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Ordinance 2005-55 rI,.'ö'¿12.8 29 aò o ~~ ~ ~~ Q [-OCT 2005 ~ ï R£&£\V£D ! ~~ ~ro N ORDINANCE TO BE KNOWN AS THE COLLIER COUNTY ~<t9l """f:> CODE ENFORCEMENT BOARD AND PUBLIC NUISANCE 9L 171. £,,'1, ABATEMENT ORDINANCE; SETTING FORTH THE FINDINGS AND PURPOSE; PROVIDING FOR TITLE AND CITATION; PROVIDING FOR APPLICABILITY; PROVIDING DEFINITIONS; ESTABLISHING THE COMPOSITION, APPOINTMENT AND TERMS OF MEMBERS, VACANCIES AND REMOVAL OF MEMBERS; ESTABLISHING THE ORGANIZATION OF THE ENFORCEMENT BOARD; SETTING FORTH THE POWERS AND DUTIES OF THE ENFORCEMENT BOARD; PROVIDING ENFORCEMENT PROCEDURES; ESTABLISHING SUBPOENA PROCEDURES; PROVIDING FOR CONDUCT OF HEARING; ESTABLISHING PENALTIES; PROVIDING FOR COSTS FOR NUISANCE ABA TEMENT CASES; PROVIDING A PROCEDURE FOR REHEARING OF ENFORCEMENT BOARD ACTION; PROVIDING FOR APPEALS; PROVIDING A PROCEDURE FOR NOTICES; PROVIDING FOR A SUPPLEMENT AL PROVISION; REPEALING COLLIER COUNTY CODE ENFORCEMENT I BOARD ORDINANCE NOS. 92-80; 96-78; 98-20 AND 99-26 AND COLLIER COUNTY NUISANCE ABATEMENT BOARD ORDINANCE NO. 96-11; PROVIDING FOR INCLUSION INTO THE CODE OF LAWS AND ORDINANCES; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING AN EFFECTIVE DATE. ORDINANCE NO. 05- ~ 5 WHEREAS, Article VIII of the Constitution of the State of Florida authorizes Florida counties to exercise broad home rule powers; and WHEREAS, Subsection 125.01(1), Florida Statutes, provides that the legislative and governing body of a county shall have the power to carryon county government and that said power includes but is not limited to, a number of powers set forth in Section 125.01, so long as any powers exercised are not inconsistent with general or special law; and.,,) ~'^ :::::-'-'-:'.-::1 ,I' L,__._.. WHEREAS, Subsection 125.01(1)(t), Florida Statutes, provides that a c~µpty ~y ~g~t .' I~ ) iJ ;1 ordinances and resolutions necessary for the exercise of its powers and pre,~pbe ~esæ.id penalties for the violation of ordinances in accordance with law; and : :: .~" ~ ',:-, H WHEREAS, Subsection 125.01(1), Florida Statutes, enumerates counW'po~s ~h -; .:: '.=:J i,"""" include, but are not limited to: providing for the prosecution and defense of¿~!~al £Buses on .".~ . ' r '~_..J behalf of the County; establishing and enforcing zoning and business reg1:¡lations as are necessary for the protection of the public; establishing and enforcing regulations for the sale of alcoholic beverages in unincorporated areas of the County pursuant to general law; entering into agreements with other governmental agencies within or outside the boundaries of the County for joint perfonnance or perfonnance by one unit :)!l behalf of the other of any of either agency's authorized functions, the perfonnance of any other acts not inconsistent with law, which acts are in the common interest of the people of the County; and the exercise of all powers and privileges not specifically prohibited by law; and WHEREAS, Subsection 125.01(3)(a) and (b), Florida Statutes, recognizes that the enumeration of powers in Subsection 125.01(1), Florida Statutes, incorporates all implied powers necessary or incident to carry out those powers and that Section 125.01, Florida Statutes, shall be I liberally construed in order to effectively carry out the purpose of the section and to secure for counties the broad exercise of home rule powers authorized by the State Constitution; and WHEREAS, Collier County has a population of greater than 50,000 and that the fine structure allowed by Subsection 162.09(2)(b), Florida Statutes, is necessary to achieve code and ordinance compliance; and WHEREAS, Section 162.02, Florida Statutes, authorizes the creation of administrative boards, with authority to impose administrative fines and other non-criminal penalties, in order to provide an equitable, expeditious, effective and inexpensive method of enforcing the codes and ordinances of Collier County; and WHEREAS, Subsection 162.08(5), Florida Statutes, provides that an administrative board shall have the power to issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance; and WHEREAS, Section 162.13, Florida Statutes, provides that it is the legislative intent of Sections 162:01-162.12, Florida Statutes, to provide an additional or supplemental means of I obtaining compliance with local codes and that nothing contained in those sections shall prohibits a local governing body from enforcing its codes by any other means; and WHEREAS, the Commission has determined that it is the best interest of the citizens of Collier County to create Code Enforcement Boards as additional means of enforcement; and WHEREAS, Section 893.138, Florida Statutes, authorizes counties to create local administrative boards with authority to abate drug-related, prostitution-related, or stolen property-related public nuisances, as well as criminal gang activity; and WHEREAS, Section 823.05, Florida Statutes, declares certain places and premises to be a nuisance and further provides that such places or premises shall be abated or enjoined as provided in Sections 60.05 and 60.06, Florida Statutes; and WHEREAS, the Commission has determined that any places or premises which are used as the site of illegal or nuisance activities including, but not limited to, unlawful sale and delivery of controlled substances, prostitution, criminal gang activity, are a public nuisance that adversely affects the public health, safety, morals and welfare; and WHEREAS, ongoing and recent law enforcement activities conducted by the Collier County Sheriff indicate that there are premises and places within Collier County which are used as the site of illegal and/or nuisance activities including, but not limited to, unlawful sale or delivery of controlled substances, prostitution, gang activity, gambling, illegal sale or consumption of alcoholic beverages, or lewd or lascivious behavior; and WHEREAS, the Commission has determined that abating public nuisances which result from illegal activity is necessary to improve the quality of life for the residents of Collier County and that abatement of illegal activity will safeguard the public health, safety and welfare and to the extent possible, eliminate the adverse and negative secondary effects of public nuisances on surrounding neighborhoods; and WHEREAS, the Commission desires to minimize, control and, to the extent possible, eliminate the adverse and negative secondary effects of public nuisances on surrounding neighborhoods and areas and thereby protect the health, safety and welfare of the citizenry, protect the citizens from increased crime, preserve the quality of life, and preserve the property 2 values and character of surrounding neighborhoods, as well as deterring the spread of urban b light; and WHEREAS, Section 60.05, Florida Statutes, authorizes the County Attorney, among others, to sue in the name of the State on his or her relation to enjoin nuisances, the person maintaining same, or the owner or agent of the building or ground on which the nuisance exists; and WHEREAS, it is the intent of this Ordinance to enact and enforce public nuisance laws in a manner and through procedures which respect and uphold the constitutional due process rights of all affected citizens and property owners. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA that: SECTION ONE: Findings and Purpose. 1. It is the intent and purpose of this Ordinance to promote, protect and improve the health, safety and welfare of the citizens of Collier County by authorizing the creation of administrative boards, with authority to impose administrative fines and other non-criminal penalties, in order to provide an equitable, expeditious, effective and inexpensive method of enforcing the codes and ordinances of Collier County, where a pending or repeated violation continues to exist, including, but not limited to housing, occupational licenses, development standards, zoning, sign and noise codes. 2. Chapter 162, Florida Statutes, entitled Local Government Code Enforcement Boards Act, authorizes a County to establish local code enforcement boards. 3. It is in the best interests of the citizens of Collier County to create a Code Enforcement Board process as additional means for the enforcement of its Codes and Ordinances. 4. The Commission hereby finds and declares that any places or premises which are used as the site of criminal, illegal and/or nuisance activities including, but not limited to, unlawful sale, possession (where such possession constitutes a felony and the site has previously been used on more than one occasion as a site of unlawful sale, delivery, manufacture or cultivation of any controlled substance) or delivery of controlled substances, prostitution, gang activity, gambling, illegal sale or consumption of alcoholic beverages, or lewd or lascivious behavior, are a public nuisance that adversely affects the public health, safety, morals and welfare. The Board further finds that abating public nuisances which result from illegal and/or criminal activity is necessary to improve the quality of life for the residents of Collier County and that said abatement will safeguard the public health, safety and welfare. 5. It is the purpose of this Ordinance to abate public nuisances and thereby protect and promote the public health, safety, welfare and morals of the citizens of the County. It is also the purpose of this ordinance to achieve said nuisance abatement goal by utilizing the Collier County Code Enforcement Board and any other lawfully authorized procedures which afford due process and respect and uphold the constitutional rights of all affected by this Ordinance, including, but not limited to, property owners. This Ordinance is hereby declared to be remedial and essential to the public interest and it is intended that it be liberally construed to effectuate its stated purpose. The provisions of this Ordinance shall be cumulative and supplemental to any provisions of the Florida Statutes, Collier County ordinances, or any other applicable law. 3 SECTION TWO: Title and Citation. This Ordinance shall be known and may be cited as the "Collier County Code Enforcement Board and Public Nuisance Abatement Board Ordinance" SECTION THREE: Applicability. The provisions of this Ordinance shall apply to, and be enforced in, the unincorporated areas of the County. This Ordinance shall apply to, and be enforced in, any municipalities within Collier County that agree by resolution of the governing body of the municipality to have this Ordinance apply and be enforced in the municipality. SECTION FOUR: Definitions. The following words, terms and phrases, when used in this Ordinance, shall have the meanings ascribed to them in this section: 1. Enforcement Board means a Collier County Code Enforcement Board, which may act \ as a Collier County Nuisance Abatement Board from time to time. 2. Commission means a the Board of County Commissioners who is the local governing body in and for Collier County, Florida. 3. County Attorney means the legal counsel to the Commission. 4. Issuing Officer means a code enforcement official or any authorized agent or employee of Collier County whose duty it is to assure code and ordinance compliance and who is responsible for the enforcement of county codes. 5. Lien means a claim for unpaid civil penalties imposed by the Code Enforcement Board. 6. Person means an individual, association, firm, partnership, corporation, or other legal entity. 7. Prosecutor means the County Attorney, an Assistant County Attorney, or any member of the County staff who presents cases before an Enforcement Board. 8. Repeat violation shall mean a violation of a provision of a code or ordinance by a person who has been previously found through an Enforcement Board, Special Master, or any other quasi-judicial or judicial process, to have violated the same provision within five (5) years prior to the violation, notwithstanding the former and present violations occur at different locations. 9. Public Nuisance means those nuisances as identified in either Sections 893.138 or 823.05 of the Florida Statutes, or other statute or ordinance declaring public nuisances. 10. Secretary or Secretary to the Board means the administrative staff personnel in the Code Enforcement Department responsible for the preparation, development and coordination of all administrative and case management services necessary for the proper functioning of the board(s). 11. Violator means a person (the property owner, tenant, or business entity on the premises, or any combination thereof) alleged to, or who has been found to have violated any code or ordinance of Collier County, which a Code Enforcement Board has jurisdiction to enforce. 4 SECTION FIVE: Composition; Appointment and Terms of Members; Vacancies; Removal of Members. l. There shall be one (1) or more Enforcement Boards which shall, from time to time, also function as the Nuisance Abatement Board. The Enforcement Board shall have jurisdiction to hear and decide cases in which violations are alleged of any provision of Collier County Codes or Ordinances. 2. The Enforcement Board shall be comprised of seven (7) members and two (2) alternate members appointed by the Commission. Members of the Enforcement Board shall include, whenever possible, an architect, a businessperson, an engineer, a general contractor, a subcontractor, and a realtor. 3. Each member of the board shall be a permanent resident and elector of Collier County and shall serve without compensation. 4. Members may be reimbursed for such travel, mileage, and per diem expenses as may be authorized, in advance, by the Commission. , 5. Terms of office shall be in accordance with Ordinance No. 2001-55 or its successor ordinance. 6. Board member attendance requirements, including failure to attend meetings and removal from office, shall be governed by Ordinance No. 2001-55 or its successor ordinance. The members shall serve at the pleasure of the Commission and may be suspended and removed for cause by a majority vote of the quorum of the Commission. If any member becomes a candidate for public elected office, or becomes and employee of the County, his membership will automatically terminate. 7. An Alternate member shall act only in the absence, or disqualification, of a regular board member. The initial appointments to the board shall be as follows: a) Two (2) members shall be appointed for a term of one (1) year; b) Three (3) members shall be appointed for a term of two (2) years; c) Two (2) members shall be appointed for a term of three (3) years; d) One (1) alternate member shall be appointed for a term of two (2) years and one (1) alternate member shall be appointed for a term of three (3) years. e) Thereafter, all appointments shall be made by the Commission for a term of three (3) years. f) In the event any member's term, including that of any alternate member's term, expires during the pendency of a case(s) which has not reached conclusion by a final vote, such member's expired term shall automatically be extended for the limited time and for the limited purpose of presiding over such particular case(s) until conclusion and final vote and the time for rehearing has passed. In the event a rehearing is granted, such member's term shall continue for the limited time and limited purpose to rehear the matter and reach conclusion by final vote. SECTION SIX: Organization of the Enforcement Board. 5 1. An Enforcement Board shall consist of a chairperson, a vice-chairperson, and such other officers, as the Board shall deem necessary, after election to such position by the Board members who shall be regular voting members. 2. Officers of an Enforcement Board shall be elected by a majority vote of the membership at the first meeting of the Board, after the initial appointment of the membership and annually thereafter. 3. A minimum of four (4) members of an Enforcement Board shall constitute a quorum. An alternate member shall be considered as one (1) of such members for quorum purposes. 4. An Enforcement Board may adopt such rules and regulations as deemed necessary to carry out their duties consistent with the provisions of this Ordinance and Chapter 162, Florida Statutes, the Local Government Code Enforcement Boards Act, subject to approval by the Commission. 5. The Commission shall provide such clerical and administrative personnel and legal services as may be reasonably required by an Enforcement Board for the proper performance of its duties. 6. The Commission shall appoint an attorney who is a member of the Florida Bar, either residing or practicing in the County, to represent and act as legal counsel to the Enforcement Board, and such person shall attend all meetings of the Board. The attorney shall be compensated as provided by the Commission. 7. The Enforcement Board shall be reviewed by the Commission, in accordance with Collier County Ordinance No. 2001-55, as it may be amended. SECTION SEVEN: Powers and Duties. I. The Collier County Enforcement Board shall have the power to: a) Adopt rules and regulations for the conduct of its hearings; b) Subpoena alleged violators and witnesses to appear at its hearings, which subpoenas may be served by the Collier County Sheriff or a duly authorized person; c) Subpoena evidence including, but not limited to, records, surveys, plats, and other documentary evidence, which subpoena may be served by the Collier County Sheriff or a duly authorized person; d) Take testimony under oath; e) Hold hearings on Notices of Violations; f) Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance; g) Assess administrative fines, costs, and to impose liens and order the payment of such fines, as provided for herein; h) Authorize the County Attorney, or his designee, to foreclose on a lien or sue to recover a money judgment for unpaid fines and costs imposed by the Enforcement Board; and i) Uphold any other powers and duties granted by Chapter 162, Florida Statutes, the Local Government Code Enforcement Board Act. 6 SECTION EIGHT: Enforcement Procedures before the Enforcement Board. 1. Matters brought to the Enforcement Board shall be scheduled on the applicable agenda consistent with the following procedures: A. Alleged violations of any code or ordinance may be filed with the Code Enforcement Department by citizens or those administrative officials who have the responsibility of enforcing the various codes and ordinances in force in Collier County. B. If a violation(s) of a code or ordinance is believed to exist, the issuing officer shall provide notice and specify a reasonable time to correct the violation(s). Notice shall be given in writing and shall specify the alleged violation, the required corrective action and the time period for correction. C. Should any violation continue beyond the time specified for correction, the Secretary to the Board shall give notice to the violator that a hearing will be conducted concerning the alleged violation(s) as noticed. The Notice shall state the time and place \ of the hearing, as well as the violation(s) which are alleged to exist. D. If the violation is corrected and then reoccurs or if the violation is not corrected by the time specified for correction by the issuing officer may either issue a citation or schedule the case for hearing. If the issuing officer initiates the hearing process, the case may be brought for hearing even if the violation has been corrected prior to hearing, and the notice of hearing shall so state. E. If the issuing officer has reason to believe a violation or the condition causing the violation presents a serious threat to the public health, safety and welfare or if the violation is irreparable or irreversible in nature, the issuing officer shall make a reasonable effort to notify the violator and may immediately notify the Enforcement Board and request a hearing. Under such circumstances, the issuing officer shall not be required to adhere to the notice and time requirements as set forth above. F. If a repeat violation is found, the Code Investigator shall notify the violator but is not required to give the violator reasonable time to correct the violation. The issuing officer, upon notifying the violator of a repeat violation, may request a hearing. The Code Enforcement Department shall give notice to the violator as set forth in paragraph C. of this Section. The case may be brought for hearing even if the repeat violation has been corrected prior to hearing, and the notice of hearing shall so state. G. If the owner of property which is subject to a code enforcement proceeding transfers ownership of such property between the time the notice of violation was served and the time of the hearing, such owner shall: 1) Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee; 2) Deliver to the prospective transferee a copy of the notices and other materials relating to the code enforcement proceeding received by the violator/transferor; 3) Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding; and 7 4) File a notice with the Code Enforcement Department of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within five (5) days after the date of the transfer. 5) A failure to make the disclosure described above and before the transfer creates a rebuttable presumption of fraud. If the property is transferred before the hearing, the hearing shall not be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation before the hearing is held. 2. Matters brought to the Public Nuisance Abatement Board shall be scheduled on a separate agenda in accordance with the following procedures: A. Any employee, officer or resident of Collier County may make a complaint and request for prosecution of public nuisances before the Nuisance Abatement Board, for public nuisance(s) located within the area of Collier County as set forth in Section Three of this Ordinance. Said complaint shall be made with the Collier County Sheriffs Office I if the complaint involves criminal activity as the underlying basis for the nuisance complaint. Any non-criminal nuisance complaints shall be made with the Collier County Code Enforcement Department. B. Upon the making of more than two (2) complaints within a six (6) month period on any particular place or premises, the Collier County Code Enforcement Supervisor or hislher designee shall mail written notice of such complaints by hand delivery or by certified mail, return receipt requested, to the owner of the place or premises complained of at the owner's address listed in the tax collector's office of tax notices. Said notice shall provide for the owner of the place or premises to contact the Collier County Code Enforcement Department within fourteen (14) days of receipt of the notice. This time period shall be allowed for the purpose of allowing the owner to take such good faith measures as are appropriate to abate the nuisance. The Code Enforcement Supervisor or his/her designee may extend the fourteen (14) days to allow the owner to initiate or continue actions to abate the nuisance, provided that the actions taken are reasonable. C. In the event the owner fails to respond to the notice from Collier County Code Enforcement or fails to take reasonable action to abate the nuisance within the time frames set forth above, the Secretary to the Board shall schedule a hearing on the complaint before the Nuisance Abatement Board. The Sheriffs Office shall provide the Prosecutor with the results of its investigation of the complaint and also assist in serving any notices required under this Ordinance. The Sheriff's Office shall also make available the Sheriff's staff witnesses to appear before the Nuisance Abatement Board without need for subpoena. D. Written notice of a hearing before the Nuisance Abatement Board shall be provided by the Secretary to the Board by certified mail, return receipt requested, to the owner of the place or premises and to the complainant at least ten (10) calendar days prior to the scheduled hearing. Said notice shall include: (1) A statement of the time, place and nature of the hearing; (2) A statement of the legal authority and jurisdiction under which the hearing is to be held; 8 (3) A reference to the particular sections of the statutes and ordinances involved; and (4) A short and plain statement summarizing the nuisance, which is the subject of the complaint. SECTION NINE: Subpoena Procedures. 1. Every subpoena for testimony before an Enforcement Board or Nuisance Abatement Board shall be approved in advance of issuance by the Enforcement Board or Nuisance Abatement Board. Each subpoena shall state the name of the Enforcement Board, the title of the action, the case number of the action, the name and address of the person to whom the subpoena is issued, and the time, place and location of the hearing at which the person is directed to appear, and shall be prepared by the party requesting issuance. 2. A subpoena for production of documentary evidence may also be issued to command the person to whom it is directed to produce the books, papers, documents or tangible items designated therein. The Enforcement Board, upon motion made timely and in any event at or \ before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable or oppressive, or (2) condition denial of the motion upon the advancement by the person on whose behalf the subpoena is issued of the reasonable cost of producing the requested books, papers, documents or tangible items. 3. A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party to the action and who is not less than eighteen (18) years of age. Proof of such service shall be made by affidavit of the person making service if not served by an officer authorized by law to do so. Proof of service shall be filed with the secretary of the Enforcement Board. The party at whose request the service is made shall make payment of any service fee. 4. Persons subpoenaed shall be entitled to a witness fee and mileage compensation as provided for in Section 92.142, Florida Statutes. The cost of the witness fee and mileage compensation shall be borne by the party at whose request the subpoena is issued and shall be paid to the witness at or before the time of service of the subpoena. SECTION TEN: Conduct of Hearing. I. Hearings relating to violations of local codes and ordinances shall be conducted in the following manner whether being held by the Code Enforcement Board or Nuisance Abatement Board. a) Upon request of the issuing officer, or at such times as may be necessary, a hearing before the Enforcement Board may be convened. b) All hearings shall be open to the public and any person whose interests may be affected by the matter before the Enforcement Board shall be given an opportunity to be heard. Official minutes of all hearings shall be kept. c) Hearings may be informal and need not be conducted in accordance with the technical rules relating to evidence and witnesses. They shall, however, be conducted in accordance with accepted parliamentary procedures relative to motions, votes and decisions. Fundamental due process shall be observed and shall govern all hearings. 9 d) At the hearing, the burden of proof shall be upon the prosecutor to show by the greater weight of evidcnce that a violation(s) does exist and that the violator committed, or was responsible for maintaining or allowing the violation to continue. e) Where notice of the hearing has been provided to the violator as provided for herein, a hearing may be conducted and an order rendered even in the absence of the Violator. f) All testimony shall be under oath and shall be recorded by a certified court reporter and/or a recording instrument. The violator may cause the proceedings to be recorded by an independent certified court reporter. g) All relevant evidence shall be admitted if, in the opinion of the Enforcement Board, it is the type of evidence upon which reasonable persons would normally rely in the conduct of business affairs, regardless of the existence of any common law or statutory rule which might make such evidence inadmissible over objection in civil actions. Any part ofthe evidence may be received in written form. \ h) Hearsay evidence may be accepted for the purpose of supplementing or explaining any direct evidence, but such hearsay evidence shall not in and of itself be considered sufficient to support a finding or decision. i) Each party to the hearing shall have the right to call and examIne witnesses, introduce exhibits, cross-examine opposing witnesses, impeach witnesses and rebut evidence. The violator may be represented by legal counsel at all hearings. j) At the conclusion of the hearing, an oral decision (order) shall be issued based on evidence entered into the record. The decision shall then be sent to the respondent in the form of a written order including findings of fact, and conclusion of law based on evidence of record. k) Should an Enforcement Board be unable to issue a decision immediately following any hearing because of questions of law or other matters of such nature that a decision cannot be immediately made, the Enforcement Board may withhold issuing its decision until a subsequent meeting. In such case, further discussion of the pending matter and all deliberations relating thereto by members of an Enforcement Board shall occur at a public meeting of the Enforcement Board. The Board shall thereafter issue its decision pursuant to Subsectionj. of this Section. I) A certified copy of such order may be recorded in the public records of Collier County and shall constitute notice to any subsequent purchasers, successors in interest, or assigns as the violations concerns real property, and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers, successors in interest, or assigns. m) If Collier County prevails in prosecuting a case before the Enforcement Board, it shall be entitled to recover all costs incurred in prosecuting the case before the Enforcement Board. Whether and to what extent such costs are imposed shall be within the discretion of the Enforcement Board but shall not exceed the costs incurred. 2. The Collier County Code Enforcement Department shall present cases before the Nuisance Abatement Board. The Collier County Sheriff's Office shall only be responsible for 10 receiving and investigating complaints, sharing said investigative information with the Code Enforcement Department, notifying the Code Enforcement Department of the need to schedule hearings, assisting the Code Enforcement Department staff in serving any notices required under this Ordinance and making available investigative witnesses at Nuisance Abatement Board hearings, as generally set forth in Section Eight of this Ordinance. All parties shall have an opportunity to present evidence and argue on all issues involved, to conduct cross-examination and submit rebuttal evidence, and to be represented by counsel. Where appropriate, the public may be given an opportunity to present oral or written communications. If the Nuisance Abatement Board proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut said material. All testimony shall be under oath and shall be recorded. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. Orders of the Nuisance Abatement Board shall be based on competent and substantial evidence and must be based on a preponderance of the evidence. \ 3. After considering all evidence, the Nuisance Abatement Board may declare the place or premises to be a public nuisance, as defined in this Ordinance and applicable Florida Statutes, and may enter an order immediately prohibiting: a) the maintaining of a nuisance; b) the operating or maintaining of the place or premises, including the closure of the place or premises or any part thereof; c) the conduct, operation or maintenance of any business or activity on the premises which is conducive to such nuisance. An order entered under Subsection 2. shall expire after one year or at such earlier time as stated in the order. The Nuisance Abatement Board may retain jurisdiction to modify its orders prior to the expiration of said orders. 4. The Nuisance Abatement Board or any other authorized person, may bring a complaint under Section 60.05, Florida Statutes, seeking a permanent injunction against any public nUIsance. SECTION ELEVEN: Penalties before Enforcement Board. 1. Upon a finding of violation, the Code Enforcement Board may order the violator to pay a fine which shall not exceed one thousand dollars ($1,000.00) per day per violation for each day the first violation continues past the date set for compliance by the Code Enforcement Board; or in the case of a repeat violation, may order the repeat violator to pay a fine which shall not exceed five thousand dollars ($5,000.00) per day per violation for each day the repeat violation continues past the date set for compliance by the Code Enforcement Board, or from the time the violation has been repeated, and a hearing shall not be necessary for the issuance ofthe order. If the Enforcement Board finds a violation to be irreparable or irreversible in nature, it may impose a fine not to exceed fifteen thousand dollars ($15,000.00) per violation. 1 I 2. In determining the amount of the fine, if any, an Enforcement Board shall consider the following factors: A. The gravity of the violation; B. Any actions taken by the violator to correct the violation; and C. Any previous violations committed by the violator. 3. The Nuisance Abatement Board may order the violator to pay a fine which shall not exceed Two Hundred and Fifty dollars ($250) per day for each day the first violation continues past the date set for compliance; or in the case of a repeat violator, may order the repeat violator to pay a fine which shall not exceed Five Hundred dollars ($500) per day. 4. Where the Nuisance Abatement Board hears an administrative action, based on a stolen property nuisance, against a property owner operating an establishment where multiple tenants, on one site, conduct their own retail business, the property owner shall not be subject to a lien against his or' her property or the prohibition of operation provision if the property owner evicts \ the business declared to be a nuisance within 90 days after notification by registered mail to the property owner of a second stolen property conviction of the tenant. The total fines imposed pursuant to the authority of Section 893.138, Florida Statutes, shall not exceed Fifteen Thousand dollars ($15,000). 5. A certified copy of an Enforcement Board's order imposing a fine may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation occurred or exists and upon any other real or personal property owned by the violator; and shall be superior to the interest on such parcel or property of any owner, lessee, tenant mortgagee or other person except the lien of county taxes, and shall be coequal with County taxes enforced in the same manner as a court Judgment by the sheriffs of this State, including levy against personal property, but shall not be deemed to be a court judgment except for enforcement purposes. After three (3) months from the filing of any such lien which remains unpaid, the Enforcement Board may authorize the County Attorney to foreclose on the lien or forward the lien to a collection agency. No lien created pursuant to this Ordinance may be foreclosed on real property, which is a homestead under Article X, Section 4 of the Florida Constitution. 6. No lien provided under this Ordinance shall continue for a period longer than twenty (20) years after the certified copy of an order imposing a fine has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. The continuation of the lien affected by the commencement of the action shall not be good against creditors or subsequent purchasels for valuable consideration without notice, unless a Notice of Lis Pendens is recorded. SECTION TWELVE: Costs for Nuisance Abatement cases. In the event the Nuisance Abatement Board declares a place or premises to be a nuisance and issues an order pursuant to Section Ten of this Ordinance, the Nuisance Abatement Board shall assess against the owner of the place or premises the costs which the County, its attorney and/or the Sheriff's Office have incurred in the preparation, investigation and presentation of the case. These costs shall be due and payable 20 days after the written order of the Nuisance Abatement 12 Board has been filed in the public records. A certified copy of an order imposing costs may be recorded in the official records and thereafter shall constitute a lien against the land on which the violation exists or, if the violator does not own the land, upon any other real or personal property owned by the violator. Upon petition to the Circuit Court, said order/lien may be enforced in the same manner as a court judgment except for enforcement purposes. After (1) year from the filing of any such lien, which remains unpaid, Collier County may foreclose or otherwise execute on the lien with recovery of all costs, including reasonable attorney fees, associated with the recording of the order and foreclosure. Interest shall accrue on the unpaid costs at the legal rate of interest set forth in Section 55.03, Florida Statutes, as said statute may be amended, or replaced or superseded from time to time. No lien created pursuant to the provisions of this Ordinance may be foreclosed on real property that is homestead under Article X, Section Four of the Florida Constitution. SECTION THIRTEEN: Rehearing of Enforcement Board Action. I 1. Either the prosecutor or the violator may request a rehearing of the decision of an Enforcement Board. A request for rehearing shall be made in writing and shall be filed with the Secretary to the Enforcement Board within ten (10) days of the date of receipt of the Board's written order, but in no event more than 20 days from the date of mailing of the written order. A request for rehearing shall be based only on the ground that the decision was contrary to the evidence or that the hearing involved an error on a ruling of law, which was fundamental to the decision of the Enforcement Board. The written request for rehearing shall speci fy the precise reasons therefore. 2. The Enforcement Board shall make a determination whether to rehear the matter and its decision shall be made at a public meeting, reduced to writing, and mailed to the interested parties within 10 days after the date the decision is made. If the Enforcement Board determines it will grant a rehearing, it may: A. Schedule a hearing where the parties will be given the opportunity of presenting evidence or argument limited by the Enforcement Board to the specific reasons for which the rehearing was granted; or B. Modify or reverse its prior order, without receiving further evidence, providing that the change is based on a finding that the prior decision of the Enforcement Board resulted from a ruling on a question of law which the Enforcement Board has been informed was an erroneous ruling. 3. The original order of the Enforcement Board shall be stayed and the time for taking an appeal, pursuant to Section Fourteen of this Ordinance, shall not commence to run until a request for rehearing has been denied or otherwise disposed of and the written decision has been received by the interested parties; provided, however, that in no event shall the order be stayed for a period longer than 20 days from the date of mailing of the rehearing decision. SECTION FOURTEEN: Appeals. 1. Any aggrieved party, including the Commission, may challenge a final administrative order of an Enforcement Board to the Circuit Court. Such challenge shall not be a hearing de 13 novo but shall be limited to appellate review of the record created before the Enforcement Board. Any appeal shall be filed within thirty (30) days of the execution of the order to be appealed. 2. In the event that a party to the proceedings before an Enforcement Board should elect to appeal, a verbatim record of the proceedings may be required or may be desirable. It shall be the sole responsibility of each party to the proceedings to ensure that a record is made which includes the testimony upon which an appeal may be taken. Neither Collier County nor any Enforcement Board shall have any responsibility to provide a verbatim transcript of the proceedings. SECTION FIFTEEN: Notices. I. All notices required by this Ordinance shall be provided by certified mail, return receipt requested, or by hand delivery by the Code Enforcement Director, Sheriff or other law enforcement officer, code official, or other person designated by the Commission or by leaving the notice at the violator's usual place of residence with some person of hislher family over 15 \ years of age and informing such person of the contents of the notice. 2. In addition to providing notice as set forth in Subsection 1 of this Section, at the option of the Enforcement Board, notice may also be served by publication, as follows a. Such notice shall be published once during each week for four (4) consecutive weeks (four publications being sufficient) in a newspaper of general circulation in Collier County. The newspaper shall meet such requirements as are prescribed under Chapter 50, Florida Statutes, for legal and official advertisements. b. Proof of publication shall be made as provided in Sections 50.041 and 50.051, Florida Statutes. c. In lieu of publication as described in Subsection (2)(a) of this Section, such notice may be posted for at least (10) days in at least two (2) locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at the front door of the courthouse. Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of posting. Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under section under Subsection 1 of this Section. 3. Evidence that an attempt has been made to hand deliver or mail notice as provided in Paragraph 1 of this Section, together with proof of publication or posting, shall be sufficient to show that the notice requirements of this Ordinance have been met, without regard to whether or not the violator actually received such notice. 4. Proper notice may be assumed when a notice of violation and/or hearing has been mailed to the violator or his or her agent or other person in the household or business has accepted the notice, or where a Code Enforcement Investigator, under oath testifies that he/she did hand deliver the notice to the violator. SECTION SIXTEEN: Supplemental Provision. 14 It is the intent of this Ordinance to provide additional or supplemental means of obtaining compliance with local codes and ordinances. Nothing contained under this Ordinance shall prohibit the County from enforcing its codes by any appropriate civil action, or by referral to the State Attorney's Office for prosecution in the case of a criminal violation, and/or by presentation to any other County board or agency with jurisdiction to hear and act upon the alleged code or ordinance violation. SECTION SEVENTEEN: Repeal of Ordinance No. 92-80, No. 96-11, No. 96-78, No. 98-20, and No. 99-26. Collier County Code Enforcement Board Ordinance No. 92-80, No. 96-78, No. 98-20 and No. 99-26 and Collier County Nuisance Abatement Board Ordinance No. 96-11 are hereby repealed and superceded in their entirety by this Ordinance. SECTION EIGHTEEN: Inclusion in the Code of Laws and Ordinances. \ The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinance of Collier County, Florida. The sections of the Ordinance may be renumbered or re- lettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or any other appropriate word. SECTION NINETEEN: Conflict and Severability. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of this Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION TWENTY: Effective Date. This Ordinance shall become effective upon filing with the Florida Department of State. PASSED AND DUL¥: ADOPTE,p b~theBoard of County Commissioners of Collier County, Florida, this I ¡ I 'day of U a ' 0 Ó ¿ I ,2005. ATTEST: DWIGHT E()tRôe~,Clerk BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA ", ., .' ,,it' By: ~W. ~ FRED W. COYLE, Chai n c..~ io ttorney 15 This ordinance fifed with the ~f'tory of arate/s Office the ~day of cK)lli I ó'(r)~ and aCknowledgem~ that :;~V.dth¡' ~ doy 8 t(Jftx'~IK( Dp.\)u1y Cle STATE OF FLORIDA) COUNTY OF COLLIER) I, DWIGHT E. BROCK, Clerk of Courts in and for the Twentieth Judicial Circuit, Collier County, Florida, do hereby certify that the foregoing is a true copy of: ORDINANCE NO. 2005-55 Which was adopted by the Board of County Commissioners on the 11th day of October 2005, during Regular Session. WITNESS my hand and the official seal of the Board of County Commissioners of Collier County, Florida, this 12th day of October 2005. DWIGHT E. BROCK Clerk of Court's' åÍia: Clerk Ex-officio to Board of- County Commi~si6ne~s cdw£; Q,.O;~c1ß¡~~ ~ H~idiR. Rbck~old, . DeputYCl.erk i)c .'.' t .