§ 22-560. Hearings; special magistrate.

(a)

There is hereby created, for the purpose of conducting hearings pursuant to this article, the position of special magistrate. The special magistrate shall be selected by the county administrator from a list of candidates approved by the board of county commissioners. The special magistrate shall be a member in good standing with the Florida Bar engaged in the practice of law in this county.

(b)

Upon receipt of a timely request for an administrative hearing, the matter shall be set for hearing on the next regularly scheduled hearing date or as soon thereafter as possible.

(c)

Upon receipt of the request for an administrative hearing, the county shall serve a notice of hearing to the alleged violator, which notice shall include, but not be limited to, the following:

(1)

Place, date and time of the hearing.

(2)

Right of alleged violator to be represented by an attorney.

(3)

Right of alleged violator to present witnesses and evidence and conduct the cross-examination.

(4)

A conspicuous statement reflecting the requirements of F.S. ch. 286 that a person deciding to appeal any decision of a special magistrate will need to ensure that a verbatim record of the proceedings is made.

In lieu of providing a notice of hearing as provided above, the county may include a hearing date in the citation that will be scheduled if the alleged violator requests an administrative hearing, provided that the citation includes the information required by this subsection.

(d)

No hearing shall be scheduled on a date sooner than ten days from the date of service of the citation on the alleged violator unless there is reason to believe that a violation presents a serious threat to the public health, safety or welfare. All hearings shall be administratively scheduled by the code enforcement division.

(e)

All hearings shall be open to the public. All testimony shall be under oath, minutes shall be taken, and the proceedings shall be recorded.

(f)

The county shall provide clerical and administrative personnel as may be necessary for each special magistrate. The county administrator shall designate such necessary personnel.

(g)

Each case before a special magistrate shall be presented by the personnel designated by the county administrator and/or the county attorney.

(h)

Formal rules of evidence shall not apply, but fundamental principles of due process shall be observed and govern the proceedings. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible whether or not such evidence would be admissible in a state court.

(i)

Each party shall have the right to call and examine witnesses, to introduce exhibits, and to cross-examine opposing witnesses on any relevant matter, to submit rebuttal evidence, and to have subpoenas issued in his behalf by the special magistrate.

(j)

Lack of a state certificate, state certification or state registration may be established by confirming with the state department of professional regulation that the named violator does not hold a state certificate/certification/registration. An original or certified copy of a written statement from the custodian of the records of the county contractor licensing division that he contacted the state department of professional regulation, and confirmed that no record of certification or registration exists for the named violator shall be admissible into evidence and sufficient to establish the presumption that the alleged violator is not a state-certified contractor. The alleged violator has the right to present evidence to overcome this presumption.

(k)

Lack of a county certificate or county certification may be established by confirming with the county contractor licensing division, that the named violator does not hold a county certificate/certification. An original or certified copy of a written statement from the custodian of records of the county contractor licensing division that he has reviewed the records of the contractor licensing division and confirmed that no record of county certification exists for the alleged violator shall be admissible into evidence and sufficient to establish the presumption that the alleged violator is not a county-certified contractor. The alleged violator has the right to present evidence to overcome this presumption.

(l)

The special magistrate shall make findings of fact based on evidence presented. In order to make a finding affirming the code inspector's decision to issue the citation, the special magistrate must find by a preponderance of the evidence that the alleged violator was responsible for the violation of the relevant code provision as cited.

(m)

If the alleged violator is found guilty of the violation and the appropriate penalty, the violator may also be held liable for the reasonable costs of the administrative hearing, at the discretion of the special magistrate.

(n)

If the special magistrate finds that a violation exists, the special magistrate may order the violator to pay a civil penalty of not less than the amount set forth on the citation, but not more than $500.00 per day for each violation. In determining the amount of the civil penalty, the special magistrate shall consider the gravity of the violation, any actions taken by the violator to correct the violation and any previous violations committed by the violator.

(o)

Upon written notification by the code inspector that an alleged violator had not contested the citation or paid the civil penalty within the time frame allowed on the citation, or if a violation has not been corrected within the time frame set forth on the notice of violation, the special magistrate shall enter an order ordering the violator to pay the civil penalty set forth on the citation or notice of violation and a hearing shall not be necessary for the issuance of such order.

(p)

The special magistrate shall have the power to:

(1)

Take testimony under oath.

(2)

Adopt rules for the conduct of its hearing.

(3)

Subpoena alleged violators and witnesses to its hearings. Subpoenas may be served by the sheriff of the county.

(4)

Subpoena evidence to its hearings.

(5)

Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance.

(6)

Determine whether cited violations occurred.

(7)

Determine whether a reasonable time period for compliance was given.

(8)

Assess and order the payment of civil penalties and administrative costs as provided under this article.

(9)

Impose liens as provided in this division.

(Ord. No. 93-04, § 1.04, 3-2-93; Ord. No. 05-15, § 11, 4-26-05)

Editor's note

Ord. No. 05-15, § 1, adopted April 26, 2005, changed the title of § 22-560 from "Hearings; special master" to "Hearings; special magistrate."