HomeMy WebLinkAboutOrdinance No. 06-2008ORDINANCE NO, 06 -2008
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CAPE CANAVERAL, FLORIDA, AMENDING CHAPTER 2,
ARTICLE VI, OF THE CITY CODE RELATED TO CODE
ENFORCEMENT; CREATING A NEW DIVISION ENTITLED
"PUBLIC NUISANCE ABATEMENT "; ESTABLISHING A
PURPOSE AND INTENT; ESTABLISHING A PUBLIC
NUISANCE ABATEMENT BOARD; PROVIDING FOR THE
BOARD'S MEMBERSHIP AND MEETING REQUIREMENTS;
PROVIDING DEFINITIONS; PROVIDING POWERS OF THE
BOARD; ESTABLISHING THE NUISANCES SUBJECT TO
ENFORCEMENT BY THE BOARD; PROVIDING FOR
ENFORCEMENT, NOTICE AND HEARING PROCEDURES;
PROVIDING FOR PENALTIES, FINES, AND LIENS;
PROVIDING FOR AN APPEAL; PROVIDING FOR THE
REPEAL OF PRIOR INCONSISTENT ORDINANCES AND
RESOLUTIONS; INCORPORATION INTO THE CODE;
SEVERABILITY; AND AN EFFECTIVE DATE.
WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State
Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
law; and
WHEREAS, the City Council of the City of Cape Canaveral desires to ensure that the
citizens of Cape Canaveral enjoy a high quality of life and may peacefully enjoy the beauty of the
City; and
WHEREAS, by taking every reasonable action available under law to remediate and prevent
nuisances, the City Council can protect the citizens of Cape Canaveral and facilitate the peaceful and
harmonious lifestyle provided by the City; and
WHEREAS, section 893.138, Florida Statutes, authorizes the City to create an
administrative board with the authority to impose administrative fines and other noncriminal
penalties in order to provide an equitable, expeditious, effective, and inexpensive method of
enforcing ordinances within the City under circumstances when a pending or repeated violation
continues to exist; and
WHEREAS, consistent with section 893,138, Florida Statutes, the City Council desires to
establish a Criminal Nuisance Abatement Board, to prosecute criminal nuisances before the board,
and to allow for the imposition of enhanced fines for recurring criminal nuisances; and
WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this
City of Cape Canaveral
Ordinance No. 06 -2008
Page 1 of 10
Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Cape
Canaveral.
BE IT ORDAINED by the City Council of the City of Cape Canaveral, Brevard
County, Florida, as follows:
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this
reference as legislative findings and the intent and purpose of the City Council of the City of Cape
Canaveral.
Section 2. Code Amendment. Chapter 2, Administration, of the Code of Ordinances,
City of Cape Canaveral, Florida, is hereby amended as follows underlined type indicates additions
and OLIMA.11 type indicates deletions, while asterisks indicate a deletion from this Ordinance
of text existing in Chapter 2. It is intended that the text in Chapter 2 denoted by the asterisks and
set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of
this Ordinance):
CHAPTER 2. ADMINISTRATION
ARTICLE VI. CODE ENFORCEMENT
DIVISION 3. CODE ENFORCEMENT CITATIONS
DIVISION 4. CRIMINAL NUISANCE ABATEMENT BOARD
See. 2 -292. Purpose and intent.
Pursuant to the City's authority established in section 893.13 8, Florida Statutes, the purpose
of this division is to promote, protect and improve the health, safety welfare and quality of life of
the citizens of the City of Cape Canaveral by creating an administrative board with the authority to
impose administrative fines and noncriminal penalties in order to provide an equitable,
expeditious, effective and inexpensive method of enforcing the City Code under circumstances
when a pending or repeated violation continues to exist.
It is the intent of this division to provide the city with an additional and supplemental means
to abate drug, prostitution, dealing in stolen property, and criminal street gang activities amounting
City of Cape Canaveral
Ordinance No. 06 -2008
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to a public nuisance. Nothina contained herein shall Dreclude the city from abating nuisances under
section 60.05., Florida Statutes, or as otherwise provided by federal, state or local law.
Sec. 2 -293. Establishment; membership; meetings; definitions.
Criminal nuisance abatement hoard established. Pursuant to section 893.13 $
Florida Statutes, the code, enforcement board is hereby desi mated and established as the
criminal nuisance abatement board and shall act as the citv's administrative board to hear
complaints regardin nuis ances as provided for in this division.
Membership. The terms of office of the board members shall coincide with terms
of office of the code enforcement board members. W -
LcI Meetings. The board shall establish a schedule of r egular meetings at such intervals
as the board.may determine, but not less frequently than once every two (2} months. Regular
meetings ofthe board shall be scheduled where possible to immediately precede the ere larly
scheduled meetings of the code enforcement board and ma be cancelled by the chaff erson
if there is no business to come before the board.
d� De finitions. As used in this division the following terms shall have the followin
meanings unless the context clearly indicates that . a different_ meaning is intended:
OU manager shall mean the city manager of Cape Canaveral or the city manager's designee.
Controlled substance shall mean any drug, narcotic, or other substance _ identified and
prohibited under _Chapter 893 Florida Statutes. as may be amended. w
Criminal street gan shal have the same meaning as set forth under section 874.03, Florida
Statutes, as maybe amended.
Criminal street gang activi sh all mean those activities committed by a criminal street gang
or member thereof as set forth under section 874.03 as ma be amended.
Dealing in stolen pMperU shall have the same meaning as that provided under section
812.019 Florida Statutes as ma be amended.
Nuisance abatement coordinator shall mean the officer or officers of the Brevard Count
Sheriff's Department desigLi by the city manager responsible for overseeing and enforcinp, the
rovisions of this division on behalf of the
Prostitution Prostitution-related activity shall mean any act constituting a violation of
section 796.07. Florida Statues, as may be amended.
Recording secretaCy fo the nuisance abatement hoardlrecordingrsecretary shall mean a city
City of Cape Canaveral
Ordinance No. 06 -2008
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staff member or clerk assigned to the criminal nuisance abatement board
Recurring criminal nuisance means any single or multiple instance of conduct prescribed in
section 893.138. Florida Statutes, as may be amended that occurs during the effective term of an
order entered by the board.
Stolen property shall mean tangible, intanizible, personal or real .. property having any
monetary or market value and that has been the subject of any temporary or permanent criminal
taking in violation of the laws of the State of Florida
Sec. 2-294. Powers,
The Criminal nuisance abatement board shall have the powers delineated in section 893.13 8
Florida Statutes, which shall include, but not be limited to, the following:
Adopting rules for the conduct of its hearings.
Subpoenaing alleged violators and witnesses to its hearings
Lcj Subpoenaing records i s urvey plats, or other documentary „evidence which subpoenas
shall be served by the police de artment.
Taking testimony under oath.
Issuing orders having force and effect of law commanding whatever steps are
necessary to brim a violation into compliance.
ft Establishing andjeyying fines.
Sec. 2 -295. Criminal nuisances established; violations.
It shall be a criminal nuisance and a violation of this division„ for any place or premises, or
any part thereof to be used or allowed to be used:
On more than two (2) occasions within .a, 6 -month period for prostitution or
p rostitution-related activities•
On more than two (2) occasions within a 6 -month period, as the site of the unlawful
sale, delivery, manufacture, or cultivation of any controlled substance•
Lcl On one l l) 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) as the site of the unlawful sale, delivery manufacture or cultivation of any
controlled substance;
City of Cape Canaveral
Ordinance No. 06 -2008
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(d)„ By a criminal street ganiz for the purpose of „conducting a pattern of criminal street
gang activity; or
On more than two (2) occasions within a 6 -month period, as the site of a violation
relating, to dealing in stolen property.
Sec. 2 -296. Enforcement procedures; notice; hearing.
Any employee,, officer, or resident of the city may file, in accordance with this
section, a written complaint alleginithe existence of a criminal nuisance. The complaint
shall only be for those nuisances enumerated in this division and shall state facts that
reasonably tend to establish the existence of such criminal nuisance.
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 this
division. Where the complaint alleges the requisite number of incidents or occurrences to
establish a nuisance under this division the nuisance abatement coordinator shall forward
the cam laint with incident or arrest reports generated by the sheriff s
department substantiating such incidents or occurrences or evidencing new ,.or . additional
incidents or occurrences to the city attomU.
The city manager shall review all complaints - to „verify the findings of the nuisance
abatement coordinator. If the cit y manager deems the complaint sufficient under this
division to support a probable finding of the existence of a criminal 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 of the premises where the
nuisance has occurred a brief statement describing the incidents or occurrences which
support the finding of a criminal nuisance upon the premises, and recommendations of
remedial action to be taken to abate the criminal nuisance upon the property. Thy owner of
the premises shall have ten (10) calendar days from the date of the notice to contact the
nuisance abatement coordinator to indicate what action will be taken to abate the nuisance
Mon the premises. Failure of the owner to receive this notice of violation shall not invalidate
any further proceedings hereunder.
If a recurring criminal nuisance or ememency situation exists the nuisance abatement
coordinator shall not be required to provide a courtesy notice of violation. but instead ma
prepare and serve a statement of violation and notice of hearing - as_Drovided 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 nuisance upon the pro
a hearing date shall be scheduled before the board. Such hearing shall be held no sooner than
City of Cape Canaveral
Ordinance No. 06 -2008
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ten 1 o�_calendar days after the notice ofhearing is sent to .the owner of the place or premises
at the owner's last known address. The nuisance abatement coordinator shall then prepare and
serve upon the owner or operator, in accordance with this division, a statement of
violation/notice of heafing groviding the following information:
A statement of the time, glace and nature of the hearingi
A statement of the = legal authority and jurisdiction under which the hearing
is to be held•
A reference to the particular sections of the statutes and ordinances involved:
4 A copy of the statement of violation, including all documentation, in support
thereof; and
All notices under this division shall be hand - delivered by the Brevard CauntY
Sheriff's 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 county property appraiser's _office. If the - notice is returned for any
reason then service shall be effected by mailing the notice through repular delivery to the
address of the 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.
The city manager may ne _stipulated settlement agreements with a prop
owner to facilitate the abatement of a criminal nuisance. All stipulated agreements shall be
reviewed and approved by the nuisance coordinator and board prior to being
effective. The board shall gporove all settlement ajueements by written order.
f� At the hearing, the nuisance abatement coordinator shall present evidence before the
board on behalf of the city and has the burden to rove the existence of a criminal nuisance
by substantial and competent evidence. The board may consider anyevidence, regarding the
activities alleged in the statement of violation and occurring_ about the place or „ premise
s, and
the owner(s) of the place or premises shall have the mp,ortunity to appear before the board,
in person and./or through legal counsel, to present evidence in defense or in mitigation against
the complaint, conduct crass - examination, submit rebuttal evidence, and make brief opening
and/or closing statements. Irrelevant immaterial or unduly_ repetitive evidence shall be
excluded. All testimon 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 may be called by the respective sides. Formal
rules of evidence shall not awly., awl but fundamental due process shall be observed and govern
said proceedin s._In additions_the board may consider testimony and evidence relatiny, to the
general reputation of the place or premises; and
City of Cape Canaveral
Ordinance No. 06 -2008
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The board m4y moceed with a hearing in _absentia on the merits of an alleged criminal
nuisance against any property owner who has been properly noticed under this division and
has failed to appear. Any findings or orders entered by the board are valid and binding upon
each Respondent who has been properly noticed.
The board, in its discretion, may continue a hearing to receive additional evidence, testimonL
or for any- other reason the board deems appropriate.
At the conclusion of the hean*nR the board shall issue findings of fact based on
evidence in the record and conclusions of law, and shall issue an order affording the ra er
relief consistent with the Mowers granted by Florida Statutes and by this section. The order
shall be stated orally at the meeting and shall be reduced to writing and mailed to the all
violator within ten 1 calendar da s after the hearing.
If the board declares a place or premises to be . ,a criminal nuisance, it may enter an
order immediately prohibitin
X1,2 The maintaining of the nuisance:
The operating or maintaining of the place or premises:
The conduct operation, or maintenance of any business or activity on the
premises which is conducive to such nuisance; or
May impose any other measures or conditions the board deems_ appropriate
to abate a criminal nuisance.
C11 This subsection does not restrict the n* h,htt o f any person, including the city, to proceed
under section 60.05, Florida Statutes against any public nuisance.
01 If the city proves the existence of a criminal nuisance or recurring criminal nuisance
before the board, the city, as the prevailing.party, shall be entitled to recover its reasonable
fees and casts associated with the investigation, hearinR and prosecution on the criminal
nuisance throujzh all appellate proceedings, including attorney's fees and the costs of
recording any order, notice or a reement.
An order of the board shall expire not more than one (1) year, or at such earlier time
designated in the order, after entry of the order by the board. The order may include deadlines
or other notice for requiring compliance by a certain date and that a fine maybe imposed in
accordance with this division.
Sec. „2 -297. Penalties; finest liens; recording.
The city manager shall, upon notification by the recording secretary an affidavit
Cit of Cape Canaveral
Ordinance No. 06 -2008
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of noncompliance has been filed by the nuisance abatement coordinator reflecting that a
p revious order of the board has not been complied with schedule a heafina before the board.
Upon evidence establishing that noncompliance exists, the board shall enter an order
imposing conditions an any, other measures to abate the criminal nuisance as provided by
this division, 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 criminal nuisance and shall not exceed five
hundred dollars ($500.0% per day for a recurring criminal nuisance. However, total fines
im osed in an action brought pursuant to this division shall not exceed fifteen thousand
dollars 15 000.00 . In determining the amount of the fine if an the board shall consider
the following factors:
The gavity of the criminal nuisance:
AM actions taken by the owner to correct the criminal nuisance; and
X3,2 AU previous nuisances maintained or permitted by the owner.
A certified copy of an order imposinga_fine may be recorded in the public records
of the county_, and thereafter shall constitute a lien against the land on which the violation
exists and upon any other real or personal property owned by the owner. Upon petition to the
circuit - court, such may be enforced in the same manner as judgment by the
sheriffs of this state includin g levy against personal property, but such order shall not be
deemed to be a court judament exce t for enforcement pup2oses. A fine im osed ursuant
to this division shall continue to accrue until the owner comes into com fiance or until the
judgment 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 favor of the
city, and the city . ma exe cute a satisfaction or release of a lien in the same manner as
p rovided under section 2 -250 of this Code or ma otherwise seek to foreclose on the lien.
However, where the nuisance abatement action is based on a stolen property nuisance, and
is brou ht a ainst a property owner o eratin an establishment where multi le tenants on
one site, conduct their own retail businesses, the property owner shall not be subject to a lien
against the owner's property or the prohibition of operation provision if the propelly owner
elects to evict the business declared to be a nuisance within ninety (90) calendar days after
notification by revered mail to the property owner of a second stolen property conviction
of the tenant. An lien recorded against real propelly mav be foreclosed b the city and the
owner of such real property shall be liable for all costs including a reasonable attorney's fee
associated with the recording of all orders and foreclosure.
(d) The board may further bring a complaint pursuant to section 60.05, Florida Statutes,
seeking a permanent injunction aizainst any nuisance as described in this division. This
section does not restrict the right of any person to proceed under section 60.05, Florida
Statutes, aizainst_any criminal nuisance.
City of Cape Canaveral
Ordinance No. 06 -2008
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Sec. 2-298. Appeal.
A party aggrieved by a final administrative order of the board shall have the right to appeal
said order to a court of competent jurisdiction,pursuant to the rules of procedure of the court.
Sec. 2-299. Reserved.
Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances and resolutions adopted by the City Council,or parts of prior ordinances and
resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the
Cape Canaveral City Code and any section or paragraph,number or letter, and any heading may be
changed or modified as necessary to effectuate the foregoing. Grammatical,typographical,and like
errors may be corrected and additions, alterations, and omissions, not affecting the construction or
meaning of this ordinance and the City Code may be freely made.
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 Council of the City of Cape Canaveral, Florida.
ADOPTED by the City Council of the City of Cape Canaveral,Florida,this 6th day o May,
2008.
G?"-40C...4A
ROCKY RANLS, Mayor
ATTEST: For Against
Bob Hoog X
„�— Leo Nicholas Motion
Buzz Petsos X
Rocky Randels X
SUSAN STILLS, City Clerk C. Shannon Roberts Second
First Reading: 04/15/08
Legal Ad published: 04/26/08
Second Reading: 05/06/08
City of Cape Canaveral
Ordinance No.06-2008
Page 9 of 10
Approved as to 1 form and sufficiency for
the City of e C averal only:
ANT NY A. GARGANE SE, City Attorney
City of Cape Canaveral
Ordinance No. 06 -2008
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