78-79 ORDINANCE NO. 78-79
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY
BEACH, FLORIDA, ESTABLISHING A CODE ENFORCEMENT BOARD;
PROVIDING FOR LEGISLATIVE INTENT; PROVIDING FOR APPLICA-
BILITY; PROVIDING FOR DEFINITIONS; PROVIDING FOR ORGAN-
IZATION, QUORUM, COMPENSATION, LEGAL COUNSEL, CLERK, AND
RULES AND REGULATIONS; PROVIDING FOR COMPOSITION; PRO-
· VIDING FOR ENFORCEMENT PROCEDURES; PROVIDING FOR HEARINGS;
PROVIDING FOR PO~RS; PROVIDING FOR FINES; PROVIDING FOR
HEARING PROCEDURES; PROVIDING FOR ENFORCEMENT ORDERS;
PROVIDING FOR APPEAL; PROVIDING FOR SUBPOENA POWERS; PRO-
VIDING FOR OTHER REMEDIES; PROVIDING FOR CODIFICATION;
PROVIDING A SAVINGS CLAUSE; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Florida Legislature has enacted Chapter 79-541 Laws
of Florida, Special Acts of 1979 (House Bill 1161), entitled the "Palm
Beach County Municipal Code Enforcement Boards Act", which enables each
municipality in Palm Beach County to, in their option, establish and
create local code enforcement boards; and,
WHEREAS, the equitable, expeditious, effective and inexpensive
enforcement of the various occupational license, fire, building, zoning,
sign and related technical codes of the City of Delray Beach will promote,
protect and improve the health, safety and welfare of the citizens of the
City of Delray Beach, Florida; and,
%~EREAS, the City Council of the City of Delray Beach, Florida,
desires to establish the Delray Beach Code Enforcement Board to promote,
protect and improve the health, safety and welfare of the citizens of the
City of Delray Beach, Florida,
NOW, THEREFORE, BE IT OP~AINED BY TIlE CITY COUNCIL OF THE CITY OF
DELRAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That Chapter 28 of the Code of Ordinances of the City
of Delray Beach, to be entitled "Delray Beach Code Enforcement Board", is
hereby created to read as follows:
Sec. 28-1. Declaration of Legislative Intent.
It is the intent of this ordinance to promote, protect and
improve the health, safety and welfare of the citizens of
the City of Delray Beach, Florida, by providing an equit-
able, expeditious, effective and inexpensive method of
enforcing the hereinafter described codes of the City of
Delray Beach, Florida.
Sec. 28-2. Applicability.
The Delray Beach Code Enforcement Board shall have con-
current jurisdiction to hear and decide cases involving
alleged violations of the following codes: Chapter 3 -
Signs and Billboards; Chapter 9 - Building Code; Chapter
13 - Electricity; Chapter 14, Article 1 - Fire Department,
Fire Prevention and Fire Regulations in general; Chapter
14A - Garbage and Trash; Chapter 15 - Health and Sanitation;
Chapter 15A - Housing Standards; Chapter 15B - Junkyards;
Chapter 15C - Landscaping; Chapter 16 - Licenses; Chapter
21 - Plumbing; Chapter 23 - Street and Sidewalk Construction;
Chapter 23A - Subdivisions; Chapter 25A - Trees and Shrubs;
and Chapter 29 - Zoning; as now existing or as may be amended
by ordinance.from time to time.
Sec. 28-3. Definitions.
As used in this chapter:
1) "City Council" shall mean the legislative body of the
City of Delray Beach, Florida.
2) "Code Inspector" shall mean those employees or other
agents of the City of Delray Beach designated by ordinance
or duly authorized and appointed by the City Manager, whose
duty it is to enforce City codes and to present code vio-
lations to the Board.
3) "Board" shall mean the City of Delray Beach Code
Enforcement Board.
4) "City" shall mean the City of Delray Beach, Florida.
5) "Codes" shall mean the chapters of the Code of Ordi-
nances of the City of Delray Beach, Florida, as described in
section 28-2 above.
6) "City Attorney" shall mean the City Attorney or Assist-
ant City Attorneys of the City of Delray Beach, Florida.
7) "Probable cause" shall mean that a reasonable belief
that a code provision has been violated and that the vio-
lator committed the violation.
8) "Notification" or "written notification" shall mean
either personally serving the notice upon the person re-
quired 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.
9) "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.
Sec. 28-4. Composition.
1) The Board shall be composed of five (5) regular members
appointed by the City Council of the City of Delray Beach,
Florida, consisting, insofar as is possible, of the follow-
ing:
a) one architect
b) one businessman
c) one engineer
d) one general contractor
e) one real estate person.
2) Qualifications. Each regular 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:
a) The architect and the engineer 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 regis-
tration.
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b) The general contractor shall possess a valid certi-
ficate of competency and occupational license,
recognized and accepted under the laws of Florida
and the ordinances of the City of Delray Beach
regulating the business of contracting, and where
required, State of Florida registration as a con-
tractor, or shall possess similar qualifications
under the laws of other states, or shall have
actual experience deemed by the City Council of the
City of Delray Beach to be equivalent to such
certification.
c) The real estate person shall be licensed under the
laws of Florida licensing 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 of Delray Beach, Florida.
d) The businessman shall be actively engaged in any
lawful business within the City of Delray Beach,
Florida, and shall hold a current and valid occu-
pational license issued by the City of Delray
Beach, Florida, or shall be an officer or employee
of a business entity holding a current and valid
occupational license issued by the City of Delray
Beach, Florida.
e) Each regular member of the Board shall be a resi-
dent of the City of Delray Beach, Florida.
3) 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:
a) One member shall be appointed for a term of one
year.
b) Two members shall be appointed for a term of two
years.
c) Two members shall be appointed for a term of three
years.
d) Thereafter, all appointments shall be made by the
City Council for a term of three years.
4) Vacancies and reappointment. Any member may be
reappointed from term to term by the City Council. Appoint-
ments to fill any vacancy to the Board shall be for the
remainder of the unexpired term of office.
5) Removal of Board members. Any Board member who fails to
attend two (2) out of three (3) successive meetings without
cause and without prior approval of the Chairman shall
automatically forfeit his appointment and the City Council
shall promptly fill such vacancy. The members shall serve
at the pleasure of City Council and may be removed at any
time by a majority vote of the City Council according to the
procedures for removal of Board members as set forth in the
Code of Ordinances.
28-5. Organization.
1) The Board officers shall consist of a Chairman, a
Vice-Chairman and such other officers as the Board shall
deem necessary.
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2) Officers of the Board shall be elected by a majority
vote of the membership at the Board's first meeting after
their initial appointment, and annually thereafter.
3) A member of the Board may be elected to serve as an
officer without restriction as to the number of terms served.
28-6. Quorum.
Three members of the Board shall constitute a quorum.
28-7. Compensation.
Members of the Board shall serve without compensation, but
may be reimbursed for such travel expenses, mileage expenses
and other perdiem expenses as may be authorized by the City
Council and approved by the City Manager.
28-8. Rules and Regulations.
The Board may adopt such rules and regulations as are not
inconsistent with the provisions of this chapter or the
"Palm Beach County Municipal Code Enforcement Boards Act",
which the Board finds necessary to carry out the provisions
of this chapter, subject to approval of the City Council of
the City of Delray Beach, Florida.
28-9. Clerk and other Board Employees.
The City Manager shall appoint a City employee to be the
Board clerk, who shall perform the functions assigned to the
Clerk as set forth in this chapter. For the purpose of
administering this chapter, the Board may call upon the City
Manager to furnish such other City employees as may be
necessary to carry on or assist the Board in performing its
functions and duties under this chapter.
28'10. Legal Counsel to the Board.
The City Council shall upon recommendation of the Board
appoint a member of the Florida Bar either residing or
practicing in the City of Delray Beach, to represent and be
counsel to the Board and attend specified meetings of the
Board. The legal counsel to the Board shall be compensated
as provided for by the City Council of the City of Delray
Beach, Florida.
Sec. 28-11. City Attorney.
When needed, the City Attorney and/or any Assistant City
Attorney shall present the City's case at formal hearings;
and shall have prosecutorial discretion, including 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.
Sec. 28-12. Enforcement Procedures.
1) The Code Inspectors have the primary duty of enforcing
the various codes, as described in Section 28-2 above, and
initiating enforcement proceedings before the Board.
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2) If a violation of a code is found, the Code Inspector
shall, unless subsection (3) or (4) of this section applies,
notify the alleged violator of the violation, in accordance
with Section 28-3(8), and give the alleged violator a reason-
able time, in light of the nature of the violation, to
correct the violation. Should the violation continue beyond
the time specified for correction, the Code Inspector shall
request the Board Clerk to set a probable cause hearing and
to notify the alleged violator of the probable cause hearing.
3) If the Code Inspector has reason to believe a violation
presents a serious threat to the public health, safety and
welfare, the Code Inspector may proceed directly to a formal
hearing, as provided for in Section 28-14, without notifying
the alleged violator; provided, however, where possible,
notice shall be give to the alleged violator.
4) If the violation arose under Chapter 14 of the Code of
Ordinances of the City of Delray Beach, Florida, the Code
Inspector or the Chief of the Fire Department may, at his
option, either proceed under this Chapter or pursuant to the
authority and procedures set forth in Chapter 14 of the Code
of Ordinances. Nothing in this Chapter shall be construed
or applied to limit the authority of the Chief of the Fire
Department or of any Fire Marshall or any Fire Inspector to
proceed pursuant to Chapter 14 of the Code of Ordinances.
Sec. 28-13. Probable Cause Hearing.
1) The purpose of a probable cause hearing before the
Board is to determine if probable cause exists that a viola-
tion was committed by the alleged violator and whether the
violation should be set for formal hearing.
2) Upon request by the Code Inspector, the Clerk of the
Board shall assign the violation a case number and schedule
a probable cause hearing before the Board and give the
alleged violator at least seven (7) days written notice of
such hearing.
3) At said probable cause hearing, the Code Inspector
shall present to the Board the reasons why he/she believes a
violation of the Code has occurred and shall identify the
person or persons believed to have committed the violation.
The Code Inspector may present witnesses to testify before
the Board. Alleged violators shall have the right to
respond and to present witnesses.
4) At the conclusion of the probable cause hearing, the
Board shall either
a) find that no probable cause exists that either a
violation was committed or that the alleged vio-
lator committed the violation, and dismiss the
violation; or,
b) Find that probable cause exists that a violation
has been committed and that the alleged violator
committed the violation, and set the violation for
a formal hearing.
5) If the Board finds that probable cause exists that a
violation was committed and that the alleged violator
commited the violation, and sets the violation for a formal
hearing, the Board may at that time prescribe one or more
specific remedial actions which, if taken by the violator
prior to the formal hearing, shall result in the automatic
dismissal of the violation.
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Sec. 28-14. Formal Hearing.
1) When the Board sets a violation for formal hearing, the
Clerk of the Board shall set a time and date for the formal
hearing and notify the alleged violator and the City Attorney.
The violator shall be given at least seven (7) days written
notice of the formal hearing.
2) 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 and conclusions of law and an order com-
manding 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 three (3) members
of the Board must affirmatively vote in favor of the action
for the action to be official.
3) In the event the Board believes that a violation pre-
sents 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.
Sec. 28-15. Fines.
The Delray Beach Code Enforcement Board, upon notification
by the Code Inspector that a previous order of the Delray
Beach Code Enforcement Board has not been complied with by
the time set, may order the violator to pay a fine not to
exceed five hundred dollars ($500.00) 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. After
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.
28-16. Hearing Procedures.
1) No Board member shall act in any case in which that
member has a conflict of interest.
2) All hearings of the Board shall be open to the public
and any person whose interests may be affected 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.
3) Hearings shall be informal and need not be conducted
according to technical rules relating to evidence and wit-
nesses. They shall, however, be conducted in accordance
with accepted parliamentary procedures relative to motions,
votes and decisions. Fundamental due process shall be ob-
served and shall govern all hearings.
4) All relevant evidence shall be admitted if, in the
opinion of the Board, it is the type of evidence upon which
reasonable and responsible persons %~ould normally rely in
the conduct of business affairs, regardless of the existence
of any common law or statuatory rule which might make such
evidence inadmissable over objections in civil actions. The
Chairman of the Board may exclude irrevelant or unduly
repetitious evidence.
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5) 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 evi-
dence would be admissable over objections in a civil action.
6) Each party to the hearing shall have the right to:
a) Call and examine witnesses; b) Introduce exhibits;
c) Cross-examine opposing witnesses; d) Impeach witnesses;
e) Rebut evidence.
7) The alleged violator has the right to be represented by
an attorney at the probable cause hearing and the formal
hearing.
8) All testimony before the Board shall be under oath and
shall be recorded. The alleged violator or the City of
Delray Beach may cause the proceedings to be recorded by a
certified court reporter or other certified recording in-
strument.
9) The Board should attempt to convene no less frequently
than once every two (2) months but may meet more or less
often as the demand necessitates.
Sec. 28-17. Enforcement Orders and Appeals.
1) Every enforcement order of the Board shall be final
subject to the right of the aggrieved party, including with-
out limitation the City or the violator, to appeal a ruling
or order of the Board by certiorari to the Circuit Court of
the Fifteenth Judicial 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.
2) Every enforcement order of the Board shall be in
writing and shall include findings of fact and conclusions
of law, and shall indicate the vote upon the order.
3) Every enforcement order shall be signed by the Chairman
and shall be filed in the office of the City Clerk of the
City of Delray Beach, Florida. A copy of the signed order
shall be sent by certified mail, return receipt requested,
to the violator.
4) The Board shall in every proceeding reach 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 hearing.
5) All City employees shall take action as necessary in
accordance with a decision of the Board.
Sec. 28-18. Subpoena Powers.
The City, the Board or the alleged violator may request that
witnesses and records, including surveys, plats and other
materials, be subpoenaed to any probable cause hearing or
formal hearing. Subpoenas shall be served by officers of
the City of Delray Beach Police Department. The Chairman of
the Board shall provide the Clerk of the Board with suffi-
cient signed and blank witness subpoenas to be provided to
alleged violators and the City Attorney and/or Assistant
City Attorneys for the purpose of subpoenaing witnesses and
records. The violator shall pay to the City of Delray Beach
a fee of twelve dollars ($12.00) for each subpoena served.
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Sec. 28-19. Other Remedies.
The provisions and procedures contained in this chapter shall be
in addition and supplemental to any other remedies now existing
or subsequently provided for by law, regarding violations of
municipal ordinances.
Section 2. That Section 1 of this ordinance shall be codified as
Chapter 28 of the Code of Ordinances of the City of Delray Beach, Florida.
Section 3. That should any section or provision of this ordi-
nance or any portion thereof, any paragraph, sentence, or word be declared
by a Court of competent jurisdiction 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 4. This ordinance shall take effect on January 1, 1980.
PASSED AND ADOPTED in regular session on second and final reading
on this the ~ day of D~mh~r , 1979.
M A Y O R~
LEON M. WEEKES
ATTEST:
First Reading November 26, 19.7~
Second Reading December !0,. 1979
City Attorney's Office
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