2009-3648 OrdinanceORDINANCE NO. 2009-3648
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, RELATING TO THE JURISDICTION
OF THE SPECIAL MASTER; AMENDING CHAPTER 30, "CODE
ENFORCEMENT," ARTICLE III, "ENFORCEMENT PROCEDURE,"
SECTION 30-73, "POWERS OF THE SPECIAL MASTER," BY
CLARIFYING THAT THE SPECIAL MASTER LACKS JURISDICTION
OVER APPEALS FROM OR CHALLENGES TO INTERPRETATIONS
OR ACTIONS OF THE BUILDING OFFICIAL, PLANNING DIRECTOR
AND FIRE MARSHAL, OR CLAIMS THAT AN ACT OF THE CITY IS
UNCONSTITUTIONAL, WHICH ARE BY APPLICABLE LAW VESTED
IN OTHER AUTHORITIES, PROVIDING FOR REPEALER;
CODIFICATION; SEVERABILITY; AND AN EFFECTIVE DATE.
WHEREAS, certain questions have
Special Masters over decisions of the City's
Marshal; and
arisen about the jurisdiction of the City's
Planning Director, Building Official and Fire
WHEREAS, certain questions have also arisen about the jurisdiction of the City's
Special Masters to hear and decide constitutional challenges or objections to the City
Code or actions of City officials; and
WHEREAS, under City Code, section
appeals of or challenges to interpretations or
City's Board of Adjustment, which is authorized:
118-136, the proper authority to hear
actions of the Planning Director is the
To hear and decide appeals when it is alleged that there is error in any
order, requirement, decision, or determination made by an administrative
official in the enforcement of these land development regulations with the
exception of appeals pursuant to section 118-197 [review of conditional
use decisions] and section 118-262 [review of design review decisions];
and
WHEREAS, under the Code of Miami-Dade County, section 8-4(d)(1), the proper
authority to hear appeals of or challenges to interpretations or actions of the Building
Official is the Miami-Dade County Board of Rules and Appeals, which is authorized as
follows:
The Board of Rules and Appeals shall be the board of appeals for
decisions of building officials throughout the incorporated and
unincorporated areas of Miami-Dade County. The Board shall hear all
appeals from the decisions of the Building Official wherein such decision
is on matters regulated by the Building Code from any person aggrieved
thereby. Application for appeal shall be in writing and addressed to the
Secretary of the Board. The Board shall have the power to affirm, modify
or reverse the decision of the Building Official wherein such decision is on
matters regulated by the Building Official; and
WHEREAS, under the Code of Miami-Dade County, section 14-46(D)(1), the
proper authority to hear appeals of or challenges to interpretations or actions of the
City's Fire Marshal is the Miami-Dade County Fire Prevention and Safety Appeals
Board, which is authorized:
To exclusively hear and determine appeals by any person aggrieved by
any action or decision of any fire official of any jurisdiction in Dade
County, Florida, with respect to this article, the South Florida Fire
Prevention Code, or any municipal ordinance, code, or regulation which
regulates fire prevention or fire safety. Notwithstanding any provision of
the Code of Metropolitan Dade County, Florida, the South Florida Fire
Prevention Code, any municipal ordinance, or any other County
ordinance, no other County or municipal officer, agent, employee or
Board, except as provided for code enforcement by Chapter 162, Florida
Statutes, or by Chapter 8CC of the Code of Metropolitan Dade County,
Florida, may hear or determine any matter which the Dade County Fire
Prevention and Safety Appeals Board has the power to hear and
determine pursuant to this subsection; and
WHEREAS, under applicable Florida case law, the proper venue for claims or
arguments that actions, decisions or interpretations of the City or its officials are
unconstitutional on their face or as applied is properly in a court of competent
jurisdiction; and
WHEREAS, the City Commission desires to clarify for persons involved in the
Special Master process what the existing applicable law is to such process, as set forth
above and in the accompanying Commission Memorandum; and
WHEREAS, based upon the foregoing, the City Commission adopts the following
amendment to the City Code clarifying that the City's Special Masters lack jurisdiction
over these claims, defenses or arguments.
NOW, THEREFORE, BE IT HEREBY ORDAINED BY THE MAYOR AND
MEMBERS OF THE COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS
FOLLOWS:
SECTION ONE. City Code Chapter 30, "Code Enforcement," Article III, "Enforcement
Procedure," Section 30-73, "Powers of the special master," is hereby amended to read:
Sec. 30-73. Powers of the special master.
~ Each special master shall have the power to:
(1) Adopt rules for the conduct of its hearings.
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(2) Subpoena alleged violators and witnesses to its hearings. Subpoenas may be
served by the police department or the sheriff.
(3) Subpoena evidence.
(4) Take testimony under oath.
(5) Issue orders having the force of law commanding whatever steps are necessary to
bring a violation into compliance. In cases of repeat violations, if the special master
finds that the violator's conduct is habitual or flagrant or amounts to a refusal to comply
with prior orders, the special master may suspend the violator's certificate of use and/or
business license for a period not to exceed six months.
(6) Assess and order the payment of civil penalties as proscribed herein.
(b) The iurisdiction of special masters shall not extend to appeals from or challenges to
actions, decisions or interpretations by the building official, planning director or fire
marshal of the codes or ordinances within their iurisdiction, or claims that actions,
decisions or interpretations of the City or its officials or employees are unconstitutional.
This subsection shall not affect iurisdiction conferred upon the special masters by
applicable law, which includes but is not limited to review of notices of violations of the
City Code, and applicable building codes, land development regulations and fire codes.
SECTION TWO. REPEALER. All ordinances or parts of ordinances and all section
and parts of sections in conflict herewith be and the same are hereby repealed.
SECTION THREE. CODIFICATION. It is the intention of the City Commission, and it is
hereby ordained that the provisions of this ordinance shall become and be made part of
the Code of the City of Miami Beach as amended; that the sections of this ordinance
may be renumbered or relettered to accomplish such intention; and that the word
"ordinance" may be changed to "section" or other appropriate word.
SECTION FOUR. SEVERABILITY. If any section, subsection, clause or provision of
this Ordinance is held invalid, the remainder shall not be affected by such invalidity.
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SECTION FIVE. EFFECTIVE DATE. This Ordinance shall take effect ten days
following adoption.
PASSED and ADOPTED this ! 9th day of sept~mber 2009.
A TEST: ~'
MAY Matti Herrera Bower
t~i APPROVED AS TO
C TY CLERK Robert Parcher i FORM AND LANGUAGE
& FOR EXE UTION
v
~m ~ oR
~ ____ City Attorney Date
First Reading: February 25, 2009
Second Reading: September 9, 2009
F:\atto\HELG\Ordinances\Special Master\Special Master Jurisdiction 10072009 FINAL.doc
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachFl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower'and Members of the City Commission
FROM: Jose Smith, City Attorne - ~
CC: Jorge M. Gonzalez, City M ,Wage
Second Reading -Public Hearing
DATE: September 9, 2009
sua~ECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, RELATING TO THE
JURISDICTION OF THE SPECIAL MASTER; AMENDING
CHAPTER 30, "CODE ENFORCEMENT," ARTICLE 111,
"ENFORCEMENT PROCEDURE," SECTION 30-73, "POWERS
OF THE SPECIAL MASTER," BY CLARIFYING THAT THE
SPECIAL MASTER LACKS JURISDICTION OVER APPEALS
FROM OR CHALLENGES TO INTERPRETATIONS ORACTIONS
OF THE BUILDING OFFICIAL, PLANNING DIRECTOR AND FIRE
MARSHAL, OR CLAIMS THAT AN ACT OF THE CITY IS
UNCONSTITUTIONAL, WHICH ARE BY APPLICABLE LAW
VESTED IN OTHER' AUTHORITIES, PROVIDING FOR
REPEALER; CODIFICATION; SEVERABILITY; AND AN
EFFECTIVE DATE.
RECOMMENDATION
The City Attorney recommends that the City Commission hold a second reading
public hearing and thereafter adopt the ordinance.
STATUS
The City Commission approved this ordinance on first reading at its meeting of
February 25, 2009, and referred it to the Land Use and Development Committee.
At its April 6, 2009 meeting, the Committee recommended approval of the
ordinance, with the amendment that the "Applicability" clause be removed, but
asked that the ordinance return to the May, 2009 Committee meeting for further
discussion. At its May 4, 2009 meeting, the Committee recommended that the
ordinance be considered only in conjunction with other improvements to the Special
Master process, such as language being added to citations and violations that
explain the jurisdiction of other boards over certain appeals, and the ordinance and
such improvements be returned to the Committee in June for further discussion.
The matter was scheduled for the July 1 Land Use and Development Committee
meeting, but was continued to its July 27, 2009 meeting. On July 27, 2009, the
Committee considered the matterfurther, and requested that contact information for
Agenda Item C
Date q~ I-0 9
City Commission Memorandum
Special Master Jurisdiction Ordinance
September 9, 2009
Page 2 of 4
the other boards with jurisdiction over appeals be added to citations and violations
issued by the City. Such language has been drafted to read:
APPEALS
If you believe this citation or violation was issued in error, has a defect, or
because you believe you were in compliance, or for any other reason, you
may appeal its issuance to the Special Master.
In addition, if you believe that this citation or violation was wrongly issued
because you disagree with an interpretation by the City of Miami Beach
Building Official, Fire Marshal or Planning Director or other city official of
codes they enforce or administer, you may appeal that interpretation to the
board or agency having jurisdiction of such appeals, or initiate the
appropriate action pursuant to applicable law.
Appeals of Building Official decisions are to the Miami-Dade County Board of
Rules & Appeals, 140 W. Flagler St., Miami, FL 33130.
Appeals of Fire Marshal decisions are to the Miami-Dade County Fire
Prevention & Safety Appeals .Board, 9300 NW 41 St., Doral, FL 33178.
Appeals of Planning Director or other administrative decisions underthe City
of Miami Beach's Land Development Regulations are to the Miami Beach
Board of Adjustment, 1700 Convention Center Drive, c/o Planning
Department, 2"d floor, Miami Beach, FL 33139, 305.673.7550.
If you filed a separate appeal fo a board as provided above, you may request
the Special Master to delay the appeal on the citation or violation while you
pursue your appeal of the interpretation to the other board, and then return to
the Special Master after the board appeal is completed.
BACKGROUND
Questions have been raised concerning the jurisdiction of the City's Special Masters
over decisions of the Planning Director, Building Official, Fire Marshal, and over
claims that prosecutions of certain code violations are unconstitutional.
Review of the decisions by these municipal officials is vested in other bodies - -
specifically, appeals from decisions of the Planning Director are properly directed to
the City's Board of Adjustment (pursuant to City Code section 118-136); appeals
from decisions of the Building Official are properly directed to the Miami-Dade
County Board of Rules and Appeals (pursuant to Code of Miami-Dade County,
section 8-4(d)(1)); and appeals from decisions of the Fire Marshal are properly
directed to the Miami-Dade County Fire Prevention and Safety Appeals Board
(pursuant to Code of Miami-Dade County, section 14-46(D)(1)).
Further, a claim that a decision or action by any city official is unconstitutional is
properly made in Circuit Court, and thus is not properly before a Special Master.
City Commission Memorandum
Special Master Jurisdiction Ordinance
September 9, 2009
Paae 3 of 4
See Kuvin v. City of Coral Gables, So.2d , 2007 WL 2376654, at footnote 5
(Fla. 3d DCA 2007) (filing complaint in circuit court to challenge adjudication by city
hearing officer of code violation for parking pickup truck in residential driveway "is
the appropriate means to challenge the validity of an allegedly unconstitutional city
ordinance because the hearing officer has no authority over that question."); see
also Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla. 2003)
("The constitutionality of the ordinance [governing unusual uses, modifications of
prior approvals, and nonuse variances] must be determined in original proceedings
before the circuit court"); Gulf Pines Memorial Park, Inc.; v. Oaklawn Memorial Park,
Inc., 361 So.2d 695 (Fla. 1978) (failure to seek administrative review of cemetery
license could not be used to avoid circuit court jurisdiction over constitutional issues,
because "the administrative hearing officer lacks jurisdiction to consider
constitutional issues."); E.T. Legg & Co., v. Franza, 383 So.2d 962 (Fla. 4th DCA
1980) (administrative hearing officer could not pass on constitutional issues raised
by DOT enforcement of sign regulations in city).
Generally, Special Master review of code violations (to "exhaust administrative
remedies") must precede the filing of an appeal to these other boards, or a
complaint in circuit court. However, these appeals or complaint are not a substitute
for seeking review by a Special Master of a notice of violation if the alleged violator
claims its actions did not constitute a violation of applicable iaw. Persons orentities
receiving notices of violations may seek Special Master review, and then a stay of
proceedings before the Special Master, if they choose to pursue appeals to these
other boards or file a complaint in Circuit Court as provided for above.
The City Attorney proposes that the City Commission adopt an ordinance clarifying
the jurisdiction of the Special Masters, to provide notice to persons considering
becoming involved in, or involved in the Special Master process, of what the already
applicable law is. The City Attorney has consulted with the Chief Special Master,
who concurs in the proposal.
The ordinance proposed on second reading includes additional language that
clarifies that the Special Master retains jurisdiction in areas conferred upon the
Special Masters by applicable law, which includes but is not limited to review of
notices of violations for noncompliance with the City Code, and applicable building
codes, land development regulations and fire codes. And as explained above, the
ordinance on second reading removes the "Applicability" provision, making the
matter of whether the ordinance is; applied prospectively or retroactively determined
by applicable law.
FISCAL IMPACT
In accordance with Charter section 5.02, which requires that the "City of Miami
Beach shall consider the long-term economic impact (at least 5 years) of proposed
legislative actions," this shall confirm that the City Attorney has evaluated the long-
term economic impact (at least 5 years) of this proposed legislative action, and
determined that it is not expected., to have any economic impact on the City.
City Commission Memorandum
Special Master Jurisdiction Ordinance ~
September 9, 2009
Page 4 of 4
CONCLUSION
The City Attorney recommends that the City Commission hold the second reading
public hearing and thereafter adopt the ordinance.
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JS/GMH
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The following language would be added or attached to City citations or violations:
APPEALS
If you believe this citation or j violation was issued in error, has a defect, or
because you believe you were in compliance, or for any other reason, you may
appeal its issuance to the Special Master.
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In addition, if you believe that this citation or violation was wrongly issued
because you disagree with an interpretation by the City of Miami Beach Building
Official, Fire Marshal or Planning Director or other city official of codes they
enforce or administer, you may' appeal that interpretation to the board or agency
having jurisdiction of such app i als, or initiate the appropriate action pursuant to
applicable law.
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Appeals of Building Official decisions are to the Miami-Dade County Board of
Rules & Appeals, 140 W. Flagler St., Miami, FL 33130.
Appeals of Fire Marshal decisions are to the Miami-Dade County Fire Prevention
& Safety Appeals Board, 9300 NW 41 St., Doral, FL 33178.
Appeals of Planning Director or other administrative decisions under the City of
Miami Beach's Land Development Regulations are to the Miami Beach Board of
Adjustment, 1700 Convention Center Drive, c/o Planning Department, 2"d floor,
Miami Beach, FL 33139, 305.673.7550.
If you filed a separate appeal to a board as provided above, you may request the
Special Master to delay the appeal on the citation or violation while you pursue
your appeal of the interpretation to the other board, and then return to the Special
Master after the board appeal is completed.
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