HomeMy WebLinkAboutcocc_ordinance_no_11-2019_201906181 ORDINANCE NO. 11-2019
2
3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
4 OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA;
5 REGARDING CODE ENFORCEMENT PROCEDURES;
6 PROVIDING FOR A SPECIAL MAGISTRATE CODE
7 ENFORCEMENT PROCESS; UPDATING THE
8 PROCEDURES RELATED TO THE CRIMINAL NUISANCE
9 ABATEMENT BOARD AUTHORIZED BY SECTION
10 893.138, FLORIDA STATUTES; ADOPTING CONFORMING
11 AMENDMENTS; PROVIDING FOR THE REPEAL OF
12 PRIOR INCONSISTENT ORDINANCES AND
13 RESOLUTIONS, INCORPORATION INTO THE CODE,
14 SEVERABILITY AND AN EFFECTIVE DATE.
15
16 WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State
17 Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
18 law; and
19
20 WHEREAS, Chapter 162, Florida Statutes (the "Local Government Code Enforcement
21 Boards Act") authorizes municipalities to adopt and utilize several alternate code enforcement
22 systems; and
23
24 WHEREAS, Section 162.03, Florida Statutes expressly permits a municipality, at its
25 option, to create or abolish by ordinance local government code enforcement boards; and
26
27 WHEREAS, Section 162.03 additionally expressly authorizes a municipality to designate
28 special magistrate to conduct code enforcement proceedings and expressly states that a special
29 magistrate shall have the same status as an enforcement board and references in Chapter 162,
30 Florida Statutes to an enforcement board shall include, except in Section 162.05, a special
31 magistrate if the context permits; and
32
33 WHEREAS, in furtherance of the authority granted the City Council pursuant to Chapter
34 162, Florida Statutes, the City Council hereby finds that it is in the best interests of the citizens of
35 Cape Canaveral to adopt an alternate special magistrate code enforcement system and to bestow
36 upon one or more appointed special magistrates jurisdiction to adjudicate any code violations
37 requested by City Code Enforcement Officers under said system or as expressly required by the
38 City Code; and
39
40 NOW, THEREFORE, BE IT ENACTED BY THE CITY COUNCIL OF THE CITY
41 OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AS FOLLOWS:
42
43 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this
44 reference as legislative findings and the intent and purpose of the City Council of the City of Cape
45 Canaveral.
46
47 Section 2. Code Amendment. Chapter 2, Article VI. — Code Enforcement of the Code of
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1 Ordinances, City of Cape Canaveral, Florida, is hereby amended as follows (underlined type
2 indicates additions and strikeout type indicates deletions):
3
4
5 ARTICLE VI. - CODE ENFORCEMENT
6 DIVISION 1. - GENERALLY
7 Sec. 2-246. - Authorization to enter upon property.
8 A code enforcement officer charged with the duty to enforce this article shall have the right
9 to enter upon private real property in accordance with applicable federal and state law. If entry
10 upon private real property is denied, the city manager is hereby authorized to direct the city
11 attorney to obtain an inspection warrant from a court of competent jurisdiction for purposes of
12 authorizing a code enforcement officer to inspect the private real property and personal property
13 thereon.
14 Sec. 2-247 Definitions.
15 The following words, terms and phrases, when used in this article, shall have the meanings
16 ascribed to them in this section, except where the context clearly indicates a different meaning or
17 applicable state law provides a conflicting meaning:
18
19 Code or City Code means collectively the City of Cape Canaveral Code of Ordinances and any
20 statute, code, rule, ordinance or regulation incorporated into the Code by reference.
21
22 Code Enforcement Officer means any authorized agent or employee of the city who has been
23 designated by the city manager to enforce the city' s Code and ordinances.
24
25 Code Enforcement Board means a board created by the city council by resolution pursuant to
26 section 2-256.
27
28 Repeat Violation means a violation of a provision of the Code by a person who has been previously
29 found through a code enforcement board or a special magistrate, to have violated or has admitted
30 violating the same provision of the Code within five (5) years prior to the violation,
31 notwithstanding the violations occur at different locations. A repeat violation can occur only after
32 correction of the previous violation has been made.
33
34 Special Magistrate means an individual designated and determined to be qualified by the city
35 council or city manager pursuant to Section 2-261 of this article.
36
37 Uncorrectable Violation means a violation which is irreparable or irreversible in nature and which
38 cannot be remedied after the violation has been committed because the violation constitutes a
39 single prohibited act rather than an ongoing condition or circumstance.
40
41 Violator means that person or entity responsible for a violation of the Code (the property owner,
42 tenant, or business entity on the premises, or any combination thereof) and may include the
43 property owner on whose property the violation occurs regardless of who commits the violation. A
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1 violator may include, but is not limited to, any person, individual, trustee, associations, joint
2 ventures, partnerships, corporations, trusts, sole proprietorships, and any and all other groups or
3 combinations and legal entities.
4
5 Violation shall mean the act of breaking, infringing or transgressing any provision of the City
6 Code, its ordinances or other law by a person, pursuant to this article.
7
8 Sec. 2-248. Provisions are supplemental; Conflicts with state law.
9
10 (a) Nothing contained in this article shall prohibit the city from enforcing its Code by any
11 lawful means including, but not limited to, a summons, an arrest, a notice to appear, civil action
12 for injunctive relief, a stop work order or demolition. The enforcement procedures outlined in
13 this article are additional and cumulative to all others and shall not be deemed to be prerequisites
14 to filing suit for the enforcement of any section of this Code.
15
16 (b) If any provision of this article conflicts with the provisions of Chapter 162, Florida Statutes,
17 or other applicable state or federal law, the conflicting provision in Chapter 162, Florida Statutes,
18 or other applicable state or federal law shall apply if the state or federal law preempts the
19 conflicting provision of this article.
20
21 Sec. 2-249. Code references to special magistrate or code enforcement board.
22 Wherever there is a reference to only the special magistrate or code enforcement board in the
23 City Code other than contained in this article, the reference to the term special magistrate shall be
24 interchangeable with the term code enforcement board and vice versa to the extent necessary to
25 conduct the hearing requested by the code enforcement officer. It is the intent and purpose of this
26 article and section that code enforcement cases may be brought by code enforcement officers using
27 alternate code enforcement systems authorized by the city council including before a special
28 magistrate or code enforcement board.
29 Sec. 2-250. Duties of code enforcement officers - Generally.
30 Code enforcement officers shall have the duties, responsibilities and powers related to code
31 enforcement as set forth in Chapter 162, Florida Statutes and the City Code including as set forth
32 in this article.
33 Sec. 2-251. - Prosecution of violations with no criminal penalty.
34 Any violation of the City Code which the city elects to prosecute before the code
35 enforcement board or special magistrate shall have no criminal penalty as to said violation.
36 However, this Section shall not be construed to abrogate or repeal any provision of the City Code
37 or applicable state or federal law that expressly imposes a criminal penalty as to said violation and
38 said violation is prosecuted as a criminal infraction in accordance with law.
39
40 Sec. 2-252. Special magistrate and code enforcement board administrative fines; costs of
41 repairs; and filing of liens.
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1
2 �a1 The special magistrate or code enforcement board, upon notification by the code
3 enforcement officer that an order of the special magistrate or code enforcement board
4 has not been complied with by the set time or, upon finding that a repeat violation has
5 been committed, shall conduct a "Massey" compliance hearing after notice of the
6 hearing is provided to the violator by the code enforcement officer. At the compliance
7 hearing, the violator will be afforded an opportunity to be heard on the issue of whether
8 the violator is in compliance with the special magistrate or code enforcement board
9 order, and upon a determination of non-compliance, the special magistrate or code
10 enforcement board shall order the violator to pay a fine in an amount specified in this
11 section for each day the violation continues past the date set by the order for
12 compliance. In addition, if, pursuant to a finding by the special magistrate or code
13 enforcement board, the condition causing the violation presents a serious threat to the
14 public health, safety, and welfare, the city may, at its discretion, make all reasonable
15 repairs that are required to bring the property into compliance and charge against the
16 violator the cost of the repairs along with the fine imposed pursuant to this section. An
17 accounting of the cost of repairs will be presented to the special magistrate or code
18 enforcement board for consideration in such cases. Making such repairs does not
19 create a continuing obligation on the part of the local governing body to make further
20 repairs or to maintain the property and does not create any liability against the city for
21 any damages to the property if such repairs were completed in good faith.
22
23 fill A fine imposed pursuant to this section shall not exceed $250 per day for a first
24 violation, and, shall not exceed $500 per day for a repeat violation, and, in addition,
25 may include all costs of repairs pursuant to subsection (a). The fine for an uncorrectable
26 violation shall not exceed $5,000 per violation.
27
28 Lel In determining the amount of the fine, if any, the special magistrate or code
29 enforcement board shall consider the following factors:
30
31 (1) The gravity of the violation;
32
33 (2) Any actions taken by the violator to correct the violation; and
34
35 (3) Any previous violations committed by the violator.
36
37 OA A special magistrate or code enforcement board may reduce a fine imposed pursuant
38 to this section before an order imposing a fine is recorded as a lien in the public records.
39 After the lien is recorded, the lien shall run in favor of the city council.
40
41 .(_1 A certified copy of an order imposing a fine may be recorded in the public records of
42 the county and thereafter shall constitute a lien against the land on which the violation
43 exists and upon any other real or personal property owned by the violator. Upon petition
44 to the circuit court, the order may be enforced in the same manner as a court judgment
45 by the sheriffs of this state, including levy against the personal property, but such order
46 shall not be deemed to be a court judgment except for enforcement purposes. A fine
47 imposed pursuant to this section shall continue to accrue until the violator comes into
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1 compliance or until judgment is rendered pursuant to this section, whichever occurs
2 first. A lien arising from a fine imposed pursuant to this section runs in favor of the city
3 council and the city manager may execute a satisfaction or release of lien entered
4 pursuant to this section in accordance with the authority granted to the city manager
5 under section 2-260.
6
7 (f) . After three months from the filing of any such lien which remains unpaid, the special
8 magistrate or code enforcement board may authorize the city attorney to foreclose on
9 the lien or to sue to recover a money judgment for the amount of the lien plus any
10 accrued interest. No lien created pursuant to the provisions of this Section may be
11 foreclosed on real property which is a homestead under Section 4, Article X of the State
12 Constitution. The money judgment provisions of this Section shall not apply to real
13 property or personal property which is covered under Section 4(a), Article X of the
14 State Constitution.
15
16 Sec. 2-253. Service of Notice for special magistrate and code enforcement board
17 proceedings.
18
19 All notices required in this article related to special magistrate or code enforcement
20 board proceedings shall be provided to the alleged violator by certified mail, return
21 receipt requested; by hand delivery by the sheriff or law enforcement officer of the city,
22 code enforcement officer, or other person designated by the city council; or by leaving
23 the notice at the violator's usual place of residence with any person residing therein
24 who is above 15 years of age and informing such person of the contents of the notice.
25 In the case of commercial premises, leaving the notice with the manager or other person
26 in charge.
27
28 (b) In addition to providing notice as set forth in subsection (a), at the option of the special
29 magistrate or code enforcement board, notice may also be served by publication or
30 posting as follows:
31
32 f_D Such notice shall be published once during each week for four consecutive
33 weeks, with four publications being sufficient, in a newspaper of general
34 circulation in the city. The newspaper shall meet such requirements as are
35 prescribed under Chapter 50, Florida Statutes, for legal and official
36 advertisements.
37
38 al Proof of publication shall be made as provided in §§ 50.041 and 50.051, Florida
39 Statutes.
40
41 Lal In lieu of publication as described in subsection (1) above, such notice may be
42 posted for at least ten days in at least two locations, one of which shall be the
43 property upon which the violation is alleged to exist and the other of which shall
44 be at city hall. Proof of posting shall be by affidavit of the person posting the
45 notice, which affidavit shall include a copy of the notice posted and the date
46 and places of its posting.
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1
2 Notice by publication or posting may run concurrently with, or may follow, an
3 attempt to provide notice by hand delivery or by mail as required under
4 Subsection (a).
5
6 Lel Evidence that an attempt has been made to hand deliver or mail notice as provided in
7 Subsection (a) together with proof of publication or posting as provided in subsection
8 (b) shall be sufficient to show that the notice requirement, of this part has been met,
9 without regard to whether or not the alleged violator actually received the notice.
10
11 Sec. 2-254. Enforcement procedures.
12
13 (a) Code enforcement officers shall have the authority to initiate code enforcement
14 proceedings as provided in this article. Special magistrates and code enforcement boards
15 shall not have such authority.
16
17 (b) Except as provided herein, a code enforcement officer who finds a violation of the Code
18 shall issue a notice to the violator stating that the violator has committed a violation of the
19 Code. The notice shall specify a reasonable time period within which the violator must
20 correct the violation. This determination shall be based on considerations of fairness;
21 practicability; ease of correction; ability to correct; severity of violation; nature, extent and
22 probability of danger or damage to the public; and other relevant factors relating to the
23 reasonableness of the time period prescribed.
24
25 (c) If, upon personal investigation, a code enforcement officer finds that the violator has not
26 corrected the violation within the time period specified in the notice, the code enforcement
27 officer shall notify the special magistrate or code enforcement board and request a hearing.
28 If the violation is corrected and then recurs or if the violation is not corrected by the time
29 specified for correction by the code enforcement officer, the case may be presented to the
30 special magistrate or code enforcement board even if the violation has been corrected prior
31 to the hearing, and the notice shall so state.
32
33 (d) If a repeat violation is found, the code enforcement officer shall issue a notice to the
34 violator but is not required to give the violator a reasonable time to correct the violation.
35 The code enforcement officer, upon notifying the violator of a repeat violation, shall notify
36 the special magistrate or code enforcement board and request a hearing. The case may be
37 presented to the special magistrate or code enforcement board even if the repeat violation
38 has been corrected prior to the hearing, and the notice shall so state. If the repeat violation
39 has been corrected, the special magistrate or code enforcement board retains the right to
40 schedule a hearing to determine costs and impose the payment of reasonable enforcement
41 fees upon the repeat violator.
42
43 (e) If a code enforcement officer has reason to believe a violation or the condition causing the
44 violation presents a serious threat to the public health, safety and welfare, or if the violation
45 is an uncorrectable violation, the code enforcement officer shall make a reasonable effort
46 to notify the violator and may immediately request a hearing.
47
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1 fa If the owner of property that is subject to an enforcement proceeding before the special
2 magistrate or transfers ownership of such property between the
3 time the initial pleading was served and the time of the hearing, such owner shall:
4
5 (1) Disclose, in writing, the existence and the nature of the proceeding to the prospective
6 transferee.
7
8 (2) Deliver to the prospective transferee a copy of the pleadings, notices, and other
9 materials relating to the code enforcement proceeding received by the transferor.
10
11 (3) Disclose, in writing, to the prospective transferee that the new owner will be
12 responsible for compliance with the applicable Code provision and with orders issued
13 in the code enforcement proceeding.
14
15 (4) File a notice with the special magistrate or code enforcement board of the transfer of
16 the property, with the identity and address of the new owner and copies of the
17 disclosures made to the new owner, within 5 days after the date of the transfer.
18 A failure to make the disclosures described in subsections (1), (2) and (3) before the transfer
19 creates a rebuttable presumption of fraud. If the property is transferred before the hearing,
20 the proceeding shall not be dismissed, but the new owner shall be provided a reasonable
21 period of time to correct the violation before the hearing is held.
22 (g) Nothing herein shall prohibit a violator from waiving his or her rights to the hearing
23 required by this section and entering into a pre -hearing code enforcement settlement
24 agreement, which must be memorialized in writing and executed by the violator and city
25 manager. Such agreements may include terms and conditions to bring the violation into
26 compliance, impose and require payment of an agreed upon penalty and reimbursement of
27 costs incurred by the city related to the violation, and other terms and conditions deemed
28 necessary to settle the violation.
29 Sec. 2-255. Scheduling and conduct of hearing.
30
31 01 Upon request of the code enforcement officer, or at such other times as may be necessary,
32 a special magistrate or code enforcement board may call a hearing. Minutes shall be kept
33 of all hearings by each special magistrate or code enforcement board, and all hearings and
34 proceedings shall be open to the public. The city manager shall provide clerical and
35 administrative personnel as may be reasonably required by each special magistrate or code
36 enforcement board for the proper performance of his or her duties. The city manager shall
37 designate a city staff person to serve as clerk to the special magistrates or code
38 enforcement board.
39
40 (b) The clerk or their designee shall send a notice of hearing in the same manner of service as
41 outlined in Section 2-264.
42
43 (c) The clerk or their designee shall call hearings on a monthly basis or upon the request of the
44 special magistrate or code enforcement board. Except as provided herein, a hearing date
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1 shall not be postponed or continued unless a request for a continuance, showing good cause
2 for a continuance, is received in writing by the special magistrate or code enforcement
3 board at least ten (10) calendar days prior to the date set for hearing.
4
5 (d) A special magistrate or code enforcement board shall postpone a hearing if the named
6 violator, prior to the scheduled hearing date, files with the duly authorized city board or
7 official of appropriate jurisdiction, if any, an administrative appeal concerning the
8 interpretation or application of the Code provisions upon which the alleged violation was
9 based. However, once an issue has been determined by a special magistrate or code
10 enforcement board in a specific case, that issue may not be further reviewed by a city board
11 or official in that specific case.
12
13 (e) Each case before a special magistrate or code enforcement board shall be presented by a
14 code enforcement officer or by a duly authorized representative of the city. If the city
15 prevails in prosecuting a case before the special magistrate or code enforcement board, it
16 shall be entitled to recover all costs incurred in prosecuting the case before the special
17 magistrate or code enforcement board and such costs may be included in the lien authorized
18 under Section 2-266.
19
20 Lf A special magistrate or code enforcement board shall proceed to hear the cases on the
21 agenda for that day. All testimony shall be under oath and shall be recorded. At the hearing,
22 the burden of proof shall be upon the City to show, by a preponderance of the evidence,
23 that a violation does exist. The special magistrate or code enforcement board shall take
24 testimony from the code enforcement officer and alleged violator, as well as any relevant
25 witnesses. Relevant written evidence and documentation may also be submitted into the
26 record. Irrelevant, immaterial or unduly repetitious evidence shall be excluded, but all
27 other evidence of a type commonly relied upon by reasonably prudent persons in the
28 conduct of their affairs shall be admissible, whether or not such evidence would be
29 admissible in a trial in the courts of the State of Florida. Formal rules of evidence shall not
30 apply, but fundamental due process shall be observed and shall govern the proceedings.
31 The special magistrate or code enforcement board may exercise reasonable discretion in
32 managing the hearing agenda and may continue or reschedule cases to the extent
33 reasonably necessary to afford due process, address continuances for good cause shown,
34 or effectively manage the case load.
35
36 (g) At the conclusion of the hearing, the special magistrate or code enforcement board shall
37 issue findings of fact, based on evidence of record and conclusions of law, and shall issue
38 an order affording the proper relief consistent with powers granted herein and in Chapter
39 162, Part I, Florida Statutes. The order shall be announced orally at the hearing and shall
40 be reduced to writing and mailed by regular U.S. mail to the alleged violator. The order
41 may include a notice that it must be complied with by a specified date and that a fine may
42 be imposed and, under the conditions specified in Section 2-266 the cost of repairs may be
43 included along with the fine if the order is not complied with by said date. A certified copy
44 of such order may be recorded in the public records of the county and shall constitute notice
45 to any subsequent purchasers, successors in interest, or assigns if the violation concerns
46 real property, and the findings therein shall be binding upon the violator and, if the violation
47 concerns real property, any subsequent purchasers, successors in interest, or assigns. If an
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1 order is entered by the special magistrate or code enforcement board pursuant to this
2 subsection and the order is complied with by the date specified in the order, the special
3 magistrate or code enforcement board shall issue an order acknowledging compliance and
4 if the original order was recorded in the public records, the order acknowledging
5 compliance shall likewise be recorded in the public records. A hearing is not required to
6 issue such an order acknowledging compliance with the original order.
7
8 Sec. 2-255.1 Appeal of Special Magistrate or Code Enforcement Board order.
9
10 An aggrieved party, including the city, may appeal a final order of a special magistrate or
11 code enforcement board to the circuit court. Such an appeal shall not be a hearing de novo, but
12 shall be limited to appellate review of the record created before the special magistrate or code
13 enforcement board. An appeal shall be filed within 30 calendar days of the issuance of the order
14 sought to be overturned. Failure to make such appeal within the prescribed 30 -day period shall
15 render the findings of the special magistrate or code enforcement board conclusive, binding and
16 final.
17
18 Sec. 2-255.2 Additional enforcement powers.
19
20 In addition to the powers and authority given to the special magistrate or code enforcement
21 board for the city pursuant to this division, the city may, in its discretion, exercise any powers
22 given to municipalities or their special magistrate or code enforcement board by Chapter 162,
23 Florida Statutes, as amended.
24
25 DIVISION 2. - CODE ENFORCEMENT BOARD
26 Sec. 2-256. - Created.
27 A code enforcement board is hereby may be established by the city council, upon adoption of
28 a resolution, pursuant to the authority granted by Chapter 162, Florida Statutes F.S. ch. 162, or any
29 successor statute. If a code enforcement board is established by the city council, the provisions of
30 this division shall apply.
31 Sec. 2-257. - Membership.
32 The city council shall appoint members of the code enforcement board in accordance with the
33 terms of Chapter 162, Florida Statutes F.S. § 162.05, or any successor statute.
34 Sec. 2-258. — Code board proceedings; Duties, responsibilities and powers.
35 The code enforcement board shall have duties, responsibilities and powers as set forth, and
36 shall be governed in all respects, by the provisions of Chapter 162, Florida Statutes and division 1
37 of this article by F.S. ch. 162, or any successor statute, and shall have the power to hear appeals as
38 otherwise set forth in the Ceity Code of Ordinances.
39 Sec.2-259.
Administrative Rules.
40 The code enforcement board may adopt administrative rules for the efficient conduct of
41 hearings consistent with the city code and other applicable law. Said rules shall be in a form
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1 approved by the city attorney. Any violation of the city Code of Ordinances which the city elects
2 to prosecute before the code enforcement board shall have no criminal penalty as to said violation.
3 DIVISION 3. — CODE LIEN SATISFACTIONS
4 Sec. 2-260. - Application for satisfaction, release, or reduction, of code enforcement liens.
5 (a) Where a certified copy of an order imposing a penalty or fine, as described in F.S. ch. 162,
6 has been recorded in the public records of Brevard County, Florida, and has become a lien
7 against the land and/or property of the violator, such violator, or the violator's successors
8 and assigns who has an ownership interest in the property, (collectively, the "applicant")
9 may apply for a satisfaction, release, or reduction of such lien as follows:
10 (1) Lien satisfaction. Upon full payment by the applicant of the fine or penalty imposed in
11 accordance with this division, the city manager is hereby authorized to execute and record
12 in the public records of Brevard County, Florida, a satisfaction of lien on behalf of the City.
13 The applicant shall be responsible for paying all costs of recording. Lien satisfaction
14 requests do not require a full application required by subsection (b) of this section because
15 the applicant is paying the full amount of the fine or penalty due the City.
16 (2) Lien release or reduction. Upon request for a release or reduction of a fine or penalty
17 imposed in accordance with this division, the applicant shall submit a written application to
18 the city manager or designee, in accordance with this section.
19 (b) Application. The application for release or reduction of lien shall be in written form, typed
20 or handwritten, by the applicant and shall be submitted to the city manager, or designee.
21 The application shall be executed under oath and sworn to in the presence of a notary public,
22 and shall include, but may not be limited to, the following:
23 (1) A copy of the order imposing a lien upon the property including the code enforcement case
24 number;
25 (2) The date upon which the applicant brought the subject property into compliance with the
26 City Code;
27 (3) The basis upon which the applicant believes the application for release or reduction of lien
28 should be granted;
29 (4) The terms upon which the release or reduction of lien should be granted;
30 (5) The reasons, if any, compliance was not obtained prior to the order of penalty or fine being
31 recorded;
32 (6) The reduction in penalty or fine sought by the applicant;
33 (7) A statement verifying whether the applicant was issued any title policy or policies for the
34 subject property encumbered by the lien after the date the lien was recorded in the public
35 records of Brevard County, Florida. If such a policy or policies were issued to the applicant,
36 a copy of any such title policy shall be submitted with the application;
37 (8) Any other information which the applicant deems pertinent to the request, including but not
38 limited to the circumstances that exist which would warrant the reduction or satisfaction of
39 the penalty or fine.
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1 (c) Reimbursement to city for recording costs at time of application. The applicant shall submit,
2 at the time of application, an application fee established by the city to defray some or all of
3 the city's costs of processing the application including, but not limited to, personnel, legal,
4 and costs associated with recording the order imposing a penalty or fine and the requested
5 release or reduction of lien. These costs are nonrefundable, without regard for the final
6 disposition of the application.
7 (d) Application review. Upon receipt of the application and payment provided above, the code
8 enforcement division shall confirm that the violation, which resulted in the order imposing
9 penalty or fine, has been corrected. If the violation has been corrected and there are no
10 current code violation(s) upon the property in question, the code enforcement division shall
11 place the application and a staff recommendation upon the agenda of the next meeting of
12 the city council code enforcement board for the City of Cape Canaveral for a hearing.
13 (e) At the hearing before the city council code enforcement board, the board city council shall
14 review and consider the application for reduction or release of lien, provide the violator with
15 an opportunity to address the board regarding the application for reduction or release of lien,
16 and to take the testimony of other interested parties, including but not limited to city staff.
17 Upon review of the application and any testimony presented, the city council code enforcement
18 board shall by motion or writing approve, approve with conditions, or deny the application
19 for reduction or release of lien.
20 Whenever a recommendation or decision is made under this section, the following factors shall
21 be applied by the city in determining the amount of any reduction or release:
22 (1) The amount of any administrative and out-of-pocket costs incurred by the city which are
23 directly associated with the underlying code enforcement case and lien including, but not
24 limited to, code enforcement staff and attorney time, postage, advertising and recording
25 costs, and other city expenses related to any measure taken by the code board or city to abate
26 a nuisance caused by the violation;
27 (2) The gravity and number of the violation(s);
28 (3) The amount of the requested reduction;
29 (4) The time in which it took to bring the property into compliance;
30 (5) Whether the applicant was responsible for the violation which caused the lien;
31 (6) Whether the applicant is or will be a bona fide purchaser of the subject property and is filing
32 or has filed for a homestead exemption evidencing a desire to reside within the city on a
33 non -transient basis, or whether the property is or will be acquired for investment or other
34 purposes;
35 (7) Whether the applicant acquired the subject property with knowledge of the subject lien or
36 should have knowledge of the lien through reasonable due diligence;
37 (8) The accrued amount of the code enforcement fine or lien as compared to the current market
38 value of the property;
39 (9) With respect to a speculator, non -homestead purchaser of the subject property, the accrued
40 amount of the code enforcement fine or lien as compared to the investment/profit that will
41 be gained as a result of the purchase or sale of the property and the reduction or satisfaction;
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1 (10) Any previous or subsequent violations pertaining to the property unless an order finding
2 a violation is under appeal at the time of determination;
3 (11) Any previous or subsequent violations of the applicant pertaining to the other properties
4 owned within city, unless an order finding a violation is under appeal at the time of
5 determination;
6 (12) Any relevant information contained in any title policy required to be submitted to the city
7 under this section;
8 (13) Any financial hardship;
9 (14) Any other mitigating circumstance which may warrant the reduction or satisfaction of the
10 penalty or fine; and
11 (15) Any other administrative review criteria relevant to whether it is equitable to reduce or
12 release a lien which are adopted by the city manager, in writing, and are intended to be
13 applied to all applications on a uniform basis.
14 (f) To the maximum extent feasible, the city council code enforcement board shall collect, at a
15 minimum, all administrative and out-of-pocket costs incurred by the city as specified in
16 subsection (e)(1). If the city council code enforcement board approves the application to
17 reduce or release the lien and the approval is conditioned upon the applicant paying a
18 reduced penalty, fine, or any other condition, the satisfaction or release of lien shall not be
19 prepared or recorded in the public records of Brevard County, Florida by the city manager
20 until the condition(s) imposed by the city council code enforcement board have been
21 satisfied.
22 (g) Compliance and right of appeal. The applicant shall have 30 days in which to comply with
23 the conditions imposed by the city council unless otherwise approved by the city council in
24 a written agreement with the applicant. code enforcement board or submit a written appeal
25 as provided herein. Failure of the applicant to comply or timely appeal will result in the
26 automatic denial of the application.
27 (1) If the application is denied, or if the application is automatically denied due to the failure
28 of the applicant to comply with the conditions imposed by the city council code enforcement
29 board or timely appeal, the applicant shall thereafter be barred from applying for a
30 subsequent reduction or release of lien for a period of one year from the date of denial.
31 During the one-year period, the lien may only be satisfied and released upon full payment
32 of the fine or penalty imposed in accordance with this division.
33 (2)
34
35
36
37
38
39
40
41
42
43
•
•
filing a written appeal within ten days of the datc of the decision with the city clerk. The
accompany the notice of appeal. Upon submittal of a timely appeal, the city manager shall
The city council shall render a final decision on
the application based upon the sworn application, the code enforcement board determination
and any other relevant information or testimony provided to the city council at the meeting
by the applicant, city manager or any other interested party. Any decision made by the city
council pursuant to this section shall be deemed final and not subject to any further
City of Cape Canaveral
Ordinance No. 11-2019
Page 12 of 33
1 administrative review by the city. The applicant shall have 30 days, or such time period
2 determined by the city council in a written agreement, in which to comply with any decision
3 of or condition imposed by the city council or the application shall be deemed automatically
4 denied and thereafter, the applicant shall be barred from applying for a subsequent reduction
5 or release of lien for a period of one year from the date of the city council's decision. During
6 the one-year period, the lien may only be satisfied and released upon full payment of the
7 fine or penalty imposed in accordance with this division.
8 (3) When a lien is satisfied as a result of reduced payment or release as ordered by the city
9 council, the city manager is hereby authorized to execute and record in the public records
10 of Brevard County, Florida, a satisfaction of lien on behalf of the city.
11 (h) Partial release of liens; liens recorded in error. Under appropriate circumstances
12 determined by the code enforcement board or city council to be in the best interests of the
13 city, the code enforcement board or city council may approve an application conditioned
14 upon a partial release of lien that releases a city lien from a specific piece of property.
15 However, the lien will remain in effect and will encumber any other properties which are
16 subject to the lien pursuant to law. Partial releases of lien may also be authorized by the
17 code enforcement board or city council to account for any funds paid to the city to reduce
18 the amount owned owed on the lien. In addition, nothing herein shall prohibit the city
19 manager from releasing a lien, in whole or part, that was recorded in error by the city. An
20 application shall not be required to release a lien recorded in error.
21 (i) The provisions of this division shall be deemed supplemental and in addition to the city
22 council's right, at its discretion, to collect a lien imposed by the City and to compel or bring
23 properties into compliance with the City Code by any other lawful means deemed
24 reasonably necessary by the city council.
25 DIVISION 4. — SPECIAL MAGISTRATE
26 Sec. 2-261. Special Magistrates.
27
28 (a) The city council or city manager may appoint one (1) or more special magistrates to hear
29 code enforcement cases. The primary special magistrate shall be appointed by the city council.
30 However, the city manager shall have the authority to appoint secondary and alternate special
31 magistrates on an as needed basis in situations when the primary special magistrate has a conflict
32 of any kind: is unavailable on account of illness, disability or death; or the city's case load
33 temporarily requires an additional special magistrate to handle cases in a timely manner.
34 Appointments shall be made in the sole discretion of the city council or the city manager, as the
35 case may be, in accordance with applicable law on the basis of experience or interest in the subject
36 matter jurisdiction of the violations.
37
38 (b) At such time the City Council appoints an initial special magistrate after June 17, 2019 in
39 accordance with this Section, the then existing City of Cape Canaveral Code Enforcement Board
40 shall be deemed abolished upon the effective date of such appointment, subject to the future
41 reinstatement and reassignment of cases to the City of Cape Canaveral Code Enforcement Board
42 by the City Council pursuant to Section 2-256, City Code. All cases pending before the City of
43 City of Cape Canaveral Code Enforcement Board on the effective date of any such abolishment
44 shall be transferred to the special magistrate(s) designated by this Section. Further, if a special
45 magistrate(s) is established and thereafter abolished, all cases pending before the special
City of Cape Canaveral
Ordinance No. 11-2019
Page 13 of 33
1 magistrate(s) shall be reassigned to City of Cape Canaveral Code Enforcement Board in
2 accordance with the direction given by the City Council.
3
4 (c) Special magistrates may be abolished, suspended, removed or terminated with or without
5 cause by the council. Appointments to fill any vacancy shall be for the remainder of the unexpired
6 term.
7
8 (d) Special magistrates shall be members of the Florida Bar in good standing for five or more
9 years. The special magistrate must demonstrate satisfactory knowledge of municipal law and the
10 general procedures for enforcement of municipal codes, and must demonstrate a temperament
11 suitable for the exercise of quasi-judicial powers vested in each special magistrate. Special
12 magistrates shall not be city employees or officers. The city manager shall be responsible for
13 negotiating and executing a contract on behalf of the City with the special magistrate and the
14 special magistrate may be compensated at a rate to be agreed upon in the contract. The contract
15 will be in a form prepared and approved by the city attorney.
16
17 (e) The city attorney may attend the code enforcement hearings conducted by the special
18 magistrate and represent city staff in the presentation of cases, or the code enforcement officer
19 may present cases, at the option of the city manager depending upon the substance and
20 complexities of any given case. To the extent necessary and consistent with the city's interests to
21 ensure compliance with City Codes, the city attorney will defend final orders of the special
22 magistrate which are appealed by violators 'to a court of competent jurisdiction.
23
24 Sec. 2-262. Powers of Special Magistrates.
25
26 Special magistrates shall have the power to:
27
28 (a) Hear and decide violations of the Code.
29 (b) Adopt administrative rules for the efficient conduct of hearings consistent with the city
30 code and other applicable law. Said rules shall be in a form approved by the city attorney.
31 (c) Subpoena alleged violators and witnesses for hearings., subpoenas shall be served by the
32 county sheriff, process server or by the city staff.
33 (d) Subpoena evidence deemed relevant to hearings.
34 (e) Take testimony under oath.
35 (f) Assess and order the payment of civil penalties as provided herein.
36 (g) Issue orders having the force of law to command whatever steps are necessary to bring a
37 violation into compliance.
38 (h) Have jurisdiction to consider and address orders previously entered by the city code
39 enforcement board.
40
41 Sec. 2-263. — Special Magistrate proceedings; Duties, responsibilities and powers.
42 The special magistrate shall have duties, responsibilities and powers as set forth, and shall be
43 governed in all respects, by the provisions of Chapter 162, Florida Statutes, this division, and
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Ordinance No. 11-2019
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1 division 1 of this article, and shall have the power to hear appeals as otherwise set forth in the city
2 Code of Ordinances.
3
4 Secs. 2-2644-2 279. - Reserved.
5 DIVISION 5. - CODE ENFORCEMENT CITATIONS
6 Sec. 2-280. - Intent and purpose.
7 (a) It is the intent and purpose of this division to provide a supplemental procedure for the
8 enforcement of city codes and ordinances. Nothing contained in this division shall prohibit
9 the city from enforcing its Code and ordinances by any other lawful means.
10 (b) It is also the intent and purpose of this division to enhance the effectiveness of code
11 enforcement within the city by authorizing the enforcement methods and penalties contained
12 in this division for the betterment and promotion of the public health, safety, and welfare of
13 the citizens of the city.
14 Sec. 2-281. – Reserved. Definitions,
15 The following words and phrases shall have the meaning ascribed herein unless the context
16 clearly indicates otherwise:
17
18
19
20
21
22
(a) Code enforcement officer shall mean city manager designated employees or agents whose
but are not limited to, code inspectors, building inspectors, the building official, law
city council and/or city manager. All such officers employed by the city shall receive training
as prescribed by the city council and/or city manager.
23 (b) Person shall mean any individual, associations, joint ventures, partnerships, corpo atiei s
24 trusts, sole proprietorships, and any and all other groups or combinations and legal entities.
25 (c) Repeat violation shall be as defined by F.S. ch. 162, and as may be amended from time to
26 time.
27 (d) Violation shall m the act of breaking, infringing or transgressing any provision of the
28 City Code, its ordinances or other law by a person, pursuant to this division.
29 Sec. 2-282. - Authorization of citation program.
30 (a) The city hereby adopts a code enforcement citation system to provide an additional and
31 supplemental method of enforcing the enumerated codes and ordinances enumerated in
32 section 2-283 or specifically made subject to this division elsewhere in the City Code. The
33 enforcement method shall be by the issuance of citations for violation of duly enacted city
34 codes and ordinances in accordance with the rules and procedures established by this division
35 and F.S. Ch. 162.
36 (b) Code enforcement officers shall not have the power of arrest for purposes of bringing a
37 violation in compliance. For each violation, the code enforcement officer shall determine,
38 using reasonable discretion, whether to prosecute the violation through the civil citation
39 system under this division and/or the code enforcement board or special magistrate.
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Ordinance No. 11-2019
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1 Sec. 2-283. - Applicable codes and ordinances; class violation.
2 (a) The following city codes and ordinances may be enforced by civil citation to the Brevard
3 County Court, and are assigned the violation classification enumerated below:
4 (1) Chapter 38, article IV, Fireworks Class II.
5 (2) Chapter 34, article II, Litter Class I.
6 (3) Chapter 34, article III, Property Maintenance Standards Class I.
7 (4) Chapter 34, article V, Noise Class I.
8 (5) Chapter 34, article VII, Lights Class I.
9 (6) Section 14-3, Bees and beehives prohibited Class I.
10 (7) Chapter 14, article III, Sea Turtles Class I.
11 (8) Section 110-467, Garage sales Class I.
12 (9) Section 110-582, Swimming pool barriers Class II.
13 (10) Chapter 62, Solid waste Class I.
14 (11) Section 110-487, Rental restrictions on dwelling units Class IV.
15 (12) Chapter 82, article XIV, Numbering of Buildings and Property Class I.
16 (13) Chapter 82, article V, Registration and Maintenance of Properties in Foreclosure
17 Class IV.
18 (14) Section 94-6, Prohibited signs and features Class I.
19 (15) Chapter 90, article V, construction site stormwater runoff control Class II.
20 (16) Chapter 92, Fertilizer Land Application Class I.
21 (17) Chapter 6, article III, Possession and Consumption Class I.
22 (18) Chapter 50, section 50-4, Sleeping and Camping in Public Areas and Beaches Class
23 I.
24 (b) In the event of a conflict between the civil penalties enumerated in this section and a civil
25 penalty specifically enumerated elsewhere in this Code or other ordinances, the more stringent
26 penalty shall apply.
27 Sec. 2-284. - Training of code enforcement officers.
28 (a) The training and qualifications of the code enforcement officers shall be established by the
29 city council or city manager.
30 (b) Except for sworn law enforcement officers, the designation of code enforcement officers
31 under this division does not confer the power of arrest or other law enforcement powers nor
32 subject the code enforcement officers to the provisions of F.S. Ch. 943.
33 Sec. 2-285. - Citation powers; personal investigation; reasonable cause.
34 Any code enforcement officer is hereby authorized to issue a citation to a person when, based
35 upon personal investigation, the officer has reasonable cause to believe that the person has
City of Cape Canaveral
Ordinance No. 11-2019
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1 committed a civil infraction in violation of the duly enacted code or ordinance which is either
2 identified in section 2-283 of this division or specifically made subject to this division elsewhere
3 in the City Code, regardless of whether the violation constitutes a repeat violation. Nothing in this
4 section shall prohibit the city from enforcing its codes or ordinances by any other means.
5 Sec. 2-286. - Violation; penalties; general.
6 (a) A violation of a city code or ordinance specifically made subject to this division is hereby
7 deemed a civil infraction.
8 (b) Each violation of a city code or ordinance specifically made subject to this division is a
9 separate civil infraction. Each day such violation shall continue shall be deemed to constitute
10 a separate civil infraction.
11 (c) The maximum civil penalty pursuant to this division, shall not exceed $500.00 plus all
12 applicable court costs and legislative assessments, per violation.
13 (d) Any citation issued pursuant to this article may be contested in county court.
14 (e) Any person who willfully refuses to sign and accept a citation issued by a code enforcement
15 officer shall be guilty of a misdemeanor of the second degree, punishable as provided in F.S.
16 §§ 775.082 and 775.083.
17 (f) The provisions of this part shall not apply to enforcement pursuant to sections 553.79 and
18 553.80 of the Florida Building Code, as applied to construction, provided that a building
19 permit is either not required or has been issued by the city.
20 Sec. 2-287. - Citation issuance procedure.
21 All citations issued pursuant to this division by a code enforcement officer shall be in
22 accordance with the following procedure:
23 (a) Warning notice. Except as provided in subsection (b), a code enforcement officer shall
24 provide a warning notice prior to issuing a citation. The warning notice shall at a minimum
25 provide the following:
26 (1) The code or ordinance provision violated;
27 (2) The date of the issuance of the warning notice;
28 (3) Specified time for compliance (the time period for compliance shall not exceed 30
29 days);
30 (4) Maximum amount of fine if violation is not corrected;
31 (5) Code enforcement officer's signature; and
32 (6) A place for the signature of the person receiving the warning.
33 If upon personal investigation, the code enforcement officer finds that the person has not corrected
34 the violation within the time period, the code enforcement officer may issue a citation to the person
35 who has committed the violation. The citation shall be in a form proscribed in section 2-288.
36 (b) Repeat violation, serious threat to public, or irreparable. A code enforcement officer is not
37 required to provide the person with a reasonable time period to correct the violation prior to
38 the issuance of a citation and may immediately issue a citation if a violation is found or if the
City of Cape Canaveral
Ordinance No. 11-2019
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1 code enforcement officer has reason to believe that the violation presents a serious threat to
2 the public health, safety or welfare, or if the violation is irreparable or irreversible.
3 (c) Delivery of citations. After issuing a citation to a person, the code enforcement officer shall:
4 (1) Deposit the original citation and one copy of the citation with the clerk of court for the
5 Brevard County Court.
6 (2) Provide the person cited with one copy; and
7 (3) Retain one copy in the code enforcement officer's case file.
8 (d) Issuing citations to persons. Written warning notices, if applicable, and citations shall be
9 issued to a person as follows:
10 (1) If the person is an individual, the code enforcement officer shall issue the warning notice
11 or citation to the person by hand delivery. In the absence of the person who has committed
12 the violation, issuance of a warning notice or citation may be accomplished by leaving a
13 copy of the warning notice or citation at a person's usual place of residence with any
14 person residing therein who is 15 years of age or older and informing the person of the
15 contents or forwarding a copy of the warning notice or citation by registered or certified
16 mail, return receipt requested.
17 (2) If the person is a business or other entity, the code enforcement officer shall issue the
18 warning notice or citation to any employee or principal of the entity, during regular
19 business hours, and inform the employee or principal of the contents or by forwarding a
20 copy of the warning notice or citation by registered or certified mail, return receipt
21 requested. Each employee of the business or principal shall be deemed to be an agent of
22 the business for service of warning notices and citations.
23 (e) Person required to sign citation. Except in the absence of the person who has committed the
24 violation, a code enforcement officer shall require the person to sign and accept a citation
25 being issued. If the person refuses to sign and accept the citation, the code enforcement officer
26 shall write the words "refused to sign" or any other words of similar meaning in the space
27 provided in the citation for the person's signature and shall leave a copy of the citation with
28 the person if possible, or mail a copy to the person, if possible, by registered or certified mail,
29 return receipt requested. Following such refusal to sign and accept, the code enforcement
30 officer shall also contact the city police depai tment or sheriff to report such violation of section
31 2-286(e) and F.S. § 162.21(6).
32 Sec. 2-288. - Citation form.
33 Unless a uniform code citation is promulgated by administrative order issued by the chief
34 judge of the 18th judicial circuit or state statute, the citation issued by a code enforcement officer
35 shall be in a form prescribed by the city council by resolution, and shall contain at a minimum the
36 following:
37 (a) The date and time of issuance;
38 (b) The name and address of the person to whom the citation is issued;
39 (c) The date and time the civil infraction was committed;
40 (d) The facts constituting reasonable cause;
City of Cape Canaveral
Ordinance No. 11-2019
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1 (e) The number or section of the code or ordinance violated;
2 (f) The name and authority of the code enforcement officer;
3 (g) The procedure for the person to follow in order to pay the civil penalty or to contest the
4 citation;
5 (h) The applicable civil penalty if the person elects to contest the citation;
6 (i) The applicable civil penalty if the person elects not to contest the citation; and
7 (j) A conspicuous statement that if the person fails to pay the civil penalty within the time
8 allowed, or fails to appear in court to contest the citation, the person shall be deemed to
9 have waived his or her right to contest the citation and that, in such case, judgment may
10 be entered against the person for an amount up to the maximum civil penalty.
11 Sec. 2-289. - Payment of penalty; court hearings.
12 (a) Citation not contested. If the person elects not to contest the citation, the person shall pay in
13 full the applicable civil penalty, made payable by cash or check to the city and delivered to
14 the city manager, within 14 calendar days after issuance of the citation. The civil penalty shall
15 be deposited in the city's general fund. By paying the citation, the person shall be deemed to
16 have admitted the infraction and waived the right to a hearing. The city manager shall instruct
17 the code enforcement officer who issued the citation to promptly notify, in writing, the clerk
18 of the court for the county court that the person elected not to contest the citation and the
19 matter involving the particular paid citation has been closed and requires no hearing before
20 the court.
21 (b) Failure to pay citation and request court hearing. If the person cited fails to pay the civil
22 penalty by the 14th calendar day after the issuance of the citation or fails to request a court
23 hearing within the time prescribed in subsection (c), the person shall have waived any right to
24 contest the citation and a judgment shall be entered against the person cited in an amount up
25 to the maximum civil penalty plus applicable court costs. In addition, an order to show cause
26 may be issued by the county judge requiring the person cited to appear in county court to
27 explain the person's failure to pay or request a court hearing. Failure to respond to an order to
28 show cause may result in issuance of an arrest warrant or other lawful action by the court.
29 (c) Citation contested. If the person elects to contest the citation, the person shall, within 21
30 calendar days of issuance of the citation, request, in writing, the clerk of the court for the
31 county court to schedule a hearing before a county judge. The person shall immediately notify
32 the city of the request for hearing by U.S. mail or hand delivery to the city manager. Said
33 hearing shall be scheduled as soon as the court calendar shall permit.
34 (d) Judicial determination of violation and penalties; civil judgments; payment of civil
35 judgment.
36 (1) A county judge, after a hearing on the citation, shall make a determination whether or
37 not a violation of the code or ordinance cited has been committed. If a violation is found
38 to have occurred, the county judge may order the violator to correct the violation and may
39 impose a civil penalty up to the maximum civil penalty plus all applicable costs of
40 prosecution and legislative assessments, plus applicable court costs; in no event, however,
41 shall such civil penalty imposed by the county judge be less than the reduced civil penalty
42 set forth herein.
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1 (2) The county judge may provide for the civil penalty to be paid, and the violation to be
2 corrected, within such time as the county judge determines to be appropriate. If the person
3 found to be in violation fails to pay the civil penalty or correct the violation within the
4 time provided, a civil judgment shall be entered against that person in an amount up to
5 the maximum civil penalty plus applicable court costs.
6 (3) Should the person cited schedule a hearing as provided for herein and thereafter fail to
7 appear at such hearing, the person shall be deemed to have waived the right to contest the
8 citation, and a civil judgment shall be entered against the person in an amount up to the
9 maximum civil penalty plus applicable court costs; provided, however, that the court shall
10 have the discretion to continue or reschedule any hearing when it determines that doing
11 so will further the interest of justice. In such an event, the clerk of the court shall notify
12 the code enforcement officer and the person cited of the date and time of the hearing. In
13 addition, an order to show cause may be issued by the county judge requiring the person
14 cited to appear in county court to explain the person's failure to appear at the hearing.
15 Failure to respond to the order to show cause may result in issuance of an arrest warrant.
16 (4) Should the person cited willfully fail to comply with a court order to abate or correct
17 the violation, the court, after due notice and hearing on the matter, may hold the violator
18 in civil contempt and may enter an order to that effect.
19 (5) In the event that a civil judgment is entered against the person cited as provided herein,
20 the city may record a certified copy of said judgment in the official records of the county
21 and the same shall thereafter constitute a lien against the land on which the violation
22 exists and upon any other real or personal property owned by the violator.
23 (6) In the event that an order is entered finding that a violation of the ordinance cited has
24 been committed, the city may record a certified copy of said order in the official records
25 of the county and the same shall thereafter constitute notice to and be binding upon the
26 violator and any subsequent purchasers, successors in interest or assigns if the violation
27 concerns real property, and the findings therein shall be binding upon the violator and
28 any subsequent purchasers, successors in interest or assigns if the violation concerns real
29 property.
30 (7) Payment -of any civil penalty imposed by civil judgment or county judge shall be made
31 to the clerk of the court, who shall forward the monies collected to the city manager for
32 deposit into the city's general fund. If a judgment has been entered for the civil penalty,
33 the clerk of the court shall notify the city when the judgment has been paid and the
34 necessary satisfaction of judgment shall be prepared and recorded in the official records
35 of the county.
36 (8) Should the provisions of this section conflict with any administrative order issued by
37 the court which sets forth the court's procedures required for handling code enforcement
38 citations, the conflicting provisions of the court's administrative order shall prevail.
39
40 A code enforcement officer charged with the duty to enforee-this-divisie�r�we eight
41 to enter upon private real property in accordance with applicable federal and state law. If entry
42 ... - - -. -. - - . _ •- - - - -
43 attorney to obtain an inspection warrant from a court of competent jurisdiction for purposes of
City of Cape Canaveral
Ordinance No. 11-2019
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1
2
3 Sec. 2-291. - Classes of violations and penalties.
4 (a) All violations of city codes and ordinances authorized for enforcement under this division
5 shall be classified and assigned civil penalties as follows:
Violation
Civil Penalty
Class I
$100.00
Class II
200.00
Class III
300.00
Class IV
500.00
6
7 (b) Any city code or ordinance enacted subsequent to the adoption of this division may set forth
8 the applicable civil penalty for violations by designating the appropriate violation
9 classification provided in this section.
10 (c) All city code or ordinance provisions which are subject to this division and which do not
11 specifically set forth an applicable civil penalty classification shall be penalized as a class I
12 violation.
13 DIVISION 6 4. - CRIMINAL NUISANCE ABATEMENT BOARD
14 Sec. 2-292. - Purpose and intent.
15 Pursuant to the city's authority established in F.S. § 893.138, the purpose of this division is to
16 promote, protect and improve the health, safety, welfare and quality of life of the citizens of the
17 City of Cape Canaveral by creating an administrative board with the authority to impose
18 administrative fines and other noncriminal penalties in order to provide an equitable, expeditious,
19 effective, and inexpensive method of enforcing the City Code under circumstances when a pending
20 or repeated violation continues to exist.
21 It is the intent of this division to provide the city with an additional and supplemental means
22 to abate drug, prostitution, dealing in stolen property, and criminal street gang activities amounting
23 to a public nuisance. Nothing contained herein shall preclude the city from abating nuisances under
24 F.S. § 60.05 or as otherwise provided by federal, state or local law.
25 Sec. 2-293. - Establishment; membership; meetings; defmitions.
26 (a) Criminal nuisance abatement board established. Pursuant to F.S. § 893.138, the code
27 enforcement board or a separate board established by resolution of the city council in
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1 furtherance of implementing the intent and purpose of this division is hereby designated and
2 established as the criminal nuisance abatement board and shall act as the city's administrative
3 board to hear complaints regarding nuisances as provided for in this division.
4 (b) Membership. Depending on how the city council chooses to designate and establish the board
5 pursuant to subsection (a), t l he terms of office of the board members shall either coincide
6 with the terms of office of the code enforcement board members or the separate board's terms
7 of office shall be established in accordance with Section 2-171 of the City Code.
8 (c) Meetings. The board shall establish a schedule of regular meetings as deemed necessary. at
9 such intervals as the board may determine, but not less frequently than once every two months.
10 Regular meetings of the board shall be scheduled where possible to immediately precede the
11 regularly scheduled meetings of the code enforcement board and may be cancelled by the
12 chairperson if there is no business to come before the board.
13 (d) Definitions. As used in this division, the following terms shall have the following meanings,
14 unless the context clearly indicates that a different meaning is intended:
15 City manager shall mean the city manager of Cape Canaveral or the city manager's designee.
16 Controlled substance shall mean any drug, narcotic, or other substance identified and
17 prohibited under F.S. ch. 893, as may be amended, and any substance sold in lieu of a controlled
18 substance in violation of section 817.563 or any imitation controlled substance defined in section
19 817.564, Florida Statutes.
20 Criminal street gang shall have the same meaning as set forth under F.S. § 874.03, as may be
21 amended.
22 Criminal street gang activity shall mean those activities committed by a criminal street gang
23 or member thereof as set forth under [F.S.] § 874.03, as may be amended.
24 Dealing in stolen property shall have the same meaning as that provided under F.S. § 812.019,
25 as may be amended.
26 Nuisance abatement coordinator shall mean the officer or officers of the Brevard County
27 Sheriffs Office Department or city staff person designated by the city manager responsible for
28 overseeing and enforcing the provisions of this division on behalf of the city.
29 Prostitution or prostitution -related activity shall mean any act constituting a violation of F.S.
30 § 796.07, as may be amended.
31 Recording secretary for the nuisance abatement board/recording secretary shall mean a city
32 staff member or clerk assigned to the criminal nuisance abatement board.
33 Recurring criminal nuisance means any single or multiple instance of conduct prescribed in
34 F.S. § 893.138, as may be amended, that occurs during the effective term of an order entered by
35 the board.
36 Stolen property shall mean tangible, intangible, personal or real property having any monetary
37 or market value and that has been the subject of any temporary or permanent criminal taking in
38 violation of the laws of the state.
39 Sec. 2-294. - Powers.
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1 The criminal nuisance abatement board shall have the powers delineated in F.S. § 893.138,
2 which shall include, but not be limited to, the following:
3 (a) Adopting rules for the conduct of its hearings.
4 (b) Subpoenaing alleged violators and witnesses to its hearings.
5 (c) Subpoenaing records, surveys, plats, or other documentary evidence which subpoenas
6 shall be served by the police depai tment or sheriff.
7 (d) Taking testimony under oath.
8 (e) Issuing orders having force and effect of law commanding whatever steps are necessary
9 to bring a violation into compliance.
10 (f) Establishing and levying fines.
11 Sec. 2-295. - Criminal nuisances established; violations.
12 It shall be a criminal public nuisance and a violation of this division for any place or premises,
13 or any part thereof, to be used or allowed to be used:
14 (a) On more than two occasions within a six-month period for prostitution or prostitution -
15 related activities;
16 (b) On more than two occasions within a six-month period, as the site of the unlawful sale,
17 delivery, manufacture, or cultivation of any controlled substance;
18 (c) On one occasion as the site of the unlawful possession of a controlled substance, where
19 such possession constitutes a felony and that has been previously used on more than one
20 occasion as the site of the unlawful sale, delivery, manufacture, or cultivation of any
21 controlled substance;
22 (d) By a criminal street gang for the purpose of conducting a pattern of criminal street gang
23 activity; or
24 (e) On more than two occasions within a six-month period, as the site of a violation relating
25 to dealing in stolen propertys
26 (f) On two or more occasions within a six-month period, as the site of a violation of chapter
27 499, Florida Drug and Cosmetic Act; or
28 (g) Anv pain -management clinic, as described in s. 458.3265 or s. 459.0137, Florida
29 Statutes, which has been used on more than two occasions within a six-month period as
30 the site of a violation of:
31 (1) Section 784.011, s. 784.021, s. 784.03, or s. 784.045, Florida Statutes, relating to assault
32 and battery;
33 (2) Section 810.02, Florida Statutes, relating to burglary;
34 (3) Section 812.014, Florida Statutes, relating to theft;
35 (4) Section 812.131, Florida Statutes, relating to robbery by sudden snatching; or
36 (5) Section 893.13, Florida Statutes, relating to the unlawful distribution of controlled
37 substances.
38 Sec. 2-296. - Enforcement procedures; notice; hearing.
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1 * * *
2 (d) All notices under this division shall be hand -delivered by the Brevard County Sheriffs Office
3 Depaftment, where practical, or where not practical or impossible, by certified mail, return
4 receipt requested, to the property owner of record at the address as it appears in the public
5 records of the county property appraiser's office. If the notice is returned for any reason, then
6 service shall be effected by mailing the notice through regular delivery to the address of the
7 premises and by posting the notice in accordance with F.S. ch. 162. Proof of service shall be
8 by written declaration indicating the date, time, and manner in which service was made.
9
* * *
10 Sec. 2-297. - Penalties; fines; liens; recording.
11 (a) The city manager shall, upon notification by the recording secretary that an affidavit of
12 noncompliance has been filed by the nuisance abatement coordinator reflecting that a previous
13 order of the board has not been complied with, schedule a hearing before the board. Upon
14 evidence establishing that noncompliance exists, the board shall enter an order imposing
15 conditions and any other measures to abate the criminal nuisance as provided by this division,
16 including the imposition of a fine.
17 (b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first
18 occurrence of a criminal nuisance and shall not exceed $500.00 per day for a recurring
19 criminal nuisance. In addition to the fine, the violator shall also provide for the payment of
20 reasonable costs, including reasonable attorney fees associated with investigations of and
21 hearings on public nuisances, as reasonably determined by the board. However, total fines
22 imposed in any action brought pursuant to this division shall not exceed $15,000.00. In
23 determining the amount of the fine, if any, the board shall consider the following factors:
24 (1) The gravity of the criminal nuisance;
25 (2) Any actions taken by the owner to correct the criminal nuisance; and
26 (3) Any previous nuisances maintained or permitted by the owner.
27 (c) A certified copy of an order imposing a fine may be recorded in the public records of the
28 county, and thereafter shall constitute a lien against the land on which the violation exists and
29 upon any other real or personal property owned by the owner. Upon petition to the circuit
30 court, such order may be enforced in the same manner as a court judgment by the sheriffs of
31 this state, including levy against personal property, but such order shall not be deemed to be
32 a court judgment except for enforcement purposes. A fine imposed pursuant to this division
33 shall continue to accrue until the owner comes into compliance or until the judgment is
34 rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first.
35 A lien arising from a fine imposed pursuant to this section runs in favor of the city, and the
36 city may execute a satisfaction or release of a lien in the same manner as provided under
37 section 2-260, or may otherwise seek to foreclose on the lien. However, where the nuisance
38 abatement action is based on a stolen property nuisance, and is brought against a property
39 owner operating an establishment where multiple tenants, on one site, conduct their own retail
40 businesses, the property owner shall not be subject to a lien against the owner's property or
41 the prohibition of operation provision if the property owner elects to evict the business
42 declared to be a nuisance within 90 calendar days after notification by registered mail to the
43 property owner of a second stolen property conviction of the tenant. Any lien recorded against
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1 real property may be foreclosed by the city and the owner of such real property shall be liable
2 for all costs, including a reasonable attorney's fee, associated with the recording of all orders
3 and foreclosure.
4 (d) The board may further bring a complaint pursuant to F.S. § 60.05, seeking a permanent
5 injunction against any nuisance as described in this division. This section does not restrict the
6 right of any person to proceed under F.S. § 60.05, against any criminal nuisance.
7 Sec. 2-298. - Appeal.
8 A party aggrieved by a final administrative order of the board shall have the right to appeal
9 said order to a court of competent jurisdiction, pursuant to the rules of procedure of the court.
10 Sec. 2-299. - Reserved.
11 Section 3. Conforming Code Amendment. Generally establishing a code enforcement
12 special magistrate process requires conforming amendments throughout the City Code to insert a
13 reference to special magistrate. The following City Code sections are hereby amended as follows
14 (underlined type indicates additions and Strikeout type indicates deletions, while asterisks (* * *)
15 indicate a deletion from this Ordinance of text existing in the specific section set forth below. It
16 is intended that the text in specific section's denoted by the asterisks and set forth in this Ordinance
17 shall remain unchanged from the language existing prior to adoption of this Ordinance:
18
19 Sec. 14-53. - Enforcement and penalty.
20 If the administrator shall find that any of the sections of this article are being violated, he shall
21 notify the property owner or occupant of such violations, in writing, indicating the nature of the
22 violation and ordering any action necessary to correct it. Any person found guilty of violating any
23 of the sections of this article after a first written warning shall be punished in accordance with
24 section 1-15. In addition to any other remedies, whether civil or criminal, violations of this article
25 may be enforced by the special magistrate or code enforcement board and may be restrained by
26 injunction, including a mandatory injunction, and otherwise abated in any manner provided by
27 law.
28 Sec. 30-35. - Penalty and enforcement.
29 Any person who violates any provision of this article shall be guilty of an offense against the city
30 and shall be punished as provided in section 1-15 of the City Code. The provisions of this article
31 may be enforced either by prosecution as a misdemeanor through the state attorney's office for
32 Brevard County, Florida, or through the powers and jurisdiction of the City special magistrate or
33 code enforcement board, or by any other legal or equitable form of action.
34 Sec. 34-43. - Abatement; assessment.
35 Under this division, if a property owner does not comply with the notice of violation and
36 corresponding order of the city special magistrate or code enforcement board within the time
37 specified, the city may remove the litter or cause the litter to be removed. The city may charge or
38 assess the property and owner with the actual cost of labor performed, materials furnished and
39 disposal fees. Such amounts shall constitute an indebtedness of the owner of the property to the
40 city and shall constitute a lien against the property which shall be superior in dignity to all other
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1 liens, except liens for state, county, and city taxes and liens for special assessments for public
2 improvements.
3 Sec. 34-95. - Enforcement.
4 The code enforcement officer and special magistrate or code enforcement board shall enforce this
5 article. Alternatively, this article may be enforced through the issuance of a code enforcement
6 citation pursuant to the procedure set forth in chapter 2 of this Code.
7 Sec. 34-182. - Notice to abate.
8 (a) Issuance. Whenever it comes to the attention of the enforcement authority that any nuisance as
9 defined in section 34-181 appears to exist on private property, he shall cause a written notice to be
10 affixed to the property, declaring the existence of the nuisance and ordering whoever has an interest
11 in the property to comply with this article by removing the abandoned property or inoperable
12 vehicle within 72 hours of the notice. In addition to the foregoing notice, a copy of the notice shall
13 be delivered to the owner or occupant of the private property; if a copy of the notice cannot be
14 delivered to the owner or occupant, a copy of the notice shall be left at the property, with a duplicate
15 copy sent to the owner or occupant of the property by certified mail, return receipt requested. (b)
16 Contents. The notice shall contain the request for removal within the time specified in subsection
17 (a) of this section and the notice shall advise that upon failure to comply with the notice of removal
18 the enforcement authority shall undertake such removal, with the cost of removal to be levied
19 against the owner or occupant of the property. The notice shall also advise the person to whom the
20 notices are applicable of his right to contest the determination of the enforcement authority that a
21 violation under this article exists by requesting a hearing before the special magistrate or code
22 enforcement board and that, if such a hearing is desired, the request can be made by filing a written
23 request with the special magistrate or code enforcement board secretary. A request for a hearing
24 must be made within the time for removal set forth in subsection (a) of this section.
25 Sec. 34-183. - Special magistrate or code enforcement board hearing procedures.
26 (a) Setting date; notice. Upon receiving a request for a hearing pursuant to this article, the special
27 magistrate or code enforcement board secretary shall set the hearing before the next regular
28 meeting of the special magistrate or code enforcement board. Notice of the hearing shall be given
29 to the person requesting the hearing and to the enforcement authority. No other notices are
30 required. A request for hearing under this section stays all enforcement proceedings until an order
31 of the special magistrate or code enforcement board is entered.
32 (b) Conduct. Hearings under this article shall be conducted under and governed by the procedures
33 set forth in Chapter 2, Article VI of the City Code section 2 246 et seq.
34 (c) Board determination. The special magistrate or code enforcement board shall determine either
35 that there exists a nuisance or that there does not exist a nuisance. With reference to hearings under
36 this article, the special magistrate or code enforcement board has no other authority and is not
37 authorized to modify or vary the terms and conditions contained in this article.
38 (d) Issuance, filing of board order. The special magistrate or code enforcement board shall issue a
39 written order, either finding the existence of a nuisance or finding that a nuisance does not exist.
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1 Sec. 34-184. - Compliance with notice or order to remove; removal by city upon
2 noncompliance.
3 Within the time for removal set forth in the notice for removal, or within 48 hours of the date on
4 which an order is entered by the special magistrate or code enforcement board affirming the
5 determination of the enforcement authority, the owner of the abandoned property or inoperable
6 vehicle and the owner or occupant of the private property on which the same is located, either or
7 all of them, shall cause the removal of the vehicle. If the violation is not remedied within the time
8 set forth in this section, the enforcement authority shall have the right to take possession of the
9 abandoned property or inoperable vehicle and remove it from the premises. In the event of removal
10 and disposition of the abandoned property or inoperable vehicle by the enforcement authority, the
11 owner of the abandoned property or inoperable vehicle and the owner and occupant of the private
12 property from which the abandoned property or inoperable vehicle is removed shall be jointly and
13 severally liable for the expenses incurred in so doing. It shall be unlawful for any person to interfere
14 with, hinder or refuse to allow the enforcement authority to enter upon private property for the
15 purpose of removing the abandoned property or inoperable vehicle under the provisions of this
16 article.
17 Sec. 50-4. Sleeping and camping in public areas and beaches.
18
19 (f) Enforcement and penalties.
20
* * *
***
21 (4) Any person who violates or fails to comply with any provisions of this section 50-4 shall be
22 subject to the following: (a) The issuance of a Class I citation in accordance with the provisions of
23 section 2-280, et seq., "Code Enforcement Citations"; or (b) Enforcement by other means
24 including, but not limited to: a summons; a notice to appear in the county or circuit court; an arrest;
25 an action before the special magistrate or /code enforcement board; or a civil action for injunctive
26 relief; or (c) Punished in accordance with the general penalty set forth in section 1-15 of this Code.
27 Sec. 54-25. - Suspension of use of city park.
28 (a) The suspension provisions set forth in this section are a management tool independent of any
29 other enforcement tool referenced under this article for the purpose of managing the city parks for
30 the common welfare and safety of all city park patrons and preservation of all city park facilities.
31 The intent and purpose of this section is to ensure compliance with this article and to protect the
32 public health, safety, and welfare of city park patrons. Suspension of a person's privilege to use
33 city parks or facilities therein are intended to occur only when that person has demonstrated an
34 inability to comply with the provisions set forth in this article or has engaged in certain illegal or
35 violent behavior in a city park in violation of the law.
36 (b) A person's privilege to use a city park or any facility therein may be suspended by city law
37 enforcement or the city's culture and leisure services director of leisure services when the person
38 has been found guilty of violating any provision of this article on more than two occasions within
39 a three year period. For purposes of this section, the term "guilty" shall include a plea of nolo
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1 contendere, voluntary payment of a citation issued in accordance with this article, or an
2 adjudication of guilt by a court of law or special magistrate or code enforcement board. The first
3 suspension shall be for a period of up to 90 days, and each additional suspension thereafter, the
4 suspension period shall be for up to 90 days per applicable offense, not to exceed two consecutive
5 years for any one suspension.
6 (c) A person's privilege to use a city park or any facility therein may be suspended by city law
7 enforcement or the city's director of leisure services when a person is cited for a violation of 54-
8 15 (b), (d) or (e) for certain trespass cases, or 54-21 for interfering with personnel. Suspension for
9 a first offense shall be for 30 days, plus an additional 60 days for every other similar offense, not
10 to exceed two consecutive years for any one suspension.
11 (d) A person's privilege to use a city park or any facility therein may be suspended for up to two
12 consecutive years by city law enforcement for each incident in which that person has been charged
13 with committing a violent criminal offense in a city park including, but not limited to, breach of
14 peace under § 870.03, Florida Statutes; affrays and riots under § 870.01; aggravated battery under
15 § 784.045, Florida Statutes, and resisting an officer with violence under § 843.01, Florida Statutes.
16 (e) A person's privilege to use a city park or any facility therein may be suspended for up to two
17 consecutive years by city law enforcement for each incident in which that person has been charged
18 with engaging in or allowing in a city park the possession, use or sale of controlled substances, as
19 that term is defined in § 893.03, Florida Statutes, in violation of law.
20 (f) A person's privilege to use a city park or any facility therein may be suspended for up to two
21 consecutive years by city law enforcement for each incident in which that person has been charged
22 with engaging in or allowing prostitution in a city park.
23 (g) A person's privilege to use a city park or any facility therein may be suspended by city law
24 enforcement or director of leisure services for fees that are past due more than 120 days and which
25 are imposed pursuant to this article or pursuant to a citation imposed for violating the provisions
26 of this article. However, any suspension imposed under this subsection shall immediately expire
27 at such time the fees are paid.
28 (h) Any suspension order issued in accordance with this section shall be in writing and shall state
29 the name and address of the person who is subject to the suspension, the cause of the suspension,
30 the duration of the suspension including the effective and expiration date of the suspension, and
31 the city parks or any facility subject to the suspension. The order shall also state that the person
32 shall have the right to appeal the suspension to the city manager by delivering written notice of
33 appeal to the city manager within three business days of the receipt of the order. The notice of the
34 appeal shall state the grounds for the appeal. The city manager shall set the time and place for
35 hearing such appeal, and notice of the time and place shall be given at least five calendar days
36 prior to the date set for the hearing. The hearing shall occur no later than ten days after the date
37 the appeal notice is received by the city. Failure to timely file an appeal of a suspension order shall
38 constitute a waiver of the person's right to an appeal and the order shall be deemed final.
39 (i) The city manager shall adopt rules and procedures for conducting a fair and impartial hearing
40 to detennine compliance with the provisions of this section. All decisions of the city manager
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1 under this section shall be deemed final and shall be subject to appeal to a court of competent
2 jurisdiction.
3 (j) When a suspension may be ordered up to a maximum number of days under this section, the
4 city shall consider the following factors when determining the length of the suspension: (1) the
5 gravity of the violation; (2) the potential or actual harm or danger the violation had or caused on
6 other patrons or facilities of the city park; and (3) any mitigating circumstances.
7 Sec. 78-195. - Special magistrate or code enforcement board authority and violation liability.
8 (a) The city special magistrate or code enforcement board shall have jurisdiction and authority to
9 hear and decide alleged violations occurring in the corporate limits of the city and when warranted
10 levy penalties. Proceedings before the special magistrate or code enforcement board shall be
11 governed by its rules and procedures.
12 (b) Any person or customer found guilty of violating any of the provisions of this article or any
13 written order of the city pursuant thereto, shall pay all penalties, costs and expenses involved in
14 the case, including reasonable attorney's fees. Notice of such violation shall be given by delivering
15 the same to the premises and a copy thereof sent by certified mail to the billing address. Each day
16 upon which a violation of this article occurs shall constitute a separate and additional violation.
17 (c) Any person or customer in violation of any provision of this article shall become liable to the
18 city for any expense, loss or damage incurred by the city by reason of such violation, including
19 reasonable attorney's fees and costs of correcting the unauthorized work, tampering or damage to
20 the system.
21 (d) In addition to any penalty provided by law for the violation of any provision of this article, the
22 city may bring suit in the appropriate court to enjoin, restrain or otherwise prevent the violation.
23 Sec. 78-413. - Enforcement.
24 The special magistrate or code enforcement board shall have jurisdiction to hear and decide alleged
25 violations of this division. Each day of violation shall constitute a separate violation.
26 Sec. 82-14. - Permit intent.
27 A permit issued shall be construed to be a license to proceed with the work and not as authority to
28 violate, cancel, alter or set aside any of the provisions of the technical codes, nor shall issuance of
29 a permit prevent the building official from thereafter requiring a correction of errors in plans,
30 construction, or violations of this code. Every permit issued shall become invalid unless the work
31 authorized by such permit is commenced within six months after its issuance, or if the work
32 authorized by such permit is suspended or abandoned for a period of six months after the time
33 work is commenced. The permit shall become invalid after three years from the date of its issuance
34 in zoning districts of the city, unless the building or buildings subject to the permit have exteriors
35 and landscaping which are in substantial compliance with the plans and specifications and comply
36 with the provisions of section 34-96, section 34-97, subsections 34-98(3)—(9), and (11), section
37 34-99, and section 34-122 of the City Code of Ordinances. Extensions of time for building permits
38 may be granted only by the city council. Further, any unfinished buildings or structures for which
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1 a permit has lapsed or otherwise become invalid, and where the appearance and other conditions
2 of such unfinished building or structure substantially detracts from the appearance of the
3 immediate neighborhood, or reduces the value of property in the immediate neighborhood, or is a
4 nuisance shall be deemed to be a violation of the above referenced code sections, which violation
5 may be enforced by the special magistrate or code enforcement board.
6 Sec. 82-56. - Standard Unsafe Building Abatement Code adopted.
7 The Standard Unsafe Building Abatement Code, 1985 edition, as published by the Southern
8 Building Code Congress International, Inc., is hereby adopted by reference and incorporated herein
9 as if fully set. The Standard Unsafe Building Abatement Code is hereby amended to read as
10 follows:
11 (a) Section 105.1. The special magistrate or code enforcement board shall serve as the board of
12 adjustment and appeals for this code.
13 (b) Section 605. Cost of repair or demolition; lien on property: collection. 1. Upon repair or
14 demolition of any building or structure, either with city crews or by independent contractor, all
15 costs of demolition and/or repair shall be assessed against and constitute a lien on the property
16 upon which the building or structure is/was situated. The lien shall be equal in rank, priority and
17 dignity with the lien of Brevard County ad valorem taxes and shall be superior to all other liens,
18 encumbrances, titles and claims in, to or against the property. Cost shall include, but not limited
19 to, administrative cost, attorney's fees, postage, newspaper publication fees and actual costs of
20 physical removal and/or repair. 2. The city clerk shall file such lien in the public records of Brevard
21 County Florida, showing the nature of the lien, the amount thereof, a legal description of the
22 property and the owner thereof. Such liens shall bear interest from the date of filing at the highest
23 rate allowed by law. 3. The lien may be enforced in the same manner as a court judgment by the
24 sheriffs of the State of Florida, including levy against personal property, and may also be
25 foreclosed in the nature of a mortgage. All costs and attorney's fees incurred in collection of
26 amounts due under any such lien shall also be secured by the property and included within the total
27 sum due under the lien.
28 Sec. 82-382. - Correction of violation; payment of penalty; notice of hearing.
29 Upon receipt of a citation, the person charged with the violation shall elect either to:
30 (a) Correct the violation and pay to the city the civil penalty in the manner indicated on the citation
31 or, (b) Within ten days of receipt of the citation, exclusive of weekends and legal holidays, request
32 an administrative hearing before the city's special magistrate or code enforcement board to appeal
33 the issuance of the citation in accordance with the procedures set forth in this article. Any request
34 for an administrative hearing shall be made and delivered in writing to the city manager by the
35 time set forth in this subsection. Failure to request an administrative hearing in writing within the
36 ten-day time period shall constitute a waiver of the violator's right to an administrative hearing. A
37 waiver of said right shall be deemed an admission of the violation, and penalties shall be imposed
38 as set forth on the citation.
39 Sec. 82-383. - Administrative hearings; accrual of penalties.
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1 (a) All administrative hearings held pursuant to this article shall be conducted by the special
2 magistrate or code enforcement board in accordance with Chapter 2, Article VI of the City Code
3 and the requirements of the Local Government Code Enforcement Boards Act.
4 (b) During the administrative hearing, if the violator demonstrates to the special magistrate or code
5 enforcement board that the violation is invalid or that the violation has been corrected prior to
6 appearing before the special magistrate or code enforcement board, the special magistrate or code
7 enforcement board may dismiss the citation unless the violation is irreparable or irreversible, in
8 which case the special magistrate or code enforcement board may order the violator to pay a civil
9 penalty as set forth in subsection (c) below.
10 (c) During the administrative hearing, if the special magistrate or code enforcement board finds
11 that a violation exists, the special magistrate or code enforcement board may order the violator to
12 pay a civil penalty of not less than the amount set forth on the citation but not more than $1,000.00
13 per day for each violation. In determining the amount of the penalty, the special magistrate or code
14 enforcement board shall consider the following facts: (1) The gravity of the violation. (2) Any
15 actions taken by the violator to correct the violation. (3) Any previous violations which were
16 committed by the violator.
17 (d) During the administrative hearing, if the special magistrate or code enforcement board finds
18 that the violator had not contested or paid the civil penalty set forth in the citation within the time
19 required in this article, the special magistrate or code enforcement board shall enter an order
20 ordering the violator to pay the civil penalty set forth on the citation, and a hearing shall not be
21 necessary for the issuance of such order.
22 (e) All civil penalties imposed by the special magistrate or code enforcement board under this
23 article shall continue to accrue until the violator comes into compliance or until a judgment is
24 rendered by a court to collect or foreclose on a lien filed under this article, whichever occurs first,
25 regardless of whether or not the order of the special magistrate or code enforcement board sets
26 forth this accrual requirement.
27 Sec. 82-384. - Appeals of special magistrate or code enforcement board decisions.
28 Any person aggrieved by a final administrative order of the special magistrate or code enforcement
29 board pursuant to this article, including the city council, may appeal the order to the circuit court
30 in accordance with F.S. § 489.127(5)(j), as may be amended or renumbered from time to time by
31 the Florida Legislature.
32 Sec. 82-385. - Recording special magistrate or code enforcement board orders.
33 A certified copy of an order of the special magistrate or code enforcement board imposing a civil
34 penalty under this article may be recorded in the public records and thereafter shall constitute a
35 lien against any real or personal property owned by the violator. Such orders shall be enforced in
36 accordance with Florida law.
37 Sec. 92-14. - Enforcement and monitoring.
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1 (a) Violations of this chapter may be subject to civil citation pursuant to Chapter 2, Article VI,
2 Division 3 of this Code.
3 (b) The provisions of this chapter may also be enforceable by proceedings before the City of Cape
4 Canaveral special magistrate or code enforcement board, or by suit for prohibitory or mandatory
5 injunctive relief, or by any other lawful remedy existing at law or in equity for the enforcement of
6 municipal ordinances. Funds generated by penalties imposed under this chapter shall be used by
7 the City of Cape Canaveral for the administration and enforcement of F.S. § 403.9337, and the
8 corresponding sections of this chapter, and to further water conservation and nonpoint pollution
9 prevention activities.
10 Sec. 94-62. - Abandoned and hazardous signs.
11 (a) Abandoned signs. It shall be unlawful for any permittee or owner of a sign to fail or refuse to
12 remove any sign, after ten days of the service of notice from the administrator, which advertises a
13 business or product which has not been conducted or sold at the premises where the sign is located
14 for more than six consecutive months prior to the date of the notice from the administrator. If the
15 order to remove is not complied with, the administrator may remove the sign, and an assessment
16 lien, on parity with real estate taxes, may be filed against the property for the expense incurred in
17 removal of the sign.
18 (b) Hazardous signs. The administrator shall refuse to issue a permit for any sign, which will
19 constitute a hazard and a potential menace to the safety of the public, and the administrator may
20 require the removal of any sign which is not properly maintained or which is or will become unsafe
21 and constitute a hazard to the safety of the public. It shall be unlawful for any permittee or owner
22 to continue to display any sign that constitutes a hazard to the safety of the public. It shall be
23 unlawful for any permittee or owner to continue to display any sign that constitutes a hazard after
24 48 hours from the time of notice by the administrator requesting the removal of such sign, unless
25 within that time, the permittee or owner shall have filed with the administrator notice of his or her
26 intention to appeal his decision to the special magistrate or code enforcement board, or the
27 administrator has determined that exigent circumstances exist that require the immediate removal
28 of the sign in order to abate the public hazard. Any such sign displayed more than 48 hours after
29 notice to remove the sign may be removed by the city at the expense of the permittee or owner,
30 unless the matter is pending an appeal to the special magistrate or code enforcement board or
31 unless the decision of the administrator has been reversed by the special magistrate or code
32 enforcement board.
33 (c) Signs constituting traffic hazard. No sign or other advertising structure as regulated by this
34 chapter shall be erected at the intersection of any street in such a manner as to obstruct free and
35 clear vision; at any location where, because of the position, shape or color, it may interfere with,
36 obstruct the view of or be confused with any authorized traffic sign, signal or device; or which
37 makes use of any word commonly used on traffic control signs or signals. Visibility at intersections
38 shall be in accordance with the figure [found in section] 94-1.
39 Sec. 102-38. - Enforcement and penalties.
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1 (a) Enforcement. The city may enforce the provisions of this division by any lawful means
2 including, but not limited to, issuing a civil citation, bringing charges before the city's code
3 enforcement board or special magistrate master, and seeking injunctive and equitable relief. For
4 purposes of determining the penalties provided under this division, the removal or death of a tree
5 in violations of this division shall be deemed irreparable or irreversible. Further, each day a
6 violation continues shall constitute a separate violation. It shall also be a separate violation of this
7 division for each tree removed without a permit:
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Section 4. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances
and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 5. Incorporation Into Code. This Ordinance shall be incorporated into the Cape
Canaveral City Code and any section or paragraph, number or letter and any heading may be
changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and
like errors may be corrected and additions, alterations, and omissions, not affecting the
construction or meaning of this Ordinance and the City Code may be freely made.
Section 6. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this Ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for substantive, procedural or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this Ordinance.
Section 7. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Council.
ADOPTED by the City Council of the City of Cape _ . naveral, Florida, this 18th day of June,
2019.
-'
Mi Goforth
City Clerk
First Reading: May 21, 2019
Advertisement: June 6, 2019
Second Reading: June 18, 2019
Appro e to legal form and sufficiency
fort f Cape Canav : 1y by:
47 Anthony A. Garganese, City Attorney
Bob Hoog, May
For
Mike Brown x
Robert Hoog
Wes Morrison
Rocky Randels Motion
Angela Raymond
x
City of Cape Canaveral
Ordinance No. 11-2019
Page 33 of 33
Second
Against
x