Item O11 0.11
County f � .�� ",�, 1 BOARD OF COUNTY COMMISSIONERS
Mayor Craig Cates,District 1
Mayor Pro Tem Holly Merrill Raschein,District 5
The Florida Keys
Michelle Lincoln,District 2
James K.Scholl,District 3
David Rice,District 4
County Commission Meeting
April 19, 2023
Agenda Item Number: 0.11
Agenda Item Summary #12000
BULK ITEM: No DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Derek Howard(305) 292-3470
None
AGENDA ITEM WORDING: Permission to advertise a public hearing at the May 17, 2023
BOCC meeting to consider approval of an ordinance amending Section 8-37 of the Monroe County
Code of Ordinance regarding a statute of limitations for bringing code compliance prosecutions.
ITEM BACKGROUND: The proposed ordinance would amend Section 8-37 ("Passage of Four
Years to Prosecutions")to clarify that Code Compliance prosecutions must be initiated within four
years of the actual discovery of the violation by the Code Compliance Department. This proposed
change would provide that this is an affirmative defense that the respondent carries the burden to
raise and discharge before the Code Compliance Special Magistrate. The proposed ordinance would
clarify that this section does not apply to prosecutions based upon failure to obtain a permit that
work performed without a permit, such as development(including but not limited to construction or
land clearing) is considered a continuing violation that continues until required after-the-fact
permit(s) are obtained and closed out.
If approved, the public hearing would be schedule for the May 17, 2023 BOCC meeting.
PREVIOUS RELEVANT BOCC ACTION: Ordinance No. 50-2000, Section 3; Ordinance No.
031-2010, Section 3; Ordinance No. 022-2011, Section 2.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Ordinance Amending Section 8-37
FINANCIAL IMPACT:
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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: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
N/A
REVIEWED BY:
Derek Howard Completed 04/04/2023 4:54 PM
Bob Shillinger Completed 04/04/2023 5:03 PM
Purchasing Skipped 04/04/2023 5:03 PM
Budget and Finance Completed 04/10/2023 10:19 AM
Brian Bradley Skipped 04/04/2023 5:03 PM
Lindsey Ballard Completed 04/04/2023 5:07 PM
Board of County Commissioners Pending 04/19/2023 9:00 AM
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MONROE COUNTY, FLORIDA
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
ORDINANCE NO. -2023
AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
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COMMISSIONERS AMENDING SECTION 8-37 ("PASSAGE OF FOUR 0
YEARS TO PROSECUTIONS") OF THE CODE OF ORDINANCES OF 0-
MONROE COUNTY TO CLARIFY THAT CODE COMPLIANCE
PROSECUTIONS MUST BE INITIATED WITHIN FOUR YEARS OF THE
ACTUAL DISCOVERY OF THE VIOLATION BY THE MONROE
COUNTY CODE COMPLIANCE DEPARTMENT; PROVIDING THAT
THIS CONSTITUTES AN AFFIRMATIVE DEFENSE THAT THE 4-
RESPONDENT CARRIES THE BURDEN TO RAISE AND DISCHARGE
BEFORE THE CODE COMPLIANCE SPECIAL MAGISTRATE; TO
CLARIFY THAT THIS SECTION DOES NOT APPLY TO
PROSECUTION(S)BASED UPON FAILURE TO OBTAIN A PERMIT; TO
CLARIFY THAT WORK WITHOUT A PERMIT, SUCH AS
DEVELOPMENT (INCLUDING BUT NOT LIMITED TO 00
CONSTRUCTION OR LAND CLEARING), IS CONSIDERED A
CONTINUING VIOLATION THAT CONTINUES UNTIL REQUIRED
AFTER-THE-FACT PERMIT(S) ARE OBTAINED AND CLOSED OUT.
WHEREAS, the Monroe County Board of County Commissioners (hereinafter "BOCC"
or"Board")constitutes the local legislature of unincorporated Monroe County,Florida, and Article E
VIII, Section 1, of the Florida Constitution, provides that the Board is the governing body of
Monroe County with powers of self-government as provided by general or special law; and
WHEREAS, certain of those powers have been enumerated in Section 125.01(1), Florida 0
Statutes, and include: (1)The power to adopt ordinances and resolutions necessary for the exercise
of its powers and prescribe fines and penalties for the violation of ordinances in accordance with
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law; and(2) The power to perform any other acts not inconsistent with law; and
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WHEREAS, Section 125.01(3), Florida Statutes, provides that the enumeration of all
powers in Section 125.01,Florida Statutes, are deemed to incorporate all implied powers necessary
or incident to carrying out such powers enumerated and further provides that the provisions of
Section 125.01, Florida Statutes, shall be liberally construed in order to effectively carry out the
purposes of Florida Statutes Section 125.01 and to secure for counties the broad exercise of home
rule powers; and
WHEREAS,the requirements to obtain and close out all permitting approvals and permits
to authorize work and development in Monroe County, including but not limited to those 0
requirements enumerated in Monroe County's Code of Ordinances, Land Development Code,
Comprehensive Plan, floodplain management regulations, and the Florida Building Code, are E
preventative and remedial requirements enacted by democratically accountable legislative and
executive branches of County, State, and Federal government, and constitute the minimum rules <
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and standards necessary to prevent harm to persons,the environment of the unincorporated Florida
Keys, real and personal property, to comply with the requirement(s) imposed by general law that
Monroe County maintain a hurricane evacuation clearance time of no more than 24 hours, and to
satisfy the minimum National Flood Insurance Program (NFIP) and Community Rating System
(CRS) requirements necessary to ensure Monroe County's participation and standing in the NFIP
and CRS and the availability and affordability of federally-backed flood insurance policies and
premiums for the public and various communities of the unincorporated Florida Keys; and 0
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WHEREAS, the Board therefore finds and concludes that unpermitted work and ,
development in the unincorporated Florida Keys constitutes a harm to public health, safety, and
welfare; and
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WHEREAS, the Board therefore finds and concludes that the prosecution of unpermitted -
work and development in the unincorporated Florida Keys which remains unpermitted and/or that
remains without the required approved, passed inspection(s), constitutes a continuing harm to the
public health, safety, and welfare, and must not be judicially declared to be time-barred; and
WHEREAS, in Code Compliance Case No. CE20070012,the Respondent argued that the
prosecution of the violations charged was barred by Section 8-37(a), which the Monroe County 0
Code Compliance Special Magistrate rejected, holding in pertinent part as follows:
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"The `event' in this case is Respondent's (or his predecessor's) having caused work to be
done without a building permit. Although the violation may be of longstanding duration,
and there is some evidence to that effect,the unpermitted work still exists, and it continues
to be a potential threat to human safety. . . . E
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It is concluded that performing work without a building permit constitutes a continuing
violation that starts upon the commencement of construction but does not end until an after-
the-fact permit is closed. That is, the violation of work without a permit is not a one-time 0
occurrence,but an ongoing event that occurs continuously until the work is permitted. This
is because(i)the risk of harm posed by a potentially unsafe structure or improvement exists 00
continuously, and the work cannot be properly evaluated and addressed by the County's
Building Department until a permit is issued; and, more important, (ii)the duty to obtain a
permit is an ongoing duty that is neither extinguished nor fulfilled merely by the passage LO
of time after the completion of an unpermitted project.
A person who commences or completes work before first obtaining the required permit is
obligated under MCC section 6-110 to obtain an after-the-fact("ATF")permit. This duty
is not time limited. The owner of unpermitted work has a legal duty to obtain an ATF
permit for that work,which duty continues until the work is permitted. To interpret section
8-37(a) as barring the enforcement of the building permit requirement more than four years
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after the completion of unpermitted work would only preclude many prosecutions for code
violations, but it would also cause the duty to obtain an ATF permit to expire at the end of
the limitations period, contrary to section 6-110.
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Indeed, to interpret 8-37(a) as such a bar would give the owner of unpermitted work
basically a vested right to maintain such work indefinitely, even though the nonconforming
structure or improvement was never legal. From a policy standpoint, this would be a
terrible result, as it would incentivize property owners to perform work without a permit,
carefully document the date of construction, and hope that no one notices for the next four
years,following which the unpermitted improvement effectively would be"grandfathered"
upon producing proof that the unpermitted work occurred more than four year earlier. 0
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It is concluded that, under section 8-37(a), the limitations period must be measured from ,
the alleged violator's failure to satisfy a continuing duty. Such duty, in this case, is the
duty to obtain a permit before the commencement of construction, which, failing that,
becomes the duty to obtain an ATF permit."; and 0
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WHEREAS, the Code Compliance Special Magistrate accordingly held that the
Respondent violated Monroe County Land Development Code Section 110-140(a) by failing to
obtain building permits for work performed on his property, including the enclosure of areas,
repairs and replacement for decking, and conversion of a screened porch to solid walls; and
WHEREAS a local court conducting limited appellate review recently overruled the 00
Special Magistrate's decision in a November 18, 2022, opinion in Case No. 21-AP-08-P (the
"Stone" opinion); and
WHEREAS, the Board disagrees with the court's reasoning, interpretations, and
conclusions in the Stone opinion and desires to approve local legislation to establish that the
reasoning, interpretations, and conclusions of the Final Order(excerpted above) issued by Florida E
Division of Administrative Hearings ("DOAH") Administrative Law Judge ("ALJ") John G. Van
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Laningham sitting as the Code Compliance Special Magistrate are aligned with what was and
remains the legislative intent of the Board and the public policy that the Board favors and desires
to continue carrying forward; and 0
WHEREAS, as the Board disapproves of the court's Stone opinion, the Board desires to 00
foreclose its application in any other cases or matters; and
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WHEREAS, the Code Compliance Special Magistrate further stated in the above-
referenced Final Order:
"The plain language of section 8-37(a)does not require that the County discover a violation
to trigger the limitations period. In other words, section 8-37(a) bars the County from
commencing a prosecution more than four years after the code violation occurred, even if
the County does not learn about the violation until after the limitation period has expired.
The undersigned leaves for another day the question of whether a discovery rule should be
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implied; he notes, however,that it would have been(and would be) a simple matter for the
BOCC to mandate that the limitations period will begin to run upon the discovery of the
event complained of."; and
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WHEREAS, the Board favors the policy of beginning the prosecution limitations period
upon the Monroe County Code Compliance Department's actual discovery of the violation
complained of, rather than the date the violation first occurred;
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT:
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Section 1. — Recitals and Legislative Intent. The foregoing recitals, findings of fact, 0
statements of legislative intent, and conclusions of law are true and correct and are hereby ,
incorporated as if fully stated herein.
Section 2.—Amendment. Section 8-37 of Chapter 8, Article 11, of the Code of 0
Ordinances of Monroe County is hereby amended as follows (deletions are stricken through; -
additions are underlined):
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Sec. 8-37. —Passage of four years to prosecutions.
(a) All prosecutions before the code compliance special magistrate shall be initiated within
four years of the ,.,ettt-..,*ee offhe -,e*t.County Code Compliance Department's actual 00
discovery of the violation complained of or be forever barred. For the purpose of this
section, the term "initiated" means the filing of a notice of violation, issuance of a
notice to appear,or issuance of a civil citation by the code compliance department. This
section may only be raised as an affirmative defense in a quasi-judicial code
compliance prosecution before the code compliance special magistrate and the burden
of proving this affirmative defense is upon the respondent. Only proof of actual
discovery of the violation by the Code Compliance Department shall satisfy the
affirmative defense established by this section. The information,knowledge, or records
of the Planning & Environmental Resources Department, Building Department, and
Floodplain Management Office shall not be imputed to the Code Compliance 0
Department under this section,and constructive knowledge of the violation by the Code
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Compliance Department shall not constitute actual discovery of the violation by the
Code Compliance Department. Except, however, that this section shall not bar *e
initiated,, of a notice e a prosecution before the code compliance special magistrate LO
based on the following:
(1) The unlawful construction of a structure below the base flood elevation or the
minimum standards of use of a below base flood elevation structure as outlined in
44 CFR.
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(2) Determination by the building official or his/her authorized designee of an unsafe
building, structure or system as provided in Chapter 6., Section 6-27 of the Code.
(3) The failure to obtain a permit that is required under this Code, the Land
Development Code, or the Comprehensive Plan. Performing work or development
without a permit shall constitute a continuing violation that continues until any
after-the-fact permits required under this Code,the Land Development Code, or the
Comprehensive Plan, are obtained and closed out.
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(b) After the effective date of the ordinance of the ordinance from which this section is
originally derived, any violation of this section,the vacation rental ordinance, a special
vacation rental permit or permit conditions, shall be considered a new violation.
Previous vacation rental leases or uses or the failure to bring enforcement against
vacation rental violations pre-dating this section shall not act as laches or a bar to
enforcement actions brought for new violations occurring after the effective date of the U)
ordinance from which this section is derived.
(c) Occupancy agreements for RV spaces for a period of six months or more in duration
by an individual RV owner within a particular RV park, other than in a designated
storage area, shall be discontinued and shall not be entered into or renewed after the
effective date of the ordinance from which this section is originally derived. Each
lease, sublease, assignment or other occupancy agreement for RV spaces of six months
or more in duration in a particular RV park, other than in a designated storage area,
shall be considered a new violation. Previous leases or agreement for occupancy or
storage of recreation vehicles or RV spaces within a particular RV park, other than for M
storage in a designated area, shall be discontinued and not be renewed, extended or act
as laches or bar enforcement actions brought for new violations occurring after the
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effective date of the ordinance from which this section is derived.
Section 3.—Construction. The interpretation of this ordinance, and all provisions of the u
Monroe County Codes, Comprehensive Plan, floodplain management regulations, and Florida
Building Code whose interpretation arises out of, relates to, or are interpreted in connection with
this ordinance, these being necessary for the health, safety, and welfare of the residents of and
visitors to Monroe County, shall be liberally construed to effectuate the public purpose(s) and
policy(ies) hereof, and such interpretations shall be construed in favor of the Monroe County
BOCC, and such interpretation shall be entitled to great weight in adversarial administrative
proceedings, at trial, and on appeal.
Section 4. — Severability, Partial Invalidity, and Survival of Provisions. If any
provision of this ordinance, or any section, subsection, or part or portion thereof, is held to be 00
invalid or unenforceable by any administrative hearing officer or court of competent jurisdiction,
the invalidity or unenforceability of such provision, or any part or portion thereof, shall neither
limit nor impair the operation, enforceability, or validity of any other provision of this ordinance, W
or any remaining section(s), subsection(s), part(s), or portion(s) thereof. All other provisions
thereof shall continue unimpaired in full force and effect.
Section 5.—Repeal of Inconsistent Provisions. All ordinances or parts of ordinances in
conflict with this ordinance are hereby repealed to the extent of said conflict herein. Such repeal
shall not repeal the repealing clause of such ordinance or revive any ordinance which has been
repealed hereby.
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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.
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Section 7. - Inclusion in the Monroe County Code of Ordinances. The provisions of
this ordinance shall 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.
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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.
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PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, 0
Florida, at a regular meeting held on the day of , 2023.
Mayor Craig Cates
Mayor Pro Tem Holly Merrill Raschein ,-
Commissioner James K. Scholl 0
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Commissioner David Rice
Commissioner Michelle Lincoln U)
(SEAL) BOARD OF COUNTY COMMISSIONERS00
Attest: KEVIN MADOK, Clerk OF MONROE COUNTY, FLORIDA
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By: By:
As Deputy Clerk Mayor
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