Item S2C oun t y of Monr
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BOARD OF COUNTY COMMISSIONERS
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Mayor David Rice, District 4
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Mayor Pro Tern Sylvia J. Murphy, District 5
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Danny L. Kolhage, District 1
George Neugent, District 2
Heather Carruthers, District 3
County Commission Meeting
December 13, 2017
Agenda Item Number: S.2
Agenda Item Summary #3692
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Peter Morris (305) 289 -2584
N/A
AGENDA ITEM WORDING: Permission to advertise a public hearing to consider approval of an
Ordinance amending Monroe County Code Chapter 8 ( "Code Enforcement "), Article II. ( "Special
Magistrate System "), Section 8- 27(e), to authorize the Code Compliance Special Magistrate to have
jurisdiction over any matter brought forth by the Code Compliance Department which alleged a
violation of the Monroe County Code of Ordinances, a violation of the Monroe County Land
Development Code, or a violation of the Monroe County Comprehensive Plan.
ITEM BACKGROUND: The Special Magistrate raised a question about whether the code
currently vests him with the jurisdiction to hear any violation of the County Code, Land
Development Code, or Comprehensive Plan. The proposed amendment would clarify the code so
that it is clear that the Special Magistrate has jurisdiction over any violation of the County's Codes
or Comprehensive Plan. This should eliminate any doubt that the Special Magistrate is authorized to
hear any case brought by the Code Compliance Department alleging a violation of the Codes or
Comprehensive Plan.
PREVIOUS RELEVANT BOCC ACTION: n/a
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval to advertise a public hearing to consider approval of the
proposed ordinance.
DOCUMENTATION:
Ordinance - Code Enforcement Special Magistrate's Jurisdiction
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing:
Grant:
County Match:
Insurance Required:
Additional Details:
If yes, amount:
REVIEWED BY:
Peter Morris
Steve Williams
Bob Shillinger
Kathy Peters
Board of County Commissioners
Completed
12/01/2017 1:58 PM
Completed
12/01/2017 2:00 PM
Completed
12/04/2017 9:53 AM
Completed
12/04/2017 10:35 AM
Pending
12/13/2017 9:00 AM
S.2.a
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4 N.
$ :......
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g 7 ORDINANCE NO. -2018
9
10 AN ORDINANCE OF THE MONROE COUNTY BOARD OF
11 COUNTY COMMISSIONERS AMENDING CHAPTER 8
12 ( "CODE ENFORCEMENT "), ARTICLE II. ( "SPECIAL
13 MAGISTRATE SYSTEM "); PROVIDING FOR
14 .JURISDICTION OF THE MONROE COUNTY CODE
I5 COMPLIANCE SPECIAL MAGISTRATE; PROVIDING
16 FOR SEVERABILITY; PROVIDING FOR REPEAL OF
17 CONFLICTING PROVISIONS INCONSISTENT
18 HEREWITH; PROVIDING FOR INCORPORATION INTO
19 THE CODE OF ORDINANCES; PROVIDING FOR
20 TRANSMITTAL TO THE SECRETARY OF STATE; AND
21 PROVIDING FOR AN EFFECTIVE DATE.
22
23 WHEREAS, Article VIII, Section I. of the Florida Constitution, provides that the Board
24 of County Cora nissioners (hereinafter "Board ") is the governing body of Monroe
25 County, with powers of self - government as provided for by general or special law; and
26
27 WHEREAS, certain of those powers have been enumerated in Section 125.01(1), Florida
28 Statutes (2017), to include: (1) The power to adopt resolutions necessary for the exercise
29 of its powers and to prescribe fines and penalties for the violation of ordinances in
30 accordance with law; and (2) The power to perform any other acts not inconsistent with
31 law: and
32
33 WHEREAS, Section 125.01(3), Florida Statutes (2017), provides all implied powers
34 necessary or incident to the carrying out of the powers in Section 125.0 1, and states that
35 Section 125.01 shall be liberally construed in order to effectively carry out the purposes
36 of this section and to secure for the counties the broad exercise of home rule powers; and
37
38 WHEREAS, the Florida Legislature has stated that "it is the intent of [Chapter 162,
39 Florida Statutes]" to confer local Code Compliance Special Magistrates "authority to
40 impose administrative fines and other non- criminal penalties to provide an equitable,
41 expeditious, effective, and inexpensive method of enforcing any codes and ordinances in
42 counties. See Section 162,02, Florida Statutes (2017) (Emphasis added); and
43
44 WHEREAS, as ( the Office of the Florida Attorney General has opined that Florida
45 Statutes Section 162.02's predicate term "any" means that Chapter 162, Florida Statutes,
46 authorizes local enforcement of any county codes and ordinances, and as (2) the Florida
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47 Legislature in 1989 amended Section 162.02 to delete its pre -1989 textual limitation
48 previously confining local code enforcement to enforcement only of "technical" codes in
49 furtherance of the 1989 Florida Legislature's intent "to delete any reference to specific
50 types of codes and ordinances under the jurisdiction of code enforcement boards,"
51 Chapter 162, Florida Statutes, by plain meaning and legislative history provides that
52 Code Compliance Special Magistrates may enforce any county codes or ordinances. See
53 Op. Att'y Gen. Fla. 93 -02 (Jan. 4, 1993); see also L.O.F. 89 -268 (July 3, 1989), at
54 Section l.; see also David Hawley and Patricia Greene, Florida House of'Representatives
55 Committee on Governmental Operations Staff Report on CSICS/HB 1210, HB 1474, and
56 HB 1484 (July 6, 1989), at 9; and
57
58 WHEREAS, pursuant to Chapter 162, Florida Statutes (2017), the Monroe County Code
59 Compliance Special Magistrate (hereinafter "Code Compliance Special Magistrate ")
60 may, upon factual findings of a violation and upon a violator's failure to correct or abate
61 a violation pursuant to a previous order, by order impose fines and costs; and
62
63 WHEREAS, Section 162,09(3), Florida Statutes (2017), authorizes the County to
64 petition courts for enforcement of such recorded orders as duly constituted code
65 compliance liens and further provides for execution and levy to the same extent as a civil
66 judgment; and
67
68 WHEREAS, the Monroe County Contractors Examining Board (hereinafter "CEB ")
69 constitutes the County's local construction regulation board; and
70
71 WHEREAS, the adjudicatory powers and duties of the CEB include: JD To determine if
72 a license or certificate of competency of any local contractor should be suspended for any
73 violation of this chapter and to fix the length of time for such suspension; (2) To
74 determine if a state - certified contractor is guilty of fraud or has willfully violated any of
75 the building codes of the County or has, within the past 12 months, been found by the
76 CEB or any other county or municipality to be guilty of fraud or a willful building code
77 violation that would have been a fraud or a building code violation if committed in
78 Monroe County; (3) To determine if the authority of state- certified contractors to obtain a
79 building permit should be revoked, suspended, or limited to obtaining permits with
80 specific conditions and to set the terms of suspension or conditions; and (4) To determine
81 whether a person not licensed by the State of Florida, the CEB, or the Building Official
82 has violated any statutory provision, administrative rule, local ordinance, or Code
83 provision governing the practice of a profession regulated by such provision(s), rule(s), or
84 ordinance(s), and to determine whether a licensee, certificate- holder, or registrant
85 licensed or otherwise regulated under Chapter 455, Chapter 471, Chapter 481, and
86 Chapter 489, Florida Statutes, has committed a material violation of the Florida Building
87 Code and failed to correct that violation in a reasonable time (a material violation being a
88 violation that exists within a completed building, structure, or facility that may
89 reasonably result, or has resulted, in physical harm to a person or significant damage to
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90 the performance of a building or its systems, and a violation(s) of which may be disputed
91 as set forth at Section 553.781(2)(b), Florida Statutes). See Monroe County Code Chapter
92 6 - Article III - Division 3, at Section 6- 270(a) -(i) (2017); see also Section 455.417,
93 Florida Statutes (2017) ( "[Florida Statutes Chapter 455] applies only to the regulation of
94 professions regulated by the [Florida D]epartment [of Business and Professional
95 Regulation];" see also Section 471.001, Florida Statutes (2017) ( "The Legislature deems
96 it necessary in the interest of public health and safety to regulate the practice of
97 engineering in this state. "); see also Section 481.201, Florida Statutes (2017) ( "The
98 primary legislative purpose for enacting [Chapter 481 (Part 1), Florida Statutes,] is to
99 ensure that every architect practicing in [Florida] meets minimum requirements for safe
100 practice. "); see also Section 481.301, Florida Statutes (2017) ( "The Legislature finds that
101 the regulation of landscape architecture [pursuant to this Chapter 481 (Part 2), Florida
102 Statutes,] is necessary to ensure competent planning and design of public and private
103 environments, prevention of contamination of water supplies, barrier -free public and
104 private spaces, conservation of natural resources through proper land and water
105 management practices, prevention of erosion, energy conservation, functional and
106 aesthetically pleasing environmental contributions to humanity's psychological and
107 sociological well - being, and an enhancement of the quality of life in a safe and healthy
108 environment and to assure the highest possible quality of the practice of landscape
109 architecture in this state. "); .see also Section 489.101, Florida Statutes (2 017) ( "The
110 Legislature deems it necessary in the interest of the public health, safety, and welfare to
1 I 1 regulate the construction industry [pursuant to this Chapter 489 (Part 1), Florida
112 Statutes]. "); see also Section 489.501, Florida Statutes (2017) ( "The Legislature deems it
i 13 necessary in the interest of public health, safety, and welfare to regulate the electrical and
114 alarm system contractors in this state [pursuant to this Chapter 489 (Part 2), Florida
115 Statutes]. "), secs also Chapter 489, Part III, Florida Statutes (2017) (Entitled "Septic Tank
116 Contracting "); and
117
118 WHEREAS, Monroe County Code Section 6 -2700) (2017) provides that Monroe
119 County Code Sections 6- 270(a) -(i) constitute the CEB's exclusive and limited authority
120 and jurisdiction, and that the County Code does not confer to the CEB any authority,
121 powers, or jurisdiction not specifically granted at said Sections; and
122
123 WHEREAS, the Monroe County Construction Board of Adjustment and Appeals
124 (hereinafter "Construction Board of Adjustment and Appeals ") constitutes the County's
125 local building code board; and
126
127 WHEREAS, the adjudicatory powers and duties of the Construction Board of
128 Adjustment and Appeals include: (1) To consider and render decisions on appeals of
129 administrative decisions and interpretations of the Building Official related to the Florida
130 Building Code; JQ To consider and grant variances to the Florida Building Code; and
131. To approve cost - approach appraisals for detennination(s) of fair market value pursuant to
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132 the floodplain regulations of the Land Development Code. See Monroe County Code
133 Chapter 6 - Article II - Division 2, at Section 6- 56(a)(1) -(3) (2017); and
134
135 WHEREAS, Monroe County Code Section 6- 56(a)(4) (2017) provides that the
I36 Construction Board of Adjustment and Appeals does not constitute the County's local
137 construction regulation board (that certain construction regulation board being the
138 Monroe County CEB). See Monroe County Code Section 6- 56(a)(4) (2017); and
139
I40 WHEREAS, the scope and aim of the CEB's jurisdiction being limited to original
141 jurisdiction over licensees, certificate - holders, registrants, and other natural and legal
142 persons regulated by (1) Chapter 455, Florida Statutes (Professions regulated by the
143 Florida Department of Business and Professional Regulation); (2) Chapter 471, Florida
144 Statutes (Regulating the practice of engineering in Florida); (3) Chapter 481 (Part 1),
145 Florida Statutes (Regulating the practice of architecture in Florida); (4) Chapter 481 (Part
146 2), Florida Statutes (Regulating the practice of landscape architecture in Florida;
147 Chapter 489 (Part 1), Florida Statutes (Regulating the construction industry and/or
148 construction- related contracting in Florida); (6) Chapter 489 (Part 2), Florida Statutes
149 (Regulating electrical and alarm system contractors in Florida); and (7) Chapter 489 (Part
150 3), Florida Statutes (Regulating septic tank contractors in Florida); or as otherwise
151 provided at Monroe County Code Sections 6- 270(a) -(i) (2017); and
152
153 WHEREAS, the scope and aim of the Construction Board of Adjustment and Appeals's
154 jurisdiction being 0) Appellate jurisdiction over administrative decisions and
155 interpretations of the Building Official related to the Florida Building Code;
156 Administrative jurisdiction to consider and grant variances to the Florida Building Code;
157 and (3) Jurisdiction to approve cost - approach appraisals for determination(s) of fair
158 market value pursuant to the floodplain regulations of the Land Development Code; and
159
160 WHEREAS, the scope and aim of the Code Compliance Special Magistrate's statutory
161 jurisdiction being original administrative jurisdiction to enforce any codes and ordinances
162 in Monroe County; and
163
164 WHEREAS, the adjudicative jurisdictions of the CEB, the Construction Board of
165 Adjustment and Appeals, and the Code Compliance Special Magistrate, each being
166 separate -and- distinct, the Board finds that this Ordinance is necessary to clarify the
167 distinction between said jurisdictions;
168
169 WHEREAS, as (1) the Monroe County Code (hereinafter "County Code" or "MCC ")
170 confines the jurisdictions of the CEB and the Construction Board of Adjustment and
171 Appeals, and as (2) Chapter 162, Florida Statutes, grants the Monroe County Code
172 Compliance Special Magistrate plenary authority to hear and decide administrative
173 proceedings to enforce any codes and ordinances in Monroe County, (3) it is the specific
174 legislative intent of the Board that the expressio unius est exclusio alterius canon of
175 statutory interpretation (`the expression of one thing implies the exclusion of the other')
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176 be applied to construe the Code Compliance Special Magistrate's otherwise unfettered
177 statutory jurisdiction to enforce any codes and ordinances in Monroe County relative to
178 the County Code's limited jurisdictional grants to the CEB and the Construction Board of
179 Adjustment and Appeals, (4) such that any subject matter not specifically and expressly
180 identified at MCC 6- 270(a) -G) (2017) (CEB's jurisdiction), at MCC 6- 45(a)(1) -(3)
181 (2017) (Construction Board of Adjustment and Appeals's jurisdiction), or at any other
182 local Code -based original, quasi - judicial jurisdictional grant(s), shall constitute subject
183 matter within the Code Compliance Special Magistrate's jurisdiction in accordance with
184 Chapter 162, Florida Statutes (2017);
185
186 NOW, THEREFORE, BE IT ORDAINED BY THE MONROE COUNTY BOARD
187 OF COUNTY COMMISSIONERS:
188
189 SECTION 1. - Recitals and Legislative Intent The foregoing recitals and statement(s)
190 of legislative intent are true and correct and are hereby incorporated as if fully set forth
191 herein.
192
193 SECTION 2. - Title This Ordinance shall be titled the "Monroe County Code
194 Compliance Jurisdiction Ordinance."
195
196 SECTION 3. - Amendmen That Section 8 -27(e) of Chapter 8, Article ll., of the
197 Monroe County Code of Ordinances, entitled "Code Enforcement, Special Magistrate
198 System," is hereby amended as follows:
199
200 (e) Authority. The code compliance special magistrate is granted the powers, dutie
201 and authority, including the authority to impose fines and liens and to order
202 foreclosure of liens, granted by statute and ordinance. The code: compliance special
203 Magistrate has ' urisdiction to hear any matter brought forth by the Code Compliance
204 Del2artment which alle ges a violation of the Monroe C'otint Code of Ordinances, a
205 violation of the Monroe County Land Development Code. or a violation of the
206 Monroe County Comprehensive Plan.
207
208 SECTION 4. - Severability, Partial Invalidity, and Survival of Provisions If any
209 provision of this Section, or any portion thereof, is held to be invalid or unenforceable by
210 any administrative hearing off leer or court o f competent j urisdiction, the invalidity or
211 unenforceability of such provision, or any portion thereof, shall neither limit nor impair
212 the operation, enforceability, or validity of any other provision of this Section, or any
213 remaining portion(s) thereof. All other provisions of this Section, and remaining
214 portion(s) thereof, shall continue unimpaired in full force and effect.
215
216 SECTION 5. - Repeal of Inconsistent Previsions All ordinances or parts of ordinances
217 in conflict with this ordinance are hereby repealed to the extent of said conflict herein,
218 Such repeal shall not repeal the repealing clause of such ordinance or revive any
219 ordinance which has been repealed thereby.
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SECTION 6. - Captions and Paragraph Headings Captions and paragraph headings,
where used herein, are inserted for convenience only and are not intended to descriptively
limit the scope and intent of the particular paragraph or text to which they refer.
SECTION 7. - Inclusion in the Monroe Countv Code of Ordinances The provisions
of this ordinance shalI be included and incorporated into the Code of Ordinances of
Monroe County, Florida, and shall be numbered to conform with the uniform numbering
system of the Code.
SECTION 8. - Effective Date This ordinance shall be filed in the Office of the
Secretary of the State of Florida and shall become effective as provided by law.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida at a regular meeting held on the day of .2018.
Mayor David Rice
Mayor pro tem Sylvia J. Murphy
Commissioner Danny L. Kolhage
Commissioner Heather Carruthers
Commissioner George Neugent
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
Attest: KEVIN MADOK, CLERK
In
By:
Deputy Clerk 'Mayor David Rice
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM
PETER MORRIS
ASSISTANT COUN7 ATTORNEY
Date: r .
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