51-82 ORDINANCE NO. 51-82
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
DELRAY BEACH, FLORIDA, AMENDING CHAPTER 2, "AD.MINIS-
TRATION'', ARTICLE VI, "CODES ENFORCEMENT", OF THE CODE
OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA,
BY AMENDING SECTION 2-103, "DEFINITIONS", TO MAKE TECHNI-
CAL CORRECTIONS AND TO DELETE THE DEFINITION OF PROB-
ABLE CAUSE; BY AMENDING SECTION 2-10t~, "CODES ENFORCE-
MENT BOARD ESTABLISHED", BY REPEALING SUBSECTION 2-
10g(a), "COMPOSITION; APPOINTMENT OF MEMBERS", AND
ENACTING A NEW SUBSECTION 2-10#(a}, "COMPOSITION;
APPOINTMENT OF MEMBERS" TO PROVIDE THAT 5AID BOARD
BE COMPOSED OF SEVEN (7) MEMBERS, PROVIDING FOR THE
COMPOSITION OF SAID BOARD, AND PRovIDING FOR' QUALIFI-
CATIONS OF MEMBERS; BY AMENDING SUBSECTION 2-10#(b),
"QUALIFICATION5 OF MEMBERS" TO MAKE REFERENCES
THEREIN PLURAL RATHER THAN SINGULAR; BY AMENDING
SUBSECTION 2-10t~(c), "TERMS OF APPOINTMENT", TO PROVIDE
FOR THE INITIAL TERM5 OF APPOINTMENT OF MEMBERS; BY
AMENDING SUBSECTION 2-10g(d), "VACANCIES AND REAPPOINT-
MENT'", TO PROVIDE THAT A MEMBER MAY BE REAPPOINTED
FOR ONE SUCCESSIVE TERM; BY AMENDING SUBSECTION 2-
10t~(e), "FORFEITURE OF APPOINTMENT FOR NONATTENDANCE;
REMOVAL FROM OFFICE",. TO ELIMINATE PROVISIONS FOR
AUTOMATIC FORFEITURE AND PROVIDE FOR BOARD DECLA-
RATION OF VACANCY, AND TO PROVIDE FOR SUSPENSION AND
REMOVAL OF MEMBERS; BY AMENDING SECTION 2-103, "ORGAN-
IZATION OF BOARD", TO CLARIFY ELECTION OF OFFICERS; BY
AMENDING SECTION 2M05, "AUTHORITY OF BOARD TO ADOPT '
RULES AND REGULATIONS", TO CLARIFY REFERENCES TO
ENABLING LEGISLATION; BY REPEALING SECTIONS 2-110,
"APPOINTMENT, COMPENSATION OF LEGAL COUNSEL TO
BOARD", AND 2-111, "REPRESENTATION OF CITY IN BOARD
PROCEEDINGS, AUTHORITY OF CITY ATTORNEY", AND ENACT-
ING A NEW SECTION 2-111, "ROLE AND AUTHORITY OF CITY
ATTORNEY", TO PROVIDE FOR THE ROLE OF THE CITY
ATTORNEY AND/OR ANY ASSISTANT CITY ATTORNEY, AND
SETTING FORTH CERTAIN PROSECUTORIAL AUTHORITY; BY
ENACTING SECTION 2-113, "SCHEDULING OF HEARINGS", TO
PROVIDE FOR BETTING OF HEARING5 BY THE BOARDI BY
AMENDING SECTION 2-11#, "FORMAL HEARING", TO CLARIFY
THE SETTING OF HEARING5 AND TO PROVIDE FOR THE
REQUIREMENT OF FOUR (g) AFFIRMATIVE VOTES TO MAKE
BOARD ACTION OFFICIAL; BY AMENDING SECTION 2-115, "HEAR-
ING PROCEDURES", TO CLARIFY THAT ALL BOARD HEARINGS
AND PROCEEDINGS ARE TO BE OPEN TO THE PUBLIC, TO
PROVIDE FOR PRESENTING OF CASES, TO DELETE REFERENCE
TO PROBABLE CAUSE HEARINGS, AND TO SET FORTH CERTAIN
POWERS OF THE BOARD; BY AMENDING SECTION 2-116, "SUB-
POENA POWERS", TO RETITLE SAID SECTION AND TO CLARIFY
PROCEDURE5 FOR ISSUANCE OF SUBPOENAS; BY AMENDING
SECTION 2-117, "DECISIONS AND ENFORCEMENT ORDERS", TO
DELETE REFERENCE TO CERTIORARI APPEALS; BY AMENDING
SECTION 2-118, "FINES FOR NONCOMPLIANCE WITH ORDERS", TO
REDUCE THE MAXIMUM DAILY FINES FROM $300.00 TO $230.00,
AND TO PROVIDE FOR LIENS AGAINST REAL AND PERSONAL
PROPERTY OF VIOLATOR OTHER THAN PROPERTY WHERE
VIOLATION OCCURRED UNDER SPECIFIED CIRCUMSTANCES; BY
REPEALING SECTIONS 2-119, "IN~IUNCTIVE RELIEF", AND 2-120,
"OTHER REMEDIES"; BY ENACTING A NEW SECTION 2-119,
"DURATION OF LIEN", TO LIMIT THE DURATION OF LIENS AND
FOR CONTINUATION OF SUCH LIENS; BY ENACTING A NEW
SECTION 2-120, "PROVISIONS OF ARTICLE SUPPLEMENTAL", TO
PROVIDE THAT PROVISIONS OF THIS ARTICLE ARE SUPPLE-
MENTAL; BY ENACTING A NEW SECTION 2-121, "INJUNCTIVE
RELIEF", TO PROVIDE FOR SEEKING INJUNCTIONS WHERE A
VIOLATION PRESENTS A SERIOUS THREAT TO THE PUBLIC
HEALTH, SAFETY, AND WELFARE; PROVIDING FOR REPEAL OF
ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HERE-
WITH; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE
DATE.
~,VHEREAS, under the authority of the Palm Beach County Municipal Code Enforcement
Boards Act and the Municipal Code Enforcement Boards Act, the City Council of the City of Delray
Beach, Florida, had, by enacting Ordinances Nos. 78-79 and 63-80, created and set forth the
standards for the City of Delray Beach Code Enforcement Board; and,
WHEREAS, the Florida Legislature has enacted Chapter 82-37, Laws of Florida, creating
a "Local Government Code Enforcement Boards Act", which sets forth such Boards' authority,
powers and procedures, effective July 1, 1982,= and,
WHEREAS, the City Council of the City of Delray Beach, Florida, wishes to modify its
ordinances to substantially conform with the "Local Government Code Enforcement Boards Act"
(Florida Statutes Sections 166.051, et seq.); and by this ordinance to adopt such modifications and to
provide for the authority, powers, duties and procedures of the Delray Beach Code Enforcement
Board pursuant to the authority of said Florida Statutes.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE GITY OF
DELRAY BEACH, FLORIDA, AS FOLLOWS.'
Section 1. That Section 2-103, "Definitions", of the Code of Ordinances of the City of
Delray Beach, Florida, is hereby amended to read as follows-'
As used in this e~. Article.-
Board shall mean the e~ecdc ~r.~c. tc~..cn~ bcatd. Cit,},. Of Delray Beach Code
Enforcement Board.
City attorney shall mean the city attorney or the assistant city attorney.
City council shall mean the legislative body of the city.
Code inspector shall mean those employees or other agents of the city designated
by ordinance, or duly authorized and appointed by the city manager, whose duty it is to
enforce city codes and to present code violations to the board.
Codes shall mean the chapters of this Code described in section 2-102 above.
Notification or written notification shall mean either personally serving the
notice upon the person required to be notified; mailing the notice to that person by certified
mail, return receipt requested; or the posting of the notice at the site of the violation.
...! t.., ccmm':'~cd thc
Violator shall mean the person responsible for the code violation, which in the
appropriate circumstances shall be the perpetrator of the violation or the owner of the real
'property upon which the violation occurred, or both.
Section 2. That Section 2-10~, "Codes enforcement board established", of the Code
Ordinances of the Gity of Delray Beach, Florida, is hereby amended by repealing Subsection 2-10~(a),
"Composition; appointment of members", and enacting a new Subsection 2-10g(a), "Composition;
appointment of members", to read as follows=
2 Ord. No. 51-82
(a) Compositton~ appointment of members. The board shat[ be composed
of seven (7) regular members, along with seven (7) atternate members, appointed
by the city councit. Appointments to both regular and alternate member positions
shall be on the basis of experience or interest in the fields of zoning and buildin§
control. The regular and atternate membership of the board shati, whenever
possible, include an architect, a businessperson, an engineer, a §enerat contractor,
a subcontractor, and a rear estate person.
Section 3. That Subsection 2-i0~(b), "Qualifications of members", of the Code of
Ordinances of the City of Delray Beach, Florida, is hereby amended to read as follows:
(b) Qualifications of members. Each regular member and alternate
member appointed to the board shall possess, in addition to experience or interest
in the fields of zoning and building control, the following minimum qualifications.
where appropriate:
(l) The architect(s._~) and the engineer(s_.).) shall be registered under the laws
of Florida regulating the practice of architecture and engineering, or
shall possess similar qualifications under the laws of other states, or
shall have actual experience deemed by the city council to be
equivalent to such registration.
(2) The §eneral contractor(s...~) and the subcontractor(s_~) shall possess a valid
certificate of competency and occupational license, recognized and
accepted under the laws of Florida and the ordinances of the city
re§ulating the business of contracting, and where required, State of
Florida registration as a contractor, or shall possess similar qualifica-
tions under the laws of other states, or shall have actual experience
deemed by the city council to be equivalent to such certification.
(3) The real estate person(s__~) shall be licensed under the laws of Florida
licensin§ real estate brokers as either a broker or a salesman, or shall
possess similar qualifications under the laws of other states, or shall
have actual experience deemed by the city council to be equivalent to
said licensing, and shall hold a current and valid occupational license
issued by the city.
(4) The businessperson(s._~) shall be actively engaged in any lawful business
within the city and shall hold a current and valid occupational license
issued by the city, or shall be an officer or employee of a business
entity holding a current and valid occupational license issued by the
city.
(5)Each regular and alternate member of the board shall be a resident of
the city.
Section A~. That Subsection 2-10At(c), "Terms of .Appointment", of the Code of Ordinances
of the City of Delray Beach, Florida, is hereby amended to read as follows:
(c) Terms of appointment. In order that terms of office of all regular
members of the board will not expire at the same time, the initial appointments
to the board shall be as follows:
(1) Two (2) members shall be appointed for a term of one (1~) year.
(2) Three (3) ~w~e-~-)-members shall be appointed for a term of two (2)
years.
{3) Two {2) members shall be appointed for a term of three (3) years.
Thereafter, all appoi.ntments shall be made by the city council for a term of
three (3) years.
3 Ord. No. 51-8l
Section 5. That. Subsection 2-10~(d), "Vacancies and reappointment", of the Code of
Ordinances of the City of Delray Beach, Florida, is hereby amended to read as follows:
(d) Vacancies and reappointment. A__ ~ member may be reappointed for
one successive from term to term by the city council. Appointments to fill any
vacancy to the board shall be for the remainder of the unexpired term of office.
Section 6. That Subsection 2-104(e), "Forfeiture of appointment' for nonattendance",
the Code of Ordinances of the City of Delray Beach, Florida, is hereby amended to read as follows:
(e) Declaration of vacancy Fc~-~~f-~~er~- for nonattendance~
removal from office, if any regular ~m/-board member ~:'hc fails to attend two
(2) out of three (3) successive meetings without cause and without prior approval
of the chairman, the board shall declare the member's office vacant,
a~~a~t-y-f~,4~i-t-~s-eppe4~t-me~t~ and the city council shall promptly fill such
vacancy. The members shall serve at the pleasure of the city council and may be
suspended at any time by a majority vote of the city council~ and ma), also be
removed for cause at any time by a majority vote of the city council accordinl~ to
the procedures for removal of board members as set forth in this Code.
Section 7. That Section 2-105, "Organization of board", of the Code of Ordinances of the
City of Delray Beach, Florida, is hereby amended to read as follows:
(a) The board officers shall consist of a chairman, a vice-chairman and
such other officers as the board shall deem necessary.
(b) Officers of the board shall be elected from amon~ its members by a
majority vote of the membership at the board's first meeting after their initial
appointment, and annually thereafter.
(c) A member of the board may be elected to serve as an officer without
restriction as to the number of terms served.
Section g. That Section 2-10g, "Authority of board to adopt rules and regulations", of the
Code of Ordinances of the City of Delray Beach, Florida, is hereby amended to read as follows:
The board may adopt such rules and regulations as are not inconsistent with
the provisions of this Article or the "Local Government Code Enforcement Board
Act" (Florida Statutes Sections 166.05[~ et seq.) as same now exist or as hereafter
may be amended~ chapter
~=c~_:d= 5.ct, (L:'.v=_ cf F-ler-[~%-~h.~.~*.e~-7~-5~'J)~ which the board finds necessary to
carry out the provisions of this chapter, subiect to approval of the city council.
Section 9. That Section 2-110, "Appointment, compensation of la§al counsel to board,"
the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby repealed.
Section 10. That Section 2-111, "Representation of city in board proceedings, authority of
city attorney," of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is
hereby repealed, and a new Section 2-111~ *'Role and authority of City Attorney", is hereby enacted to
read as follows:
The city attorney and/or any assistant city attorney shall either be counsel
to the board or shall represent the city by presentin§ cases before the board, but
in no case shall the city attorney and/or any assistant city attorney serve in both
capacities. Whenever the city attorney and/or assistant city attorney serves in
the capacity of presenting cases before the board, he/she shall have full
prosecutorial discretion, includin§~ but not limited to, the right to negotiate a
plea with a violator and present that plea to the board for approval, to
recommend the disposition of a case to the board, and to decline to prosecute a
case, similar to the discretion exercised by the state attorney in criminal cases.
Ord No. 51-82
Section 11. That Section 2-113, "Scheduling of Hearings", of the Code of Ordinances of
the City of Delray Beach, Florida, is hereby enacted to read as follows:
The chairman of the board may call hearings of the board. Hearings may
also be called by written notice signed by at least three members of the board.
Hearings may also be set by the board for a specific day and time in each and
every month, unless cancelled by the board. At any hearing the board may set a
future hearing date. The board shall attempt to convene no less frequently than
once every two (2) months, but it may meet more or less often as the demand
necessitates.
Section 12. That Section 2-114, "Formal hearing", of the Code of Ordinances of the City
of Delray Beach, Florida, is hereby amended to read as follows:
fa) ~Vhen the board clerk sets-e-an alleged violation for formal hearing,
the ~e~f~board clefk shall set a time and date for the formal hearing and
notify the alleged violator, pursuant to the procedures for notice set forth in the
definition of notification in Section 2-103, and the city attorney. The violator
shall be given at least seven (7) days' written notice of the formal hearing.
(b) At the time and place set for the formal hearing, the board shall hear
and consider all testimony offered and shall examine and consider all the evidence
presented. After the conclusion of the hearing, the board shall issue findings of
fact~ based on evidence of recordr and conclusions of law and an order command-
ing whatever steps are necessary to bring a violation into compliance by the time
set in the order. The findings and order shall be by motion approved by a majority
of those present and voting, except that at least four (4) -t-l~,~--(-~ members of the
board must affirmatively vote in favor of the action for the action to be official.
Section 13. That Section 2-LIS, "Hearing procedures", of the Code of Ordinances of the
City of F)elray Beach, Florida, is hereby, amended to read as follows:
{a) No board member shall act in any case in which that member has a
conflict of interest.
(b) A11 hearings and proceedinI~s of the board shall be open to the public,
and any person whose interests may be a~fected by the matter before the board
shall be given an opportunity to be heard. Minutes of all board hearings shall be
kept by the board clerk. Each case before the board shall be presented by the cit7
a~.orne¥ or by a member of the administrat, ive staff of the city. The enforcement
board shalJ take testimon¥ from the code inspector and the alleged violator.
(c) Hearings shall be informal and need not be conducted according to
technical rules relating to evidence and witnesses. They shall, however, be
conducted in accordance with-accepted parliamentary procedures relative to
motions, votes and decisions. Fundamental due process shall be observed and shall
govern all hearings..
(d) AU relevant evidence shall be admitted if, in the opinion of the board,
it is the type of evidence upon which reasonable and responsible persons would
normally rely in the conduct of business a~fairs, regardless of the existence of any
common law or statutory rule which might make such evidence inadmissible over
objections in civil actions. The chairman of the board may exclude irrelevant or
unduly repetitious evidence.
(e) Hearsay evidence may be accepted for the purpose of supplementing
or explaining any direct evidence, but such hearsay evidence shall not in and of
itself be considered sufficient to support a finding or decision unless the evidence
would be admissible over objections in a civil action.
Ord. No. 51-82
(f) Each party to the hearin§ shall have the ri§hr to:
(1) Call and examine witnesses;
{2) Introduce exhibits~
(3) Cross-examine opposing witnesses;
Impeach witnesses~
(5) Rebut evidence.
{g) The alle§ed violator has the right to be represented by an attorney at
the {)~a~k~e-ea~se-keaekn~-e~ke- formal hearin§.
(h) A11 testimony before the board shall be under oath and shall be
recorded. The a11e§ed violator or the city may cause the proceedings to be
recorded by a certified court reporter or other certified recording instrument.
(i-) The board shall have the power to:
(1--) Adopt rules for the conduct of its. hearin~{s' not otherwise in conflict
. with this ^rticle or the L. ocal Government Code Enforcement Boards Act (Florida
Statutes~ Sec~.ion 166.0~1, et sec[.)~ as such now exist or may hereafter be amended.
(2.-) Subpoena aJle~ed violators and witnesses to its hearings.
(3_..~) Subpoena evidence.
(~.._~) Take testimony under oath.
(5_~) Issue orders havin~ the force of law commanding whatever steps are
necessary to brin~ a violation into compliance.
Section 1~. That Section 2-116, "Subpoena powers", of the Code of Ordinances of the City
of Delray Beach, Florida, is hereby amended to read as follows-.
Sec. 2-116. Subpoena powers and procedures.
The city, the board or the aJleged violator may request that witnessesj, ar~t
records, including surveys, plats and other materiaJs, and other evidence, be
subpoenaed to any ~urc?_blc~_-.-._.'-- hc~r-i~m~-~,-formal hearing. Subpoenas shall be
served by officers of the city police department. The chairman of the board shall
provide the clerk of the board with sufficient signed and blank witness subpoenas
to be provided to alleged violators and the city ~.ttcrr. c7 cnd/~,-assis~a{~t--ei-t-y
a~ for the purpose of subpoenaing witnesses. ~ records, and other
evidence. The alleged violator shaJl pay to the city a fee of twelve dollars
(S'12.00) for each subpoena issued. ~
Section 15. That Section 117, "Decisions and enforcement orders", of the Code of
Ordinances of the City of Delray Beach, Florida, is hereby amended to read as follows:
fa) ~nforcement orders final sub)ect to right of appeal. F-very enforce-
ment order of the board shall be final sub{ect to the right of the aggrieved party,
including, without limitation, the city or the violator, to appeal a ruling or order
of the board-{my-eet.~ie~to the Circuit Court of the Fifteenth 3udicial Circuit of
Florida in and for Palm Beach County, Florida. An appeal shall be filed within
thirty (30) days of the execution of the order to be appealed.
6 Ord. No. 51-82
(b) Contents of enforcement orders. Every enforcement order of the
board shall be in writin§ and shall include findin§s of fact and conclusions of law,
and shall indicate the vote upon the order.
(c) Disposition of enforcement orders. Every enforcement, order shall be
signed by the chairman and shall be filed in the office of the city clerk. A copy o~
the signed order shall be sent by certified ma11, return receipt requested, to the
violator.
(dj Time limit for making decision. The board shall in every proceeding
read a decision without unreasonable or unnecessary delay and shall, in all
instances, reach a decision within twenty (20) calendar days from the date of the
hearin§.
(e) Compliance by city employees. A11 city employees shall take action as
necessary in accordance with a decision of the board.
Section 16. That Section 2-118, "Fines for noncompliance with orders", of the Code of
Ordinances of the City of Oelray Beach, Florida, is hereby amended to read as follows:
The city's code enforcement board, upon notification by the code inspector
that a previous order of the code enforcement board has not been complied with
by the time set, may order the violator to pay a ~ine not to exceed two hundred
fifty dollars ($250)(~ve--hii~eii'e~-~dim's--(~)6~.O(~) per day for each day that the
violation continues past the date set for compliance. A certified copy of an order
imposing a fine may be recorded in the public records and thereafter shall
constitute a lien against the property upon which the violation exists or~ if the
violator does not own the land~ upon any other real or Dersonal proper~y Owned by
the violator and ma), be enforced in the same manner as a court iud[~ment by th.e
sheriffs of this stater includin~l levy a~alnst the personal p.ro .[?erty, but shall not be
deemed otherwise to be a iudl~ment of a court except for enforcement purposes.
A~ter one (1) year from the filing of any such lien which remains unpaid, the code
enforcement board may authorize the city attorney to foreclose upon the lien.
Section 17. That Sections 2-119, "Injunctive relief', and Sections 2-120, "Other remedies",
of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same are hereby
repealed.
Section lB. That a new Section 2-U9, "Duration of lien", of the Code of Ordinances of
the City of Delray Beach, Florida, is hereby enacted to read as follows:
No lien provided by this Article, or under the authority of the Local
Government Code Enforcement Boards Act, shall continue for a longer period
than two (2) years after the certified copy of an order imposing a fine has been
recorded, unless within that time an action to foreclose on the lien is commenced
in a court of competent jurisdiction. The continuation of the lien effected by the
commencement of the action shall not be good against creditors or subsequent
purchasers for valuable consideration without notice, unless a notice of lis
pendens is recorded.
Section 1!). That a new Section 2-120, "Provisions of articte supplemental", of the Code
of Ordinances of the City of Oelray Beach, Florida, is hereby enacted to read as follows:
Nothing contained in this Article shall prohibit the city from enforcing its
codes by any other means. It is the legislative intent of this Article to provide an
additional or supplemental means of obtaining compliance with the city's Code of
Ordinances.
Section 20. That Section 2-121~ "Injunctive relief", of the Code of Ordinances of the City
of Delray Beach, Florida, is hereby enacted to read as follows:
In the event the board believes that a violation presents a serious threat to
the public health, safety and welfare, the board may direct the city attorney to
seek appropriate injunctive relief in the name of the city from the circuit court.
7 Ord. No. 51-82
Section 21. That all ordinances or parts of ordinances which are in conflict herewith are
hereby repealed.
Section 22. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a Court of competent iurisdiction to be invalid,
such decision shall not affect the validity of the remainder hereof as a whole or part thereof other
than the part declared to be invalid.
Section 23. That this ordinance shall become effective immediately upon passage on
second and final reading.
PASSED AND ADOPTED in regular session on second and final reading on this the 24th
day of August ., 1952.
ATTEST:
Ci.~Clerk
First Reading August 10, 1982
Second Reading ..Auc~ust 24 f 1982
$ Ord. No. 51-82