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
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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
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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
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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
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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.
LF:scf:memos\nuisabat.cm 1 8
AGENDA R _ _ R
ITEM
DATE '
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%1700 CONVENTION CENTER DRIVE- FOURTH FLOOR - MIAMI BEACH, FLORIDA 33139
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