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HomeMy WebLinkAbout2003 09 08 Public Hearings C Second Reading - Ordinance 2003-33 Creation of Local Public Nuisance Abatement Board COMMISSION AGENDA ITEM C Consent Informational Public Hearing x Regular September 8. 2003 Meeting ~ a..} Mgr. / Att. / Dept. REQUEST: To adopt on second and final reading Ordinance 2003-33 relating to the creation of a local public nuisance abatement board, in accordance with Chapter 893, Florida Statutes. PURPOSE: This Ordinance will establish the City of Winter Springs Public Nuisance Abatement 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 determine if in 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 authority 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. APPLICABLE LAW AND PUBLIC POLICY: Section 2(b), Art. VIII ofthe State Constitution gives the municipalities the authoTity to exercise any power for municipal purposes, except when expressly prohibited by law. Page 1 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 substances, prostitution, gang activity, and stolen property. CONSIDERATIONS: This Ordinance provides the City with additional tools to provide for the effective and cost efficient method of abating specific nuisances. STAFF RECOMMENDATION: Adopt on second and final reading Ordinance 2003-33, establishing The City of Winter Springs Public Nuisance Abatement Board. ATTACHMENT: Ordinance 2003-33 COMMISSION ACTION: The City Commission approved Ordinance 2003-33 on first reading on August 25, 2003. F:\Docs\City of Winter Springs\Agenda\Drug_Nuisance _ 090303, wpd Page 2 of 2 ~ 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- AL TIES, FINES AND LIENS; PROVIDING FOR APPEALS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT 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 9 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 ofthe public health, safety, and welfare ofthe 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 strikeout 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. protect and improve the health. safety and welfare of the citizens of the City of Winter Spring by creating an administrative board to impose administrative fines. enioin and prohibit certain criminal activity on private property and provide an equitable. expeditious. effective and efficient method of abating drug. prostitution. dealing in stolen property. and criminal street gang activity. constituting public nuisances within the municipal boundaries of the City of Winter Springs as provided under Section 893.138. Florida Statutes (2002), and as may be amended. Sec.13-71. Creation of the Public Nuisance Abatement Board. There is hereby created. in accordance with section 893.138. Florida Statutes. the "City of Winter Springs Public Nuisance Abatement Board" (hereinafter referred to as "Nuisance Abatement Board"). Sec. 13-72. Definitions. The following terms and phrases. when used in this Article. shall have the meanings ascribed to them in this section: ill Controlled Substance shall mean any drug. narcotic. or other substance identified and prohibited under Chapter 893, Florida Statutes. as amended from time to time. (Q} Criminal Street Gang shall have the same meaning as set forth under Section 874.03. Florida Statutes. ill Criminal Street Gang Activity shall mean those activities committed by a Criminal Street Gang 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. Florida Statutes. ill Nuisance Abatement Coordinator shall mean the City Manager or the manager's designee 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 ill Prostitution or Prostitution-related Activity shall mean any act constituting a violation of Section 796.07. Florida Statutes. .(g} Recurrin~ Public Nuisance means any single or multiple instance of conduct prescribed in Section 893,138. Florida Statutes that occurs during the effective term of an order entered by the Nuisance Abatement Board. (h) Stolen ProlJertv shall mean tangible. intangible. personal or real property having any monetary or market value and that has been the subiect of any temporary or permanent criminal taking in violation of the laws of the State of Florida. Sec. 13-73. Composition: term. .c& 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. .au 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. (ill The Nuisance Abatement Board shall have the powers as delineated in section 893.138. Florida Statutes. which shall include. but not be limited to. the following: ill Jurisdiction to hear <md 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 continuing iurisdiction for a period of one (1) year over any place or premises that has been or is declared to be a public nuisance pursuant to this Article. ill The power to adopt rules of procedure for the administration and conduct of its hearings. Such rules shall not be inconsistent with this Article and the rules of procedure adopted by the City Commission. Any rules adopted by the Nuisance Abatement Board shall facilitate the efficient administration of hearings before it and ensure ftmdamental due process. ill 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 Springs Police Department or by such other person provided by law. @ Issue orders having the force and effect oflaw. 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 ill 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 Gang activities amounting to a public nuisance, Nothing contained herein shall preclude the City from abating nuisances under Section 60.05. Florida Statutes or as otherwise provided by federal. state or local law . !.9} The Nuisance Abatement Board shall hear complaints alleging that any place or premises constitutes a public nuisance. and may find said place or premises. or any part thereof. to be a public nuisance. upon competent and substantial evidence that said place or premises has been used: ill 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: ill On more than two occasions within a 6-month period. as the site ofthe unlawful sale. delivery. manufacture. or cultivation of any Controlled Substance: ill 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 anv Controlled Substance: ill Bya Criminal Street Gang for the purpose of conducting a pattern of Criminal Street Gang Activity as defined by Section 874.03. Florida Statutes: or ill 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. ill Any employee. officer or resident ofthe City of Winter Springs may file. in accordance with this section. a complaint alleging that a place or premises constitutes a public nuisance. as defined herein. Such complaint shall only be for those nuisances enumerated above in section 13-7 4( c) and shall state facts that reasonably tend to establish the existence of such public nuisance. ill 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 bv 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 W The City Attorney shall review all complaints received from the Nuisance Abatement Coordinator for legal sufficiency. Ifthe City Attorney deems the complaint sufficient under the code to support a probable finding of the exis~ence 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 property in question. The courtesy notice of violation shall provide the name of the owner of the premises. the address ofthe premises where the nuisance has occurred. a brief statement describing the incidents or occurrences which support the finding 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 nO) days from the date ofthe notice to contact the Nuisance Abatement Coordinator to indicate what action will be taken to abate the nuisance upon the premises. Failure ofthe owner to receive this notice of violation shall not invalidate any further proceedings hereunder. If a Recurring Public Nuisance or emergency 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 hearing 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 any further incidents or occurrences which constitute a nuisance upon the property. a hearing shall be scheduled before the Board. Such hearing shall be held no sooner than ten (10) days after the notice of hearing is sent to the owner ofthe 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 ofviolationJ notice of hearing providing the following information: ill A statement of the time. place and nature of the hearing: ill A statement of the legal authority and iurisdiction under which the hearing is to be held: ill A reference to the particular sections of the statutes and ordinances involved: and ill A copy ofthe statement of violation. including all documentation in support thereof. ill 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 receipt 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 any reason. then service shall be effected by mailing the notice through regular delivery to the address ofthe premises and by posting 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 ill The City Attorney may negotiate stipulated settlement agreements 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 Board prior to being effective, (g) At the hearing. the Nuisance Abatement Coordinator and/or City AttoOley shall present evidence before the Board on behalf ofthe City and has the burden to prove the existence of a public nuisance by substantial and competent evidence. The Board may consider any evidence. regarding the activities alleged in the statement of violation and occurring about the place or premises. and the owner(s) of the place or premises shall have the opportunity 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 opening and/or closing statements. Irrelevant. immaterial or unduly repetitive evidence shall be excluded. All testimony shall be taken under oath and shall be recorded. Any member of the Board. or counsel to the Board. may inquire of any witness testifying before the Board. The Board shall take testimony of such witnesses as mav be 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 general 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 ofthis Article who has been properly noticed under this Article and has failed to appear. Any 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 appropriate. .au At the conclusion ofthe 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 (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 maintaining of the nuisance; ill The operating or maintaining ofthe place or premises. including the closure of the place or premises or ,my part thereof; or ill 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 are consistent with this Article. ill lfthe City proves the existence of a public nuisance or Recurring Public Nuisance before the Board. the City. 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} An order of the Board shall expire not more than (1) year or as otherwise designated in the order after entry ofthe order by the Board. The order may include deadlines or other notice for requiring compliance by a certain date and that a fine may be imposed in accordance with this Article. Sec. 13-76. Penalties: Fines: Liens: Recordine. ill Upon evidence of noncompliance of any 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 imposing conditions and any other measures to abate the public nuisance as provided bv this Article. including the imposition of a fine. ili} 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) 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. ifany. the Nuisance Abatement Board shall consider the following factors: ill The gravity of the public nuisance; m Any actions taken by the owner to correct the public nuisance; and ill Any previous nuisances maintained or permitted bv the owner. if} 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 against the land on which the public nuisance exists and upon anv 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 'judgment bv the sheriffs of this state. including levy against personal property. but such order shall not be deemed to be a court iudgment except for enforcement purposes. A fine imposed pursuant to this Article shall continue to accrue until the owner comes into compliance or until the ludgment is rendered in a suit to foreclose on a lien filed pursuant to this section. whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in City of Winter 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 operating an establishment where multiple tenants, on one site, conduct their own retail business, the property owner shall not be subi ect to a lien against the owner's property or the prohibition of operation provision ifthe property owner elects to evict the business declared to be a nuisance within 90 days after notification by registered mail to the property owner of a second stolen property conviction ofthe tenant. Any lien recorded against 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 attorney'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 iurisdiction 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 ofthe 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 may be 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 ofthe 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 ---B..th... day of September , 2003. . '2~ . BUSH . legal form and sufficiency for ter Springs only nthony 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\Drug_ Nuisance _Abate.wpd City of Winter Springs Ordinance No. 2003-33 Page 9 of 9