§ 2-110. Conduct of special magistrate and appellate special magistrate hearings.

(a)

Frequency of hearings: The special magistrate shall hold at least one code enforcement hearing per month. Any meeting of a special magistrate may be called at the request of the special magistrate or the director of the code enforcement division. The appellate special magistrates shall hold hearings only upon the filing of a notice of appeal by either party as provided for in section 2-111 herein.

(b)

Notice: Upon scheduling of a hearing before the special magistrate or the appellate special magistrate, the Division shall cause written notice to be delivered to the alleged violator as prescribed in section 2-109 herein.

(c)

Burden of proof: At the initial hearing, the burden of proof shall be upon the Division to show by a preponderance of the evidence that a violation exists. At hearings subsequent to the initial hearing, the burden of proof shall be upon the moving party and all allegations should be proven by a preponderance of the evidence.

(d)

Hearings in the absence of the violator: Provided that proper notice of a hearing has been served upon the alleged violator, a hearing may proceed in the absence of the alleged violator.

(e)

Representation of violator: The alleged violator may be represented by counsel or any other person at any hearing.

(1)

Representation by an attorney. If the violator is represented by counsel authorized to practice law in the State of Florida, then that attorney shall file a notice of appearance with the magistrates' clerical staff and send a copy to the code enforcement division.

(2)

Representation by an individual who is not an attorney. If the violator is represented at any hearing by someone other than a Florida-licensed attorney, then the alleged violator must prepare a notarized statement that authorizes such person to speak as a representative, file the statement with the magistrates' clerical staff, and send a copy to the code enforcement division. If the statement is not received by the magistrates' clerical staff prior to the hearing, the hearing will continue as if the violator is not present or represented. By providing a notarized statement, the violator understands and agrees that the representative shall have the authority to agree that a violation exists, to agree to the imposition of a fine or lien upon the violator's property, and to bind the violator to remedy a violation. If an alleged violator provides written authorization for a representative, the violator cannot later assert or complain that the representative acted without authority, nor can the violator contest the representative's actions.

(f)

Presentation to a magistrate: The parties shall be permitted to present brief opening and closing statements. All testimony shall be under oath and shall be recorded. The magistrate shall take testimony from the code enforcement officer, the alleged violator and any other witnesses either party may call. The parties, the authorized representatives of the parties, the magistrate, and a member of the county attorney's office may be permitted to inquire of any witnesses.

(g)

Submission of evidence: The parties may submit evidence to the magistrate. Formal rules of evidence shall not apply; however, fundamental due process shall be observed and shall govern all proceedings. Irrelevant, immaterial, or unduly repetitious evidence shall 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.

(h)

Magistrate's determination: At the conclusion of the hearing, the special magistrate shall issue findings of fact, based on evidence of record and conclusions of law, and shall issue an order based upon such findings. The order may include a specified date by which the violator must comply and that a fine may be imposed. Notwithstanding that a fine or lien has been imposed, the Division may seek additional relief against a violator who has failed to comply with a magistrate's order. A magistrate may issue any order giving relief that would bring about compliance, which may include the county's authorization to remedy the violations on the violator's behalf regardless of whether the violation creates a public nuisance.

(i)

Magistrate's order: The costs of remedying violations on a violator's behalf shall be included along with the fine if the violator fails to correct the violations as ordered. The order must include a statement that any person aggrieved by the order who was a party below may appeal in accordance with section 2-111 of this division 5. A certified copy of such order may be recorded in the public records of Polk County and shall constitute notice to any subsequent purchasers, successors and assigns if the violation concerns real property. The findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers, successors and assigns. If an order is recorded in the public records pursuant to this section and the order is complied with by the date specified in the order, the special magistrate 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.

(j)

Costs of prosecution. If the county prevails in prosecuting a case before a special magistrate, the county shall be entitled to recover all costs incurred in prosecuting the case, including without limitation, all vendor, administrative, and operating costs, and such costs shall be included in the lien authorized under this division.

(1)

In those instances where the violation is not corrected by the time specified for correction by the code inspector, the county shall be entitled to recover all costs incurred in prosecuting the case, including without limitation, all vendor, administrative, and operating costs, and such costs shall be included in the lien authorized under this division.

(2)

In those instances where the violation is corrected and them recurs within five (5) years on any property owned or occupied by the alleged violator, the county shall be entitled to recover all costs reasonably and necessarily incurred by the county for the original violation and recurrence of the violation, including without limitation, all vendor, administrative, and operating costs, and such costs shall be imposed against the violator at a hearing in which notice has been sent to the violator even if the violation is corrected prior to the hearing and such costs shall be included in the lien authorized under this division.

(k)

Violation of a special magistrate's cease and desist order. It shall be a violation of this division, punishable in accordance with Section 125.69, Florida Statutes, for any person to violate a cease and desist order issued by a special magistrate or appellate special magistrate. Any person who has been sent such order by regular mail, has been given a copy of such order by hand delivery from a code inspector, law enforcement officer, or certified process server, or is on property posted with a copy of the order shall be deemed to have knowledge of such order and subject to prosecution of violation of this division in accordance with Section 125.69, Florida Statutes. A violation of this subsection shall be considered a violation of county ordinance and shall be prosecuted in the same manner as misdemeanors are prosecuted in accordance with Section 125.69, Florida Statutes.

(Ord. No. 07-058, § 10, 9-25-07; Ord. No. 14-007, §§ 2, 3, 2-4-14)