RESOLUTION NO. 2006-02
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RESOLUTION 2006-1
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE BAREFOOT BAY RECREATION DISTRICT PROVIDING FOR A STATEMENT OF POLICY REQUIRING STRICT ADHERENCE TO THE MINIMUM REQUIREMENTS OF THE DEED OF RESTRICTIONS OF THE BAREFOOT BAY RECREATION DISTRICT; ACKNOWLEDGING AUTHORITY IN THE VIOLATIONS COMMITTEE OF THE BAREFOOT BAY RECREATION DISTRICT TO ENSURE STRICT ADHERENCE TO THE MINIMUM REQUIREMENTS OF THE DEED OF RESTRICTIONS OF THE BAREFOOT BAY RECREATION DISTRICT; PROVIDING FOR APPOINTMENT OF VIOLATIONS COMMITTEE MEMBERS; PROVIDING FOR TERM LIMITS OF VIOLATIONS COMMITTEE MEMBERS; PROVIDING FOR REMOVAL OF VIOLATIONS COMMITTEE MEMBERS; PROVIDING FOR A DEED OF RESTRICTION STAFF; ACKNOWLEDGING AUTHORITY TO THE VIOLATIONS COMMITTEE TO THE VIOLATIONS COMMITTEE TO ENFORCE THE MINUMUM REQUIREMENTS OF THE DEED OF RESTRICTIONS OF THE BAREFOOT BAY RECREATION DISTRICT TO BE ENFORCED BY THE VIOLATIONS COMMITTEE; ACKNOWLEDGING POWERS OF THE VIOLATIONS COMMITTEE; PROVIDING FOR ADMINISTRATIVE FINES, COSTS OF REPAIRS, AND LIENS; PROVIDING FOR AN APPEAL PROCESS; PROVIDING FOR A PROCESS TO PETITION FOR A REDUCTION OF FINES; PROVIDING FOR LEGAL COUNSEL TO THE VIOLATIONS COMMITTEE; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, the Barefoot Bay Recreation District is governed by the Amended and Restated Deed of Restrictions for Barefoot Bay (DOR) dated October 1, 1999, which sets forth various minimum requirements for each property within the Barefoot Bay Recreation District; and
WHEREAS, the Barefoot Bay Board of Trustees acknowledges the existence of the Code Enforcement Board and the Code Enforcement staff; and
WHEREAS, the Barefoot Bay Board of Trustees acknowledges that the Code Enforcement Board has operated as the Violations Committee and now desires the Code Enforcement Board to be known as the Violations Committee; and
WHEREAS, the Barefoot Bay Board of Trustees has used the Code Enforcement Board which has acted as the Violations Committee to enforce the minimum requirements of the DOR; and
WHEREAS, the Barefoot Bay Board of Trustees acknowledges that the Code Enforcement staff conducts inspections of properties to report violations to the Code Enforcement Board which has acted as the Violations Committee; and
WHEREAS, the Code Enforcement Board, which has acted as the Violations Committee, has used Chapter 162 of the Florida Statutes as a guideline for enforcing the DOR on behalf of the Barefoot Bay Board of Trustees; and
WHEREAS, the Barefoot Bay Board of Trustees desires to provide definitions, jurisdiction and the organization of the Violations Committee; and
WHEREAS, Article III, Section 12 of the DOR provides for a Violations Committee to assist in the enforcement of the provisions of the DOR; and
WHEREAS, the DOR empowers the Violations Committee to bring apparent of alleged violations to the Barefoot Bay Board of Trustees; and
WHEREAS, the DOR empowers the Barefoot Bay Board of Trustees to determine for itself whether a violation exists and the appropriate remedy to correct any such violation; and
WHEREAS, the DOR grants broad authority to the Barefoot Bay Board of Trustees to enforce the provisions of the DOR; and
WHEREAS, the Barefoot Bay Board of Trustees desires to establish the specific provisions of the DOR that are to be enforced by the Violations Committee; and
WHEREAS, the Barefoot Bay Board of Trustees desires to provide guidelines to the Violations Committee when assessing administrative fines, costs of repairs and liens; and
WHEREAS, the Barefoot Bay Board of Trustees desires to provide an appeal process to allow homeowners to appeal a decision of the Violations Committee; and
WHEREAS, the Barefoot Bay Board of Trustees desires to provide a process to allow a homeowner whose property has come into compliance to petition for a reduction of a fine levied by the Violations Committee; and
WHEREAS, the Barefoot Bay Board of Trustees desires to provide for legal counsel to the Violations Committee; and
WHEREAS, the Barefoot Bay Board of Trustees desires to provide for liens of the Violations Committee to be co-equal and superior; and
WHEREAS, the Barefoot Bay Board of Trustees desires to provide for a conflict clause, severability clause, inclusion to the code of resolutions; clause and effective date of the Violations Committee.
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE BAREFOOT BAY RECREATION DISTRICT AS FOLLOWS:
Section 1: Intent
It is the intent of this resolution to promote, protect and improve the health, safety, and welfare of the citizens of Barefoot Bay Recreation District, by acknowledging authority in the Violations Committee to impost fines and other non-criminal penalties when there is a violation of any of the specified provisions of the DOR and to provide an equitable, expeditious, effective, fair and inexpensive method of enforcing said provisions of the DOR.
Section 2: Jurisdiciton
This resolution is enacted pursuant to the authority granted by Brevard County Ordinance 84-05 (the Charter of the Barefoot Bay Recreation District); Florida Statutes §418.30 et sec; and the DOR.
Section 3: The Violations Committee
(a) The Barefoot Bay Board of Trustees hereby acknowledges the authority granted by the DOR to the Violations Committee of the Barefoot Bay Recreation District and, in doing so, acknowledges that the Violation Committee acts as the representative of the Barefoot Bay Board of Trustees in enforcing the specified provisions of the DOR. The Violations Committee shall, on behalf of the Barefoot Bay Board of Trustees, determine if a violation of the specified provisions of the DOR exists.
(b) The Violations Committee shall comprise of seven members, and two alternate members to serve on the Violations Committee in the absence of the members.
(c) Members of the Violations Committee shall be residents of the Barefoot Bay Recreation District.
(d) The Barefoot Bay Board of shall appoint the members of the Violations Committee, and the appointments shall be made for a term of three years.
(e) The Barefoot Bay Board of Trustees may, at its own discretion, and at any time, reduce the number of members of the Violations Committee from seven to five. The Barefoot Bay Board of Trustees shall, in its own discretion, determine which Violations Committee members to remove.
(f) A member of the Violations Committee may be reappointed upon approval of the Barefoot Bay Board of Trustees. A member of the Violations Committee may serve a maximum of two consecutive terms.
(g) An appointment to fill any vacancy on the Violations Committee shall be for the remainder of the unexpired term of the office. If any member fails to attend three successive meetings, the Violations Committee shall immediately declare the member’s office vacant, and the Barefoot Bay Board of Trustees shall promptly fill such vacancy.
(h) The Violations Committee members may be suspended and/or removed for cause by the Barefoot Bay Board of Trustees. Cause shall include bus is not limited to, poor performance, negligence, inefficiency or inability to perform assigned duties, violations of the provisions of this instrument or of the DOR, misconduct, habitual drug use, or conviction of a crime.
(i) The Violations Committee members shall elect a Violations Committee Chair, who shall be a voting member, from among the members of the Violations Committee. The presence of four or more members shall constitute a quorum of any seven member Violations Committee, and the presence of three or more members shall constitute a quorum of any five member Violations Committee. Members shall serve without compensation, but may be reimbursed for such travel, mileage, and per diem expenses as may be authorized by the Barefoot Bay Board of Trustees, and Florida Law.
Section 4: DOR Enforcement Staff
(a) The DOR Enforcement staff (hereinafter “Staff”) shall be determined by the Barefoot Bay Board of Trustees.
(b) It shall be the duty of the Staff to initiate enforcement proceedings of the provisions of the DOR. No member of the Violations Committee may initiate such enforcement proceedings.
(c) If a violation of a provision of the DOR is found, the Staff shall notify the violator and give him or her a reasonable time to correct the violation, not to exceed 180 days. Should the violation continue beyond the time specified for correction, the Staff shall notify the Violations Committee and request a hearing. The Violations Committee shall schedule a hearing, and written notice of such hearing shall be provided to the violator. Mailing such notice to the address of the record title owner of the property as determined by the Brevard County property appraiser’s records is prima facie evidence of delivery of such notice. At the option of the Violations Committee notice may be served by publication or posting the property in violation. The case may be presented to the Violations Committee even if the violation has been corrected prior to the Violations Committee hearing, and the notice shall so state.
(d) If a repeat violation of the DOR is found, the Staff shall notify the violator, but is not required to give the violator a reasonable time to correct the violation. A repeat violation shall be a violation of a specific provision of the DOR by the same property owner previously found in violation of the same provision of the DOR by the Violations Committee. The Staff, upon notifying the violator of the repeat violation, shall notify the Violations Committee and request a hearing. The Violations Committee shall schedule a hearing and shall provide notice of the hearing to the violator, the notice being effectuated by any of the processes described above. The case may be presented to the Violations Committee even if the repeat violation has been corrected prior to the hearing, and the notice shall so state. If the repeat violation has been corrected, the Violations Committee retains the right to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator.
(e) If the Staff has reason to believe a violation of the DOR or the condition causing the violation of the DOR presents a serious threat to the public health, safety, and welfare or if the violation is irreparable or irreversible in nature, the Staff shall make a reasonable effort to notify the violator and may immediately notify the Violations Committee and request a hearing.
Section 5: Provisions of the DOR that are to be enforced by the Violations Committee
The provisions of the DOR that are to be enforced by the Violations Committee are ARTICLE II, ARCHITECTURAL REVIEW AND CONTROL and ARTICLE III, RESTRICTIONS ON USE OF LOTS. The enforcement procedures contained herein are in addition to any legal or equitable remedy provided for in the DOR.
Section 6: Powers of the Violations Committee
The Violations Committee shall have the power to:
· Adopt rules for the conduct of its hearing.
· Subpoena alleged violators and witnesses to its hearings.
· Subpoena evidence to its hearings.
· Take testimony under oath.
· Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance with the minimum requirements of the DOR.
Section 7: Administrative Fines; Costs of Repair; Liens
(a) The Violations Committee, may order a violator to pay a fine for each day that a violation continues beyond the date set by the Violations Committee for compliance or, in the case of a repeat violation, as defined above, for each day the repeat violation, as defined above, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the Staff. In addition, if the violation or the condition causing the violation presents a serious threat to the public health, safety, and welfare of if the violation is irreparable or irreversible in nature, the Violations Committee shall notify the Barefoot Bay Board of Trustees, which may make all reasonable repairs to bring the property into compliance with the DOR, and charge the violator with the reasonable costs of the repairs along with the fine imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the Barefoot Bay Recreation District to make further repairs or to maintain the property, and does not create any liability against the Barefoot Bay Recreation District for any 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 an order imposing the fine.
(b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first violation and shall not exceed $500.00 per day for a repeat violation, and, in addition, may include all costs of repairs.
(c) In determining the amounts of the fine, if any, the Violations Committee shall consider the following factors:
· The gravity of the violation;
· Any actions taken by the violator to correct the violation; and
· Any previous violations committed by the violator.
(d) A certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists. A fine imposed pursuant to this part shall continue to accrue until the violator comes into compliance.
Section 8: Liens
(a) A lien arising from a fine imposed by the Violations Committee runs in favor of the Barefoot Bay Recreation District, and the Barefoot Bay Recreation District may execute a satisfaction or release of lien.
(b) Liens created pursuant to an order of the Violations Committee and recorded in the public records shall remain liens co-equal with the liens of all state, county, district and municipal taxes, superior in dignity to all other liens, titles and claims, until paid, and shall bare interest annually at a rate not to exceed the legal rate allowed for such liens and may be foreclosed pursuant to the procedures set forth herein and in Chapter 713 of the Florida Statutes.
(c) After three months from the filing of any such lien which remains unpaid, the Barefoot Bay Recreation District may authorize the attorney of the Barefoot Bay Recreation District to foreclose on the lien or to sue to recover a money judgment for the amount of the lien, plus accrued interest.
(d) In an action to foreclose on a lien or for a money judgment, the Barefoot Bay Recreation District is entitled to recover all costs, including a reasonable attorney’s fee that it incurs in the action. The Barefoot Bay Recreation District shall be entitled to collect all costs incurred in recording and satisfying a valid lien.
Section 9: Appeal
(a) A property owner, who has been found to be in violation of the minimum requirements of the DOR by the Violations Committee, may appeal an order of the Violations Committee to the Barefoot Bay Board of Trustees.
(b) Such an appeal shall not be a hearing de novo, but shall be limited to review of the record created before the Violations Committee.
(c) Such an appeal shall be filed within thirty days of the execution of the order to be appealed. The appeal shall be submitted in writing to the Barefoot Bay Board of Trustees.
(d) The Barefoot Bay Board of Trustees shall limit their decision on the appeal to the record created before the Violations Committee.
Section 10: Petition for Reduction of Fine
(a) Any property owner whose property has been found to be in violation of the minimum requirements of the DOR by the Violations Committee, has been assessed a fine by the Violations Committee, and whose property is now in compliance with the minimum requirements of the DOR may petition the Barefoot Bay Board of Trustees for a reduction of the amount of the fine assessed by the Violations Committee.
(b) A petition for a reduction of a fine is not an appeal, and by filing a petition for a reduction of a fine, the property owner acknowledges that their property was in violation of the minimum requirements of the DOR.
(c) A petition for reduction of a fine must be filed in writing to the Barefoot Bay Board of Trustees no later than ninety days after the property has come into compliance with the DOR as determined by an order of compliance issued by the DOR Enforcement Staff.
(d) As of the date of adoption of this resolution, a property owner having a case pending prior to the adoption of this resolution shall have thirty days to petition the Barefoot Bay Board of Trustees for a reduction in fine, providing, however, that their property is in compliance with the minimum requirements of the DOR on the date of the passing of this resolution.
Section 11: Legal Counsel
The Violations Committee shall appoint an attorney who is a practicing member of the Florida Bar, either residing or practicing member of the Florida Bar, either residing or practicing in Brevard County, to represent the Violations Committee when required. The attorney shall be compensated as provided by the Barefoot Bay Board of Trustees. In no case, however, shall the attorney for the Violations Committee be the same attorney as the attorney for the Barefoot Bay Board of Trustees, or be associated in any way with the attorney for the Barefoot Bay Board of Trustees.
Section 12: Enforcement Action
(a) The Barefoot Bay Board of Trustees may, in its discretion, turn over a case to its attorney to take action necessary to bring the property into compliance with the minimum requirements of the DOR.
(b) Properties that are not in compliance with the minimum requirements of the DOR shall not be turned over to the attorney’s office for further action prior to forty-five days after fines have started accumulating on such property. Once the attorney for the Barefoot Bay Recreation District has been engaged to take further action on behalf of the Barefoot Bay Recreation District to bring the property into compliance with the minimum requirements of the DOR, the property owner shall be liable to the Barefoot Bay Recreation District for all costs and expenses incurred by the Barefoot Bay Recreation District associated with employment of the attorney, including all legal fees, whether suit be brought or not. If it becomes necessary for the Barefoot Bay Recreation District to file suit to bring the property into compliance with the minimum requirements of the DOR, the Barefoot Bay Recreation District shall be entitled to an award of attorney’s fees and court costs incident to such action.
(c) The Barefoot Bay Board of Trustees may, in its discretion, turn cases over to the attorney whose properties are in compliance with the minimum requirements of the DOR, but with outstanding fines, and instruct the attorney to collect said fines. Once the attorney for the Barefoot Bay Recreation District has been engaged to collect said fines, the property owner shall be liable to the Barefoot Bay Recreation District for all costs and expenses incurred by the Barefoot Bay Recreation District associated with employment of the attorney, including all legal fees, whether suit be brought or not. If it becomes necessary for the Barefoot Bay Recreation District shall be entitled to an award of attorney’s fees and court costs incident to such action.
Section 13: Finance Disclosure; Conflict of Interest
The following provisions shall apply to the members of the Violations Committee:
(a) If a member of the Violations Committee has a conflict of interest with regard to an alleged violation, that member of the Violations Committee shall not participate in voting on the matter. A conflict of interest may be, but is not limited to, any measure that may cause the Violations Committee member, or any family member or business associate of the Violations Committee member, or any corporate entity that the Violations Committee member is associated with, any special private gain or loss.
(b) No Violations Committee member shall communicate with any respondent outside of a hearing concerning a violation. This restriction shall extend to any person appearing or interceding on behalf of a respondent, whether or not such person may have a direct personal or financial interest in the property involved in the alleged violation.
(c) Violation on the part of a member of the Violations Committee of the provisions of this section may result in immediate removal of such member from the Violations Committee by the Barefoot Bay Board of Trustees.
Section 14: Conflict with other Provisions
All resolutions or parts of resolutions in conflict herewith are hereby repealed and all resolutions or parts of resolutions not in conflict herewith are hereby continued in full force and effect
Section 15: Part of the Code of Resolutions
It is the intention of the Barefoot Bay Board of Trustees that the provisions of this resolution shall be made a part of the Barefoot Bay Code of Resolutions and the sections may be renumbered to accomplish such intentions.
Section 16: Severability
If any portion, clause, phrase, sentence or classification of this resolution is held or declared to be either unconstitutional, invalid, inapplicable, inoperative or void, then such declaration shall not be construed to affect other portions of the resolution; it is hereby declared to be the express opinion of the Barefoot Bay Board of Trustees that any such unconstitutional, invalid, inapplicable, inoperative or void portion or portions of this resolution did not induce its passage, and that without the inclusion of any such portion or portions of this resolution, the Trustees would have enacted the valid constitutional portions thereof.
Section 17: Effective Date
This resolution shall take effect immediately upon its enactment.
The foregoing resolution was moved for adoption by Trustee Bolon. The motion was seconded by Trustee Howard and, upon being put to a vote, that vote was as follows:
Chairperson Wilma Weglein Absent
1st Vice Chair Harry Bailey Yes
2nd Vice Chair John R. Smith Yes
Secretary Sue McCahan Yes
Treasurer Michelle Donahue Yes
Trustee Bruce Bolon Yes
Trustee Claudia Howard Yes
Trustee John Keegan Yes
Trustee Bob Carillion Yes
The acting Chariman thereupon declared this resolution duly passed and adopted this 28th day of June, 2006.
PHONE: (772) 664-3141
FAX: (772) 664-1928