HomeMy WebLinkAbout2004 07 20 Handed Out to Board Members Re: Attorney OpinionDate: July 20, 2004
HANDED OUT TO BOARD MEMBERS
BY OFFICE OF THE CITY CLERK AT
THE MEETING
BROWN, GARGANESE, WEISS & D'AGRESTA, P.A.
Attorneys at Law RECEIVED
Usher L. Brown • Offices in Orlando, Kissimmee, t' 1~ ' Debra S. Babb-Nutcher
Jeffrey P. Buak° Cocoa & Viexa .1 V 5 2004 Joseph E. Blitch
Suzanne D'Agresta° John U. Biedenham, Jr.
Anthony A. Garganese° ~~T~' OF WINTER sPRiNGS Lisa M. Fletcher
John H. Ward • OFFICE OF THE CITY C~ER-d<ath@rin@ LatORe
Jeffrey S. Weiss Melanie A. Mucario
Michelle A. Reddin
'Board Certified Civil Trial Lawyer Erin J. O'Leary
°Board Certified City, County & Local Government Law J. W. Taylor
Of Counsel
July 14, 2004
Via Facsimile BMail
Andrea Lorenzo-Luaces, City Clerk
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708
Re: Removal from Code Enforcement Board
City of Winter Springs -General #1193
Dear Andrea:
This correspondence is in response to your inquiry regarding whether state law or
local ordinance applies to the removal of Code Enforcement Board members from office
due to absences at board meetings.
Chapter 2, Article III, of the City Code provides general. regulations regarding
boards, committees, and commissions. Specifically, section 2-42(f) addresses board
member absences, and provides that unless otherwise provided by state or federal law,
any board or committee member incurring three (3) consecutive absences from any
regularly scheduled meeting of the board orcommittee, or seven (7) absences from any
meeting of the board orcommittee within a 12-month period shall be deemed automatically
removed from the respective board orcommittee in which the absences have occurred.
(Emphasis added).
Chapter 162, Florida Statutes, entitled County or Municipal Code Enforcement,
however, specifically add resses absences of Code Enforcement Board members in section
162.05(3)(e). This section provides that if "any member fails to attend two of three
successive meetings without cause and without prior approval of the chair, the
enforcement board shall declare the member's office vacant, and the local governing body
225 East Robinson Street, Suite 660 • P.O. Box 2873 'Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566
Website: www.orlandolaw.net • Email: firm@orlandolaw.net
Andrea Lorenzo-Luaces, City Clerk
July 14, 2004
Page 2
shall promptly fill such vacancy." (Emphasis added). Thus, since there is a state statute
speaking directly to the subject, it is my belief that the statute controls and that the Code
Enforcement Board is required by law to remove a member of its board after he or she has
missed two of three successive meetings.
Please contact my office should you have any further questions or concerns
regarding this matter.
Ve rul yours,
Anthony A. Garganese
City Attorney
AAG/Img
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City of Winter Springs Code Enforcement Board Revision 2004-01
Table of Contents
Findings of Fact
Motion to Continue Case ...............................................................................................................................................3
Motion Where Violation is Found Not to Exist (Not Guilty) ......................................................................................4
Motion Where Violation is Found to Have Existed, as of this Hearing (Guilty) .....................................................5
Motion Where Violation is Found to Have Existed, Corrected, then Exists Again as of Hearing (Guilty).........6
Motion Where Violation is Found to Have Occurred (Guilty) Corrected as of Hearing ........................................7
Motion Where Violation is Found to Have Reoccurred After Compliance (Guilty Repeat Offender) .................8
Motion Where Violation is Found to Have Reoccurred After Compliance (Guilty Repeat Offender) Corrected
as of Hearing ...................................................................................................................................................................9
Motion Where a Irreparable or Irreversible Violation is Found to Have Existed, as of this Hearing (Guilty) ..10
Relief Orders
Relief Order (A) ........................................................................................................................11
Relief Order (B) ........................................................................................................................12
Relief Order (C) ........................................................................................................................13
2
City afi Winter springs Coda Er7farcerrrent Board Revision 2004-01
Motion to Continue Case
Reason for use:
Used when the board does not feel there was sufficient evidence presented by either
party to render a fair and just ruling.
Motion to Continue Case
The City of Winter Springs vs. (Respondents) Case# I move that
this case be continued to the next regularly scheduled meeting of the Code
Enforcement Board, as the evidence and testimony presented was insufficient to allow
the Board to render a just and fair ruling.
If Respondents are not aresent•
Let the record show that (Respondents), (are/is) not present at this proceeding and
therefore have not waived their right to formal notification. Therefore I also move that
the Board order the Code Enforcement Officer to notify the respondent(s) of the
continued case as prescribed by Chapter 162.12 of the Florida Statutes.
_If the Resaondent is aresent:
Mr. or Mr(s). (Respondents~,are you willing to waive formal notification of the
continued proceeding?
If yes:
Let the record show that Mr. or Mr(s). (Respondents) ,agree to waive the right to
formal notification. Therefore I also move that the Board order the Code Enforcement
Officer to provide a courtesy notification to Mr. or Mr(s). (Respondents), about when
their case is to again be heard by the Board.
If no:
Let the record show that Mr. or Mr(s). (Respondents), (have/has) not waived the right
to formal notification. Therefore the Board orders that the Code Enforcement Officer
notify the respondent(s) of the continued case as prescribed by Chapter162.12 of the
Florida Statutes.
Fl~lDINC OF F6~CT
NO RELIEF C3RDER
3
City of Winter Springs Cnde Enforcement Board revision 2004-01
Motion Where Violation is Found Not to Exist (Not Guiltv)
Reason for use:
Used when the Board finds the Code Enforcement Officer has not proven his/her case.
Violation is Found Not to Exist (Not Guiltv)
The City of Winter Springs vs. (Respondents) Case# ,After hearing
the sworn testimony of the Code Enforcement Officer and Mr. or Mr(s). (Respondents)
and reviewing the evidence presented at this hearing, I find that the Code Enforcement
Officer has not proven his/her case. Therefore, I move that this Board find that Mr. or
Mr(s). (Respondents) (have/has) not violated Section(s) of the city code and a
judgment of "Not Guilty" ordered for the record.
FiN~IINt~ ~7F FACE'
NCB RELIEF pRdER
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City of Winter Springs Gade Enforcement Board Revision 2004-01
Motion Where Violation is Found to Have Existed as of this
Hearing (Guilty)
Reason for use:
1. Used when the Board finds the Code Enforcement Officer has proven his/her
case.
2. When the Code Enforcement Officer has demonstrated notice had been provided
to the respondent that a violation existed and a reasonable amount of time was
provided to correct the violation.
3. The respondent failed or refused to correct the violation.
4. The respondent was provided notice of the hearing before the board.
5. The violation continues to exist as of this hearing.
Violation is Found to Exist as of Hearing (Guilty)
The City of Winter Springs vs. (Respondents) Case# ,After hearing
the sworn testimony of the Code Enforcement Officer and Mr. or Mr(s). (Respondents)
and reviewing the evidence presented at this hearing, I find that the Code Enforcement
Officer has proven his/her case based on the following:
1. That Mr. or Mr(s). (Respondents) (was /were) provided notice by the Code
Enforcement Officer in accordance with Section 2-59 of the City Code that a
violation of Section(s) of the City Code existed.
2. The respondent was provided notice of this hearing as prescribed by Chapter
162.12 of the Florida Statutes and that the respondent (was not /was) present at
this hearing.
3. The respondent was provided a reasonable time to correct the violation.
4. The respondent failed or refused to correct the violation within the time provided.
5. The violation continues to exist upon the respondents property.
Therefore, I move that this Board find that Mr. or Mr(s). (Respondents) (have/has)
violated Section(s) of the City Code and a judgment of "Guilty" be ordered for
the record. I further move that an appropriate Relief Order be issued immediately by the
Code Enforcement Board.
FIN®IIWG OF FACT
USE RELIEF OR®ER (A)
5
City of Winter Springs Code Enforcement Board Revision 2004-01
Motion Where Violation is Found to Have Existed, Corrected,
then Exists Again as of Hearing (Guilty)
Reason for use:
1. Used when the Board finds the Code Enforcement Officer has proven his/her
case.
2. When the Code Enforcement Officer has demonstrated notice had been provided
to the respondent that a violation existed and a reasonable amount of time was
provided to correct the violation.
3. The respondent was provided notice of the hearing before the board.
4. The violation was temporarily corrected but reoccurred prior to the hearing.
Violation is Found to Have Existed, Corrected, then Exists Again as of Hearing
Guil
The City of Winter Springs vs. (Respondents) Case# ,After hearing the
sworn testimony of the Code Enforcement Officer and Mr. or Mr(s). (Respondents) and
reviewing the evidence presented at this hearing, I find that the Code Enforcement Officer has
proven his/her case based on the following:
1. That Mr. or Mr(s). (Respondents) {was /were) provided notice by the Code Enforcement Officer
in accordance with Section 2-59 of the City Code that a violation of Section(s) of the City
Code existed.
2. The respondent was provided notice of this hearing as prescribed by Chapter 162.12 of the
Florida Statutes and that the respondent (was not /was) present at this hearing.
3. The respondent was provided a reasonable time to correct the violation.
4. The violation was temporarily corrected, but has reoccurred prior to this hearing.
Therefore, I move that this Board find that Mr. or Mr(s). (Respondents) (have/has) violated
Section(s) of the City Code and a judgment of "Guilty" be ordered for the record. I
further move that an appropriate Relief Order be issued immediately by the Code Enforcement
Board.
FINC3ING OF FACT USE RELIEF ORDER (A)
6
City of Winter Springs Gode Enforcement Bosrd Revision 2004-01
Motion Where Violation is Found to Have Occurred (Guilty)
Corrected as of Hearing
Reason for use:
1. The Board finds the Code Enforcement Officer has proven his/her case.
2. The Code Enforcement Officer has demonstrated notice had been provided to
the respondent that a violation existed and a reasonable amount of time was
provided to correct the violation.
3. The respondent was provided notice of the hearing before the board
4. The violation has been corrected as of the hearing.
Violation is Found to Have Occurred (Guilty) Corrected as of this Hearing
The City of Winter Springs vs. (Respondents) _, Case# ,After hearing the sworn
testimony of the Code Enforcement Officer and Mr. or Mr(s). (Respondents) and reviewing the evidence
presented at this hearing, I find that the Code Enforcement Officer has proven his/her case based on the
following:
1. That Mr. or Mr(s). (RespondentsZ(was /were) provided notice by the Code Enforcement Officer in
accordance with Section 2-59 of the City Code that a violation of Section(s) of the City Code existed.
The respondent was provided notice of this hearing as prescribed by Chapter 162.12 of the Florida Statutes
and that the respondent (was not /was) present at this hearing.
3. A violation of the Code did exist on the property for days, but has since been corrected. The
respondent is currently in compliance.
Therefore, I move that this Board find that Mr. or Mr(s). (Resoondent~ (have/has) violated Section(s)
of the City Code and a judgment of "Guilty" be ordered for the record, and that the Board
recognizes that the violation has since been corrected and is currently in compliance. Furthermore, the
respondent(s) (is /are) hereby notified that any future violations of Section(s) of the City Code will
be considered a repeat violation. If a repeat violation is found to exist, a fine will be imposed in the
amount of ($500 Max) per day, per violation, beginning on the first day the violation was again found
to exist.
If Respondent is Present:
As the respondent is present at this hearing and has heard the order of this Board, I move that the
respondent be deemed to have received notification of this order immediately.
FINi,11NG CaF FACT
NC) RFL,IFF OR~FR
7
City of Winter Springs Gode Er7fprcer~nent Board Revision 2004-01
Motion Where Violation is Found to Have Reoccurred After
Compliance (Guilty Repeat Offender)
Reason for use:
1. The Board finds the Code Enforcement Officer has proven his/her case.
2. The respondent has been previously found in violation of the same code
provisions.
3. The respondent was provided notice of the hearing before the board.
4. The repeat violation continues to exist.
Violation is Found to Have Reoccurred After Comaliance (Guilty Repeat Offender)
The City of Winter Springs vs. (Respondents) Case# ,After hearing the
sworn testimony of the Code Enforcement Officer and Mr. or Mr(s). (Respondents) and
reviewing the evidence presented at this hearing, I find that the Code Enforcement Officer has
proven his/her case based on the following:
1. Mr. or Mr(s). (Respondents), (have/has) previously been before the Code Enforcement Board
for the City of Winter Springs and (was/ were) found "guilty" of violating Section(s) of
the City Code.
2. The respondent was provided notice of this hearing as prescribed by Chapter 162.12 of the
Florida Statutes and that the respondent (was not /was) present at this hearing.
3. The violation continues to exist as of this hearing.
Therefore, I move that this Board find that Mr. or Mr(s). (Respondents) (have/has) violated
Section(s) of the City Code and a judgment of "Guilty as a repeat offender" be ordered
for the record. I further move that an appropriate Relief Order be issued immediately by the
Code Enforcement Board.
FINDING OF FACT U5E RELIEF ORDER (B)
8
City of Winter Springs Code Enforcement Board Revision 20n4-01
Motion Where Violation is Found to Have Reoccurred After
Compliance (Guilty Repeat Offender) Corrected as of Hearing
Reason for use:
1. The Board finds the Code Enforcement Officer has proven his/her case.
2. The respondent has been previously found in violation of the same code
provisions.
3. The respondent was provided notice of the hearing before the board.
4. The repeat violation has been corrected as of the hearing.
Violation is Found to Have Reoccurred After Compliance (Guilty Repeat Offender)
Corrected as of this Hearing
The City of Winter Springs vs. (Respondents) Case# ,After hearing the
sworn testimony of the Code Enforcement Officer and Mr. or Mr(s). (Respondents) and
reviewing the evidence presented at this hearing, I find that the Code Enforcement Officer has
proven his/her case based on the following:
1. Mr. or Mr(s). (Respondents), (have/has) previously been before the Code Enforcement Board
for the City of Winter Springs and (was/ were) found "guilty" of violating Section(s) of
the City Code.
2. The respondent was provided notice of this hearing as prescribed by Chapter 162.12 of the
Florida Statutes and that the respondent (was not /was) present at this hearing.
3. The repeat violation of the Code did exist on the property for days, but has since been
corrected.
Therefore, I move that this Board find that Mr. or Mr(s). (Respondents) (have/has) violated
Section(s) of the city code and a judgment of "Guilty as a repeat offender" be ordered
for the record, and that the Board recognize that the repeat violation has since been corrected.
I further move that an appropriate Relief Order be issued immediately by the Code Enforcement
Board.
FINDING OF FACT
USE RELIEF fJRDER (B)
9
City of Winter Springs Code Enforcement Board Revision 2004-01
Motion Where a Irreparable or Irreversible Violation is Found
to Have Existed, as of this Hearing (Guiltvl
Reason for use:
1. Used when the Board finds the Code Enforcement Officer has proven his/her
case.
2. When the Code Enforcement Officer has demonstrated notice had been provided
to the respondent that a violation existed and a reasonable amount of time was
provided to correct the violation.
3. The respondent was provided notice of the hearing before the board.
4. The violation has been found to be irreparable or irreversible.
Irreparable or Irreversible Violation is Found to Exist as of Hearing (Guiltvl
The City of Winter Springs vs. (Respondents) Case# ,After hearing
the sworn testimony of the Code Enforcement Officer and Mr. or Mr(s). (Respondents)
and reviewing the evidence presented at this hearing, 1 find that the Code Enforcement
Officer has proven his/her case based on the following:
1. That Mr. or Mr(s). (Respondents) (was /were) provided notice by the Code
Enforcement Officer in accordance with Section 2-59 of the City Code that a
violation of of the City Code existed.
2. The respondent was provided notice of this hearing as prescribed by Chapter
162.12 of the Florida Statutes and that the respondent (was not /was) present at
this hearing.
3. That the violation of City Code is irreparable or irreversible in nature.
Therefore, I move that this Board find that Mr. or Mr(s). (Respondents) (have/has)
violated of the City Code and a judgment of "Guilty" be ordered for the record.
further move that an appropriate Relief Order be issued immediately by the Code
Enforcement Board.
FINDING OF FACT
IISE RELIEF ORDER (C)
10
City of Winter Springs .Code Enforcement Baard Revision 2004-01
RELIEF ORDER (A)
Motion Where Violation is Found to Have Existed, as of this Hearing
Guilt
Reason for use:
1. Used after a "Motion where violation is found to have existed as of this hearing" has
been read and passed by a majority vote.
2. Used when a "guilty" order has been read for the record.
3. When the City asks for a order for relief or if the Board deems a relief order is necessary.
Violation is Found to Exist as of Hearing (Guilty)
The City of Winter Springs vs. (Respondents) Case# ,having been found
"guilty" for violating Section(s) of the City Code, I move that the respondent be given
# days after notification to correct this violation of the City Code. Mr. or Mr(s).
(Respondents), if you fail to correct the violation within the time provided, a fine of _
($250/max) will be imposed per day until compliance has been verified by a Code
Enforcement Officer for the City of Winter Springs.
Furthermore, Mr. or Mr(s). (Respondents), any and all future reoccurrences of this violation will
be considered a repeat offence. A repeat violation will necessitate further proceedings without
the opportunity to correct the repeat violation. The fine, for a repeat violation, will be
($500/max) per day, beginning on the first day the repeat violation is found to exist by a
Code Enforcement Officer.
I also move that the Clerk of the Code Enforcement Board be ordered to record a certified copy
of this Order into the public records for Seminole County, Florida should the respondent fail to
correct the violation within the time frame set forth by this Board.
If the Respondent is Present:
Let the record also reflect that the Respondent is present at this hearing and has heard the
order of this Board, I move that the Respondent be deemed to have received notification of this
order immediately.
11
City of Winter Springs Cnde Enforcement Board Revision 2004-01
RELIEF ORDER (B)
Motion Where Violation is Found to Have Reoccurred After Compliance
(Guilty Repeat Offender)
Reason for use:
1. Used after a "Motion where violation is found to have reoccurred after compliance
(Repeat Offender)" has been read and passed by a majority vote.
2. Used when a "guilty" order has been read for the record.
3. This is considered a repeat violation.
4. When the City asks for a order for relief or if the Board deems a relief order is necessary
Violation is Found to Have Reoccurred After Compliance (Guilty Repeat Offender)
The City of Winter Springs vs. (Respondents) Case# ,having been found
"guilty as a repeat offender" for violating Section(s) of the City Code, despite a
previous Relief Order of this Board. I move that the respondent be given due notification that
this is a repeat violation, and a fine of ($500/max) be imposed per day, as provided by
Chapter 162.09(2)(a) of the Florida Statutes, until compliance has been verified by a Code
Enforcement Officer for the City of Winter Springs.
Furthermore, Mr. or Mr(s). (Respondents), any and all future reoccurrences of this repeat
violation will be considered by this Board as a blatant disrespect for the laws of our city. A
repeat violation will necessitate further proceedings without the opportunity to correct the repeat
violation. The fine, for a another repeat violation, will be ($500/max) per day, beginning on
the first day the repeat violation is found to exist by a Code Enforcement Officer.
I also move that the Clerk of the Code Enforcement Board be ordered to record a certified copy
of this Order into the public records for Seminole County, Florida.
If the Respondent is Present:
Let the record also reflect that the Respondent is present at this hearing and has heard the
order of this Board, I move that the Respondent be deemed to have received notification of this
order immediately.
12
City of Winter Springs Code Bnfarcement Board Revision 2004-01
RELIEF ORDER (C)
Motion Where Irreparable or Irreversible Violation is Found to Have
Existed, as of this Hearina (Guilty)
Reason for use:
1. Used after a "Motion where violation is found to have existed as of Phis hearing" has
been read and passed by a majority vote.
2. Used when a "guilty" order has been read for the record.
3. When the City asks for a order for relief or if the Board deems a relief order is necessary.
4. The Board finds the violation to be irreparable or irreversible in nature.
Irreparable or Irreversible Violation is Found to Exist as of Hearing (Guilty)
The City of Winter Springs vs. (Respondents) Case# ,having been found
"guilty" for violating of the City Code, a violation which has been deemed by this
Board to be irreparable or irreversible in nature. I move that the respondent be fined in the
amount of ($5,000 max) payable within (# of days) .
Furthermore, Mr. or Mr(s). (Respondents), any and all future reoccurrences of this violation will
be considered a repeat offence and will be looked upon by this Board as such.
I also move that the Clerk of the Code Enforcement Board be ordered to record a certified copy
of this Order into the public records for Seminole County, Florida
If the Respondent is Present:
Let the record also reflect that the Respondent is present at this hearing and has heard the
order of this Board, I move that the Respondent be deemed to have received notification of this
order immediately.
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