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Article 10
Enforcement
The provisions of
this Code shall be enforced by: (1) the Code Enforcement Special Master
pursuant to the authority granted by F.S. § 162.01 et
seq., as may be amended; (2) the Environmental Control Hearing Board (ECHB)
pursuant to the "Palm Beach County Environmental
Control Act" (Chapter 77-616, Special Acts, Laws of Florida); (3) the Groundwater and Natural Resources
Protection Board (GNRPB), an alternate Code Enforcement Board created pursuant
to the authority granted by F.S. § 162.03(2) et
seq., as may be amended; (4) the Board of County Commissioners (BCC)
through its authority to enjoin and restrain any person violating the Code; or,
(5) PBC through the prosecution of violations in the name of the State of
Florida pursuant to the authority granted by F.S. § 125.69 as may be amended. The powers of each are
described in Art. 2.G, Decision Making Bodies.
The Code Enforcement
Special Master (hereinafter also referred to as Special Masters), shall have
the jurisdiction and authority to hear and decide alleged violations of the
Codes and Ordinances enacted by PBC including, but not limited to the following
codes: building, electrical, fire, gas, landscape, plumbing, sign, zoning, and
any other similar type codes which may be passed by PBC in the future which
regulate aesthetics, construction, safety, or location of any structure on real
property in PBC. Further, any violation(s) of this Code may be prosecuted
pursuant to the following standards and procedures.
Alleged violation
of any PBC Codes or Ordinances as described herein may be filed with the Code
Enforcement Division by citizens or those administrative officials who have the
responsibility of enforcing the various Codes or Ordinances.
Except as set forth in Art. 10.B.1.B, Repeat Violation, and Art. 10.B.1.C,
Public Health, Safety, and Welfare Violations, if a violation(s) of a Code or Ordinance is believed to exist, the
Code Enforcement Division shall specify a reasonable time to correct the
violation(s). Should the violation(s) continue beyond the time specified for
correction, the Code Enforcement Division shall give notice to the alleged
violator that a Code Enforcement hearing will be conducted concerning the
alleged violation(s) as noticed. The notice shall state the time and place of
the hearing, as well as the violation(s) which is alleged to exist. If the
violation is corrected and then repeated or if the violation is not corrected
by the time specified for correction by the Code Inspector, the case may be
brought for hearing even if the violation has been corrected prior to hearing,
and the notice of violation shall so state. If the Code Enforcement Officer has
reason to believe a violation or the condition causing the violation presents a
serious threat to the public health, safety, and welfare or if the violation is
irreparable or irreversible in nature, the Code Officer shall make a reasonable
effort to notify the violator and may immediately notify the Special Master and
request a hearing.
If a repeat violation
is identified, the Code Inspector shall notify the violator but is not required
to give the violator reasonable time to correct the violation. The Code Inspector,
upon notifying the violator of a repeat violation, may request a hearing. The
Code Enforcement Division shall give notice to the alleged violator as set
forth in Art. 10.B.1.A,
Issuance of Notice of Violation. The case may be brought for hearing even if the repeat violation has
been corrected prior to hearing, and the notice shall so state. For the
purposes of this Chapter, the term “repeat violation” shall mean a violation of
a provision of a Code or Ordinance by a person who has been found through a
Code Enforcement Special Master or any other quasi-judicial or judicial process
within the prior five years to have violated or who has admitted violating the
same provision notwithstanding the violations occur at different locations.
If the Code Enforcement
Officer has reason to believe a violation or the condition causing the
violation presents a serious threat to the public health, safety, and welfare
or if the violation is irreparable or irreversible in nature, the Code
Enforcement Officer shall make reasonable effort to notify the violator and may
immediately request a Code Enforcement hearing.
Persons charged with
such violation(s) may include:
1. The owner, agent, lessee, tenant, contractor,
or any other person using the land, building, or premises where such violation
has been committed or shall exist.
2. Any person who knowingly commits, takes part,
or assists in such violation.
3. Any person who maintains any land, building,
or premises in which such violation shall exist.
If the owner of the
property which is subject to a Code Enforcement proceeding transfers ownership
of such property between the time the notice of violation was served and the
time of the hearing, such owner shall:
1. Disclose, in writing, the existence and the
nature of the proceeding to the prospective transferee.
2. Deliver to the prospective transferee a copy
of the notices and other materials relating to the Code Enforcement proceeding
received by the transferor.
3. Disclose, in writing, to the prospective
transferee that the new owner will be responsible for compliance with the
applicable Code and with orders issued in the Code Enforcement proceeding.
4. File a notice of the transfer of the property
with the Code Enforcement Division with the identity and address of the new
owner and copies of the disclosures made to the new owner, within five days of
the date of the transfer.
A failure to make the disclosure described in this Subsection,
before the transfer creates a rebuttable presumption of fraud. If the property
is transferred before the hearing, the hearing shall not be dismissed, but the
new owner shall be provided a reasonable period of time to correct the
violation before the hearing is held.
Upon request of the
Code Enforcement Officer, or at such other times as may be necessary, a hearing
before the Special Master may be convened. Minutes shall be kept of all Code
Enforcement hearings, and all hearings shall be open to the public.
At the hearing, the
burden of proof shall be upon the Code Enforcement Division to show by a
preponderance of the evidence that a violation(s) does exist.
Where proper notice of
the hearing has been provided to the alleged violator as provided for herein, a
hearing may proceed even in the absence of the alleged violator. Proper notice
shall be assumed where a notice of violation has been mailed to the alleged
violator by certified mail and the alleged violator, his or her agent, or other
person in the household or business has accepted the notice of violation, or
where a Code Enforcement Officer, under oath testifies that he/she did hand
deliver the notice to the alleged violator, or as otherwise provided in Art. 10.B.6, Notices.
All testimony shall be
under oath and shall be recorded. The formal rules of evidence shall not apply
but fundamental due process shall be observed and shall govern the proceedings.
Upon determination of the Special Master, irrelevant, immaterial, or unduly
repetitious evidence may be excluded, but all other 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 trial in
the courts of the State of Florida. Any part of the evidence may be received in
written form.
The Special Master may
inquire of or question any witness present at the hearing. The alleged violator
(hereinafter also referred to as respondent), his/her attorney, Code
Enforcement Officers, or attorney representing the Division shall be permitted
to inquire of or question any witness present at the hearing. The Special
Master may consider testimony presented by Code Enforcement Officers, the
respondent, or any other witnesses.
At the conclusion of
the hearing, the Special Master shall orally render his or her decision (order)
based on evidence entered into the record. The decision shall then be
transmitted to the respondent in the form of a written order including findings
of fact, and conclusions of law consistent with the record. The order shall be
transmitted by mail to the respondent within ten days after the hearing. The order
may include a notice that it must be complied with by a specified date
and that a fine and costs may be imposed and, under the circumstances set forth
in Art.
10.B.1.C, Public Health, Safety, and Welfare Violations, the cost of
repairs or other corrective action may be included along with the fine if the
order is not complied with by said date. A certified copy of such order may be
recorded in the Public Records of PBC and shall constitute notice to any
subsequent purchasers, successors in interest, or assigns if the violation
concerns real property, and the findings therein shall be binding upon the
violator and, if the violation concerns real property, any subsequent purchasers,
successors in interest, or assigns. If an order is recorded in the Public Records
pursuant to this paragraph and the order is complied with by the date specified
in the order, the Special Master shall issue an order acknowledging compliance
that shall be recorded in the Public Records. A hearing is not required to
issue such an order acknowledging compliance.
The Special Master
shall have the power to:
1. Subpoena alleged violators and witnesses to
its hearings. Subpoenas may be served by a Sheriff or other authorized persons
consistent with Rule 1.410(d), Florida Rules of Civil Procedure upon request by
the Special Master.
2. Subpoena records, surveys, plats, and other
documentary materials.
3. Take testimony under oath.
4. Issue orders having the full force and effect
of law to command whatever steps are necessary to bring a violation into
compliance.
5. Assess fines, lien property, and assessment
costs pursuant to Art. 10.B.3, Administrative Fines; Costs;
Liens of this Article,
including costs relating to the prosecution of cases before the Special Master
in those cases where the governing body prevails.
The Special Master,
upon notification by the Code Inspector that a Code Enforcement Order has not
been complied with within the set time, or, upon finding that a repeat
violation has been committed, may order the violator to pay a fine in an amount
specified in this Section for each day the violation continues past the date
for compliance set forth in the order, or in the case of a repeat violation,
for each day the repeat violation continues, beginning with the date the repeat
violation is found to have occurred by the Code Enforcement Officer. In
addition, if the violation is a violation described in Art. 10.B.1.C, Public Health, Safety, and
Welfare Violations, the
Special Master shall notify the BCC, which may make all reasonable repairs or
other corrective actions which are required to bring the property into
compliance and charge the violator with the reasonable costs of the repairs or
other corrective actions along with the fine imposed pursuant to this Section.
Making such repairs does not create a continuing obligation on the part of the
local governing body to make further repairs or to maintain the property and
does not create any liability against the Local Government body for damages to
the property if such repairs were completed in good faith. If a finding of a
violation or a repeat violation has been made as provided in this part, a
hearing shall not be necessary for issuance of the order imposing the fine.
If PBC prevails in
prosecuting a case before the Special Master, it shall be entitled to recover
all costs incurred. Whether and to what extent such costs are imposed shall be
within the discretion of the Special Master but shall not exceed the costs incurred.
A fine imposed pursuant
to this Section shall not exceed 1,000 dollars per day for a first violation
and shall not exceed 5,000 dollars per day for a repeat violation, and, in
addition, may include all costs of repairs pursuant to Art. 10.B.3.A, Assessing Fines. If, after due notice and hearing, the
Special Master finds a violation to be irreparable or irreversible in nature,
he or she may impose a fine not to exceed 15,000 dollars per violation or as
otherwise authorized by Florida State Statute. In determining the amount of
fine, if any, the Special Master shall consider the following factors:
1. the gravity of the violation;
2. any actions taken by the violator to correct
the violation; and,
3. any previous violations committed by the
violator.
The Special Master may
reduce a fine imposed pursuant to this Section in accordance with the
procedures and conditions set forth in a Resolution adopted by the BCC. The
Special Master may authorize the Code Enforcement Division to propose a Consent
Order which sets forth agreed terms for payment of any fine. The Special Master
may in his or her discretion adopt such Consent Order in lieu of execution or
foreclosure as set forth in Art. 10.B.3.F, Foreclosure.
A certified copy of an
order imposing a fine, or a fine plus repair costs, may be recorded in the Public
Records in the Office of the Clerk of the Circuit Court in and for PBC,
Florida. Once recorded, the certified copy of an order shall constitute a lien
against the land on which the violation(s) exists and upon any other real or
personal property owned by the violator; and it shall be enforceable in the
same manner as a court judgment by the Sheriffs of this State, including
execution and levy against the personal property of the violator, but such
order shall not be deemed to be a court judgment except for enforcement
purposes. A fine imposed pursuant to this Section shall continue to accrue
until the violator comes into compliance or until judgment is rendered in a
suit to foreclose on a lien, filed pursuant to this Section, whichever comes first.
Once recorded, the lien shall be superior to any mortgages, liens, or other
instruments recorded subsequent to the filing of the Code Enforcement lien.
After three months from
the filing of any such lien which remains unpaid, PBC may foreclose the lien in
the same manner as mortgage liens are foreclosed. Such lien shall bear interest
at the rate allowable by law from the date of compliance set forth in the
recorded order acknowledging compliance. The Local Government body shall be
entitled to collect all costs incurred in recording and satisfying a valid
lien. No lien created pursuant to the provisions of this Ordinance may be
foreclosed on real property which is a homestead under Art. X, § 4, Fla. Const.
In addition to the
criminal penalties and enforcement procedures provided herein the BCC may
institute any lawful civil action or proceeding to prevent, restrain, or abate:
1. the unlawful construction, erection,
reconstruction, alteration, rehabilitation, expansion, maintenance, or use of
any building or structure; or
2. the occupancy of such building, structure,
land, or water; or
3. the illegal act, conduct, business, or use
of, in or about such premises.
The Executive Director of PZB shall have the authority to issue
cease and desist orders in the form of written official notices given to the
owner of the subject building, property, or premises, or to his agent, lessee,
tenant, contractor, or to any person using the land, building, or premises
where such violation has been committed or shall exist.
Any aggrieved party
may appeal an order of the Special Master, including PBC, to the Circuit Court
of PBC. Such appeal shall not be a hearing de
novo, but shall be limited to appellate review of the record created before
the Special Master. Any appeal filed pursuant to this Article shall be
considered timely if it was filed within 30 days of the execution of the order
to be appealed. PBC may assess a reasonable charge for the preparation of the
record to be paid by the Petitioner in accordance with F.S. § 119.07.
All notices
required by this Ordinance shall be by certified mail, return receipt
requested, or by hand delivery by a Code Enforcement Officer. Notice may also
be provided by publication, posting, or any other method consistent with the provisions
of F.S. ch. 162, as may be amended from time to time.
Notice placed shall contain at a minimum, the date, and time of the scheduled
meeting of the Special Master during which time the alleged violator is
required to appear; the name and address of the alleged violator; the address
or legal description of the property wherein the alleged violation(s) has
occurred; and, those Codes or provisions of a Code for which the alleged
violator has been cited.
ERM may refer
alleged violations of Art. 14, Environmental Standards, or Art. 4.B.10, Excavation Uses, of this Code and Ordinance No. 2003-020, Petroleum Storage Systems, Ordinance No. 2003-021, Petroleum Contamination Cleanup Criteria, Ordinance No. 2004-050, Stormwater Pollution Prevention, and Ordinance No. 93-3, Water and Irrigation Conservation as
amended to the Groundwater and Natural Resources Protection Board (GNRPB) for
prosecution pursuant to the following standards and procedures. [Ord. 2006-004] [Ord. 2017-007]
If an alleged violation
is found, the Director of ERM shall notify the alleged Property Owner or
violator and give the alleged Property Owner or violator reasonable time to
correct the violation.
Should the violation
continue beyond the time specified for correction, or irreparable or
irreversible harm has occurred, or the violation presents a serious threat to
the public health, safety, and welfare, the Director of ERM shall make a
reasonable effort to notify the violator and may immediately notice the GNRPB
and request a hearing.
The Notice of Hearing
shall contain a statement of the time, place, and nature of the hearing before
the GNRPB.
a. All notices required herein shall be provided
to the alleged violator by:
1) Hand delivery; or
2) Certified Mail, Return
Receipt Requested
If such notice is sent under this Subsection to the owner of the
property in question at the address listed in the Tax Collector’s Office for
tax notices, and at any other address provided to PBC by such owner and is
returned as unclaimed or refused, notice may be provided by posting as
described below or by first class mail directed to the addresses furnished to
PBC with a properly executed proof of mailing or affidavit confirming the first
class mailing; or
a) Leave the notice at the alleged Property Owner’s
or violator’s usual place of residence with any person residing therein who is
above 15 years of age and informed of the contents of the notice; or
b) In case of commercial premises, leaving the
notice with the manager or other person in charge.
3) In addition to providing notice as set forth
in this Section, at the option of the GNRPB, notice may also be served by
publication or posting, as follows.
a) In lieu of notice as described in this Section, notice may be posted at least ten days
prior to the hearing, or prior to the expiration of any deadline contained in
the notice, in at least two locations, one of which shall be the property upon
which the violation is alleged to exist and the other of which shall be at the
front door of the courthouse in PBC.
b) Proof of posting shall be by affidavit of the
person posting the notice, which affidavit shall include a copy of the notice
posted and the date and places of its posting.
4) Evidence that an attempt has been made to
hand deliver or mail notice as provided in this Section, together with proof of
posting as provided in this Section, shall be sufficient to show that the
notice requirements of this Article have been met, without regard to whether or
not the alleged violator actually received such notice.
If the alleged violation is corrected and
then recurs, or if the violation is not correct by the time specified for
correction, the Director of ERM may issue a Violation Citation and a Notice of
Hearing to the alleged Property Owner or violator and schedule a hearing. The
GRNPB may hear the alleged violation in this instance, even if it has been
corrected prior to the GRNPB hearing and every notice shall so state.
If the owner of
property which is subject to a Code Enforcement proceeding transfers ownership
of such property between the time the notice of violation was served and the
time of the hearing, such owner shall:
A. Disclose, in
writing, the existence and the nature of the proceeding to the prospective
transferee.
B. Deliver to the
prospective transferee a copy of the notices and other materials relating to
the GNRPB proceeding received by the transferor.
C. Disclose, in
writing, to the prospective transferee that the new owner will be responsible
for compliance with the applicable Code and with orders issued in the GNRPB
proceeding.
D. File a notice
with the Department of ERM of the transfer of the property, with the identity
and address of the new owner and copies of the disclosures made to the new
owner, within five days of the transfer.
A failure to make the disclosures described in paragraphs
above before the transfer creates a rebuttable presumption of fraud. If the
property is transferred before the hearing, the hearing shall not be dismissed,
but the new owner shall be provided a reasonable period of time to correct the
violation before the hearing is held.
Alleged violations
of any of the Sections described herein may be filed with the GNRPB by citizens
or those officials who have the responsibility of enforcing such Sections.
A. The GNRPB shall
proceed to hear the cases on the agenda for that day. All testimony shall be
under oath and shall be recorded. Each case before the GNRPB shall be presented
by the Director of ERM. The GNRPB shall take testimony from PBC Staff, if
relevant, the alleged Property Owner or violator, and other relevant testimony.
Formal rules of evidence shall not apply, but fundamental due process shall be
observed and govern the proceedings. Upon determination of the Chairperson,
irrelevant, immaterial, or unduly repetitious evidence may be excluded, but all
other 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 trial in the courts of the State of Florida. The
burden of proof shall be upon the Director of ERM to show by a preponderance of
the evidence that a violation does exist.
B. Any member of
the GNRPB, or the attorney representing the GNRPB, may inquire of or question
any witness before the GNRPB. Any member of the GNRPB, an alleged violator
(hereinafter also referred to as respondent), his/her attorney, or Code
Officers shall be permitted to inquire of any witness before the GNRPB. The
GNRPB may consider testimony presented by ERM, the respondent, or any other
witnesses.
C. At the
conclusion of the hearing, the GNRPB shall orally render its decision (order)
based on evidence entered into the record. The decision shall be by motion
approved by the affirmative vote of those members present and voting, except
that at least four members of the GNRPB must vote for the action to be
official. The GNRPB's decision shall then be transmitted to the respondent in
the form of a written order including finding of facts, and conclusions of law
consistent with the record. The order shall be transmitted by certified mail or
hand delivery to the respondent within ten days after the hearing. The order
may include a notice that it must be complied with by a specified date and that
a fine and costs may be imposed and under the circumstances set forth in Art. 10.C.5,
Administrative Fines; Costs; Liens. The cost of repairs or other corrective
action may be included along with the fine if the order is not complied with by
said date. A certified copy of such order may be recorded in the Public Records
of PBC and shall constitute a notice to any subsequent purchasers, successors
in interest, or assigns if the violation concerns real property, and the
findings therein shall be binding upon the violator, and if the violation
concerns real property, any subsequent purchasers, successors in interest, or
assigns. If an order is recorded in the Public Records pursuant to this
paragraph and the order is complied with by the date specified in the order,
the GNRPB shall issue an order acknowledging compliance that shall be recorded
in the Public Records. A hearing is not required to issue such an order
acknowledging compliance.
If PBC prevails in prosecuting a case before the GNRPB, it
shall be entitled to recover all costs incurred. Whether and to what extent
such costs are imposed shall be within the discretion of the GNRPB but shall
not exceed the costs incurred.
A. Whenever
one of the GNRPB's orders has not been complied with by the time set for
compliance, or upon finding that a repeat violation has been committed, the
GNRPB may order the violator to pay a fine in an amount specified in this
Section for each day the violation continues past the date for compliance set
forth in the order, or in the case of a repeat violation, for each day the
repeat violation continues, beginning with the date the repeat violation is
found to have occurred by the Code Inspector. In addition, if the violation is
a violation described in Art. 10.C.1.B, Issuance of Violation Citation, the GNRPB shall notify the BCC, which may make all
reasonable repairs or other corrective actions which are required to bring the
property into compliance and charge the violator with the reasonable costs of
the repairs or other corrective actions along with the fine imposed pursuant to
this Section. Making such repairs does not create a continuing obligation on
the part of PBC to make further repairs or to maintain the property if such
repairs were completed in good faith. If a finding of a violation or a repeat
violation has been made as provided in this part, a hearing shall not be
necessary for issuance of the order imposing the fine. A repeated violation
shall mean a violation of this Ordinance by a person who, within five years
prior to the violation, has been previously found by the GNRPB to have violated
or who has admitted violating the same provision within five years prior to the
violation, notwithstanding the violations occurred at different locations.
Persons charged with such violation(s) may include:
1. The owner, agent, lessee, tenant, contractor,
or any other person using the land, building, or premises where such violation
has been committed or shall exist.
2. Any person who knowingly commits, takes part,
or assists in such violation.
3. Any person who maintains any land, building,
or premises in which such violation shall exist.
B. A fine, imposed
pursuant to this Section, shall not exceed 1,000 dollars per day for a first violation
and shall not exceed 5,000 dollars per day for a repeat violation, and in
addition, may include all costs of repairs pursuant to Art. 10.C.5.A, whenever
one of the GNRPB. For violations deemed irreparable or irreversible by the
GNRPB, the GNRPB may impose a fine not to exceed 15,000 dollars per violation,
pursuant to F.S.
§ 162.09, as may be amended. In determining the amount of a fine, the GNRPB
shall consider the following factors: (1) the gravity of the violation(s); (2)
any actions taken by the violator to correct the violation(s); and, (3) any
previous violations committed by the violator. Notwithstanding the foregoing,
penalties and fines imposed for violation of the “Palm Beach County Pollutant
Storage Tank System Compliance Ordinance” or “Palm Beach County Petroleum
Contamination Cleanup Criteria Ordinance,” as either Ordinance may be amended,
shall be imposed as set forth in F.S.
§ 403.121, as amended periodically, pursuant to the agreement approved by
the Palm Beach County Board of County Commissioners on June 19, 2001 (R-2001-0941)
and January 12, 2010 (R-2010-0095). [Ord.
2013-021]
C. The Director of
ERM may record a certified copy of an order imposing a fine, or a fine plus
repair costs, in the Public Records in the Office of the Clerk of the Circuit
Court in and for PBC, Florida. Once recorded the certified copy of an order
shall constitute a lien against the land on which the violation(s) exists, and
upon any other real or personal property owned by the violator; and it may be
enforced in the same manner as a court judgment, by the Sheriff, including levy
against the personal property of the violator. Once recorded the lien shall be
superior to any mortgages, liens, or other instruments recorded subsequent to
the filing of the GNRPB lien.
D. After six
months from the filing of any such lien which remains unpaid, PBC may foreclose
the lien in the same manner as mortgage liens are foreclosed. Such lien shall
be superior to all other liens except liens for taxes, and shall bear interest
at the rate of ten percent per annum
from the date recorded. No lien created pursuant to the provisions of this Ordinance
may be foreclosed on real property which is a homestead under Art. X, Fla.
Const.
Any aggrieved party may appeal an order of
the GNRPB, including PBC, to the Circuit Court of PBC, Florida. Such appeal
shall not be a hearing de novo, but
shall be a Petition for Writ of Certiorari
and the Court shall be limited to appellate review of the record created before
the GNRPB. Any appeal filed pursuant to this Article shall be considered timely
if it was filed within 30 days of the execution of the order to be appealed
after the hearing at which the order was announced. The County may assess a reasonable
charge for the preparation of the record to be paid by the Petitioner in
accordance with F.S. § 119.07.
A. A tree resource
is irreparably harmed when an action alters the resource as a whole so that it
cannot be restored to or returned to its original or pre-disturbance condition
in a reasonable time. A non-renewable resource (such as groundwater, sea
turtles, etc.) is irreparably harmed when it is destroyed, removed, or
consumed. [Ord. 2006-036]
B. A renewable
resource is irreparably harmed when it is destroyed, removed, or consumed
without reasonable provision for the renewal of the resource. [Ord.
2006-036]
C. Injury is not
remote or speculative but actual or imminent. [Ord. 2006-036]
D. The injury must
be of a peculiar nature (such as a specimen tree), so that a monetary award is
not adequate compensation or cannot atone for the harm done. This may include
damage to the surrounding habitat (worms, birds, squirrels, etc.) and/or damage
to the quality of life (shade, beauty, etc.). [Ord. 2006-036]
E. The damage may
be incalculable. [Ord. 2006-036]
F. Further
judicial action (appeal/injunction) is incapable of preventing the injury. A
remedy at law is not full, complete, and adequate because the resource cannot
be restored. No fair and reasonable redress may be had in a court of law. [Ord.
2006-036]
G. The harm must be
substantial in extent, duration, or magnitude. [Ord. 2006-036]
H. The resource
being harmed must constitute an environmental resource. [Ord. 2006-036]
I. Irreparable
harm will not be found where mitigation measures can substantially restore or
replace the benefits provided by the resource. [Ord. 2006-036]
PBC has the burden of proving irreparable harm by the
preponderance of evidence—a determination that a greater amount of credible
evidence supports one side of an issue more than the other. The maximum penalty
the BCC can impose is 15,000 dollars per violation. In determining the fine,
the BCC shall consider: [Ord. 2006-036]
1. The gravity of the violation; [Ord.
2006-036]
2. Any actions of the violator to correct the
violation; and, [Ord. 2006-036]
3. Any previous violations committed by the
violator. [Ord. 2006-036]
Any alleged
violation of Art. 15.A, PBC Environmental Control Rule I
– Onsite Sewage Programs (OSP) and/or Art. 15.B, PBC Environmental Control Rule II
– Drinking Water Supply Systems (health, sewage treatment, or drinking water), may be prosecuted by the
Environmental Control Hearing Board (ECHB). In addition, ERM may refer any
alleged violation of Wetlands Protection to the ECHB for prosecution. [Ord. 2022-019]
If an alleged violation
of Art. 15.A, PBC Environmental Control Rule I
– Onsite Sewage Programs (OSP) and/or Art. 15.B, PBC Environmental Control Rule II
– Drinking Water Supply Systems is determined by the PBC Health Department (PBCHD), the PBC Health
Director shall issue a formal notice of violation to the Property Owner or
violator. The notice shall specify the corrective actions and a reasonable
period of time to correct the violation. [Ord. 2022-019]
Should the violation
continue beyond the specified time for correction or if an activity was
conducted without a required permit/approval or if the violation creates a
health threat, the PBC Health Director shall refer the matter to the
Environmental Control Office for enforcement. The Environmental Control Officer
shall request the ECHB to issue an Order to Show Cause to the Property Owner or
violator.
If the ECHB issues an Order
to Show Cause, the subject order along with the Notice of Hearing, shall be
made in the same way as the Florida Rules of Civil Procedure provide for
service of process of initial pleadings. Subsequent notices of hearing may be
mailed.
The ECHB shall proceed
to hear the cases scheduled for the day. All testimony shall be under oath and
shall be recorded. Each case will be presented by the Environmental Control
Officer with testimony and evidence from PBCHD Staff. The Property Owner or
violator may be represented by an attorney and the formal rules of evidence shall
not apply, but fundamental due process shall be observed and govern the
proceedings.
At the conclusion of
the hearing, the ECHB shall issue findings of fact, based on evidence in the
record, and conclusions of law and shall issue an order consistent with powers
granted in Chapter 77-616, Special Acts, Laws of
Florida. The order may
include a notice of corrective action that must be completed by a specified
date and the amount of fine to be paid by a specified date. The order shall
have the force of law to command whatever steps are necessary to bring a
violation into compliance. The findings shall be by motion approved by a
majority of those present and voting, except that a quorum of at least three
members shall be present for the action to be official.
Notification of the
ECHB action including findings of fact and conclusions of law (order)
consistent with the record shall be delivered (mailed) to the ECO, Petitioner,
respondent, and to every person who filed an answer or who appeared as a party
at the hearing mailed within 15 days of ECHB action.
The ECHB may order the Property
Owner or violator to pay a fine of up to 500 dollars per day for each
violation.
If the fine imposed by
the ECHB is not paid within the time specified in the Board Order, a certified
copy of the order may be recorded in the Public Records of the Office of the
Clerk of the Circuit Court for PBC, Florida and thereafter shall constitute a
lien against the land on which the violation exists.
Any Person aggrieved by any action of the ECHB
may seek judicial review as provided by F.S. § 120.68. No action shall be taken to collect fines
imposed for violation of this act until judgment becomes final.
In order to provide an expeditious
settlement that would be beneficial to the enforcement of the provisions of Art. 14, Environmental Standards and Art. 4.B.10, Excavation Uses, and be in the best interest of the
citizens of PBC, the Director of ERM is authorized to enter into voluntary
consent (settlement) agreements with alleged violators. Any such agreement
shall be a formal written agreement between the Director of ERM on behalf of
PBC and any such alleged violators, and shall be approved as to form and legal
sufficiency by the County Attorney's Office. [Ord. 2017-007]
Such consent agreements
may be conditioned upon a promise by the alleged violator to:
1. Restore, mitigate, or maintain sites; or
2. Remit payment of a monetary settlement not to
exceed the maximum amount allowed per violation, as set forth in the applicable
act, delegated authority, or Code, such monies to be deposited in the PBC
Pollution Recovery Trust Fund; or
3. Remit payment for compensatory damages and
non-performance penalties and costs and expenses of PBC in tracing the source
of the discharge, in controlling and abating the source of the pollutants and
the pollutants themselves, and in restoring the waters and property, including
animal, plant, and aquatic life, of PBC to their former conditions; and costs
of PBC for investigation, enforcement, testing, monitoring, and litigation;
such monies to be deposited in the PBC Pollution Recovery Trust Fund; or
4. Any other remedies or corrective action
provided for in the applicable act, delegated authority, or Code, deemed
necessary and appropriate by the Director of ERM to ensure compliance with such
act or Code.
Such consent agreements shall not serve as
evidence of a violation of any applicable act or Code, and shall expressly
state that the alleged violator neither admits nor denies culpability for the
alleged violations by entering into such agreement. In addition, prior to
entering into any such consent agreement, each alleged violator shall be
apprised of the right to have the matter heard in accordance with the
provisions of the applicable act or Code, and that execution of the agreement
is not required.
Such consent agreements shall be valid and
enforceable in a court of competent jurisdiction in PBC and shall abate any
enforcement proceedings available to the Director of ERM for so long as the
terms and conditions of such agreement are complied with. In the event an
alleged violator fails to comply with the terms and conditions set forth in the
executed agreement, the Director of ERM may either:
A. Consider the
consent agreement void and pursue any remedies available for enforcement of the
applicable provisions of the Code; or
B. Initiate appropriate
legal proceedings for specific performance of the consent agreement.
The BCC or any aggrieved or interested Person
shall have the right to apply to the Circuit Court of PBC, to enjoin and
restrain any person violating the provisions of this Code, and the Court shall,
upon proof of the violation of same, have the duty to forthwith issue such
temporary and permanent injunctions as are necessary to prevent the violation
of same.
Pursuant to F.S. § 125.69(1), violations of county ordinances shall
be prosecuted in the same manner as misdemeanors are prosecuted. Any person
violating any of the provisions of this Code or who shall fail to abide by and
obey all orders and Resolutions promulgated as herein provided, shall, upon
conviction, be punished by a fine not to exceed 500 dollars or imprisonment for
not more than 60 days, or both for each violation, and payment of all costs and
expenses involved in prosecuting the offense. Each day that a violation
continues shall constitute a separate violation.
Amendment History:
[Ord. 2003-067; January 1, 2004] [Ord.
2005-002; February 2, 2005] [Ord.
2006-004; March 1, 2006] [Ord.
2006-036; August 29, 2006] [Ord. 2013-021; August 30, 2013] [Ord.
2017-007; March 2, 2017] [Ord. 2022-019; July 29, 2022]