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Ordinance 89-069 O~INANCE NO. 89- 69 ~-- .~YELLOWING DISEASE; PROVIDING APPLICABILITY; .~'~PROVIDING DEFINITIONS; PROVIDING FOR THE DEC~- -- ~J'~ TION OF LETHAL YELLOWING EMERGENCY; PROVIDING FOR ~! ~' ~.THE EXTENT OF STATE OF EMERGENCY; SETTING FORTH ?-- c~ . ::~AUTHORIZED EMERGENCY MEASU~S; PROVIDING FOR ~ ~ DESIGNATION OF AREAS OF ~NDATORY INOCULATIONS; ..] ¥~ ]', PROVIDING FOR UNLAWFUL ACTIVITIES AND ~NDATORY .... · INOCULATIONS; REQUIRING PUBLIC NOTICE; PROVIDING .' 'FOR LIABILITY OF O~ER FOR COSTS; PROVIDING FOR INOCULATION BY OWNER; PROVIDING FOR DETE~INATION OF COMPLIANCE WITH INOCU~TION; PROVIDING FOR DISPOSAL OF LETHAL YEL~WING INFECTED T~ES; PROVIDING FOR ASSESS~NT FOR ABATING NUIS~CE; PROVIDING FOR RIGHT TO HEARING ON ASSESS~NT; PROVIDING FOR SERVICE OF NOTICE; PROVIDING PENALTIES; ~PEALING ORDINANCE NO. 80-87; PROVIDING FOR CONFLICT ~D SEVE~BILITY; PROVIDING AN EFFECTI~ DATE. WHEREAS, the plant disease known as Lethal Yellowing affects over thirty {30) plant species and specifically attacks the Coconut palm (Cocos nucifera) and the Christmas palm (veitchia m~m/llii), thereby posing a continuous and dangerous threat to the existence of the Coconut palm as a viable plant species; and WHEREAS, ~ '~ "antibiotics WHEREAS, Lethal Yellowing poses a threat of substantial damage to and loss of property, and as such, th8 threat thereof is considered an "emergency" as defined in Chapter 252, Florida Statutes; and WHEREAS, the loss and destruction of the Coconut palm would constitute an ecological disaster as well as an aesthetic and economic loss to the citizens and residents of Collier County; and preventive injection of Coconut palms with is the only known and recognized method of suppressing the Lethal Yellowing disease, and results in the remission or stopping of the Lethal Yellowing symptoms; and WHEREAS, the continued health of existing Coconut palms promotes the economic welfare and general prosperity of Collier County, and the welfare of the public would be best served by a mandatory injection and preservation program to treat and protect the Coconut palms currently existing within Collier County; and WHEREAS, Collier County has plenary power to abate public nuisances that affect the residents and citizens of Collier County; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE: Title And Citation. This Ordinance shall be known and may be cited as the "Collier County Lethal Yellowing Disease Ordinance". SECTION TWO: Applicability. This Ordinance shall ~pply to and be enforced in all areas of Collier County. SECTION THREE: Definitions. The following words, phrases or terms as used in this Ordinance shall have the following meanings un].ess the context clearly indicates otherwise: A. PUBLIC NUISANCE: The threat of infection of Coconut palm trees (Cocos nucifera) with a plant disease known as the Lethal Yellowing disease, is hereby declared to be a public nuisance. All species of Coconut palm infected with the Lethal Yellowing disease or any carrier of said disease are also hereby declared to be a public nuisance. B. COCONUT PALMS: Means all Coconut palms of the species Cocos nucifera except for those trees known as Malayan or Maypan Coconut palms. C. EMERGENCY: Any occurrence or imminent threat thereof, whether natural or caused by man, which results in or may result in substantial damage to and/or loss of property. SECTION FOUR: Declaration Of Lethal Yellowing Emergency. Pursuant to Chapter 252, Florida Statutes, which authorizes the waiver of procedures and formalities otherwise required of political subdivisions in order to take whatever prudent action is necessary to ensure the health, safety and welfare of the community in the event of a state of emergency, the Chairman of the Board of County Commissioners, or V£c~-6ha-~m~n~H' ht~ absence, or the County Manager in the absence of =he Chairman and Vice-chairman is hereby designated and empowered to declare a local state of emergency in the event the threat of the Lethal Ye]lowing disease is imminent and a quorum of the Board of County Commissioners is unable to meet. The determination that such an emergency exists in the case of Lethal Yellowing shall be made upon the recommendation of the Public Services Administrator or designee. SECTION FIVE: Extent Of State Of Emergency. Upon declaration, the state of emergency from the Lethal Yellowing disease shall continue until a determination by the Public Services Administrator or designee that the threat or danger no longer exists, a recommendation is made to terminate the state of emergency, and such termination is approved by the Board. SECTION SIX: Authorized Emergency Measures. In addition to any other powers conferred by law, by the Public Services Administrator or designee, the Chairman of the Board of County Commissioners or Vice-chairman in his absence, may order and promulgate all or any of the following emergency measures to be effective during the period of such declared emergency, and with such limitations and conditions as he may deem appropriate to protect against damage or loss of property by Lethal Yellowing: A) Require the mandatory inoculation of all Coconut palm trees in all areas designated by the Public Services Administrator or designee for inoculation. B) Require the removal of all trees inf¢~cted by Lethal Yellowing, as determined by the Public Services Administrator or designee. C) Utilize all available resources of the County government as reasonably necessary to cope with the emergency, including expenditures not to exceed Twenty Thousand Dollars ($20,000.00) for the survey of the existing Coconut palm tree population, the inoculation of County-owned Coconut palms, the inoculation of privately-owned Coconut palms in non-compliance with this Ordinance, the removal of infected trees on County-owned property and on private property when the owner has failed to comply with this Ordinance, and other reasonable costs pursuant to the implementation of this Ordinance. D) Curtail the transportation of Coconut palms into or out of Collier County. SECTION SEVEN: Designation Of Areas Of Mandatory Inoculation. The areas in which mandatory inoculation is required shall be designated on the basis of the presence of trees infected by the Lethal Yellowing disease or the imminent threat of infection from Lethal Yellowing as determined by the Public Services Administrator or designee. The boundaries for the areas requiring mandatory inoculation shall be set by the Public Services Administrator or designee. SECTION EIGHT: Unlawful Activities And Mandatory Inoculations. Upon declaration of an emergency, it shall be unlawful for any owner of any parcel of land within Collier County and within an area designated for mandatory inoculation to keep or maintain any Coconut palms without providinc~ inoculation and treatment for same as approved by the Public Services Administrator or designee. It shall be the duty and the responsibility of the owner of ~.any such property or parcel of land to have inoculated any an4 all such trees with an antibiotic approved by the Public Services Administrator or designee. Such inoculations shall be performed three (3) times a year, every one-hundred to one-hundred and twenty (100-120) days, with inoculations to begin within thirty (30) days of public notification of mandatory inoculation. Trees which were inoculated within ninety (90) days prior to public notification of the state of the emergency may continue inoculations at intervals of one-hundred to one-hundred twenty (100-120) days from the last inoculation, provided proof of that inoculation is given to the Public Services Administrator or designee within thirty (30} days after public notification. BECTION NINE= Public Notice. Thirty (30) days prior to the required inoculation periods as indicated in Section Nine, the County Manager of Collier County is hereby directed to place a public notice in a paper of geraral circulation published within Collier County, in order to 'inform the property owners of their duties and responsibilities under this Ordinance. Such notice shall be in substantially the ~ following form: NOTICE OF REQUIRED INOCULATION OF COCONUT PALMS Pursuant to Ordinance No. of Collier County, Florida, all ownurs of any lot or parcel of land within the following designated geographic boundaries: are required to-~oculate all Coconut palm trees {Cocos nucifera) located on their lot or parcel of land. This inoculation may be done by any contractor designated or approved by the Public Services Administrator acting on behalf of any property owner and using an antibiotic approved by the Public Services Administrator, or designee. Those individuals who do not wish to avail themselves of a certified inoculation contractor may inoculate their trees themselves with materials and techniques which have been approved by the Public Services Administrator or designee. Every Coconut palm tree within the geographic boundarie£ shall be inoculated and the inoculations are to be performed within thirty (30) days from the date of the publication of this notice in a paper of general circulation in Collier County, Florida. Those Coconut palms currently on an inoculation program and whose most recent inoculation was within ninety (90} days of this public notification, may maintain their current inoculation schedule as long as proof is provided to the Public Services Administrator of the last inoculation. SECTION TEN: Liability Of Owner For Costs. Within the time periods referred to in Section Nine for inoculation of Coconut palms, the owner of the parcel of land on which said trees are located must himself inoculate or make provision for inoculation of his trees by contractors who have been approved by the Public Services Administrator or designee to provide the treatment necessary to abate the Lethal Yellowing If the owner fails to provide for inoculation, the owner of any parcel of land upon which palm trees are located shall be liable for the expenses incurred by Collier County, its agents or contractors, in treating the affected Coconut palm tree or trees. SECTION ELEVEN: Inoculation By Owner. Any property owner may inoculate his/her own trees; provided, however, the antibiotic and treatment procedures used must be approved by the Public Services Administrator or designee. i~,. ,., - 5 - All property owners who utilize the procedure contained treatment performed, submit to the Public Services Administrator or designee proof of purchase for materials and equipment used in this treatment, and an Affidavit of Compliance in substantially the following form: Affidavit of Compliance STATE OF FLORIDA COUNTY OF COLLIER I/We, ., the record owner(s) of property situated at (legal description or street address) hereby attest that on .., (date of injection) I/we injected or had injected (No. of trees) Coconut palm trees (Cocos nucifera) located on the aforesaid property, in accordance with the procedures approved by the Public Services Administrator or designee. I further attest that the receipts attached hereto are offered as proof of purchase of the materials and equipment used in treatment of all Coconut palm trees. FURTHER, AFFIANT SAYETH NOT. SWORN TO AND SUBSCRIBED BEFORE ME this , 19 day of Notary Public My Commission Expires: SECTION TWELVE: Determination Of Compliance With Inoculation. All contractors approved by the Public Services Administra- tor or designee to inoculate Coconut palms (Cocos nucifera) and participating in inoculation must submit a list of inoculated trees within five (5) days of inoculation to the Public Services Administrator or designee. These lists should include name of property owner, address, number of Coconut palms located on the property, and the number of Coconut palms inoculated. Failure to notify the Public Services Administrator or designee of all inoculations may result in loss of inoculatioH cert]~i6~tioH~ -' After the thirty (30) day time period described in Section Ten for compliance with provisions of Sections Twelve and Thirteen, the Public Services Administrator or designee shall make a determination of, and compile a list of, those individuals owning land or parcels of property within Collier County upon which Coconut palm trees (Cocos nucifera) are located and who hive not complied with the provisions of this Section or hive not submitted an Affidavit of Compliance pursuant to Section Twelve herein. Upon compiling the list of noncomplying property owners, the Public Services Administrator or designee, shall then cause to be mailed by certified mail, return receipt requested, a notice to those property owners who have failed to comply with the provisions of this Ordinance in substantially the following form: TO: NOTICE ADDRESS: PROPERTY: You, as the owner of record of the property above described, upon which Coconut palm trees are located, are hereby notified that pursuant to Collier County Ordinance No. , the Public Services Administrator or designee, on the day of , 19 , has determined that a-----threat to property ~iSts UpOn such proporty caused by the oxiatonco of Coconut palms, in number, susceptible to being infected with the Lethal Yellowing disease. YOU ARE HEREBY NOTIFIED that you must abate this threat to public property within ten (10) days by having said Coconut palm or palms treated with an antibiotic approved by the Public Services Administrator or designee, failing in which the Board of County Commissioners of Collier County will have it done and the cost thereof will be levied as an assessment against such property. If the property owner or someone in his behalf has not abated the threat to property described in said Notice within ten (10) days from the date of the giving of Notice as aforesaid, the County shall forthwith abate the same and enter upon the property and take such steps as are reasonably required to effect abatement. SECTION THIRTEEN: Disposal Of Lethal Yellowing Infected Trees. It shall be unlawful for any owner of any parcel of land within Collier County to permit to remain on said property any tree infected with Lethal Yellowing. Trees determined to be infected with Lethal Yellowing by th~ Public Services Ad~,inistrator or designee must be removed and disposed of by burial at the County Landfill within ten (10) days of notification to thu owner. Notification to property owners shall be mailed by certified mail, return receipt requested, in substantially the following form: TO: ADDRESS: PROPERTY: You, as the owner of record of the property above described, upon which Coconut palm trees are located, are hereby notified that pursuant to Collier County Ordinance No. , the Public Services Administrator or designee, on the day of ~_, 19 , has determined that a------threat to property exists upon such property caused by the existence of Coconut palms, in number, susceptible to being infected with the Lethal Yellowing disease. YOU ARE HEREBY NOTIFIED that you must abate this threat to public property within ten (10) days by having said Coconut palm or palms removed and disposed of at the County Landfill. Failing in which, the Board of County Commissioners of Collier County will have it done and the cost thereof will be levied as an assessment against such property. If infected trees have not been removed by owner within ten (10) days of notification, the County shall forthwith abate the nuisance and shall, through its employees, servants, agents or contractors, be authorized to enter upon the property and take steps as are reasonably required to effect abatement. SECTION FOURTEEN: Assessment For Abating Nuisance. 1. Within 30 days of abatement of the nuisance by the County, the cost thereof to the County as to each parcel shall be calculated and reported to the Board of County Co~unissioners. Thereupon, the Board of County Commissioners, by resolution, shall assess the cost against such parcel. Such resolution shall describe the land and show the cost of abatement, including administrative costs actually incurred by the County with respect thereto. Such assessments shall be legal, valid, a~ ~di~g obligations upon the property against which made, until paid. The assessment shall become due and payable thirty (30) days after the mailing of notice of assessment, after which interest shall accrue at the rate of twelve percent (12%) per annum on any unpaid portion thereof. 036 625 - 8 - 2. The clerk shall mail a notice to the record owner or owners of each of said parcels of land described in the resolution, at the last available address for such owner or owners, which notice may be in substantially the following fozTn: TO ~ NOTICE ADDRESS: PROPERTY: YOU, as the record owner of the property above described, are hereby advised that Collier County, Florida, did, on the day of _, 19 , order the abatement of a certain nuisance existing on the above property, sending you notice thereof, such nuisance being (hereby describe briefly) A copy of such notice has been heretofore sent you. You failed to abate such nuisance; whereupon, it was abated by Collier County at a cost of $ . Such cost, by resolution of the Board of County Commissioners of Collier County, Florida, has been assessed against the above property on . , 19__, and shall become a lien on the property thirty (3b) days after such assessment. You may request a hearing before the Board of County Commissioners to show cause, if any, why the expenses and charges incurred by the County under this Ordinance are excessive or unwarranted, or why such expenses should not constitute a lien against the property. Said request for hearing shall be made to the Clerk of the Board of County Commissioners, in writing, within thirty (30) days from the date of the assessment. 3. If the owner fails to pay such assessmen~ within thirty (30) days after said assessment has been made, the Board of County Commissioners shall cause a certified copy of the assessment resolution to be filed in the office of the Clerk of Courts in and for Collier County, Florida; and the assessment shall constitute a lien against the property as of the date of filing such copy with the Clerk of Courts and shall be collectible in the same manner as liens for non-payment of property taxes. 4. Collection of such assessments, with interest and a reasonable attorney's fee, may also be made by the Board of County Commissioners by proceedings in a court of equity to foreclose the lien on the assessment in the manner in which a li~n for mortgages is foreclosed under the laws of Florida; and it shall be lawful to join in any complaint for foreclosure of one or more lots or parcels of land, by whomever owned, if assessed under the provisions of this Section. The property subject to lien may be redeemed at any time prior to sale by the owner by paying the total amount due under said lien, including interest, court costs, advertising costs and reasonable attorney's fees. SECTION FIFTEEN: Right To Hearing On Assessment. 1. Within thirty (30} days of the date of assessment, any owner shall have the right to request a hearing before the Board of County Commissioners to show cause, if any, why the expenses and charges incurred by Collier County under this Ordinance are excessive or unwarranted or why such expenses should not constitute a lien against said property; ho~ever, nothing contained in this Section is to be construed to disturb or permit a review of the determination by the Board of the existence of the public nuisance under this Ordinance. 2. Public hearings under this Ordinance shall be held by the Board of County Commissioners upon written application for hearing made to the Clerk of the Board within thirty (30) days after the date of assessment described above; and an application for hearing, properly filed, shall stay the recording of the assessment until a hearing has been held and a decision rendered by the Board. 3. If after said hearing the Board dete~nines that the assessment is fair, reasonable and warranted, the assessment resolution will be recorded forthwith. If the Board determines that the charges are excessive or unwarranted, it shall direct the County Manager to recompute the charges; and the Board shall hold a further hearing after notice to the cwner upon the recomputed charges. SECTION SIXTEEN: Service Of Notice. 1. The requirement of notice under the provisions of this Ordinance shall be met if such notice is mailed by registered or certified mail, return receipt requested, to th(~ owner at the address indicated on the records of the Collier County Property Appraiser of such lot or parcel of land for ad valorem taxation purposes, and shall be deemed served when mailed. However, if such notice is returned by the postal authorities, then the subject notice shall be adequately given if publi:3hed once a week for two consecutive weeks in a newspaper of general circulation in Collier County and a copy thereof posted on the property in question. Failure of such owner to receive such notice shall not be deemed to be a defense to any legal proceedings implemented under this Ordinance. In addition to the foregoing, if there is an occupied dwelling on such lot or parcel, a copy of the notice required in this Section shall be served upon the occupant of said building by mail, or personal service, or by posting a copy of the notice in a conspicuous place upon the property. 2. If the mailing address of the owner is not known, then service of notice on any occupant in possession shall be sufficient. If the mailing address of the owner is not known and the property is unoccupied, the requirement of such notice under the provisions of this division shall be met if such notice is posted on such lot or parcel. SECTION SEVENTEEN: Penalties. If any person fails or refuses to obey or comply with, or violates any of the provisions of this Ordinance, such person, upon conviction of such offense, shall be guilty of a misdemeanor and shall be punished by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment not to exceed Sixty (60) days in the County jail, or both, in the discretion of the Court. Each violation or non-compliance shall be considered a separate and distinct offense. Further, each day of continued violation qr non-compliance shall be considered as a separate offense. Nothing herein contained shall prevent or restrict the County from taking such other lawful action in any court of competent jurisdiction as is necessary to prevent or remedy any violation or non-compliance. Such other lawful actions shall include, but shall not be limited to, an equitable action for injunctive relief or an action at law for damages. - 11 - Further, nothing in this Section shall be construed to prohibit the County from prosecuting any violation of this Ordinance by means of a Code Enforcement B¢.ard established pursuant to the authority of Chapter 162, Florida Statutes. All remedies and penalties provided for in this Section shall be cumulative and independently available to the County and the County shall be authorized to pursue any and all remedies set forth in this Section to the full extent allowed by law. SECTION EIGHTEEN: Repeal Of Ordinance No. 80-87. Collier County Ordinance No. 80-87, which established a Lethal Yellowing Disease Inoculation Program, ks hereby repealed in its entirety. SECTION NINETEEN: Conflict And Severability. In the event this Ordinance conflicts with any other ordinance of 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. SECTION TWENTY: Effective Date. This Ordinance shall become effective upon receipt of notice from the Secretary of State that this Ordinance has been filed with the Secretary of State. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this /6)'~'day of ~'~~ , 1989. ATTEST=~.. . ~ ~/~G~ES, Clerk ~pproved as to form and ~nda C. Wilson Assistant County Attorney BOARD OF COUNTY COMMISSIONERS BURT L. SAUNDERS, Chairman - 12 - STATE OF FLORIDA COUNTY OF COLLIER I, JAMES C. GILES, Clerk of Courts in and for the Twentieth Judicial Circuit, Collier County, Florida, do hereby certify that the foregoing is a true copy of: Ordinance No. 89-69 which was adopted by the Board of County Commissioners on the 10th day of October, 1989, during Regular Session. WITNESS my hand and the official seal of the Board of County Commissioners of Collier County, Florida, this llth day of October, 1989. JAMES C. GILES .;..id .... Clerk of Courts and Clerk "' Ex-officio to Board ~ o' . . C~u~_Commissioners .~ By: Virginia Magri ' ' Deputy Clerk ~