Chapter 9 Code Enforcement Board

Chapter 9 Code Enforcement Board

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Chapter 9 CODE ENFORCEMENT BOARD*
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*Editor's note:  Ord. No. 2005-111, § 1, adopted April 28, 2005, amended Ch. 9, in its entirety, to read as herein set out. Prior to inclusion of said ordinance, Ch. 9 pertained to similar subject matter. See also the Code Comparative Table. 
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Sec. 9-1.Municipal code enforcement board created.
(a)   The operation of one (1) or more code enforcement boards, including special masters, ("CEB") is hereby authorized pursuant to and in the manner set forth at F.S. Ch. 162, to provide an equitable, expeditious, effective and inexpensive method of enforcing any City of Tampa Code provision or ordinance in force. The CEB shall have the authority to impose administrative fines and other non-criminal penalties when a pending or repeated violation exists or continues to exist.
(b)   In order to streamline the number and functions of administrative boards in City of Tampa government, and in order to take advantage of the expertise and experience afforded by the members of the CEB which, under F.S. Ch. 162, contains whenever possible, members with backgrounds in architecture, engineering, contracting, realty and other businesses, the CEB shall also serve as the division of neighborhood improvement review board, in which role it shall have the authority to hear and decide appeals of any order of the neighborhood improvement manager, except final orders as set forth in section 19-6, City of Tampa Code.
(c)   It is the intent of this chapter to promote, protect and improve the health, safety, and welfare of the citizens of the City of Tampa.
(Ord. No. 2005-111, § 1, 4-28-05)

Sec. 9-2.Alternative code enforcement system.
Nothing in this chapter shall be deemed or interpreted to create exclusive jurisdiction in the CEB for the enforcement of any or all municipal codes or ordinances. The City of Tampa may also enforce violations of its codes and ordinances in any court or forum of competent jurisdiction as provided by law.
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-3.Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Aggrieved party  means (1) any person that is named or otherwise directly subject to an order of the director of the department of code enforcement that negatively affects them by requiring the performance of or the forbearance from performing an act, or (2) a person that is the non-prevailing party in an action for administrative review by the CEB of an order of the director of the department of code enforcement, and may include the city. 
City  means the City of Tampa, as well as any of its departments or divisions, offices or officials acting in the course and scope of their employment. 
Code  means any of the several chapters of this Code or City of Tampa ordinances on zoning, property maintenance and development regulations or any other codes or technical codes of the city. 
Code enforcement board ("CEB")  , means the city code enforcement board or boards and its special masters, appointed by the mayor and approved by the city council. The board (or boards), and the special masters have the same authority which shall be coextensive with the grant of authority in F.S. Ch. 162, Pt. I, as it may be amended from time to time. Reference to the CEB in this chapter shall also apply to special masters. 
Code enforcement board secretary  means the city clerk, his/her designee. 
Code inspector  or  inspector  means any authorized agent or employee of the city whose duty it is to ensure Code compliance. 
Local governing body attorney  means the legal counselor for the City of Tampa, to wit, the city attorney or his or her designated assistant city attorney. 
Person  means any natural person, corporation, firm, partnership, association or other legal entity or person recognized or allowed to do business under Florida law. 
Repeat violation  means a violation of a provision of a code or ordinance by a person who has been previously found through a code enforcement board or any other quasi-judicial or judicial process to have violated, or has admitted violating the same provision of the code within five (5) years prior to the violation, notwithstanding that the violations occurred at different locations. 
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-4.Composition, appointment, terms of members, residency requirements, removal andvacancies.
(a)   The CEB shall consist of seven (7) members, and two (2) alternate members, each to be appointed by the mayor and approved by the city council for a term of three (3) years. Each member shall serve until appointment and qualification of a successor. The initial appointments to the CEB shall be as follows:
(1)   Two (2) members appointed for a term of one (1) year each;
(2)   Three (3) members appointed for a term of two (2) years each; and
(3)   Two (2) members appointed for a term of three (3) years each.
Thereafter, all appointments shall be made for terms of three (3) years.
(b)   Appointments shall be made in accordance with applicable law and ordinances on the basis of experience or interest in the subject matter jurisdiction of the respective code enforcement board. Appointments shall be made consistent with the Charter on the basis of demonstrated experience and interest in the fields of zoning, building control and other relevant disciplines. Whenever possible, the membership of the CEB shall include an architect, a person engaged in business, an engineer, a general contractor,a sub-contractor and a realtor.
(c)   Members of the CEB shall be residents of the city at the time of appointment and throughout their terms in office. Any member who is no longer a resident of the city shall be automatically removed and that vacancy filled as provided in this chapter.
(d)   If any CEB member fails to attend any two (2) of three (3) consecutive meetings, without cause or without prior approval of the chair of the CEB, the board may declare the member's office vacant and the vacancy shall be filled as provided in this chapter.
(e)   A member may be re-appointed by the mayor with the approval of a majority of the entire membership of the city council.
(f)   Appointments to fill a vacancy shall be for the remainder of the unexpired term of office.
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-5.Oath of office.
Each member of CEB, upon appointment, shall, before entering upon the discharge of his duties of office, take an oath of office as required by the Charter.
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-6.Organization; compensation; rules and regulations.
(a)   Organization of the CEB shall be as follows:
(1)   The members of the CEB shall elect a chair from among their members. The chair shall be allowed to vote on all matters appearing before the board.
(2)   The members of the CEB shall also elect a vice-chair from among its members. The vice-chair shall preside over the public hearing in the absence of the chair.
(b)   The presence of four (4) or more members shall constitute a quorum. Members shall not be entitled to compensation; however, all members shall receive reimbursement for parking in city garages and for mileage for any board-related business, except travel to and from regularly scheduled and specially called board meetings. Such reimbursement shall be consistent with city policy.
(c)   The local governing body attorney may represent the City of Tampa and its departments bringing cases before the CEB. The CEB shall have its own attorney who shall be responsible for providing the CEB with legal counsel.
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-7.Special masters.
(a)   The authority and status of special masters shall be the same as that of the CEB. The duties and functions of the special masters shall be set forth in the rules adopted by the CEB for the conduct of its hearings.
(b)   A violator whose case has been heard by a special master and is found guilty shall be precluded from arguing the same case to the full CEB.
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-8.Enforcement procedure.
(a)   It shall be the duty of the responsible city departments to initiate enforcement proceedings of the various codes and ordinances; no member of the CEB shall have the power to initiate such enforcement proceedings.
(b)   Except as provided in subsections (c) and (d), if a violation of the city codes or ordinances is found, the inspector shall notify the alleged violator and give him a reasonable time to correct the violation. Should the violation continue beyond the time specified for correction, the inspector shall notify the CEB and request a hearing. The CEB through its clerical staff, shall schedule a hearing, and written notice of such hearing shall be delivered to the alleged violator as provided by this chapter. Notice may additionally be served by publication or posting as provided by this chapter. If the violation is corrected and then recurs or if the violation is not corrected by the time specified for correction, the case may be presented to the CEB even if the violation was corrected prior to the board hearing and the notice shall so state.
(c)   If a repeat violation is found, the inspector shall notify the violator of the finding but is not required to give the violator a reasonable time to correct the repeated violation before scheduling a hearing before the CEB. The inspector, upon notifying the violator of a repeat violation, shall notify the CEB and request a hearing. The CEB, through its clerical staff, shall schedule a hearing and shall provide notice as provided by this chapter to the violator. The case may be presented to the CEB even if the repeat violation has been corrected prior to the board hearing and the notice shall so state. If the repeat violation has been corrected, the CEB may retain the right to schedule a hearing to determine and impose the payment of reasonable enforcement costs upon the repeat violation. The repeat violator may choose to waive the right to the hearing on the merits and pay said costs as determined by the CEB.
(d)   If the inspector has reason to believe a violation presents a serious threat to the public health, safety, and welfare or, if the violation is irreparable or irreversible in nature, the inspector shall make a reasonable effort to notify the violator and may immediately notify the CEB and request a hearing.
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-9.Conduct of hearings.
(a)   The CEB (in one (1) or more panels) will meet at least once a month unless there are no pending cases, or at other times as may be necessary The chair of the CEB may call hearings of the CEB at times other than the regularly scheduled sessions, upon the request of a department director or the city attorney's office. Hearings may also be called by written notice signed by at least three (3) members of the CEB. Special masters will meet three (3) times pre month or as may be otherwise necessary.
(b)   Minutes shall be kept by the CEB of all hearings, specifically including the vote of each member upon each question, and all hearings and proceedings shall be open to the public. All testimony shall be under oath and mechanically recorded. An alleged violator or the city may cause the proceedings to be recorded by a certified court reporter at the requesting party's expense.
(c)   The city shall provide a hearing room and clerical and administrative personnel as may be reasonably required by the code enforcement board to conduct its hearings and perform its duties.
(d)   Each case before the CEB shall be presented by the administrative staff, including inspectors, of the city department which is charged with the responsibility for enforcement of those specific code sections alleged to have been violated. Additionally, the city attorney (or designated assistant city attorney) may present cases before the code enforcement board.
(e)   Formal rules of evidence shall not apply to CEB proceedings, but fundamental due process shall be observed and shall govern the proceedings. Relevant evidence shall be admissible if it is the type of evidence upon which reasonable and responsible persons would normally rely in the conduct of business affairs, regardless of the existence of any common law or statutory rule which might make such evidence inadmissible over objections in a civil action. The chair of the code enforcement board may exclude irrelevant or unduly repetitious evidence.
(f)   Each party to the hearing shall have the right to call and examine witnesses, introduce exhibits, cross-examine opposing witnesses, impeach witnesses and rebut evidence. It shall be the responsibility of all alleged violator to create, at his/her own expense a certifiable record of the proceedings in case of appeal or administrative review.
(g)   The alleged violator has the right at his own expense to be represented by an attorney at any CEB hearing.
(h)   The burden of proof shall be with the city to show by the greater weight of the evidence that a code violation exists and that the alleged violator committed or was responsible for allowing or maintaining the violation.
(i)   If notice to an alleged violator of the public hearing has been provided pursuant to this chapter, the hearing may be conducted and an order rendered in the absence of the violator.
(j)   At the conclusion of the hearing, the CEB shall issue findings of fact, based on the evidence of record, and conclusions of law and shall issue an order binding on the violator or violators affording the proper relief consistent with the powers granted in this chapter. The findings shall be by a motion approved by a majority of those members present and voting, except that, at least four (4) members must vote in order for the action to be official. The order may include a notice that it must be complied with by a specified date and that a fine may be imposed if the order is not complied with by that date. Under the conditions specified in section 9-13(a)(1), any expenses incurred by the city in performing repairs or taking curative steps may be included together with the fine if the order is not complied with in a timely fashion. The CEB may also determine and include in its order the rate of the fine to be imposed if the violator fails to comply with the order in a timely fashion.
(k)   If the city prevails in prosecuting a case before the CEB, it shall be entitled to recover all costs incurred in prosecuting the case before the CEB and such costs may be included in the lien authorized in section 9-14 of this chapter.
(l)   If the violation concerns real property, a copy of the order certified by the city clerk may be recorded in the public records of the Hillsborough County and shall constitute binding notice of the violations found therein to any subsequent purchasers, successors in interest or assigns.
(m)   If an order is recorded in the public records pursuant to this chapter and the order is complied with by the date specified in the order, the CEB shall issue an order acknowledging compliance or a release that shall be recorded in the public records. A hearing is not required for issuance of an order acknowledging compliance or release.
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-10.Mandatory disclosures upon the transfer of property.
(a)   If the owner of property that is the subject of an enforcement proceeding before the CEB transfers ownership of that property between the time that the initial pleading (notice of violation) is served and the time that a hearing has been scheduled, such owner shall:
(1)   Disclose the existence and nature of the proceedings in writing to the prospective transferee, and
(2)   Deliver to the prospective transferee copies of the pleadings, including all notices of violation, affidavits of violation, and notices of any kind, including hearing notices received by the transferor prior to the transfer, and
(3)   Disclose in writing to the prospective transferee that the new owner will be responsible for compliance with the applicable code provisions and any order(s) issued in the CEB proceeding, and
(4)   File a notice with the CEB Secretary of the transfer of the property, identifying the new owner by full name(s) and address and attaching copies of the disclosures made to the new owner no later than five (5) days from the date of transfer or closing.
(b)   Failure to make the disclosures required by this section before the transfer of the property shall create a rebuttable presumption of fraud.
(c)   If the property is transferred to a bona fide purchaser for value in an arms length transaction before the hearing, the proceedings will not be dismissed but the new owner will be provided a reasonable time period to correct the violations previously cited before the hearing is held.
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-11.Powers of the code enforcement board.
The CEB shall have the power to:
(1)   Adopt rules for the conduct of its hearings which are consistent with this Code and F.S. Ch. 162, as they may be amended from time to time;
(2)   Subpoena alleged violators and witnesses to its hearings. Subpoenas may be served by the sheriff's office or duly qualified private process serves at the expense of the requestor. Issuance and returns of service for CEB subpoenae shall be governed by the rules enacted by the CEB to conduct its hearings;
(3)   Subpoena evidence to its hearings;
(4)   Take testimony under oath;
(5)   Issue an order having the force of law commanding whatever steps are necessary to bring the violation in compliance.
(Ord. No. 2005-111, § 1, 4-28-05)


Sec. 9-12.Powers of the code enforcement board acting as the division of neighborhoodimprovement review board and procedures therefor.
(a)   An aggrieved party may seek de novo review of an order of the director of the department of code enforcement before the CEB. A notice of violation directing a party to take corrective action as called for under section 9-8 of this chapter is not an order for purposes of this section. Proceedings under this section are not governed by the provisions of F.S. Ch. 162.
(b)   To initiate the review process, an aggrieved party must file a written notice with the CEB secretary and serve a copy thereof on the neighborhood improvement manager, no later than thirty (30) days from the date of the challenged order which shall set forth the following:
(1)   The name, mailing address and telephone number of the aggrieved party. All further papers and notices shall be mailed to the address provided by the aggrieved party in the notice unless written notice of change of address is filed with the CEB secretary.
(2)   Identify the order being challenged. A copy of the challenged order must be attached to the notice.
(3)   The legal and factual grounds supporting the aggrieved party's claim for review.
(4)   The aggrieved party shall file, together with the notice, any documents and items that it wishes the CEB to consider at the review hearing.
(c)   Upon receipt of a timely notice, the CEB secretary will schedule a hearing on the challenge before the CEB. A notice of hearing will be mailed to the aggrieved party. The CEB secretary will compile the record which shall consist of the file and papers kept by t

Sec. 9-13. Administrative fines and costs of repair.
(a)   The CEB, may order a violator that has failed to comply with an order of the CEB, or has been found to be a repeat violator, to pay a fine in an amount within the limits specified in this section for each day the violation continues past the date set by the CEB for compliance or, in the case of a repeat violation, for each day the repeat violation continues past the date of notice to the violator of the repeat violation. If a finding of a violation or a repeat violation has been made as provided in this chapter, a hearing shall not be necessary for the issuance of an order imposing the fine.
(1)   Whenever the CEB orders a violator to effect repairs or otherwise correct a code or ordinance violation by a certain date, the inspector shall inspect the premises or otherwise investigate whether the order of the CEB has been complied with in a timely manner on the day following the deadline or as soon thereafter as reasonable. Upon a finding of non-compliance, the inspector shall file with the CEB clerk an inspection report setting forth the facts of such non-compliance. A copy of the inspection report shall be served on the violator by hand delivery-delivery or U.S. Mail.
(2)   A violator who disputes an inspector's finding of non-compliance made under subsection (1) hereof, may seek a hearing before the CEB to challenge the finding or findings by filing a written motion with the CEB clerk and serving a copy on the city attorney's office no later than ten (10) days from the date of service of the inspection report. The motion will set forth with specificity the grounds for challenging the findings. The CEB clerk will schedule a hearing and notify the violator by U.S. Mail. If theCEB, after hearing the motion, upholds the finding(s) of the inspector, all costs arising from the hearing may be assessed against the violator and included in the lien authorized by this chapter.
(b)   (1)   A fine imposed pursuant to this section shall not exceed one thousand dollars ($1,000.00) per day per violation for a first violation and shall not exceed five thousand dollars ($5,000.00) per violation per day for a repeat violation. However, if the CEB finds a violation to be irreparable or irreversible in nature, it may impose a fine not to exceed fifteen thousand dollars ($15,000.00) per violation.
(2)   In determining the amount of any fine the CEB should consider the gravity of the violation, any actions by a violator to correct the violation and any previous violations committed by the violator, the willfulness of the violation and the alleged violator's ability to correct the violation within a reasonable time period.
(3)   If the CEB makes a finding that a violation presents a serious threat to the public health, safety and welfare, the CEB shall notify the city governing body, which may make all reasonable repairs that are required to bring the property into compliance and charge the violator with the reasonable costs of the repairs along with the fine imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the City of Tampa to make further repairs or to maintain the property and does not create any liability against the city for any damages to the property if such repairs were completed in good faith.
(4)   The code enforcement board may reduce a fine imposed pursuant to this section in such amounts and upon such conditions, including time deadlines, as it may deem appropriate up to the time that the order is referred to the local governing body attorney for enforcement. Subsequent thereto, requests for fine reductions and lien settlements shall be directed to and handled by the local governing body attorney who shall have the same discretion to negotiate these fines and liens as for matters in litigation.
(Ord. No. 2005-111, § 1, 4-28-05)

Sec. 9-14. Liens.
A certified copy of an order imposing a fine or a fine plus costs may be recorded in the public records of Hillsborough County and shall thereafter constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order shall be enforceable in the same manner as a court judgment by the sheriffs of the state, including execution and levy against personal property, but such order shall not be deemed tobe a court judgment except for enforcement purposes. A fine imposed pursuant to this chapter shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit filed pursuant to this chapter, whichever occurs first. A lien arising from a fine imposed pursuant to this chapter runs in favor of the city and the city may execute a satisfaction or release of such a lien. The CEB may authorize the city attorney's office to foreclose any unpaid lien or to sue to recover a money judgment for the amount of the lien plus accrued interest after three (3) months from the filing date of the lien. No lien created pursuant to the provisions of this chapter may be foreclosed on real property that is homestead under Section 4, Article X of the state constitution. Actions for money judgments under this chapter may be pursued only on fines levied after October 1, 2000, and the money judgment provisions of this chapter shall not apply to personal or real property covered by § 4(a), Art. X,of the Florida Constitution.
(Ord. No. 2005-111, § 1, 4-28-05)

Sec. 9-15. Duration of the lien.
No lien provided under this chapter shall continue for a period of longer than twenty (20) years after the certified copy of an order imposing a fine has been recorded, unless within that time an action is commenced pursuant to section 9-14 in a court of competent jurisdiction. In an action to foreclose on a lien or for money damages the prevailing parties are entitled to recover all costs, including a reasonable attorney's fee, incurred in the action. The city shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the commencement of the action shall not be good against creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded.
(Ord. No. 2005-111, § 1, 4-28-05)

Sec. 9-16. Appeal.
An aggrieved party, including the city, may appeal a final administrative order of the CEB issued pursuant to sections 9-8 and 9-9 and 9-13 hereof in the Circuit Court of the Thirteenth Judicial Circuit of Florida. An appeal shall be filed within thirty (30) days of the date of entry of the order to be reviewed. A copy of the notice shall be mailed to the secretary for the code enforcement board and served upon the city attorney's office but an action must be filed with the circuit court following procedural rules applicable to such proceedings.
(Ord. No. 2005-111, § 1, 4-28-05)

Sec. 9-17. Rehearing.
A party who has been adversely affected by the result of a public hearing before the CEB may move for a new hearing on the matter upon the grounds enumerated below. A motion for rehearing must be served and filed within ten (10) days after the date of entry of the CEB order. The time cannot be extended. A motion that is served within the ten-day period may be amended to allege new grounds with leave of the code enforcement board. On its own initiative, the CEB may order rehearing within ten (10) days afterthe entry of the code enforcement order. After timely service of a motion, the time to file a notice of appeal runs from the date of rendition of the order on the motion, not from any code enforcement order that has been entered. If a notice of appeal is filed by the moving party before the motion for rehearing is heard, the motion is waived. The ground of a motion for rehearing shall fall into one (1) or more of the following categories:
(1)   Errors on of the record;
(2)   Errors committed during the public hearing;
(3)   Misconduct of the code enforcement board;
(4)   Misconduct of a party;
(5)   Misconduct of a third person;
(6)   Misconduct of a witness;
(7)   Newly discovered evidence;
(8)   The conclusions of law are contrary to the applicable law.
(Ord. No. 2005-111, § 1, 4-28-05)

Sec. 9-18. Notices.
(a)   All notices to an alleged violator required by this chapter shall be provided as follows:
(1)   By certified mail, return receipt requested, provided that if such notice is sent under this paragraph to the owner of the property in question at the address listed in the tax collector's office for tax notices, and at any other address provided to the city by such owner, and is returned unclaimed or refused, notice may be provided by posting as described in subsection 9-18(b)(2) hereof and by first class mail directed to the addresses furnished to the local government with a properly executed proof of mailing or affidavit confirming the first class mailing;
(2)   Hand delivery by the sheriff's office, code inspector or any other person duly designated and authorized by the city;
(3)   Leaving the notice at the violator's usual place of residence with any person residing therein who is above fifteen (15) years of age and informing that person of the contents of the notice; or
(4)   In the case of commercial premises, leaving the notice with the manager or other person in charge.
(b)   In addition to providing notice as set forth in 9-18(a), at the option of the inspector as to notices of violation and the CEB as to notices of hearing, a notice may be served by publication or posting as follows:
(1)   By publishing the notice once during each week for four (4) consecutive weeks (four publications being sufficient) in a newspaper of general circulation in Hillsborough county. The newspaper shall meet such requirements as are prescribed under F.S. Ch. 50, for legal and official advertisements. Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051.
(2)   In lieu of publication, a notice may be posted at least ten (10) days prior to the hearing or to the expiration of any deadline contained in a notice, in at least two (2) locations, one (1) of which shall be on the property at which the violation is alleged to exist and the other of which shall be in the lobby of Tampa City Hall, 315 East Kennedy Boulevard, Tampa, Florida. Proof of posting shall be made by affidavit of the person (s) posting the notice(s) and shall include a copy (which may be in the form of a photograph) of the notice posted and the date and places of its posting.
(c)   Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as provided in paragraph (a) hereof.
(d)   Evidence that an attempt has been made to deliver or mail notice as provided in paragraph (a) hereof, together with proof of publication or posting as provided in paragraph (b)(1) and (2), shall be sufficient to show that the notice requirements of this part have been met, without regard whether or not the alleged violator received actual notice.
(Ord. No. 2005-111, § 1, 4-28-05)

Sec. 9-19. Conflict of interest.
Conflict of interest provisions shall apply to members of the code enforcement board pursuant to F.S. §§ 112.3143 and 286.012.
(Ord. No. 2005-111, § 1, 4-28-05)