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O90-02ORDINANCE NO. 90- ~ AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AMENDING CHAPTER 10 OF THE CITY CODE BY AMENDING ARTICLE IV. ENTITLED "ABATEMENT OF DRUG-RELATED PUBLIC NUISANCES"; SECTIONS 10-55 THROUGH 10-58 AND SECTION 10-60; PROVIDING ADDITIONAL DEFINITIONS; PROVIDING FOR A NEW NUISANCE ABATEMENT BOARD ORGANIZATION; PROVIDING ADDITIONAL OPERATING PROCEDURES; PROVIDING FOR A STANDARD OF PROOF; PROVIDING FOR THE ENJOINING OF A NUISANCE UNDER SECTION 823.10, FLORIDA STATUTES; PROVIDING THAT EACH AND EVERY OTHER PROVISION OF CHAPTER 10 NOT SPECIFICALLY HEREIN AMENDED SHALL REMAIN IN FULL FORCE AND EFFECT AS PREVIOUSLY ENACTED; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; PROVIDING AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE AND FOR OTHER PURPOSES. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. Chapter 10, Garbage, Trash and Offensive Conditions. Article IV, Abatement of Drug-Related Public Nuisances. Section 10-55. Definitions. is hereby amended by adding the words and figures in underlined type, as follows: Section 10-55. Definitions. a) Public Nuisance. -Any, placer or premises within the City of Boynton Beach which has been used on more than two occasions as the site of the unlawful sale or delivery of controlled substances as defined in Chapter 893 of the Florida Statutes. b) Board. The Abatement Board of the Beach. Nuisance City of Boynton c) City Attorney. The legal counselor for the City of Boynton 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 Boynton 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) Sale or delivery. An actual, constructive or attempted transfer of possession. Section 2. That Section 10-56. Nuisance abatement board; organization is hereby amended, in its entirety, to read as follows: Section 10-56. Nuisance abatement board created~ membership~ terms~ organization. a) There is hereby created and established the Boynton Beach Nuisanc~ Abatement Board consistinq of five (5) members, appointed by th~ City Co~muission, who shall reside or maintain a business in the city. The chairman of the board shall be an attorney duly licensed in any jurisdiction within the United States with trial experience. b) Terms shall be for two (2) years except that two (2) of the initially appointed members shall serve initial terms of one year. Any member may be reappointed b~ the City Commission for not more than three (3) complete consecutive term__~. AppOintments to fill a vacancy shall b- for the remainder of the unexpired term. Any member who fails to attend two (2) of three (3) successive meetings without prior approval of the chairman shall automatically forfeit his appointment, and the City Commission shall promptly fill such vacancy for the-~~d~_~of the term. c) The presence of three (3) or more members shall constitute a quorum. Members shall serve withou~ comDensation. Section 3. That Section 10-57. Operating procedures, is hereby amended by adding the words and figures in underlined type as follows: Sec. 10-57. Operating procedures. (a) Any employee, officer or resident of Palm Beach County or of the City of Boynton Beach may file a complaint regarding the existence on premises' located: in-~Boynton Beach..of a public nuisance as defined in section 10-55, after first giving not less than three (3) days' written notice of such complaint to the owner of the place or premises complained of at his last known address. (b) When a request for prosecution has been received, the city attorney shall determine whether probable cause exists to believe that a public nuisance as defined in sectio- 10-55 exists on the premises, upon a finding of probable caused, the city attorney shall promptly request a hearinq before the beard. ~B~(c) Service. The nuisance abatement board, through its clerk, shall schedule a hearing, and written notice of such hearing shall be sent by certified mail or hand delivered to the owner and operators of the premises complained of at their last known addresses at least fourteen (14) days prior to the scheduled hearing. If an attempt to reach the owner 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. ~e~(d) The aforesaid hearing shall include: notice of (1) A statement of the time, place and nature of the hearing. (2) A statement of the legal authority and under which the hearing 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. Section 3. That Section 10-58. Conduct of hearings. is hereby amended by adding the words in underlined type as follows: Sec. 10-58. Conduct of hearings. a) Except for hearings scheduled by the Clerk, 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 convene as the demand necessitates. The Board shall adopt rules for the conduct of its hearings. 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 shall present cases before the Board when an employee or officer of the City of Boynton Beach is the complainant. In all other cases, the City Attorney may present cases before the Board. c) Ail 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 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. d) A~ee~ ..... ee~s~de~ ..... a~ ev~e~eeT--~he--B~a~d--may--~ee~a~e--~he P~aee--e~--p~em~ses--~e--be--a--p~b~e N~sa~ee-as-~ef~e~-~-See~-~8-~5-a~ may ---e~te~ ---aN ---8~e~ ---~mme~ate~M D~h~B~~ After considering ali evidence, the board shall determine whether, by a preponderance of the evidence, the premises have been used on more than two (2) occasion~ as the site of the unlawful sale or deliver~ of controlled substances. Finding ~n ~h, affirmative, the board shall determ~n, whether the premises are therefore a public nuisance. If found by the board to be a public nuisance, the board enter an order i-.-ediatelyproh~hit~ng: (1) nuisance; The maintaining of the 4 (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. Ail orders of the Board shall be by motion approved by a majority of those members present and voting, except that at least four (4) members of the Board must vote in order for the action to be official. e) 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. f) The Board may bring a complaint under Section 60.05 of the Florida Statutes, seeking a permanent injunction against any Public Nuisance. Section 4. That Section 10-60. Enjoining of nuisances, is hereby amended by adding the words and figures in underlined type, as follows: Section 10-60, Enjoining of Nuisances. When any nuisance as defined in Section 823.05 or Section 823.10 of the Florida Statutes exists, the City Attorney or any citizen of the county may sue in the name of the state on his relation to enjoin the nuisance, the person or persons maintaining?.~it, and the owner or agent of the building or ground on which the nuisance exists. Section 5: That each and every other section and provision of Chapter 10. Garbage, Trash and Offensive Conditions. not specifically amended herein shall remain in full force and effect as previously enacted. Section 6. Should any section or provision of this ordinance or portion hereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the remainder of this ordinance. 5 in Section 7: That all ordinances or parts of ordinances conflict herewith be and the same are hereby repealed. Section 8: Authority is hereby granted to codify said ordinance. Section 9: This ordinance shall become effective immediately upon passage. 1990. day of k/~~ , // FINAL READING and PASSAGE this ./~ ~, day of , 1990. BOYNT ACH, FLORIDA Vice Mayor Commi s s iofier C6~m~iss~oner ATTEST: l~y C~rK (Corporate Seal)