HomeMy WebLinkAbout4176 Public Nuisance Abatement Board
PUBLIC NUISANCE ABATEMENT BOARD
ORDINANCE NO. 2009-4176
An ordinance of the City of Sanford, Florida providing for a public
nuisance abatement board relating to drug-related, prostitution-
related, or stolen-properly-related public nuisances and criminal
gang activity in accordance with, and in implementation of, the
provisions of Section 893.138, Florida Statutes; providing for
penalties and remedies; providing for processes and procedures;
providing for implementing administrative actions; providing for the
repeal of Section 18-61 of the City Code; providing for conflicts;
providing for a savings provision; providing for codification in the
City Code; providing for severability and providing for an effective
date.
Be it enacted by the People of the City of Sanford, Florida:
Section 1. Local administrative action to abate drug-related, prostitution-
related, or stolen-properly-related public nuisances and criminal gang activity. A
new section of the City Code of the City of Sanford is created to read as follows:
(a). The City Commission is hereby created as a public nuisance abatement
board pursuant to the provisions of Section 893.138, Florida Statutes. Nothing
contained within this Ordinance prohibits the City from proceeding against a public
nuisance by any means set forth in this Ordinance or in other controlling law.
(b). The board shall have the power to:
(1). Adopt rules for the conduct of its hearings and establish procedures;
(2). Take testimony and receive documentary evidence;
(3). Issue orders having the force of law consistent with authority contained
herein and as set forth in Section 893.138, Florida Statutes.
(c). The City Attorney shall serve as legal counsel for the board and may
assist the board in establishing facts and eliciting evidence and the City Clerk shall be
the secretary of the board.
(d). The board shall hear complaints and may declare any place or premises
that has been used:
(1). On more than two (2) occasions within a six-month period, as the site of a
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violation of Section 796.07, Florida Statutes;1 or
(2). On more than two (2) occasions within a six-month period, as the site of
the unlawful sale, delivery, manufacture, or cultivation of any controlled substance; or
(3). On one (1) 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 (1) occasion as the site of the unlawful sale, delivery,
manufacture, or cultivation of any controlled substance; or
(4). By a criminal street gang for the purpose of conductin~ a pattern of criminal
street gang activity as defined by Section 874.03, Florida Statutes; or
(5). On more than two (2) occasions within a six-month period, as the site of a
violation of Section 812.019, Florida Statutes,3 to be a public nuisance, which may be
abated in accordance with the procedures set forth herein.
(e). As used in this Section, the term controlled substance means any
substance listed in Section 893.03, Florida Statutes, and includes any substance sold in
lieu of a controlled substance in violation of Section 817.563, Florida Statutes, or any
imitation controlled substance defined in Section 817.564, Florida Statutes.
(f). Any employee, officer or resident of the City may bring a complaint before
the board. Such complaint shall be in writing and filed with the secretary of the board.
Upon receipt of the complaint, the secretary shall notify the Mayor who may, after
consultation with the Police Chief, call a hearing of the board within twenty-one (21)
days following receipt of the complaint. If the Mayor concludes, after consultation with
the Police Chief, that the complaint does not demonstrate probable cause that the facts
support a finding of the circumstances set forth in Section 2(d), the complaint will not be
brought before the board. Such determination shall be reported to the City Commission
at a City Commission meeting. The board must furnish a notice of the complaint to the
owner of the place or premises, at his last known address, in writing, by U.S. mail,
certified return receipt requested, or by personal service not less than three (3) days
prior to a scheduled hearing before the board. The notice shall contain the owner's
name, the address and legal description of the property, the date, time and place of the
hearing and shall have the complaint attached.
(g). The board shall conduct a hearing on the complaint, receiving any
evidence, including evidence of the general reputation of the place or premises. The
owner of the place or premises shall have an opportunity to present evidence in his, her
or its defense.
(h). All testimony shall be under oath and recorded. Formal rules of evidence
1 Relating to prostitution.
2 Relating to gang related offenses.
3 Relating to dealing in stolen property.
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shall not apply, but due process shall be observed and govern the proceedings.
(i). After receiving evidence, the board may adopt an order establishing
findings of fact and conclusions of law and may declare the place or premises to be a
public nuisance.
0). If the board finds the existence of a public nuisance, the board may enter
an order requiring the owner of such place or premises to adopt such procedure as may
be appropriate under the circumstances to abate any such nuisance or it may enter an
order immediately prohibiting:
(1). The maintaining of the nuisance;
(2). The operating or maintaining of the place or premises, including, but not
limited to, the closure of the place or premises or any part thereof; or
(3). The conduct, operation, or maintenance of any business or activity on the
premises which is conducive to such nuisance.
(k). Any such board order shall expire after one (1) year or at such earlier time
as is stated in the order.
(I). An order entered under Section may be enforced pursuant to the procedures
contained in Section 120.69, Florida Statutes,4 as well as any other legal remedy
available to the City such as, but not limited to, the provisions of Section 60.05, Florida
Statutes, and the City may seek temporary and permanent injunctive relief against any
nuisance. The City Attorney may prosecute such action on behalf of the board.
Additionally the City may engage in any other code enforcement activity permitted by
law and may use the order issued under this Section as part of, and as evidence in, a
condemnation proceeding relating to dilapidated, unsanitary, unsafe or uninhabitable
structures.
(m). Additionally, in supplementation of the proVIsions of Section 893.138,
Florida Statutes, the board may, by written order, assess additional penalties for public
nuisances, including fines not to exceed $250.00 per day; provide for the payment of
reasonable costs, including reasonable attorney fees associated with investigations of
and hearings on public nuisances; provide for continuing jurisdiction for a period of one
(1) year over any place or premises that has been or is declared to be a public
nuisance; establish penalties, including fines not to exceed $500.00 per day for
recurring public nuisances; provide for the recording of orders on public nuisances so
that notice must be given to subsequent purchasers, successors in interest, or assigns
of the real property that is the subject of the order; provide that recorded orders on
public nuisances may become liens against the real property that is the subject of the
order; and provide for the foreclosure of property subject to a lien and the recovery of all
costs, including reasonable attorney fees, associated with the recording of orders and
foreclosure; provided, however, that no lien created pursuant to the provisions of this
Ordinance may be foreclosed on real property which is a homestead under Section 4,
4 This provision is part of the Administrative Procedures Act generally applicable to State agencies and allows for the
filing of an enforcement action in the Circuit Court.
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Article X of the Constitution of the State of Florida. When the City seeks to bring an
administrative action, based on a stolen property nuisance, against a property owner
operating an establishment where multiple tenants, on one site, conduct their own retail
business, the property owner shall not be subject to a lien against his or her property or
the prohibition of operation provision if the property owner evicts the business declared
to be a nuisance within ninety (90) days after notification by registered mail to the
property owner of a second stolen property conviction of the tenant. The total fines
imposed pursuant to the authority of this Subsection of this Ordinance shall not exceed
$15,000.00.
Section 2. Implementing Administrative Actions.
The City Manager, or designee, is hereby authorized and directed to implement
the provisions of this Ordinance and to take any and all necessary administrative
actions to include, but not be limited to, the adoption of administrative rules.
Section 3. Conflicts/Repealer.
(a). All ordinances or part of ordinances in conflict with this Ordinance are
hereby repealed.
(b). Section 18-61 of the City Code of the City of Sanford is hereby repealed.
Section 4.
Savings.
The prior actions of the City of Sanford in implementation of Articles I, II, III and
IV of Chapter 18 of the City Code of the City of Sanford as well as all code enforcement
activities of the City relating thereto are hereby ratified and affirmed.
Section 5. Severability.
If any section, sentence, phrase, word, or portion of this Ordinance is determined
to be invalid, unlawful or unconstitutional, said determination shall not be held to
invalidate or impair the validity, force or effect of any other section, sentence, phrase,
word, or portion of this Ordinance not otherwise determined to be invalid, unlawful, or
unconstitutional.
Section 6. Codification.
This Ordinance shall be codified in the City Code of the City of Sanford; provided,
however, that Sections 3, 4, 5, 6 and 7 shall not be codified. The Code Codifier is
granted broad and liberal authority to change section numbers in the current City Code
and other appropriate actions as set forth in Section 1-10 of the City Code.
Section 7. Effective Date.
This Ordinance shall take effect immediately upon passage and adoption.
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Passed and adopted this 22nd day of June, 2009.
City Commission of the City of
Sanford, Florida
Seminole County, Florida
(~~
.-_._---"--~--~ ~~ ~ ~
~ Linda K~, Mayor :5
Attest:
~Q~
Cynth Porter, Acting City Clerk
Approved as to form and
legality:
'/~~~~
~ L. Colbert, Esquire
City Attorney
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