DESOTO COUNTY, FLORIDA ORDINANCE No. 2016- AN ORDINANCE OF DESOTO COUNTY, FLORIDA, AMENDING THE CODE OF ORDINANCES CHAPTER 5, LICENSING AND BUSINESS REGULATIONS; ADDING ARTICLE X. CERTIFICATE OF USE; ADDING SECTION 5.201 PURPOSE AND SCOPE; ADDING SECTION 5.202 CERTIFICATE OF USE REQUIRED; ADDING SECTION 5.203 EACH LOCATION; ADDING SECTION 5.204 EXISTING BUSINESSES, EFFECTIVE DATE; ADDING SECTION 5.205 TERM OF CERTIFICATE AND TRANSFER; ADDING SECTION 5.206 INSPECTIONS; ADDING SECTION 5.207 APPLICATION PROCEDURES; ADDING SECTION 5.208 CERTIFICATE ISSUED IN ERROR; ADDING SECTION 5.209 DISPLAY OF CERTIFICATE; ADDING SECTION 5.210 LOST OR STOLEN CERTIFICATE, ISSUANCE OF DUPLICATE; ADDING SECTION 5.211 ADMINISTRATION; ADDING SECTION 5.212 VIOLATIONS AND ENFORCEMENT; ADDING SECTION 5.213 REVOCATION OF CERTIFICATE; ADDING SECTION 5.214 RECORDS; AND PROVIDING FOR CODIFICATION, CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, Section 125.01, Florida Statutes, authorizes the Board of County Commissioners of DeSoto County, Florida, to exercise regulatory powers that are not inconsistent with general or special law; and WHEREAS, DeSoto County residents, visitors, consumers, and businesses would benefit by having a program in place to protect them from the harmful effects of illegal business operations; and WHEREAS, Section 163.3201, Florida Statues, provides it is the intent of this act that adopted comprehensive plans or elements thereof shall be implemented, in part, by the adoption and enforcement of appropriate local regulations on the development of lands and waters within an area; and WHEREAS, Section 163.3201, Florida Statues, also provides it is the intent of this act that the adoption and enforcement by a governing body of regulations for the development of land or the adoption and enforcement by a governing body of a land development code for an area shall be based on, be related to, and be a means of implementation for an adopted comprehensive plan as required by this act; and WHEREAS, DeSoto County implements its Comprehensive Plan in part by the adoption, maintenance, and enforcement of its Land Development Regulations; and WHEREAS, the DeSoto County Land Development Regulations provide for an Official Zoning District Atlas and zoning district regulations to ensure that only those land uses allowed within a particular zoning district are authorized to open and operate consistent with the Comprehensive Plan; and 1
WHEREAS, the DeSoto County would benefit by having a program in place for ensuring that only those land uses allowed within a particular zoning district are authorized to open and operate; and WHEREAS, this Ordinance adopting a certificate of use program provides for conformance with Section 163.3201, Florida Statues, by establishing an administrative process for ensuring that only those land uses allowed within a particular zoning district are authorized to open and operate; and WHEREAS, Subsection 468.604(1), Florida Statutes, provides it is the responsibility of the building code administrator or building official to administer, supervise, direct, enforce, or perform the permitting and inspection of construction, alteration, repair, remodeling, or demolition of structures and the installation of building systems within the boundaries of their governmental jurisdiction, when permitting is required, to ensure compliance with the Florida Building Code and any applicable local technical amendment to the Florida Building Code; and WHEREAS, Subsection 468.604(1), Florida Statutes, also provides the building code administrator or building official shall faithfully perform these responsibilities without interference from any person; and WHEREAS, DeSoto County would benefit by having a program in place that allows the building official and fire chief to inspect prior to occupancy a building, structure, or location (hereinafter referred to as the Premises) used for the purpose of exercising the privilege of doing business within DeSoto County in order to ensure conformance to the building code and life safety requirements; and WHEREAS, this Ordinance adopting a certificate of use program provides for conformance with Subsection 468.604(1), Florida Statues, by ensuring compliance with the building and fire codes through inspection of the Premises prior to its occupancy for the use allowed; and WHEREAS, at the November 3 rd, 2015 Planning Commission regular meeting, a draft Certificate of Use Ordinance was included on the agenda as a discussion item and the Planning Commission recommended Development Department staff move forward with adoption of such an Ordinance; and WHEREAS, to encourage citizen participation in the Ordinance adoption process, on January 13 th, 2016, the DeSoto County Development Department caused a copy of this Ordinance, the application forms, and the proposed Resolution to be placed in various locations on the County s website for public review and comments; and WHEREAS, the DeSoto County Chamber of Commerce Board of Directors considered this Ordinance at their regular January 13 th, 2016 meeting; and WHEREAS, the Economic Development Advisory Council considered this Ordinance at their regular January 15 th, 2016 meeting and unanimously recommended that the Board of County Commissioners adopt this Ordinance; and 2
WHEREAS, the Development Department compiled a list of all licensed real estate brokers and salespersons, sent those licensed persons on January 27 th, 2016 a letter inviting them to attend a meeting to provide input on the Ordinance, and said meeting was held at the DeSoto County Commission Chambers on February 10 th, 2016; and WHEREAS, on February 2 nd, 2016, the Development Department mailed to all local business tax receipt holders a letter informing them of the proposed Ordinance establishing a Certificate of Use program and the resolution setting the application and inspection fees; and WHEREAS, the proposed Ordinance was presented to the community during the Community Conversations forum held on February 22 nd at Kingsway Community Center, February 25 th at Turner Center Exhibit Hall, and February 29 th, 2016 at Fort Ogden Baptist Church; and WHEREAS, the Planning Commission formally heard the proposed Ordinance at their duly noticed public hearing held on March 1 st, 2016 and after considering the record, moved to forward the record to the Board of County Commissioners with a recommendation that the proposed Ordinance be adopted; and WHEREAS, on March 22 nd, 2016, and April 12 th, 2016, the DeSoto Board of County Commissioners (Board) held duly noticed public hearings on the Ordinance and determined that the Ordinance complies with the DeSoto County Comprehensive Plan, the Land Development Regulations and all other applicable regulations; and WHEREAS, the Board of County Commissioners of DeSoto County has determined that it is in the best interest of the public health, safety and welfare of the businesses, residents and visitors of unincorporated DeSoto County to enact this Ordinance providing for a certificate of use program. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF DESOTO COUNTY, FLORIDA: SECTION 1. Code of Ordinances Chapter 5, Licensing and Business Regulations, is hereby amended by adding Article X as set forth below. Chapter 5 LICENSING AND BUSINESS REGULATION Article X. Certificate Of Use. SECTION 2. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.201 as set forth below. Sec. 5.201. Purpose and scope. Article X is intended to protect the public safety and general welfare of DeSoto County s residents, visitors, consumers, and businesses, occupations, professions and trades (hereinafter collectively referred to as Business) from the harmful effects of illegal Business operations by establishing a certificate of use program, which program shall provide a review procedure to ensure that new Business occupancies and uses, 3
existing Businesses occupancies, expansions, and uses, and changes of existing Business occupancies and uses, comply with DeSoto County s Land Development Regulations, Code of Ordinances, building code and life safety requirements, and other applicable codes and regulations. SECTION 3. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.202 as set forth below. Sec. 5.202. Certificate of use required. No building, structure, or location (hereinafter referred to as Premises) used for the purpose of exercising the privilege of doing Business within DeSoto County shall be expanded in size, or used or occupied for any Business, without first obtaining from the Development Department a certificate of use pursuant to this Article. For purposes of this Article, Businesses identified in the Land Development Regulations, or any person leasing, subleasing, or assigning any Premises, shall be subject to the certificate of use program requirement, except for. Agencies of the State of Florida and the United States of America where agency personnel wholly perform the work; Bona fide agricultural activities; Leasing of a single-family dwelling unit or duplex. SECTION 4. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.203 as set forth below. Sec. 5.203. Each location. A separate certificate of use is required for each place of Business. It shall be the duty of every person owning, operating, or purchasing any Business within DeSoto County to comply with the requirements of this Article prior to opening any Business in any Premises within DeSoto County. SECTION 5. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.204 as set forth below. Sec. 5.204. Existing businesses; effective date. All existing Businesses requiring a certificate of use, which hold a valid local business tax receipt as May 2 nd, 2016, shall be considered to have an active certificate of use. In addition, all existing Businesses with an active certificate of use as of May 2 nd, 2016 are required to file prior to October 1, 2016 a certificate of use application at the same time that their local business tax is renewed but no application or inspection fee shall be required. Nothing contained in this Article shall prohibit the enforcement of this Article pursuant to Section 5.212 or the revocation of a certificate of use under Section 5.213 for existing Businesses which fail to make application within the time period as required herein and secure a certificate of use or which otherwise fail to comply with this Article. SECTION 6. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.205 as set forth below. Sec. 5.205. Term of certificate and transfer. 4
Validity. Once issued, a certificate of use shall remain valid until there is an expansion in the size or a change of the use, Business, Business ownership, Business name, or Business location from that specified on the approved certificate of use, or if the certificate is revoked. Notwithstanding, at the time the local business tax receipt is annually renewed, the certificate holder shall affirm that no change has taken place in the use, Business, Business ownership, Business name, or Business location, or size of the Business. Change. When there is an expansion or change of the use, Business, Business ownership, Business name, or Business location from that specified on the approved certificate of use, a new certificate of use application and fee shall be required. SECTION 7. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.206 as set forth below. Sec. 5.206. Inspections. Any person applying for or having obtained a certificate of use shall be subject to an inspection of the place of Business to ensure compliance with all zoning district regulations, life safety code requirements, and all applicable local and state laws and regulations. Notwithstanding, for a change in Business name or an expansion where there is no change in use, an inspection shall not be required. For the purpose of enforcing the provisions of this Article, inspectors designated by the County Administrator or designee, or the Development Director or designee, shall have the right of inspection, provided that said inspection shall be reasonable and scheduled at the convenience of the Applicant or certificate holder and the inspector. Failure to permit inspection of the Premises shall be grounds for denial of an application for a certificate of use or revocation of an existing certificate of use. SECTION 8. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.207 as set forth below. Sec. 5.207. Application procedures. Procedures for issuance. Within five (5) working days after receipt of a Certificate of Use application, the Development Director or designee shall either accept the application if it is complete, or reject the application if it is incomplete. If a notice indicating the application is incomplete is not sent to the applicant, within five (5) working days, then the application shall be deemed accepted for purposes of processing. If a notice of incompleteness is provided to the applicant, it must specify the data missing from the filed application. The Development Director or designee shall have ten (10) working days from receipt of a complete application issue or deny a Certificate of Use application. If the application is denied, the Development Director or designee must specify in writing the reasons why the application was denied. The Development Director or designee shall not issue or grant a certificate of use to any person to engage in any Business, profession, occupation, or trade unless: (1) A complete and fully executed application and all fees are filed with the Development Director or designee on forms provided for that purpose; 5
(2) There has been a site inspection of the Applicant's Business Premises and the Premises have passed all inspections; (3) The Development Director or designee has reviewed and confirmed the proposed use is allowed within the zoning district and all applicable development orders have been secured; and (4) The Development Director or designee has verified compliance with all applicable laws and regulations and all applicable fees, unpaid fines, liens, and penalties due to the DeSoto County have been satisfied. Notwithstanding the above, the Development Director shall issue of a certificate of use for a home occupation within one (1) working day of receipt of a completed application provided a home occupation affidavit has been executed and the application fee paid. Conditions and safeguards. The Development Director or designee is authorized to impose appropriate conditions on the issuance of a certificate of use in order to ensure conformance with the intent of this Article and to safeguard the public health, safety, and general welfare. Application and inspection fees. (1) The Development Department shall charge a certificate of use application fee and inspection fees in the amount prescribed from time to time by resolution of the Board of County Commissioners. All fees are to be paid by the Applicant at the time the certificate of use application is filed. If a certificate of occupancy or completion is required prior to the issuance of a certificate of use, then the inspection fees associated with the certificate of occupancy or completion must be paid but not the certificate of use inspection fees. (2) Unless otherwise provided, for each certificate of use obtained between October 1 st and March 31 st the full application fee amount shall be paid, and for certificate of use obtained from April 1 st to September 30 th, one-half (½) of the full application fee amount for one (1) year shall be paid. The full inspection fee shall be charged regardless of the time submitted but any re-inspection fee shall be for a lesser amount. (d) (e) (f) Legality of use. In the event there is a question as to the legality of a use, the Development Director or designee, as appropriate, may require affidavits and such other information s/he may deem appropriate or necessary to establish the legality of the use, before a certificate of use shall be issued. Obtaining a certificate of occupancy prior to issuance of certificate of use. All Businesses required to obtain a certificate of occupancy or completion must do so prior to the issuance of a certificate of use. State license, certification, registration required. All Businesses regulated by the state or federal government are required to submit a copy of all their current state or federal 6
license, certification, and/or registration prior to the issuance of a certificate of use. In addition, within thirty (30) days of the expiration of any state or federal license, certification, and/or registration, the certificate of use holder is required to provide to the Development Department a copy of the renewed license, certification, and/or registration. (g) Garbage collection verification. All Businesses are required to make provisions for garbage collection and shall provide evidence of such service. For a restaurant or other establishment with food waste, consistent with Chapter 64E-11, Florida Administrative Code on Food Hygiene, evidence an outdoor garbage area has a hose and bib with drain connected to a sanitary sewer system shall be provided. As a condition of approval, any existing restaurant or other establishment with a non-conforming outdoor garbage area is required to remediate the non-conformity within a reasonable period agreeable to the County and the proposed certificate holder or property owner. (h) Grounds for denial. The Development Director or designee, as appropriate, shall have the authority to deny an application for a certificate of use on the following grounds: (1) That the Applicant has failed to disclose or has misrepresented a material fact or any information required by this Article in the application; (2) That the Applicant desiring to engage in the Business as described in the application, has selected a proposed site or type of business activity, which does not comply with the County's Land Development Regulations; (3) That the Applicant has failed to obtain a certificate of occupancy or completion as required by this Article; (4) That the certificate of occupancy or completion for the proposed location has been denied, suspended or revoked for any reason; (5) The issuance of a certificate of use is based or conditioned on the Applicant's compliance with specific provisions of federal, state, or county ordinance, with respect to the specific use, and the Applicant has violated such specific provisions; (6) The Applicant has violated any provision of the Code of Ordinances or Land Development Regulations, and has failed or refused to cease or correct the violation within 30 days after a final adjudication thereof; (7) The Premises have been condemned by the local health authority for failure to meet sanitation standards or the Premises have been condemned by the local authority because the Premises are unsafe or unfit for human occupancy; (8) The Applicant is delinquent in the payment of the applicable certificate of use fee, or is delinquent on any code compliance lien, special assessment lien and/or any other debt, fee, or obligation due to DeSoto County; 7
(9) The Applicant failed to permit inspection by the County as required by Section 5.206. (g) Any person whose application has been denied as provided herein shall have the right to appeal pursuant to Land Development Regulations Section 12601. SECTION 9. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.208 as set forth below. Sec. 5.208. Certificate issued in error. A certificate of use issued in error shall not confer any rights to the person or entity in possession of the certificate of use, and upon a finding that a certificate of use has been so issued, it shall be considered null and void. No certificate of use shall be deemed or construed to authorize a violation of any provision of the Code of Ordinances or Land Development Regulations, and such certificate of use shall be deemed or construed to be valid only to the extent that the use, location, or other matters related to these Code of Ordinances or Land Development Regulations are lawful. Issuance of a certificate of use, in reliance upon the information presented during the application process, shall not prevent the Development Director from taking any of the following actions: (1) Require necessary corrections on the application documents; (2) Require the abatement of any violation of use of structure and/or property; and (3) Revoke, or otherwise withhold the certificate of use. SECTION 10. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.209 as set forth below. Sec. 5.209. Display of certificate. Each certificate of use issued by DeSoto County shall be displayed conspicuously at the place of Business and in such a manner as to be viewable to the public and subject to the inspection of all duly authorized officers of DeSoto County. Failure to display the certificate in the manner provided for in this section shall subject the owner/operator to applicable code compliance procedures and/or any other remedies as permitted by law. SECTION 11. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.210 as set forth below. Sec. 5.210. Lost or stolen certificate; issuance of duplicate. The Development Director or designee shall issue a duplicate certificate of use to replace any valid and duly issued certificate of use which has been lost, stolen, defaced or destroyed without any willful conduct 8
on the part of the certificate of use holder. A duplication fee shall be charged for each duplicate certificate of use. SECTION 12. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.211 as set forth below. Sec. 5.211. Administration. The Development Director or designee shall be responsible for the administration and enforcement of this Article, prevent violations or detect and secure their correction, and investigate promptly complaints of County Code violations, with such assistance as the County Administrator may direct. It shall be the duty of all employees of the County, and especially of all officers and inspectors of the Development Department, to report to the Development Director or designee any apparent violation. If any structure is erected, constructed, reconstructed, altered, repaired, or maintained, or any structure, land, or waterway is used in violation of any regulation herein contained, enforcement procedures shall be initiated before a special master as provided in Land Development Regulations Section 12800. SECTION 13. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.212 as set forth below. Sec. 5.212. Violations and enforcement. If the Development Director or designee shall find that any of the provisions of this Article or County Code are being violated, notification shall be made in writing to the owner of the property where the violation is occurring, indicating the nature of the violation and ordering action necessary to correct it. If the violation continues, the Development Director or designee may initiate enforcement procedures pursuant to Land Development Regulations Section 12800. The Development Director or designee, in addition to other remedies, may also institute any appropriate civil action or proceedings in the circuit court for Desoto County, to prevent any unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, and to restrain, correct, or abate such violation, to prevent the occupancy of said structure, land or waterway, and to prevent any illegal act, conduct of Business, or use in or about such Premises. Any person, firm or corporation violating or failing to comply with the requirements of this section may be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars ($500.00) or imprisonment for a term not exceeding sixty (60) days, or both such fine and imprisonment at the discretion of the court. 9
SECTION 14. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.213 as set forth below. Sec. 5.213. Certificate revocation. The Development Director or designee is authorized to deny or revoke a certificate of use for cause. The following constitute adequate grounds for the Development Director to deny or revoke a certificate of use: (1) The use or activity on the property is conducted without a business tax receipt or with an unpaid balance of business tax for the previous year. (2) The Applicant has obtained a certificate of use by misleading, and or deceptive information or by making false statements that were relied upon by the County in issuing the certificate of use. (3) Unless the violation is cured subsequent to being issued a certificate of use, the property owner was convicted of, or has pled guilty to, a state or federal law violation, or to a County ordinance violation, which violation occurred as a part of the main business use. (4) The Applicant is conducting a Business which is not in compliance with the County Code, County Land Development Regulations, state or federal law or regulation. (5) There is a pending judgment, order, injunction or decree entered by a court or tribunal of competent jurisdiction against the Applicant, which is prohibiting the Applicant from engaging in the use or activity for which Applicant seeks a certificate of use. (6) The property owner currently has existing liens on property or unpaid code enforcement fines and or penalties. The Applicant may appeal the decision of the Director denying or revoking the certificate of use by filing a written petition requesting a hearing before the Board of Adjustment, as provided under Land Development Regulations Section 12600. The Applicant may appeal an order of the Board of Adjustment by filing a petition with the Development Department to the Board of County Commissioners. Such appeal shall be filed within thirty (30) days of the date of issuance of the written order by the board of adjustment. The Applicant may appeal an order of the Board of County Commissioners by filing a petition with a court of competent jurisdiction. Such appeal shall be filed within thirty (30) days of the date of issuance of the written order by the Board of County Commissioners. 10
(d) If a certificate of use is denied or revoked under this section, the County shall be entitled to recover its reasonable attorneys' fees and any costs of the hearing such as court reporters and transcription charges expended by the County. SECTION 15. Code of Ordinances Chapter 5, Licensing and Business Regulations, Article X, Certificate of Use, is hereby amended by adding Section 5.214 as set forth below. Sec. 5.214. Records. The Development Director shall maintain records of all official administrative actions and of all violations discovered by whatever means, including all complaints and responses made in regard thereto, with remedial action taken and disposition of cases. SECTION 16. This Ordinance shall be codified in the DeSoto County Code of Ordinances, Chapter 5, Licensing and Business Regulations.. SECTION 17. All ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed to the extent of such conflict. SECTION 18. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the 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 19. This ordinance shall take effect on May 2 nd, 2016. PASSED AND DULY ADOPTED this 12 th day of April, 2016. ATTEST: BOARD OF COUNTY COMMISSIONERS OF DESOTO COUNTY, FLORIDA Mandy J. Hines County Administrator By: Juril O. Mansfield Chairman Approved as to form and legal sufficiency: Donald D. Conn, County Attorney County Attorney Filed with the Florida Secretary of State on. 11