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Ordinance 96-11 ORDINANCE NO. 96- 11 AN ORDINANCE TO BE ENTITLED THE COLLIER COUNTY PUBLIC ..~}[UISANCE ABATEMENT ORDINANCE; PROVIDING FINDINGS AND PURPOSE; PROVIDING FOR TITLE AND CITATION; PROVIDING FOR APPLICABILITY TO THE UNINCORPORATED AREAS. OF COLLIER COUNTY, FLORIDA AND TO MUNICIPALITIES WITHIN COLLIER COUNTY THAT AGREE TO THE APPLICATION AND ENFORCEMENT OF THIS ORDINANCE WITHIN THE MUNICIPALITY; SETTING FORTH DEFINITIONS; ESTABLISHING OPERATING PROCEDURES; PROVIDING FOR THE CREATION OF THE COLLIER COUNTY CODE ENFORCEMENT BOARD, NUISANCE ABATEMENT DIVISION; PROVIDING FOR MEETINGS OF THE BOARD, THE CONDUCT OF HEARINGS AND THE ENTRY OF NUISANCE ABATEMENT ORDERS AND INJUNCTIONSI PROVIDING FOR IMPOSITION OF COSTS; PROVIDING FOR REIIEARING AND APPEAL; PROVIDING FOR PRESERVATION OF RIGHTS; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND ~ROVIDING AN EFFECTIVE DATE. ~{EREAS, Article VIII of the Constitution of the State of Florida authorizes Florida counties to exercise broad home rule powers; and WHEREAS, Section 125.01(1), Florida Statutes, provides that the legislative and governing body of a county shall have the power to carry on county government and that said power includes, but is not restricted to, a number of powers set forth in Section 125.01 so long as any powers exercised are not inconsistent with general or special law; and WHEREAS, Section 125.01(1)(t), Florida Statutes, provides that a county may adopt ordinances and resolutions necessary for the exercise of its powers and prescribe fines and penalties for the violation of ordinances in accordance with law; and WHEREAS, Section 125.01(1), Florida Statutes, enumerates county powers which include, but are not limited to: providing for the prosecution and defense of legal causes on behalf of the county, establishing and enforcing zoning and business regulations as are necessary for the protection of the public, establishing and enforcing regulations for the sale of alcoholic beverages in unincorporated areas of the county pursuant to general law, entering into agreements with other governmental agencies within or outside the boundaries of the county for joint performance or performance by one unit on behalf of the other of any of either agency's authorized functions, the performance of any other acts not inconsistent with law, which acts are in the -1- common interest of the people of the county, and the exercise of all powers and privileges not specifically prohibited by law; and WHEREAS, Section 125.01(3)(a) and (b), Florida Statutes, recognize that the enumeration of powers in Section 125.01(1), Florida Statutes, shall be deemed to incorporate all implied powers necessary or incident to carrying out such powers enumerated and that Section 125.01, Florida Statutes, shall be liberally construed in order to effectively carry out the purpose of the sectioH and to secure for the counties the broad exercise of home rule powers authorized by the State Constitution; and WHEREAS, Section 893.138, Florida Statutes, authorizes local administrative action to abate drug-related or prostitution- related public nuisances as well as youth and street gang activity, including the creation of an administrative board to hear complaints regarding nuisances; and WHEREAS, Section 823.01, Florida Statutes, declares that all nuisances which tend to annoy the community or injure the health of the citizens in general, or to corrupt the public morals, are misdemeanors of the second degree, punishable as provided in Section 775.083, Florida Statutes; and WHEREAS, Section 823.05, Florida Statutes, declares certain places and premises to be a nuisance and further provides that such places or premises shall be abated or enJoined as provided in Sections 60.05 and 60.06, Florida Statutes; and WHEREAS, Section 60.05, Florida Statutes, authorizes the County Attorney, among others, to sue in the name of the State on his relation to enjoin nuisances, the persons maintaining same, and the owner or agent of the building or ground on which the nuisance exists; and WHEREAS, Section 162.02, Florida Statutes, has the purpose of protecting, promoting and improving the health, safety and welfare of the citizens of the counties and municipalities of the state by authorizing the creation of administrative boards with authority to impose administrative fines and other non-criminal penalties to provide an equitable, expeditious, effective and inexpensive method of enforcing any codes and ordinances in force -2- in counties and municipalities, where a pending or repeated violation continues to exist; and W~EREAS, Section 162.08(5), Florida Statutes, provides that a Code Enforcement Board shall have the power to issue orders having the force of law to command whatever steps are necessary to bring a violation into compliances and WHEREAS, Section 162.13, Florida Statutes, provides that it is the legislative intent of Sections 162.01-162.12, Florida Statutes, to 'provide an additional or supplemental means of obtaining compliance with local codes and that nothing contained in those sections shall prohibit a local governing body from enforcing its codes by any other means; and WHEREAS, ongoing and recent law enforcement activities conducted by the Collier Ccunty Sheriff indicate that t~,]re are premises and places within Collier County which are used as the site of illegal and/or nuisance activities including, but not limited to, unlawful sale or delivery of controlled substances, prostitution, youth and street gang activity, gambling, illegal sale or consumption of alcoholic beverages, or lewd or lascivious behavior; and WHEREAS, the Board of County Commissioners of Collier County, Florida (hereafter also referred to as "Board"), has determined that any places or premises which are used as the site of illegal or nuisance activities including, but not limited to, unlawful sale or delivery of controlled substances, prostitution, youth and street gang activity, gambling, illegal sale or consumption of alcoholic beverages, or lewd or lascivious behavior, are a public nuisance that adversely affects the public health, safety, morals and welfare; and WHEREAS, the Board has determined that abating public nuisances which result from illegal and/or criminal activity is necessary to improve the quality of life for the residents of Collier County and that said abatement will safeguard the public health, safety and welfare; and WHEREAS, the Board desires to minimize, control and, to the extent possible, eliminate the adverse and negative secondary -3- effects of public nuisances on surrounding neighborhoods and areas and thereby protect the health, safety and welfare of the citizenry, protect the citizens from increased crime, preserve the quality of life, and preserve the property values and character of surrounding neighborhoods, as well as deterring the spread of urban blight; and ~{EREAS, concern over sexually transmi'~ted diseases is a legitimate health concern of the County which demands enforcement of prostituti6n and public nuisance laws to protect the health and well-being of the citizenry; and WHEREAS, it is the intent of this ordinance to enact and enforce public nuisance laws in a manner and through procedures which respect and uphold the constitutional due process rights of all affected citizens and pz"'perty owners. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE. FINDINGS AND PURPOSE. a. The Board of County Commissioners of Collier County, Florida, hereby finds and declares that any places or premises which are used as the site of criminal, illegal and/or nuisance activities including, but not limited to, unlawful sale, possession (where such possession constitutes a felony and the site has previously been used on more than one occasion as a site of unlawful sale, delivery, manufacture or cultivation of any controlled substance) or delivery of controlled substances, prostitution, youth and street gang activity, gambling, illegal sale or consumption of alcoholic beverages, or lewd or lascivious behavior, are a public nuisance that adversely affects the public health, safety, morals and welfare. The Board further finds that abating public nuisances which result from illegal and/or criminal activity is necessary to improve the quality of life for the residents of Collier County and that said abatement will safeguard the public health, safety and welfare. b. It is the purpose of this ordinance to abate public nuisances and thereby protect and promote the public health, safety, welfare and morals of the citizens of the county. It is -4- also the purpose of this ordinance to achieve maid nuisance abatement goal by utilizing the Collier County code Enforcement Board and any other lawfully authorized procedures which afford due process and respect and uphold the constitutional rights of all affected by this ordinance including, but not limited to, property owners. This ordinance is hereby declared to be remedial and essential to the public interest and it is intended that it be liberally construed to effectuate its stated purpose. The provisio~s of this ordinance shall be cumulative and supplemental to any provision of the Florida Statutes, Collier County ordinances, or any other applicable law. SECTION TWO. TITLE AND CITATION. This ordinance shall be known and cited as the "Collier County Public Nuisance Abaten,~.nt Ordinance." SECTION THREE. APPLICABILITY. The provisions of this ordinance shall apply to, and be enforced in, the unincorporated areas of the county. Said ordinance shall also apply to, and be enforced in, any municipalities within Collier County that agree by resolution of the governing body of said municipality to have this ordinance apply and be enforced in the municipality. SECTION FOUR. DEFINITIONS. For the purposes of this ordinance, the following definitions shall apply: a. Public Nuisance: Any area, location, property, place or premises which has been used on more than two (2) occasions, within a six {6) month period: (1) As the site of a violation of Section 796.07, Florida Statutes, relating to prostitution and/or the solicitation of prostitution; (2) As the site of the unlawful sale, delivery, manufacture or cultivation of any controlled substance; (3) On one (1) occasion as the site of the unlawful possession of a controlled substance, where such possession constitutes a felony and that has been previously used on -5- more than one (1) occasion as the site of the unlawful 8ale, delivery, manufacture, or cultivation of any controlled substance; (4) By a youth and street gang for the purpose of conducting a pattern of youth and street gang activity; (5) For illegal gambling; (6) For the illegal sale or consumption of alcoholic beverages; (7) )or lewd or lascivious behavior~ b. The definition of public nuisance shall also include: any area, location, property, premises or place declared to be a nuisance by Sections 823.05, 823.10 or 893.138, Florida Statutes, or by Collier County ordinances as said statutes or ordinances may be renumbered, amended or superseded from time to time. SECTION FIVE. OPERATING PROCEDURES. a. Any employee, officer or resident of Collier County may make a complaint and request for prosecution of public nuisances before the Collier County Code Enforcement Board, Nuisance Abatement Division, for public nuisance(s) located within the applicable area of Collier County. Said complaint shall be made with the Collier County Sheriff's Office if the complaint involves criminal activity as the underlying basis for the nuisance complaint. Any non-criminal nuisance complaints shall be made with the office of the Collier County Code Enforcement Department. b. Upon the making of more than two (2) complaints within a six (6) month period on any particular place or premises, the Collier County Code Enforcement Supervisor or his/her designee shall mail written notice of such complaints by certified mall, return receipt requested, to the owner of the place or premises complained of at the owner's address as shown in the Official Records of Collier County. Said notice shall provide for the owner of the place or premises to contact Collier County Code Enforcement within fourteen (14) days of receipt of the notice. % This time period shall be allowed for the purpose of allowing the -6- owner to take such good faith measures as are appropriate to abate the nuisance. The Code Enforcement SuperviSor or his/or designee may extend the fourteen (14) days to allow the owner to institute or continue actions to abate the nuisance, provided that the actions taken are reasonable. c. In the event the owner fails to respond to the notice from Collier County Code Enforcement or fails to take reasonable action to abate the nuisance within the time frames set forth above, Collier County Code Enforcement and/or the County Attorney's Office shall schedule a hearing on the complaint before the Code Enforcement Board, Nuisance Abatement Division (hereafter referred to as the "Nuisance Abatement Board"). The Sheriff's Office shall assist the County Attorney's Office and/or Code Enforcement by sharh~g with said offices information regarding the investigation of the complaint and also assist in serving any notices required under this ordinance. The Sheriff's Office shall also make availakle the Sheriff's staff witnesses to appear before the Nuisance Abatement Board. d. Written notice of a hearing before the Nuisance Abatement Board shall be provided by the Office of the County Attorney and/or County Code Enforcement by certified mail, return receipt requested, to the owner of the place or premises and to the complainant at least fifteen (15) calendar days prior to the scheduled hearing. Said notice shall include: (1) A statement of the time, place and nature of the' hearing; (2) A statement of the legal authority and jurisdiction under which the hearing is to be held; (3) A reference to the particular sections of the statutes and ordinances involved; (4) A short and plain statement summarizing the nuisance which is the subject of the complaint. SECTION SIX. CREATION OF THE COLLIER COUNTY CODE ENFORCEMENT BOARD, NUISANCE ABATEMENT DIVISION. a. Pursuant to Article VIII of the Florida Constitution, Section 125.01(1), Florida Statutes, and Chapter 162, Florida -7- Statutes, as well as Chapter 823, Florida Statutes, Section 893.138, Florida Statutes, and Collier County Ordinance No. 92-80, there is hereby created the Collier County Code Enforcement Board, Nuisance Abatement Division. Said Board shall consist of the membership of the Collier County Code Enforcement Board and shall hear nuisance abatement cases arising under this ordinance. The Nuisance Abatement Board shall hear nuisance cases on a part cf the Code Enforcement Board agenda separate from all other Code Enforcement Board cases. To the extent not in contradiction wi~h this ordinance or other general or special law, the provisions of Collier County Ordinance No. 92-80, as amended or superseded from time to time, shall apply to the Nuisance Abatement Board. b. MeetinGs of the Board. The Collier County Code Enforcement Board, Nuisance Abatement Division, shall attempt to convene no less frequently than once every two (2) months, but it may meet more or less often as required. Notice of the time and place of meeting shall be given to all complainants and owners of places or premises involved in the cases scheduled to be heard. At least fifteen (15) days prior written notice of the hearing shall be provided. Any aggrieved party may request a continuance of the hearing. The Nuisance Abatement Board may grant a continuance of any hearing for good cause. c. Conduct of hearipgs. (1) The Collier County Attorney's Office and/or County Code Enforcement shall present cases before the Nuisance Abatement Board. The Collier County Sheriff's Office shall only be responsible for receiving and investigating complaints, sharing said investigative information with the Office of the County Attorney and/or County Code Enforcement, notifying the County Attorney and County Code Enforcement of the need to schedule hearings, assisting County Code Enforce- ment staff in serving any notices required under this ordinance and making available investigative witnesses at Nuisance Abatement Board hearings, all as generally set forth in Section 5 of this ordinance. All parties shall have an -8- opportunity to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, and to be represented by counsel. Where appropriate, the public may be given an opportunity to present oral or written communications. If the Nuisance Abatement Board proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut said material. The Nuisance Abatement Board may 'consider any evidence, including evidence of the general reputation of the place or premises. }11 testimony shall be under oath and shall be recorded. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. Orders of the Nuisance Abatement Board shall be based on competent and substantial evidence and must be based on a preponderance of the evidence. (2) After considering all evidence, the Nuisance Abatement Board may declare the place or premises to be a public nuisance, as defined in this ordinance and applicable Florida Statutes, and may enter an order immediately prohibiting: (a) The maintaining of the nuisance; (b) The operating or maintaining of the place or premises, including the closure of the place or premises or any part thereof; (c) The conduct, operation or maintenance of any business or activity on the premises which is conducive to such nuisance. An order entered under Subsection (2) shall expire after one year or at such earlier time as stated in the order. The Nuisance Abatement Board may retain Jurisdiction to modify its orders prior to the expiration of said orders. (3) The Nuisance Abatement Board or any other authoriz- ed person, may bring a complaint under Section 60.05, Florida Statutes, seeking a permanent injunction against any public nuisance. -9- SECTION SEVEN. COSTS. In the event that the Nuisance Abatement Board declares a place or premises to be a nuisance and issues an order pursuant to Section Six of this ordinance, the Nuisance Abatement Board shall assess against the owner of the place or premises the costs which the County and/or the Sl~eriff have incurred in the preparation, investigation and presentation of the case. These costs shall be due and payable ten (10) days after the written order of the' Nuisance Abatement Board has been filed. A certified copy of an order imposing costs may be recorded in the official records and thereafter shall constitute a lien against the land on which the violation exists or, if the violator does not own the land, upon any other real or personal property owned by the violator. Upon petition to the Circuit Court, said order/lien may be enforced in the same manner as a court judgment by the sheriffs of the state including levy against the personal property, but such order shall not be deemed to be a court judgment except for enforcement purposes. After one (1) year from the filing of any such lien which remains unpaid, Collier County may foreclose or otherwise execute on the lien. Interest shall accrue on the unpaid costs at the legal rate of interest set forth in Section 55.03, Florida Statutes, as said statute may be amended or renumbered from time to time. No lien created pursuant to the provisions of this ordinance may be foreclosed on real property which is homestead under Article X, Section Four, of the State Constitution. SECTION EIGHT. REHEARING AND APPEAL. Any aggrieved party may seek reb~aring and/or appeal the orders of the Nuisance Abatement Board by following the procedures set forth in Sections 12 and 13 of Collier County Ordinance No. 92-80, as it may be amended or superseded from time to time. SECTION NINE. PRESERVATION OF RIGHTS. This ordinance does not restrict the right of any person to proceed under Section 60.05, Florida Statutes, against any public nuisance. -10- SECTION TEN. CONFLICT AND SEVERABILITY. In the event this Ordinance conflicts with any other ordinance of the City of Naples or Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of this Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portion. MECTION ELEVEN~ INCLUSION IN THE CODE OF LAWS AND ORDINANCES. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinance may be tenumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section," "artice.a," or any other appropriate word. SECTION TWELVE. EFFECTIVE DATE. This ordinance shall become effective upon filing with the Department of State. PASSED AND DULY ADOPTED by the Board of County Commissioners ,.o'r. coklier county, Florida, this ./a_ day of ,,. .~.~ .......~,.. .. . : ..~ ~",..,~. ~. H ' ' <~ ' "~' D~I T E,: B~OC~, Clerk BOARD OF COUNT~ COMMISSIONERS .i' .... ' i[~~~ ~Oj~ C. NORRIS, Chairman ... :'..'.:''.-~. ,,..,' · Approv~d.as to form and legal sufficiency: Chief Assistant County Attorney -11- STATE OF FLORIDA) COUNTY OF COLLIER) I, DWIGHT E. BROCK, Clerk of Courts in and for the Twentieth Judicial Circuit, Collier County, Florida, do hereby certify that the foregoing is a true cop!' of: ORDINANCE NO. 96-11 Which was adopted by the Board of County Commissioners on the 12th day of March, 1996, during Regular Session. WITNESS my hand and the official seal of the Board of County Commissioners of Collier County, Florida, this 13th day of March, 1996. DWIGHT E. BROCK Clerk of Courts and Clerk Ex-officio to Board of County Commissioners By: /s/Ellie Hoffman Deputy Clerk