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Ordinance 94-2937 ORDINANCE NO. 94-2937 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA AMENDING MIAMI BEACH CITY CODE CHAPTER 17D, ENTITLED "ABATEMENT OF NUISANCES" ; AMENDING SECTION 17-1, ENTITLED "DEFINITIONS" BY AMENDING THE DEFINITION OF "NUISANCE" TO INCLUDE PREMISES WHICH MAY BE DECLARED A NUISANCE PURSUANT TO SECTIONS 823 . 05 OR 823 . 10, FLORIDA STATUTES OR WHICH HAVE BEEN THE SITE OF YOUTH AND STREET GANG ACTIVITIES, PROSTITUTION, SOLICITATION OF PROSTITUTION, ILLEGAL GAMBLING, ILLEGAL SALE OR CONSUMPTION OF ALCOHOLIC BEVERAGES, ILLEGAL SALE, DELIVERY OR STORAGE OF CONTROLLED SUBSTANCES, AND BY ADDITION OF A DEFINITION FOR "OWNER" ; AMENDING SECTION 17D-3 BY REVISING OPERATING PROCEDURES OF THE NUISANCE ABATEMENT BOARD; AMENDING SECTION 17D-4, ENTITLED "CONDUCT OF HEARINGS" TO REQUIRE THAT BOARD ORDERS BE BASED UPON A PREPONDERANCE OF THE EVIDENCE, AND PROVIDING FOR ASSESSMENT OF COSTS OF INVESTIGATION AND PROSECUTION AGAINST THE OWNER (S) AND OR OPERATOR(S) OF PROPERTY FOUND TO BE A NUISANCE; PROVIDING THAT UNPAID COST ASSESSMENTS SHALL BECOME LIENS AGAINST THE REAL AND PERSONAL PROPERTY OF VIOLATORS; PROVIDING FOR REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City' s Nuisance Abatement Board currently has the ability to order the abatement of nuisances relating to properties which have been the site of the illegal sale or delivery of controlled substances; and WHEREAS, there is a need to expand the jurisdiction of the City' s Nuisance Abatement Board in order to eliminate other nuisances which are injurious to the welfare of residents and visitors in the City of Miami Beach. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1 . AMENDMENT OF SECTION 17D-1 . That Section 17D-1 of Miami Beach City Code Chapter 17D, entitled "Abatement of Nuisances" is hereby amended as follows : 17D-1 . Definitions. For purposes of this Chapter, the following definitions shall apply: (a) Public nuisance. Any place or premises within the City of Miami Beach which may be declared a nuisance according to Section 823 . 05 or Section 823 . 10 , Florida Statutes as they may be renumbered or amended from time to time or which has been used on more than two occasions as thc site of thc - o o - . o -o- o -- - _ o- _ - -- - as defined in Chaptcr 893 of thc Florida Statutcc . within a six months period: (1) As the site of the unlawful sale or delivery or storage of controlled substances as defined in Chapter 893 of the Florida Statutes, or (2) By a youth and street gang for the purpose of conducting a pattern of youth and street gang activity, or (3) For prostitution or solicitation of prostitution, or (4) For illegal gambling, or (5) For illegal sale or consumption of alcoholic beverages . (b) Board. The Nuisance Abatement Board of the City of Miami Beach. (c) City attorney. The legal counselor for the City of Miami Beach or such assistant city attorney as may from time to time be designated. (d) Clerk. Person appointed by the local governing body of the City of Miami Beach to perform the clerical duties necessary to carry out the activities of the nuisance abatement board. (e) Operator. Tenant, lessee or person having control or possession of the premises . (f) Owner. Person having title to a premises which is a public nuisance . Sec. 17D-3 . Operating procedures. (a) Any employee, officer or resident of Dade County or of the City of Miami Beach may file a complaint and request for prosecution with the City of Miami Beach Nuisance Abatement Board city attorney regarding the existence on premises located in Miami Beach of a public nuisance as defined in section l7D-l . after first giving not lcsc than 2 thrcc days writtcn noticc of ouch complaint to thc owncr of thc placc or prcmisco complaincd of at his last known address . Said complaint shall be filed with the City of Miami Beach Police Chief, or his designee . The Police Chief , or his designee shall mail written notice of such complaints by certified mail with return receipt to the owner (s) and operator (s) of the place or premises complained of at their last known addresses . Said notice shall provide for the owner and operator of the place or premises to contact the Police Chief , or his designee within fourteen (14) days of receipt of the notice . This time period shall be allowed for the purpose of allowing the owner (s) and operator (s) to take such good faith measures as are appropriate to abate the nuisance . The Police Chief, or his designee may extend the fourteen (14) days to allow the owner (s) and operator (s) to institute or continue actions to abate the nuisance provided the actions are reasonable . In the event the owner (s) and/or operator (s) fails to respond to the Notice of Complaint or fail to take reasonable action to abate the nuisance, the Police Chief, or his designee shall submit the complaint to the City Attorney for prosecution. (b) The city attorney, when he has received the aforesaid complaint and request for prosecution and has reason to believe that a public nuisance as defined in section 17D-1 exists on the premises complained of located in the City of Miami Beach and that the required written notice has been duly mailed to the owner (s) and operator (s) of the premises as set forth in subparagraph (a) herein, shall promptly request a hearing before the nuisance abatement board. (c) Service . The nuisance abatement board, through its clerk, shall schedule a hearing and written notice of said hearing shall be sent by certified mail with return receipt or hand delivered to the owner (s) and operator (s) of the premises complained of at their last known addresses at least fourteen days prior to the scheduled hearing. If an attempt to reach 3 % the owner (s) and operator (s) by hand delivery or certified mail is unsuccessful, notice of the hearing may be by publication as provided in Chapter 49 of the Florida Statutes . (d) The aforesaid notice of hearing 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 incidents complained of . Sec. 17D-4 . Conduct of hearings. (a) The chairman of the board may call hearings of the board. Hearings may also be called by written notice signed by at least three members of the board. The board, at a hearing, may set a future hearing date . The board shall attempt to convene no less frequently than once every month but may meet more or less often as the demand necessitates . The board shall adopt rules for the conduct of its hearing. Minutes shall be kept of all hearings and all hearings shall be open to the public . The city shall provide clerical and administrative personnel as may be reasonably required for the proper performance of the board' s duties . (b) The city attorney or any other legal counsel who is representing the City shall present cases before the board. All parties shall have an opportunity to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, and to be represented by counsel . When appropriate, the general public may be given an opportunity to present oral or written communications . If the agency proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut it . The board may consider any evidence, including 4 % evidence of the general rebuttal of the place or premises . All 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 board shall be based on competent and substantial evidence and must be based upon a preponderance of the evidence . (c) After considering all evidence, the board may declare the place or premises to be a public nuisance as defined in section 17D-1 and may enter an order immediately prohibiting: (1) The maintaining of the nuisance; (2) The operating or maintaining of the place or premises, or (3) The conduct, operation, or maintenance of any business or activity on the premises which is conducive to such nuisance . (4) In the event that the Board issues an order declaring a place or premises to be a nuisance, the Board shall assess against the owner of the place or premises the costs which the City has 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 Board has been filed. A certified copy of an order imposing costs may be recorded in the public 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, and it may be enforced in the same manner as a court judgment by the sheriffs of this state including levy against the personal property, but shall not be deemed to be a court judgment except for enforcement purposes . After one year from the filing of any such lien which remains unpaid, the City may foreclose or otherwise execute on the lien. Interest shall accrue on the unpaid costs at the legal rate of interest set 5 forth in Section 55 . 03 , Florida Statutes as that Section may be amended from time to time . All orders of the board shall be by motion approved by a majority of those members present and voting, except that at least three members of the board must vote in order for the action to be official . (d) An order entered under subsection (c) shall expire after one year or at such earlier time as stated in the order. The board may retain jurisdiction to modify its orders prior to the expiration of said orders . (e) The board may bring a complaint under Section 60 . 05 of the Florida Statutes, seeking a permanent injunction against any Public Nuisance. SECTION 2 . REPEALER. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 3 . SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 4 . EFFECTIVE DATE. This Ordinance shall take effect on the 18th day of September , 1994 . PASSED and ADOPTED this 8th .ay of S: 4tember 1994 . ATTEST: Ai, Ail IF 1 •R CITY CLERK 1st reading 7/28/94 SWS:scf:disk7\abatnus.ord 2nd reading 9/8/94 FORM APPROVED LEGAL- E'T. By �, 6 Date sws '31 • OFFICE OF THE CITY ATTORNEY 64 tyc Am. Ward F L O R I D A I * INC 7 •. \, LAURENCE FEINGOLD ` ; ,' P.O.BOX 0 CITY ATTORNEY ��9',26"--" MIAMI BEACH, FLORIDA 33119-2032 TELEPHONE(305)673-7470 TELECOPY (305)673-7002 COMMISSION MEMORANDUM NO: 531 -9Y DATE: September 8, 1994 TO: MAYOR SEYMOUR GELBER MEMBERS OF THE CITY COMMISSION CITY MANAGER ROGER M. C ON ---- FROM: LAURENCE FEINGOLD CITY ATTORNEY SUBJECT: ORDINANCE EXPANDING JURISDICTION OF THE NUISANCE ABATEMENT BOARD AND AMENDING THE BOARD'S OPERATING PROCEDURES. Attached is an ordinance amending Miami Beach City Code Chapter 17D by expanding the jurisdiction of the Nuisance Abatement Board by including in the definition of "public nuisance" any premises which may be declared a public nuisance pursuant to Section 823 . 05 or Section 823 . 10, Florida Statutes, including but not limited to premises which have been used on more than two occasions within a six-months period for youth gang activity, prostitution, solicitation of prostitution, illegal gambling, illegal sale or consumption of alcoholic beverages, illegal sale, delivery or storage of controlled substances or lewd and lascivious behavior. Currently, Chapter 17D only authorizes the City' s Nuisance Abatement Board to abate nuisances relating to unlawful sale or delivery of controlled substances . This amendment will allow the Board to abate additional public nuisances as set forth in the Florida Statutes . Additionally, the amendments provide procedures for notifying operators as well as owners of establishments which are the subject of nuisance complaints by citizens and provide procedures for allowing owners and operators of such establishments to voluntarily abate the nuisances prior to adjudication by the Nuisance Abatement Board. The amendments also provide for assessment of costs of investigation and prosecution of nuisance complaints against the owners and/or operators of establishments declared nuisances by the Board. Unpaid assessments shall become liens against the real and personal property of the owners and/or operators and may be foreclosed or otherwise collected as provided by law. These amendments are consistent with the procedures currently followed by Dade County' s Nuisance Abatement Board. 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