§ 9-328. Hearings.

(a)

Upon receipt of a timely filed written request for a hearing to contest the citation, the building official shall set the matter for hearing within sixty (60) days of receipt of such request.

(b)

The BCBAA shall conduct the hearing pursuant to requirements of sections 162.07 and 162.08, Florida Statutes.

(c)

If the person cited, or his or her designated representative, shows that the citation is invalid or that the violation has been corrected prior to appearing before the BCBAA, the BCBAA may dismiss the citation unless the violation is irreparable or irreversible.

(d)

Upon receipt of such request for hearing, the county through the building official or his designee shall serve a notice of hearing to the alleged violator, which notice shall include, but not be limited to, the following:

(1)

Place, date and time of the hearing;

(2)

Right of alleged violator to be represented by an attorney;

(3)

Right of alleged violator to present witnesses and evidence and conduct cross examination; and

(4)

A conspicuous statement reflecting the requirements of F.S. ch. 286 that a person deciding to appeal any decision of the BCBAA will need to ensure that a verbatim record of the proceedings is made.

(e)

No hearing shall be scheduled on a date sooner than ten (10) days from the date of service of the citation on the alleged violator unless there is reason to believe that a violation presents a serious threat to the public health, safety and welfare. All hearings shall be administratively scheduled by the building official.

(f)

All hearings shall be open to the public. All testimony shall be under oath, and the proceedings shall be recorded.

(g)

Each case shall be presented by the building official or his designee. The building official may choose, but is not hereby limited, to designate a member of his staff or a member of the county attorney's office as his designee.

(h)

Formal rules of evidence shall not apply, but fundamental principles of due process shall be observed and govern the proceedings. All 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 State of Florida court.

(i)

Each party shall have the right to call and examine witnesses, to introduce exhibits, and to cross examine opposing witnesses on any relevant matter, as determined by the BCBAA.

(j)

Lack of a state certificate or state certification may be established by confirming with the State of Florida, Department of Business and Professional Regulation, that the named violator does not hold a state certificate/certification. An affidavit from the building official, or his designee, that he or she contacted the State of Florida, Department of Business and Professional Regulation, and confirmed no record of certification exists for the named violator shall be admissible into evidence and sufficient to establish the presumption that the alleged violator is not a state-certified contractor. The alleged violator has the right to present evidence to overcome this presumption.

(k)

Lack of a county certificate or county certification may be established by confirming with the building official or his designee that the named violator does not hold a county certificate/certification. An affidavit of the building official or his designee that he or she has reviewed the records of the Orange County division of building safety and confirmed that no record of county certification exists for the alleged violator shall be admissible into evidence and sufficient to establish the presumption that the alleged violator is not a county certified contractor. The alleged violator has the right to present evidence to overcome this presumption.

(l)

The BCBAA shall make findings of fact based on evidence presented. In order to make a finding affirming the code enforcement officer's decision to issue the citation, the BCBAA must find by a preponderance of the evidence that the alleged violator was responsible for the violation of the relevant code provision as cited. The BCBAA shall render a written decision on the citation appeal within thirty (30) days after the hearing concludes.

(m)

If the alleged violator is found guilty of the violation and the appropriate penalty, the violator may also be held liable for the reasonable costs of the hearing, at the discretion of the BCBAA.

(n)

If the BCBAA finds that a violation exists, the violator may be ordered to pay a civil penalty of not less than the amount set forth on the citation, but not more than five hundred dollars ($500.00) per day for each violation. In determining the amount of the civil penalty, the BCBAA shall consider the gravity of the violation, any actions taken by the violator to correct the violation and any previous violations committed by the violator.

(o)

The BCBAA shall have the power to:

(1)

Take testimony under oath;

(2)

Adopt rules for the conduct of his hearings;

(3)

Subpoena witnesses and evidence to the hearings;

(4)

Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance;

(5)

Determine whether cited violations occurred;

(6)

Determine whether a reasonable time period for compliance was given;

(7)

Assess and order the payment of civil penalties and administrative costs as provided under this article;

(8)

Impose liens as provided herein.

(Ord No. 95-7, § 8, 4-25-95; Ord. No. 2001-26, § 1.RR., 12-18-01; Ord. No. 2005-13 , § 1(V, HH), 10-4-05; Ord. No. 2013-06 , § 1(E), 3-12-13)