R5M-Amend Ch 30 Process For Appeals Of Code Violations To Special Master•
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OFFICE OF THE CITY ATTORNEY
JOSE SMITH, CITY ATTORNEY COMMITIEE MEMORANDUM
TO: Members of the Neighborhood/Community Affairs Committee
FROM:
Jimmy Morales, City Ma,~,, 1
Jose Smith, City A~o. r.re~
March 5, 2014 l ___ JfL· ·· ~ DATE:
SUBJECT: Ordinance Amending Procedures for Appeals to the Special Master
To ensure uniformity, consistency, and transparency in appeals to the Special
Master from code violations, the City Attorney recommended that the City Code be
amended to provide for a standard notice of appeal form, as is required for appeals
under the Florida Rules of Appellate Procedure. Currently, City Code provisions for the
appeal of code violations are varied and do not uniformly refer to a standard notice of
appeal form. For example, appeals of a noise violation are stated to as follows:
Sec. 46-159(b)(2). File a written request for an administrative
hearing before a special master to appeal the decision of the code
inspector that resulted in the issuance of the notice of violation.
An appeal of a litter or handbill violation is stated as follows:
Sec. 46-92(m)(1)(b). Request an administrative hearing before a
special master ... to appeal the decision of the code compliance
officer which resulted in the issuance of the notice of violation.
At the February 6, 2013 City Commission meeting, this item was referred to the
Neighborhood/Community Affairs Committee (NCAC) for its consideration. On April 29,
2013, the NCAC considered the item and recommended in favor of proceeding with the
City Attorney's recommendation that uniform appeal procedures be codified in the City
Code.
The attached Ordinance, which is submitted for City Commission consideration on First
Reading, provides for a uniform appeal procedure for all code violations that are
appealed to the City's Special Master and also provides for clean-up amendments to
some of the more frequently appealed code violations to refer to the new provisions in
Section 30-77 (a) of the City Code. A proposed appeal form is also attached.
JS/DT/mmd
F:\ATTOITURN\MEMOS\Committee memo to Neighborhoods Committee special master appeals february 2014.doc
Agenda Item R 5 1"1
Date g-~-1<{ 429
ORDINANCE NO. -------
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF MIAMI
BEACH BY AMENDING CHAPTER 30, ENTITLED "CODE ENFORCEMENT,"
BY AMENDING ARTICLE Ill, ENTITLED "ENFORCEMENT PROCEDURE," BY
AMENDING SECTION 30·77, ENTITLED "APPEALS," BY CREATING A
UNIFORM APPELLATE PROCESS FOR APPEALS OF CITY CODE
VIOLATIONS TO THE SPECIAL MASTER, AND PROVIDING APPEAL
REQUIREMENTS AND PENALTIES FOR NON·COMPLIANCE; BY
AMENDING CHAPTER 46, ENTITLED "ENVIRONMENT," BY AMENDING
ARTICLE Ill, ENTITLED "LITTER," AND ARTICLE IV, ENTITLED "NOISE,"
BY AMENDING SECTIONS 46·92 AND 46-159, RESPECTIVELY, TO
INCORPORATE THE NEW SPECIAL MASTER APPELLATE PROCEDURES
SET FORTH IN SECTION 30-77(A); BY AMENDING CHAPTER 70, ENTITLED
"MISCELLANEOUS OFFENSES," BY AMENDING ARTICLE Ill, ENTITLED
"GRAFITTI," BY AMENDING SECTION 70-123 TO INCORPORATE THE NEW
SPECIAL MASTER APPELLATE PROCEDURES SET FORTH IN SECTION
30·77(A); AND PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION, AND AN EFFECTIVE DATE.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1.
That Article Ill, entitled "Enforcement Procedure," of Chapter 30, entitled "Code
Enforcement," of the Code of the City of Miami Beach, Florida is hereby amended as follows:
CHAPTER 30
Code Enforcement
* * *
ARTICLE Ill. Enforcement Procedure
* * *
Sec. 30·77. Appeals.
~ Appeals to the Special Master: notice of appeal requirements and penalties for non-
compliance.
Whenever a violator is authorized in the City Code to file an appeal with. or to
request an administrative hearing before, a Special Master to appeal the decision of
a code compliance officer that resulted in the issuance of a notice of violation
imposing a fine. penalty, or both, the notice of appeal must be submitted on the form
provided by the City Clerk and must comply with the following:
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ill The notice of appeal must be filed with the City Clerk within the time period
specified on the notice of violation. Failure to timely file a notice of appeal
shall constitute a waiver of the violator's right to an appeal or administrative
hearing before the Special Master and will be deemed an admission of the
violation by the violator; and the fine and/or penalty identified within the
notice of violation will be assessed accordingly, the appeal will be dismissed,
and the appeal fee will not be refunded;
ill The appeal fee approved by a resolution of the City Commission must be
filed simultaneously with the notice of appeal; and
.@l The notice of appeal must:
~ attach all pages (front and back} of the notice of violation that is the
subject of the appeal;
.Q.l accurately identify the violator by his/her/its complete name, address. and
telephone number; and
£), the notice of appeal shall be signed and filed by the violator or the
violator's attorney. If filed by the violator's attorney, he/she must be
identified by his/her complete name, Florida Bar number. address, e-mail.
and telephone number.
The Special Master shall be prohibited from hearing the merits of the notice of
violation or considering the timeliness of the notice of appeal if the violator has failed
to comply with any provision set forth in subsections 30-77(a)(1) through {2).
If a notice of appeal form is timely filed, but does not comply with any provision in
subsection 30-77{a){2)-(3), the City Clerk shall send a notice of non-compliance by
certified mail, return-receipt requested. The non-compliance shall be corrected
within 45 days of the date of the notice of non-compliance. Failure to correct the
notice of appeal may subject the violator to sanctions which may include dismissal of
the appeal, the imposition of costs. and the imposition of the fine and/or penalty
identified in the notice of violation.
f..!2l Appeals of a Special Master's final administrative order.
An aggrieved party, including the city administration, may appeal a final
administrative order of a special master to the circuit court. Such an appeal shall not
be a hearing de novo, but shall be limited to, appellate review of the record created
before the special master. An appeal shall be filed within 30 days of the rendition of
the order to be appealed.
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SECTION 2.
That Article Ill, entitled "Utter," of Chapter 46, entitled, "Environment," of the Code of the
City of Miami Beach, Florida is hereby amended as follows:
CHAPTER46
Environment
* * *
ARTICLE Ill. Litter
* * *
DIVISION I. Generally
* * *
Sec. 46-92. Litter; definitions; prohibitions on litter; penalties for litter and commercial
handbill violations; commercial handbill regulations, fines, and rebuttable presumptions;
seizure and removal of litter by the city; enforcement; appeals; liens.
* * *
(m) Rights of violators; payment of fine; right to appeal; failure to pay civil fine or to
appeal.
(1) A violator who has been served with a notice of violation shall elect either to:
a. Pay the civil fine in the manner indicated on the notice; or
b. Request an administrative hearing before a special master appointed
by the city commission upon recommendation of the city manager to
appeal the decision of the code compliance officer which resulted in
the issuance of the notice of violation.
(2) The procedures for appeal by administrative hearing of the notice of violation
shall be as set forth in sections 30-77 {a). 1 02-384 ... and 102-385 of the City
Code.
(3) If the named violator after notice fails to pay the civil fine or fails to timely
request an administrative hearing before a special master, the special master
shall be informed of such failure by report from the code compliance officer.
Failure of the named violator to appeal the decision of the code compliance
officer within the prescribed time period shall constitute a waiver of the
violator's right to administrative hearing before the special master. A waiver of
the right to an administrative hearing shall be treated as an admission of the
violation and penalties may be assessed accordingly.
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SECTION 3.
(4) Any party aggrieved by the decision of the special master may appeal the
decision in accordance with law.
That Division IV, entitled "Noise," of Chapter 46, entitled "Environment," of the Code of
the City of Miami Beach, Florida is hereby amended as follows:
CHAPTER46
Environment
* * *
ARTICLE IV. Noise
* * *
Sec. 46-159. Fines and penalties for violation; appeals; alternate means of enforcement.
* * *
~ The procedures for appeal of the notice of violation shall be as set forth in sections 30-
77(a). 1 02-384_. and 102-385. A courtesy mail notice shall be promptly provided to the
complainant of any hearing regarding the notice of violation, and the complainant may
testify at such hearings; provided, however, that nontransmission of the courtesy notice
to the complainant shall not in any way invalidate, affect, or impair any of the further
proceedings, actions, or determinations in the case. Failure to give such notice shall not
be a cause for continuance or cancellation of any scheduled hearing of the matter. Only
two continuances, for no longer than 20 days each, shall be granted by the special
master for any administrative hearing unless the alleged offender, at a hearing on a
motion for continuance, establishes by testimony, and/or other evidence, that good
cause exists for a further continuance. If the special master finds that a violation has
occurred, the applicable penalty set forth in subsection 46-159(a) shall be imposed.
SECTION 4.
That Division 1, entitled "Generally," of Article Ill, entitled "Graffiti,n of Chapter 70, entitled
"Miscellaneous Offenses," of the Code of the City of Miami Beach is hereby amended as
follows:
CHAPTER 70
Miscellaneous Offenses
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* * *
ARTICLE Ill. Graffiti
* * *
Division 1. Generally
* * *
Sec. 70-123. Prohibitions; enforcement; and penalties.
* * *
(d) Rights of violators; payment of fine; right to appear; failure to pay civil fine or to appeal.
( 1) A violator who has been served with a notice of violation shall elect either to:
a. Pay the civil fine in the manner indicated on the notice; or
b. Request an administrative hearing before a special master to appeal the
notice of violation within 20 days of the issuance of the notice of violation.
(2) The procedures for appeal by administrative hearing of the notice of violation
shall be as set forth in sections 30-72.Larni 30-73, and 30-77(a).
(3) If the named violator after notice fails to pay the civil fine, or fails to timely request
an administrative hearing before a special master, the special master shall be
informed of such failure by report from the code compllance officer. Failure of the
named violator to appeal the decision of the code compliance officer within the
prescribed time period shall constitute a waiver of the violator's right to
administrative hearing before the special master. A waiver of the right to an
administrative hearing shall be treated as an admission of the violation, and fines
and penalties may be assessed accordingly.
(4) As an alternative to the procedures set forth in subsections(d)(1)-(d)(3), the city
may request an administrative hearing pursuant to sections 30-71 through 30-79
if the violation is irreparable or irreversible in nature. In such case, the fines and
penalties in said sections shall apply.
(4) Any party aggrieved by a decision of a special master may appeal that decision
to a court of competent jurisdiction.
SECTION 5. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
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SECTION 6. SEVERABILITY.
If any section, sentence, clause or phrase of this ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect
the validity of the remaining portions of this ordinance.
SECTION 7. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made a part of the
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
SECTION 8. EFFECTIVE DATE.
This Ordinance shall take effect the ___ day of _________ , 2014.
PASSED and ADOPTED this ___ day of---------' 2014.
ATTEST:
RAFAEL E. GRANADO, CITY CLERK
Underline denotes additions
Strike thro~:.~gh denotes deletions
PHILIP LEVINE, MAYOR
F:\ATIO\TURN\ORDINANC\Chapter 30 • Appeals of the Special Master.docx
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435
BEFORE THE SPECIAL MASTER
CITY OF MIAMI BEACH, FLORIDA
FOR THE CLERK'S OFFICE
USE ONLY
Appeal Case No. ___ _
Time Stamp:
Appellant,
v.
CITY OF MIAMI BEACH,
Appellee.
-----------------~1
NOTICE IS GIVEN that
Violation No.: ----
NOTICE OF APPEAL
Payment Received
Check o
Cash o
Credit card 0
Copy of Violation attached
Yo No
---------~1 Appellant, appeals to the
Special Master for the City of Miami Beach, Florida the Notice of Violation issued on
___________________ (date) at the following location:
A copy of the Notice of Violation is attached hereto.
The $100.00 Appeal fee is submitted simultaneously with this Notice of
Appeal.
Respectfully submitted,
Name (Print)------------------
Title: ---------------------------Signature: ---------------------Address: ----------------------------
Phone: ------------------------E-mail:
If submitted by an Attorney:
Attorney Name (Print) __________ __
Address: -------------------------------
Phone: ------------------------------
E-mail: ----------------------Florida Bar No.: ----------------------
Signature: ------------------------------
F \A TTO\TURN\SPECIAL MASTER\notice of appeal special master.docx
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