§ 20-176.127. Conduct of hearings.

(a)

The Consumer Protection Board shall adopt rules for the conduct of its hearings pursuant to Chapter 20 of the Broward County Code of Ordinances. All hearings and proceedings shall be open to the public, and minutes shall be kept. All testimony shall be taken under oath and shall be recorded.

(b)

Assignment of Hearing Panel.

(1)

All hearing panels under this Ordinance shall be composed of three (3) members of the Consumer Protection Board and such composition shall be assigned on a random basis based upon the rules adopted by the Consumer Protection Board, so that the work involved in hearing public nuisance abatement matters is fairly and equitably distributed among the members of the Consumer Protection Board.

(2)

The Consumer Protection Administrator's duties pursuant to this Ordinance are ministerial only. Therefore, the Consumer Protection Administrator shall not have any power or discretion in determining the members of the Consumer Protection Board to whom any administrative hearing is assigned, except that the Consumer Protection Board may authorize the Consumer Protection Administrator to assign members to serve on a hearing panel to avoid a conflict of interest or in the event an assigned member is unavailable.

(c)

Hearing panels shall proceed to hear complaints on the agenda for the day scheduled for the public hearings. Before the hearing panel may hear a complaint, the hearing panel must make a finding that the notice requirements as set forth in Section 20-176.126 have been satisfied. In no case may the hearing panel proceed to hear any complaint unless the notice requirements set forth in Section 20-176.126 have been met. All complaints and any supporting evidence shall be presented to the hearing panel by the Division acting in its sole discretion and on behalf of the complainant.

(d)

Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. The hearing panel may consider any evidence, including evidence of the general reputation of the place or premises. 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.

(e)

Each party, with the Division acting on behalf of the complainant, shall have the following rights:

(1)

To call and examine witnesses;

(2)

To introduce documentary evidence, exhibits, or physical evidence;

(3)

To cross-examine opposing witnesses on any relevant matter;

(4)

To impeach any witness; and

(5)

To submit rebuttal evidence.

(f)

The owner of the place or premises in question may introduce evidence as to any remedial measure taken to ameliorate the conditions that led to the unlawful activity on the premises.

(g)

All findings of the hearing panel shall be based on a preponderance of evidence. The hearing panel shall not find that a place or premises is a public nuisance as defined herein unless the hearing panel has received a certified copy of the convictions for the activity that constitutes a public nuisance pursuant to Section 20-176.123, said activity having occurred at the place or premises that is subject of the complaint. This shall be the minimum basis for such a finding. Notwithstanding receipt of a certified copy of the conviction for the activity that constitutes a public nuisance, the hearing panel may nevertheless rely on rebuttal evidence, impeachment evidence, or other factors to find that no unlawful activity took place or that no public nuisance was maintained. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support any finding unless it would be admissible in a civil action. The burden of proof shall be on the Division.

(h)

Recommended Orders.

(1)

At the conclusion of the hearing, the hearing panel shall issue a recommended order to the Consumer Protection Board. The hearing panel's recommended order shall include:

a.

The date, time, and place of the hearing;

b.

All appearances entered at the hearing; and

c.

Findings of fact and conclusions of law with respect to the issues addressed by the hearing panel.

(2)

If the hearing panel declares a place or premises to be a public nuisance pursuant to Section 20-176.123, it may enter a recommended order that, if adopted, would require the owner of such place or premises to adopt such procedure as may be appropriate under the circumstances to abate any such nuisance, or it may enter a recommended order that, if adopted, would immediately prohibit:

a.

The maintaining of the public nuisance;

b.

The operating or maintaining of the place or premises, including the closure of the place or premises or any part thereof; or

c.

The conduct, operation, or maintenance of any business or activity on the premises that is conducive to such nuisance.

(3)

The hearing panel, additionally, shall have the authority to recommend penalties for public nuisances, including fines not to exceed Two Hundred Fifty Dollars ($250.00) per day or Five Hundred Dollars ($500.00) per day for recurring public nuisances.

(4)

The hearing panel shall file its recommended order, together with a record of the hearing, with the Consumer Protection Administrator. A copy of the recommended order shall be served upon each of the parties. Upon the filing of the recommended order by the hearing panel, the hearing panel shall no longer have jurisdiction to rule on any matter related to the charge.

(5)

A recommended order of the hearing panel expires after one (1) year, or at such earlier time as may be provided in the recommended order.

(i)

Exceptions.

(1)

Any owner, operator, or occupant may file written exceptions in response to a recommended order that recommends a finding that the place or premises that is the subject of the complaint constitutes a public nuisance. Neither the Division nor the complainant may file an exception to a recommended order.

(2)

Exceptions shall be based solely on the record of the hearing and shall not include the presentation of any new evidence or testimony.

(3)

Exceptions shall be filed with the Consumer Protection Administrator no later than twenty-one (21) calendar days after the date of the filing of the recommended order with the Consumer Protection Administrator, unless written permission to take additional time is granted by the Chair of the Consumer Protection Board.

(4)

Where exceptions have been filed by an owner, operator, or occupant, the Division may file a written response to such exceptions no later than fourteen (14) calendar days after service of the exceptions, unless written permission to take additional time is granted by the Chair of the Consumer Protection Board.

(j)

Final Orders.

(1)

The Consumer Protection Board shall consider the recommended order of the hearing panel, written exceptions, and responses thereto, and by a majority vote determine whether to adopt the hearing panel's decision in whole, adopt a modified version, or decline to adopt the hearing panel's recommended order. In considering the hearing panel's recommended order, the Consumer Protection Board shall accept all factual determinations of the hearing panel that are supported by competent, substantial evidence in the record of the hearing and shall not substitute its judgment for that of the hearing panel as to the weight of the evidence on any disputed finding of fact. This proceeding shall not be a de novo review but shall instead be confined to the record of the hearing, the recommended order, written exceptions, and written responses thereto, if any. The Consumer Protection Board's determination shall be memorialized in a written decision that resolves all issues addressed by the hearing panel.

(2)

In addition to adopting recommended orders of the hearing panel, in whole or modified, orders adopted by the Consumer Protection Board may also provide for the payment of reasonable costs, including reasonable attorney's fees associated with investigations of and hearings on public nuisances; provide for the Consumer Protection Board's continuing jurisdiction for a period of one (1) year over any place or premises that has been or is declared to be a public nuisance; provide for the recording of orders on public nuisances so that notice is given to subsequent purchasers, successors in interest, or assigns of the real property that is the subject of such orders; provide for the recovery of all costs associated with the recording of orders; and provide that recorded public nuisance orders may become liens against the real property subject to such orders. The total fines imposed pursuant to the authority of this section shall not exceed Five Thousand Dollars ($5,000.00).

(3)

In adopting recommended orders of the hearing panel, in whole or modified, the Consumer Protection Board may also recommend to the governing board of the jurisdiction the foreclosure of real property that becomes subject to a lien as a result of being declared a public nuisance and the recovery of all costs, including reasonable attorney's fees, associated with the foreclosure.

(Ord. No. 2009-37, § 1, 6-23-09; Ord. No. 2018-35 , § 5, 9-13-18)