HomeMy WebLinkAbout2003 08 25 Public Hearings C First Reading - Ordinance 2003-33 Creation of Local Public Nuisance Abatement Board
COMMISSION AGENDA
ITEM C
Consent
Infonn.ational
Public Hearing X
Regular
Au~ust 25. 2003
Meeting
Dept.
Mgr. I
REQUEST:
To adopt Ordinance 2003-33 relating to the creation of a local public nuisance abatement board, in
accordance with Chapter 893, Florida Statutes.
PURPOSE:
Thi~ Ordinance will e~tahlish the City of Winter Springs.Puhlic Nuisance Ahatement Board. This
board is charged with abating public nuisances involving:
1) the repeated possession/delivery of controlled substances;
2) the repeated acts of prostitution;
3) the repeated acts of street gang activity; and
4) the repeated dealing in stolen property.
The board will have the authority to hold hearings to detem1ine ifin fact a nuisance, as described by
Chapter 893, Florida Statutes and. this ordinance exist. Where such nuisance is found to exist, the
board shall have the au thority to order the nuisance prohibited or abated in accordance with Chapter
893. Florida Statutes, and to levy a fine against the property on which the nuisance exists not to
exceed $15,000.00.
APPLI.CABLE LAW AND PUBLIC POLICY:
Section 2(b)~ A..rt. VIII of the State Constitution gives the mWlicipalities the authority to exercise any
power for municipal purposes, except when expressly prohibited by law.
Page I of 2
Chapter 893, Florida Statutes allows the City to exercise reasonable police power as it relates to the
abatement of public nuisances involving controlled !\uh!\tances, prostitution. gang activity, and stolen
property.
CONSIDERA TIONS:
This Ordinance provides the Ci ty with additional tools to provide for the effective and cost eflicient
method of abaling specific nuisances.
ST AFF RECOMMENDATION:
Adopt Ordinance 2003-33 establishing The City of Winter Springs Public Nuisance Abal~ment
Board.
ATTACHMENT:
Ordinance 2003-33
COMMISSION ACTION:
PDvc8\Cily uf Wi"t.". Sprl.S';\:\lle..Jo'.l)ruil Nu;"_,nc< nS2~OJ\Vjld
Page 2 of 2
ORDINANCE NO. 2003-33
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY 0..- WINTER SPRINGS, FLORIDA, RELATING TO A
PUBLIC NUISANCE ABATEMENT BOARD; PROVIDING
11'OR INTENT AND PURPOSE; PROVIDING FOR THE
CREATION OF THE CITY OF WINTER SPRINGS PUBLIC
NUISANCE ABATEMENT BOARD; PROVIDING FOR
DEIrINITIONS; PROVIDING FOR POWERS, DUTIES AND
JURISDICTION; EST ABLISHING PROCEDURES FOR
ENFORCEMENT AND HEARINGS; PROVIDING FOR PRN-
At TIES, FINES AND LIENS; PROVIDING FOR APPEALS;
PROVIDING FOR THE REPEAL Ot'.l'lUORlNCONSlST.ENT
ORDINANCES AND RF.SOLUTIONS; PROVIDING FOR
INCORPORATION INTO THE CODE; PROVIDING FOR
SEVERABILITY; AND PROVIDING t'OR AN EFFECTIVE
DATE.
\\lIEREAS, tbe City Commission is granted the authority, under 9 2(b), Art. Vl.ll of the
State Constitution, to exercise any power for municipal purposes, except when expressly prohibited
by law; and
WHEREAS, Section 893.138. Florida Statutes authori;r,es the City of Winter Springs to
create a local administrative board with authori1y 10 impuse rines and olher noncriminal penalties
in order to provide an equitable and effect1ve method of abating nuisances involving repeated
controlled substance, prostitution, criminal street gang and dealing in stolen property activities as
prohibited under the laws of the State of Florida; and
WHEREAS, the City Commission desires to create an administrative board to be known as
the "The City of Winter Springs Public Nuisance Abatement Board" in order to more effectively
combat and prevent the deleterious effects of crime and promote responsible property ownership
within the City of Winter Springs; 3lld
WHEREAS, the abatement of public nuisances constitutes a reasonable exercise or the
City's police power and furthers a valid municipal purpose as provided under Chapter 893, Florida
Statutes; and
WHEREAS, the City Commission of1hc Ci1y of Winter Springs, Florida, hereby finds this
Ordinance to be in Ule best interests ofthc public health, safety, and welfare of the citizens of Winter
Springs.
NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER
SPRINGS HEREBY ORDAINS, AS FOI.-T,OWS:
CityofWinter Springs
Ordinance No. 2003.33
r~gc 1 of 9
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by the
reference as legislative fmdings of the City Commission oflhe City of Winter Springs_
Section 2. Code Amendment. The City of Winter Spl;ngs Code Chapter 13 is hereby
amended as follows: (underlined type indicales additions and 511 ikc.ont type indicates deletions, whilc
asterisks (* '" *) indicate a deletion from the Ordinance of text existing i.n Chapter 13. Tt is intended
lhal the It::xt in Chapter 13 denoted by the astelisks and sct forth in this Ordinance shall remain
unchanged from the language existing prior to adoption of this Ordinance).
Chapter 13. Nuisances
* ,.. *
Article IV. Public Nuisance Abatement Board
Sec. 13-70. Iotent and purpose. It is the intent and ouroose of this Article to Dromote. Drotect
and imDrov~ the h~_&t.b.. safety and welfare of the citizens ofthe City of Winter Soling bv creating
an administrative board to imoose administrative fines. enioin and prohibit certain criminal activity
on private prooerty and Droviue an e4uitahl~. expeditious. effective and efficient method of abating
drug. orostitution. deali'1gjn...!~tolcn orooertv. and criminal street gang activity. constituting public
nuisances within the municipal boundaries of the City of Winter Springs as provided undcr Section
893.138. Florida Statutes (2002). and as may be amended.
Sec. 13-71. Creation ofthe Public Nuisance Abatement Boar'd. There is herehy created. in
accordance with section 893.138. Florida Statutes. the "City of Winter Springs Public Nuisance
Ahatement Board" (hereinafter referred to as "Nuisance Abatement Board").
Sec. 13-72. Definitions. The following tems and phrases. when used in this Article. shall have
the meanin~s a'icrihed to them in this section:
fA) Controlled Substance shall mean any drug. narcotic. or other substance identified and
prohibited under Chaoter 893. Florida Statutes. as amended from time to time.
(Q} Criminal Street Galt$! shall have the same meaning as set forth under Section 874.03. Florida
Statutes.
1f.l Criminal Street Gam! Activio' shall mean those activities committed by a Criminal Street
Gang or member thereof as set forth under Section 874.03. Florida Statutes.
@ Dealin~ in Stolen Proverty shall have the same meaning. as that provided under Section
812.019. Florida Statutes.
W Nuisance Abatement Coordinator shall mean the City Manager or the manager's designee
who will be responsible for the oversight and enforcement of public nui.sance!; addres!;ed
under this Article.
City urWinler Spr;ng~
Ordinance No. 2003-33
P:.lJ'l: 2 (If ')
ill Prostitution or Prostitution-related AClivitv shaH mean any act constituting a violation of
Sc<::tion 796.07. Florida Statutes.
[g) Recurring Puhlic Nui~allce means any single or multiple instance of conduct prescribed in
Section 893.138. Florida Statutes that occurs duting the effective teoo of an order entered
by the Nuisance Abatement Board_
!hl Stolen Properlv shaH mean tangible, intangible. personal or real property having any
monetarv or market value and that has been the suhiect of any temporarv or oennanent
criminal taking in violation of the laws of the Statc of Florida.
Sec. 13-73. ComDosition; term.
!& The City of Winter Sorings Code Enlorccmcnt Board is hereby designated and established
as the Nuisance Abatement Board, and shaH act as the city's administrative board to hear
complaints rel!:arding nuisances as Drovided herein.
f.h} The terms of office ofthe Nuisance Abatement Board members shaH coincide with the terms
of office of the Code Enforcement Board members.
Sec. 13-74. Powers: duties: jurisdiction.
W The Nui~_a.n..cc Abatement Board shall havc the powers as delineated in section SY3.13S,
Florida Statutes. which shall include. but not he limited to. the following:
ill Jurisdiction to hear and d.~~ide comolaints aJJe~lng that a place or Dremises
constitutes a nublic nuisance as defined LInder Section 893.138. Florida Statutes_ The
Nuisance Abatement Board shall have t:onlinuing iurisdiction for a period of one (1)
Year oyer any Dlace or oremises that l:1~ been or is declared to be a public nuisance
pursuant to this Article.
ill The vower to adoDt rules of oroc,cdure for the administration and conduct of its
hearings. Such mles shall not be inconsistent with this Article and the rules of
procedure adopted by the City Commission, Any rules adopted by the Nuisanc;e
Abatement Board shall facilitate the efficient administration of hearings befo]e it ~!!.4
ensure fundamental due process.
ill The power to suhpocna respondents. witnesses. and evidence, records and other
material relevant to tbe Droceedin~s. to its hearings and take testimony under oath.
Subpoenas may be served by the City of Winter Springs Police DeDartment or by
such other Demon provided by law.
fA.} Issue orders having the force and effect of law, which include. but are nOllimited to,
the prohibition, cnioinrnent or ahatement of public nuisances. including the
establishment and levy of fines.
City of Winter Springs
Ordinance No. 2003-33
I'IICe ~ of <)
ilil It is the intent of this Atticle to provide the City of Winter Spl;ngs with an additional and
$uoDlemental means to abate drug. Prostitution. dealing in Stolcn PropertY. and Criminal
Street Gang activities amountinlZ to a DubHe nuisance. Nothing contained herein shall
preclude the City from abating nuilianctls under Section 60.05. Florida Statutes or as
otherwise nrovided by federal. state or local law.
M The Nuisance Abatement Board shall hear complaints alleging that any place or Dremises
constitutes a public nuisance. and may find said place or premises, or any part thereat: to be
a public nuisance. uoon comoctcnt and substantial evidence that said olace or Dremises has
been used:
ill On more than two occasions within a 6-month period. as the site of a violation of
S~tion 796.07. Florida Statutes. relating to Prostitution and Prostitution-related
activities:
ill On more th.an two occaslons within a 6-montll period. as the site of the unlawful sale.
de1iv~!y",..t!HUlllfacturc. or cultivation of any Controlled Substance:
ill On vnt: vccasion as the site oftlle unlawful possession of a Controlled Substance.
where S1!~h"pQ~s.~~s.iQn_.f~m~titutcs a felony. and that has been previously used on
more than one occasion as the site of the unlawful sale, delivery. manufacture. or
cultivation or any Controlled Substance:
!.1.l Bv a Criminal Street Gang for the DlllJ>ose of conducting a pattern of Criminal Street
Gang Activity as defined bv Section 874.03. Plorida Statutes: or
ill On more than two occasions within a 6-month neriod. as the site of a violation of
Section 812.019. Florida Statutes. relating to dealing in Stolen PrODertv.
Sec. 13-75. Enforccmcnt Proccdurc~.
!al Anyemoloyee. officer or resident orthe City of Winter Sorings may file. in accordance with
this section. a complaint alleging that a place or premises constitutes a Dublic nuisance, as
defined herein. Such comolaint shall onlv be for those nuisances enumerated above in
section 13-74(c) and ~haJJ ...tate facL" that rea!;onahly tend to e~tahlish the existence of such
public nuisance.
till All complaints shall be filed with the Nuisance Abatement Coordinator. The NUl!\ance
Abatement Coordinator shall review each complaint filed to determine whether thc [acts
presented establish the requisite number of incidents or occurrences required under section
13-74 above_ Where the complaint alleges the reQuisit.e number of incidents or occurrences
(0 establish a nuisance under this Article. the Nuisance Abatement Coordinator shal I forward
the complaint, with any relevant incident or arrest reDOrts generated by the Police
Department substantiating such incidents or occurrences or evidencing new or additional
incidents or occurrences. to the City Attorney.
City of Winter Springs
Ordinance No. 2003-33
Page 4 of 9
UJ The City Attornev shall review all complaints received from the Nuisance Abatement
Coordinator for legal sufficiency. If the City Attorney deems the COD1ohlint sufficient under
the code to support a probable finding of the existence of a public nuisance. the Nuisance
Abatement Coordinator shall prepare a courtesy notice of violation to be seryed. in
accordance with this section. upcm the owner of thc property 1n Question. The courtesy
notice of violation shall provide the name of the oVvner of the premises. the address of the
oremises where the nuisance has occurred. a brief statement describing the incidents or
occurrences which support the linding of a public nuisance upon the premises. and
recommendations of remedial Dction to be takcn to abate the public nuisance upon the
prooerty. The owner ofthc premises shall have ten nO) days from the date ofthc notice to
contact the Nuisance Abatement Coordinator to ind1cate what action will be taken to abate
the nuisance upon the premises. failure of the owner to receive this notice of viola lion shall
not invalidate any further proceedings hereunder.
If a Recurrine Public Nuisance or emergency sihlation exists, the Nuisance Abat~m.ent
Coordinator shall not be reQuired to provide a courtesy notice of violation. but instead the
City Attornev may immediately l1repare and servc a statement of violation and notice of
hearing as Drovided below.
[Q} Should the owner or ol1erator fail to contact the Nuisance Abatement Coordinalor. fail to
commit to a course of action designed to abate the T1ui-sam;e UDon the pronerty. or should
there be any further incidents or occurrences which consti tute a nuisance lipQ'lthe DroDerty.
a hearing shall be scheduled before the Board. Such hcaring shall he held no sooner t.han ten
(10) davs after the notice of hearing is sent to tht: owner of the place or premises at his or her
last known address. The Nuisance Abatement Coordinator or City Attornev shall then
prepare and serve uoon the owner or operator. ;n accordance with this Article. a statement
o['\I'iolatioo/ notice of hearing providing the following information:
ill A statement of the time. place and nature of the hearing;
ill A statement 0 f the legal authgr.i.J:Y.. and iwisdiction under which Ole hearinl! is to he
held:
ill A reference to the oarticular sections ofthe statutes and ordinances involved: and
ill A CODY ofthe statement of violation. including all documentation in support thereot:
W All notices under this Article shall be hand-delivered by the Police DepartmCl1t where
practical or where not practical or impossible by certified mail, rerum receipt reauested. to
the oropcrtyownerofrecord at the address a~ it appears in the public records of the Seminole
County Droperty appraiser's office. If the notice is retumed for any reason. then service shall
be effected by mai ling the notice through regular delivery to the address of the oremises and
bv Dosting the notice in accordance with Chaoter 162. Florida Statutes. Proof of service shall
be bv written declamtion indicating the date. time. and manner in which service was made.
City ofWinlt:r Springs
Ordintlncc No. 2003-.1.1
Pa.gc 5 ur 9
ill. The City Attorney may negotiate stipulated settlement agreements with a propcrt y owner to
facilitate the abatement of a public nuisance. All stipulated agreements shall be reviewed
and approved hv the Nuisance A hatement Coordinator and the Board prior 10 being effective.
!g} At the hearing.. the Nuisance Abatement Coordinator and/or City Attorney shall Dresent
evidence hefore the Roard on behalf oethe City and has (he burden to prove the'existence of
a public nuisance by suhstantial and competent evidence. The Board mav consider any
evidence. regarding the activities alleged in the statement of violation and occurring about
the place or premi!:ef;, and t.he owner(s) (lfthe olace or premises shall have the opportunity
to aDeear before the Board. in person and/or through legal counsel. to present evidence in
defense or in mitigation against the complaint. conduct cross-examination. submit rebuttal
evidence. and make hrief opening and/or c losing statements. Irrelevant immaterial or unduly
repetitive evidence shall be excluded. All testimony shall be taken under oath and shall ht:
recorded. Any memher of the Board. or counsel to the Board. may inquire of any witness
testifying before the .Board. The Board shan take testimonv of such witnesses as may be
called by the respective sides. Formal rules of evidence shall not apply. but fundamental dUI;;
process shall be observed and I:!:ovem said oroceedinl.!s. In addition to all other relevant
evidence. the Board may also consider testimony and evidence relating to (he general
reoutation oithe place or premises.
The Board may proceed with a hearing in absentia on the merits of an alleged public
nuisance ag.ainst any alleged viulator of this Article who has been properly noticed under this
Article and has failed to appear. Any findings or order entered bv the Board arc v!llj4..~nd
binding upon each such violator who has been oroperly noticed.
The Board in its discretion may continue a hearing tQ.r!:&.~.iy~.gddi tional evidence. testimony.
or for any other reason the Board deems appropriate.
!.h1 At the conclusion of the hearing,J~_~.Board shall issue findings ofract based on evidence in
the record and conclusions of law. and shall issue an order affording the proper relief
consistent with the 'Dowers !!ranted bv Florida Statutes and bv this Article. The order shall
g~n~raJ.lYJ?e Slated orally at the meeting and shall be reduced to wr;tin~ and mailed to the
alleged violator within ten (10) days after the hearing.
ill If the Board declares a place or premises to be a public nuisance. it may enter an order
immediately prohibiting:
ill The maintainine of the nuisance:
ill The operatine or maintaining of the place or premises. including the closure orthe
place Of premises or any Dart thereof: or
ill The conduct. operation. or maintenance of any business or activity on the premises
which is conducive to such nuisance.
Clly or Winler Springs
Ordinance No. 2003-33
r~ge 6 of 9
The Board shall be authorized to takc such other measures or to imoose conditions that the
Board deems aDprooriate to abate a public nuisance, provided such conditions and measures
are COn!;iliitent with thi~ Article.
ill Ifthe City proves the existence of a DubHe nuisance or Recurring Pub 1 ic Nuisilnce before the
Board, the Citv, as the prevailing party. shall be entitled (0 recover its reasonable attorneys'
fees and costs associated with the investigation, hearing and prosecution on (he publi.c
nuisance through all appclJateproceedings, including the costs ofrecording any order. notice
or agreement.
fk1 An order of the Hoard shaH expire not more than (l) year or as otherwise designated in the
order after entry of the order by the Board. The order may include deadlines or other notice
for reQuirin~ compliance by a certain date and that a fine may be imposed in accordance with
this Article.
Sec. 13-76. Penalties: Fines: Liens: Recordiof:.
!.!!l Upon evidence of noncomoliance of any Board order, the City Attorney or Nuisance
Abatement Coordinator shall rc~uest a hcarin~ before the Board. Uoon evidence establishing
that a noncompliance exists. the Board shall enter an order imposing conditions and any
other measures to abate the Dublic nuisance as provided by this Article. including the
imposition ora fine.
ill A fine imposed pursuant to this section shall not exceed two hundred fifty dollars ($250.00)
per day for a first occurrence of a public nuisance and shall not exceed five hundred dollars
($500.00) ocr day fOf a Recuning Public Nuisance. However. total fines imposed in any
action brought pursuant to this Article shall not exceed fifteen thousand dollars ($15.000.00),
In determining the amount of the rme, if any. the Nuisance Abatement Board shall consider
the followine: factors:
ill The rp-avitv of the Dublic nuisance:
m Any actions taken by the owner to correct the public nuisance: and
.Ql Any previous nuisances maintained or pennittcd by the owner.
W A certified CODY of an order imposing a fine may be recorded in the public records of
Seminole County and thereafter shall constitute a lien against the land on which the Dublie
nujsance exists and upon any other real or personal property owned by the owner. Upon
petition to the circuit court. such order may be enforced in the same manner as a court
iudgment bvthe sheriffs of this state. including levy against personal property, but such order
shall not be deemed to be a cow'! judgment except for enforcement purposes. A line ilTlpus~u
pursuant to this Article shall contin.ue to accrue until the owner comes into comoliance or
until the iudgment is rendered in a suit to foreclose on a lien filed oursuant to this section.
whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in
City ofWinl.er Springs
Ordinance No. 2003.33
Page 7 of 9
favor of the City. and the City may execute a satisfaction or release of a lien in the same
manner as provided under Section 2-61.5 of this Code. or may otherwise seek to foreclose
on the lien. However. where the nuisance abatement action is based on a stolen propertY
nuisance. and is brought against a property owner operatine: an establishment where multiDle
tenants. on one site. conduct their own retail business. the property owner shall not be subiect
to a lien against the owner's property or the prohibition of operation provision if the Ilrooertv
owner elects to evict the business decliired to be a nuisance within 90 days after notification
bv registered mail to the propertY owner ofa second stolen prooerty conviction onhe tenant.
Any lien recorded against real property may be foreclosed by the City and the owner of such
real property shall be liable [or all costs incurred by the City. including. a reasonable
attorney's fee through all appellate proceedinfrs. associated with the recording or all orders
and foreclosure.
Sec. 13-77. Appeal
A party aggrieved by a final administrative order oflhc Nuisance Abatement Board shall have the
right to appeal said order to a court of competent iurisdiction oursuant to the rules of procedure of
the court.
Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent
ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and
resolutions in conllict herewith, are hereby repealed to the extent of the conflict.
Section 4. Incorporation Into the Code. This ordinance shall be incorporated into the Winter
Springs City Code and any section or paragraph number or tetter and any heading may be changed
or modified as necessary to effectuate the roregoing.
Section 5. Severability. If any section, subsection, sentence, clause, phrase. word or provision
of this ordinance is for any reason held invalid or unconstitutional by any court of competent
jurisdiction, whether for substanti ve, procedural, or any other reason., such portion shall be deemed
a separate, distinct and independent provision, and such holding shall not affect the validity of the
remaining portions of this ordinance.
Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption
by the City Commission ofthe City of Winter Springs, Florida and pursuant to the City Charter.
IThis area left intentionally blank, adoption on next page]
City of Winler Springs
Ordina.nce No. 2UO)-))
Page 8 of 9
ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular
meeting assembled on the ~ day of .2003.
ATTEST:
ANDREA 1.0RENZO-LUACES
City Clerk
Approved as to legal form and sufficiency t'or
the City of Winter Springs only
Anthony A. Garganese, City Attorney
First Reading: u..__
Second Reading: _.._."...~.
Effective Date:
F:\Ont:l'\Cit.y 0' Winter Sprin~s\Ordinnnce1J\Orul:_ Nuisance _ Abale. WIld
JOHN F. BUSH
Mayor
City or Winter Springs
Ordinance No. 200).,B
f'agl: Q nf Q