;
(3) A fine not to exceed fifteen thousand dollars ($15,000.00) per violation, if the Special Magistrate finds a violation to be irreparable or irreversible in nature;
(4) In addition to such fines, the Special Magistrate may impose additional fines to include all costs of repairs or other corrective action taken by the City of Palm Bay in enforcing its codes and all cost of repairs pursuant to F.S. § 162.09.
(B) In determining the amount of the fine to be imposed, 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;
(3) If the corrective actions taken by the violator were made in good faith;
(4) Any previous violations committed by the violator;
(5) The length of time the violation existed;
(6) Whether the harm resulting from the violation is irreparable or irreversible;
(7) The character of the surrounding neighborhood.
(C) Liens created pursuant to an order by the Special Magistrate and recorded in the public record shall bear simple interest at a rate not to exceed the legal rate allowed for such liens and may be foreclosed pursuant to the procedure set forth in F.S. Chapter 162.
(Ord. 2022-11, passed 1-20-22)
(A) The provisions and procedures contained in this subchapter shall be in addition and supplemental to any other remedies now existing or subsequently provided for by law regarding violations of this Code and any other ordinance of the city.
(B) The City Council may, by resolution, establish uniform schedules to be imposed on code enforcement cases that appear before the Special Magistrate to cover all costs of enforcement.
(Ord. 2022-11, passed 1-20-22)
Any aggrieved party, including the City, may appeal a ruling or order of the Special Magistrate to the circuit court as provided by F.S. § 162.11. 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 must be filed within thirty (30) days of the execution of the order to be appealed.
(Ord. 2022-11, passed 1-20-22)
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