Sec. 2-2026. - Enforcement procedures.

Matters brought to the Enforcement Board not sitting as a Nuisance Abatement Board, or to the Special Magistrate, shall be scheduled on the applicable agenda consistent with the following procedures:

(1)

Alleged violations of any code or ordinance may be filed with the Code Enforcement Department by citizens or those administrative officials who have the responsibility of enforcing the various codes and ordinances in force in Collier County.

(2)

If a violation(s) of a code or ordinance is believed to exist, the Code Enforcement Officer shall provide notice and specify a reasonable time to correct the violation(s). Notice shall be given in writing and shall specify the alleged violation, the required corrective action and the time period for correction.

(3)

Should any violation continue beyond the time specified for correction, the Secretary to the Enforcement Board or Special Magistrate shall give notice to the Violator that a 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 are alleged to exist.

(4)

If the violation is corrected and then reoccurs, or if the violation is not corrected by the time specified for correction in the notice, the Code Enforcement Officer may either issue a citation or schedule the case for hearing, and the notice of hearing shall so state. If the Code Enforcement Officer initiates the hearing process, the case may be brought for hearing even if the violation has been corrected prior to hearing, and the notice of hearing shall so state.

(5)

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 a reasonable effort to notify the Violator and may immediately notify the Enforcement Board or Special Magistrate and request a hearing. Under such circumstances, the Code Enforcement Officer shall not be required to adhere to the notice and time requirements as set forth above.

(6)

If a repeat violation is found, the Code Enforcement Officer shall notify the Violator but is not required to give the Violator reasonable time to correct the violation. The Code Enforcement Officer, upon notifying the Violator of a repeat violation, may request a hearing. The Code Enforcement Department shall give notice to the Violator as set forth in this Ordinance. The case may be brought for hearing even if the repeat violation has been corrected prior to hearing, and the notice of hearing shall so state.

(7)

If the owner of property which is subject to an Enforcement Board or Special Magistrate 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 code enforcement proceeding received by the Violator/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 Enforcement Board or Special Magistrate proceeding; and

d.

File a notice with the Code Enforcement Department 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 after the date of the transfer.

A failure to make the disclosure described above and 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.

(Ord. No. 2010-04, § 1)

Sec. 2-2027. - Enforcement procedures before the Nuisance Abatement Board.

Matters brought to the Enforcement Board sitting as the Collier County Public Nuisance Abatement Board shall be scheduled on a separate agenda in accordance with the following procedures:

(1)

Any employee, officer or resident of Collier County may make a complaint and request for prosecution of public nuisances before the Public Nuisance Abatement Board, for public nuisance(s) located within the area of Collier County as set forth in Section 2-2002 of this Article. Said complaint shall be made with the Collier County Sheriff's Office if the complaint involves criminal activity as the underlying basis for the nuisance complaint. Any non-criminal nuisance complaints shall be made with the Collier County Code Enforcement Department.

(2)

Upon the making of more than two complaints within a six-month period on any particular place or premises, the Collier County Code Enforcement Supervisor or his/her designee shall mail written notice of such complaints by hand delivery or by certified mail, return receipt requested, to the owner of the place or premises complained of at the owner's address listed in the tax collector's office of tax notices. Said notice shall provide for the owner of the place or premises to contact the Collier County Code Enforcement Department within 14 days of receipt of the notice. This time period shall be allowed for the purpose of allowing the owner to take such good faith measures as are appropriate to abate the nuisance. The Code Enforcement Department supervisor or his/her designee may extend the 14 days to allow the owner to initiate or continue actions to abate the nuisance, provided that the actions taken are reasonable.

(3)

In the event the owner fails to respond to the notice from the Collier County Code Enforcement Department or fails to take reasonable action to abate the nuisance within the time frames set forth above, the Secretary to the Enforcement Board shall schedule a hearing on the complaint before the Nuisance Abatement Board. The Collier County Sheriff's Office shall provide the Prosecutor with the results of its investigation of the complaint and also assist in serving any notices required under this division. The Sheriff's Office shall also make available the Sheriff's staff witnesses to appear before the Nuisance Abatement Board without need for subpoena.

(4)

Written notice of a hearing before the Public Nuisance Abatement Board shall be provided by the Secretary to the Enforcement Board by certified mail, return receipt requested, to the owner of the place or premises and to the complainant at least ten calendar days prior to the scheduled hearing. Said notice shall include:

a.

A statement of the time, place and nature of the hearing;

b.

A statement of the legal authority and jurisdiction under which the hearing is to be held;

c.

A reference to the particular sections of the statutes and ordinances involved; and

d.

A short and plain statement summarizing the nuisance, which is the subject of the complaint.

(Ord. No. 2010-04, § 1)

Sec. 2-2028. - Subpoena procedures for Enforcement Board, Nuisance Abatement Board, and Special Magistrate.

(a)

Every subpoena for testimony before an Enforcement Board, Nuisance Abatement Board or Special Magistrate shall be approved in advance of issuance by the Enforcement Board, Nuisance Abatement Board or Special Magistrate, respectively. Each subpoena shall state the name of the Enforcement Board, the title of the action, the case number of the action, the name and address of the person to whom the subpoena is issued, and the time, place and location of the hearing at which the person is directed to appear, and shall be prepared by the party requesting issuance.

(b)

A subpoena for production of documentary evidence may also be issued to command the person to whom it is directed to produce the books, papers, documents or tangible items designated therein. The Enforcement Board, upon motion made timely and in any event at or before the time specified in the subpoena for compliance therewith, may: (1) quash or modify the subpoena if it is unreasonable or oppressive; or (2) condition denial of the motion upon the advancement by the person on whose behalf the subpoena is issued of the reasonable cost of producing the requested books, papers, documents or tangible items.

(c)

A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party to the action and who is not less than 18 years of age. Proof of such service shall be made by affidavit of the person making service if not served by an officer authorized by law to do so. Proof of service shall be filed with the Secretary of the Enforcement Board. The party at whose request the service is made shall make payment of any service fee.

(d)

Persons subpoenaed shall be entitled to a witness fee and mileage compensation as provided for in F.S. § 92.142. The cost of the witness fee and mileage compensation shall be borne by the party at whose request the subpoena is issued and shall be paid to the witness at or before the time of service of the subpoena.

(Ord. No. 2010-04, § 1)

Sec. 2-2029. - Conduct of hearing.

(a)

Hearings relating to violations of local codes and ordinances shall be conducted in the following manner whether being held by the Code Enforcement Board, Nuisance Abatement Board or Special Magistrate:

(1)

Upon request of the Code Enforcement Officer, or at such times as may be necessary, a hearing before the Enforcement Board or Special Magistrate may be convened.

(2)

All hearings shall be open to the public and any person whose interests may be affected by the matter before the Enforcement Board shall be given an opportunity to be heard. Official minutes of all hearings shall be kept.

(3)

Hearings may be informal and need not be conducted in accordance with the 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.

(4)

At the hearing, the burden of proof shall be upon the Prosecutor to show by a preponderance of the evidence that a violation(s) does exist and that the Violator committed, or was responsible for maintaining or allowing the violation to continue.

(5)

Where notice of the hearing has been provided to the Violator as provided for herein, a hearing may be conducted and an order rendered even in the absence of the Violator.

(6)

All testimony shall be under oath and shall be recorded by a certified court reporter and/or a recording instrument. The Violator may cause the proceedings to be recorded by an independent certified court reporter.

(7)

All relevant evidence shall be admitted if, in the opinion of the Enforcement Board or Special Magistrate, it is the type of evidence upon which reasonable persons would normally rely in the conduct of business affairs, regardless of the existence of any common law or statutory rule which might make such evidence inadmissible over objection in civil actions. Any part of the evidence may be received in written form.

(8)

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.

(9)

Each party to the hearing shall have the right to call and examine witnesses, introduce exhibits, cross-examine opposing witnesses, impeach witnesses and rebut evidence. The Violator may be represented by legal counsel at all hearings.

(10)

At the conclusion of the hearing, an Order shall be issued. Orders shall be based on competent and substantial evidence entered into the record, and must be based on a preponderance of the evidence. The decision shall then be sent, by regular First Class United States Mail, to the Violator in the form of a written Order including findings of fact and conclusions of law based on evidence of record.

(11)

Should an Enforcement Board or Special Magistrate be unable to issue a decision immediately following any hearing because of questions of law or other matters of such nature that a decision cannot be immediately made, the Enforcement Board may withhold issuing its decision until a subsequent meeting, and the Special Magistrate may withhold issuing his or her decision for a period not exceeding thirty (30) days. In such a case, further discussion of the pending matter and all deliberations relating thereto by members of an Enforcement Board shall occur at a public meeting of the Enforcement Board. The Enforcement Board or Special Magistrate shall thereafter issue its decision pursuant to subsection (a)(10) of this Section.

(12)

A certified copy of such order may be recorded in the public records of Collier County and shall constitute notice to any subsequent purchasers, successors in interest, or assigns as the violation(s) concern(s) real property, and the findings therein shall be binding upon the Violator and, if the violation(s) concern(s) real property, any subsequent purchasers, successors in interest, or assigns.

(13)

If Collier County prevails in prosecuting a case before the Enforcement Board or Special Magistrate, it shall be entitled to recover all costs incurred in prosecuting the case, including costs incurred by the County in enforcing its codes and ordinances, and all costs of repairs incurred by the County. Whether and to what extent such costs are imposed shall be within the discretion of the Enforcement Board or Special Magistrate, but shall not exceed the costs incurred.

(b)

Special Additional Rules for Nuisance Abatement Board. The Collier County Code Enforcement Department shall present cases before the Nuisance Abatement Board. The Collier County Sheriff's Office shall only be responsible for receiving and investigating complaints, sharing said investigative information with the Code Enforcement Department, notifying the Code Enforcement Department of the need to schedule hearings, assisting Code Enforcement Department staff in serving any notices required under this Ordinance, and making available investigative witnesses at Nuisance Abatement Board hearings. Where appropriate, the public may be given an opportunity to present oral or written communications, in which event all parties shall be given an opportunity to cross-examine, challenge, or rebut said material. After considering all evidence, the Nuisance Abatement Board may declare the place or premises to be a public nuisance, as defined by applicable County ordinances and Florida Statutes, and may enter an order immediately prohibiting:

(1)

The maintaining of a nuisance;

(2)

The operating or maintaining of the place or premises, including the closure of the place or premises or any part thereof;

(3)

The conduct, operation or maintenance of any business or activity on the premises which is conducive to such nuisance.

An Order entered under subsection (b) shall expire after one year or at such earlier time as stated in the Order. The Nuisance Abatement Board may retain jurisdiction to modify its Orders prior to the expiration of said Orders. The Nuisance Abatement Board or any other authorized person, may bring a complaint under F.S. § 60.05, seeking a permanent injunction against any public nuisance.

(Ord. No. 2010-04, § 1)

Sec. 2-2030. - Penalties before Enforcement Board and Special Magistrate.

(a)

Upon a finding of violation, the Enforcement Board or Special Magistrate may order the Violator to pay a fine which shall not exceed $1,000.00 per day per violation for each day the first violation continues past the date set for compliance by the Enforcement Board or Special Magistrate; or in the case of a repeat violation, may order the repeat Violator to pay a fine which shall not exceed $5,000.00 per day, per violation for each day the repeat violation continues past the date set for compliance by the Code Enforcement Board, or from the time the violation has been repeated, and a hearing shall not be necessary for the issuance of the Order. If the Enforcement Board or Special Magistrate finds a violation to be irreparable or irreversible in nature, it may impose a fine not to exceed $15,000.00 per violation.

(b)

In determining the amount of the fine, if any, the Enforcement Board or Special Magistrate, as the case may be, 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.

(c)

The Nuisance Abatement Board may order the Violator to pay a fine which shall not exceed $250.00 per day for each day the first violation continues past the date set for compliance; or in the case of a repeat Violator, may order the repeat Violator to pay a fine which shall not exceed $500.00 per day.

(d)

Where the Nuisance Abatement Board hears an administrative action, based on a stolen property nuisance, against a property owner operating an establishment where multiple tenants, on one site, conduct their own retail business, the property owner shall not be subject to a lien against his or her property or the prohibition of operation provision if the property owner evicts the business declared to be a nuisance within 90 days after notification by registered mail to the property owner of a second stolen property conviction of the tenant. The total fines imposed pursuant to the authority of F.S. § 893.138, shall not exceed $15,000.00.

(e)

A certified copy of an Enforcement Board or Special Magistrate's Order imposing a fine may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation occurred or exists, and upon any other real or personal property owned by the Violator; and shall be superior to the interest on such parcel or property of any owner, lessee, tenant, mortgagee, or other person except the lien of county taxes, and shall be coequal with county taxes enforced in the same manner as a court judgment by the sheriffs of this state, including levy against personal property, but shall not be deemed to be a court judgment except for enforcement purposes. After three months from the filing of any such lien which remains unpaid, the enforcement board may authorize the county attorney to foreclose on the lien or forward the lien to a collection agency. No lien created pursuant to this Section may be foreclosed on real property that is a homestead under Article X, Section 4 of the Florida Constitution.

(f)

No lien provided under this division shall continue for a period longer than 20 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.

(Ord. No. 2010-04, § 1)

Sec. 2-2031. - Costs for nuisance abatement cases.

In the event the Nuisance Abatement Board declares a place or premises to be a nuisance and issues an order, the Nuisance Abatement Board shall assess against the owner of the place or premises the costs which the county, its attorney and/or the sheriff's office have incurred in the preparation, investigation and presentation of the case. These costs shall be due and payable 20 days after the written order of the Nuisance Abatement Board has been filed in the public records. A certified copy of an Order imposing costs may be recorded in the official records and thereafter shall constitute a lien against the land on which the violation exists or, if the Violator does not own the land, upon any other real or personal property owned by the Violator. Upon petition to the circuit court, said order/lien may be enforced in the same manner as a court judgment except for enforcement purposes. After one year from the filing of any such lien, which remains unpaid, Collier County may foreclose or otherwise execute on the lien with recovery of all costs, including reasonable attorney fees, associated with the recording of the order and foreclosure. Interest shall accrue on the unpaid costs at the legal rate of interest set forth in F.S. § 55.03, as said statute may be amended, replaced, or superseded from time to time. No lien created pursuant to the provisions of this Section may be foreclosed on real property that is a homestead under Article X, Section Four of the Florida Constitution.

(Ord. No. 2010-04, § 1)

Sec. 2-2032. - Rehearing of Enforcement Board or Special Magistrate action.

(a)

A request for rehearing shall be made in writing. Either the Prosecutor or the Violator may request a rehearing of the decision of an Enforcement Board or Special Magistrate. In the case of Enforcement Board decisions, said requests shall be filed with the Secretary to the Enforcement Board, and in the case of Special Magistrate decisions, with the Secretary to the Special Magistrate, within ten days of the date of receipt of the written Order of the Enforcement Board or Special Magistrate, but in no event more than 20 days from the date of mailing of the written order. A request for rehearing shall be based only on the ground that the decision was contrary to the evidence or that the hearing involved an error on a ruling of law, which was fundamental to the decision of the Enforcement Board or Special Magistrate. The written request for rehearing shall specify the precise reasons therefore.

(b)

The Enforcement Board, or Special Magistrate, as the case may be, shall make a determination whether to rehear the matter and its decision shall be made at a public meeting, reduced to writing, and mailed to the interested parties within ten days after the date the decision is made. If the Enforcement Board or Special Magistrate determines it will grant a rehearing, it may either:

(1)

Schedule a hearing where the parties will be given the opportunity of presenting evidence or argument limited by the Enforcement Board and Special Magistrate to the specific reasons for which the rehearing was granted; or

(2)

Modify or reverse the prior order, without receiving further evidence, provided that any modification is based on a finding that the prior decision of the Enforcement Board or Special Magistrate resulted from a ruling on a question of law which the Enforcement Board or Special Magistrate has been informed was an erroneous ruling.

(c)

The Order of the Enforcement Board or Special Magistrate shall be stayed and the time for taking an appeal, pursuant to Section 2-2033 below, shall not commence to run until a request for rehearing has been denied or otherwise disposed of and the written decision has been received by the interested parties; provided, however, that in no event shall the Order be stayed for a period longer than 20 days from the date of mailing of the rehearing decision.

(Ord. No. 2010-04, § 1)

Sec. 2-2033. - Appeals.

(a)

With the exception of violations of Ordinance No. 72-8; Ordinance No. 74-9, as amended; Ordinance No. 76-13; and Ordinance No. 93-56, as amended, as collectively codified in Chapter 14 of the County Code of Laws and Ordinances, any aggrieved party, including the Commission, may challenge a final administrative order of an Enforcement Board or Special Magistrate to the Collier County Circuit Court. Such challenge shall not be a hearing de novo but shall be limited to appellate review of the record created before the Enforcement Board or Special Magistrate. Any appeal shall be filed within 30 days of the execution of the Order to be appealed.

(b)

For violations of Ordinance No. 72-8; Ordinance No. 74-9, as amended; Ordinance No. 76-13; and Ordinance No. 93-56, as amended, as collectively codified in Chapter 14 of the County Code of Laws and Ordinances, any aggrieved party, including the Commission, may seek to overturn the Order by making application to the County Court for a trial de novo on the merits within 30 days of the execution of the Order to be appealed. These requirements for appeal are jurisdictional.

(c)

In the event that a party to the proceedings before an Enforcement Board or Special Magistrate should elect to appeal, a verbatim record of the proceedings may be required or may be desirable. It shall be the sole responsibility of the alleged Violator to ensure that a record is made which includes the testimony upon which an appeal may be taken. Collier County, an Enforcement Board, and the Special Magistrate shall not have responsibility to provide a verbatim transcript of the proceedings.

(Ord. No. 2010-04, § 1)

Sec. 2-2034. - Notices.

(a)

All notices required by this Ordinance shall be provided to the alleged Violator by:

(1)

Certified mail, return receipt requested, provided if such notice is sent to the owner of the property in question at the address listed in the tax collector's offices for tax notices, and at any other address provided to the local government by such owner and is returned as unclaimed or refused, notice may be provided by posting as described below, and by first class mail directed to the addresses furnished to the local government with a properly executed proof of mailing or affidavit confirming the first class mailing;

(2)

Hand-delivery by the sheriff or other law enforcement officer, Code Enforcement Officer, or other person designated by the Commission;

(3)

Leaving the notice at the Violator's usual place of residence with any person residing therein who is above 15 years of age and informing such person of the contents of the notice; or

(4)

In the case of commercial premises, leaving the notice with the manager or other person in charge.

(b)

In addition to providing notice as set forth in subsection (a) above, at the option of the Enforcement Board or Special Magistrate, notice may also be served by publication or posting, as follows:

(1)

Such notice shall be published once during each week for four consecutive weeks (four publications being sufficient) in a newspaper of general circulation in Collier County. The newspaper shall meet such requirements as are prescribed under F.S. ch. 50, for legal and official advertisements.

(2)

Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051.

(c)

In lieu of publication as described in subsection (b) of this Section, such 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 or near the front door of the Collier County Courthouse.

(d)

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 posting.

(e)

Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under subsection (a) of this Section.

(f)

Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (a) of this Section, together with proof of publication or posting, shall be sufficient to show that the notice requirements of this Section have been met, without regard to whether or not the Violator actually received such notice.

(g)

Proper notice may be assumed when a notice of violation and/or hearing has been mailed to, and accepted by, the Violator or his or her agent or other person in the household or business, or where a Code Enforcement Officer, under oath testifies that he/she did hand-deliver the notice to the Violator.

(Ord. No. 2010-04, § 1)

Secs. 2-2035, 2-2036. - Reserved.