ORDINANCE NO. 09- NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF POLK COUNTY, FLORIDA, THAT:

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1 ORDINANCE NO. 09- AN ORDINANCE AMENDING POLK COUNTY ORDINANCE 04-07, BY PROVIDING FOR AN AMENDMENT TO SECTION 8 TO PROVIDE FOR ENFORCEMENT THROUGH THE POLK COUNTY CODE ENFORCEMENT SPECIAL MAGISTRATE; PROVIDING FOR AN AMENDMENT TO SECTION 9 TO PROVIDE FOR PENALTIES AND A METHOD TO ADDRESS VIOLATIONS THAT ARE IRREPARABLE OR IRREVERSIBLE IN NATURE; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Polk County, by and through its Board of County Commissioners, wishes to enforce violations of Polk County Ordinance through the Polk County Code Enforcement Special Magistrate; and WHEREAS, this Ordinance is intended to provide an equitable, expeditious, effective and inexpensive method of enforcing the County s police powers regarding violations of Polk County Ordinance 04-07; and WHEREAS, the Polk County Board of County Commissioners expressly finds that broken irrigation systems and/or pipes or water system malfunction that continuously disperses a high volume of water are irreparable or irreversible in nature, which in addition to contributing to the waste of a large quantity of water, such violations if not expeditiously corrected by the violator may substantially increase the amount of the account holders utility bill; and WHEREAS, the Polk County Board of County Commissioners intend to provide an equitable, expeditious, effective, and inexpensive method of mitigating the damages caused to Polk County and the general public from violations that cause a gross water waste that are irreparable or irreversible in nature. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF POLK COUNTY, FLORIDA, THAT: Section 1. Section 8 Polk County Ordinance is hereby amended to read as follows: SECTION 8: ENFORCEMENT (A) The provisions of this Ordinance, and the rules and regulations adopted herein shall be investigated and enforced by every police, sheriff or code enforcement officer having jurisdiction in the area governed by this Ordinance. In addition, the County Manager may also delegate enforcement responsibility for this Ordinance to agencies and departments of Polk County government, or cities in the service 1

2 areas governed by this Ordinance, in accordance with state and local law. Polk County Sheriff Deputies are also designated as code enforcement officers for purposes of enforcing provisions of this Ordinance. (B) If upon personal investigation, a code enforcement officer finds a violation of this Ordinance, the code enforcement officer shall issue a notice of violation to the person who causes the violation. Unless the code enforcement officer personally witnesses a person violating this Ordinance, the person who is listed as the account holder on the utility account shall be considered the violator of this Ordinance as the entity that controls the use of water resources on that property; or if the water is supplied by a private well system or other water service, then the property owner shall be considered the violator for the same reasons. The notice of violation shall be sent to the address that appears on the utility account. If no address appears on the utility account or if the water is supplied by a private well system or other water service, then the notice of violation shall be sent to the address on record with the Polk County Property Appraiser s Office. (C) All notices of violation shall include, (1).the name(s) of the violator which may be referred to as respondent in the notice of violation; (2).the nature of the violation with reference to the section of this Ordinance; (3). the date and time the violation was observed; (4).the date the notice of violation was mailed; (5).the address or parcel ID of the property upon which the violation was observed; (6).the amount of the fine; (7).a conspicuous statement that the violator has 30 days from the date in which the notice of violation was mailed, to either pay the stated fine or file a written request for hearing with the Polk County Code Enforcement Special Magistrate, such statement shall include the contact information for requesting a hearing or paying the stated fine. If such date falls on a Saturday, Sunday or County Holiday, then the individual shall have until the end of the next business day which is neither a Saturday, Sunday, or County Holiday to request a hearing or pay the stated fine. 2

3 Payment of the fine or request for hearing to contest the citation shall be sent to the Polk County Utilities Technical Services Division Attn: Water Resource Enforcement Program unless another department or division is later delegated by the County Manager to receive payment of fines or request for hearings. A person who fails to pay the civil penalty or file a written request for hearing with the Polk County Code Enforcement Special Magistrate within 30 days from the date that the notice of violation was mailed, shall be deemed to have waived the right to contest the citation. (8).a statement that if a hearing is requested by the violator and the Polk County Code Enforcement Special Magistrate finds that a violation existed as stated in the notice of violation, the Code Enforcement Special Magistrate shall impose a fine in the amount stated on the notice of violation plus the County s costs of prosecuting the violation and authorize the County to record the order imposing the fine in public records if the amount owed is not paid within thirty days of the date of the order. If the County records a certified copy of the order in public records, pursuant to Section , Florida Statutes, the lien shall constitute a lien against the land which the violation existed and upon any other real or personal property owned by the violator. (D) Upon failure of a person to pay the fine or request a hearing with the Polk County Code Enforcement Special Magistrate within the time allowed, the Polk County Code Enforcement Special Magistrate after the violator has received notice of a hearing may impose the fine stated in the notice of violation. Pursuant to Section , Florida Statutes, a certified copy of the order imposing the fine may be recorded in the public records and thereafter shall constitute a lien against the land which the violation existed and upon any other real or personal property owned by the violator. (E) Upon receiving a request for hearing, the Polk County Utilities Technical Services Division, Water Resources Enforcement or other division or department delegated by the County Manager to receive request for hearings, the department receiving the request shall coordinate with the Polk County Code Enforcement Special Magistrate Office to set a hearing for the notice of violation. The violator shall be given notice of the hearing. (F) Unless otherwise stated, all notices of violations and hearings pursuant to this Ordinance shall first be attempted by certified mail. If the certified mailing is returned unsigned, then a notice of violation shall be posted in two locations, one of which shall be the property upon which 3

4 the violation is alleged to exist and the other of which shall be posted on the first floor of the Polk County Administrative Building. 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. Evidence that an attempt has been made to mail the notice as provided herein, together with proof of posting, shall be sufficient to show that notice requirements have been met, without regard to whether or not the violator actually received such notice. (G) Nothing contained herein shall prohibit the County from enforcing the provisions of this Ordinance through any other civil proceeding including without limitations seeking injunctive relief in the circuit court. SECTION 2: Section 9 of Polk County Ordinance No is hereby amended to read as follows: SECTION 9: PENALTIES AND VIOLATIONS THAT ARE IRREPARABLE AND IRREVERSIBLE IN NATURE (A) Violation of any provision of this Ordinance shall be subject to the following penalties: (1).First violation of this ordinance by a person shall be a fine of $50. (2).Second violation of this ordinance by a person shall be a fine of $200. (3).Third and subsequent violations of this ordinance by a person shall be a fine of $500 (4).A gross water waste violation that is irreparable or irreversible in nature by a person shall be a fine up to $5,000. (B) Gross water waste violations that are irreparable or irreversible in nature which shall include without limitations, a broken irrigation system and/or water pipe that allows water to flow from a broken sprinkler head, outdoor faucet, or other malfunctioning plumbing or irrigation system component or other water system malfunction that continuously disperses a high quantity of water shall be subject to the following provisions: (1).Upon discovery of a violation that is a gross water waste that is irreparable or irreversible in nature, a code enforcement officer in addition to sending a notice of violation pursuant Section 8 of this Ordinance shall: 4

5 (a) attach a notice of violation onto a florescent colored placard placed in a conspicuous location on the property subject to the violation; (b) place a notice of violation onto the door of the residence, (c) attempt to make contact with a resident of the property at the time violation is observed; and (d) attempt to contact the person at the phone number on record with the utilities account. (2).All notices for violations of a gross water waste that is irreparable or irreversible in nature shall include: (a) in addition to the requirements of Paragraph 8(C), a conspicuous statement that the property contains a gross water waste violation that is irreparable or irreversible in nature and if the violator does not contact the County within twenty-four (24) hours at the phone number provided on the notice of violation, that the water to the property will be turned off until the County is contacted by the violator in order to avoid further gross water waste that is irreparable or irreversible in nature; and (b) if the County is contacted by the violator and violator requests that the water remain on or to be turned back on without the violation being corrected, the County shall not turn the water off or if the water has been turned off, the County shall turn the water back on, and a code enforcement officer may immediately request a hearing with the Code Enforcement Special Magistrate for the purpose of finding that the violation is a gross water waste that is irreparable or irreversible in nature. If the Code Enforcement Special Magistrate finds that the violation is a gross water waste that is irreparable or irreversible in nature, the Code Enforcement Special Magistrate may impose a fine not to exceed $5,000. In addition to imposing a fine, the Code Enforcement Special Magistrate pursuant to Section , Florida Statutes may issue an order having the force of law to command whatever steps are necessary to bring a violation into compliance. If the violator corrects the violation prior to a hearing being scheduled pursuant to this section, the fine for the violation shall be the applicable fine for a first, second, or third and subsequent violation. 5

6 (C) A subsequent violation of this Ordinance shall not be written within three days of a prior notice of violation being mailed to the violator (D) If a person has not violated the provision of this Ordinance for twelve (12) consecutive months from the date of the previous violation, the next violation shall be considered that person s first violation. (E) When a water shortage declaration is not in effect, and during the initial stages of a Water Shortage or Water Shortage Emergency, enforcement officials may provide violator with one written warning. Section 3. Severability If any provision or application of this Ordinance is for any reason held invalid, such invalidity shall not affect the remaining provisions of this Ordinance which can be given effect without the invalid provision or application and, to this end the provisions of this Ordinance are declared severable. Section 4. Effective Date This Ordinance shall become effective on August 1,