Friday, April 3, 2009

Will Special Master Become City's Rubber Stamp?

The City of Miami Beach's Land Use Committee, a Commission sub-committee, will meet Monday April 6th at 4:00pm (in the City Manager's Large Conference Room, 4th Floor, City Hall 1700 Convention Center Drive, Miami Beach) to consider an amendment to the City's Code "clarifying" the jurisdiction of the Special Master.

The City of Miami Beach has chosen to use Special Masters to preside over Code Enforcement hearings. If a person or property receives a Code Violation, he/she can appeal the violation to the Special Master. At the Special Master hearing, the City will present evidence against the person or property charged with the offense. The defendant can present evidence and/or testimony to rebut the City's allegations. Then, the Special Master, after evaluating the evidence and testimony, renders a verdict. These procedures are adopted in the City Code under Chapter 30.
Sec. 30-1. Intent.
(a) It is the intent of this chapter to promote, protect and improve the health, safety and welfare of the citizens of the city and to provide an equitable, expeditious, effective and inexpensive method of enforcing codes and ordinances in force in the city where a pending or repeat violation exists or continues to exist. This chapter is enacted pursuant to the authority of F. S. ch. 162.

Sec. 30-2. Alternate code enforcement system created.
The city creates, pursuant to F.S. ch. 162, an alternate code enforcement system that gives special masters appointed as set forth in articles II and III of this chapter the authority to hold hearings and impose fines, liens and other noncriminal penalties against violators of the city's or county's codes and ordinances.
The newly proposed ordinance would seek to add a section to the Code under Chapter 30-73.

The new section would read:
(b) The jurisdiction of the special masters shall not extend to appeals from or challenges to actions, decisions or interpretations by the building offical, planning director or fire marshal of the codes or ordinances within their jurisdiction, or claims that actions, decisions or interpretations of the City or its officials or employees are unconstitutional. This subsection shall not affect jurisdiction conferred upon the special masters by applicable law, which includes but is not limited to review of notices of violations of the City Code, and applicable building codes, land development regulations and fire codes.
The Staff Report for this item states that this section is added to clarify the jurisdiction of the Special Master, which is required due to recent challenges to Code Violations issued for violating certain administrative code interpretations.

However, after reviewing the Staff Report, the City's Code, Florida Statute 162, and other documents we conclude that this "clarification" will not achieve the objective.

The ordinance would not "clarify" the Special Master's jurisdiction, instead it would "indemnify" interpretations or actions by the Building Official, Planning Director, or Fire Marshall by creating "ambiguous powers of interpretation" which are then considered beyond reproach in Special Master hearings.

The ordinance reads: the special masters lack jurisdiction over "appeals from or challenges to interpretations or actions of the Building Official, Planning Director, and Fire Marshall."

To see how one property owner successfully challenged an interpretation of the Planning Director CLICK HERE.

If the City does not clarify "when" an interpretation or action by the Building Official, Planning Director, or Fire Marshall becomes enforceable as a Code, enforcement of an interpretation will still result in debate between the City Attorney and the person or his/her representative aggrieved by the Code Violation, at Special Master hearings.

The problem lies not with the Special Master's jurisdiction, but with the fact that administrative interpretations, subject to change, are not found in the Code, and thus the public is not afforded a reasonable opportunity to abide by them, or appeal them, prior to being issued a Code Violation. In some cases, the administrative interpretation might not even be written until after the Code Violation is issued.

However, in this proposed ordinance amendment, the origin of an interpretation is a moot subject. Once an administrative interpretation reaches the Special Master, the City Attorney will argue that a Special Master must abide by any administrative interpretation, regardless of its validity, under newly amended City Code Section 30-73. This "clarification of jurisdiction" ordinance thus grants broad "ambiguous powers of interpretation" to the Building Official, Planning Director, and Fire Marshall to create interpretations that could threaten your property rights. Thus, indemnifying the directors and employees.

For example, if persons, aggrieved by an adjudication of guilt, realize there was no violation of the Land Development Regulations, per se, when they hosted a foreign exchange student in their home for 3 months, and wish to challenge the Planning Director's interpretation, used to issue a Code Violation, the persons aggrieved would have to appeal to the Board of Adjustment.

Unfortunately, the same City Attorney that argued for adjudication of guilt in the Special Master hearing has the authority and obligation to determine whether or not the appeal will attach to the jurisdiction of the Board of Adjustment.

The ordinance, therefore, grants broad, unchecked, powers to the City Attorney to determine the authority of the Planning Director and his/her "ambiguous power of interpretation", now required to be enforced by the Special Master per City Code Section 30-73.

If the City Attorney wishes to block the appeal to the Board of Adjustment, to protect the Planning Director's interpretation, the City Attorney may block the appeal, and the person aggrieved by their adjudication of guilt will have to hire an attorney and appeal to a court of law in order to continue hosting the foreign exchange student.

The City Attorney's ability to approve or deny appeals to the Board of Adjustment is outlined in Section 118 of the Code.
Section 118-351 - Determination of Jurisdiction
All variance requests shall be submitted to the City Attorney for a determination of whether the requested variance or administrative appeal is properly before the Board of Adjustment and whether it constitutes a change or amendment to these land development regulations. The jurisdiction of the Board of Adjustment shall not attach unless and until the Board has before it a written opinion from the City Attorney that the subject matter of the request is properly before the Board. The written recommendations of the Planning and Zoning Director shall be before the Board prior to its consideration of any matter before it. Comments from other departments, including, but not limited to, the public works department and the planning, design and historic preservation division, shall be incorporated into these recommendations.
Therefore, we urge you to consider this ordinance very seriously and request the City seek further clarification regarding the Building Official, Planning Director, and Fire Marshall's "ambiguous powers" to interpret Code which are, hereafter, to be "rubberstamped" by the Special Master.

If this matter affects you directly, we urge you to contact your Attorney.

For more information about Code Enforcement and Property Rights Issues: CLICK HERE

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