AGENDA MEMORANDUM

 

 

Meeting Date:           September 13, 2010

 

From:                          Fred A. Morrison, City Attorney

 

Subject:                      Ordinance adopting Code Enforcement by Citation

 

 

Staff Recommendation:

Staff recommends adoption the proposed addition to the City Code allowing enforcement of code violations by way of a citation rather than by referral to the Special Magistrate.

 

Analysis:

State law specifies two methods of enforcing municipal codes. The one utilized by Leesburg to date involves giving a violator a warning notice, specifying a reasonable time to come into code compliance. If compliance is not achieved within that time, the violation is referred to the Special Magistrate who may upon finding that a violation exists order the violator to come into compliance by a specific date, and impose a daily fine if compliance is not achieved by that date. This process works well but has drawbacks, chiefly the delay between the referral to a hearing and the date by which the Magistrate orders compliance. No penalty may be assessed until that last date elapses without compliance, meaning several months can go by before any serious action can be taken. This process also is ill suited to violations of ordinances like the Special Events ordinance where the violation is only going to continue for so long as the event is ongoing. By the time the date for compliance in the initial warning notice arrives, the event is over so effectively the ordinances can be violated without any real penalty.

 

For several years the alternate method of enforcement by citation has been available. At one time the Leesburg Code provided for issuance of code enforcement citations in limited circumstances but the procedure was never utilized, mostly because the ordinance was limited in scope. The ordinance now before the Commission would authorize Code Enforcement Officers to issue a citation if the violator does not achieve compliance within a reasonable time after the initial warning, or where as with special events a violation is intermittent, transitory or temporary in nature. The citation is similar to a traffic ticket. The violator can admit the violation and pay the fine assessed under the schedule of penalties set forth in the ordinance, or the violator can contest the citation in which case a hearing is held in front of the County Court. These hearings would require the City to pay a filing fee to the County but if the citation is upheld the County Court could assess that cost against the violator as part of the penalty.

 

The hope is that this will provide Code Enforcement Officers with an additional tool they can use in situations where the current procedure is ineffective. It is not intended to replace the current procedure but rather to supplement it with a remedy that in some instances will be more effective.

 

Options:        

Adopt the ordinance as proposed, adopt the ordinance with amendments, or decline to create a citation method of code enforcement within the City of Leesburg.

 

Fiscal Impact

No material fiscal impact is anticipated. Outflows for filing fees due the County Court may be offset by recovery of those expenses from the violators in cases in which the citation is upheld and by increased revenue from fines paid by violators who would not otherwise have paid monetary penalties under the existing code enforcement system.

 

 

 

Submission Date and Time:    9/16/10 12:11 PM____

 

Department: __City Attorney_____

Prepared by:  ______Fred A. Morrison

Attachments:  Yes____   No ______

Advertised:   ____Not Required ______                      

Dates:   __________________________                     

Newspapers:

_________________________________                                                    

_________________________________           

Revised 6/10/04

 

Reviewed by: Dept. Head ________

 

Finance  Dept. __________________                                     

                              

Deputy C.M. ___________________                                                                         

Submitted by:

City Manager ___________________

 

Account No. _________________

 

Project No. ___________________

 

WF No. ______________________

 

Budget  ______________________

 

Available _____________________

 

 


 

ORDINANCE NO.                                                

 

AN ORDINANCE OF THE CITY OF LEESBURG, FLORIDA, AMENDING ARTICLE IV, DIVISION 2 OF THE CODE OF ORDINANCES OF THE CITY OF LEESBURG, FLORIDA, PERTAINING TO MUNICIPAL CODE ENFORCEMENT, TO ADD §§2 – 76 THROUGH 2 – 86 THERETO, CREATING A CITATION METHOD OF ENFORCING MUNICIPAL CODES; PROVIDING DEFINITIONS; ESTABLISHING PROCEDURES FOR ISSUANCE AND ENFORCEMENT OF CITATIONS; CLASSIFYING VIOLATIONS AND SETTING FORTH PENALTIES FOR EACH CLASSIFICATION; SPECIFYING THE CONTENTS OF A CITATION; PROVIDING FOR HEARINGS IN THE EVENT OF A CONTESTED CITATION; AUTHORIZING ENTRY ONTO PRIVATE PROPERTY AND AUTHORIZING APPLICATION FOR WARRANTS WHERE ACCESS TO PROPERTY IS DENIED; REPEALING CONFLICTING ORDINANCES; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE.

 

BE IT ENACTED BY THE PEOPLE OF THE CITY OF LEESBURG, FLORIDA:

 

SECTION I.

 

Article IV, Division 2 of the Code of Ordinances of the City of Leesburg, Florida, is hereby amended to add thereto the following sections establishing a citation method of enforcing municipal codes:

 

Section 2 – 76.           Intent and purpose.

 

(a)        It is the intent and purpose of Sections 2 – 76 through 2 – 86 to provide a supplemental procedure for the enforcement of city codes and ordinances. Nothing contained herein shall prohibit the city from enforcing its Code and ordinances by any other lawful means, including but not limited to the procedures outlined in Sections 2 – 66 through 2 – 75 of this Code.

 

(b)        It is also the intent and purpose of Sections 2 – 76 through 2 – 86 to enhance the effectiveness of code enforcement within the city by authorizing the enforcement methods and penalties contained in this ordinance for the betterment and promotion of the public health, safety, welfare, and morals of the citizens of the city and to provide an enhanced means of enforcing the ordinances of the city against violations which are irreparable, itinerant or transient in nature.

 


Section 2 – 77.           Definitions.

 

The following words and phrases shall have the meaning ascribed herein unless the context clearly indicates otherwise:

 

City:     The City of Leesburg, Florida, a Florida Municipal Corporation.

 

Code enforcement officer:   Employees or agents of the City, designated as such by the City Manager, whose duty it is to enforce the city Code and ordinances. Code enforcement officers may include, but are not limited to, code inspectors, building inspectors, the building official, law enforcement officers, fire safety inspectors, or any other employee or agent authorized by the City Manager. All such officers employed by the city shall receive training as prescribed by this ordinance and the City Manager.

 

City Commission:            The City Commission of the City of Leesburg, Florida.

 

Person: Individuals, associations, joint ventures, partnerships, corporations, trusts, sole proprietorships, and any and all other groups or combinations and legal entities.

 

Repeat violation:             As that term is defined in the Local Government Code Enforcement Boards Act (Chap. 162, Fla. Stat.).

 

Statute(s):          The Florida Statutes.

 

Violation:         The act of breaking, infringing, or transgressing any provision of the City's Code, ordinances, or other law by a person.

 

Section 2 – 78.           Citation program authorization.

 

(a)        Program adoption. The City hereby adopts a code enforcement citation system to provide an additional and supplemental method of enforcing codes and ordinances enumerated below. The enforcement method shall be by the issuance of citations for violation of duly enacted city codes and ordinances in accordance with the rules and procedures established by this ordinance and the Statutes.

 

(b)        Powers. Code Enforcement Officers, other than sworn law enforcement officers having such power notwithstanding this ordinance, shall not have the power of arrest for purposes of bringing a violation in compliance. For each violation, the Code Enforcement Officer shall determine, using reasonable discretion, whether to prosecute the violation through the civil citation system under this ordinance and/or the code enforcement Special Magistrate.

 


Section 2 – 79.           Applicable codes and ordinances; classifications; conflicting penalties.

 

(a)                All city codes and ordinances under the jurisdiction of the city's code enforcement Special Magistrate may be enforced by citation to the county court, except for enforcement of the Florida Building Code if a building permit has been issued or is not required, or as otherwise prohibited by law. In the event of a conflict between the civil penalties enumerated in this section and a civil penalty specifically enumerated elsewhere in this Code or other ordinances, the more stringent penalty shall apply.

 

(b)               Violations of City codes and ordinances shall be classified and be subject to penalties as listed in the chart below, if the person to whom the citation is issued does not contest the fine:

 

                                                            1st offense        2nd offense     3rd or more

 

Class l                                                 $75.00             $125.00           $250.00

                       

Chap. 3 Advertising and Signs                                    

Chap. 6 Animals

Chap. 11 Garbage and Refuse

Chap. 13 Junked, Wrecked, and Abandoned Property

Chap. 14 Licenses and Business

ANY OTHER NON-LIFE SAFETY VIOLATION

 

Class II                                               $125.00            $225.00           $300.00

 

Chap. 5 Alcoholic Beverages

Chap. 16 Peddlers and Solicitors

Chap. 21 Traffic and Vehicles

Chap. 2 Utilities

Chap. 23 Landscape and Tree Protection

Chap. 24 Vehicles For Hire

 

Class III                                             $200.00           $300.00           $400.00          

 

Chap. 7 Buildings and Building Reg.

Chap. 10 Fire/Prevention/Protection

Chap. 10.5 Flood Damage Prevention

Chap. 12 Health/Sanitation/Nuisances

Chap. 25 Zoning/Land Use

Chap. 26 Special Events

Chap. 28 Stormwater Management

Chap. 30 Historic Preservation          

ANY OTHER LIFE SAFETY VIOLATIONS        

 


Section 2 – 80.           Training of code enforcement officers.

 

(a)        The training and qualifications of the Code Enforcement Officers shall be established by the City Manager.

 

(b)        Except for sworn law enforcement officers, the designation of Code Enforcement Officer under this ordinance does not confer the power of arrest or other law enforcement powers nor subject the Code Enforcement Officers to the provisions of F.S. ch. 943.

 

Section 2 – 81.            Citation powers; personal investigation; reasonable cause.

 

Any Code Enforcement Officer is hereby authorized to issue a citation to a person under this ordinance when, based upon personal investigation, the Code Enforcement Officer has reasonable cause to believe that the person has committed a violation of any code or ordinance, regardless of whether the violation constitutes a repeat violation.

 

Section 2 – 82.           Violations; penalties.

 

(a)        Violation—Civil infraction. A violation of a city code or ordinance is hereby deemed a civil infraction. Further, each violation of a city code or ordinance is a separate civil infraction. Each day such violation continues shall be deemed to constitute a separate civil infraction.

 

(b)        Maximum civil penalty. The maximum civil penalty pursuant to this ordinance shall not exceed five hundred dollars ($500.00) plus all applicable court costs and legislative assessments, per violation.

 

(c)        Contesting citation. Any citation issued pursuant to this ordinance  may be contested in county court.

 

(d)        Refusal to sign citation. Any person who willfully refuses to sign and accept a citation issued by a Code Enforcement Officer shall be guilty of a misdemeanor of the second degree, punishable as provided in §§ 775.082 or 775.083, Fla. Stat., or any amendments or successor sections thereto.

 

(e)        Citation issuance procedure. All citations issued pursuant to this ordinance by a Code Enforcement Officer shall be in accordance with the following procedure:

 

(1)  Warning notice. Except as provided in subsection (2) below, a Code Enforcement Officer shall provide warning notice to the person that the person has committed a violation of a city code or ordinance and shall establish a reasonable time within which the person must correct or stop the violation. Such time period shall be no more than thirty (30) days. The warning notice shall include, but not be limited to, the code or ordinance provision violated, the date of issuance, specified time for compliance, maximum amount of fine if the violation is not corrected, the Code Enforcement Officer's signature, and a place for the signature of the person receiving the warning notice. If, upon personal investigation, the Code Enforcement Officer finds that the person has not corrected the violation within the time period, the Code Enforcement Officer may issue a citation to the person who has committed the violation. The citation shall be in a form proscribed in this ordinance.

 

(2)  Repeat violation, transient or itinerant violation, or serious threat to public. A Code Enforcement Officer is not required to provide the person with a reasonable time period to correct the violation prior to the issuance of a citation and may immediately issue a citation if the Code Enforcement Officer has reason to believe that the violation presents a serious threat to the public health, safety, or welfare, or if the violation is a repeat violation, or is transient, itinerant, irreparable or irreversible.

 

(3)  Delivery of citations. After issuing a citation to a person, the code enforcement officer shall:

 

a.       Deposit the original citation and one (1) copy of the citation with the clerk of the court for the county court;

 

b.      Provide the person cited with one (1) copy; and

 

c.       Retain one (1) copy in the code enforcement officer's case file.

 

(f)        Issuing citations to persons. Written warning notices, if applicable, and citations shall be issued to a person as follows:

 

(1)   If the person is an individual, the code enforcement officer shall issue the warning notice or citation to the person by hand delivery. In the absence of the person who has committed the violation, issuance of a warning notice or citation may be accomplished by leaving a copy of the warning notice or citation at a person's usual place of residence with any person residing therein who is fifteen (15) years of age or older and informing the person of the contents or forwarding a copy of the warning notice or citation by registered or certified mail, return receipt requested.

 

(2)   If the person is a business or other entity, the code enforcement officer shall issue the warning notice or citation with any employee or principal of the entity, during regular business hours, and inform the employee or principal of the contents or by forwarding a copy of the warning notice or citation by registered or certified mail, return receipt requested. Each employee of the business or principal shall be deemed to be an agent of the business for service of warning notices and citations.

 

(3)   Except in the absence of the person who has committed the violation, a code enforcement officer shall require the person to sign and accept a citation being issued. If the person refuses to sign and accept the citation, the code enforcement officer shall write the words "refused to sign" or any other words of similar meaning in the space provided in the citation for the person's signature and shall leave a copy of the citation with the person if possible, or mail a copy to the person, if possible, by registered or certified mail, return receipt requested. Following such refusal to sign and accept, the code enforcement officer shall also contact the city police department to report such violation.

 

Section 2 – 83.           Citation form.

 

A citation issued by a Code Enforcement Officer shall be in a form prescribed by the City Commission by resolution, unless a uniform code citation is promulgated by administrative order issued by the chief judge of the Fifth Judicial Circuit or by statute, then the uniform citation shall be issued by the Code Enforcement Officer. The citation shall contain at a minimum:

 

(1)        The date and time of issuance.

 

(2)        The name and address of the person to whom the citation is issued.

 

(3)        The date and time the civil infraction was committed.

 

(4)        The facts constituting reasonable cause.

 

(5)        The number or section of the code or ordinance violated.

 

(6)        The name and authority of the Code Enforcement Officer.

 

(7)        The procedure for the person to follow in order to pay the civil penalty or to contest the citation, including mailing address for submitting payment, location where payment may be made in person along with days and times fines may be paid in person at that location, date and time when the person issued the citation must appear to contest it if applicable, notification that if the citation is contested and the court finds in favor of the City the county court may impose a fine of up to $500.00 per violation (but no less than the fine imposed by this ordinance or the ordinance which the person is accused of violating, whichever is greater), and a listing of the fines to be levied under this ordinance for Class I, Class II and Class III violations..

 

(8)        The applicable civil penalty if the person elects to contest the citation.

 

(9)        The applicable civil penalty if the person elects not to contest the citation.

 

(10)      A conspicuous statement that if the person fails to pay the civil penalty within the time allowed, or fails to appear in court to contest the citation, the person shall be deemed to have waived his or her right to contest the citation and that, in such case, judgment may be entered against the person for an amount up to the maximum penalty.

 

Section 2 – 84.           Payment of penalty; court hearings.

 

(a)        Citation not contested. If the person elects not to contest the citation, the person shall pay in full the applicable civil penalty, made payable by cash or check to the City of Leesburg, and delivered to the City Clerk’s office, within fourteen (14) calendar days after issuance of the citation. By paying the citation, the person shall be deemed to have admitted the infraction and waived the right to a hearing. The City Clerk shall advise the Code Enforcement Officer who issued the citation to promptly notify, in writing, the clerk of the county court that the person elected not to contest the citation and the matter involving the particular paid citation has been closed and requires no hearing before the court.

 

(b)        Failure to pay citation and request court hearing. If the person cited fails to pay the civil penalty by the fourteenth calendar day after the issuance of the citation or fails to request a court hearing within the time prescribed below, the person shall have waived any right to contest the citation and a judgment shall be entered against the person cited in an amount up to the maximum civil penalty plus applicable court costs. In addition, an order to show cause may be issued by the county judge requiring the person cited to appear in county court to explain the person's failure to pay or request a court hearing. Failure to respond to an order to show cause may result in issuance of an arrest warrant or other lawful action by the court.

 

(c)        Citation contested. if the person elects to contest the citation, the person shall, within fourteen (14) calendar days of issuance of the citation, request, in writing that the clerk of the county court schedule a hearing before a county judge. The person shall immediately notify the City Manager of the request for hearing by U.S. mail or hand delivery. The hearing shall be scheduled as soon as the court calendar allows.

 


(d)        Hearing on the citation.

 

(1)        Judicial determination. A county judge, after a hearing on the citation, shall make a determination whether or not a violation of the code or ordinance cited has been committed. If a violation is found to have occurred, the county judge may order the violator to correct the violation and may impose a civil penalty up to the maximum civil penalty plus all applicable costs of prosecution and legislative assessments, plus applicable court costs; in no event, however, shall such civil penalty imposed by the county judge be less than the reduced civil penalty set forth herein.

 

(2)        Civil penalties. The county judge may provide for the civil penalty to be paid, and the violation to be corrected, within such time as the county judge determines to be appropriate. If the person found to be in violation fails to pay the civil penalty or correct the violation within the time provided, a civil judgment shall be entered against that person in an amount up to the maximum civil penalty plus applicable court costs.

 

(e)        Failure to appear at hearing. Should the person cited schedule a hearing as provided for herein and thereafter fail to appear at such hearing, the person shall be deemed to have waived the right to contest the citation, and a civil judgment shall be entered against the person in an amount up to the maximum civil penalty plus applicable court costs; provided, however, that the court shall have the discretion to continue or reschedule any hearing when it determines that doing so will further the interest of justice. In such an event, the clerk of the court shall notify the Code Enforcement Officer and the person cited of the date and time of the hearing. In addition, an order to show cause may be issued by the county judge requiring the person cited to appear in county court to explain the person's failure to appear at the hearing. Failure to respond to the order to show cause may result in issuance of an arrest warrant.

 

(f)        Failure to comply with court order. Should the person cited willfully fail to comply with a court order to abate or correct the violation, the court, after due notice and hearing on the matter, may hold the violator in civil contempt and may enter an order to that effect.

 

(g)        Civil judgment; lien. In the event that a civil judgment is entered against the person cited as provided herein, the city may record a certified copy of said judgment in the official records of the county and the same shall thereafter constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator.

 

(h)        Recording of court order. In the event that an order is entered finding that a violation of the ordinance cited has been committed, the City may record a certified copy of said order in the official records of the county and the same shall thereafter constitute notice to and be binding upon the violator and any subsequent purchasers, successors in interest or assigns if the violation concerns real property, and the findings therein shall be binding upon the violator and any subsequent purchasers, successors in interest or assigns if the violation concerns real property.

 

(i)         Payment of civil penalty. Payment of any civil penalty imposed by civil judgment or county judge shall be made to the clerk of the court, who shall forward the monies collected to the City Manager. If a judgment has been entered for the civil penalty, the clerk of the court shall notify the City when the judgment has been paid and the necessary satisfaction of judgment shall be prepared and recorded in the official records of the county.

 

Section 2 – 85.           Authorization to enter upon property; inspection warrant.

 

(a)        Right to enter upon property. A Code Enforcement Officer shall have the right to enter upon private real property in accordance with applicable federal and state law.

 

(b)        Access denied; inspection warrant. If entry upon private real property is denied, the City Manager is hereby authorized to direct the City Attorney to obtain an inspection warrant from a court of competent jurisdiction for purposes of authorizing a Code Enforcement Officer to inspect the private real property and personal property thereon. The court is authorized to issue such warrant if it determines that the Code Enforcement Officer has a well founded, reasonable suspicion that a violation exists on, within or under the real property in question.

 

Section 2 – 86.           Penalties if citation is contested; penalties may be assessed in other ordinances; penalties not otherwise specified.

 

(a)        All violations of city codes and ordinances shall be classified and assigned civil penalties as set forth in §2 – 79, if the citation and fine are not contested. If the citation is contested then the county court may impose a fine of up to $500.00 per violation (but in no event less than the fine specified in §2 – 79) plus taxable court costs.

 

(b)        Any City code or ordinance enacted subsequent to the adoption of this ordinance  may set forth the applicable civil penalty for violations by designating the appropriate violation classification provided in this section.

 

(c)        All City Code provisions and ordinances which are subject to this ordinance and do not specifically set forth an applicable civil penalty for a violation thereof shall be penalized as a class I violation.

 


SECTION II.

 

All ordinances or part of ordinances which are in conflict with this Ordinance are hereby repealed, to the extent necessary to alleviate the conflict, but shall continue in effect insofar as they are not in conflict herewith, unless repeal of the conflicting portion destroys the overall intent and effect of any of the conflicting ordinance, in which case those ordinances so affected shall be hereby repealed in their entirety.

 

 

 

SECTION III.

 

If any portion of this Ordinance is declared invalid or unenforceable, and to the extent that it is possible to do so without destroying the overall intent and effect of this Ordinance, the portion deemed invalid or unenforceable shall be severed herefrom and the remainder of the ordinance shall continue in full force and effect as if it were enacted without including the portion found to be invalid or unenforceable.

 

SECTION IV.

 

This Ordinance shall become effective upon its passage and adoption according to law.

 

PASSED AND ADOPTED at the regular meeting of the City Commission of the City of Leesburg, Florida, held on the                   day of                                                 , 2010.

 

 

 

                                                                                    THE CITY OF LEESBURG, FLORIDA

 

 

 

                                                                                    BY:                                                                 

                                                                                                MAYOR

 

 

 

Attest:                                                                        

            CITY CLERK