HomeMy WebLinkAboutcocc_ordinance_no_09-2021_202102161 ORDINANCE NO. 09-2021
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3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE
4 CANAVERAL, FLORIDA, AMENDING CHAPTER 78, ARTICLE II. —
5 SANITARY SEWER SYSTEM RELATED TO THE ADMINISTRATIVE
6 ENFORCEMENT OF THE PROVISIONS STATED THEREIN; PROVIDING
7 FOR THE CLARIFICATION OF APPLICABLE PENALTIES; PROVIDING
8 FOR THE USE OF A SPECIAL MAGISTRATE FOR ADMINISTRATIVE
9 PROCEEDINGS INVOLVING VIOLATIONS BY INDUSTRIAL AND
10 COMMERCIAL USERS OF THE CITY'S SEWER SYSTEM; PROVIDING
11 FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND
12 RESOLUTIONS, INCORPORATION INTO THE CODE, SEVERABILITY
13 AND AN EFFECTIVE DATE.
14
15 WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State
16 Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
17 law; and
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19 WHEREAS, Chapter 78, Article II of the City Code sets forth detailed regulations regarding
20 the use of the City's sewer system including by industrial and commercial users; and
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22 WHEREAS, the Chapter 78, Article II of the City Code provides for the
23 administrative enforcement of the provisions set forth therein and specific penalties for
24 violations of the Code; and
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26 WHEREAS, the City Council more recently appointed a special magistrate with specialized
27 expertise in general procedures to serve as the hearing officer for adjudicating code enforcement
28 cases; and
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30 WHEREAS, the City Council recognizes that Chapter 78 currently requires the City Council
31 to hear code enforcement cases brought under said Chapter against industrial or commercial
32 users; however, given the appointment of a special magistrate with specialized expertise, the City
33 Council now desires to delegate said enforcement hearing responsibilities under Chapter 78 to
34 the special magistrate in a similar manner previously delegated by the City Council for other code
35 enforcement cases; and
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37 WHEREAS, the City Council also desires to amend Chapter 78, Article II of the City Code
38 to clarify that said Chapter provides for specific penalties in addition to other penalties that may
39 be provided by applicable law; and
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41 WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this
42 Ordinance to be in the best interests of the public health, safety and welfare of the citizens of
43 Cape Canaveral.
City of Cape Canaveral
Ordinance No. 09-2021
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2 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL HEREBY
3 ORDAINS, AS FOLLOWS:
4 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by
5 this reference as legislative findings and the intent and purpose of the City Council of the City of
6 Cape Canaveral.
7
8 Section 2. Amending Chapter 78 Sanitary Sewer System. The City of Cape
9 Canaveral Code of Ordinances, Chapter 78, Article II. — Sanitary Sewer System is hereby created as
10 set forth below (underlined type indicates additions and strikeout type indicates deletions, while
11 *** indicate deletions from this Ordinance of said Chapter, Article and Division that shall remain
12 unchanged in the City Code):
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14 CHAPTER 78 UTILITIES
15
16 ***
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18 ARTICLE II. SANITARY SEWER SYSTEM
19
20 DIVISION 1. - GENERALLY
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22 Sec. 78-26. - Penalty.
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24 Any person violating this article shall be punished as provided in this article and under other
25 applicable law section 1 -15. Any failure or refusal by an owner to connect to the city sewer system
26 after notification to do so or any failure or refusal to pay the charges or rates shall be construed
27 to be a violation of this article. Each day such violation continues shall be considered a separate
28 offense and subject to the penalties prescribed in this section.
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30 ***
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32 DIVISION 2. — Industrial and Commercial Use
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34 ***
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36 Sec. 78-51. - Definitions.
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38 The following words, terms and phrases, when used in this division, shall have the meanings
39 ascribed to them in this section, except where the context clearly indicates a different meaning:
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41 ***
City of Cape Canaveral
Ordinance No. 09-2021
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1 Special magistrate means a special magistrate appointed pursuant to section 2-261 of the City
2 Code.
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4 ***
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6 Sec. 78-59. - Administrative enforcement procedures.
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8 (a) Except for emergency situations as described in section 78-58, whenever the city manager
9 determines that a user has violated or is violating this division, the city manager shall serve a
10 written notice of violation upon the user. Notice shall be either served personally on the user
11 or by certified mail, return receipt requested, and shall be deemed served when either
12 personally delivered to the user or deposited in the United States mail. Within ten days of
13 receipt of the notice of violation, the user shall submit a detailed statement describing the
14 harmful contribution and the measures taken to prevent future occurrences, or if the violation
15 is such that it cannot be remedied within ten days because improvements cannot be made
16 by the user within that time period, a written action plan to complete the improvements
17 within a time schedule deemed reasonable and acceptable to the city manager. This
18 subsection does not relieve the user of liability for any violation occurring before or after
19 receipt of the notice of violation.
20 (b) If the city manager is satisfied that the user has brought use of the system into compliance
21 with this division, or the user has submitted an acceptable written action plan to remedy the
22 violation within a reasonable time period approved by the city manager, he may enter into a
23 consent order with the user, detailing the specific action taken or to be taken to correct the
24 noncompliance and setting forth any charges for damages to the system to be reimbursed
25 to the city. All administrative fines assessed against the city because of the user's
26 noncompliance shall be part of the consent order and shall be reimbursed to the city by the
27 user. The consent order shall have the same effect as administrative orders and may be
28 judicially enforced as provided in section 78-61.
29 (c) If the violation continues beyond the time period set forth in the notice of violation and no
30 consent order is entered into, the city manager shall serve notice upon the user, requiring the
31 user to show cause before the special magistrate city council why service should not be
32 terminated. Notice of the hearing shall be served on the user specifying the time and place
33 for the meeting, the proposed enforcement action, reasons for the actions and a request that
34 the user show cause why this proposed enforcement action should not be taken. Notice of
35 the hearing shall be served personally upon the user or by certified mail, return receipt
36 requested, and shall be deemed served when either personally delivered to the user or
37 deposited in the United States mail. The notice of the hearing shall be at least ten days prior
38 to the hearing.
City of Cape Canaveral
Ordinance No. 09-2021
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1 (d) At the show cause hearing as provided for in subsection (c) of this section, all testimony shall
2 be under oath and shall be recorded. Testimony shall be taken from the city manager or his
3 designee and the user. Formal rules of evidence shall not apply, but fundamental due process
4 shall be observed and shall govern the proceedings. The special magistrate city council may
5 take immediate enforcement action as provided in this division, whether or not the user
6 appears at the show cause hearing.
7 (e) At the conclusion of the hearing, the special magistrate city council shall issue findings of
8 fact, based on the evidence of record and conclusions of law, and shall issue an order
9 affording the proper relief consistent with the powers granted in this division. The findings,
10 shall be by -motion, approved by a majority of those members present and voting, except at
11 least three members of the city council must vote affirmatively in order for the motion to
12 pass. The order may include a notice that it must be complied with by a specified date and
13 that a fine may be imposed if the order is not complied with by such date. A certified copy of
14 the order may be recorded in the public records of the county and shall constitute notice to
15 any subsequent purchasers, successors in interest or assigns of the user.
16 (f) The user may appeal an order of the special magistrate city council to the circuit court of the
17 county. Such appeal will not be a hearing de novo, but shall be limited to appellate review of
18 the record created before the special magistrate city council. An appeal shall be filed within
19 30 days of the city council's special magistrate's order.
20 Sec. 78-60. - Administrative penalties.
21
22 (a) As provided in this division, upon notification by the city manager or his designee that the
23 order of the special magistrate city council has not been complied with by the time set or
24 upon finding that a repeat violation has been committed, the special magistrate city council
25 may order the violator to pay a fine in an amount specified in this section for each day the
26 violation continues past the date set by the special magistrate city council for compliance or,
27 in the case of a repeat violation, for each day the repeat violation continues past the date of
28 notice to the violator of the repeat violation. If a finding of violation or a repeat violation has
29 been made, a hearing shall not be necessary for issuance of the order imposing the fine.
30 (b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first violation
31 and shall not exceed $500.00 per day for a repeat violation. In determining the amount of the
32 fine, if any, the special magistrate city council shall consider the following:
33 (1) The gravity of the violation;
34 (2) Any action taken by the violator to correct the action; or
35 (3) Any previous violations committed by the violator.
36 (c) In addition to the amounts of the fine set forth in subsection (b) of this section, the fine may
37 also include the amount, if any, which local, state or federal officials fine the city due to the
City of Cape Canaveral
Ordinance No. 09-2021
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1 violation committed by the violator, plus the cost of repairing the damage, if any, caused by
2 the violator to the system. The violator may be fined these additional amounts whether or
3 not he comes into compliance with the city council's special magistrate's order within the
4 time set therein.
5 (d) The city council special magistrate may reduce a fine imposed pursuant to this section.
6 (e) A certified copy of the city council's special magistrate's order imposing a fine may be
7 recorded in the public records of the county, as provided for code enforcement board orders
8 in F.S. § 162.09(3), and shall have the same legal effect as a code enforcement board order.
9 (f) No lien, as provided under this section, shall continue for a period longer than 20 years after
10 the certified copy of an order imposing a fine has been recorded, unless within that time an action
11 to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to
12 foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable
13 attorney's fee, that the party incurs in the foreclosure. The continuation of the lien effected by the
14 commencement of the action shall not be good against creditors or subsequent purchasers for
15 valuable consideration without notice, unless a notice of lis pendens is recorded.
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17 Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
18 inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances
19 and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
20
21 Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the
22 Cape Canaveral City Code and any section or paragraph, number or letter, and any heading may
23 be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical,
24 and like errors may be corrected and additions, alterations, and omissions, not affecting the
25 construction or meaning of this ordinance and the City Code may be freely made.
26
27 Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or
28 provision of this Ordinance is for any reason held invalid or unconstitutional by any court of
29 competent jurisdiction, whether for substantive, procedural, or any other reason, such portion
30 shall be deemed a separate, distinct and independent provision, and such holding shall not affect
31 the validity of the remaining portions of this Ordinance.
32
33 Section 6. Effective Date. This Ordinance shall become effective immediately upon
34 adoption by the City Council of the City of Cape Canaveral, Florida, and pursuant to the City
35 Charter.
36
37 ADOPTED by the City Council of the City of Cape Canaveral, Florida, this 16th day of
38 February, 2021.
39
City of Cape Canaveral
Ordinance No. 09-2021
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10 Bob Hoog, Mayor
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16 ATTEST:
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20 Mia Goforth, CMC
21 City Clerk
22 For Against
23 Mike Brown X
24 Robert Hoog X
25 Mickie Kellum Motion
26 Wes Morrison X
27 Angela Raymond Second
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29 First Reading: January 19, 2021
30 Advertisement: February 4, 2021
31 Second Reading: February 16, 2021
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34 Approved as to legal form and sufficiency
35 for the City of Cape Canaveral only by:
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38 Anthony A. Garganese, City Attorney
City of Cape Canaveral
Ordinance No. 09-2021
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SEAL of Cape Canaveral, Florida