O92-48ORDINANCE NO. 092-~
AN ORDINANCE OF THE CITY COMMISSION OF
THE CiTY OF BOYNTON BEACH, FLORIDA,
CREATING A CITY NUISANCE ABATEMENT BOARD;
PROVIDING FOR DEFINITION; PROVIDING FOR
ORGANIZATION; PROVIDING FOR OPERATING
PROCEDURE; PROVIDING FOR JUDICIAL REVIEW;
PROVIDING FOR PRESERVATION OF RIGHTS;
PROVIDING FOR SEVERABILITY, CODIFICATION
AND AN EFFECTIVE DATE.
WHEREAS, Florida Statute 893.138 authorizes
municipalities to create an administrative board to hear
complaints regarding nuisances related to the unlawful sale or
delivery of controlled substances or places where youth and
street gangs congregate for the purpose of conducting a
pattern of youth and street gangs activity, or as the site of
a violation of Florida Statute 796.07 involving prostitution,
lewdness or assignation; and
WHEREAS, the City Commission of the City of Boynton Beach
declares it to be in the best interests of its citizens of the
City to create a local administrative board to deal with
public nuisances related to the unlawful sale or delivery of
controlled substances or youth and street gang activity, or as
the site of a violation of Florida Statute 796.07 involving
prostitution, lewdness or assignation;
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. This ordinance shall be known as the
"Boynton Beach City Nuisance Abatement Ordinance."
Section 2. For the purposes of this ordinance, the
following definitions shall control:
(a) PUBLIC NUISANCE. Any place or premises that has
been used on more than two (2) occasions, within a six (6)
public nuisance must occur during a time period that the
property is occupied by the owner, the owner's family, or a
tenant or in the case of a business, during the regular
business hours of that business.
(b) CONTROLLED SUBSTANCE. Any substance named or
described in Schedule 1 through 5 of Florida Statute 893.03.
(c) BOARD. The Nuisance Abatement Board of the City of
Boynton Beach.
(d) CITY ATTORNEY. The legal counsel for the City of
Boynton Beach, or his or her Assistant City Attorney or
designee.
(e) CLERK. The City Clerk of the City of Boynton Beach
or his or her designee.
(f) SALE OR DELIVERY. The actual, constructive or
attempted transfer of possession.
(g) YOUTH AND STREET GANGS. "Youth and street gangs"
means a formal or informal ongoing organization, association,
or group of three or more persons who:
(1) Have a common name or common identifying signs,
colors, or symbols;
(2) Have members or associates who, individually or
collectively, engage in or have engaged in a pattern of youth
and street gang activity.
(h) PATTERN OF YOUTH AND STREET GANG ACTIVITY. "Pattern
of youth and street gang activity" means the commission,
attempted commission, or solicitation, by any member or
members of a youth and street gang of two or more felony or
violent misdemeanor offenses on separate occasions within a 3-
year period, for the purpose of furthering gang activity.
Section 3. ORGANIZATION.
by a majority of the City Commission for two (2) year terms as
hereinafter set forth. Members of the Board shall be persons
who reside within the City of Boynton Beach municipal limits.
The chairman of the Board shall be an attorney, duly licensed
by the State of Florida, with trial experience.
(b) The initial appointment to the. Nuisance Abatement
Board shall be as follows:
(1) Two (2) members and a chairman appointed for a
term of two (2) years;
(2) Two (2) members appointed for a term of one (1)
year;
Upon expiration of initial terms, subsequent appointments for
two (2) years shall be made. Any member may be re-appointed
by the City Commission. Appointments to fill a vacancy shall
be for the remainder of the unexpired term.
(3) The presence of three (3) or more members of
the board shall constitute a quorum.
Section 4. PROCESSING OF COMPLAINTS
(a) Any employee, officer, or resident of the City of
Boynton Beach may bring a complaint before the board by filing
a request for prosecution with the City Attorney. The request
for prosecution shall be made under oath on a form prescribed
by the City Attorney. A copy of the request for prosecution
shall be served by registered mail, return receipt delivery to
the owner of the real property on which the complained
activity is occurring and on the holder of the occupational
license of any business located on the property.
(b) When a request for prosecution has been received,
the City Attorney shall determine whether the request contains
sufficient allegations to establish that a public nuisance as
Attorney has determined that the petition is sufficient. The
Police Department shall monitor the property for 30 days prior
to the City Attorney requesting a hearing before the Nuisance
Abatement Board. If the Police Chief certifies that the
public nuisance alleged in the affidavit has ceased during the
30 day monitoring period, the City Attorney may decline
prosecution of the complaint. In the event of such
declination, the City Attorney shall notify the complainant.
If the City Attorney determines that the request is
insufficient, the City Attorney shall notify the Complainant.
(c) The Board, through its Clerk, shall schedule a
hearing; a written notice of the hearing shall be sent to the
owner of the real property on which the alleged nuisance is
occurring and the holder of the occupational license for any
business located on the property. Additionally, a copy of the
notice of hearing shall be hand-delivered to any occupant of
the premises, provided the occupant is above the age of 15
years. The Clerk shall give at least five (5) days prior
notice of any scheduled hearing°
(d) The aforesaid notice of hearing shall include:
(1) A notice of the time and place 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; and
transcript
reporter.
(5) A notice that any person requiring a verbatim
of the hearing must arrange for their own court
the opportunity to present testimony, provided said testimony
is made under oath. The Board may consider any evidence,
including evidence of the general reputation 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 the finding that a nuisance
exists must be based on a "preponderance of the evidence"
standard.
(b) After considering all evidence, and only after the
Board finds that the property owner had knowledge of the
violations by prior notice and that the property failed to
take any action to correct the problem, the Board may declare
the place or premises to be a public nuisance as defined by
this ordinance 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
business or activity on the premises which is conducive to
such nuisance.
All orders of the Board shall be by motion approved by a
majority of those members present and voting. The order shall
be prepared by the City Attorney and signed by the Chairperson
or Vice Chairperson of the Board.
(c) An order entered under Subsection B shall expire
after one (1) year, or at such earlier time as stated in the
order. The Board may maintain jurisdiCtion to modify its
order prior to the expiration of the order.
(e) In the event that orders of the Board expire and/or
are not complied with, or for any reason are ineffective, the
Board may then bring a complaint under Section 60.05 Florida
Statutes, seeking a permanent injunction against any public
nuisance described in this ordinance.
Section 6. JUDICIAL REVIEW
(a) Any person aggrieved by any ruling or order of the
Board may seek review by petition for Writ of Certiorari in
the Circuit Court of Palm Beach County. A Petition for Writ
of Certiorari shall be filed within thirty (30) days from the
date of the written order appealed from and shall proceed in
accordance with the Florida Rules of Appellate Procedure.
Enforcement of the Board's order shall be suspended until such
time as the Circuit Court either affirms the Board's order or
supersedes the order with one rendered by the court.
Section 7. RIGHTS PRESERVED
This Article does not restrict the right of any person to
proceed under either Section 60.05 or Section 823.05 Florida
Statutes, against any public nuisance.
Section 8. If any clause, section, or other part or
application of this Ordinance is held by any court of
competent jurisdiction to be unconstitutional or invalid, in
part or application, it shall not effect the validity of the
remaining portions or applications of this Ordinance.
SECTION 9. That all ordinances or parts of ordinances
in conflict herewith be and the same are hereby repealed.
10. Authority is hereby granted to codify said
Section
ordinance.
Section 11. This
immediately upon passage.
ordinance shall become effective
SECOND, FINAL READING and PASSAGE this
~-6~ , 1992.
day of
ATTEST:
(CORPORATE SEAL)
CITY OF BOYNTON ~BEACH, FLORIDA
v C%
C oamri-~st ~ne r
Comm~ loner
A:BB/Ord/Nuisance
Rev.9/9/92
10/13/92, 10/15/92