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HomeMy WebLinkAboutPacket 01-24-2008 WorkshopCITY COUNCIL WORKSHOP MEETING WITH THE PLANNING & ZONING BOARD CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida Thursday January 24, 2008 5:30 PM AGENDA CALL TO ORDER: ROLL CALL: DISCUSSION: 1. Proposed Chronic Nuisance Ordinance ADJOURNMENT: Pursuant to Section 286.0105, Florida Statutes, the City hereby advises the public that: If a person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. Persons with disabilities needing assistance to participate in any of these proceedings should contact the City Clerk's office (868-1221) 48 hours in advance of the meeting. 105 Polk Avenue — P.O. Box 326 — Cape Canaveral, FL 32920 Telephone (321) 868-1221 — Fax (321) 799-3170 — www.myflorida.com/cape e-mail: ccapecanaveral@cfl.rr.com Meeting Type: Workshop Meeting Date: 01-24-08 AGENDA Heading Discussion Item excess of two (2) incidents of service within a one (1) year period. No. property owner, with possible abatement action by the Code Enforcement Board and City Attorney's office. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: DISCUSSION: CHRONIC NUISANCE ORDINANCE DEPT/DIVISION: LEGISLATIVE Requested Action: City Council continue the review of the proposed ordinance. Summary Explanation & Background: The 07-31-07 draft of the Chronic Nuisance Ordinance provides for user charges for nuisance activities in excess of two (2) incidents of service within a one (1) year period. I am proposing to add a nuisance abatement provision that will require an abatement agreement with the property owner, with possible abatement action by the Code Enforcement Board and City Attorney's office. Cases involving chronic nuisance criminal activity will be worked by the Cape Canaveral Sheriff's Office and other non -criminal chronic nuisance cases by the Code Enforcement Officer. See the attached Florida Senate Nuisance Abatement Report and ordinances from the Cities of Tacoma and Spokane, Washington. A revised draft ordinance with the abatement provisions will be distributed upon receipt from the City Attorney's office. Please advise. Exhibits Attached: See attached, with 07-10-07, 08-28-07 and 09-13-07 Workshop Minutes City Manager's Office Department LEGISLATIVE -n cim\mydo omen n\counc-i'±4MleQ4a-ng'\ZUUU\U1-z4-Ub\cnronicnuisance.doc Draft July 31, 2007 ORDINANCE NO. -2007 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, FLORIDA, AMENDING CHAPTER 2, ARTICLE VI, OF THE CAPE CANAVERAL CODE OF ORDINANCES REGARDING CODE ENFORCEMENT; CREATING A NEW DIVISION REGARDING CHRONIC NUISANCE PROPERTIES; ESTABLISHING A REASONABLE NUMBER OF NUISANCE ACTIVITY CALLS PER PROPERTY IN ANY ONE (1) YEAR PERIOD AND SETTING FORTH USER CHARGES FOR NUISANCE ACTIVITIES CALLS IN EXCESS OF THE REASONABLE NUMBER; AUTHORIZING A LIEN TO BE FILED FOR FAILURE OF REAL PROPERTY OWNERS TO PAY USER CHARGES; PROVIDING FOR APPEALS; 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, certain properties located within the City of Cape Canaveral, due to their appearance or condition or due to activities taking place at said properties, generate more than the average number of law enforcement or code enforcement calls in response to said appearance, condition or activities at said properties; and WHEREAS, excessive law enforcement or code enforcement calls to the same properties place an undue and inappropriate burden on the taxpayers of the City of Cape Canaveral and create chronic nuisances; and WHEREAS, section 166.201, Florida Statutes, provides that a municipality may raise, by user charges or fees authorized by ordinance, amounts of money which are necessary for the Page 1 of 8 City of Cape Canaveral Ordinance No. -2007 Draft July 31, 2007 conduct of municipal government and may enforce their receipt and collection in the manner prescribed by ordinance not inconsistent with law; and WHEREAS, in order to recover the costs incurred by the City in responding to the repeat law enforcement or code enforcement issues on the same properties, the City Council desires to charge the owners of the properties at which these chronic nuisance activities repeatedly occur under the terms set forth in this ordinance; and WHEREAS, the City Council finds that the user charges set forth herein are reasonable and appropriate and reasonably relate to the costs incurred by the City in responding to and remedying the law enforcement or code enforcement issues created by these chronic nuisance properties; and WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this 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 st-Fikeettt 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 Page 2 of 8 City of Cape Canaveral Ordinance No. -2007 Draft July 31, 2007 DIVISION 4. CHRONIC NUISANCE PROPERTY Sec. 2-292. Purpose and intent. The purpose of this division is to ensure that the citizens of Cape Canaveral enjoy a high quality of life and the beauty of the City by discouraging repeat law enforcement and/or code enforcement responses to the same properties in the City of Cqpe Canaveral. Properties causing an inordinate number of law enforcement and/or code enforcement responses to certain activities or conditions existing at said properties unduly and inappropriately burden the taxpayers of the City of Cqpe Canaveral. As such, it is the intent of the City Council to impose the financial burden resulting from the repeat law enforcement or code enforcement responses on the property owners necessitating said responses. Sec. 2-293. Definitions. As used in this division, the following terms shall have the following meanings, unless the context clearly indicates that a different meaning is intended: City means the City of Cape Canaveral, Florida. City manager means the city manager of the City of Cqpe Canaveral or the city manager's designee. Consumption of law enforcement services means the presence of one or more certified law enforcement officer(s) or code enforcement officer(s) ployed or retained by the city on a unit of real property. The presence may be caused by the request of any person upon the real property or information developed by the law enforcement agency or the city code enforcement office from any source warranting a response to the real property. Excluded from this definition are courtesy inspections, criminal investigations of matters not arising from or connected with the real property and paid off-duty details of law enforcement officers. Incident of service means each time one or more law enforcement officer or city code enforcement officer commences and completes a response to an identifiable unit of real property as recorded in a written report of the law enforcement officer or code enforcement officer setting forth the time the officers were present upon the real property. Incidents of service shall not include law enforcement or code enforcement responses to false reports of nuisance activity made with the intent of harassing the real property owner(s). Further, incidents of service shall not include responses to criminal activity that commence elsewhere and subsequently come upon a unit of real property despite reasonable efforts of persons responsible for the unit of real property to exclude it. Page 3 of 8 City of Cape Canaveral Ordinance No. -2007 Draft July 31, 2007 Unit of real property means any contiguous lands within the city which are under common ownership or are devoted to a single use whichever is greater. Common ownership shall include all entities from which the same natural or fictitious person or people have ultimate benefit Contiguous land shall include those separated by easements, sidewalks, alleys, right-of- ways and water bodies. One (1) year period means any consecutive 365-dayperiod. Nuisance activity means any activity, behavior or conduct whenever engaged in by real property owners operators occupants or persons associated with a real property that could be enforced by means of a proceeding before the city's code enforcement board, through nuisance abatement or relatingto o any actions or offenses relating to the following subject matter: (1) Firearms and weapons; (2) False alarms; (3) Harassment of a neighbor, disorderly conduct, or disturbing the peace; (4) Battery, substantial battery or aggravated battery; (5) Indecent exposure; (6) Keeping a place of prostitution or otherwise using the real property for the purpose of prostitution; (7) Littering, solid waste or public health; (8) Arson; (9) Possession manufacture or delivery of a controlled or illegal substance or related offenses; (10) Gambling;. (11) Domestic animals or fowl; (12) Trespass to land or criminal trespass to a dwelling; (13) Production or creation of excessive noise or vibration; (14) LoitgdM Page 4 of 8 City of Cape Canaveral Ordinance No. -2007 Draft July 31, 2007 (15) Public drinking and other matters relating to alcoholic beverages; (16) Parking; (17) Unpermitted or illegal business; (18) Selling, ori�g away tobacco products to underage persons; (19) Illegal sale, discharge and use of fireworks; (20) Junk vehicles; (21 ) Any action deemed a nuisance under state law, (22) Any action constituting a violation of the city code which could be enforced by the provisions of Chapter 2 Article VI, related to Code Enforcement; (23) Act of aiding and abetting of the activities, behaviors or conduct enumerated in this division; or (24)Conspiracy to commit or attempt to commit any of the activities, behaviors or conduct enumerated in this division. Person associated with means any person who whenever engaged in a nuisance activity, enters patronizes visits or attempts to enter, patronize or visit or waits to enter, patronize or visit a real property or person present on a real property including but not limited to any officer, director, customer, agent, employee or independent contractor of a real property owner. Sec. 2-294. Consumption of law enforcement services; user charges imposed. (a) The city council has determined that the following consumption of law enforcement services is reasonable and allowable within any given one (1) year period: Type of Property: Single-family resident or duplex.......... Multi -family residences, including: Apartments; hotels, motels.......... Businesses.......... Resort dwellings or resort condominiums............ Page 5 of 8 City of Cape Canaveral Ordinance No. -2007 One (1) Year Period Allowance: 2 incidents of service 2 incidents of service 2 incidents of service 2 incidents of service Draft July 31, 2007 (b) The city council has determined that consumption of law enforcement services in excess of the one (1) year period allowance of incidents of service as set forth herein shall be subject to a reasonable user charge as follows: (1) No user charge shall be assessed for the first two (2) incidents of service pertaining to a nuisance activityiany one (1) year period. (2) The third incident of service pertaining to a nuisance activity in any one (1) year period shall result in a $250.00 user charge being assessed to the owner of the unit of real property on which the nuisance activity has occurred. (3) The fourth incident of service pertaining to a nuisance activity in one (1) year period and every incident of service thereafter within said one (1) year period shall result in a $500.00 user charge being assessed to the owner of the unit of real property on which the nuisance activity has occurred. Sec. 2-295. Notification of the nuisance activity procedures. (a) Whenever the city manager determines that consumption of law enforcement services for nuisance activities occurring at a unit of real property exceeds the one (1) year allowance of incidents of service the city anager shall notify the owner of the real property, in writing that the real property has became a chronic nuisance. Delivery of said notice shall be deemed sufficient if completed in the manner provided for in section 162.12, Florida Statutes, as may be amended. (b) The notice shall be on a form approved by the city manager and shall contain the following: (1) The street address legal description or parcel identification number assigned by the county propertyqppraiser, (2) A description of the nuisance activities that have occurred at the unit of real property, including the dates of the incidents of service; (3) A statement indicating that a user charge is being assessed against the owner of the unit of real property and the amount of the user charge; (4) A notice that the real property owner has the right to appeal the city manager's determination that the unit of real property constitutes a chronic nuisance and that such appeal shall be submitted, in writing, within ten (10 ) calendar days of receipt of said notice; Sec. 2-296. Appeals. Page 6 of 8 City of Cape Canaveral Ordinance No. -2007 Draft July 31, 2007 (a) The chronic nuisance determination of the city manager assessing a user charge to a real property owner pursuant to this division may be appealed to the city council. Any real property owner desiring to appeal the city manager's determination shall file with the city manager a notice of appeal in writing, no later than ten (10) calendar days after the is delivered, received, or posted. (b) If a notice of appeal is filed within the ten-day limit and as otherwise provided above the city council shall consider the request and make a determination on the appeal within 30 days from the date of the notice of appeal, or as soon thereafter as is practicable The real property owner requestingthe he appeal shall be provided notice of the city council hearing at least seven (7) days prior to the hearing. (c) The city council shall hear and consider evidence offered by the real property owner to determine whether the city manager properly determined that the unit of real property constitutes a chronic nuisance under the provisions of this division. The formal rules of evidence do not apply. (d) The city council shall grant or deny the appeal by majority vote in accordance with the council's quorum requirements contained in the city charter. Failure to reach a majority vote will result in denial of the appeal. Any dispute of fact must be decided based on competent and substantial evidence. The decision of the city council is final. Sec. 2-297. Filing of liens. The user charges assessed pursuant to this division shall constitute a lien upon the unit of real property. Upon expiration of the appeal period (either after the time period expires without a notice of appeal being made or after the appeal is finally determined by the city council), the user charge is due and owing Upon failure of the real property owner to pay the amount charged, the city may file a notice of lien in the public records of the county. Sec. 2-298. Reports; administrative rules. (a) The city manager shall provide an annual report to the city council apprising the city council of the success of the programs set forth in this division and any matters relating thereto. (b) The city manager is hereby authorized to promulgate administrative procedures to implement the provisions of this division to include but not be limited to, the assessment of fees for applications and appeals as set forth in this division. Procedures adopted by the city manager shall be provided to the city council upon adoption. Sec. 2-299. Reserved. Page 7 of 8 City of Cape Canaveral Ordinance No. -2007 Draft July 31, 2007 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 day of , 2007. ROCKY RANDELS, Mayor ATTEST: For Against SUSAN STILLS, City Clerk First Reading: Legal Ad published: Second Reading: Approved as to legal form and sufficiency for the City of Cape Canaveral only: ANTHONY A. GARGANESE, City Attorney Bob Hoog Leo Nicholas Buzz Petsos Rocky Randels C. Shannon Roberts Page 8 of 8 City of Cape Canaveral Ordinance No. -2007 The Florida Senate Interim Project Report 2004-122 November 2003 Committee on Comprehensive Planning James E. "Jim" King, Jr., President NUISANCE ABATEMENT SUMMARY Local governments may establish nuisance abatement boards to hear complaints of a public nuisance involving a number of illegal activities such as drug use and prostitution. Section 893.138, F.S., provides specific criteria that a property must meet before a local government may declare the property a public nuisance. After declaring the property a nuisance, a board may order the property owner to take necessary steps to eliminate the nuisance. Under this provision, some local governments have ordered the temporary closure of a property. The takings issue is a concern for some local governments that have temporarily closed a property to abate a nuisance. Nationwide, courts have reviewed nuisance abatement laws to determine if a temporary closure constitutes a compensable taking. Some courts have applied the rule of Lucas v. South Carolina Coastal Councils in which the U. S. Supreme Court held that a regulatory action of government depriving a property owner of all economically beneficial uses requires compensation. The Lucas court also fashioned a nuisance exception to this rule. The Florida Supreme Court in Keshbro, Inc. v. City of Miami1 recognized Florida law is well settled that an injunction to abate a nuisance must be narrowly tailored to abate the specific objectionable conduct. The facts before the court resulted from the consolidation of two cases. In Keshbro, the court found the record adequate to support a temporary closure and, thus, no compensation was required. However, the court determined the record in Kablinger3 lacked evidence that the business activity was inseparable from the illegal conduct and, therefore, the court ' 505 U.S. 1003 (1992). 2 801 So. 2d 864 (Fla. 2001). 3 City of St. Petersburg v. Kablinger, 730 So. 2d 409 (Fla. 2d DCA 1999) consolidated with Keshbro, Inc. v. City of Miami, 717 So. 2d 601 (Fla. 3d DCA 1998). ordered compensation for the period of closure. Based on this decision, legislation was filed in 2003 to address the takings issue as it relates to nuisance abatement boards. However, this legislation did not pass. Staff submitted a survey to Florida's municipalities and counties requesting information on the success of nuisance abatement boards, any problems with the boards, and suggested revisions. In general, the respondents indicated that property owners either take appropriate steps to eliminate a nuisance after receiving notice of a complaint or bring the property into compliance with a board's orders following a hearing. The survey respondents suggested several changes to s. 893.138, F.S. Staff also consulted with representatives of organizations representing property owners potentially affected by nuisance abatement boards. BACKGROUND The issue of nuisance abatement is a concern for some local governments. Public nuisance complaints often involve illegal activity such as drug use, prostitution, dealing in stolen property, and criminal activity by street gangs. Currently, s. 893.138, F.S., allows local governments to establish a nuisance abatement board to hear public nuisance complaints. These boards may take various administrative actions to abate a drug- related, prostitution -related, or stolen -property related public nuisance and criminal street gang activity, including a temporary closure of the property. Section 60.05, F. S., also provides a process for citizens and the city or county attorney to petition for a temporary injunction to abate a public nuisance. For other types of public nuisances such as the disposal of dead animals, the abandonment of refrigerators and other appliances, and abandoned or derelict vessels, ch. 823, F.S., provides penalties for the maintenance of those nuisances. 2 Specifically, s. 893.138, F.S., authorizes a local government to create an administrative board to address public nuisances. The board may impose administrative fines and penalties to abate a nuisance when a pending or repeated violation continues at a particular property. Those properties subject to the board include any place or premises that has been used for the following: ➢ on more than two occasions within a 6 -month period as the site of a violation of s. 796.07, F.S., that prohibits prostitution; ➢ on more than two occasions within a 6 -month period as a site for the unlawful sale, delivery, manufacture, or cultivation of a controlled substance; ➢ on one occasion as the site of a felony involving the unlawful possession of a controlled substance and that has been previously used as the site for the unlawful sale, delivery, manufacture, or cultivation of a controlled substance; ➢ by a criminal street gang for a pattern of criminal street gang activity as defined in s. 874.03, F.S.; or ➢ on more than two occasions within a 6 -month period for a violation of s. 812.019, F.S., relating to stolen property. Properties that meet the above criteria may be declared a public nuisance and the nuisance may be abated using the procedures in this section of law.4 Section 893.138(3), F.S., allows a county or municipality to create, by ordinance, an administrative board to hear nuisance complaints. Under existing provisions, an employee or officer of the local government, or a resident within its jurisdiction, may file a complaint with the board not less than 3 days after giving written notice of the complaint to the property owner at his or her last known address. The board must then hold a hearing at which it may consider any evidence, including evidence that goes to the reputation of the property. During the hearing, the property owner shall be given an opportunity to present evidence in his or her defense. The board, after hearing the evidence, may declare the property a nuisance.5 Should the board declare the property a nuisance, the board may enter an order requiring the property owner to adopt procedures to abate the nuisance as appropriate under the circumstances. In addition, the 4S. 893.138(2), F.S. s S. 893.138(3), F.S. Nuisance Abatement board may enter an order prohibiting the maintaining of the nuisance; the operating or maintaining of the property, including the closure of the premises or any part thereof; or the conduct, operation, or maintaining of any business or activity on the property that is conducive to a public nuisance. Any such order issued by the board shall expire after 1 year or earlier as specified in the order. The order may be enforced according to the provisions of s. 120.69, F.S. However, this provision does not subject the municipality or the board it creates to abate public nuisances to ch. 120, F.S.6 Specifically, s. 120.69, F.S., allows the local government to seek enforcement of the nuisance abatement board's order by filing a petition in circuit court. Upon entering an order on a petition for enforcement, the court may award all or part of the litigation costs, reasonable attorney fees, and expert witness fees to the prevailing party as the court deems appropriate. 7 This section of law allowing the creation of administrative boards does not prohibit the local government from proceeding by any other means against a public nuisance. For example, the local government may supplement the provisions contained in s. 893.138, F.S., with an ordinance. Such an ordinance may establish additional penalties for maintaining a public nuisance with those fines not to exceed $250 per day. Also, the fines may provide for the payment of reasonable costs, including attorney fees resulting from the investigation of and hearing on a public nuisance complaint, and provide for continuing jurisdiction over a nuisance property for a period of 1 year.8 A local ordinance may establish penalties for a recurring public nuisance not to exceed $500 per day. It may allow for the recording of orders relating to public nuisances so that subsequent purchasers, successors in interest, or assigns of the property have notice of the nuisance. Total fines imposed against a property owner pursuant to this section for a public nuisance or recurring public nuisance may not exceed $15,000.9 An ordinance can provide that recorded orders on a public nuisance may become a lien against the real 6S. 893.138(4), F.S. S. 120.69(7), F.S. a S. 893.138(10), F.S. 9 S. 893.138(10), F.S. Nuisance Abatement property that is the subject of the order. Under a local ordinance, a property subject to a lien may be foreclosed on to recover all costs, including reasonable attorney fees, related to the recording of the order and the foreclosure. 10 However, a homestead property as defined in s. 4, Art. X of the State Constitution is not subject to foreclosure. Should a local government bring an administrative action against a public nuisance based on dealing in stolen property and there are multiple tenants at the site who conduct their own retail business, the property owner shall not be subject to a lien against his or her property if the owner evicts the business that has been declared to be a nuisance. This eviction must occur within 90 days after the property owner receives notification by registered mail that the tenant has a second stolen property conviction. Temporary Injunctions and Abatement of Nuisances — A nuisance abatement board is authorized to file a complaint under s. 60.05, F.S. and seek temporary and injunctive relief against a property owner for any activity that may be declared a nuisance under the criteria listed above. Also, the provision of law authorizing the creation of an administrative board to address public nuisances does not restrict the right of any person to proceed under s. 60.05, F.S., against a public nuisance. The Attorney General, state attorney, city attorney, county attorney, or any citizen of the county may sue to enjoin a nuisance, the person maintaining the nuisance, and the property owner under s. 60.05, F.S. If the evidence supports a temporary injunction, the court may enjoin: ➢ the maintenance of the nuisance; ➢ the operation and maintenance of the site where the illegal activity is occurring; ➢ the owner of the site of the nuisance; and ➢ the operation of a business or activity in a structure on the property if connected with the maintenance of the nuisance. Such an injunction may not preclude the operation of a lawful business that is not conducive to the maintenance of the nuisance. Three day's notice is required of the time and place of application for a temporary injunction.I I Evidence that speaks to the general reputation of the property is admissible. If a citizen files suit and the 10 S. 893.138(10), F.S. 11 S. 60.05(2), F.S. Page 3 complaint is not dismissed, the state attorney shall proceed with the complaint. Should the court determine there was no reasonable ground to file suit, costs are taxed to the citizen. 12 If the evidence shows a nuisance exists, the court shall issue a permanent injunction and the costs are taxed to the person establishing or maintaining the nuisance. These costs are a lien on the personal property found at the site of the nuisance and then attach to the real property occupied by the nuisance. Also, the court may evict a tenant for certain illegal activities if the tenant and property owner are parties to the nuisance abatement action and the eviction will effectively abate the nuisance. 13 Adequate Opportunity to Abate the Nuisance — The Second District Court of Appeal recently addressed the issue of what constitutes sufficient opportunity to abate a public nuisance prior to a nuisance abatement board imposing sanctions in Powell v. City of Sarasota. 14 The petitioners in this case, owners of a residential rental property, appealed an order by the city's nuisance abatement board imposing administrative and investigative costs. The city presented evidence to the board during a hearing that a confidential informant had purchased drugs on three occasions on the petitioner's property from their tenant. At the time the petitioners appeared before the board, the tenant had already moved out of petitioner's rental property. The board in the Powell case did not declare the property a public nuisance, but did impose costs on the petitioners and maintained continuing jurisdiction over the property as part of the board's order. The Second District Court of Appeal quashed the board's order, holding the petitioners were not given an adequate opportunity to abate the nuisance. The court explained adequate notice consists of notice that a nuisance is occurring and a reasonable period of time to eliminate the illegal activity. 15 Takings Jurisprudence and Nuisance Abatement— The United States Supreme Court, in Lucas v. South Carolina Coastal Council, 16 applied a "categorical rule S. 60.05(3), F.S. 13 S. 60.05(4) - (5), F.S. 14 Powell v. City of Sarasota, No. 2D03-33 (Fla. 2d DCA Oct. 15, 2003). 15 See id. at 2, citing Maple Manor, Inc. v. City of Sarasota, 813 So. 2d. 204, 207 (Fla. 2d DCA 2002). 16 505 U.S. 1003 (1992). 4 of compensation". This rule requires federal and state governments to compensate a property owner when that government's regulation deprives the property owner of any economically beneficial use of the property. The Lucas case involved the owner of two residential lots on a barrier island in South Carolina. He bought the lots in 1986 for the purpose of building single family homes on the adjacent parcels. The State enacted the Beachfront Management Act that prohibited the building of a habitable structure on the lots. The property owner filed suit, contending that the newly enacted legislation deprived him of all economically beneficial use of his property even if the statute was based on the lawful exercise of police power." The Supreme Court of South Carolina held that a regulation designed to "prevent serious public harm" does not require compensation regardless of its effect on a property's value.18 The U.S. Supreme Court reversed and held that a regulation depriving the property owner of all economically beneficial use of the property requires compensation unless the proscribed use was not part of the title.19 This categorical rule does not take into account whether the property owner is at fault, whether the specific remedies ordered by a nuisance abatement board are reasonably related to abating the nuisance, and whether the public benefit derived from abating the nuisance warrants the severity of the remedy to the property owner. 20 However, the Lucas court stated a nuisance exception to this rule does not require a government to compensate property owners if the regulation at issue prohibits a nuisance which renders the property unusable. Courts across the country have dealt with the issue differently. Some state courts have developed a variety of rules to evaluate whether a government regulation allowing the abatement of nuisances is a compensable taking. Other states have upheld their nuisance abatement laws and forced property owners to eliminate the nuisance or face a closure or demolition notwithstanding the property owner's innocence. " See id.. at 1003. 18 See id. at 1010, citing, inter alia, Mugler v. Kansas, 123 U.S. 623 (1887). 19Lucas, 505 U.S. at 1027. 20 Carmon Harvey, Protecting the Innocent Property Owner: Takings Law in the Nuisance Abatement Context (Dec. 22, 2002) (unpublished manuscript, on file with the Temple Law Review). Nuisance Abatement Relying on Lucas, some states have held that a temporary closure for the purpose of nuisance abatement results in the deprivation of all economically beneficial use of the property and is, therefore, a compensable taking.' The Florida Supreme Court is among the minority of state courts that have applied Lucas and yet avoided a strict application of its nuisance exception, but rather considered the severity of the remedy ordered by a nuisance abatement board. These courts have recognized the state's ability to regulate nuisances to protect public health, safety, and welfare. However, these courts have also considered whether a temporary closure to abate a nuisance is a compensable taking, whether the property owner is at fault, whether the remedy ordered by a nuisance abatement board is narrowly tailored to eliminate the illegal activity, and whether there is an appropriate balance between the temporary deprivation of property rights with the public benefit derived from abating the nuisance. 23 The U.S. Supreme Court addressed the issue of whether a temporary moratoria on development during the process of creating a comprehensive land use plan effected a compensable taking in Tahoe -Sierra Preservation Council v. Tahoe Regional Planning Agency.24 This case involved two building moratoria by the Tahoe Regional Planning Agency that totaled 32 months. Property owners affected by the moratoria filed suit contending the temporary building moratoria constituted a taking without compensation.25 The Court focused its analysis on the categorical rule of Lucas and the ad hoc analysis required by Penn Central Transportation Co. v. New York City. 26 The Penn Central case provided for an analysis of a number of factors including a regulation's economic effect on a property owner, the extent of any interference with a property owner's investment - backed expectations, and the nature or character of the 21 See id. 22 See id. zs Cf. Milton A. "Al" Galbraith, Jr., The Future of Nuisance Abatement Boards in Light of Tahoe -Sierra Preservation Council, City, County and Local Government Law Section, 25th Annual Local Government Law in Florida Seminar, May 10-11, 2002 (discussing the application of the Lucas categorical rule to nuisance abatement cases). 24 535 U.S. 302 (2002). 25 See id. at 306-07. 26 535 U.S. 302 (2002). Nuisance Abatement government's action."27 This type of analysis permits a "careful examination and weighing of all the relevant circumstances."28 The Court clarified that the categorical rule in Lucas is applicable to only those extraordinary cases where a regulation permanently deprives a property of all value. The Court reiterated that a regulatory takings analysis requires a "fact - specific inquiry. ,29 Upon further review, the Court declined to create a new categorical rule for circumstances in which an individual property owner bears the burden that should be borne by the public as a whole .30 The Court concluded that "the interest in `fairness and justice' will be best served by relying on the familiar Penn Central approach" and affirmed the lower court's ruling that the temporary moratoria did not constitute a taking.31 Florida Case Law — In 2001, the Florida Supreme Court accepted Keshbro, Inc. v. City of Miami 2 and City of St. Petersburg v. Kablinger 33 for review and consolidated those cases. The issue before the court was whether the temporary closures effected by the respective nuisance abatement boards and their corresponding city code provisions to abate public nuisances constituted a compensable taking. 34 As a requisite matter, the court made a determination of the appropriate takings analysis given the facts of these cases.3s In City of Miami v. Keshbro, the petitioner, Keshbro, Inc., owned and operated a 57 -unit motel. The City of Miami's nuisance abatement board closed the property in 1992 for 1 year based on drug use and prostitution - related violations. Petitioner reopened the motel in 1993 and the same illegal activities began to occur. The city served the petitioner notice in 1996 that the motel again constituted a public nuisance based on the drug - and prostitution -related activities and cited at least 8 arrests involving those activities. The petitioner agreed to a partial closure of the motel. Four months later, the nuisance abatement board, at a status hearing, ordered 27 See id. at 315, citing, Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001). 28 Tahoe -Sierra Preservation Council, 535 U.S. at 322, citing, Palazzalo, 533 U.S. at 636. 29 Tahoe Sierra Preservation Council, 535 U.S. at 332. 3o See id. at 342. 3' See id. at 342. 32 717 So. 2d 601 (Fla. 3d DCA 1998). 33 730 So. 2d 409 (Fla. 2d DCA 1999). 34 Keshbro, Inc. v. City of Miami, 801 So. 2d 864, 866 (Fla. 2001). 31 See id. at 867. an additional 7 rooms closed because of incidents of the same illegal activities. Following 3 arrests for the sale of cocaine on the motel premises, the board ordered the entire motel closed for 6 months in 1997. The petitioner in Keshbro responded to the closure by filing for injunctive and declaratory relief and inverse condemnation. The circuit court granted the petitioner's motion for summary judgment on the inverse condemnation claim. Following the city's appeal, the Third District Court of Appeal reversed the summary judgment on the authority of Lucas v. South Carolina Coastal Council. The court held the nuisance abatement board's order did deprive petitioner of all economically beneficial uses of the property, but the uses prohibited by the board's order, such as prostitution and drug use, are not entitled to protection at common law and are not part of the bundle of rights acquired with title. 36 In Kablinger, the city's nuisance abatement board ordered an apartment closed in 1993 based on at least 2 occurrences of the sale of cocaine within a 6 -month period. The corporation that owned the apartment complex assigned its interest in 1995 to Kablinger, the petitioner. In 1997, the petitioner sued the city for inverse condemnation based on the 1993 closure. The trial court granted petitioner's motion for summary judgment and the city appealed. The Second District Court of Appeal affirmed the trial court's granting of summaryjudgment and certified conflict with Keshbro. The Florida Supreme Court accepted the cases based on conflict jurisdiction. 37 Both the appeal courts in the Keshbro and Kablinger decisions relied on Lucas. 38 In Lucas, the U.S. Supreme Court recognized that regulatory action requires compensation where the regulation results in (1) the property suffering a physical invasion or (2) the property owner is deprived of all beneficial or productive use of the land. 39 According to the Lucas court, a state can only avoid compensating the property owner if the regulation at issue prohibits uses that are not associated with title. 40 The U.S. Supreme Court stated earlier in First English Evangelical Lutheran Church v. County of Los Angeles 41 that "[t]emporary takings which, as here, deny a landowner all use of his " See id. at 867-68. 37 See id. at 868-69. 38 See id. at 869. 39 505 U.S. 1003, 1015 (1992). 40 See id. at 1017-18. 4' 482 U.S. 304 (1987). property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation."42 Reviewing the facts of Keshbro and Kablinger, the Florida Supreme Court determined the nuisance abatement board orders in question "rendered the properties economically idle". 43 The Court then looked to see if the cities had identified any "background principles of nuisance and property law that prohibit the uses." 44 The Lucas court stated that "[a] regulation so restricting the use of property can `do no more than duplicate the result that could have been achieved in the courts—by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise."' 45 Therefore, the Court focused in Keshbro on whether the order sought the same relief that could have been obtained by an adjacent landowner of uniquely affected party under Florida's nuisance abatement law and the complementary powers of local government. 46 Florida law is well settled that an injunction issued to abate a public nuisance "must be specifically tailored to abate the objectionable conduct, without unnecessarily infringing upon the conduct of a lawful enterprise." 47 Applying this principle to the cases at hand, the operation of the motel in Keshbro was found by the Third District Court of Appeal to be inexplicably intertwined with illegal drug and prostitution activities. The record demonstrated the city's patience in abating the nuisance. However, the illegal activities persisted despite the city's efforts. Thus, the court held that the petitioner in Keshbro was not entitled to a summary judgment on inverse condemnation. 48 In contrast, the Kablinger case lacked an integral connection between the illegal activity and the apartment complex. The closure order was issued in this case after the apartment had been the site of at least 2 cocaine sales. The Court found the Kablinger record lacked evidence that the sale of illegal drugs was inseparable from the operation of the apartment 42 Keshbro, 801 So. 2d at 871, citing First English, 482 U.S. at 318. 43 Keshbro, 801 So. 2d at 875. 44 See id. at 875, citing Lucas, 505 U.S. at 1031. 4s Lucas, 505 U.S. at 1031. 46 Keshbro, 801 U.S. at 875-76. 47 See id. at 876. 41 See id. Nuisance Abatement complex. Therefore, the Court affirmed the summary judgment based on inverse condemnation. 49 Proposed 2003 Legislation — During the 2003 Regular Session, Senate Bill 2118 proposed several changes to s. 893.138, F.S., but the bill did not pass into law. Those changes included clarifying that the administrative penalties available to local governments include the power to close nuisance properties for up to 1 year if necessary to abate drug-related, prostitution - related, stolen -property -related or street -gang -related public nuisances. This bill also contained language that provided greater notice to nonresident property owners. It requires a nonresident owner be given a reasonable period of time to abate the nuisance before the property is closed. The property of a nonresident property owner that abates the nuisance within a reasonable time or diligently pursues legal action to abate the nuisance may not be closed by the board. Such legal proceedings must be initiated by the nonresident property owner on or before the tenth day following a hearing in front of the administrative board. The bill also provides that a nonresident owner's opportunity to abate the nuisance or take legal action against the nuisance may occur before or after the hearing. Notably, the bill also stipulates that a closure of property constituting a public nuisance shall not constitute a taking. This provision is in response to the Keshbro decision discussed above. Discussion among committee members during presentation of this bill centered on the takings issue. In response to the discussion, Senate amendment no. 165782 to Senate Bill 2118 was adopted to provide that a board may, in its discretion, allow a property that has been closed to reopen if the property owner makes a showing that the nuisance has been abated and the proposed occupants are unlikely to maintain a nuisance on the property. METHODOLOGY Staff consulted with local government staff responsible for assisting nuisance abatement boards and other interested parties, including the representatives of property owner associations. In addition, staff surveyed Florida's 408 municipalities and 67 counties regarding their use of nuisance abatement boards and received a 25% response rate. The survey of local governments posed a series of questions as discussed below. 41 See id. at 876-77. Nuisance Abatement FINDINGS Staff submitted a survey on nuisance abatement boards to the municipalities and counties. The following are the questions with a summary of responses. Pursuant to s. 893.138, F.S., has your local government created an administrative board for the purpose of abating public nuisances? Thirty-three respondents indicated they have created such a board. In what year did your local government create its administrative board that addresses public nuisances? Although s. 839.138, F.S., was not enacted until 1995, a number of the respondent local governments had already established nuisance abatement boards at that time with one board dating back to 1980. Since the administrative board's creation, please estimate the number of properties that have been temporarily closed as the result of an administrative board action? Most respondents reported that no properties were closed as the result of a board's order. However, one respondent indicated its board had temporarily closed 22 properties since its inception in 1989. On average, how long have these properties remained closed as the result ofan administrative board action? The period of time properties remained closed by a nuisance abatement board varied from 10 days to 365 days. How many properties have been temporarily closed by an administrative board action more than once? Only one respondent indicated that a single property have been closed more than once. Of those properties that have been temporarily closed more than once, what is the most number of times that a property has been closed since the creation of the administrative board? The respondents indicated that a single property was closed twice. Have any of these temporary closures been the subject of "takings " litigation? If the answer is yes, what were the results of the litigation? The majority of respondents indicated the board's actions had not been the subject of takings litigation. However, the nuisance abatement board for the City of St. Petersburg has been involved in two appellate cases. The Second District Court of Appeal found the temporary closure of properties was a compensable taking in both cases and required compensation.so In addition, the City of Lakeland has experienced several problems. First, a property owner petitioned the circuit court for review contending the closure was a compensable taking. The city counter -sued for enforcement of the board's order. Although the court denied review finding the order was based on competent and substantial evidence, the court's decision stated that it did not preclude the property owner from filing a separate action for compensation. The city did not pursue its enforcement order. In the second instance, the city sued for enforcement of the board's order and the property owner raised the issue of a "taking without compensation". The property was sold and the suit dismissed. Another respondent became concerned by litigation in a neighboring jurisdiction and suspended its board for a 3 -year period. During that period, the local government's ordinance relating to nuisance abatement was amended to provide for remedies other than closure to abate a nuisance. Finally, at least one respondent indicated it had considered establishing a board, but decided against the idea because of concerns over takings litigation and the potential liability. In general, would you characterize the administrative board as successful at abating public nuisances? Please explain your answer. Most respondents indicated the board was successful in abating nuisances. Specifically, one reply stated that property owners appearing before the board had sold, renovated, or demolished the structure contributing to the nuisance. Another respondent had a successful board until the Keshbro and Kablinger cases and does not think those decisions provide any guidance on whether a particular closure constitutes a compensable taking. Those respondents that order specific remedies other than closure have indicated this approach is successful in abating nuisances. For example, Miami -Dade County's nuisance abatement board has reached many agreements that require property owners to provide private security, install fencing and lighting to prevent loitering, evict tenants committing illegal activities, remove junk and trash from the property, and secure " See City of St. Petersburg v. Bowen, 675 So. 2d 626 (Fla. 2d DCA 1996). See also City of St. Petersburg c. Kablinger, 730 So. 2d 409 (Fla. 2d DCA 1999), consolidated with Keshbro, 801 So. 2d 864 (Fla. 2001). vacant properties. According to Miami -Dade County, its ordinance has provided an opportunity for residents, police officers, and county officials to develop procedures for abating a particular nuisance and, thus, requiring property owners to accept their responsibility to prevent nuisances from occurring on their property. Other respondents, including the Cities of Daytona Beach, Delray Beach and Sanford, report that their respective boards have been successful in gaining compliance from almost all of the properties brought before the board. With regard to temporary closures, the Miami -Dade County board has issued an order to close a property only when the owner fails to comply with the established plan to abate the nuisance or if requested by the owner to facilitate the eviction of a tenant. If necessary, the Miami -Dade County board orders temporary closures of 30 days until the property owner presents an acceptable plan to abate the nuisance. The board credits its success in part to the process of notifying a property owner of a possible nuisance prior to the property being declared such and, therefore, giving the owner a chance to correct the problem. Would you recommend any changes to s. 893.138, F.S.? Respondents suggested amending s. 893. 138, F.S., to do the following: ➢ provide that a temporary closure is not a taking; ➢ provide a statement of legislative intent that the state shall follow the decisions of the U.S. Supreme Court on the issue of whether a temporary closure of property constitutes a compensable taking; ➢ allow for an administrative action against the tenant committing the illegal activity; ➢ stipulate that local governments are not precluded from including other types of nuisance or criminal activities in their optional ordinances; ➢ redefine "occasion" as any day there is evidence that a criminal violation is an ongoing violation (i.e., every day that marijuana is cultivated); ➢ make entering or remaining on a premises closed by board order a trespass under ch. 810, F.S.; ➢ suspend the state license of a hotel/motel, restaurant, or alcoholic beverage establishment during the temporary closure; Nuisance Abatement ➢ allow evidence of crimes other than drug or prostitution activity when considering closure; and ➢ clarify that a special master could be appointed to hear nuisance complaints as opposed to an administrative board. RECOMMENDATIONS Section 893.138, F.S., is being used successfully by a number of local governments. The proposed changes to this section recommended by the survey respondents and discussed above may improve this provision of law, but are not critical at this time. Although the issue of whether a property temporarily closed by a nuisance abatement order is a compensable taking has been a concern for several local governments, the Florida Supreme Court has held that such a closure may constitute a taking in certain circumstances. The Court's holding in Keshbro and Kablinger requires a local government to demonstrate that a temporary closure ordered by a nuisance abatement board is narrowly tailored to abate the nuisance. Essentially, the operation of the business located at the property in question must be inextricably intertwined with the illegal activity. The Legislature should consider amending s. 893.138, F.S., to allow a nuisance abatement board to reopen a property upon a showing that the nuisance has been abated and the proposed tenants are unlikely to maintain a nuisance on the property. Tacoma Municipal Code corrected. If the condition has been corrected, the case will be closed. If the condition has not been corrected, a second Notice of Violation and Abatement shall be sent or delivered in accordance with subsection B above, and a civil penalty of $250 may be assessed. The monetary penalties for violations of this chapter shall be as follows: 1. First civil penalty, $250; 2. Second and subsequent civil penalties, $500; 3. Civil penalties will continue to accumulate until the condition is corrected, or, if the total assessed penalty exceeds $1,000, an abatement proceeding may be initiated. At such time that the assessed penalty exceeds $1,000, a Certificate of Complaint may be filed with the Pierce County Auditor to be attached to the title of the property. A copy of the Certificate of Complaint shall be sent to the Property Owner and parties of interest, if different from the Owner. If a civil penalty has been issued against a property and the condition has not been corrected, a utility restraint may be placed on the Property. The restraint will not allow utility providers to provide utilities to the building or Property. The utility restraint shall be recorded with the Tacoma Public Utilities Department or other utility providers. The utility restraint may not be released until the building or property is in compliance with the applicable code and all sums owed to the City have been paid in full. E. Each day that a property or person is not in compliance with the provisions of this chapter may constitute a separate violation of this chapter. (Ord. 27536 § 2; passed Oct. 17, 2006) 8.30.150 Additional relief. Nothing in this chapter shall preclude the City from seeking any other relief, as authorized in other provisions of the Tacoma Municipal Code. Enforcement of this chapter is supplemental to all other laws adopted by the City. (Ord. 27536 § 2; passed Oct. 17, 2006) 8.30.160 Severability. If any provision or section of this chapter shall be held to be void or unconstitutional, all other parts, provisions, and sections of this chapter not expressly so held to be void or unconstitutional shall continue in full force and effect. (Ord. 27536 § 2; passed Oct. 17, 2006) Chapter 8.30A CHRONIC PUBLIC NUISANCE Sections: 8.30A.010 Scope. 8.30A.020 Purpose. 8.30A.030 Chronic nuisance property defined. 8.30A.040 Definitions. 8.30A.050 Violation. 8.30A.060 Process. 8.30A.070 Administrative reviews by the Director. 8.30A.080 Appeals to the Hearing Examiner. 8.30A.090 Abatement. 8.30A.100 Judicial action. 8.30A.110 Additional relief. 8.30A.120 Summary closure. 8.30A.130 Collection of judgments. 8.30A.140 Severability. 8.30A.010 Scope. This chapter addresses chronic nuisance properties that are in violation of various chapters of the Tacoma Municipal Code ("TMC") and continue to be unresolved by normal compliance methods therefore resulting in the necessary enactment of the provisions of this chapter. Chronic nuisance properties present grave health, safety, and welfare concerns, which the property owners or persons in charge of such properties have failed in taking corrective action to abate the nuisance condition. Chronic nuisance properties have a tremendous negative impact upon the quality of life, safety, and health of the neighborhoods where they are located. This chapter is enacted to remedy nuisance activities that repeatedly occur or exist at chronic nuisance properties by providing a process for abatement; and this remedy is not exclusive. Any remedy available under any state or local laws may be used in lieu of or in conjunction with the remedies under this chapter. Also, chronic nuisance properties are a financial burden to the City by the repeated calls for service to the properties because of the nuisance activities that repeatedly occur or exist on such properties, and this chapter is a means to ameliorate those conditions and hold responsible the owners or persons in charge of such properties. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.020 Purpose. The purpose of this chapter is to protect the health, safety, and welfare of the residents of the general public by: (Revised 09/2007) 8-60 Cit' Clerk's Off ce A. Establishing standards for reducing criminal activity and improving building condition. B. Working in cooperation with property owners to develop a plan of action to accomplish these goals. C. Monitoring a plan of action to ensure the reduction of calls for service and building conditions improvements are sustained. D. Establishing due process by which property owners can appeal decisions if necessary. E. Establishing civil penalties for failure to comply with the plan of action. F. Establishing a judicial process to abate properties if necessary. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.030 Chronic nuisance property defined. A chronic nuisance property exists as a result of a property owner omitting to perform a duty or permitting an action or condition to occur or exist which intrudes on the ability of neighbors or citizens to use or enjoy their properties or public property adjacent to where the nuisance occurs. Such chronic nuisance properties include, but are not limited to: A. Properties on which three or more nuisance activities occur or exist within any 60 -day period. Nuisance activities include, but are not limited to, violation of the following laws and regulations: TMC 3.05 Supplementary Life Safety Code; TMC 8.12 Disorderly Conduct; TMC 8.13 Obstructing Pedestrians or Traffic; TMC 8.20 Intoxicating Liquor; TMC 8.28 Narcotics; TMC 8.29 Drug Paraphernalia; TMC 8.30 Nuisances; TMC 8.31 Vegetation and Litter; TMC 8.32 Indecent Acts; TMC 8.33 Urinating in Public; TMC 8.46 Prostitution; TMC 8.60 Unlawful Assembly; TMC 8.66 Weapons; TMC 8.72 Drug-related Loitering; TMC 8.100 Gambling; TMC 8.105 Domestic Violence; TMC 8.106 Harassment; TMC 8.108 Parking in Congested Areas; TMC 8.109 Curfew Hours for Minors; TMC 8.120 Graffiti; Tacoma Municipal Code TMC 8.140 Regulation of Purchase/Sale of Ephedrine; TMC 12.09 Solid Waste; Uniform Fire Code Sections 2501.16.1 and 2501.16.3; Gang related activity as defined in RCW 59.18.030; and Alcoholic beverage control violations as defined in RCW 66.44. Any attempt to commit and/or conspiracy to commit any of the above activities, behaviors, or conduct shall also be considered a nuisance activity. B. A property that has a Certificate of Complaint or over $1,000 in fines levied against the property, in accordance with TMC 2.01 or 8.30, and at which the property owner has failed to adhere to the agreed upon schedule. C. Properties with nuisance conditions, as defined by state law, occurring on the property or upon the adjacent right-of-way. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.040 Definitions. For purposes of this chapter, the following words or phrases shall have the meaning prescribed below: "Abate" means to repair, replace, remove, destroy, or otherwise remedy a condition which constitutes a violation of this chapter by such means and in such a manner and to such an extent as the applicable City department director, or designee, determines is necessary in the interest of the general health, safety, and welfare of the community. "Control" means the ability to regulate, restrain, dominate, counteract, or govern property or conduct that occurs on a property. "Director" shall include, but not be limited to, the chiefs of the Police Department or Fire Department, or directors of the Public Works Department, Finance Department, or Health Department. The director of the department may designate an individual to act in his or her stead. "Drug-related activity" means any unlawful activity at a property which consists of the unlawful manufacture, delivery, sale, storage, possession, or giving away of any controlled substance, as defined in RCW 69.50; illegal drug, as defined in RCW 69.41; precursor drug, as defined in RCW 69.43; or imitation controlled substances, as defined in RCW 69.52. "Landlord" means the owner, lessor, or subleasor of the dwelling unit or the property of which it is a part, Citi Clerk's Office 8-61 (Revised 09/2007) Tacoma Municipal Code and, in addition, means any person designated as a representative of the landlord. "Owner" means any person having any interest in the real estate in question as indicated in the records of the office of the Pierce County Assessor, or who establishes, under this chapter, their ownership interest therein. "Person" means natural person, joint venture, partnership, association, club, company, corporation, business trust, or organization or the manager, lessee, agent, officer, or employee of any of them. "Person associated with a property" means any person who, on the occasion of a nuisance activity, has entered, patronized, or visited, or attempted to enter, patronize, or visit, or waited to enter, patronize, or visit a property or a person present on property, including, without limitation, any officer, director, customer, agent; or employee, or any independent contractor of a property; or a person in charge of or owner of a property. "Person in charge" of a property means any person, in actual or constructive possession of a property, including, but not limited to, an owner, occupant, agent, or property manager of a property under his or her control. "Premises" and "property" may be used by this chapter interchangeably and means any building, lot, parcel, dwelling, rental unit, real estate, or land, or portion thereof, including property used as residential or commercial property. "Receiver" is a person appointed by a court or judicial officer to take charge of a property during the pending of a civil action or proceeding, or upon a judgment, decree, or order therein, and to manage and/or dispose of it as the court or officer may direct. "Rental unit" means any structure or that part of a structure, including, but not limited to, a single- family home, room, or apartment that is rented to another and used as a home, residence, or sleeping place by one or more persons. (Ord. 27466 § 25; passed Jan. 17, 2006: Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.050 Violation. A. Any property within the City that is a chronic nuisance property is in violation of this chapter and subject to its remedies. B. Any person in charge who permits property to be a chronic nuisance property shall be in violation of this chapter and subject to its remedies. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.060 Process. A. Upon failure to adhere to the Minimum Building and Structures Code or the Nuisance Code, or when chronic criminal activity is being tracked at a particular address, the City may pursue enforcement as a chronic nuisance. B. The appropriate City department shall confirm the presence of a chronic nuisance property. If it is determined that the site is not a chronic nuisance, the case will be closed. C. If it is determined that the site is a chronic nuisance, a Notice of Violation will be sent to the owner of the property and the person in charge of the property. The Notice of Violation shall contain: 1. The street address or a legal description sufficient for identification of the property; 2. A concise description of the nuisance activities that exist or that have occurred on the property; 3. A request that the owner or person in charge respond to the appropriate department within ten calendar days of service of the Notice of Violation to discuss the nuisance activities and create a plan to abate the chronic nuisance; 4. An offer to the person in charge of an opportunity to abate the nuisance activities giving rise to the violation; and 5. A statement describing that failure to develop or comply with a plan of action may leave the property subject to abatement that the owner or person in charge is responsible for civil penalties up to $250 per day and that the owner or person in charge is responsible for the costs of municipal services after the Notice of Violation of the chronic nuisance property is received. D. Such Notice of Violation shall be either (a) personally served or (b) delivered by first-class mail and certified mail, return receipt requested, to the person in charge of the property, with a copy mailed to the owner at the address indicated by the Pierce County Assessor if different than the person in charge of the property. E. If the person in charge responds, as required by the Notice of Violation, and agrees to abate the nuisance activity, the appropriate department and the person in charge and/or property owner may work out an agreed upon plan of action which would abate the nuisance activity. If an agreed upon plan of action does not result in the abatement of the nuisance activities or if no agreement concerning abatement is reached, the owner and/or person in charge of the property may be subject to civil (Revised 09/2007) 8-62 City Clerk's Office penalties. Up to three community stakeholders may be called upon by the appropriate director to participate in the review, negotiation, and monitoring of the action plan. One of the community stakeholders may be recommended by the property owner. F. The plan of action may include, but not be limited to, items such as education for the owner or person in charge of the property, physical improvements for crime prevention, security for the property, and other items necessary to abate the chronic nuisance property. The plan must include specific time frames in which items will be completed. G. The monetary penalties for violations of this chapter shall be as follows: 1. First civil penalty $125 2. Second and subsequent civil penalties $250 Civil penalties will continue to accumulate until the plan of action is in place or, if the total accessed penalties exceed $1,000, a Certificate of Complaint may be filed with the Pierce County Auditor to be attached to the title of the property. A copy of the Certificate of Complaint shall be sent to the property owner and parties of interest if different from the owner. If over $1,000 in fines is levied or if the property owner or person in charge fails to adhere to a plan of action, the full costs of municipal services may be charged to the owner. H. Each day that a property or person is not in compliance with the provisions of this chapter may constitute a separate violation of this chapter. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.070 Administrative reviews by the Director. A. General. A person, firm, or corporation to whom a Notice of Violation for a chronic nuisance(s) or a civil penalty is assessed may request an administrative review of the Notice of Violation or the first civil penalty. B. How to Request an Administrative Review. A person, firm, or corporation may request an administrative review of the Notice of Violation for the first civil penalty by filing a written request with the director of the department or division listed as the contact in the Notice of Violation within ten calendar days of the notification date of violations or the date of the first assessed civil penalty. The request shall state, in writing, the reasons the director should Tacoma Municipal Code review the Notice of Violation or the issuance of the civil penalty. Failure to state the basis for the review, in writing, shall be cause for dismissal of the review. Upon receipt of the request for administrative review, the director shall review the information provided. C. Decision of the Director. After considering all of the information provided, the director shall determine whether a violation has occurred and shall affirm, vacate, suspend, or modify the Notice of Violation for the nuisance(s) or the amount of any monetary penalty assessed. The director's decision shall be either (a) personally served or (b) delivered by first- class mail and certified mail, return receipt requested, to the person in charge of the property, with a copy mailed to the owner at the address indicated by the Pierce County Assessor if different than the person in charge of the property. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.080 Appeals to the Hearing Examiner. Appeals of the director's decision shall be made to the Hearing Examiner within ten calendar days of the receipt of the director's decision. Upon receipt of a properly filed appeal, the Hearing Examiner shall set a hearing date and the appellant shall be notified of the hearing date by either (a) personal service or (b) delivery by first-class mail and certified mail, return receipt requested, to the person in charge of the property, with a copy mailed to the owner at the address indicated by the Pierce County Assessor if different than the person in charge of the property. The Hearing Examiner shall issue a Findings of Fact and Order based on the hearing, in writing, delivered to the appellant by first-class mail and certified mail, return receipt requested. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.090 Abatement. After an enforcement action is taken and civil penalties have been assessed in excess of $1,000, the property is subject to abatement by the City in the manner authorized by law. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.100 Judicial action. A. The City Attorney may initiate legal action on the chronic nuisance property and seek abatement of the nuisance in Pierce County Superior Court. B. In determining whether a property shall be deemed a chronic nuisance property and subject to the court's jurisdiction, the City shall have the initial burden of proof to show, by a preponderance of the evidence, that the property is a chronic nuisance property. The City may submit official police reports and other affidavits outlining the information that led Cir• Clerk's Office 8-63 (Revised 09/2007) Tacoma Municipal Code to arrest(s) and other chronic nuisance activity occurring or existing at the property. The failure to prosecute an individual, or the fact no one has been convicted of a crime, is not a defense to a chronic nuisance action. C. Once the court determines the property to be a chronic nuisance under this chapter, the court may order any other relief deemed appropriate to abate the chronic nuisance activity. The City will request that the court consider: (a) the actions taken by the person in charge and/or owner to mitigate or correct the nuisance activity; (b) the repeated or continuous nature of the nuisance activity; (c) the statements of the neighbors or those affected by the nuisance activity; (d) costs for personnel in the pursuit of bringing the property into compliance; and (e) any other factor deemed relevant by the court. D. If the court determines the property to be a chronic nuisance property, the court may order the property to be abated by the City or may order the property into a receivership, in accordance with RCW 7.60. E. Once a determination has been made by the court that the chronic nuisance property may be subject to abatement, the court may authorize the City to physically abate the property. Costs for such abatement shall be submitted to the court for review. The City shall file a formal lis pendens notice when an action for abatement is filed in the Pierce County Superior Court. F. If the court orders the property into a receivership, the court shall appoint a receiver and shall define the terms of the receivership based on the recommenda- tions provided by the City. G. Pierce County Superior Court shall retain juris- diction during any period of closure or abatement of the property. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.110 Additional relief. The director may seek any legal or equitable relief, such as utilization of RCW 9.66, 7.48, or 7.48A, at any time to mitigate violations referenced in TMC 8.30A.030. The director may also request revocation of the property owner's business license. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.120 Summary closure. Nothing in this chapter prohibits the City from taking any emergency action for the summary closure of such property when it is necessary to avoid an immediate threat to public welfare and safety. The City may take summary action to close the property without complying with the notification provisions of TMC 8.30A.030, but shall provide such notice as is reasonable under the circumstances. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.130 Collection of judgments. If the person cited fails to pay a penalty imposed pursuant to this chapter, the penalty costs and costs for municipal services may be referred to a collection agency. The cost to the City for the collection services will be assessed as costs, at the rate agreed upon between the City and the collection agency, and added to the judgment. Alternatively, the City may pursue collection in any other manner allowed by law. (Ord. 27153 § 1; passed Oct. 21, 2003) 8.30A.140 Severability. If any portion of this ordinance, or its application to any person or circumstances, is held invalid, the validity of the ordinance as a whole, or any other portion thereof, or the application of the provision to other persons or circumstances is not affected. (Ord. 27153 § I; passed Oct. 21, 2003) (Revised 09/2007) 8-64 Ciry Clerks Office July 4, 2001 OFFICIAL GAZETTE, SPOKANE, WASH. 461 ORDINANCE NO C-32855 An ordinance relating to the abatement of chronic nuisance properties; adding a new chapter, SMC 10.08A. Whereas, the City Council has determined that a small percentage of persons who own or control real property in this City have allowed their property to be used for illegal purposes or have otherwise failed to properly maintain their property, and such property has become a chronic nuisance property which has created a significant impact upon the living conditions in the city's neighborhoods and has raised justifiable concerns about public safety; and Whereas, the City Council has determined that chronic nuisance properties interfere with the comfort, health, solitude and quality of life of the individuals residing in the neighborhood, and lower the value of surrounding properties; and Whereas, the City Council has determined that existing laws have not sufficiently encouraged such persons to take reasonable steps to abate the nuisances that their property is creating; Whereas, the City Council has determined that enhanced penalties will give such property owners additional incentives to ameliorate the problems that their property is creating, and that some property owners will never act responsibly unless their property is subject to such abatement procedures; Whereas, chronic nuisance properties create a negative financial impact upon City services by numerous calls for service from various City departments The City of Spokane does ordain: That there be added a new chapter, SMC Chapter 10.08A, to read as follows: 10.08A.010 Purpose Chronic nuisance properties present grave health, safety and welfare concerns, which the property owners or persons in charge of such properties have failed to take corrective action to abate the nuisance condition. Chronic nuisance properties have a tremendous negative impact upon the quality of life, safety and health of the neighborhoods where they are located. This chapter is enacted to remedy nuisance activities that repeatedly occur or exist at chronic nuisance properties by providing a process for abatement; and this remedy is not an exclusive remedy available under any state or local laws and may be used in conjunction with such other laws. Also, chronic nuisance properties are a financial burden to the city by the repeated calls for service to the properties because of the nuisance activities that repeatedly occur or exist on such property, and this chapter is a means to ameliorate those conditions and hold responsible the owners or persons in charge of such property. 462 OFFICIAL GAZETTE, SPOKANE, WASH. July 4, 2001 10.08A.020 Definitions For purposes of this chapter, the following words or phrases shall have the meaning prescribed below: (1) "Abate" means to repair, replace, remove, destroy, or otherwise remedy a condition which constitutes a violation of this chapter by such means and in such a manner and to such an extent as the applicable city department director or designee determines is necessary in the interest of the general health, safety and welfare of the community; (2) "Control" means the ability to regulate, restrain, dominate, counteract or govern property, or conduct that occurs on a property; (3) "Chronic nuisance property" means property on which three or more nuisance activities occur or exist during any sixty-day period; (4) "Drug-related activity" means any unlawful activity at a property which consists of the manufacture, delivery, sale, storage, possession, or giving away of any controlled substance as defined in chapter 69.50 RCW, legend drug as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW; (5) "Landlord" means the owner, lessor, or subleasor of the dwelling unit or the property of which it is a part, and in addition, means any person designated as a representative of the landlord; (6) "Nuisance activity" means and includes: (a) a nuisance as defined by state law or local ordinance occurring around or near the property; or (b) any of the following activities, behaviors or criminal conduct: (i) stalking, SMC 10.11.060; 00 harassment, SMC 10.11.070 through 072 and SMC 10.11.079; (iii) failure to disperse, SMC 10.10010; (iv) disorderly conduct, SMC 10.10.020; (v) assault, SMC 10.11.010, including d.v. assault, SMC 10.09; (vi) reckless endangerment, SMC 10.11.020; (vii) prostitution, SMC 10.06.030; (viii) patronizing a prostitute, SMC 10.06.010; (ix) disorderly house, as defined by SMC 10.06.010; (x) indecent exposure, SMC 10.06.025; (xi) lewd conduct, SMC 10.06.020; (xii) any firearms violation listed in SMC 10.11.042 through 10.11.050; (xiii) noise, SMC 10.08.020; (xiv) loitering for the purpose of engaging in drug related activity, SMC 10.15.020; (xv) drug related activity; (xvi) gang related activity (as defined in RCW 59.118.030), and (xvii) any attempt to commit and/or conspiracy to commit any of the above activities, behaviors or conduct; (7) "Owner" means any person having any interest in the real estate in question as indicated in the records of the office of the Spokane County Auditor, or who establishes under this chapter, their ownership interest therein; (8) "Person" means natural person, joint venture, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, officer or employee of any of them; (9) "Person associated with a property" means any person who, on the occasion of a nuisance activity, has entered, patronized, visited, or attempted to enter, patronize or visit, or waited to enter, patronize or visit a property or a person present on property, including without limitation, any officer, director, customer, agent, employee, or any independent contractor of a property, or a person in charge of or owner of a property; (10) "Person in charge" of a property means any person, in actual or constructive possession of a property, including but not limited to an owner, occupant, agent, or property manager of a property under his or her control; (11) "Premises and property" may be used by this chapter interchangeably and means any building, lot, parcel, dwelling, rental unit, real estate or land or portion thereof including property used as residential or commercial property; (12) "Rental unit" means any structure or that part of a structure, including but not limited to single family home, room or apartment, which is rented to another and used as a home, residence, or sleeping place by one or more persons; 10.08A.030 Violation (1) Any property within the City of Spokane which is a chronic nuisance property is in violation of this Chapter and subject to its remedies; and (2) Any person in charge who permits property to be a chronic nuisance property shall be in violation of this chapter and subject to its remedies. 10.08A.040 Procedure (1) When the Chief of Police, or his designee, receives police documentation confirming the occurrence of three or more nuisance activities within a sixty day period on the property, the Chief of Police, or his designee, may review such reports to determine whether they describe the nuisance activities enumerated in 10.08A.020. Upon such a finding, the Chief of Police, or his designee, shall notify a property owner at the address shown on the County Auditor records and shall notify the person in charge of the property in writing that the property is in danger of being declared a chronic nuisance property. (2) The notice shall contain: (a) the street address or a legal description sufficient for identification of the property; (b) a concise description of the nuisance activities that exist, or that have occurred on the property; July 4, 2001 OFFICIAL GAZETTE, SPOKANE, WASH. 463 (c) a demand that the owner or person in charge respond to the chief or his designee within ten days of service of the notice to discuss the nuisance activities and create a plan to abate the chronic nuisance; (d) offer the person in charge an opportunity to abate the nuisance activities giving rise to the violation; and (e) a statement describing that if legal action is sought, the property could be subject to closure, civil penalties and/or costs assessed up to one hundred dollars per day after the notice of the chronic nuisance property is received. (3) Such notice shall be either (a) personally served, or (b) delivered by first class mail to the person in charge of the property with a copy mailed to the owner at the address indicated by the Spokane County Auditor, if different than the person in charge of the property. (4) If the person in charge fails to respond to the notice within the time prescribed, the Chief of Police, or his designee shall post such notice at the property and issue the person in charge a class one civil infraction. If the person in charge fails to respond to the issued infraction the matter shall be referred to the Office of the City Attorney for further action. (5) If the person in charge responds as required by the notice and agrees to abate the nuisance activity, the Chief of Police, or his designee, and the person in charge and/or property owner, may work out an agreed upon course of action which would abate the nuisance activity. If an agreed course of action does not result in the abatement of the nuisance activities or if no agreement concerning abatement is reached, the matter shall be forwarded to the Office of the City Attorney for enforcement action. (6) It is a defense to an action for chronic nuisance property that the person in charge at all material times could not, in the exercise of reasonable care or diligence, determine that the Property had become chronic nuisance property, or could not in spite of the exercise of reasonable care and diligence, control the conduct leading to the determination that the property is chronic nuisance property. 10.08A.050 Commencement of Action - Enforcement (1) Once the matter is referred to the City Attorney, the City Attorney shall immediately review and make a determination to initiate legal action authorized under this chapter or state statute, or may seek alternative forms of abatement of the nuisance activity. The City Attorney may initiate legal action on the chronic nuisance property and seek civil penalties and costs in superior court for the abatement of the nuisance. (2) In determining whether a property shall be deemed a chronic nuisance property and subject to the court's jurisdiction, the City shall have the initial burden of proof to show by a preponderance of the evidence that the property is a chronic nuisance property. The City may submit official police reports and other affidavits outlining the information that led to arrest(s), and other chronic nuisance activity occurring or existing at the property. The failure to prosecute an individual, or the fact no one has been convicted of a crime is not a defense to a chronic nuisance action. (3) Once a superior court determines the property to be a chronic nuisance under this Chapter the court may impose a civil penalty against any or all of the persons in charge of the property and/or the owner of the property, and may order any other relief deemed appropriate. A civil penalty may be assessed for up to one hundred dollars per day for each day the nuisance activity continues to occur following the date of the original notice by the Chief of Police, or his designee, as described in SMC 10.08A.040. In assessing the civil penalty, the court may consider the following factors, citing to those found applicable: (a) the actions taken by the person in charge and/or owner to mitigate or correct the nuisance activity; (b) the financial condition of the persons in charge; (c) the repeated or continuous nature of the nuisance activity; (d) the statements of the neighbors or those affected by the nuisance activity; and (e) any other factor deemed relevant by the court. (4) The superior court which determined the property to be a chronic nuisance property shall also assess costs against the person in charge and/or owner in the amount it costs the City to abate, or attempt to abate, the nuisance activity. (5) If the superior court determines the property to be a chronic nuisance property, the superior court shall order the property closed and secured against all unauthorized access, use and occupancy for a period up to one year, and may impose a civil penalty and costs. (6) Once a determination has been made by the superior court that the chronic nuisance property shall be subject to closure the court may authorize the City to physically secure the premises and initiate such closure. Costs for such closure shall be submitted to the Court for review. Any civil penalty and/or costs awarded to the City may be filed with the city treasurer who shall cause the same to be filed as a lien on the property with the County Treasurer. The City shall file a formal lis pendens notice when an action for abatement is filed in the superior court. (7) The superior court shall retain jurisdiction during any period of closure or abatement of the property. (8) Spokane Municipal Court is to have jurisdiction of all civil infractions issued pursuant to this chapter. 10.08A.060 Summary Closure Nothing in this chapter prohibits the City from taking any emergency action for the summary closure of such property when it is necessary to avoid an immediate threat to public welfare and safety. The City may take summary action to close the property without complying with the notification provisions of Section 10.08A.030, but shall provide such notice as is reasonable under the circumstances. 10.08A.070 Severability If any portion of this ordinance, or its application to any person or circumstances, is held invalid, the validity of the ordinance as a whole, or any other portion thereof, or the application of the provision to other persons or circumstances is not affected. 10.08A.080 Sunset Clause This provision shall be repealed three years from the date of adoption, unless reauthorized by the City Council. Passed by the City Council June 25,2001 ROB HIGGINS, Council President TERRI L. 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Ha a>� a Qo Qza. o CC � al) CITY COUNCIL WORKSHOP MEETING CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida TUESDAY July 10, 2007 5:30 PM MINUTES CALL TO ORDER: ROLL CALL: Council Members Present: Mayor Pro Tem Bob Hoog Council Member Leo Nicholas Council Member Buzz Petsos Mayor Rocky Randels Council Member Shannon Roberts Others Present: City Manager Bennett Boucher City Clerk Susan Stills Assistant City Attorney Kate Latorre Building Official Todd Morley DISCUSSION: 1. Chronic Nuisance Ordinance. Prior to start of discussion, Mr. Boucher distributed a flow chart from the City Attorney's office related to the discussion. Attorney Latorre explained how a Code Enforcement action and a chronic nuisance violation might progress concurrently. She stated that a user fee was attached to the chronic nuisance violation in order to recoup for the services of law enforcement intervention. Mayor Pro Tem Hoog read the heading of an Ordinance amending Chapter II, Article VI of the City code regarding Code Enforcement creating a new division regarding Chronic Nuisance properties. Ms. Roberts recommended inserting language related to the City's quality of life as one of the intents as one the Ordinance purposes. Discussion concluded to place language related to quality of life in the WHEREAS provisions. Ms. Roberts questioned the meaning of Purpose and Intent. Attorney Latorre explained that the City of Cape Canaveral, Florida City Council Workshop Meeting Chronic Nuisance Ordinance July 10, 2007 Page 2 of 6 WHEREAS clauses would not be codified in the City code; however, the Purpose and Intent would be codified. Attorney Latorre recommended placing the language in both portions. Mayor Pro Tem Hoog clarified that "quality of life" language would be added to the first sentence of Section 2-292., Purpose and Intent. Mayor Pro Tem Hoog reviewed Section 2-293., Definitions. Ms. Roberts suggested adding an "s" to the terms, law enforcement and code enforcement officer under the definition for Consumption of Law Enforcement Services. Mr. Nicholas questioned the meaning of, "other then at the convenience of the law enforcement agency or the city code enforcement office." Attorney Latorre explained that if the officer was in the routine course of duty and noticed a code enforcement infraction, then no inconvenience to service was imposed. Mr. Nicholas explained that some code enforcement action was still required which resulted in use of service. Mr. Petsos stated that the code enforcement action would probably occur during the weekday and not during the days of a nuisance call such as on the weekend. Ms. Joyce Hamilton stated that the City already had a False Alarm Ordinance and this would impose a second fine as a nuisance. Todd Morley, Building Official, explained that the Code Enforcement services were performed on a drive-by basis. He requested that the Council allow for a one-time occurrence unless Code Enforcement was called out on a violation. Mr. Boucher explained how several types of criminal violations, such as a false alarm, a domestic violence incident, or a narcotics complaint, could occur during one month at one unit. Mr. Petsos stated that the City has a successful False Alarm code and it should stand alone. Ms. Roberts pointed out how at some large complexes, as the City Manager said, multiple violations were possible. Attorney Latorre stated that the City ordinance allows for three false alarm occurrences in any one year, in which emergency services were called out, before any fines were imposed. Duree Alexander, Code Enforcement Officer, explained that a call from a resident established the nuisance activity. Mr. Boucher pointed out that the definition for Incident of Service established the different type of service calls for law enforcement or code enforcement. Mr. Boucher clarified his proposed amendment to the definition for Consumption of Law Enforcement Services, at the third line, end -of -sentence: add a period after "alleged to be existing upon the property" and strike out the remainder of the sentence. Mayor Pro Tem Hoog asked for clarification on an "identifiable" unit. Attorney Latorre explained the difficulty of taking action on a violator when a unit might not be identifiable at the location of the call. Council members discussed the "third parties." Attorney Latorre responded that this was a judgment call on an officer's part. Mr. Boucher confirmed for Mr. Nicholas that every dispatched law enforcement call was documented. Ms. Alexander explained that she submits her calls in a software program; she also logs City of Cape Canaveral, Florida City Council Workshop Meeting Chronic Nuisance Ordinance July 10, 2007 Page 3 of 6 in Incident Reports as well as calls from the City's E -Better Place citizen complaint process from the web site. Mayor Pro Tem Hoog questioned the resulting action for a property that had a percentage of renters and owners. Attorney Latorre replied that the City would contact the property owner related to the unit. Discussion followed on the types of ownership. Mr. Morley suggested inserting the word "real" before the word property in Incident of Service as was done in Unit of Real Property. Ms. Roberts stated her concern with the 30 -day time in the Monthly Period definition. Ms. Latorre explained that the unit of time related to any 30 -day period, from date to date, not a calendar month. Mayor Pro Tem Hoog proceeded to the definition for Nuisance Activity. Harry Pearson, Planning and Zoning Board Member, related to previous discussion that used the City of Sanford ordinance which included misdemeanors and felonies under its list of nuisance activity. He stated that arson was not a nuisance activity. Mayor Pro Tem Hoog and Mr. Petsos agreed. Attorney Latorre explained how recurring crime was a nuisance to the neighbors. There was no intent to prosecute arson before the Code Enforcement Board. Mr. Nicholas asked if prostitution at a property also constituted a nuisance. Attorney Latorre replied that the City has a Code provision to prosecute violations of its code as a public nuisance which could be applied in this instance. Discussion followed on relief for a neighbor of nuisance activity. Attorney Latorre stated that her flowchart was intended to depict the complete realm of prosecution efforts. She explained how the Ordinance was a tool to impose a user fee related to law and code enforcement services. Mr. Pearson stated that this Ordinance generated from the short-term rental discussion wherein nuisance activity was said to have occurred. He said that he did not realize that the City was seeking to address felonies through this Ordinance. Ms. Roberts pointed out that this was previously discussed as a solution to any one who disturbed the peace. Ms. Roberts also suggested including growing marijuana. Attorney Latorre replied that she believed "manufacturing" was relative to growing marijuana. Ms. Roberts suggested another category related to feeding or harboring animals, such as feral cats or peacocks, which could become a nuisance to neighbors. Mr. Boucher stated that the the condominium associations handled the matter for their premises within their regulations. Ms. Roberts went on record and stated that feeding wildlife was a public safety and health issue for the City. Mr. Morley pointed out that perhaps there were statutory definitions that exist for the items on the enumerated list. Attorney Latorre explained that the list was just an example of what could constitute a nuisance activity and the Ordinance was written "broadly" to allow the City to address what it considers a nuisance activity. Ms. Roberts City of Cape Canaveral, Florida City Council Workshop Meeting Chronic Nuisance Ordinance July 10, 2007 Page 4 of 6 pointed out that the issues of violation could relate to the person as well as the property. Attorney Latorre reminded that this Ordinance was written to address repeat nuisance properties and subject to a civil citation. She stated that the Civil Citation Ordinance would address someone feeding wildlife. Mr. Boucher clarified that this Ordinance, Chronic Nuisance, related to service usage; the next Ordinance, Civil Citation, would relate to a penalty for a violation. Mayor Pro Tem Hoog made note to include "domestic animals" to Item Number (11) and the City Attorney could draft nuisance language related to wildlife. Mayor Pro Tem proceeded to Item Number (12) in the enumerated list under Nuisance Activity. Ms. Robert asked if the property's amenities, such as a swimming pool were included in Item 12. Attorney Latorre replied that a swimming pool was covered under land. On the next item, Production or Creation of Excessive Noise or Vibration, Ms. Roberts asked what this item covered. Mr. Boucher replied to Ms. Roberts that there was a Statute that covered her concern related to motor cycle revving. Mayor Pro Tem Hoog stated that this could also be addressed through the Condominium Association. Mayor Pro Tem Hoog proceeded to, Loitering. Ms. Hamilton questioned if it were illegal to sit on one's own property and drink an alcoholic beverage outdoors. Mayor Pro Tem Hoog replied that this was permissible as long as the person remained on their own property and their behavior was not unruly which became subject to law. Ms. Roberts asked why alcohol was not included in Item No. (18). Attorney Latorre stated that this was covered in Item No. (15) and drugs were included in Item No. (9). Mr. Boucher replied to Ms. Roberts that Item No. (20) addressed a property owner that continued to keep junk vehicles on his premises. Mr. Morley addressed No. (22) and requested to replace the word "this" with the word "City" before code. Attorney Latorre agreed that she could specify that the Ordinance related to the City code chapter for Code Enforcement. Attorney Latorre explained how the, Person Associated With, provision was intended to prohibit nuisance persons from entering a property. Mayor Pro Tem Hoog proceeded to Section 2-294., Monthly Allowance of Services; User Charges, Service Fees Imposed. Ms. Roberts stated her concern with the sufficiency of the 30 -day period as they relate to short-term rentals. Secondly, Ms. Roberts requested to reduce the number of calls to two within a 30 -day period. Mr. Petsos pointed out that this would allow up to three calls per month and for violations twice per month. Mr. Petsos also noted that short-term rental might constitute another classification. Mayor Pro Tem Hoog stated that three calls were too many within a 30 -day period and a fine at the fourth call; however, he did not agree with up to a fifth call but a revocation of license. Discussion brought out three calls per year. Mr. Boucher referred to Sub- City of Cape Canaveral, Florida City Council Workshop Meeting Chronic Nuisance Ordinance July 10, 2007 Page 5 of 6 paragraph (e) and the provision which called for fines of a $500.00 service fee charged to the property owner for calls after the fifth violation. Mr. Boucher reminded that this Ordinance would also apply to hotels and businesses too and it was difficult to revoke hotel licenses using a City Ordinance. Mr. Nicholas stated that a more stringent Code would bring about the intent to maintain the City's residential character. Ms. Roberts stated that one of the things that would bring about license revocation was reaching a threshold and Council would need to determine that threshold. Attorney Latorre clarified that the City could only revoke their Certificate of Non -Conforming Status. The City could not revoke their State Resort -Dwelling license; however, the City could impose a fine under this Ordinance. Ms. Roberts stated that she thought those Resort Dwellings in the non -C-1 zoning district would fall under the revocation of license provision. Ms. Roberts stated that if it were not defined in this Ordinance, then there was no provision to revoke their license. Mr. Boucher clarified that the Council was not prosecuting under this Ordinance. Mr. Morley clarified that discussion was not for revoking the State license but for the Non -Conforming Status. Mr. Morley also pointed out that vacant property was not included in types of properties. He questioned why the differentiation service calls when calls would occur at any type of property. Attorney Latorre replied that they could remove the Table inset on Page five. Discussion followed on the amount of the fine. Attorney Latorre advised against becoming too severe in the penalties. Attorney Latorre referred to the Resort Dwelling and Resort Condominium Ordinance relating to losing non -conforming status when a person violated the three times within one-year rental provision. Attorney Latorre read the provision related to the City Manager taking lawful action which included seeking injunctive relief. Attorney Latorre explained how Section 2-295, Notification of the Nuisance Activity Procedures, was procedural to noticing the violator. Discussion ended in the agreement to strike the word "may" in the third sentence and insert the word "shall" to read "the City Manager shall notify the property owner." Mayor Pro Tem Hoog read the four instances of what the Notice shall contain. [Copy of the proposed attached.] Discussion clarified that the violator was required to file an Appeal within ten days of the Notice and the City Manager would have within 30 days to make a final decision. Ms. Roberts questioned Section 2-298 in which the City Manager's determination would be final. Attorney Latorre explained that the City Manager's final decision was based on the whether or not three infractions had occurred. This would set the fining process in motion. Attorney Latorre stated that the Appeals process in Section 2-298 would be clarified in the next Draft. City of Cape Canaveral, Florida City Council Workshop Meeting Chronic Nuisance Ordinance July 10, 2007 Page 6 of 6 Mayor Pro Tem Hoog read Section 2-296. Attorney Latorre replied to Ms. Roberts that the Lien was based on non-payment of the fine. Ms. Roberts referred to past instances of Liens and stated how staff time and Attorney's fees were also included as Administrative cost along with in those imposed Liens. Mr. Morley responded that the purpose of the fine was to cover Administrative costs involved in enforcement. Attorney Latorre explained that this was an Administrative fee based on the user charge. Ms. Roberts stated that there was a cost to the community for the nuisance upon reaching this stage. Mr. Boucher responded that Ms. Robert's recommendation would defer to the penalty structure and emphasized that this was a cost recovery action. Mayor Pro Tem Hoog read Section 2-297. Ms. Roberts requested to strike Section 2-297, Exemptions, in its entirety. Attorney Latorre informed that this was one of the provisions in the model Ordinance. Council members agreed by consensus to strike Section 2-297, Exemptions, from this Ordinance. Mayor Pro Tem Hoog made note that discussion would skip Section 2-298, Appeals, in order for the City Attorney's office to amend the language. Mayor Pro Tem Hoog read Section 2-299. Reports: Administrative Rules. Attorney Latorre explained that this would allow the City Manager to develop Administrative Rules. Mayor Pro Tem Hoog recommended changing the word "Rules" to "Procedures." Mr. Petsos pointed out that parking and excessive vehicles were not on the enumerated list of Page 4. Attorney Latorre clarified that those were included in Item No. (22) since these were already included in the City code. Mr. Boucher reiterated that the Chronic Nuisance Ordinance did not provide for a penalty but was an Administrative action for law enforcement and code enforcement service use. Attorney Latorre reminded that the Civil Citation would count toward the user fee. Mr. Boucher replied to Ms. Roberts that an applicant would make the Appeal to the Council for loss of Non -Conforming Use Status. ADJOURNMENT: There being no further business, the Chair adjourned the meeting at 8:15 P.M. Susan Stills, CMC, CITY CLERK CITY COUNCIL WORKSHOP MEETING WITH THE PLANNING & ZONING BOARD CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida TUESDAY August 28, 2007 5:30 PM MINUTES CALL TO ORDER: ROLL CALL: Council Members Present: Mayor Pro Tem Bob Hoog Council Member Leo Nicholas Council Member Buzz Petsos Mayor Rocky Randels Council Member Shannon Roberts Planning: & Zoning Members Present: Chairperson Bea McNeely Vice -Chairperson Lamar Russell Board Member John Fredrickson Board Member Donald Dunn Board Member Harry Pearson Alternate Board Member John Johanson Others Present: City Attorney Kate Latorre City Manager Bennett Boucher Building Official Todd Morley Code Enforcement Officer Duree Alexander BCSO Lt. Jeff Ludwig Recording Secretary Kim McIntire DISCUSSION: 1. Proposed Chronic Nuisance Ordinance and Civil Citation Proeram Mayor Randels thanked Mayor Pro Tem Hoog for chairing the July 10 workshop meeting in the discussion of the proposed Chronic Nuisance Ordinance and Civil Citation Program. He stated the purpose of this evening's workshop was to solicit input from the Sheriff's Department. He explained that the proposed ordinance and program were not replacing Code Enforcement. The intent is to shorten up the process. Mr. Boucher commended Mayor Pro Tem Hoog for guiding everyone through the review of the entire ordinance at the last workshop meeting. He said copies of the revision to the draft ordinance from the first workshop meeting had just been received from the City Attorney's Office dated July 31, 2007, and copies had been provided for this evening. The proposed ordinance allows for two service calls within a one-year period with a $250 fine for the third service call and a $500 fine for all service calls thereafter for single-family resident or duplex, multi -family residences including apartments, hotels & motels and businesses. Mr. Boucher asked for law enforcement perspective before the frequency thresholds are finalized. Lt. Ludwig advised that the Sheriff s Office had prepared a Calls for Service report for Cape Caribe, Residence Inn and the Radisson for the period of January 1, 2006 to July 19, 2007 for City Council's review. Lt. Ludwig walked City Council and the P&Z Board through the service call process starting with the original complaint to the BCSO Operator to the Dispatcher to the Deputy. Mayor Randels asked how the system works with cell phones. Lt. Ludwig responded that the Sheriff's Department works with GPS components through the phone company. Lt. Ludwig said one problem with the proposed two service calls within a one-year period is that individuals may need a third service call; however, they don't want to be fined and, therefore, will not contact the Sheriff's Department. This is not what the Sheriff s Department wants to happen. Councilmember Nicholas opined that certain businesses will not place service calls because they don't want to get a reputation with the Sheriff's Department; specifically, bars. He said if the City was going to impose fines on the City's businesses, how were the businesses located at the port going to be handled. Mayor Randels asked Lt. Ludwig what can the City do to help reduce the number of complaints. Lt. Ludwig responded that each service call is unique. His biggest concern is that people will not call if the City Council establishes a threshold of two service calls per a one-year period. Lamar Russell reminded everyone of the original intent of the proposed chronic nuisance ordinance which was to address resort dwellings within the residential neighborhoods. Large traffic areas (hotels, businesses), resulted in more service calls. The biggest flaw in the ordinance is that commercial areas are included, and he recommended they be removed. Representatives from Cape Caribe, Residence Inn and the Radisson all stated that a majority of service calls were generated from within their respective complexes. Mr. John Grandlich, Cape Caribe, stated that the issue of "noise" was subjective. Discussion followed regarding noise caused by businesses in the commercial areas that abut residential areas; i.e., Waste Management trucks servicing Cape Caribe in the early morning and Wendy's and Circle K receiving deliveries at night. Mayor Randels added that the time of the nuisance was relevant. Mr. Russell opined that the only leverage the City needs is through the Occupational Licenses; excessive business complaints can be taken up by the City Council. He restated that the proposed ordinance should only be applied to the residential areas. Council Member Petsos agreed. Lt. Ludwig stated that the problem with noise complaints was that very rarely does the deputy hear anything when he arrives on site. Affidavits are required by neighbors; however, many times the citizens will not cooperate for fear of retaliation. Citizens need to work more closely with the Sheriff's Office. P&Z Members Dunn and Pearson agreed that some of the items listed in the proposed ordinance should not be included; i.e., battery. Mr. Pearson reminded that the P&Z Board had recommended three service calls within a 30 -day period; however, the proposed ordinance had been revised by the city attorney. He questioned if the City was becoming too severe. The Residence Inn representative advised that their foot traffic averages 6,000/month which should allow for more service calls. John Grandlich advised that Cape Caribe paid an exorbitant amount of impact fees and together with foot traffic, these parameters should justify the need for a higher number of service calls than the residential units. He said respective property owners should address nuisance situations among themselves prior to contacting the Sheriff's Office. City Manager Boucher felt this would be the appropriate time to begin discussing the Civil Citation Program and asked City Council to review the draft ordinance dated June 21, 2007. The eight items listed under Sec. 2-283 may be enforced by the issuance of a civil citation by the code enforcement officer. Attorney Latorre explained that civil citations can be issued to the offending party immediately. She said the proposed ordinance is an alternate way to remedy a code enforcement issue. Deputies must witness the violation before issuing a civil citation. Attorney Latorre reviewed the eight items listed under Sec. 2- 283 and discussion followed. Mayor Randels opined that the City currently has a manageable false alarm process in place. Code Enforcement Officer Alexander stated that there were a few businesses that have been fined by the Code Enforcement Board because they did not pay their false alarm fine. Code Enforcement Officer Alexander opined that the current Notices of Violation are a good tool; however, it is a long process from start to finish. Discussion followed regarding Notices of Violation being issued to resort dwellings that are operating prior to obtaining their Certificate of Non -Conformance. City Manager Boucher stated that a case needs to be built with sufficient evidence and said the fire chief has not recommended that any resort dwelling be shut down. City Council requested that the Sheriff's Department prepare a report on all service calls for the previous year throughout the City. City Manager Boucher asked council to look at the Civil Citation Program and decide how much they want to empower to the code enforcement officer. The next workshop meeting will be September 13, 2007. Mayor Randels thanked Lt. Ludwig for his feedback. ADJOURNMENT: There being no further business, Mayor Randels adjourned the meeting at 7:40 pm. Kim M. McIntire, Recording Secretary CITY COUNCIL WORKSHOP MEETING WITH THE PLANNING & ZONING BOARD CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida THURSDAY September 13, 2007 5:30 PM CALL TO ORDER: ROLL CALL: Council Members Present: Mayor Pro Tem Bob Hoog Council Member Leo Nicholas Council Member Buzz Petsos (Arrived at 6:40 pm) Mayor Rocky Randels Council Member Shannon Roberts Planning & Zoning Members Present: Chairperson Bea McNeely Vice -Chairperson Lamar Russell Board Member John Fredrickson Board Member Donald Dunn Board Member Harry Pearson Alternate Board Member John Johanson Others Present: City Attorney Kate Latorre City Manager Bennett Boucher Building Official Todd Morley Code Enforcement Officer Duree Alexander BCSO Lt. Jeff Ludwig Recording Secretary Kim McIntire Mayor Randels explained that the minutes from the August 28, 2007 meeting were still being transcribed as there were technical difficulties in retrieving the recording from the digital recorder in a timely manner. Mayor Randels thanked Joyce Hamilton for providing the refreshments at this evening's meeting. DISCUSSION: 1. Civil Citation Code Mayor Randels stated that the purpose of this meeting was to review the Civil Citation Ordinance as recommended by the Code Enforcement Board. He stated that fireworks and unlicensed contractors were currently enforced through civil citations and the Code Enforcement Board was proposing that seven additional areas of concern be included: alarm systems (currently in the code), environment, animals, garage sales, swimming pool enclosures, rental restrictions on dwelling units and numbering of buildings. Mayor Randels stated that the city manager was recommending that that City Council move forward to the first reading with any suggested modifications from this workshop. Mayor Randels read the heading of the proposed ordinance and stated this was completely separate and apart from the proposed chronic nuisance ordinance. The civil citation ordinance would allow violators to be put on notice immediately through a citation without having to go through the code enforcement process and the procedures dealing with civil citations have been in place since 2004 and were contained within Section 2, 283-285. Mayor Randels stated that the proposed ordinance was in addition to and not in lieu of the current code enforcement process. Ms. Roberts had a concern with regard to fireworks and the inability/willingness of the BCSO to issue citations to persons in violation of the code. Lt. Ludwig replied that the deputy must personally witness the infraction, which was extremely difficult, and the code stated that individuals were entitled to one warning. Ms. Roberts stated that the City of Cocoa Beach did not issue warnings, but immediately issued citations. Mayor Randels read the e-mail from the city manager of Cocoa Beach which stated they did not have a policy of a first warning; if the violator were caught, they were immediately ticketed. However, it was difficult to determine in a group which individual actually set off the fireworks. The city simply confiscated all the fireworks. In July, they issued two citations and confiscated fireworks from six groups. City Attorney Garganese affirmed that Florida law required a warning notice for the issuance of citations except for a serious threatiharm to the public safety, health or welfare or if the offense were irreparable/irreversible. Lt. Ludwig pointed out it was not illegal to possess fireworks; only illegal to discharge fireworks. Ms. Roberts asked if "animals" included dogs on the beach. Ms Alexander replied that the Code Enforcement Board's discussion did not include dogs on the beach. Mr. Boucher stated that Chapter 14 dealt with bees, sea turtles and the City's adoption of the Brevard County Animal Control Ordinance. Everything listed in that ordinance would be subject to a civil citation. Lt. Ludwig stated that all animal complaints received by the Communications Center were immediately dispatched to a deputy for enforcement. He stated that the deputy must personally witness a dog on the beach with its owner in order to issue a citation. He also said the deputies were not required to give a warning with the current animal control citations. Mr. Garganese agreed that animal control was different and advised that the City may not want to include animal control in the proposed ordinance. Mayor Randels proceeded to "environment" and the city manager listed the items contained in this element as illegal distribution of handbills, litter, noise, property maintenance standards, building/landscape/sign appearance, weeds and dead vegetation, abandoned property and spillover lighting. Discussion followed on whether civil citations would be issued with "daily" or "reasonable time" compliance factors. Mayor Randels said this issue was already addressed in Section 2-287, Repeat Violations. Additionally, the code enforcement officer has a reasonable amount of discretion in dealing with repeat offenders. In response to Ms. Roberts question regarding payments of fines, Mayor Randels stated that the procedure was spelled out in Section 2-289 which was adopted and has been a part of the City's code for three years. In response to Ms. Roberts question regarding back-up for all the items except "alarm systems", the city manager responded that he had provided council with the existing codes that had penalties assigned to them. However, he was recommending that alarm systems be removed because there was an existing code that addressed this issue. The city manager acknowledged that council should have received a copy of Chapter 34-14, which addressed multiple issue items. Mayor Randels proceeded to "garage sales". Following discussion and input from the code enforcement officer, City Council concurred that "garage sales" be included in the proposed ordinance. Mayor Randels proceeded to "swimming pool enclosures". It was clarified that "enclosure" referred to a protective barrier around the pool. Following discussion and input from the building official and code enforcement, City Council concurred that "swimming pool enclosures" be included in the proposed ordinance. Mayor Randels proceeded to "numbering of buildings". The city attorney said this included numbering of buildings and property, establishing a numbering system and maintenance of the numbering system. The city attorney confirmed for Ms. Roberts that the City had an established numbering system which is overseen by the building official. Following input from the code enforcement officer, City Council concurred that "numbering of buildings" be included in the proposed ordinance. The city manager and city attorney recommended that Article I, Bees, and Article 11I, Sea Turtles, be included in the proposed ordinance and tabling Article II, Adoption of the county's animal control ordinance. Mayor Randels returned to the elements contained within "environment". Lt. Ludwig stated the deputies needed an affidavit in order to cite a noise violation. The city attorney stated there were two different standards: the reasonableness standard which was more subjective and the decibel type standard which was far more objective, but more difficult to establish. He explained the lengthy procedure required in order to prepare a decibel standard ordinance. There was concurrence that the City should utilize reasonableness standard for the noise element. Ms. Roberts asked about odor/air quality; Ms. Alexander replied this was defined in Section 34 under the definition of nuisance as "everything that endangers life or health and is offensive to the senses". The city attorney Mr. Garganese confirmed for Mr. Hoog that the resort dwelling ordinance applied to the property owner receiving the citation. Mr. Hoog asked the renter caused a problem, who would receive the citation - the renter or the property owner. Debate followed regarding this being included in the Civil Citation Program or falling within the Resort Dwelling ordinance. If City Council adopted Item 2, Chronic Nuisance Ordinance on the agenda, both renter and owner of resort dwelling would be citied. Ms. Roberts questioned the timing and fining of violations. Mayor Randels pointed out the framework has been in place per Section 2-287. Mr. Boucher explained the citation program is an aid for the code enforcement officer to obtain compliance without going through the entire code enforcement process. The chronic nuisance ordinance was based on frequency of events. Mr. Hermanson did feel the Chronic Nuisance Code was necessary and recommended that only the Civil Citation Code be adopted. Mr. Petsos opined that the owner of the resort dwelling had to be held accountable somewhere. Mr. Hermanson responded they would be held accountable through the Civil Citation Code as it would give the code enforcement officer additional ammunition. Discussion followed regarding the difficulty in applying these ordinances across the board throughout the City; the need to put "teeth" into the Civil Citation Program; certain areas within the City where the owners don't care. Civil Citation program will give the code enforcement the authority to cite property owners who are illegally renting their resort dwellings. This is a Class W violation, resulting in a $500 fine. Ms. Roberts did feel the $500 fine was severe enough; she believed the establishments should be shut down. Mr. Petsos said this program gave the City the tool to cite the owners immediately. Mr. Boucher remarked first reading on the Civil Citation Code would be 10/2 with second reading on 10/16. He said the eight violations was a good way to start with the program and said it may need to be tweaked in the future. Council asked the city manager to bring the Civil Citation Code forward for first reading on 10/2. Mr. Garganese addressed Ms. Roberts concerns linking the two ordinances. 2. Chronic Nuisance Code This was recommended on June 25, 2007. Mayor Randels summarized discussions to date. There was concern regarding application of this code to hotels and calls that were generated internally vs. externally. Lt. Ludwig summarized his findings on the Radisson, Cape Caribe and Country Inn & Suites from 1/6/06 to 7/07. Cape Caribe had one external, off premise animal complaint; three external fireworks complaints. Country Inn & Suites had one external animal complaint. Radisson had one external fight complaint. Mayor Randels did not feel there was a problem with the above three establishments that the City was attempting to regulate. How can Jeannie by the Sea be judged the same as hotels; Buzz suggested only external calls be addressed; he likes a higher level then three calls per year for the businesses and condos; good to look at a sliding scale, residential vs. commercial; Shannon asked why is an internal call any less significant than a single family dwelling complaint; address frequency of calls. Lamar says the chronic nuisance is 1,2,3 and you're out and then apply the civil citation. Bob said we are trying to approve an ordinance that penalizes the property owner. The low rent areas of the city are the cause of the problem; apply the nuisance code where needed. Bob said the civil citation ordinance through code enforcement and deputy is good; it will be difficult to equally apply the chronic nuisance ordinance. Buzz said the sole reason for the chronic nuisance ordinance was to address resort dwellings. Rocky said chronic nuisance ordinance may not be necessary now; maybe a citation will work; maybe the resort dwelling ordinance will work; maybe we are workshopping something that doesn't need to be addressed. Shannon feels there is a need for the chronic nuisance ordinance. Discussion: put the civil ordinance in place; put the resort dwelling ordinance in place; evaluate after six months; Lamar: just the threat of a nuisance ordinance being put in place may be enough. Shannon: don't want to diminish a residential community next to a commercial community; Rocky said this situation exists throughout the entire City. Council tasked staff with obtaining the frequency of calls, small vs. large properties, for next workshop meeting. Buzz doesn't feel council is ready to go to first public hearing; of the 24 items, all are addressed by code enforcement and deputies. Rocky acknowledged Roger Dobson as recipient of Entrepeneur of the Year. Bennett announced Code Review next Tuesday at 5:30 pm; 10-2-07 will be first reading of civil citation ordinance.