Loading...
Agenda 02/12/2008 Item #10B Agenda Item No. 106 February 12, 2008 Page 1 of 41 EXECUTIVE SUMMARY Recommendation to Endorse Code Enforcement Board and Special Magistrate Rules and Regulations OBJECTIVE: To obtain Board endorsement of the revised Rules and Regulations established for the Code Enforcement Board and endorsement of new Rules and Regulations established for the Special Magistrate. CONSIDERATION: The Collier County Code Enforcement Board was established in 1992 as an alternate means of enforcing violations to local codes and ordinances. The Collier County Special Magistrate was established in 2003 as another means of enforcing violations to local codes and ordinances including processing of citations issued by the Sheriffs Office, Domestic Animal Services and the Parks and Recreation Department. I n accordance with State Statutes, the Code Enforcement Board and Special Magistrate are authorized to adopt their own rules and regulations identifYing their jurisdictions and guidelines for conducting hearings. Along with information regarding the administration of hearings, the rules and regulations are utilized to inform the public of its due process rights. Staff along with legal counsel for the Code Enforcement Board and the County Attorney's Office has conducted extensive research of other jurisdictions' rules and regulations. The result of that research produced the original rules and regulations established for the Code Enforcement Board in 2001. Since that date the Code Enforcement Board has conducted an annual review to ensure that the rules in place are effective. With the establishment of a Special Magistrate process in 2003, original rules and regulations have also been developed for the Special Magistrate. These are the first rules and regulations for the Special Magistrate and are attached for the Board's endorsement. The Code Enforcement Board's review for this year resulted in the following changes being recommended in the revised document attached to this Executive Summary. Some of the more substantive changes to the CEB Rules and Regulations include 1) Section 3; Article X was placed under Reduction or Abatement of Fines prior to Imposition of Fine, 2) The change of the fine amount that may be imposed from $250 to $ I ,000 and for a repeat violation, from $500 to $5,000 to renect language adopted by the Board of County Commissioners in the Consolidated Ordinance 2007-44. A cross through and underlined version of the CEB rules are attached to this executive summary for the Board's comparison. The attached rules are available for the public prior to each hearing. The process can be somewhat intimidating and may he further confused if the rules of the Code Board and the Special Magistrate are consolidated because all regulatory procedures are not applicable for both jurisdicitions. FISCAL IMP ACT: The Rules are furthering the Ordinance adopted by the Board of County Commissioners and the projected revenues anticipated for the fine increase authorized by Ordinance 2007-44 have been included in the budget for FY'08. GROWTH MANAGEMENT IMPACT: This item has no growth management impact. LEGAL CONSIDERATIONS: Although these CEB and OSM rules appear to be legally sufficient for their purpose (i.e., rules for the conduct of hearings), the two sets of rules are unnecessarily Agenda Item No. 10B February 12, 2008 Page 2 of 41 redundant, and they do not address Nuisance Abatement Board proceedings. The County Attorney's Office believes there should be one set of consolidated rules for the CEB, NAB, and OSM, and that any unnecessary redundancy should be removed. RECOMMENDATION: That the Board of County Commissioners endorse the proposed Code Enforcement Board Rules and Regulations and Special Magistrate Rules and Regulations, which has been executed by each Code Board member and by the Special Magistrate via signature. PREPARED BY: Bendisa Marku, Operations Coordinator Code Enforcement Department Item Number: Item Summary: Meeting Date: Page 1 of 1 Agenda Item No.1 OB February 12, 2008 Page 3 of 41 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 10B This item to be heard at 11 :00 a,m. This item continued from the January 15, 2008 BCe Meeting. Recommendation to Endorse Code Enforcement Board and Special Magistrate Rules and Regulations. (Michelle Arnold, Code Enforcement Director, CDES) 2/12/20089:00:00 AM Prepared By Bendisa Marku Community Development & Environmental Services Operations Coordinator Date Approved By Code Enforcement 10/25/2001 2:31:31 PM Michelle Edwards Arnold Community Development & Environmental ServIces Code Enforcement Director Date Code Enforcement 101301200710:26 AM Approved By Judy Puig Community Development & Environmental Services Operations Analyst Community Deveiopment & Environmental Services Admin. Date Approved By 1/18120082:06 PM Joseph K. Schm itt Community Development & Environmental Services Community Development & Environmental Services Adminstrator Date Community Development. & Environmental Services Admin. 1118120084:05 PM Approved By OMS Coordinator Administrative Services Applications Analyst Date Information Technology 1/22120084:12 PM Approved By Mark Isackson County Manager's Office Budget Analyst Date Approved By Office of Management &. Budget 21512008 2:07 PM James V. Mudd Board of County Commissioners County Manager Date County Manager's Office Z/512008 2: 16 PM file://C:\Agenda Test\Export\ 1 OO-F ebruary%20 12,%202008\ 1 O. %20COUNTY%20MANAGE... 2/6/2008 Agenda Item No. 108 February 12, 2008 Page 4 of 41 COLLIER COUNTY SPECIAL MAGISTRATE RULES AND REGULATIONS ARTICLE I Name The name of this Governing Authority shall be the Collier County Special Magistrate. ARTICLE II Jurisdiction The Special Magistrate has jurisdiction over those matters which are set forth 111 all ordinances of Collier County, Florida. ARTICLE III Definitions Office of the Special Magistrate - means the County administrative staff personnel responsible for the preparation, development and coordination of all administrative and case management services necessary for the proper functioning of the Special Magistrate. SecretGlY to the Special Magistrate - means the contracted administrative personnel responsible for monitoring and assisting in the hearing process for the Special Magistrate. Special Magistrate - is a person authorized by the Commission to hear and decide cases involving violations of any County codes and ordinances. ARTICLE VI Meeting Requirements Section 1. Regular Meetings. Regular meetings of the Special Magistrate shall be Agenda Item No. 10B February 12, 2008 Page 5 of 41 held twice monthly on the first and third Friday in the Collier County Commission Chambers, and/or at other times and places as needed, and determined by the Special Magistrate. The Chambers will be open to the public at 8:15 a.m. Pre-hearing conference proceedings will begin at 8:30 a.m. with hearings commencing at 9:00 a.m. Section 2. open to the public. Section 3. Procedure. Parliamentary procedure in Special Magistrate meetings shall be governed by the Rules and Regulations contained herein. Records. All records of regular and special meetings or hearings shall be ARTICLE V Order of Business Section 1. The Order of Business to be followed at meetings of the Special Magistrate is as follows: 1. Call to Order 2. Approval of Agenda 3. Approval of Minutes 4. Motions for Continuance 5. Public Hearings a. Stipulations b. Hearings (Respondent present at hearing) c. Hearings (Respondent not present at the hearing) 6. New Business a. Motion for Imposition of Fines b. Motion for Reduction/Abatement of Fines 7. Old Business a. Request to fOrl'ard cases for Foreclosure/Collections 8. Consent Agenda 9. Reports 10. Announcements 11. Next Meeting Date 2 Agenda Item No. 10B February 12, 2008 Page 6 of 41 l2. Adjourn Section 2. The order of business may be amended, supplemented or suspended by decision ofthe Special Magistrate. ARTICLE VI Initiation of Actions before the Special Magistrate Section 1. Actions before the Special Magistrate shall be initiated by the tiling of a document with the Office of the Special Magistrate by a Code Enforcement Investigator, Sheriffs Deputy, Domestic Animal Services Officer, or other County Official with the powers to issue citations, which document shall include a statement of the facts and circumstances of the alleged violation and shall identify the code or ordinance that has been violated. This charging document may take the form of a Notice of Violation or of a citation. The Special Magistrate may also initiate action based on evidence presented during a hearing. Section 2. If the action is initiated pursuant to the issuance of a citation, the alleged violator may pay a fine in the amount set forth on the citation and/or correct the violation, or may request a hearing before the Special Magistrate. Section 3. The Office of the Special Magistrate shall assign a case number to each case and schedule a hearing. Section 4. The Office of the Special Magistrate shall send out a Notice of Hearing along with a copy of the Rules and Regulations to the alleged violator by either certified mail, return receipt requested, hand de livery upon a party, posting on the property and at the courthouse, or in any manner authorized as provided by the Ordinance establishing the Special Magistrate. The Office of the Special Magistrate shall provide Notice to the issuing officer and the alleged violator as herein provided at least ten (l 0) days prior to the hearing at which the alleged violator'S case will be presented to the Special Magistrate. Section 5. The Notice of Hearing shall inform the alleged violator that he or she is permitted to provide an answer/response packet of information to the Office of the Special Magistrate for distribution to the Special Magistrate at the Hearing. In order to have the information submitted to the Special Magistrate, the alleged violator shall submit four (4) copies of his or her information to the Office of the Special Magistrate three (3) business days prior to the scheduled hearing. Section 6. In emergency situations, the timelines set forth in this paragraph can be abbreviated or set aside by the Special Magistrate to address the alleged violation in order to avoid further damage to the health, safety and welfare of the citizens of Collier County, Florida. ARTICLE VII 3 Agenda Item No. 10S February 12. 2008 Page 7 of 41 Pre-hearing Procedures Section 1. Pre-hearing conference between parties. The Respondent/alleged violator and Code Enforcement Investigator or other issuing officer are required to have a pre-hearing conference thirty (30) minutes prior to the scheduled hearing. At the pre-hearing conference the following may occur: a. The Respondent/alleged violator may be asked if he/she wishes to contest the violation(s). If so, the case shall proceed on the agenda as stated in Article IV. b. The parties may stipulate to an agreed Order, subject to the approval of the Special Magistrate. c. The parties may stipulate to any facts, exhibits or other evidence to be introduced into the record, which are not in dispute. d. The names and addresses of witnesses to be called may be exchanged. Any facts or evidence stipulated to shall be presented to the Special Magistrate along with any pre-hearing packets, agreements or stipulations either party intends to provide to the Special Magistrate. Section 2. Pre-hearing Motions. Any motion for any reason to be filed by the Respondent/alleged violator or the Issuing Officer shall be delivered to the Office of the Special Magistrate and the opposing party, or their counsel, if applicable, at least five (5) business days prior to the hearing. The person filing the motion shall provide the Office of the Special Magistrate with four (4) copies of the motion. The Secretary to the Special Magistrate will then distribute the motions to the Special Magistrate at the hearing. The Special Magistrate may waive the requirements set forth in this paragraph under exceptional circumstances. ARTICLE VIII Hearings Formal rules of evidence shall not apply, but fundamental due process shall be observed. The Special Magistrate is without jurisdiction to hear any statement, argument or evidence alleging that any provision of the county's ordinances is unenforceable due to conflict with the Constitutions of the United States or State of Florida, Florida Statutes, administrative agency regulations, other county ordinances, or court decisions. The following procedures will be observed at hearings before the Special Magistrate: a. Where notice of hearing has been provided in accordance with Florida Statutes, Section 162.12, a hearing may proceed in the absence ofthe Respondent/alleged violator. b. The Special Magistrate shall announce the case before hearing testimony. c. The Respondent/alleged violator shall state hislher full legal name, mailing 4 Agenda Item No.1 08 February 12, 2008 Page 8 of 41 address and physical residence. d. If the Respondent/alleged violator is not present and is represented by a person other than an attorney, the Respondent/alleged violator should submit a notarized letter to the Special Magistrate granting that individual permission to represent him/her at the hearing. e. Presentations of a case may be limited to ten (10) minutes per party, including testimony of all witnesses. 1 f the Respondent/alleged violator believes that additional time is required, he/she shall notify the Secretary to the Special Magistrate prior to the scheduled hearing. f. In those cases initiated by citation in which the Respondent/alleged violator has requested the hearing, the Respondent/alleged violator shall proceed first with the presentation of hislher evidence in opposition to the facts alleged in the citation. g. In those cases initiated by a Notice of Violation, the County shall proceed first with the presentation of its evidence to prove that a violation has occurred. h. Any evidence which is sought to be introduced by a party during the party's presentation is admitted at the discrction of the Special Magistrate and may be objected to by the opposing side. If necessary the Special Magistrate may grant a recess or continuance to examine said evidence. l. All persons testifying before the Special Magistrate shall do so under oath. j. Each sidc may be permitted to make brief opening statements, if requested. The County shall present its case and Respondent/alleged violator shall present his/her case in the order outlined herein ahovc at Article VII, Paragraphs f. and g. Both parties shall have an opportunity to cross-examine any person testifying. k. Any person who can provide relevant evidence to support that a violation has or has not occurred and wishes to testify, should notify the Secretary of the Special Magistrate prior to commencement of the public hearing. Testimony may be limited to no more than five (5) minutes unless extended by the Special Magistrate. \. The Special Magistrate may question any witness(es) or call any witness(es) as necessary. m. The right of the parties to present rebuttal evidence is discretionary with the Special Magistrate. n. Upon completion of all the evidence, each side may be permitted to make brief closing arguments and the Special Magistrate shall close the hearing. o. The Special Magistratc shall determine whether the County has proven by competent substantial evidence that a violation has occurred. If the Special Magistrate determines that a violation has occurred, it shall then determine what corrective action and potential fines shall be appropriate. If the Special Magistrate does not find that a violation has 5 Agenda Item No. 108 February 12, 2008 Page 9 of41 occurred, the charges shall be dismissed. p. The Special Magistrate, upon finding a Respondent in violation, shall issue an oral Order to Comply, setting a date certain for compliance. The Order shall contain Findings of Fact and Conclusions of Law and state the corrective action ordered by the Special Magistrate. The Special Magistrate may include in such Order a fine to take effect the day following the specified compliance date in case of non-compliance. In determining the amount of the fine, if any, the Special Magistrate shall consider the following factors: (I) the gravity of the violation; (2) any actions taken by the violator to correct the violation; (3) any previous violations committed by the violator; and (4) any other relevant factors. Such fine shall not exceed One Thousand Dollars ($],000.00) for each day the violation continues past the specified compliance date and Five thousand Dollars ($5,000.00) for repeat violations for each day the violation continues past the specified compliance date. In addition, the Respondent/violator may be ordered to pay any operational and/or prosecution costs incurred. Said Order shall be reduced to writing and be mailed to the Respondent/violator within ten (10) days. q. In the event the violation is a violation described in Section ]62.06(4), Fla. Stat., the Special Magistrate shall notify the County Manager, which may make all reasonable repairs required to bring the property into compliance and charge the violator with the reasonable costs of repairs along with the fine and any operational or prosecutorial costs. r. A party may motion a rehearing of the Special Magistrate Order, 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 Special Magistrate. The written Motion for Rehearing shall specify the precise reasons thereof. A Motion for Rehearing shall be in writing and sent to the Office of the Special Magistrate within ten (10) days of the date the Order is received by the party, but in no event more than twenty (20) days from the date of mailing of the Order. The Order of the Special Magistrate shall be stayed and the time for taking an appeal tolled until the Motion for Rehearing has been disposed of and the decision received by the parties; provided, however, that in no event shall the Order be stayed for a period longer than twenty (20) days from date of the mailing ofthe rehearing decision. s. The Special Magistrate shall make a determination as to whether or not to rehear the matter and the decision shall be made at a public meeting, reduced to writing and mailed to the interested parties within 10 days after the decision is made. If the Special Magistrate determines that it will grant a rehearing, it may: (I) Schedule a hearing where the parties will be given the opportunity of presenting evidence or argument limited by the Special Master to the specific reasons for which the rehearing was granted; or (2) 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 Special Magistrate resulted from a ruling on a question of law which the Special Magistrate has been informed was an erroneous ruling. t. Any aggrieved party may appeal a final Order of the Special Magistrate to the Circuit Court within thirty (30) days of the execution of the Order appealed. An appeal shall not be a hearing de novo (a new hearing), but shall be limited to appellate review of the record created. Filing an Appeal shall not stay the Special Magistrate's Order. 6 Agenda Item No. 106 February 12, 2008 Page 10 0141 ARTICLE IX Reduction or Abatement of Fines Prior to lmoosition of Fine Section 1, A Motion for Reduction or Abatement of Fines shall be in the form of a written request. The Motion should contain the following infonnation: (a) name, and address of named Respondent; (b) names of all owners of the property which is the subject of the violation; (c) physical address of subject property; (d) nature of violation; (e) description of abatement of violation and date of abatement; (In the event that the violation cannot be abated by Respondent, the Respondent shall include in the Motion for Reduction/Abatement of Fines a detailed description of the efforts undertaken for abatement and an explanation as to why the violation cannot be abated, and provide support documentation to that effect); (I) mitigating factors which Respondent believes warrants a reduction or abatement of fines; (g) any other factors that may be considered by the Special Magistrate; (h) signature of Respondent; and (i) all supporting documentation, The Respondent should provide the Office of the Special Magistrate four (4) copies of the Motion for Reduction/Abatement of Fine, attaching all supporting documentation. A Motion for Reduction/Abatement of Fines may be made after a violation has been abated, or in the event a violation cannot be abated, after a diligent attempt to abate the violation in accordance with the Special Magistrate's Order has been made. Under no circumstances may a Motion for Reduction/ Abatement of Fines be made after the Special Magistrate has authorized foreclosure by the County Attorney's Office. Section 2. Upon the proper filing of a Motion for Reduction/Abatement of Fines, the Office of the Special Magistrate shall set the Motion on the next available agenda of the Special Magistrate. The failure of the Respondent to comply with the requirements set forth above may be grounds for dismissal of the Motion by the Special Magistrate. Such dismissal shall be without prejudice to the Respondent to file another request in accordance with these Rules. Section 3. Upon the proper filing of a Motion for Reduction/Abatement of Fines, the Special Magistrate may consider the following factors: (a) the gravity of the violation: (b) actions taken by the Respondent to correct the violation; (el whether there were previous violations committed by the violator; (d) the cost upon the violator to correct the violation; (e) the reasonable time necessary to correct the violation; (I) the value of the real estate compared to the amount of the fine/lien; (g) any hardship the fine/lien would cause on the Respondent; (h) the time and cost incurred by Code Enforcement to have the violation corrected and (i) any other equitable factors which would make the requested mitigation appropriate. Section 4. The Respondent shall have the burden of proof to show why a fine/lien should be reduced or abated. The hearing shall he conducted according to Article VII of these Rules, where applicable. Section 5. lfa reduction is granted; the reduced fine must be paid within thirty (30) days, unless otherwise specified in the order, or unless staff, in its discretion, negotiates an installment plan. If payment is not made within the specified time, the fine shall revert to the original amount The Order shall be reduced to writing and a certified copy of the Order shall be 7 Agenda Item No. 106 February 12, 2008 Page 11 of41 recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real property or personal property owned by the violator. Section 6. The Special Magistrate will not re-hear a motion for reduction of fines once a decision has been reached on a previous motion for reduction of fines. Section 7. The Special Magistrate's decision to grant or deny mitigation of an Order Imposing Fine/Lien shall be reduced to writing and a certified copy of an Order imposing a fine shall be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real property or personal property owned by the violator. Any aggrieved party may appeal a final order to the Circuit Court within thirty (30) days of the execution of the Order appealed. An appeal shall not be a hearing de novo (new hearing), but shall be limited to appellate review of the record created. Filing an Appeal shall not stay the Special Magistrate's Order. ARTICLE X Imposition of Fines Section l. After an Order has been issued by the Special Magistrate and a date of compliance has been set, the Code Enforcement Investigator shall make a re-inspection to determine compliance or non-compliance with the Order of the Special Magistrate. Section 2. The Code Enforcement Investigator shall file an Affidavit of Compliance or Non-Compliance with the Secretary to the Special Magistrate. A copy of said Affidavit may be sent to the violator by regular U.S. mail and recorded in the Public Records of Collier County, Florida. The Office of the Special Magistrate shall report the status of the said affidavit at the next scheduled Board meeting. Section 3. Upon a Motion for Imposition of Fines being filed by the County, the Office ofthe Special Magistrate shall set the Motion for hearing before the Special Magistrate with proper notice to the Respondent/violator. Any Motion for Abatement/Reduction of Fines shall be set on the same date for hearing of the County's Motion, when received in a timely manner. This hearing shall not be a trial de novo or a new hearing on the original case. The County may present evidence of the period of non-compliance, the amount of daily fines and the total amount of fine requested to be imposed, as well as any operational costs incurred or to be imposed. Respondent may be given the opportunity to present any written Motion for Abatement/Reduction of Fines and any testimony in support thereof. Respondent/violator may also, at the discretion of the Special Magistrate, be given the opportunity to present testimony regarding efforts made toward compliance and abatement, which may be considered as mitigating circumstances. In rebuttal, the County may be given the opportunity to present testimony regarding aggravating circumstances. Section 4 The Special Magistrate shall determine the amount of fines as applicable 8 Agenda Item No. 10B February 12, 2008 Page 12 oj 41 to be imposed. In determining the amount of the fine, if any, the Special Magistrate shall consider the following factors: (1) the gravity of the violation; (2) any actions taken by the violator to correct the violation; (3) any previous violations committed by the Respondent/violator; and (4) any other relevant factors. Such fine shall not exceed One Thousand Dollars ($1,000.00) for each day the violation continues past the specified compliance date and Five Thousand Dollars ($5,000.00) for repeat violations for each day the violation continues past the specified compliance date. In addition, the Respondent/violator may be ordered to pay any operational and/or prosecution costs incurred. In the event the violation(s) has/have not been abated at the time of the hearing on the Motion for Imposition of Fines, the Special Magistrate may determine if daily fines shall continue to accrue or if a stay is appropriate. The Special Magistrate's determination to impose operational costs and/or fines shall be reduced to writing and a copy of the Order Imposing Fine/Lien shall be mailed to the violator by regular U.S. mail or served upon the violator as specified by the Ordinance and recorded in the Public Records of Collier County, Florida. Section 5. A certified copy of an Order of Imposition of Fines shall be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real property or personal property owned by the violator. Upon petition to the Circuit Court, such Order may be cnforced 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. A fine imposed pursuant to this part shall continue to accrue until the violator comcs into compliancc or until judgment is rendered in a suit to foreclose on a lien filed pursuant to the ordinance, whichever comes first. After ninety (90) days from the filing of any such lien, which remains unpaid, the Special Magistrate may authorize the attorney representing the Board of County Commissioners to foreclose on the lien. No lien created pursuant to this ordinance may be foreclosed on real property, which is homestead under Section 4, Article X of the Florida Constitution. Section 6. No lien imposed pursuant to this article shall continue for a period longer than twenty (20) years after the certified copy of an Order of Imposition of Fine/Lien has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable attorney's fee that it incurred in the foreclosure. ARTICLE XI Miscellaneous Section 1. These Rules and Regulations may be revised and adopted consistent with state statutes and county ordinances during a regular meeting. Section 2. The Special Magistrate shall not knowingly discuss any case with any alleged violator or with any other interested party prior to the final resolution of the case. 9 Agenda Item No. 10B February 12, 2008 Page 13 of 41 Section 3. In the event a violation is occurring on property under multiple ownership and/or in which there is a tenant and there is the potential that the other property owner(s)' or 1enant(s)' interest will be affected by the Special Magistrate's decision, the Code Enforcement Investigator may include the property owner and/or tenant as Respondent to the case. Section 4. Intervention by non-parties may be permitted if the non-party has been found by the Special Magistrate to be an affected party. Section 5. The Special Magistrate has discretion to ask for periodic reports from County staff as to the status of cases. Section 6. In the event of a conflict between these Rules and Regulations and the provisions of any ordinance(s) or statute(s) applicable to the Special Magistrate, the provisions of the ordinance( s) or statute( s) shall prevail. Section 7. Any case in which there has been a hearing by the Special Magistrate prior to the adoption of these Rules and Regulations shall be governed by the previously adopted rules and regulations in effect at the time of the hearing. THESE RULES AND REGULA nONS, as amended, ARE HEREBY APPROVED this day of .2007. COLLIER COUNTY SPECIAL MAGISTRATE The Honorable Brenda C. Garretson Special Magistrate ]0 Agenda Item No. 1 DB February 12, 2008 Page 14 of 41 COLLIER COUNTY CODE ENFORCEMENT BOARD RULES AND REGULATIONS ARTICLE I Name The name of this Board shall be the Collier County Code Enforcement Board. ARTICLE II Jurisdiction The Board has jurisdiction over those matters which are set forth in all ordinances of Collier County, Florida. ARTICLE III Officers and Their Duties Section I. The officers shall consist of a Chair and Vice-Chair, both of whom shall be permanent members. There shall also be a Secretary to the Board who shall be an employee of Collier County, Florida. Section 2. The Chair shall preside at all meetings and hearings ofthe Board and shall have the duties normally conferred by parliamentary usage of such officers. Section 3. The Chair shall have the privilege of discussing all matters before the Board and shall have the same voting rights as all Board members. Section 4. The Vice-Chair shall act in the absence of the Chair. Section 5. The full board and alternates may participate in the election process and vote, although the alternates may not serve as officers. ARTICLE IV Election of Officers Section 1. Nomination of the Chair and Vice-Chair shall be made from the floor at the annual organization meeting in March of each year, and the election shall be held immediately thereafter. Section 2. A candidate receiving a majority vote shall be declared elected and shall serve Agenda Item No. 10B February 12, 2008 Page 15 of41 a term of one (1) year, or until a successor shall take office. Section 3. Vacancies in the position of Chair or Vice-Chair shall be filled immediately by regular election procedures. Section 4. The Chair or Vice-Chair may be removed by a super majority of the Board with or without cause. ARTICLE V Board Section 1. The Code Enforcement Board shall consist of seven (7) mem bers and two (2) alternates. An alternate shall be designated to fill any regular member vacancy at any meeting with full voting rights. Section 2. Regular Meetings. Regular meetings of the Code Enforcement Board shall be held on the fourth Thursday, and/or at other times and places as needed, and determined by the Board, in the Collier County Commission Chambers. The Chambers will be open to the public at 8:30 a.m. The Board may begin the public portion of the meeting at 9:00 A.M. Section 3. Special Meetings. Special meetings of the Board may be convened by the Chair upon giving notice thereof to each other memher ofthe Board or by written notice signed by at least three (3) members of the Code Enforcement Board. Section 4. Notices. a. Notice of a Special Board meeting shall be given to all Board members at least forty-eight (48) hours in advance of the meeting. At any meeting, the Board may set a future meeting date. Section 5. Attendance. Members shall notify the Chair or Secretary to the Board if they cannot attend a. a meeting. b. If a member misses two (2) out sf three (3) successive board meetings without a satisfactory excuse, he/she may forfeit his/her appointment. c. Attendance shall be in person and may not occur through any form of electronic medium. Section 6. Quorum. A quorum of the Board shall consist offour (4) members and an affirmative vote of a majority of those present and voting shall be necessary to pass any motion or adopt any order. For example, if four members are present, an affirmative vote of three of those members present shall be sufficient to take Board action. Section 7. Voting. 2 Agenda Item No. 10S February 12. 2008 Page 16 of 41 a. Voting shall be by voice vote, or show of hands, if necessary, and may be recorded by individual (or group). b. Each member present shall cast a vote on each question before the Board, except that if any member has a personal interest in a matter, he or she shall abstain from participation as a member of the Board in that matter. Section 8. to the public. Records. All records of regular and special meetings or hearings shall be open Section 9. Procedure. Parliamentary procedure in Board meetings shall be governed by Robert's Rules of Order, as amended, and by the Rules and Regulations contained herein. Section 10. The Code Enforcement Board shall be governed by the provisions of the Florida Sunshine Amendment and Code of Ethics for Public Officers and Employees. ARTICLE VI Order of Business l. Roll Call 2. Approval of Agenda 3. Approval of Minutes 4. Public Hearings/Motions A. Motions B. Stipulations (Non Contested Cases and present at the hearing) C. Hearings a. Contested Cases by Respondents and present at the hearing b. Cases of Respondent not present at the hearing 5. Old Business A. Motion for Imposition of Fines/Lien (Property owner present) B. Motion for Reduction/Abatement of Fines 6. New Business 7. Consent Agenda A. Motion for Imposition of Fines/Liens B. Request to Forward Cases to County Attorney's Office 8. Reports 3 Agenda Item No. 108 February 12, 2008 Page 17 of 41 9. Comments 10. Next Meeting Date 11. Adjourn The order of business may be suspended by a vote of the majority ofthose members present. ARTICLE VII Initiation of Actions Before the Board Section 1. Actions before the Board shall be initiated by a Code Enforcement Investigator filing an Affidavit of Violation, which shall include a statement of the facts and circumstances of the alleged violation and shall identify the code or ordinance, which has been violated with the Secretary to the Board. No member of the Board may initiate action before the Board. Section 2. The Secretary to the Board shall assign a file number to each case and schedule a hearing. Section 3. The Secretary to the Board shall send out a Notice of Hearing along with a Statement of Violation and a copy of the Rules and Regulations to the alleged violator by either certified mail, return receipt requested, hand delivery upon a party, posting on the property and atthe courthouse, or in any manner authorized as provided by the Ordinance establishing the Code Enforcement Board. The Secretary to the Board shall provide Notice to the Code Enforcement Investigator and the alleged violator as herein provided at least ten (10) days prior to the hearing at which the alleged violator's case will be presented to the Board. A copy of said Notice shall be sent to the attorney for the Board, the supervisor of the Code Enforcement Investigator involved, and the Code Enforcement Investigator involved. Section 4. The Notice of Hearing shall inform the alleged violator that he or she is permitted to provide an answer/response packet of information to the Secretary to the Board for distribution to the Board Members prior to the Board Hearing. The Code Enforcement Investigator shall submit the charging packet of information detailing the alleged violation(s) to the Secretary of the Board for distribution to the Board Members at least fifteen (15) business days prior to the Board Hearing. In order to have the information submitted to the Board Members, the alleged violator shall submit fifteen (15) copies of his or her information to the Secretary to the Board five (5) business days prior to the scheduled hearing. The Secretary to the Board shall distribute the packet to the Board Members not later than three (3) days prior to the hearing. The Code Enforcement Investigators charging packet shall be delivered to the alleged violator along with the Notice of Hearing. The Secretary to the Board shall not deliver the charging packet to the Board Members until he or she receives the alleged violator's answer/response packet or until the deadline by which the alleged violator's packet of information must be received by the Secretary to the Board has passed. If the alleged violator timely delivers his or her answer/response packet to the Secretary to 4 Agenda Item NO.1 OB February 12. 2008 Page 18 of 41 the Board, the Secretary to the Board shall deliver all packets together. Section 5. In emergency situations, the timelines set forth in this paragraph can he abbreviated or set aside to address the alleged violation in order to avoid further damage to the health, safety and welfare of the citizens of Collier County, Florida. ARTICLE VIII Prehearing Procedures Section l. Prehearing meetings between parties. The alleged violator and Code Enforcement Investigator are encouraged to have a prehearing conference one (1) hour prior to the scheduled hearing. At the prehearing conference the following may occur: a. The Respondent/alleged violator may be asked if he/she wishes to contest the violations. If so, the case shall be placed on the agenda as stated in Article VI. b. The parties may stipulate to an agreed Order, to be approved by the Board. c. The parties may stipulate to any facts, exhibits or other evidence to be introduced into the record, which are not in dispute. d. The names and addresses of witnesses to be called may be exchanged. Any facts or evidence stipulated to shall be presented to the Board Memhers along with any prehearing packets or agreements either party intends to provide to the Board Members. Section 2. Prehearing Motions. Any motion for any reason to be filed by the alleged violator or the Code Enforcement Investigator shall be delivered to the Board's Attorney or the Boards Secretary and the opposing party, or their counsel, if applicable, at least five (5) business days prior to the hearing. The person filing the motion shall provide the Board's Secretary with fifteen (15) copies of the motion. The Board's Attorney will then distribute the motions to the Board Members. The Board may waive the requirements set forth in this paragraph under exceptional circumstances. ARTICLE IX Hearings Formal rules of evidence shall not apply, but fundamental due process shall be observed. The Board is without jurisdiction to hear any statement, argument or evidence alleging that any provision ofthe county's ordinances is unenforceable due to conflict with the Constitutions of the United States or State of Florida, Florida Statutes, administrative agency regulations, other county ordinances, or court decisions. The following procedures will be observed at hearings before the Board: a. In a non-contested case the only evidence heard shall be the statement ofthe violation 5 Agenda Item No. 10B February 12, 2008 Page 19 of 41 and any stipulated agreement. b. Where notice of hearing has been provided in accordance with Florida Statutes, Section 162.12, a hearing may proceed in the absence of the Respondent. c. The Secretary to the Board shall read the statement of violation against the Respondent/alleged violator. d. The Respondent/alleged violator shall state hislher full legal name, mailing address and physical residence. e. If the Respondent/alleged violator is not present and is represented by a person other than an attorney, the Respondent should submit a notarized letter to the Chair of the Board granting that individual permission to represent him/her at the hearing. [ Presentations ofa case may be limited to twenty (20) minutes per party, including testimony of all witnesses. If the Respondent believes that additional time is required, he/she shall notify the Board Secretary prior to the scheduled hearing. g. Any evidence which is sought to be introduced by a party during the party's presentation is admitted at the discretion ofthe Board and may be objected to by the opposing side. If necessary the Board may grant a recess or continuance to examine said evidence. h. All persons testifying before the Board shall do so under oath. i. Each side may be permitted to make brief opening statements, if requested. The County shall present its case and Respondent/alleged violator shall present hislher case. Both parties shall have an opportunity to cross-examine any person testifying. j. Any person who can provide relevant evidence to support that a violation has or has not occurred and wishes to testify should notify the Board Secretary prior to commencement of the public hearing. Testimony may be limited to no more than five (5) minutes unless extended by a majority vote of the Board. k. The Board or its attorney may question any witness(es) or call any witness(es) as necessary. L The right of the parties to present rebuttal evidence is discretionary with the Board. m. Upon completion of all the evidence, each side may be permitted to make brief closing arguments and the Chair shall close the hearing. n. The Board shall deliberate in open session before the public and determine whether the County has proven by competent substantial evidence that a violation has occurred. lfthe Board determines that a violation has occurred, it shall then deliberate and determine what corrective action and potential fines shall be appropriate. If the Board does not find that a violation has occurred, the charges shall be dismissed. 6 Agenda Item No.1 08 February 12. 2008 Page 20 of41 o. The Board, upon finding a Respondent in violation, shall issue an oral Order to Comply, setting a date certain for compliance. The Order shall contain Findings of Fact and Conclusions of Law and state the corrective action granted by the Board. The Board may include in such Order a fine to take effect the day following the specified compliance date in case of non- compliance. In determining the amount of the fine, if any, the Board shall consider the following factors: (1) the gravity of the violation; (2) any actions taken by the violator to correct the vio lation; (3) any previous violations committed by the violator; and (4) any other relevant factors. Such fine shall not exceed One Thousand Dollars ($1,000.00) for each day the violation continues past the specified compliance date and Five Thousand Dollars ($5,000.00) for repeat violations for each day the violation continues past the specified compliance date. In addition, the Respondentlviolatormay be ordered to pay any operational and/or prosecution costs incurrcd. Said Order shall be reduced to writing and be mailed to the Respondent/violator within ten (10) days. p. In the event the violation is a vio lation described in Section I 62.06( 4), Fla. Stat., the Board shall notify the County Manager, which may make all reasonable repairs required to bring the property into compliance and charge the violator with the reasonable costs of repairs along with the fine and any operational or prosecutorial costs. q. A party may motion a rehearing of the Board's Order, 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 Board. The written Motion for Rehearing shall specify the precise reasons thereof. A Motion for Rehearing shall be in writing and sent to the Secretary to the Board within ten (10) days of the date thc Order is received by the party, but in no event more than twenty (20) days from the date of mailing of the Order. The Order of the Board shall be stayed and the time for taking an appeal tolled until the Motion for Rehearing has been disposed of and the decision received by the parties: provided. however, that in no cvent shall the Order be stayed for a period longer than twenty (20) days from date of the mailing of the rehearing decision. r. The Board shall make a determination as to whether or not 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 decision is made. If the Board determines that it will grant a rehearing, it may: (l) Schedule a hearing where the parties will he given the opportunity of presenting evidcnce or argument limited by the Board to the specific reasons for which the rehearing was granted; or (2) 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 Board resulted from a ruling on a question of law which the Board has been informed was an erroneous ruling. s. Any aggrieved party may appeal a final Order of the Board to the Circuit COUl1 within thirty (30) days of the execution of the Order appealed. An appeal shall not be a hearing de novo (a new hearing), but shall be limited to appellate review of the record created. Filing an Appeal shall not stay the Board' s Order. ARTICLE X Reduction or Abatement of Fines Prior to Imposition of Fine 7 Agenda Item No. 10B February 12, 2008 Page 21 of 41 Section 1. A Motion for Reduction or Abatement of Fines shall be in the form of a written request. The Motion should contain the following information: (a) name, and address of named Respondent; (b) names of all owners of the property which is the subject of the violation; (c) physical address of subject property; (d) nature of violation; (e) description of abatement of violation and date of abatement; (In the event that the violation cannot be abated by Respondent, the Respondent shall include in the Motion for Reduction/Abatement of Fines a detailed description of the efforts undertaken for abatement and an explanation as to why the violation cannot be abated, and provide support documentation to that effect); (I) mitigating factors which Respondent believes warrants a reduction or abatement of fines; (g) any other factors that may be considered by the Board; (h) signature of Respondent; and (i) all supporting documentation. The Respondent should provide the Secretary to the Board fifteen (15) copies of the Motion for Reduction! Abatement of Fines, attaching all supporting documentation. A Motion for Reduction/Abatement of Fines may be made after a violation has been abated, or in the event a violation cannot be abated, after a diligent attempt to abate the violation in accordance with the Board's Order has been made. Under no circumstances may a Motion for Reduction/ Abatement of Fines be made after the Board has authorized foreclosure by the County Attorney's Office. Section 2. Upon the proper filing of a Motion, the Secretary to the Board shall set the Motion on the next available agenda of the Code Enforcement Board. The failure of the Respondent to comply with the requirements set forth above may be grounds for dismissal ofthe Motion by the Code Enforcement Board. Such dismissal shall be without prejudice to the Respondent to file another motion accordance with these Rules. Section 3. Upon the proper filing of a Motion for Reduction/Abatement of Fines, the Board may consider the following factors: (a) the gravity of the violation; (b) actions taken by the Respondent to correct the violation; (c) whether there were previous violations committed by the violator; (d) the cost upon the violator to correct the violation; (e) the reasonable time necessary to correct the violation; (I) the value of the real estate compared to the amount of the fine/lien; (g) any hardship the fine/lien would cause on the Respondent; (h) the time and cost incurred by Code Enforcement to have the vio lation corrected and (i) any other equitable factors which would make the requested mitigation appropriate. Section 4. The Respondent shall have the burden ofproofto show why a fine/lien should be reduced or abated. The hearing shall be conducted according to Article IX ofthese Rules, where applicable. Section 5. Ifa reduction is granted; the reduced fine must be paid within thirty (30) days, unless otherwise specified in the order, or unless staff, in its discretion, negotiates an installment plan. lfpayment is not made within the specified time, the fine shall revert to the original amount. The Order shall be reduced to writing and a celiified copy of the Order shall be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real property or personal property owned by the vio lator. Section 6. The Board will not re-hear a motion for reduction offines once a decision has been reached on a previous motion for reduction of fines. 8 Agenda Item No. 10B February 12, 2008 Page 22 of 41 Section 7. The Board's decision to grant or deny mitigation of an Order Imposing FinelLien shall be reduced to writing and a certified copy of an Order imposing a fine shall be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real property or personal property owned by the violator. Any aggrieved party may appeal a final order to the Circuit Court within thirty (30) days of the execution ofthe Order appealed. An appeal shall not be a hearing de novo (new hearing), but shall be limited to appellate review of the record created. Filing an Appeal shall not stay the Board's Order. ARTICLE XI Imposition of Fines Section 1. After an Order has been issued by the Board and a date of compliance has been set, the Code Enforcement Investigator shall make a reinspection to determine compliance or non-compliance with the Order of the Board. Section 2. The Code Enforcement Investigator shall file an Affidavit of Compliance or Non-Compliance with the Secretary to the Board. A copy of said Affidavit may be sent to the violator by regular U.S. mail and recorded in the Public Records of Collier County, Florida, The Secretary to the Board shall report the status of the said affidavit at the next scheduled Board meeting. Section 3. Upon a Motion for Imposition of Fines being tiled by the County, the Board shall set the Motion for hearing with proper notice to the Respondent. Any Motion for AbatementlReduction of Fines shall be set on the same date for hearing of the County's Motion, when received in a timely manner. This hearing shall not be a trial de novo or a ne'" hearing on the original case. The County may present evidence of the period of non-compliance, the amount of daily fines and the total amount of fine requested to be imposed, as well as any operational costs incurred or to be imposed. Respondent may be given the opportunity to present any written Motion for Abatement/Reduction of Fines and any testimony in support thereof. Respondent may also, at the discretion of the Board, be given the opportunity to present testimony regarding efforts made toward compliance and abatement, which may be considered as mitigating circumstances. In rebuttal, the County may be given the opportunity to present testimony regarding aggravating circumstances. Section 4. The Board shall determine the amount oftines as applicable to be imposed. In determining the amount of the fine, ifany, the Board shall considerthe following factors: (I) the gravity of the violation; (2) any actions taken by the violator to correct the violation; (3) any previous violations committed hy the vio lator; and (4) any other relevant factors. Such fine shall not exceed One Thousand Dollars ($\'000.00) for each day the violation continues past the specified compliance date and Five Thousand Dollars ($5,000.00) for repeat violations for each day the violation continues past the specified compliance date. In addition, the Respondent/violator may be ordered to pay any operational and/or prosecution costs incurred. In the event the violation(s) has/have not been abated at the time of the hearing on the Motion for Imposition of Fines, the Board may determine if daily fines shall continue to accrue or if a stay is appropriate. The Board's 9 Agenda Item No. 108 February 12, 2008 Page 23 of 41 determination to impose operational costs and/or fines, shall be reduced to writing and a copy ofthe Order Imposing FinelLien shall be mailed to the violator by regular U.S. mail or served upon the violator as specified by the Ordinance and recorded in the Public Records of Collier County, Florida. Section 5. A certified copy of an Order oflmposition of Fines shall be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real property or personal property owned by the vio lator. for all Onlars ImflssiRg fiRes/LieRs r8flaered after .\J3ril 1 a, 1 ~99, the Orser, V:HSfl ~r8J3erly [seeress, shall ee sl:ll3erier to tRe iflterest 8R SlieR ]3f0peFtj' afaR)' 8\\'Rer lessee, teRaflt, fRsrtgagee, or oiRer J3ersoR eJ~eept the tieR sfCsHRty tal,as, aRa sAall13a eoaEIHal ""itA eSHAty ta:les. Upon petition to the Circuit Court, such Order may be 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. A fine imposed pursuant to this part shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit to foreclose on a lien filed pursuant to the ordinance, whichever comes first. After three (3) months from the filing of any such lien, which remains unpaid, the Board may authorize the attorney representing the Board of County Commissioners to foreclose on the lien. No lien created pursuant to this ordinance may be foreclosed on real property, which is homestead under Section 4, Article X of the Florida Constitution. Section 6. No lien imposed pursuant to this article shall continue for a period longer than twenty (20) years after the certified copy of an Order ofImposition of Fine/Lien has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable attorney's fee that it incurred in the foreclosure. ARTICLE XII Miscellaneous Section I. These Rules and Regulations may be revised and adopted consistent with state statutes and county ordinances during a regular meeting by the affirmative vote of a majority of the full Board, including alternates, provided notice of a proposed change is given to the Board at a preceding regular meeting. Section 2. No Board member shall knowingly discuss any case with any alleged violator or with each other or with any other interested party prior to the final resolution ofthe case by the Board. Section 3. In the event a violation is occurring on property under multiple ownership and/or in which there is a tenant and there is the potential that the other property owner(s)' or tenant(s)' interest will be affected by the Board's decision, the Code Enforcement Investigator may include the property owner and/or tenant as Respondent to the case. Section 4. Intervention by non-parties may be permitted if the non-party has been found by the Board to be an affected party. ]0 Agenda Item No. 10B February 12, 2008 Page 24 of 41 Section 5. The Board, at its discretion, may ask for periodic reports from County staffas to the status of cases. Section 6. In the event of a conflict between these Rules and Regulations and the provisions of any ordinance(s) or statute(s) applicable (0 the Code Enforcement Board, the provisions of the ordinance(s) or statute(s) shall prevail. Section 7. Any case in which there has been a hearing by the Board prior to the adoption of these Rules and Regulations shall be governed by the previously adopted rules and regulations in effect at the time of the hearing. THESE RULES AND REGULA nONS, As Amended, ARE HEREBY APPROVED this day of ' 2007. COLLIER COUNTY CODE ENFORCEMENT BOARD Gerald J, Lefebvre, Vice-Chair Sheri Barnett, Chair George P. Ponte Richard Kraenbring Kenneth Kelly .Jerry Morgan Lionel L 'Esperance, Alternate Larry Dean Charles Martin, Alternate )1 Agenda Item No. 108 February 12, 2008 Page 25 of 41 COLLIER COUNTY CODE ENFORCEMENT BOARD RULES AND REGULATIONS ARTICLE I Name The name of this Board shall be the Collier County Code Enforcement Board. ARTICLE II Jurisdiction The Board has jurisdiction over those matters which are set forth in all ordinances of Collier County, Florida. ARTICLE III Officers and Their Duties Section 1. The officers shall consist of a Chair and Vice-Chair, both of whom shall be permanent members. There shall also be a Secretary to the Board who shall be an employee of Collier County, Florida. Section 2. The Chair shall preside at all meetings and hearings of the Board and shall have the duties normally conferred by parliamentary usage of such officers. Section 3. The Chair shall have the privilege of discussing all matters before the Board and shall have the same voting rights as all Board members. Section 4. The Vice-Chair shall act in the absence of the Chair. Section 5. The full board and alternates may participate in the election process and vote, although the alternates may not serve as officers. ARTICLE IV Election of Officers Section 1. Nomination ofthe Chair and Vice-Chair shall be made from the floor at the annual organization meeting in March of each year, and the election shall be held immediately thereafter. Section 2. A candidate receiving a majority vote shall be declared elected and shall serve Agenda Item No. 108 February 12, 2008 Page 26 of 41 a term of one (I) year, or until a successor shall take office. 1>18 SHe memBer sHall serve mere tllaH t~'o ('1) EH3flSeel:lti'.'e tenns as GAairmaFl. Section 3. Vacancies in the position of Chair or Vice-Chair shall be filled immediately by regular election procedures. Section 4. The Chair or Vice-Chair mav be removed bv a super maioritv of the Board with or without cause. ARTICLE V Board Section I. The Code Enforcement Board shall consist of seven (7) members and two (2) alternates. An alternate shall be designated to fill any regular member vacancy at any meeting with full voting rights. Section 2. Regular Meetings. Regular meetings ofthe Code Enforcement Board shall be held at least meHtllly on the fourth Thursday, and/or at other times and places as needed, and determined by the Board, in the Collier County Commission Chambers. The Chambers will be open to the public at 8:30 a.m. The Board may begin the public portion of the meeting at 9:00 A.M. Section 3. Special Meetings. Special meetings of the Board may be convened by the Chair upon giving notice thereof to each othcr member ofthe Board or by written notice signed by at least three (3) members of the Code Enforcement Board. Section 4. Notices. a. Notice of a Special Board meeting shall be given to all Board members at least forty-eight (48) hours in advance of the meeting. At any meeting, the Board may set a future meeting date. a. a meeting. b. If a member misses two (2) SlJt ef three (3) successive board meetings without a satisfactory excuse, he/she may forfeit his/her appointment. c. Attendance shall be in pcrson and may not occur through any form of electronic medium. Attendance. Members shall notify the Chair or Secretary to the Board if they cannot attend Section 5. Section 6. Quorum. A quorum of the Board shall consist of four (4) members and an affirmative vote of a majority of those present and voting shall be necessary to pass any motion or adopt any order. For example, if four members are present, an affirmative vote of three of those members present shall be sufficient to take Board action. Section 7. Voting. 2 Agenda Item No. 10B February 12, 2008 Page 27 of 41 a. Voting shall be by voice vote, or show of hands, if necessary, and may be recorded by individual ( or group). b. Each member present shall cast a vote on each question before the Board, except that if any member has a personal interest in a matter, he or she shall abstain from participation as a member of the Board in that matter. Section 8. open to the public. Section 9. Procedure. Parliamentary procedure in Board meetings shall be governed by Robert's Rules of Order, as amended, and by the Rules and Regulations contained herein. Records. All records of regular and special meetings or hearings shall be Section 10. The Code Enforcement Board shall be governed bv the provisions of the Florida Sunshine Amendment and Code of Ethics for Public Officers and Emplovees. ARTICLE VI Order of Business 1. Roll Call 2. Approval of Agenda 3. Approval of Minutes 4. Public HearingslMotions A. Motions B. Stipulations (Non Contested Cases and present at the hearing) C. Hearings a. ~IOR CORtested Cases afla present at tAe ilearillf; a. Contested Cases by Respondents and present at the hearing b. Cases of Respondent not present at the hearing 5. Old Business ~lew BlisiRess A. Motion for Imposition of Fines/Lien (Propertv owner present) B. Motion for Reduction/ Abatement of Fines 6. New Business Ola BusiRess 7. Consent Agenda A. Motion for Imposition of Fines/Lien B. Request to forward Cases to Countv Attornev's Office 3 Agenda Item NO.1 08 February 12. 2008 Page 28 of 41 8. Reports 9. Comments 10. Next Meeting Date 11. Adjourn The order of business may be suspended by a vote of the majority of those members present. ARTICLE VII Initiation of Actions Before the Board Section 1. Actions before the Board shall be initiated by a Code Enforcement Investigator filing an Affidavit of Violation, which shall include a statement of the facts and circumstances of the alleged violation and shall identify the code or ordinance, which has been violated with the Secretary to the Board. No member of the Board may initiate action before the Board. Section 2. The Secretary to the Board shall assign a file number to each case and schedule a hearing. Section 3. The Secretary to the Board shall send out a Notice of Hearing along with a Statement of Violation and a copy of the Rules and Regulations to the alleged violator by either certified mail, return receipt requested. hand delivery upon a party, posting on the property and at the courthouse, or in any manner authorized as provided by the Ordinance establishing the Code Enforcement Board. The Secretary to the Board shall provide Notice to the Code Enforcement Investigator and the alleged violator as herein provided at least ten (10) days prior to the hearing at which the alleged violator'S case will be presented to the Board. A copy of said Notice shall be sent to the attorney for the Board, the supervisor of the Code Enforcement Investigator involved, and the Code Enforcement Investigator involved. Section 4. The Notice of Hearing shall inform the alleged violator that he or she is permitted to provide an answer/response packet of infonnation to the Secretary to the Board for distribution to the Board Members prior to the Board Hearing. The Code Enforcement Investigator shall submit the charging packet of information detailing the alleged violation(s) to the Secretary of the Board for distribution to the Board Members at least fifteen (15) business days prior to the Board Hearing. In order to have the information submitted to the Board Members, the alleged violator shall submit fifteen (15) copies of his or her information to the Secretary to the Board five (5) business days prior to the scheduled hearing. THe alleges '.ielater's (laeket sl1all be ergal1ized, flagiRateB, aRB SHall h6':e a TaBle 0 f Cel1teRts. The Secretary to the Board shall distribute the e\'iseRtiary packetto the Board Members not laterthan three (3) days prior to the hearing. The Code Enforcement Investigators charging packet shall be delivered to the alleged violator along with the Notice of Hearing. The Secretary to the Board shall not deliver His er her flreHeariRg o'.'isel1tiary (l6eket te the the charging packet to the Board Members until he or she receives the alleged 4 Agenda Item No. 108 February 12, 2008 Page 29 of 41 violator's IlreRearillg eviaeHtiary answer/response packet or until the deadline by which the alleged violator's packet of information must be received by the Secretary to the Board has passed. If the alleged violator timely delivers his or her e','iaeAtiary answer/response packetto the Secretary to the Board, the Secretary to the Board shall deliver all packets together. Section 5. In emergency situations, the timelines set forth in this paragraph can be abbreviated or igAorea set aside to address the alleged violation in order to avoid further damage to the health, safety and welfare of the citizens of Collier County, Florida. ARTICLE VIII Prehearing Procedures Section 1. Prehearing meetings between parties. The alleged violator and Code Enforcement Investigator are encouraged to have a prehearing conference one (1) hour prior to the scheduled hearing. At the prehearing conference the following may occur: a. The Respondent/alleged violator may be asked if he/she wishes to contest the violations. If so, the case shall be placed on the agenda as stated in Article VI., SHeseetioll 5. b, The parties may stipulate to an agreed Order, to be approved by the Board. c. The parties may stipulate to any facts, exhibits or other evidence to be introduced into the record, which are not in dispute. d. The names and addresses of witnesses to be called may be exchanged. Any facts or evidence stipulated to shall be presented to the Board Members along with any prehearing packets or agreements either party intends to provide to the Board Members. Section 2. Prehearing Motions. Any motion for any reason to be filed by the alleged violator or the Code Enforcement Investigator shall be delivered to the Board's Attorney or the Boards Secretary and the opposing party, or their counsel, if applicable, at least five (5) business days prior to the hearing. The person filing the motion shall provide the Board's Secretary with fifteen (l5) copies of the motion. The Board's Attorney will then distribute the motions to the Board Members. The Board may waive the requirements set forth in this paragraph under exceptional circumstances. ARTICLE IX Hearings Formal rules of evidence shall not apply, but fundamental due process shall be observed. The Board is without jurisdiction to hear any statement, argument or evidence alleging that any provision of the county's ordinances is unenforceable due to conflict with the Constitutions of the 5 Agenda Item No.1 OB February 12, 2008 Page 30 of41 United States or State of Florida, Florida Statutes, administrative agency regulations, other county ordinances, or court decisions. The following procedures will be observed at hearings before the Board; a. In a non-contested case the only evidence heard shall be the statement ofthe violation and any stipulated agreement. b. Where notice of hearing has been provided in accordance with Florida Statutes, Section 162.12, the ReGflORseflt as ]'Jrovised hereiR a hearing may proceed in the absence of the Respondent. c. The Secretarv to the Board shall read the statement of violation against the Respondent/alleged vio lator. d. The Respondent/alleged violator shall state his/her full legal name. mailing address and phvsical residence. e. Presentatiofls efa ease may he limited te t.",eRty (2(,)) miRHtes ]'Jer flarty, iRdHsiRg testimoA,' of all witResses. IftRe Res]'Jendent helievEs that additieRal time is reqHires, he/she shall Rotify' the gears Seeretary 13rior to the schedHles heariRg. ]fthe Respondent/alleged violator is not present and is represented by a person other than an attornev. the Respondent should submit a notarized letter to the Chair ofthe Board ~rantin~ that individual permission to represent him/her at the hearing. f. E.\'iEieRee teRdered at tAe be;;ifl1=tin;; Elf eacR part:"s presBFltatiell. ,\F1:,' e\'i8eHce~ ,'(hieh is seHght to be iAtrosHeed BY a I"arty '.', he Ras net met the reqHiremeRts of:\rtide VII, SeetioR 1 ofthese rHles, may Be ebjeetes to by the 013130siRg side. V.'hether to allow the eviseRee sRall be at tRe: diseretieR afiAe Beard. l[t1:10 Beard alh:l'.\'s the evisence a recess or centiflUaFlce to r~n:amiFH.~ said e'.ideRee may be graRtes by the Beard. Presentations of a case mav be limited to twentv (20) minutes per party. includin~ testimonv of all witnesses. If the Respondent believes that additional time is required. he/she shall notifv the Board Secretary prior to the scheduled hearin~. g. :\11 ]'Jersens a]'J13earing Before tile geard sllall Be 51'. erR iR. Anv evidence which is sought to be introduced by a partv during the partv's presentation is admitted at the discretion of the Board and mav be obiected to bv the opposing side. Ifnecessarv the Board mav ~rant a recess or continuance to examine said evidence. h. EaCH side may 0e pen:r-titted t8 mak.e brief opeFliFlg statemeFlts, if reE{l:Iestea. The C8MH!) sAall preseFlt its case RFld RespoRs0flt!alle;;ed via later shall rreseRt Ais ff10r case. Both J38Fties sllalll,a'.'e aR ej3j3ertHRity' to cres~; e):amine all \',itnesses. All persons testifvin~ before the Board shall do so under oath. i. Members ofthe ]'JHblie ma, testify' aRs I"ro'.ise relevant 8'0 ideR6e to SHppert tllat a ~/i0Iati8R Ras Sf Ras Ret oeeHrred. Testimofl)' of me meers 0ftRe t='Helie maj be f'ermittea to Ae more tRaR five (5) miRHtes ~Rles5 eKteRded BY' a majerity vote eftRe goars. Membem enlle ]'JuBlie may Be feEjHires te 13re register to speal:. Each side mav be permitted to make brief opening statements. if requested. The Countv shall present its case and Respondent/alleged violator shall present his/her 6 Agenda Item No.1 08 February 12, 2008 Page31of41 case. Both parties shall have an opportunitv to cross-examine anv person testifYing. j. TAe Beard or its attefAey lI'lay EjHesti8R aR) 'NitResG(es) or sail aR)'? itRess(es) as Reeessary. Anv person who can provide relevant evidence to support that a violation has or has not occurred and wishes to testifv should notifY the Board Secretary prior to commencement of the public hearing. Testimonv mav be limited to no more than five (51 minutes unless extended bv a maioritv vote of the Board. k. TAe rigHt of the partiBs to flFesBRt re8Httal e':idBRse is disoretioRal')' with the &are. The Board or its attornev mav question anv witness(es) or call anv witness(es1 as necessarY. I. Ul3eR eOfRj9 letieR of all tAe eviseRee, eaeA sise lI'la) 'ee l3eFFllitted te lI'lal:e 'erief dosiRg argHlI'leRis aRd the CAair shall dese tAe AeariRg. The right of the parties to present rebuttal evidence is discretionary with the Board. m. TAe Beard sHall seliberate iR OfleR sessieR before the flH8lio aRs seterll'liRe whetAer tHe Count)' Aas proveR by eell'lfleteRt sHbstaRtial E':iseRee tAat a vielatioR AaG oeeHFFed. lftAe Board determiAes tH.at a vie lati8F1 has eee1:lrrea, it skatl thGH aeliberate aHd aeterrniRf? 'I. hat affirmati\'e relief and l3eteRtial HRes sAall be afll3repriate. lftAe Beard deeG Rot HRd tAat a " iolatieR AaB eeeHrred, tAe eRar;es sAall be sismisses. Upon completion of all the evidence. each side mav be permitted to make brief closing arguments and the Chair shall close the hearing. n. TAe Beard, H]lOR HRdiRg a RBSl3eAseRt iR violatioR, sRall iSSHe aR mal Order te CORlI3I)', settiRg a sate eertaiR for eOR'lpliaRee. TAe Orser sAall eontaiA fiRdiRgs ef faet aRd CeRolHsieRs efLaw and statB tRe eerreetive aetieR granted b) tile Boan!. TAB Beard ~l1a)' iAelHde iA sHeR Oreer a fiRe te tal~e effeet the day follo'/:iAg tRe sfleeiHed eOIl'l]llianee sate in eaGe of ReA eempliaflse. lA seteFFlliRiRg tAe amOlJAt sfthe fiRe, if aRY, tAe Beard sAall oORGiser tAe f-ellov. iAg facters: (I) tAe gra':it) sftAe vislatioR; (2) aR)' astioRs taileR B) the vislator to ssrreet tAe " iola,tisR; (3) aRY ]lre'.'isHs 'lislatioRS eO~l1mitted by tAe vis la,tor; and (4) aA)' other rele\ aRt faeters. SueA fiRe shall RSt elleees T'/,'o HHRsred fifty Dsllars ($250.00) fer eaeh day tAe ',' iolatisR eontimles past tl~e speeifiee eeR'll3liaRee eatB aRe fi':e HHRdres Dollars ($500.00) fer refleat " iolatisAs ofeasR day tAe vio latisfl GefltiAl=les past tRe speeified C:8fFlplianee da~e. If} aaaitioFll tRe ReSfl8F18efltf\ is lator ma) be erderes to l3a)' aRY spBratioRal aRd/or preseeHtisR eosis iReHrree. Sais OrdBr sAall be resHeed to v:ritiRt; aAs 8e mailed to tAe Resl3sndeAt/':iolater v. itAiR teR (l 0) days. The Board shall deliberate in open session before the public and determine whether the Countv has proven bv competent substantial evidence that a violation has occurred. If the Board determines that a violation has occurred, it shall then deliherate and determine what corrective action and potential fines shall be appropriate. If the Board does not find that a violation has occurred, the charges shall be dismissed. 0, IR tAe eveRt tAe '.'ielatioR is a " iolatisR deseribed iA SeetioR I S"'.OS( 1), f1a. Stat., tAe Bears mj' ain~et 111e 10eal ;ovsrniR; BBB)" to maLe all reas8Flable reJ3airs reElHired to 1:JriR; the prsl3erty iRte eeml3liaAee aRd eAarge the viela,tor v:iih the rBasoRable eosts ofrepaifG aleRt; 'NitA the fiRe aRe aR)' 8flera,tisRal sr proseGHtorial Gssts. The Board, upon finding a Respondent in violation, shall issue an oral Order to Complv, setting a date certain for compliance. The Order shall contain findings of fact and Conclusions of Law and state the corrective action granted bv the Board. The Board mav include in such Order a fine to take effect the dav following the specified compliance 7 Agenda Item NO.1 OB February 12, 2008 Page 32 of 41 date in case of non-compliance. In determining the amount of the fine. if anv. the Board shall consider the following factors: (I) the gravitv of the violation: (2) anv actions taken bv the violator to correct the violation: (3) anv previous violations committed bv the violator: and (4) anv other relevant factors. Such fine shall not exceed One Thousand Dollars ($1.000.001 for each dav the violation continues past the specified compliance date and Five Thousand Dollars ($5.000.00) for repeat violations for each dav the violation continues past the specified compliance date. In addition. the Respondent/violator may be ordered to pav any operational and/or prosecution costs incurred. Said Order shall be reduced to writing and be mailed to the Respondent/violator within ten (10) davs. p. ,A. flartj' maj feqHsst a reReariRg afiRe Beard's Oraer, basea OR1) OR tRG gr0~md that tRe aeeisiEtR ,,<,as eElfltrarj to tRe eyiaeRCe Of tRat tAG heariFl;; iRyol\,0a aA error 8ft a fHliA; ef lay, whie1:J v:as fHRsaFFH3Atal t8 tAl? aecisi8fl efthe Bear(:l. The ','. rittSA ReElHest Fer ReRearifl;; (ma:,' be in tAG Forms ofEnhil3it ".A.") shall sfJeeify tRe preeise reasons tRereef. ,A. Reql;H~st for Rehearifl;; sHall be iA writiflg aAs seAt te tHe Seeretary to tHe Beard '.', ithifl teA (19) da, s ef tile sate tile Orser is reeeives by tile party, bHt iA Ae e'/eAt mere tHaA tweAty (29) say s frem tile dale of mailiflg eftlle Orser. Tile Orser ef tile Beard sllall be sta) es aAs the time fer takiflg aA appeal telled HAtil the RSG]1:10st for ReRsarifl;; has BeeR Elispesea of BAd the aeeisi0H recei.. ed BY tAG parties; flrc)','iaea, Ilwl/eyer, that ifl Ae eyeR! shall the Order be stayes fer a )'lerios leRger theR l"1.eAty (20) says frem sate of tHe mailiflg of tHe relleariAg deeisioR. !!l.the event the violation is a violation described in Section 162.06(4), Fla._Stat., the Board ma: direet tHe apprepriate de)'lartment v, ithiA the UAifleDFj3eFllted eeuR!y to shall notifv the Countv Manager. which mav make all reasonable repairs required to bring the property into compliance and charge the violator with the reasonable costs of repairs along with the fine and any operational or prosecutorial costs. q. The Beard shall make a aeteFFfliAatiElA as to '.'.'lletRer or Aet to rehear the matter and its aeeisiGFl sHall Be mase at a pl:lslie meetiR;;, redl:lced to '::[iliR; BREI rnailes to the iRterested parties witlliR 19 says after the seeisieA is made. If the Boars setermines tl,at it will ;;raAt a relleariR;;, it may: (I) SeRedHle a hearing '.'. here the \'larties will 8e ;;i'. en the ElflP8rtHAit) of]3reseRtiA;; evideAee or argHmeAt limited by the Beard te the s)'leeif.ie reaseRS fer v.hieh tile reHearifl;; was gral1ted; Ell' C) ~18eify Sf re\'erse its f'rior Order, ','.'itR8Ht recei','iRe fl:1rtRer 0'.iElI?FlCe, pre', idiA; that the chaAoe is based eR a fiRdiAg that the prior deeisioA ofthe Bears resHlted frem a rHliAg OR a qHestion oflaw \'.hiell the BElard Ras beeR iRf-Elrmed '.'.as aA erroneOHS rHliflg. A partv may motion a rehearing of the Board's Order. based on Iv 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 Board. The written Motion for Rehearing shall specifv the precise reasons thereof A Motion for Rehearing shall be in writing and sent to the Secretary to the Board within ten (10) davs ofthe date the Order is received bv the partv. but in no event more than twenty (20) days from the date of mailing ofthe Order. The Order of the Board shall be staved and the time for taking an appeal tolled until the Motion for Rehearing has been disposed of and the decision received by the parties: provided. however. that in no event shall the Order be staved for a period longer than twentv (20) davs from date of the mailing of the rehearing decision. f. :\flY a;;rie\'0d fJarty FFlay aJ3J3eal a fiFlal Orser Elf the Boara 18 tRe Cireblit CCH:lrt withil'l \Rift)' (39) says efthe eJ~eeHtioA efthe Order a\'lpeales. ,\R ap]3eal shall Aet 8e a Reariflg de 8 Agenda Item NO.1 DB February 12, 2008 Page 33 of 41 ntr:e (8 lfe~l hearing), En::!! sHall BE! limited to aJ:lpeIlate Fe','ie\',' eftRE! resers ereatea. filiA;; afl f.]lpeal sllall Rot stay tile Boare's Oraer. The Board shall make a determination as to whether or not 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 davs after the decision is made. If the Board detennines that it will grant a rehearing, it mav; (1) Schedule a hearing where the parties will be given the opportunity of presenting evidence or argument limited bv the Board to the specific reasons for which the rehearing was granted: or (2) 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 Board resulted from a ruling on a question of law which the Board has been informed was an erroneous ruling. s. Anv aggrieved partv mav appeal a final Order of the Board to the Circuit Court within thirtv (30) davs of the execution of the Order appealed. An appeal shall not be a hearing de novo (0 new heorinz), but shall be limited to appellate review of the record created. Filing an Appeal shall not stav the Board's Order. ARTICLE X ERforeemeRt SeetioR 1. -,\fler aR Order Ila, BeeR iss~es 13,' tile Beare aRs a date of eOffiJ'lliaRee Ilas BeeR set, the Csse ERforeement Investigator sAall make a reiRopoetioR to aelermiRe eOffiJ'lliaRee or ROR eORl]lliElRee with tile Orser of tile Beare. Seetion ~. Tile COGe ERforeemeRt Investigator shall file an /\ffidavit ofCompliaRee 8f NOR Com]llianee witA tile Seeretary to the B8!;rs. f. eO]lY of saie .^.ffidavit shall be sent te the ':iolater by reg~lar V.S. mail and reenrded iR Ihe PHBlie Reeerss of Collier COHRt), Floriea. The Seerelary ts tile Board sllall re]lsrt tile statHs of tile said affisa':it at Ihe neKt selleGHled Board meetifl;;. SeetioR 3. -'\ reqHest for a reeHetion/aBalemeRI eHiRes may Be iR the form of a Rell~est to lm]lsse ResHee/f.bated FiRe. The ReEjHeot sRsHlli eostain tRe f{)llowing iRfermatisR: (a) Rame, aRd address ofRames Res]loRdeRt; (b) names of all S',':Rers sf tile ]lroperty 'i'Rieh is the sHbjeet of tAe vislatisR; (e) physieal aliliress of sHbjeet pro]lert,'; (d) natHre of vio latieR; (e) seseri]ltion of al3atemsRt efvislatioR aRd date ofal3atemeRt; (IRlhe s':eRt that the violation eaRllot l3e aBates by ReS]lORseRt, the ReS]lSI1SeRt sAaII iReIHde iR the RellHest to RedHee/.'\bate FiRes a sotaiIod deseri]ltioR of tile efforts HnGertaken for abatement anli an eX]lIaRatisR as to ',', hytAe violatioR eannot l3e a13ateli, aRd ]lrovise sHflpert sssHmeRtation to that effset); (f) l1'litigatiRg faster, whieh Res]lSRseRt Believes v.arraRts a redHetioR or aeatemeRt of fines; (;;) an, other faetors that may l3e eSRsisereli by the Boars; (A) signatHre of RespoRdent; and (i) all sHp]lorting doeHmelltation. The Res]lOAseRt shoHId ]lro\ ide tAe Seeretary to tAe Board fifteen (15) eOj'lies of tAe RellHest to ReliHee/f,bateli fiRe, atta"hing all 5Hp]lorting lioCHmeRts. Se"tioR 1 The Board sAall liele_iRe tAe amElHnt of o]leratioRal "oots aRliior fines as a]lj3lieaele to Be im]losed aRli the Res]loRdeRt shall reeeive Reti"e of the said HeariRf;. IR aete_iniR;; tile amO!,lRt of the fiRe, if aR,', the Board shall c8Rsiser the follewiRg faeters: (1) tile 9 Agenda Itern NO.1 OB February 12. 2008 Page 34 of 41 brevity Elf tRE! vielatieH; C)) 8HY aetieFlS tab~fl Bj' iRe vie later to seTTee! tRe yielatisR; (3) BA)' previeHs vielatiefls Geffimittea BY tRe vie later; aRa (1) 8Rj' otHer releYaRt faGtors. SHeA fiRe shall flet e]~eeeEl Tv:e Hl:llUlres fifty Deller:; ($259.09) fer SaGA aay tHe vielatieR GeRtiRl:l8S t'ast tft€! sfl8eifiea cOFHfJIiaRce date BRS Fi', e Hl:lRSrea DB HaFts ($590,90) f{)f fl.~13eat vielatisRs for eacA Elaj' tRe ','iolatisfl eORtiRH8S pas tRe speeifiea eompdiaRce date. If} aaditieR, iAe ReSpElRSsRtfyiolater ma:,' lae en:lerea to paj' BA)' ofJeratkm afld/er preS8GHtieR CBS!:; iRe1::1ffea. THe Beara's aetermiflatieR 18 imfl8se o13eratisRal G8StS BAa/af fhH~S, sRaIl BE! resHeea t8 writiRg BREI a eepy sf t}qe Oreer IWll:10SiRg riFle/LieR SHall ee mailed t8 the yiolaterBY re;;l:liarU.S. mail or ser\'ea Hpefl tRe yielater as Sj3ecifiea ey the OniiFlaAee aRa ree0rdea iFl the Pl:ll3lie Reeoras of Collier CSl:lflty, Fleriaa. ARTICLE X Reduction or Abatement of Fines Prior to Imposition of Fine Section 1. The gears ?,ill SRI)' eSRsiser ....ritteR reqHest f.gr a resHetion of fIRes. The reEtHest ffil:ist state reaseRS fer resl:ietion aAd FRldst iRell:isin;; SHpflsrtin; Elocl::lFFlentation Fer Beard ceRsiaeratieFl as fiG Fl:lrther testiFflon:,' from 0r if! Behalf aftRe \ i01ator will Be cORsideres. ,\ ReflHest to ResHce/FiFles FFlay Be FRase after a. vi01atioR Aas Been abates, or iF! the eveRt a vi8latieR caRRot be abatea, after ailigeRt attemflt to a8ate tRe vielati8R in aeeordance \'. itA the B0anfs Oraer Ras BeeR mase. UHaer AB eirel:lR1stances may a ReE}l:lest to Reaueel;\sate rifle 8e maa8 after the Board 11as aHtRsriz~El feredssHre 8) the CSHRt)' .'.ttorRe)"s Office. A Motion for Reduction or Abatement of Fines shall be in the form of a written request. The Motion should contain the following information: la) name. and address of named Respondent: Ib) names of all o"'ners of the propertv which is the subiect ofthe violation: I c) phvsical address of subiect propertv: (d) nature ofvio lation: Ie) description of abatement of violation and date of abatement: (In the event that the violation cannot be abated bv Respondent. the Respondent shall include in the Motion for Reduction/Abatement of Fines a detailed description of the efforts undertaken for abatement and an explanation as to whv the violation cannot be abated. and provide support documentation to that effect): (f) mitillating factors which Respondent believes warrants a reduction or abatement offines: Ig) anv other factors that mav be considered bv the Board: (h) sillnature of Respondent: and Ii) all su~porting documentation. The Respondent should provide the Secretarv to the Board fifteen (15) copies of the Motion for Reduction/Abatement of Fines. attaching all supporting documentation. A Motion for Reduction/Abatement of Fines mav be made after a violation has been abated. or in the event a violation cannot be abated, after a dilillent attempt to abate the violation in accordance with the Board's Order has been made. Under no circumstances may a Motion for Reduction/Abatement of Fines be made after the Board has authorized foreclosure bv the Countv Attomev's Office. Section 2. Upon the proper filing ofa Motion. the Secretary to the Board shall set the Motion on the next available agenda of the Code Enforcement Board. The failure ofthe Respondent to complv with the requirements set forth above may be grounds for dismissal of the Motion bv the Code Enforcement Board. Such dismissal shall be without preiudice to the Respondent to file another motion accordance with these Rules. Section 3. Upon the proper filing of a Motion for Reduction! Abatement of Fines. the Board may consider the following factors: la) the gravitv ofthe violation: Ib) actions taken bv the 10 Agenda Item No. 108 February 12. 2008 Page 35 of 41 Respondent to correct the violation: (c) whether there were previous violations committed bv the violator; (d) the cost upon the violator to correct the violation: (e) the reasonable time necessary to correct the violation: (I) the value ofthe real estate compared to the amount ofthe fine/lien; (g) anv hardship the fine/lien would cause on the Respondent: (h) the time and cost incurred bv Code Enforcement to have the violation corrected and (i) anv other equitable factors which would make the requested mitigation appropriate. Section 4. The Respondent shall have the burden of proof to show why a fine/lien should be reduced or abated. The hearing shall be conducted according to Article IX of these Rules. where applicable. Section 5. If a reduction is granted: the reduced fine must be paid within thirtv(30) davs. unless otherwise specified in the order. or unless staff. in its discretion. negotiates an installment plan. lfpavment is not made within the specified time. the fine shall revert to the original amount. The Order shall be reduced to writing and a certified copv of the Order shall be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real propertv or personal propertv owned bv the violator. Section 6. The Board will not re-hear a motion for reduction offines once a decision has been reached on a previous motion for reduction of fines. Section 7. The Board's decision to grant or den v mitigation of an Order Imposing Fine/Lien shall be reduced to writing and a certified copv of an Order imposing a fine shall be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon anv other real propertv or personal propertv owned hv the violator. Anv aggrieved partv mav appeal a final order to the Circuit Court within thirtv (30) davs of the execution of the Order appealed. An appeal shall not be a hearing de novo (new hew"inf!). but shall he limited to appellate review of the record created. Filing an Appeal shall not stav the Board's Order. ARTICLE XI [mposition of Fines Section I. After an Order has been issued bv the Board and a date of compliance has been set. the Code Enforcement Investif!ator shall make a reinspection to determine compliance or non-compliance with the Order of the Board. Section 2. The Code Enforcement Investigator shall file an Affidavit of Compliance or Non-Compliance with the Secretarv to the Board. A copv of said Affidavit mav be sent to the violator bv regular U.S. mail and recorded in the Public Records of Collier Countv. Florida. The Secretary to the Board shall report the status of the said affidavit at the next scheduled Board meeting. Section 3. Upon a Motion for Imposition of Fines being tiled bv the County. the Board shall set the Motion for hearing with proper notice to the Respondent. Anv Motion for 11 Agenda Item No.1 08 February 12, 2008 Page 36 of 41 Abatement/Reduction of Fines shall be set on the same date for hearing ofthe Countv's Motion. when received in a timelv manner. This hearing shall not be a trial de novo or a new hearing on the original case. The Countv mav present evidence of the period of non-compliance. the amount of dailv fines and the total amount of fine requested to be imposed, as well as anv operational costs incurred or to be imposed. Respondent mav be given the opportunitv to present anv written Motion for Abatement/Reduction of Fines and anv testimonv in support thereof. Respondent mav also. atthe discretion ofthe Board. be given the opportunitv to present testimonv regarding efforts made toward compliance and abatement. which mav be considered as mitigating circumstances. In rebuttal. the Countv mav be given the opportunity to present testimonv regarding aggravating circumstances. Section 4. The Board shall determine the amount offines as applicable to be imposed. In determining the amount of the fine. if anv. the Board shall consider the following factors: (1) the gravitv of the violation: (2) anv actions taken by the violator to correct the violation: (3) anv previous violations committed bv the violator: and (4) anv other relevant factors. Such fine shall not exceed One Thousand Dollars ($1.000.00) for each dav the violation continues past the specified compliance date and Five Thousand Dollars ($5.000.00) for repeat violations for each day the violation continues past the specified compliance date. In addition. the Respondent/violator mav be ordered to pav anv operational and/or prosecution costs incurred. In the event the violation(s) has/have not been abated at the time ofthe hearing on the Motion for Imposition of Fines. the Board mav determine if daily fines shall continue to accrue or if a stav is appropriate. The Board's determination to impose operational costs and/or fines. shall be reduced to writing and a copv of the Order Imposing Fine/Lien shall be mailed to the violator bv regular U.S. mail or served upon the violator as specified bv the Ordinance and recorded in the Puhlic Records of Collier County. Florida. Section 5. A certified copv of an Order of Imposition of Fines shall be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon anv other real propertv or personal property owned bv the violator. For all Orders Il1'leesiRE: FiRes/Liens renElered af{er .^.pril I €i. 1999. the Order. wAen sroperl': recorded. sAall he sHl3erier to tAe interest 8n sHcA eroeert" ofaH': O'.'.ner lessee. tenant. mort~a~ee. or otAer per:;(1B e~:cept the lien efCeHnt': taJles. and SA all he 8seqHal ",itA eOHAt': ta:;es. Upon petition to the Circuit Court. such Order mav be enforced in the same manner as a court iudgment bv the sheriffs of this State. including lew against personal propertv. but shall not he deemed to be a court judgment except for enforcement purposes. A fine imposed pursuant to this part shall continue to accrue until the violator comes into compliance or until iudgment is rendcred in a suit to foreclose on a lien filed pursuant to the ordinance. whichever comes first. After three (3) months from the filing of an v such lien. which remains unpaid. the Board mav authorize the atlornev representing the Board of Count v Commissioners to foreclose on the lien. No lien crcated pursuant to this ordinance mav be foreclosed on real propertv. which is homestead under Section 4, Article X of the Florida Constitution. 12 Agenda Item No. 108 February 12, 2008 Page 37 of 41 Section 6. No lien imposed pursuant to this article shall continue for a period longer than twentv (20) vears after the certified copv of an Order oflmposition of Fine/Lien has been recorded. unless within that time an action to foreclose on the lien is commenced in a court of competent iurisdiction. In an action to foreclose on a lien. the Drevailing partv is entitled to recover all costs. including a reasonable attornev's fee that it incurred in the foreclosure. ARTICLE XII ReeersiAZ: ef Order SeetiElR 1. ,II. eertifisa €epy GraB OrElsr im}3BSiAg a fiAd sI,all be reeefded iR tAL? fl1:Jblic reeerss aRs tflersaftsr shall eeRstitHte a lieR agaiRst the laAs OR whieh the 'iielatieR eldsts aRs HpOR aR~' etfler real property er perseRal preperty eV"Red l3y the 'iielator. For all Orders ImposiRg FiRes/Lisfls reRseres after .^.pril 1 Ii, 1999, tAe Order, '....heR preperly reeerded, shall be sHperier te tRe iAterest OR sue};} flro~erty GraFt)' OWFler lessee, teRallt~ mort;a;ee, Of other }3e[$on e;:eept tHe lieR ofCeHAty talles, aRd shall Be eoeEjHal with eeHAt~' talles. IJpOR petitioA te the CircHit COHrt, sHsA Orser may Be enfereed iR the same Rlaf1Rer as a eeHrt judgmsRt by tl1e sheriffs of tl1is State, iRelHsiRg Ie..') agaiAst persoRal property', bHt sl1all Rst be deemed te be a eeHrtjHdgmeAt eJlsept for sRfereemsRt pHlfleses. t. HAS imp8sed pHrGHaflt to this Fart shall eefltiRHe te aecrHe HRtH the yiolater comes it~te cOFRJ3liaRce or MAtil jl:ld.;meRt is refloaTee iFl a suit 10 t:erec1ose OR a lieR filed fHirS1:l8Rt to tRE! orEliRaRee, wRieAe\'er eemes first. .^Jter tHree (3) mONtAs from tiliR; of aFlJ' sl;Ich lieR, WHisk reffiains HRpaiEl, the Beard may al:ltAsrize tAe attorRey re}3resefltin.; tRG COFfll-rlissioA to foreelese SR the lieR. 1>le lieR ereates FHrSHant to this erdiflaRee may be fereelosed SR real (3feperty, whieh is homeGteas HAser SeetieR 1, t.rtiele X sf the Flerida Cew;titHti8A. SeetieR 2. tIe lieR HAder tRis ordiFlaRce SHall cORtiFl1:l0 fer a f'erisa Ion;er t}qafl Fl.'E1flty CO) years after the eertiHed se(3) efaR Order lmposiRg a FiRe Ras seeA reeersed, HRless witfliA that time aFt aerioR 18 foreelose 8A the lieR is cemmeAeee in a 601:111 ef eom]3eteflt jHrisaietiofl. If} aFl BelioA t8 foreelose Elf} a lief}, the pff~1','ajliAg }3arty is 0Rtitlea to reeo\'er all costs, iReluaiFlg a reas8Raale att0ffiey's fee tRat it iR6Hrs jfl. tRe foreGlesl:lre. Miscellaneous Section I. These Rules and Regulations mav be revised and adopted consistent with state statutes and countv ordinances during a regular meeting bv the affinnative vote of a maioritv of the full Board. including alternates. provided notice of a proposed change is given to the Board at a preceding regular meeting. Section 2. No Board memher shall kno",inglv discuss anv case with anv alleged violator or with each other or with anv other interested partv prior to the final resolution ofthe case bv the Board. Section 3. In the event a violation is occurring on propertv under multiple ownership and/or in which there is a tenant and there is the potential that the other propertv owner(s)' or tenant( s)' interest will be affected bv the Board. s decision. the Code Enforcement Investigator mav 13 Agenda Item No. 10B February 12. 2008 Page 38 of ~1 include the propertv owner and/or tenant as Respondent to the case. Section 4. Intervention bv non-parties mav be permitted if the non-partv's interest will be affected bv the Boards decision. Section 5. The Board. at its discretion. mav ask for periodic reports from Countv staff as to the status of cases. Section 6. In the event of a conflict between these Rules and Regulations and the provisions of anv ordinance(s) or statute(s) applicable to the Code Enforcement Board, the provisions of the ordinance(s) or statute(s) shall prevail. Section 7. Anv case in which there has been a hearing bv the Board prior to the adoption ofthese Rules and Regulations shall be governed bv the previouslv adopted rules and regulations in effect at the time of the hearing. f.RTlCLE XIII ~1ise0I1aF1eeHs SestiGR 1. TAese R,lIes ails Re;HlatioRs may be revises alld aso\9tes eGllsisteRt ""itA otate statl:ltes aRa CeliR!) erdiR8nces dlUiA; a re;1:t1ar meetiR; 13y tRe aff.irmath e ','8te of a majGrity 0fth0 fl:lll Roara, iFlell:ldifl;; alterNates, flrovieed Flelice Bf a pr0J38Sed ehSHeS is .;h eFl to tRe Roars at a preeediFl'; re;;l:J1ar meetiH';. SeetieR 2. tJe Boara memeer sRall LAO\'. iFl;;ly EliSCHSS an~' ease '?:ith BA)' alle;;ed', iolater or v.'ith eaeh ether er 'sith BA)' etHer iRterestea J3art) J3rior 18 the fiRst resoh:ltiofl efthe ease B) the Board. SeetieR 3. IF! the e', eRt a \'i81atieR is eGcurriF1;; 811 f1repert:' HRser medtiple eV,'FlerSAip 8Rd/8r in 'shieR there is a LeRan! BAd there is the peteRtial tRat tRe etHer }3ro}3eft)' EVl.'ner(s)' Of tellant(s)' interest will be affccted BY' the Boars's secisisR, tAe Cese ERf8reemeRt IRvestigater may iRelHde tile \9re\gerty 0'.', Rer aRd/er teRant as P,eS]3GRSeRt te tile ease. SestioR 1. InterveRtioR BY' ReR \9ar-ties may Be peffilittes iftAe IlBR \9a!i;,' Ilas BeeR IDHlld BY tAe Board to Be aR affeEted \9arty. SeetioR s. THe goarEf~ at its discretioFlI may asl: for fJerioeie reflerts [rem Cel:mt~' staffas Ie tile stat,," of Eases. SeetieFl €i. IR the e\'eFlt of a cORnict 8et'.\ e0R tHese Rules aRe P...e;l::llatieAs aRa the \9roYisisRs sf aRY' orsinaIlEe(s) sr stat"te(s) aJ3pliEaBle to tile Cese ERforeemeRt Bears, tAe \9rovisiBRs eftAe erdinaREe(s) er statHte(s) ,Aall J3revail. SeetieR "7. .A~RY case iA ""hieR there Has 8eeR a heariAg 8J' tRe goars prier to tHe ae8fltj()fl efthes8 RHles afIe RegHlatisRS SHall Be ;ovemed 8) tRe pre':isblsly asefltea HIles aAG re;l:llaticms in 14 Agenda Item No. 10B February 12, 2008 Page 39 of 41 eff-eet at the time afiRe l:iearieg. THESE RULES AND REGULA nONS, As Amended, ARE HEREBY APPROVED this day of ,2007. COLLIER COUNTY CODE ENFORCEMENT BOARD Gerald J. Lefebvre, Vice-Chair Sheri Barnett, Chair Richard Kraenbring George p, Ponte Jerry Morgan Kenneth Kelly Larry Dean Lionel L'Esperance, Alternate Charles Martin, Alternate 15 Agenda Item No. 10B February 12. 2008 Page 40 of 41 Redundancies between proposed CEB and OSM Rules Name and Jurisdiction (Articles I & II. respectively. in both CEB and OSM) . Identical except for reference to tribunal Note: CEB Articles III, IV, and portions of V are unique to CEB and this difference is based on logical distinctions between the two tribunals. However, there is some redundancy between CEB Article V and OSM Article III (see, e.g., Section 7, CEB vs. Section 2, OSM). CEB hearings start at different times than OSM hearings (see Section 2, CEB vs. Section 1, OSM). In addition, some of the language is slightly different from Ordinance 2007-44 (Consolidated ordinance), which also outlines quorum requirements (see CEB Article V, Section 5 vs. Ordinance Article II, Section 9(3)); number of members (see CEB Article V, Section I vs. Ordinance Article II, Section 2) and some other unnecessary redundancies. Order of Business (Article VI in CEO: Article IV in OSM) . Substantial similarities between these two Articles, which basically provide an outline for the agenda. . "Majority vote" (CEB, Art, VI, beneath #11 "Adjourn") is unique to CEB, Initiation of Actions (Article VII in CEB: Article V in OSM) .OSM Sections (Art. V, Sections I & 2) contain citation information unique to OSM. . With the exception of citation information and number of copies, CEB Sections 1-5 are nearly identical to OSM Sections 1, 3-6. Prehearinl! Proeedures (Article VIII in CEB: Article VI in OSM) . Unnecessary differences in Section I' s pre-hearing provisions ("encouraged" in CEB; "required" in OSM; one hour before hearing (CEB) vs. 30 minutes(OSM)); this could be combined I reconciled. . Letters a-d substantively identical (OSM has "stipulations" in d). . In both rules, Section 2 substantively identical (# of copies is the only difference) Hearinl!S (Article IX in CEO: Article VII in OSM) . The intra paragraph substantively identical. Although the rules include references to the Board, or the Special Magistrate, as the case may be, there is considerable redundancy between the two sets of rules. .CEB paragraph a = unique (reason unknown) . CEB paragraph b = OSM paragraph a . CEB paragraph c similar to OSM b (reason for difference unknown) . CEB paragraph d = OSM paragraph c . CEB paragraph e = OSM paragraph d . CEB paragraph f = OSM paragraph e (note time difference is explained by higher level of detail and lower level of volume for CEB cases) . CEB paragraph g = OSM paragraph h Agenda Item No. 108 February 12, 2008 Page 41 of 41 . CEB paragraph h = OSM paragraph i . CEB paragraph i = OSM paragraph j (OSM makes reference to section f and g, CEB does not - reason appears to be cosmetic) .CEB paragraphj = OSM paragraph k . CEB paragraph k = OSM paragraph 1 (CEB states "CEB or its attorney" which is unique to CEB) .CEB paragraph 1 = OSM paragraph m . CEB paragraph m = OSM paragraph n . CEB paragraph n = OSM paragraph 0 (CEB has reference to "deliberating in open session before the public" which is unique to CEB) . CEB paragraph 0 = OSM paragraph p . CEB paragraph P = OSM paragraph q . CEB paragraph q = OSM paragraph r .CEB paragraph r = OSM paragraph s . CEB paragraph s = OSM paragraph t Reduction or Abatement of Fines Prior to Imoosition of Fine (Article X in CEB; Article vm in OSM) . These entire Articles are substantively identical (with exception of# of copies, and references to Board or Special Magistrate, as the case may be). Imoosition of Fines (Article XI in CEB: Article IX in OSM) . These entire Articles are substantively identical . Differences include: . Superpriority of CEB (but not OSM) liens (see Section 5 of both) . Amount of time before forwarding a lien to the County Attorney's Office (3 mos. in CEB; 90 days in OSM - statute says 3 mos.) (see Section 5 of both) . references to Board or Special Magistrate, as the case may be, occur throughout.