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59-96 ORDINANCE NO. 5 9- 9 6 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, ENACTING A NEW CHAPTER 135, "ABATEMENT OF NUISANCES"; PROVIDING FOR THE ESTABLISI{MENT OF A NUISANCE ABATEMENT BOARD PURSUANT TO FLORIDA STATUTE SECTION 893.138; ?ROVIDING FOR NOTICE, HEARING, AND OPERATION PROCEDURES; APPOINTMENT AND REMOVAL PROCEDURES FOR BOARD MEMBERS; ENFORCEMENT AUTHORITY; SUDICIAL REVIEW; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the State of Florida enacted Section 893.138, Fla. Stat. to allow a local government to establish a nuisance abatement board to address the issues of prostitution and the sale of controlled substances on property within the local government's jurisdiction; and WHEREAS, the Delray Beach City Commission recognizes the signifidant efforts of the citizens of Delray Beach and the Delray Beach Police Department in working together to control prostitution; the sale of controlled substances, and criminal street gang activity; and WHEREAS, despite the efforts, the City of Delray Beach City Commission finds that in order to further protect its citizens' health, safety and welfare, the establishment of a nuisance abatement board is necessary to provide additional assistance in the continued effoTM to control prostitution, the sale of controlled substances, and criminal street gang activity within the City limits; and WHEREAS, the Delray Beach City Commission finds that the nuisance abatement board process, as authorized by Section 893.138, ~ will provide the citizens of Delray Beach an effective method of addressing nuisances within the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: ~. That Title 13, "General Offenses", of the City of Delray Beach Code of Ordinances is hereby amended by enacting a new Chapter 135, "Abatemem of Nuisances", which reads as follows: Section 135.01 TITLE. This article shall be known as the "City of Delray Beach Nuisance Abatement Section 135.10 DEFINITIONS. (a) Public nuisance: Any place or premises within the Ci.ty limits of Delray Beach which has been used on more than two (2) occasions, within a six-month peri0~k (D As the site of the unlawful sale. delivery., manufacture or cultivation of any controlled substance; On one (D occasion as the site of the unlawful ~ossession of a controlled substance, where such possession constitutes a felony and that has been previously used on more than one (D occasion as the site of the unlawful sale. deliver, manufacture, or cultivation of an_v controlled substance: (_3) As the site of a violation of Florida Statutes. 8796.07: or Any place or building used by a youth and street gang for the purpose of conducting a pattern of youth and street gang activity, as defined in Florida Statutes. Chapter 874. Board: The nuisance abatement board of the City.. Clerk: Person appointed bv the local governing bod.v of the Ci.ty to perform the clerical duties necessary, to carry, out the activities of the nuisance abatement board. Operator: Tenant. lessee or person having conwol or possession of the premises. Controlled Substance: Includes any substance sold in lieu of a controlled substance in violation of Florida Statutes. ~ 817.563. or any imitation controlled substance defined in Florida Statutes. § 817.564. Section 135.20 NUISANCE ABATEMENT BOARD: ORGANIZATION. (a) There is hereby created and established a nuisance abatement board to hear evidence relating to the existence of public nuisances on premises located in the Ci _ty. This board shall consist of five (5) re_tmlar members and two (2) alternate members each appointed by an affirmative vote of at least four (4) members of the City_ Commission for two-year terms, except as set forth herein at subsection Co). Members of the nuisance abatement board shall be persons who reside in the City.. _17o) The initial appointments to the nuisance abatement board shall be as follows: 2 ORD. NO. 59-96 (1'} Three (3) re_eular members appointed for a term of two (2) years: and (2) Two (2~ re,far members shall be appointed for a term of one (II year. (3) Two (2~ alternate members shall' be appointed for a term of two (2) years Upon expiration of initial terms, subsequent appointments for two (2) years shall be made. Any member who has not completed two (2) full consecutive terms may be reappointed by the City. Commission. Appointments to fill a vacancy shall be for the remainder of the unexpired term. (c) Board members shall serve at the pleasure of the Ci_t7 Commission. Any Board member may be removed from his/her position with or without cause upon approval of a motion bY the City. Commission. Additionally. any member who fails to attend three (3~ consecutive re_eular meetings of the Board shall be considered to have abandoned his/her position and the City_ Commission shall appoint another individual to fill such vacancy for the remainder of the individual's term. (d~ The presence of three (3~ or more members shall constitute a quorum. Members shall serve without compensation. ,~ection 135.30 OPERATING PROCEDURES. (a) Any employee, officer or resident of the City_ may file a comolaint with the Police Department regarding the existence of a public nuisance, as defined in Section 135.10(a~. on premises located in the Ciw. lb) When the Police Department receives a complaint, the Police Legal Advisor shall review the complaint to determine if the complaint properly alleges that a public nuisance, as defined in Section 135.10(a). exists on the premises. If the Police Legal Advisor determines that tlle complaint properly alleges that a public nuisance exists on the oremises, the Police Legal Advisor shall promptly request a hearing before the nuisance abatement board. (c) The nuisance abatement board, through its clerk, shall schedule a hearing: and written notice of the hearing shall be sent to the owner and operator(s) of the r~remises at their last-known addresses at least five (5) days prior to the scheduled hearing. fl) The aforesaid notice of hearing shall include: (II A statement of the time. place and nature of the hearing. 3 ORD. NO. 59-96 (2~ A statement of the legal authority, and jurisdiction under which the hearin. reference to the particular sections of the statutes and ordinance5 (4) A short and plain statement summarizing the incidents complained of. Section 135.40 CONDUCT OF HEARINGS. (a) The chairman of the board may call hearings of the board. Hearings may also b~ called by written notice signed by at least three (3~ members of the board. The board, at a hearing, may set a future hearing date. The board shall attempt to convene no less frequently than once every month but may meet more or less often as the demand necessitates. The board shall adopt rules for the conduct of its hearings. Minutes shall be kept of all hearings, and all hearings shall be open to the public. The Board shall have the power to subpoena owners. witnesses, and evidence to hearings. The City_ shall provide clerical and administrative, personnel as may be reasonably required for the proper performance of the board's 'duties. (b) The Police Legal Advisor shall present cases before the board. All parties shall have an opportunity to present evidence and argument on all issues involved, to conduct cross- Cxiamination. to submit rebuttal evidence, and to be represented by counsel. When appropriate. the general public may be given an opportunity, to present oral or written communications. The l~oard may consider any evidence, including evidence of the general reputation of the place or premises. All testimony shall be under oath and shall be recorded. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. Orders of the board shall be based on competent and substantial evidence, and any finding thoro nuisance exists must be based on a "preponderance of the evidence" standard. (c) The,,concurring votes of at least three (3) board members is required in order to approve any board order except that the concurring votes of at least four (4) Board members is required in order to approve any Board order that involves Board action described in Section 135.40(d'}(2~ or (3). rd) After considering all evidence, the board may declare the place or premises to be a public nuisance as defined in Section 135.10(a~ and may enter an order as follows: (1) Immediately prohibiting the maintaining of the nuisance: (2) Immediately prohibiting the operating or maintaining of the r~lace or premises including the closure of the place or premises or any part thereof: 4 OP, X). NO. 59-96 Immediately prohibiting the conduct, oneration or maintenance of any business or activity, on the premises which is conducive to such nuisance: or (4) Requiring the owner of such place or premises declared to be .a public, nuisance to adopt such procedure as may be appropriate under the circumstances to abate any such nuisance. All orders of the board shall be by motion approved by a majority, of those members present and voting, except that at least three (3~ members of the board must be present in order for the action to be official. (e) An order entered under subsection (dj shall expire after one (1) year. or at such earlier time as stated in the order. The board may retain jurisdiction to modify, its orders prior to the expiration of the orders. fi3 The City. Police Department shall assist the board in carrying out any legally authorized order rendered pursuant to this article. (g) In the event that orders of the board expire and/or are not complied with. or are for any reason ineffective, the board may then bring a complaint under Florida Statutes. § 60.05. seeking a permanent injUnction against any public nuisance' described in City. of Delray Beach Code Section 135.10(a). An order entered hereunder may be enforced pursuant to the procedures contained in Florida Statutes. ~ 120.69. Section 135.50 JUDICIAL REVIEW. Any person, including the City. of Delray Beach. aggrieved by any ruling or order of the nuisance abatement board, may seek review by certiorari in the circuit court. A petition for writ of certiorari shall be filed within thirty_ (30~ days of the date of the written order appealed from. Section 135.60 RIGHTS PRESERVED. This article does not restrict the right of any person to proceed under either Section 60.05 or Section 823.05. Florida Statutes. against any public nuisance, ~ That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a Court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. 5 ORD. NO. 59-96 Section 3. That all ordinances or pans of ordinances in conflict herewith be and the same are hereby repealed. Section 4. That this ordinance shall become effective ten (10) days from its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the 21 st day of January , ATTEST: ~A OR~ City Clerk ~ / First Reading December 10, 1996 SecoHdReading January 7, 1997 (continued as amended and readvertised to January 21, 1997) nabl.ord Passed and adopted January 21, 1997 6 ORD. NO. 59-96 £1T¥ aK DELKfi¥ CITY ATTORNEY'S OFFICE TM FACSIMILE 407/278-4755 Wfi~r's Dir~t L~: (561) 243-7~ DELRAY BEACH /l[~ica City TO: ~i~ Commission 1993 me~ FROM: Davi~ N. Tolces, Assis~t Ci~ A~o SUBIECT: Nuisan~ Abatement Boar~ Ordinance Attached is the latest revised version of the proposed Nuisance Abatement Board ordinance. The following changes were made in response to discussions at the January 7, 1997 regular meeting: 1. Section 135.20(c): The Board members will serve at the pleasure of the City Commission and may be removed with or without cause. 2. Section 135.20(c): Any Board member who misses three consecutive regular meetings shall be considered to have abandoned his/her position, and shall be removed automatically. The Commission shall appoint a new member to complete the remainder of the member's term. 3. Section 135.20(a): All appointments to the Board will require 4 affirmative votes of the City Commission. 4. Section 135.40(c): If the Board desires to close a business or prohibit the continuation of the use of the property as a business or residence, at least 4 Board members must vote to approve the order. 5. Section 135.40(a): The Board has the power to issue subpoenas. These changes will be considered at second reading of the ordinance on January 21, 1997. Please call if you have any questions. DNT:smk Attachment cc: David T. Harden, City Manager Susan A. Ruby, City Attorney Richard Overman, Chief of Police Eric D. Hightower, Police Legal Advisor Sharon Morgan, City Clerk's Office nab3 .tint ~ Pr~zte~ c'~ Recyc/ed Paper /O A iA PU~LIC HEARING wl~ ~,e ~ ~n ~ ~ ~DI~KE OF THE CI~ ~ r'MI~ION OF THE C TY ~ ~L~Y 'B~CH, FL~t~ E~l~ A REW CHAPTER ~, 'A~TEMENT ~ ~UI~ff;E~; PR~IDING FOR ~E E~ABLISHMENT OF A NUI- ~CE ABAT~ENT 80ARD ~R- ~7 TO F~RI~ STATUTE SEC- T~ ~.lX; PR~DS~ FOR NG ~TICE, HEARING, &NO OPE~T~ON ~ ~EDURES; AP~INTMENT ~D R~VAL PR~EDURES FOR ~ ~RD MMBERS; EN~RCE. MENT AUT~R ~; JUDiCi~ R~ ~VtEW; PROVIDI~ A ~U~, A GENE~I RE~ER t~U~, AND ~ EFFE~VE Cl~ ~ ~L~Y [:lTV DF DELI:II:IV DELRAY 8EACH Alblmefi~ Ci~ 1993 DATE: J~ua~ 9, 1997 TO: Alison Macgregor Harty, City Clerk FROM: David N. Tolces, Assistant City Attorney Number of pages (including cover sheet) 2 CITY ATTORNEY'S OFFICE CITY OF DELRAY BEACH, FLORIDA IF ANY OF THE PAGES ARE NOT CLEARLY RECEIVED, PLEASE CALL (407) 243-7090 IMMEDIATELY. COMMENTS: Attached is the caption for the nuisance abatement board ordinance scheduled for second reading and public hearing on January 21, 1997. Please make sure that this caption is advertised on Saturday, January 11, 1997. I will be forwarding to you a completely new ordinance for use in the agenda. If you have any questions, please call. Pr~n~eo on Rec'/c!ed Paper O ANCE NO. 5¢96 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DEL Y BEACH, FLOC. mA, ENACTr G A N .W ca rER 135, "~ATEMENT OF ~SANCES'; PROLOG FOR THE EST~LIS~ENT OF A N~S~CE ~ATEMENT BO~ P~SU~T TO FLORA STATUTE SECTION 893.138; PROLOG FOR NOTICE, ~~G, ~D OPE~TION PROCED~S; ~POI~NT ~D ~MOV~ PROCED~S FOR BO~ ME~ERS; E~ORCEMENT A~O~TY; JUDIC~ ~W; PRO~DING A SA~NGS CLAUSE, A GENE~ ~PE~ER CLAUSE, ~D ~ EFFECT~E DATE. ~E~AS, ~e State of Florida enacted Section 893.138, Fla. Stat. to allow a local gove~ent to establish a nuisance abatement bo~d to address ~e issues of prostitution ~d ~e sMe of con.oiled substances on prope~ wi~ ~e local govement's jurisdiction; ~d ~E~AS, ~e Delray Beach Ci~ Comssion reco~izes ~e si~fic~t effo~ of ~e cit~e~ of Delray Beach and ~e Delray Beach Police Depa~ent ~ wor~g toge~er to con~ol prostitution; ~e sale of con~olled substances, ~d cr~ smeet gang activiV; ~d ~E~AS, despite ~e effo~, ~e CiV of Delray Beach CiV Co~ission finds ~at ~ order m ~er protect im cities' heal~, safeV and well. e, ~e esmblis~ent of a nuis~ce abatement board is necessau to provide additioml assismce ~ ~e cont~ued effo~ to con~ol prostitution, ~e sale of conmolled subsmces, ~d cr~l s~eet gang activi~ wi~in ~e Ci~ 1~; ~d ~E~AS, ~e Dekay Beach Civ Comssion finds ~at ~e nuisance abatemem bo~d process, as au~or~ed by Section 893.138, Fla. Stat. will provide ~e cit~e~ of Dekay Beach ~ effective me.od of address~g nuis~ces wi~ ~e CiV. NOW, THE~FO~, BE IT O~NED BY ~E CITY COM~SSION OF ~E CITY OF DEL~Y BEACH, FLO~DA, AS FOLLOWS: Section 1. T~t Title 13, "General Offe~es', of ~e Ci~ of Delray Beach Code of Ord~nces is hereby mended by emct~g a new C~pter 135, "Abatement of Nuis~ces', w~ch rea~ as follows: Se~ion 135.01 TI~E. This a~icle shall be ~own as the "Ciw of Delray Beach Nuisance Abatement Ordinance. ' Writer's Direct Line: (407) 243-7090 DATE: December 3, 1996 i tl~ n.J.. ~~ .~ -- · Co s,ion avia *,o S~]ECT: Ordi~nce Es~blishing A Nuisance Abatement Board Section 893.138, Florida Statutes, authorizes the City to set up a Nuisance Abatement Board ("Board"). The Board would be composed of five regular members and two alternates. After receiving a complaint about a specific property, and providing notice to the owner, the Board would hold a hearing regarding the nuisance at the particular location. Under the ordinance, a nuisance is defined as follows: (1) As the site of the unlawful sale, delivery, manufacture or cultivation of any controlled substance; (2) 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; (3) As the site of a violation of Florida Statutes, {}796.07 (e.g. prostitution); or (4) Any place or building used by a youth and street gang for the purpose of conducting a pattern of youth and street gang activity as defined in Florida Statutes, Chapter 874. Thus, pursuant to the proposed ordinance, and state law, the Nuisance Abatement Board could only consider cases involving the above-described nuisances. All other nuisance issues will still be handled by the Code Enforcement Board. City Commission December 3, 1996 Page 2 The ordinance provides for notice to all interested parties and a hearing procedure. The procedures are established to provide the property owner and the City with equal opportunity to present evidence to the Board. After the preservation of evidence, the Board will issue an order based on the evidence presented. The order may prohibit the continuation of the nuisance, and/or require the owner to take measures to insure that the nuisance will cease. Board orders will be valid for one year, and if the owner fails to comply with the order, the Board may file suit in Circuit Court to seek injunctive relief. If you have any additional questions, please call. DNT:ci Attachment cc: David Harden, City Manager Susan A. Ruby, City Attorney Alison Harty, City Clerk Chief Richard Overman, Delray Beach Police Department Eric D. Hightower, Police Legal Advisor nab.dnt Wdter's Direct L~e: (~7) 243-7~ lll,lm~ca C~ DATE: December 6, 1996 1993 TO: David T. H~den, Ci~ Manager FROM: David N. Tolces, Assis~nt Ci~ A~orn~ SUBJECT: Nuisance Abatement Ordinance After discussing the proposed nuisance abatement ordinance with Susan Ruby and Chief Overman, it would appear that the most legally acceptable form of the nuisance abatement board would be to have the Police Legal Advisor present the cases to the board. An independent attorney would have to be hired to represent the board in order to avoid any conflict of interest concerns. The attached ordinance reflects the role of the Police Legal Advisor as the individual who will present cases to the board. Please substitute this ordinance for any prior ordinance I sent you. If you have any questions, please call. DNT:smk Attachment cc: Chief Richard Overman, Delray Beach Police Dept. Eric D. Hightower, Police Legal Advisor nab-2.dnt DELRAY BEACH Delray Beach Police Department AII-Amedca Ci~/ (407) 243-7888 Fax (407) 243-7816 1993 SUBJECT: ESTABLISHMENT OF A NUISANCE ABATEMENT BOARD IN DELRAY BEACH I have reviewed David Tolces's memorandum to you of November 8, 1996, outlining conditions under which a city may establish a nuisance abatement board. I strongly recommend that the City of Delray Beach consider the establishment of our own nuisance abatement board inasmuch as it does not appear that the County Nuisance Abatement Board is going to go forward any time soon. I believe that nuisance abatement is tantamount to the successful restoration of our neighborhoods and is a key tool to be used in a COlnmnnity policing approach to solving problems. I would hope that we could move as quickly as possible on this so that we can get back to the business of dealing with crock houses and other such nuisances which have a chilling effect on neighborhoods. RGO/ppt ORDINANCE NO. 5 9- 9 6 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, ENACTING A NEW CHAPTER 135, "ABATEMENT OF NUISANCES"; PROVIDING FOR THE ESTABLISHMENT OF A NUISANCE ABATEMENT BOARD PURSUANT TO FLORIDA STATUTE SECTION 893.138; PROVIDING FOR OPERATION PROCEDURES, ENFORCEMENT AUTHORITY, AND JUDICIAL REVIEW; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the State of Florida enacted Section 893.138, Fla. Stat. to allow a local government to establish a nuisance abatement board to address the issues of prostitution and the sale of controlled substances on property within the local government's jurisdiction; and WHEREAS, the Delray Beach City Commission recognizes the significant efforts of the citizens of Delray Beach and the Delray Beach Police Department in working together to control prostitution and the sale of controlled substances; and WHEREAS, despite the efforts, the City of Delray Beach City Commission finds that in order to further protect its citizens' health, safety and welfare, the establishment of a nuisance abatement board is necessary to provide additional assistance in the continued efforts to control prostitution and the sale of controlled substances within the City limits; and WHEREAS, the Delray Beach City Commission finds that the nuisance abatement board process, as authorized by Section 893.138, Fla. Stat. will provide the citizens of Delray Beach an effective method of addressing nuisances within the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE. CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Title 13, "General Offenses", of the City of Delray Beach Code of Ordinances is hereby amended by enacting a new Chapter 135, "Abatement of Nuisances", which reads as follows: Section 135.01 TITLE. This article shall be known as the "City of Delray Beach Nuisance Abatement Ordinance." Section 135.10 DEFINITIONS. (a) Public nuisance: Any place or premises within the Ci.ty limits of Delray Beach which has been used on more than two (2) occasions, within a six-month period: (1) As the site of the unlawful sale. delivery., manufacture or cultivation of any controlled substance: (2'} 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: (3) As the site of a violation of Florida Statutes. 8796.07: or (4) Any place or building used by a youth and street gang for the pu~ose of conducting a pattern of youth and street gang activity_ as defined in Florida Statutes. Chapter 874. Board: The nuisance abatement board of the City_. (c~ Clerk: Person appointed bv the local governing body of the City. to perform the clerical duties necessary_ to carry, out the activities of the nuisance abatement board. (d) Operator: Tenant. lessee or person having control or possession of the premises. (el Controlled Substance: Includes any substance sold in lieu of a controlled substance in violation of Florida Statutes. _~ 817.563. or any imitation controlled substance defined in Florida Statutes. ~ 817.564. Section 135.20 NUISANCE ABATEMENT BOARD: ORGANIZATION. (al There is hereby created and established a nuisance abatement board to hear evidellce relating to the existence of public nuisances on premises located in the City.. This board shall consist of five (5) re_m.tlar members and two (2'} alternate members appointed by a ma_iority vote of the City Commission for two-year terms, except as set forth herein at subsection (bi. Members of the nuisance abatement board shall be persons who reside in the City_. (bi The initial appointments to the nuisance abatement board shall be a~ follows: 2 ORD. NO. 59-96 (1) Two (2) re_c, ular members and the chairman appointed for a term of two (2) years: and (2) Two (2) regular members shall be appointed for a term of one (1) year. (3) Two (2) alternate members shall be appointed for a term of tWO (2) years. Upon expiration of initial terms, subsequent appointments for two (2) years shall be made. Any member who has not completed two (2) full consecutive terms may be reappointed by the Ci~ Commission. Appointments to fill a vacancy shall be for the remainder of the unexpired term. Any member who fails to attend two (2) of three (3) successive meetings without cause arid without prior approval of the chairman shall automatically forfeit his appointment, and the City_ Commission shall promptly fill such vacancy for the remainder of the term. (c) The presence of three (3) or more members shall constitute a quorum. Members shall serve without compensation. Section 135.30 OPERATING PROCEDURES. (a) Any employee, officer or resident of the City. may file a complaint with the Police Department regarding the existence of a public nuisance, as defined in Section 135.10(a), on premises located in the City_. Co) When the Police Department receives a complaint, the Police Legal Advisor shall review the complaint to determine if the complaint properly alleges that a public nuisance, as defined in Section 135.10(a3. exists on the premises. If the Police Legal Advisor determines that the complaint Properly alleges that a public nuisance exists on the premises, the Police Legal Advisor shall promptly request a hearing before the nuisance abatement board. (c) The nuisance abatement board, through its clerk, shall schedule a hearing: and written notice of the heating shall be sent to the owner and operator(s) of the premises at their last-known addresses at least five (55 days prior to the scheduled hearing. The aforesaid notice of hearing shall include: (13 A statement of the time. place and nature of the heating. (2) A statement of the legal authori~ and jurisdiction under which the hearing is to be held. 3 ORD. NO. 59-96 (3) A reference to the particular sections of the statutes and ordinances involved. (,~) A short and plain statement summarizing the incidents complained of. Section 135.40 CONDUCT OF HEARINGS. (a) The chairman of the board may call hearings of the board. Hearings may also be called by written notice signed by at least three (3) members of the board. The board, at a hearing, may set a future hearing date. The board shall attempt to convene no less frequently than once every_ month but may meet more or less often as the demand necessitates. The board shall adopt rules for the conduct of its hearings. Minutes shall be kept of all hearings, and all hearings shall be open to the public. The Ci_ty shall provide clerical and administrative personnel as may be reasonably required for the proper performance of the board's duties, (b) The Police Legal Advisor shall present cases before the board, All parties shall have an oppormniw to present evidence and argument on all issues involved, to conduct cross- examination, to submit rebuttal evidence, and to be represented bv counsel. When appropriate. the general public may be given an opportunity_ to present oral or written communications. The board may consider any evidence, including evidence of the general reputation of the place or premises. All testimony shall be under oath and shall be recorded. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. Orders of the board shall be based on competent and substantial evidence, anal any finding that a nuisance exists must be based on a "preponderance of the evidence" standard. (c) After considering all evidence, the board may declare the place or premises to be a public nuisance as defined in Section 135.10(a) and may enter an order as follows: (1) Immediately prohibiting the maintaining of the nuisance; (2) Immediately prohibiting the operating or maintaining of the place or premises including the closure of the place or premise~ or ~nY part thereof: (3) Immediately prohibiting the conduct, operation or maintenance of any business or activity, on the premises which is conductive to ~uch nuisance: (4) Requiring the owner of such place or premises declared to be a public nuisance to adopt such procedure as may be appropriate under the ~jrcumstances to abate any such nuisance. 4 ORD. NO. 59-96 All orders of the board shall be by motion approved by a majority, of those members present and voting, except that at least three (3) members, of the board must be present in order for the action to be official. (dj An order entered under subsection (c) shall expire after one (1) year. or at such earlier time as stated in the order. The board may retain jurisdiction to modify_ its orders prior to the expiration of the orders. (e) The City_ Police Department shall assist the board in carrying out any legally authorized order rendered pursuant to this article. (D In the event that orders of the board expire and/or are not complied with. or are for any reason ineffective, the board may then bring a complaint under Florida Statutes, _~ 60.05. seeking a permanent injunction against any public nuisance described in Section 135.10(a). AU order entered hereunder may be enforced pursuant to the procedures contained in Florida Statutes. § 120.69. Section 135.50 JUDICIAL REVIEW. Any person, including the Ci.ty of Delray Beach. aggrieved by any ruling or order of the nuisance abatement board, may seek review by certiorari in the circuit court. A petition for writ of certiorari shall be filed within thirty, (30) days of the date of the written order appealed from. Section 135.60 RIGHTS PRESERVED. This article does not restrict the right of any person to proceed under either Section 60,05 or Section 823.05. Florida Statutes. against any public nuisance. ~ That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a Court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 3. That all ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. Section 4. That this ordinance shall become effective ten (10) days from its passage on second and final reading. 5 ORD. NO. 59-96 PASSED AND ADOPTED in regular session on second and final reading on this the ~ day of ,1996. MAYOR ATTEST: City Clerk First Reading. Second Reading. nab.ord 6 ORD. NO. 59-96 100 N.W. ~ Avefwe, D~ray ~ Fkx'lda, ~* which time fire C~' rJl~l~ ~ THE CI~ 9~CH, FLORI~ ENDING NEW C~ER 1~ ~A~T~NT ~E E~ABLIWENT ~ A NUI- ~E WT~ENT ~RD PUt- .ANT TO F~RIDA STATUTE SEC- E~TI~ PRKE~RE~ ~ViNGS C~USE, A 6ENE~L RE- ~E~ C~USE, AND ~ EFFEC- TIVE ~TE. CI~ OF ~LRAY BE~CH o~c 6 ~6 CITY OF I]ELRAY BEIII:H CITY ATTORNEY'S OFFICE ~'"' :~'" ~ "'""~"~ ~'' ;~'~'-~'¥ ~"'~*' ~,~o~, ~4 Wrimr's Direct Line: (407) 243-70~ D[LRAY ~EACH Ali.America City ~MO~D~ ' ll Z e em r6, 996 1993 TO: David T. Harden, City Manager FROM: David N. Tolces, Assistant City A~orn~ SUBJECT: Nuisance Abatemem Ordinance After discussing the proposed nuisance abatemem ordinance with Susan Ruby and Chief Overman, it would appear that the most legally acceptable form of the nuisance abatement board would be to have the Police Legal Advisor present the cases to the board. An independem attorney would have to be hired to represem the board in order to avoid any conflict of interest concerns. The attached ordinance reflects the role of the Police Legal Advisor as the individual who will presem cases to the board. Please substitute this ordinance for any prior ordinance I sent you. If you have any questions, please call. DNT:srnk Attachment cc: Chief Richard Overman, Delray Beach Police Dept. Eric D. Hightower, Police Legal Advisor nab-2.dnt CITY OF DELRflY BEfli:H CITY oATTflDI'IrV'O OFFICE Writer's Direct Line: (407) 243-7090 DF[RAY BFACH Ali.America City MEMORANDUM lll~l~llll' DATE: December3, 1996 1993 TO: City Commission FROM: David N. Tolces, Assistant City Attorne<~~ SUBJECT: Ordinance Establishine A Nuisance Abatement Board Section 893.138, Florida Statutes, authorizes the City to set up a Nuisance Abatement Board ("Board"). The Board would be composed of five regular members and two alternates. After receiving a complaint about a specific property, and providing notice to the owner, the Board would hold a hearing regarding the nuisance at the particular location. Under the ordinance, a nuisance is defined as follows: (1) As the site of the unlawful sale, delivery, manufacture or cultivation of any controlled substance; (2) 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; (3) As the site of a violation of Florida Statutes, §796.07 (e.g. prostitution); or (4) Any place or building used by a youth and street gang for the purpose of conducting a pattern of youth and street gang activity as defined in Florida Statutes, Chapter 874. Thus, pursuant to the proposed ordinance, and state law, the Nuisance Abatement Board could only consider cases involving the above-described nuisances. All other nuisance issues will still be handled by the Code Enforcement Board. City Commission December 3, 1996 Page 2 The ordinance provides for notice to all interested parties and a hearing procedure. The procedures are established to provide the property owner and the City with equal opportunity to present evidence to the Board. After the preservation of evidence, the Board will issue an order based on the evidence presented. The order may prohibit the continuation of the nuisance, and/or require the owner to take measures to insure that the nuisance will cease. Board orders will be valid for one year, and if the owner fails to comply with the order, the Board may file suit in Circuit Court to seek injunctive relief. If you have any additional questions, please call. DNT:ci Attachment cc: David Harden, City Manager Susan A. Ruby, City Attorney Alison Harty, City Clerk Chief Richard Overman, Delray Beach Police Department Eric D. Hightower, Police Legal Advisor DELRAY BEACH Delray Beach Police Department AII-AmericaCity (407) 243-7888 Fax (407) 243-7816 1993 SUBJECT: ESTABLISHMENT OF A NUISANCE ABATEMENT BOARD IN DELRAY BEACH I have reviewed David Tolces's memorandum to you of November 8, 1996, outlining conditions under which a city may establish a nuisance abatement board. I strongly recommend that the City of Delray Beach consider the establishment of our own nuisance abatement board inasmuch as it does not appear that the County Nuisance Abatement Board is going to go forward any time soon. I believe that nuisance abatement is tantamount to the successful restoration of our neighborhoods and is a key tool to be used in a community policing approach to solving problems. I would hope that we could move as quickly as possible on this so that we can get back to the business of dealing with crack houses and other such nuisances which have a chilling effect on neighborhoods. RGO/ppt ORDINANCE NO. 5 9- 9 6 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, ENACTING A NEW CHAPTER 135, "ABATEMENT OF NUISANCES"; PROVIDING FOR THE ESTABLISHMENT OF A NUISANCE ABATEMENT BOARD PURSUANT TO FLORIDA STATUTE SECTION 893.138; PROVIDING FOR OPERATION PROCEDURES, ENFORCEMENT AUTHORITY, AND JUDICIAL REVIEW; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the State of Florida enacted Section 893.138, Fla. Stat. to allow a local government to establish a nuisance abatement board to address the issues of prostitution and the sale of controlled substances on property within the local government's jurisdiction; and WHEREAS, the Delray Beach City Commission recognizes the significant efforts of the citizens of Delray Beach and the Delray Beach Police Department in working together to control prostitution and the sale of controlled substances; and WHEREAS, despite the efforts, the City of Delray Beach City Commission finds that in order to further protect its citizens' health, safety and welfare, the establishment of a nuisance abatement board is necessary to provide additional assistance in the continued efforts to control prostitution and the sale of controlled substances within the City limits; and WHEREAS, the Delray Beach City Commission finds that the nuisance abatement board process, as authorized by Section 893.138, Fla. Stat. will provide the citizens of Delray Beach an effective method of addressing nuisances within the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE. CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Title 13, "General Offenses", of the City of Delray Beach Code of Ordinances is hereby amended by enacting a new Chapter 135, "Abatement of Nuisances", which reads as follows: Section 135.01 TITLE. This article shall be known as the "City of Delray Beach Nuisance Aba~;emerl[ Ordinance." Section 135.10 DEFINITIONS. (a) Public nuisance: Any place or premises within the City. limits of Delray Beach which has been used 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: (2) 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 unlawflll ~ale. delivery., manufacture, or cultivation Of any controlled substance: (3) As the site of a violation of Florida Statutes. ~796.07; or (4) Any place or building used by a youth and street gang for the pu~ose of fonducting a pattern of youth and street gang activity as defined in Florida Statutes. Chapter 874, (b) Board: The nuisance abatement board of the Ci.ty. (c) Clerk: Person appointed by the local governing body of the Ci_ty to perform the clerical duties necessary_ to carry, out the activities of the nuisance abatement board, (d) Operator: Tenant. lessee or person having control or possession of the premises. (e) Controlled Substance: Includes any substance sold in lieu of a controlled substance in violation of Florida Statutes. ~ 817.563. or any imitation controlled substance defined in Florida Statutes. ~ 817.564. Section 135.20 NUISANCE ABATEMENT BOARD: ORGANIZATION. (a) There is hereby created and established a nuisance abatement board to hear evidence relating to the existence of public nuisances on premises located in the City.. This board ~hal! consist of five (5) re~lar members and two (2) alternate members appointed by a majori .ty vote of the City Commission for two-year terms, except as set forth herein at subsection (b). Members of the nuisance abatement board shall be persons who reside in the City.. (b) The initial appointments to the nuisance abatement board shall be as follows: 2 ORD. NO. 59-96 (D Two (2) regular members and the chairman appointed for a term of two (2) years: and (2) Two (2) re_eular members shall be appointed for a term of one (15 year. (3) Two (2) alternate members shall be appointed for a term of two (2) years. Upon expiration of initial terms, subsequent appointments for two (2) years shall be macle. Any member who has not completed two (2) full consecutive terms may be reappointed by the City Commission. Appointments to fill a vacancy shall be for the remainder of the unexpired term, Any member who fails to attend two (2) of three (3) successive meetings without cause and without prior approval of the chairman shall automatically forfeit his appointment, and the City Commission shall promptly fill such vacancy for the remainder of the term, (c) The presence of three (3) or more members shall constitute a quorum. Members shall serve without compensation. Section 135.30 OPERATING PROCEDURES. (a) Any employee, officer or resident of the Ci.ty may file a complaint with the Police Department regarding the existence of a public nuisance, as defined in Section 135.10(a). on premises located in the City_. (b) When the Police Department receives a complaint, the Police Legal Advisor shall review the complaint to determine if the complaint properly alleges that a public nuisance, as defined in Section 135.10(a). exists on the premises. If the Police Legal Advisor ~letermines that the complaint properly alleges that a public nuisance exists on the premises, the Police Legal Advisor shall promptly request a hearing before the nuisance abatement board. (c) The nuisance abatement board, through its clerk, shall schedule a hearing: and written notice of the hearing shall be sent to the owner and operator(s/ of the premises at their last-knowI~ addresses at least five (5) days prior to the scheduled hearing. d) The aforesaid notice of hearing shall include: (1) A statement of the time. place and nature of the hearing. (2) ,4, statement of the legal authority_ and jurisdiction under which the hearing is to be held. 3 ORD. NO. 59-96 (3) A reference to the particular sections of the statutes and ordinances involved. (4) A short and plain statement summarizing the incidents complained of. Section 135.40 CONDUCT OF HEARINGS. (a) The chairman of the board may call hearings of the board. Hearings may also be called by written notice signed by at least three (3) members of the board. The boar~l, at a hearing, may set a future hearing date. The board shall attempt to convene no less frequently than once every_ month but may meet more or less often as the demand necessitates. The board shall adopt rules for the conduct of its hearings. Minutes shall be kept of all hearings, and all hearings shall be open to the public. The Ci.ty shall provide clerical and administrative personnel as may be reasonably required for the proper performance of the board's duties, (b) The Police Legal Advisor shall present cases before the board. Ail parties shall have an opportunity to present evidence and argument on all issues involved, to conduct cross- examination, to submit rebuttal evidence, and to be represented by counsel. When appropriate. the general public may be given an opportunity_ to present oral or written communications. The board may consider any evidence, including evidence of the general reputation of the place or premises. All testimony shall be under oath and shall be recorded. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. Orders of the board shall be based on competent and substantial evidence, and any finding that a nuisance exists must be based on a "preponderance of the evidence" standard. (c) After considering all evidence, the board may declare the place or premises to be a public nuisance as defined in Section 135.10(al and may enter an order as follows: (1) Immediately prohibiting the maintaining of the nuisance: (2) Immediately prohibiting the operating or maintaining of the place or premises including the closure of the place or premises or any part thereof: (3) Immediately prohibiting the conduct, operation or maintenance of any business or activi .ty on the premises which is conductive to such nuisance: (4) Requiring the owner of such place or premises declared to be a public nuisance to adopt such procedure as may be appropriate under the circumstances to abate any such nuisance. 4 ORD. NO. 59-96 All orders of the board shall be by motion approved by a majority_ of those members present and voting, except that at least three (3) members, of the board must be present in order for the action ~;o be official. (d) An order entered under subsection (c) shall expire after one (1) year. or at such earlier time as stated in the order. The board may retain jurisdiction to modify, its orders prior to the expiration of the orders. (e) The Ci.ty Police Department shall assist the board in carrying out any legally authorized order rendered pursuant to this article. (th In the event that orders of the board expire and/or are not complied with. or are for any reason ineffective, the board may then bring a complaint under Florida Statutes. ~_ 60.05. seeking a permanent injunction against any public nuisance described in Section 135.10(a), An order entered hereunder may be enforced pursuant to the procedures contained in Florida Statutes. ~ 120.69. Section 135.50 JUDICIAL REVIEW. Any person, including the City. of Delray Beach. aggrieved by any ruling or order of the nuisance abatement board, may seek review by certiorari in the circuit court. A petition for writ of certiorari shall be filed within thirty. (30) days of the date of the written order appealed from. Section 135.60 RIGHTS PRESERVED. This article does not restrict the right of any person to proceed under either Section 60.05 or Section 823.05. Florida Statutes. against any public nuisance. Section 2. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a Court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 3. That all ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. Section 4. That this ordinance shall become effective ten (10) days from its passage on second and final reading. 5 ORD. NO. 59-96 PASSED AND ADOPTED in regular session on second and final reading on this the day of ,1996. MAYOR ATTEST: City Clerk First Reading Second Reading. nab.ord 6 ORD. NO. 59-96