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HomeMy WebLinkAbout2003 11 18 Ordinance 2003-33i ORDINANCE NO. 2003-33 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, RELATING TO A PUBLIC NUISANCE ABATEMENT BOARD; PROVIDING FOR INTENT AND PURPOSE; PROVIDING FOR THE CREATION OF THE CITY OF WINTER SPRINGS PUBLIC NUISANCE ABATEMENT BOARD; PROVIDING FOR DEFINITIONS; PROVIDING FOR POWERS, DUTIES AND JURISDICTION; ESTABLISHING PROCEDURES FOR ENFORCEMENT AND HEARINGS; PROVIDING FOR PEN- ALTIES, FINES AND LIENS; PROVIDING FOR APPEALS; PROVIDING FOR THE REPEAL OF PRIORINCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING FOR INCORPORATION INTO THE CODE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission is granted the authority, under § 2(b), Art. VIII of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, Section 893.138, Florida Statutes authorizes the City of Winter Springs to create a local administrative board with authority to impose fines and other noncriminal penalties in order to provide an equitable and effective 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; and WHEREAS, the abatement of public nuisances constitutes a reasonable exercise of the City's police power and furthers a valid municipal purpose as provided under Chapter 893, Florida Statutes; and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this Ordinance to be in the best interests of the 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 FOLLOWS: City of Winter Springs Ordinance No. 2003-33 Page 1 of 9 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by the reference as legislative findings of the City Commission of the City of Winter Springs. Section 2. Code Amendment. The City of Winter Springs Code Chapter 13 is hereby amended as follows: (underlined type indicates additions and ~ type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of text existing in Chapter 13. It is intended that the text in Chapter 13 denoted by the asterisks and set 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. Intent and purpose. It is the intent and purpose of this Article to promote rotect and improve the health, safety and welfare of the citizens of the City of Winter Spring_b creating an administrative board to impose administrative fines enjoin and prohibit certain criminal activity on pnvate property and provide an equitable expeditious effective and efficient method of abating drug, prostitution, dealing in stolen property and criminal street gap activity constituting. ublic nuisances within the municipal boundaries of the City of Winter Springs as provided under Section 893.138, Flonda Statutes (2002) and as maybe amended Sec. 13-71. Creation of the Public Nuisance Abatement Board. There is hereby created in accordance with section 893.138 Florida Statutes the "Gifu of Winter Springs Public Nuisance Abatement Board" (hereinafter referred to as "Nuisance Abatement Board"1 Sec.13-72. Definitions. The following terms and phrases when used in this Article shall have the meanines ascnbed to them in this section ~a,~ Controlled Substance shall mean any drug narcotic or other substance identified and prohibited under Chapter 893 Florida Statutes as amended from time to time bL.~ Criminal Street Gang shall have the same meaning as set forth under Section 874 03 Florida Statutes. ~c,~ Criminal Street Gang Activity shall mean those activities committed by a Criminal Street Gana or member thereof as set forth under Section 874 03 Florida Statutes Dealing in Stolen Property shall have the same meaning as that provided under Section 812.019, Flonda Statutes fie,) Nuisance Abatement Coordinator shall mean the City Manager or the manager's desi ee who will be responsible for the oversight and enforcement of public nuisances addressed under this Article. City of Winter Springs Ordinance No. 2003-33 Page 2 of 9 ~f Prostitution or Prostitution-related Activity shall mean any act constituting a violation of Section 796.07. Florida Statutes. ~ Recurring Public Nuisance means any single or multiple instance of conduct prescribed in Section 893.138. Florida Statutes that occurs duringthe effective term of an order entered by the Nuisance Abatement Board. Stolen Property shall mean tangible intan ible personal or real prope having any monetary or market value and that has been the subject of any temporary or permanent criminal takins? in violation of the laws of the State of Florida Sec. 13-73. Composition; term. ,(a~. The City of Winter Springs Code Enforcement Board is hereby designated and established as the Nuisance Abatement Board, and shall act as the city's administrative board to hear complaints regarding nuisances as provided herein b~ The terms of office of the Nuisance Abatement Board members shall coincide with the terms of office of the Code Enforcement Board members Sec. 13-74. Powers: duties: jurisdiction. ,~ The Nuisance Abatement Board shall have the powers as delineated in section 893 138 Flonda Statutes, which shall include, but not be limited to the followin Jurisdiction to hear and decide complaints alleging that a place or premises constitutes a public nuisance as defined under Section 893 138 Florida Statutes The Nuisance Abatement Board shall have continuingjurisdiction for aperiod of one (1) near over any place or premises that has been or is declared to be a public nuisance pursuant to this Article. ~2„~ The power to adopt rules of procedure for the administration and conduct of its hearinss. Such rules shall not be inconsistent with this Article and the rules of procedure adopted by the Citv Commission Anv rules adopted by the Nuisance Abatement Board shall facilitate the efficient administration of hearings before it and ensure fundamental due process The power to subpoena respondents witnesses and evidence records and other material relevant to the proceedings to its hearings and take testimony under oath Subpoenas may be served by the City of Winter Sings Police Department or by such other person provided b Issue orders having the force and effect of law which include but are not limited to the prohibition, enioinment or abatement of public nuisances including the establishment and levy of fines. City of Winter Springs Ordinance No. 2003-33 Page 3 of 9 bL.~ It is the intent of this Article to provide the City of Winter Springs with an additional and supplemental means to abate drug Prostitution dealing in Stolen Property and Criminal Street Gana activities amountin to a public nuisance Nothing contained herein shall preclude the Citv from abating nuisances under Section 60 OS Florida Statutes or as otherwise provided by federal, state or local law ~ The_Nuisance Abatement Board shall hear complaints allegin tg hat anyplace or ,remises constitutes a public nuisance, and may find said place or premises or anypart thereof to be a public nuisance, upon competent and substantial evidence that said place orpremises has been used: On more than two occasions within a 6-month period as the site of a violation of Section 796.07, Florida Statutes, relating to Prostitution and Prostitution-related activities: On more than two occasions within a 6-month period as the site of the unlawful sale delivery, manufacture, or cultivation of any Controlled Substance' On one occasion as the site of the unlawful possession of a Controlled Substance where such. possession constitutes a felony and that has been previously used on more_ than one occasion as the site of the unlawful sale delivery manufacture or cultivation of any Controlled Substance• ~4,~ By a Criminal Street Gang for the purpose of conducting a pattern of Criminal Street Gape Activity as defined by Section 874 03 Florida Statutes• or On more than two occasions within a 6-month period as the site of a violation of Section 812.019, Florida Statutes relating to dealing in Stolen Property Sec. 13-75. Enforcement Procedures. ~ Anv employee, officer or resident of the City of Winter Springs may file in accordance with this section, a complaint allegin- that a place or premises constitutes a public nuisance as defined herein. Such complaint shall only be for those nuisances enumerated above in section 13-74(c) and shall state facts that reasonably tend to establish the existence of such public nuisance. b.~ All complaints shall be filed with the Nuisance Abatement Coordinator The Nuisance Abatement Coordinator shall review each complaint filed to determine whether the facts presented establish the requisite number of incidents or occurrences required under section 13-74 above. Where the complaint alleges the requisite number of incidents or occurrences to establish a nuisance under this Article the Nuisance Abatement Coordinator shall forward the complaint, with any relevant incident or arrest reports 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 ~ The Citv Attornev shall review all complaints received from the Nuisance Abatement Coordinator for legal sufficiency If the City Attorney deems the complaint 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 served in accordance with this section, upon the owner of the propert in question The courtesy notice of violation shall provide the name of the owner of the premises the address of the premises where the nuisance has occurred a brief statement describing the incidents or occurrences which support the findin of a public nuisance upon the premises and recommendations of remedial action to be taken to abate the public nuisance upon the property. The owner of the premises shall have ten (101 days from the date of the notice to contact the Nuisance Abatement Coordinator to indicate what action will be taken to abate the nuisance upon the premises Failure of the owner to receive this notice of violation shall not invalidate anv further proceedings hereunder If a Recurring Public Nuisance or emer ency situation exists the Nuisance Abatement Coordinator shall not be required to provide a courtesy notice of violation but instead the City Attorney may immediately prepare and serve a statement of violation and notice of heann~as provided below Should the owner or operator fail to contact the Nuisance Abatement Coordinator fail to commit to a course of action designed to abate the nuisance upon the property or should there be anv further incidents or occurrences which constitute a nuisance u on theproperty, a_heanng shall be scheduled before the Board Such hearing shall be held no sooner than ten (1 Ol days after the notice of hearing is sent to the owner of the place or premises at his or her last known address. The Nuisance Abatement Coordinator or City Attorney shall then prepare and serve upon the owner or operator in accordance with this Article a statement of violation/ notice of hearingproviding the following information• A statement of the time place and nature of the hearing• ~2•~ A statement of the legal authority and jurisdiction under which the hearing is to be held; ,~3,~ A reference to the particular sections of the statutes and ordinances involved• and ~4,~ A copy of the statement of violation including all documentation in support thereof. ~ All notices under this Article shall be hand-delivered by the Police Department where practical or where not practical or impossible by certified mail return recei t requested to the property owner of record at the address as it appears in the public records of the Seminole County property appraiser's office If the notice is returned for anv reason then service shall be effected by mailing the notice through regular delivery to the address of the premises and bvposhng the notice in accordance with Chapter 162 Florida Statutes Proof of service shall be by written declaration indicating the date time and manner in which service was made City of Winter Springs Ordinance No. 2003-33 Page 5 of 9 jf~ The City Attorney may negotiate stipulated settlement a eements with a property owner to facilitate the abatement of a public nuisance All stipulated agreements shall be reviewed and approved by the Nuisance Abatement Coordinator and the Boardprior to being effective ~ At the hearing. the Nuisance Abatement Coordinator and/or Ci Attorney shall present evidence before the Board on behalf of the City and has the burden to prove the existence of a public nuisance by substantial and competent evidence The Board may consider anX evidence, regarding the activities alleged in the statement of violation and occurrin about the place or premises, and the owners of the place or premises shall have the opportunitX to appear 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 brief openingand/or closing statements Irrelevant immaterial or unduly repetitive evidence shall be excluded. All testimony shall be taken under oath and shall be recorded. Anv member of the Board, or counsel to the Board may inquire of anX witness testifying before the Board. The Board shall take testimony of such witnesses as maybe called by the respective sides. Formal rules of evidence shall not apply but fundamental due process shall be observed and govern said proceedings In addition to all other relevant evidence, the Board may also consider testimony and evidence relating to the eneral reputation of the place or premises. The Board may proceed with a hearing in absentia on the merits of an alleged public nuisance against any alleged violator of this Article who has been properly noticed under this Article and has failed to appear. Anv findings or order entered by the Board are valid and binding upon each such violator who has been properly noticed. The Board in its discretion may continue a hearing to receive additional evidence testimony or for any other reason the Board deems ap,~ro riate. ,{~ At the conclusion of the hearing, the Board shall issue findings of fact based on evidence in the record and conclusions of law, and shall issue an order affording the proper relief consistent with the powers granted by Florida Statutes and by this Article The order shall generally be stated orally at the meeting and shall be reduced to writing and mailed to the alleged violator within ten (lOLys after the hearing_ If the Board declares a place or premises to be a public nuisance it may enter an order immediately prohibiting; ~1,~ The maintaining of the nuisance; ,{~ Theo ep rating or maintaining_of the place or premises including the closure of the place or premises or anYpart thereof; or The conduct, operation, or maintenance of any business or activity on the premises which is conducive to such nuisance. City of Winter Springs Ordinance No. 2003-33 Page 6 of 9 The Board shall be authorized to take such other measures or to impose conditions that the Board deems appropriate to abate a public nuisance provided such conditions and measures aze consistent with this Article. ~j~ If the City proves the existence of a public nuisance or Recurring Public Nuisance before the Board. the Citv, as the prevailing_party shall be entitled to recover its reasonable attorneys' fees and costs associated with the investigation hearing and. prosecution on the public nuisance through all appellate proceedings including the costs of recording any order notice or agreement. ~k,1 An order of the Board shall expire not more than (l~veaz or as otherwise designated in the order after entry of the order by the Board The order may include deadlines or other notice for reauirine compliance by a certain date and that a fine may be imposed in accordance with this Article. Sec.13-76. Penalties; Fines; Liens; Recordine ~ Upon evidence of noncompliance of anv Board order the City Attorney or Nuisance Abatement Coordinator shall request a hearing before the Board Upon evidence establishing that a noncompliance exists the Board shall enter an order imposin>; conditions and anv other measures to abate the public nuisance as provided by this Article including the imposition of a fine. 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 ($500.001 per day for a Recurring 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 fine if anv the Nuisance Abatement Board shall consider the following factors: ,{~ The avity of the public nuisance• Any actions taken by the owner to correct the public nuisance• and Any previous nuisances maintained or permitted by the owner ~ A certified copy of an order imposing a fine may be recorded in the public records of Seminole County and thereafter shall constitute a lien a>;ainst the land on which the ublic nuisance exists and upon any other real or personal roperty owned by the owner Upon petition to the circuit court, such order may be enforced in the same manner as a court iud~nent by the sheriffs of this state including leveragainst ersonal property but such order shall not be deemed to be a courttudQment except for enforcement purposes A fine imposed pursuant to this Article shall continue to accrue until the owner comes into compliance or until the iudgment is rendered in a suit to foreclose on a lien filed pursuant to this section whichever occurs first. A lien arising from a fine im osed pursuant to this section runs in City of Winter Springs Ordinance No. 2003-33 Page 7 of 9 favor of the Citv, and the Citv 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 ~ropertv nuisance and is brou lg_it _a ainst a property owner o ep rating an establishment where multiple tenants, on one site, conduct their own retail business the property owner shall not be subj ect to a lien aeainst the owner's property or the prohibition of operation provision if the property owner elects to evict the business declared to be a nuisance within 90 days after notification by reeistered mail to the property owner of a second stolen property conviction of the tenant Anv lien recorded aeainst real property may be foreclosed by the City and the owner of such real property shall be liable for all costs incurred by the City including a reasonable attomev's fee through all appellate proceedings associated with the recording of all orders and foreclosure. Sec.13-77. Appeal• • A party aggrieved by a final administrative order of the Nuisance Abatement Board shall have the right to appeal said order to a court of competent jurisdiction pursuant 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 conflict 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 letter and any heading maybe changed or modified as necessary to effectuate the foregoing. 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 substantive, 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 of the City of Winter Springs, Florida and pursuant to the City Charter. This area left intentionally blank, adoption on next page) City of Winter Springs Ordinance No. 2003-33 Page 8 of 9 ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the 8th day of september , 2003. JO .BUSH Ma ORENZO-LUACES Approve t legal form and sufficiency for the Ci Jer~Wi ter Springs only A. Garganese, City Attorney First Reading; August 25, 2003 Second Reading: September 8, 2003 Effective Date: See Section 6. F:\Docs\City of Winter Springs\Ordinances\Dru~Nuisance_Abate.wpd City of Winter Springs Ordinance No. 2003-33 Page 9 of 9