AGENDA MEMORANDUM

 

 

Meeting Date:           April 26, 2010

 

From:                          Fred A. Morrison, City Attorney

 

Subject:                      Nuisance Ordinance

 

 

Staff Recommendation:

Staff recommends adoption of the proposed nuisance ordinance.

 

Analysis:

Due to ongoing disturbances at a local bar and restaurant, the City Commission requested that a nuisance ordinance be prepared. The City had a similar ordinance in the past, creating a nuisance abatement board with the power to determine the existence of a nuisance and impose penalties, but that ordinance was repealed as part of the adoption of the new land development regulations. Although based on state statute, the former ordinance had some legal weaknesses in that other cities with similar ordinances had encountered court challenges from affected property and business owners, especially when the penalty imposed was closure of the business for up to one year. The new ordinance being proposed is similar in operation to the old one, but based on court cases since then it is less open to legal challenges because it contains enhanced notification and warning provisions, provides greater protection for the rights of landlords, and requires multiple findings of the existence of a nuisance before the ultimate penalty of closure may be imposed. Although the business which precipitated the drafting of the new ordinance is now closed, passage of the ordinance will provide law enforcement with more tools to deal with any nuisance which arises in the future.

 

Options:        

1.      Adopt the ordinance as proposed,

2.      request amendments to the ordinance,

3.      decline to adopt the ordinance, or

4.      take such other action as the Commission may deem appropriate.

 


 

 

Fiscal Impact

Adoption of the ordinance will not impose any direct fiscal impact on the City. As with any regulatory ordinance there is a possibility of legal challenges but it is not possible to quantify either the potential for such a challenge or its probable cost.

 

Submission Date and Time:    4/22/10 9:29 AM____

 

Department:             City Attorney    

Prepared by:  Fred A. Morrison

Attachments:  Yes____   No ______

Advertised:   ____Not Required ______                     

Dates:   __________________________                     

Newspapers:

_________________________________                                                     

_________________________________           

Revised 6/10/04

 

Reviewed by: Dept. Head ________

 

Finance  Dept. __________________                                     

                              

Deputy C.M. ___________________                                                                         

Submitted by:

City Manager ___________________

 

Account No. _________________

 

Project No. ___________________

 

WF No. ______________________

 

Budget  ______________________

 

Available _____________________

 


 

ORDINANCE NO.                                    

 

AN ORDINANCE OF THE CITY OF LEESBURG, FLORIDA, REGULATING PUBLIC NUISANCES, PROVIDING DEFINITIONS, PROVIDING FOR THE FILING OF COMPLAINTS, PROVIDING A METHOD OF ENFORCEMENT, GRANTING JURISDICTION FO THE CODE ENFORCEMENT SPECIAL MAGISTRATE OVER PUBLIC NUISANCE VIOLATIONS, PROVIDING FOR A NOTIFICATION AND PUBLIC HEARING PROCESS, PROVIDING FOR APPEALS, ESTABLISHING PENALTIES, ALLOWING FOR ALTERNATIVE METHODS OF PROCEEDING AGAINST PUBLIC NUISANCES, REPEALING CONFLICTING ORDINANCES, PROVIDING A SAVINGS CLAUSE, AND PROVIDING AN EFFECTIVE DATE.

 

            WHEREAS, the City of Leesburg has been receiving repeated complaints about public nuisances within its jurisdiction, and

 

            WHEREAS, the City does not have an effective and comprehensive ordinance to deal with the problem of public nuisances, and

 

            WHEREAS, the existence of public nuisances is deleterious to the health, safety and welfare of the citizens of the City of Leesburg, and

 

            WHEREAS, the City Commission has determined that it is necessary to enact an ordinance establishing a method of defining public nuisances and enforcing penalties against persons or entities which engage in or harbor public nuisances,

 

            NOW THEREFORE, BE IT ENACTED BY THE PEOPLE OF THE CITY OF LEESBURG, FLORIDA:

 

SECTION I.

 

§12 – 19 of the Code of Ordinances of the City of Leesburg is hereby created to read as set forth below:

 

Section 12 – 19. Regulation of Public Nuisances.

 

(a)     As used in this Section, the term “public nuisance” shall mean any residential building, place of commercial business or other property that has been used as or has been the location of:

 

1.      On more than two occasions within a 6 month period as the site of a violation of Chapter 796, Fla. Stat. (prohibiting acts of prostitution);

2.      On more than two occasions within a 6 month period as the site of the unlawful sale, delivery, manufacture or cultivation of any controlled substance;

3.      On one occasion as the site of the unlawful possession of a controlled substance, where such possession constitutes a felony and the same premises have been adjudicated under this Ordinances as having been previously used on more than one occasion as the site of the unlawful sale, delivery, manufacture, or cultivation of any controlled substance;

4.      On more than two occasions within a 6 month period as the site of a violation of §812.019, Fla. Stat. related to dealing in stolen property;

5.      On more than two occasions within a 6 month period as the location of a public altercation including but not limited to any physical or sexual assault, battery, non – accidental gunshot injury or stabbing injury, or any fight involving a criminal gang, criminal gang member or criminal gang associate, or hate group, all as defined in §874.03, Fla. Stat.

6.      On more than four occasions within a 6 month period as the subject of citizen complaints regarding excessive noise, including music or musical instruments producing sufficient volume to be heard inside any residential structure more than 100 feet away from the site, with the windows closed; and raucous outdoor gatherings such as crowds assembled in a public or private parking lot (excluding any music or outdoor gatherings for which a special events permit has been issued under this Code).

 

(b)   Any residential building, commercial business or other property determined in the enforcement process set forth below to have met any of the conditions enumerated in subsection (1) of this Ordinance may be declared to be a public nuisance, and the owner or tenant thereof, or both when evidence so justifies, may be subjected to the penalties specified in this Ordinance.

 

(c)    This Ordinance shall be enforced by the Special Magistrate designated by the City to hear Code Enforcement cases, utilizing the procedures set forth below.

 

(d)   A complaint against an alleged public nuisance may be initiated by any Code Enforcement Officer or Police Officer of the City of Leesburg, by the Building Official, by the Community Development Department, or by any citizen. The procedure for the filing and processing of a complaint is as follows:

 

1.      All complaints shall be in writing and under oath, and shall contain the name and mailing address of the complainant (for complaints initiated by any City employee that shall be the address of the City); the name and address of the commercial business or the address of the residential structure which is the subject of the complaint; the name and address of the property owner (and if not owner – occupied, the name and address of the tenant) of the premises which are the subject of the complaint, if known; and a detailed description of the facts which the complainant believes justify a determination that the premises constitute a public nuisance under this Ordinance.

 

2.      Once a complaint is filed, the City Manager or his designee shall review the complaint to determine that it is sufficient on its face to allege properly the existence of a public nuisance under this Ordinance. If the complaint is deemed sufficient on its face, the City shall investigate the premises to determine the name and address of the property owner and tenant. For the property owner, the information on the Lake County Property Appraiser’s records shall be considered prima facie evidence of the name and mailing address of the owner. For the tenant, where applicable, the records of the Customer Service Department of the City reflecting the name and address of the utility customer at the location shall be deemed prima facie evidence of the identity and address of the tenant

 

3.      After the complaint is deemed sufficient on its face and the name and address of the property owner and tenant, if any, have been determined, the complaint shall be set for hearing before the Special Magistrate. The property owner and tenant, if any, shall be given written notice by both certified mail, return receipt requested, and regular first class mail, and by posting at the premises, not less than 15 calendar days prior to the scheduled hearing date, informing them of the filing of the complaint, the facts alleged as a basis for the allegation that the premises constitute a public nuisance, and of the date, time and location of the public hearing. The notice shall also inform the tenant and property owner that to prosecute any appeal of the Special Magistrate’s decision will require a verbatim record of the hearing which the City does not provide and that it will be the responsibility of the property owner or tenant to provide for that verbatim record of the proceedings. A copy of this Ordinance shall be included in each notice. Due to the serious nature of the penalties which may be imposed hereunder, constructive notice by publication or posting alone may not be the basis for a public hearing under this Ordinance. However, the City may in its sole discretion serve a tenant or property owner personally by hand delivery, PROVIDED that service by hand delivery shall not eliminate the need to serve the notice by certified mail, regular mail and posting at the premises.

 

(e)    A public hearing on the complaint shall be held at the date and time set forth in the notice to the property owner and tenant. A property owner or tenant may request one postponement of the public hearing for not more than 30 days, for good cause, which request shall be granted by the Special Magistrate in the absence of a showing by the City or the complainant that the postponement will prejudice them in any way.

 

(f)     At the public hearing, all testimony shall be given under oath. Strict rules of evidence shall not apply but the Special Magistrate may take into account the persuasive value of evidence such as hearsay which would be inadmissible in a court of law. The City or citizen complainant shall proceed first, to present the evidence in support of the assertion that the property in question constitutes a public nuisance. The property owner, and tenant if any, shall then be entitled to present evidence in defense of the proposition that the property does not constitute a public nuisance. Each party may cross examine the witnesses of the other. Documentary evidence may be presented, however the Special Magistrate shall have discretion to reject or give lesser weight to any documentary evidence which is inadmissible in a court of law, such as hearsay or documents which are not properly authenticated. Following the presentations by the City or citizen complainant, the property owner and tenant, members of the general public in attendance may be allowed to speak under oath at the discretion of the Special Magistrate, provided that anyone speaking shall be subject to cross examination by the City or citizen complainant, the property owner and the tenant.

 

(g)    At the conclusion of the public hearing, the Special Magistrate shall announce a determination whether, based on the testimony and evidence presented, the property constitutes a public nuisance under this Ordinance. If a nuisance is determined to exist, and the property is occupied by a tenant, the order shall specify whether the nuisance is attributable solely to the acts or failure to act of the tenant, or whether the property owner is also complicit in the nuisance.

 

(h)   If the property is found to be a public nuisance, the Special Magistrate may impose any of the following penalties and sanctions:

 

(1)   Fines of up to $250.00 per day for each day the property is determined to have been operated as a public nuisance; provided that if the property has been determined to be a public nuisance in an earlier proceeding under this Ordinance then the fine may be up to $500.00 per day for a recurring public nuisance, and provided further that the total fines imposed under this Ordinance on any parcel shall not exceed $15,000.00;

(2)   Entry of an order requiring the property owner to adopt such rules and procedures as may be appropriate under the circumstances to abate the nuisance;

(3)   Entry of an order with a duration determined by the Special Magistrate, not to exceed one year, prohibiting the conduct which is found to have constituted a public nuisance and reserving jurisdiction over the property to the Special Magistrate for a period up to one year;

(4)   Imposition of an additional monetary penalty equal to the reasonable costs and reasonable attorneys’ fees incurred by the City in the investigation of the public nuisance and the prosecution of the proceedings under this Ordinance leading to the determination of public nuisance;

(5)   For the third determination of public nuisance under this Ordinance on the same property within any one year period, the Special Magistrate may issue an order with a duration not to exceed one year, prohibiting the operation of the premises including closure of the place or premises or any part thereof, and the conduct, operation or maintenance of any business or activity on the premises which is conducive to the activities found to constitute a public nuisance;

(6)   Requiring the recordation in the Public Records of Lake County, Florida of the order finding the existence of a public nuisance in order to provide notice to subsequent purchasers, successors in interest, or assigns of the real property that it is subject to the order;

(7)   Requiring the recordation of the order imposing any fines or monetary penalties as a lien against the real property in question, and providing for the foreclosure of such lien and recovery of all costs, including reasonable attorneys’ fees, incurred in the foreclosure process.

 

Copies of all orders entered under this Ordinance shall be served on the parties in the same manner provided herein for service of notice of the public hearing. Notwithstanding anything to the contrary in this Ordinance, the penalties provided for under subsections (1), (4), (5), and (7) above shall not be levied against an owner of real property if the nuisance found to exist is due solely to the acts of a tenant in the property in which the property owner is found not to have been complicit, and the property owner evicts the tenant within 90 days after notification of entry of an order finding the existence of a public nuisance attributable solely to the acts or failure to act of the tenant.

 

(i)     Any party aggrieved by the decision of the Special Magistrate may initiate an appeal of the decision to the Circuit Court in Lake County, Florida, by filing a notice of appeal with the City Manager which is received by the City Manager no later than 30 days after entry of the order being appealed. The appeal shall be governed by the Florida Rules of Appellate Procedure in all respects. No appeal shall act as a stay of the order under appeal unless the appellant seeks a stay of the order from the Circuit Court and files a supersedeas bond in the amount determined by the Circuit Court.

 

(j)     This Ordinance is intended to be a supplemental and non – exclusive method of adjudicating and penalizing public nuisances. Its enactment shall not be construed to limit the rights of the City of Leesburg or any citizen to proceed against an alleged public nuisance in any other manner permitted by law or in equity including seeking declaratory or injunctive relief, including but not limited to proceeding under §60.05, Fla. Stat.

 

SECTION II.

 

All ordinances or part of ordinances which are in conflict with this Ordinance are hereby repealed, to the extent necessary to alleviate the conflict, but shall continue in effect insofar as they are not in conflict herewith, unless repeal of the conflicting portion destroys the overall intent and effect of any of the conflicting ordinance, in which case those ordinances so affected shall be hereby repealed in their entirety.

 

SECTION III.

 

If any portion of this Ordinance is declared invalid or unenforceable, and to the extent that it is possible to do so without destroying the overall intent and effect of this Ordinance, the portion deemed invalid or unenforceable shall be severed herefrom and the remainder of the ordinance shall continue in full force and effect as if it were enacted without including the portion found to be invalid or unenforceable.

 


 

 

 

SECTION IV.

 

This Ordinance shall become effective upon its passage and adoption according to law.

 

PASSED AND ADOPTED at the regular meeting of the City Commission of the City of Leesburg, Florida, held on the                   day of                                                 , 2010.

 

 

 

                                                                                    THE CITY OF LEESBURG, FLORIDA

 

 

 

                                                                                    BY:                                                                 

                                                                                                MAYOR

 

 

 

Attest:                                                                        

            CITY CLERK