Senate Bill sb2118

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    Florida Senate - 2003                                  SB 2118

    By Senators Dockery and Alexander





    15-985B-03

  1                      A bill to be entitled

  2         An act relating to public nuisances; amending

  3         s. 893.138, F.S.; clarifying the uses of

  4         property that constitute a public nuisance;

  5         providing for closure of property if occupancy

  6         of the property materially contributes to the

  7         nuisance; providing exceptions; providing that

  8         closure of property constituting an unabated

  9         nuisance is not a taking; providing an

10         effective date.

11  

12  Be It Enacted by the Legislature of the State of Florida:

13  

14         Section 1.  Section 893.138, Florida Statutes, is

15  amended to read:

16         893.138  Local administrative action to abate

17  drug-related, prostitution-related, or stolen-property-related

18  public nuisances and criminal street gang activity.--

19         (1)  It is the intent of this section to promote,

20  protect, and improve the health, safety, and welfare of the

21  citizens of the counties and municipalities of this state by

22  authorizing the creation of administrative boards with

23  authority to impose administrative fines and other noncriminal

24  penalties, including, but not limited to, the power to close

25  property for 1 year, in order to abate drug-related,

26  prostitution-related, stolen-property-related and

27  street-gang-related public nuisances on the property provide

28  an equitable, expeditious, effective, and inexpensive method

29  of enforcing ordinances in counties and municipalities under

30  circumstances when a pending or repeated violation continues

31  to exist.

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    Florida Senate - 2003                                  SB 2118
    15-985B-03




 1         (2)  Any place or premises that has been used:

 2         (a)  On more than two occasions within a 6-month

 3  period, as the site of a violation of s. 796.07;

 4         (b)  On more than two occasions within a 6-month

 5  period, as the site of the unlawful sale, delivery,

 6  manufacture, or cultivation of any controlled substance;

 7         (c)  On one occasion as the site of the unlawful

 8  possession of a controlled substance, where such possession

 9  constitutes a felony and that has been previously used on more

10  than one occasion as the site of the unlawful sale, delivery,

11  manufacture, or cultivation of any controlled substance;

12         (d)  By a criminal street gang for the purpose of

13  conducting a pattern of criminal street gang activity as

14  defined by s. 874.03; or

15         (e)  On more than two occasions within a 6-month

16  period, as the site of a violation of s. 812.019 relating to

17  dealing in stolen property

18  

19  is may be declared to be a public nuisance, and such nuisance

20  may be abated pursuant to the procedures provided in this

21  section.

22         (3)  Any county or municipality may, by ordinance,

23  create an administrative board to hear complaints regarding

24  the nuisances described in subsection (2). Any employee,

25  officer, or resident of the county or municipality may bring a

26  complaint before the board after giving not less than 3 days'

27  written notice of such complaint to the owner of the place or

28  premises at his or her last known address.  After a hearing in

29  which the board may consider any evidence, including evidence

30  of the general reputation of the place or premises, and at

31  which the owner of the premises shall have an opportunity to

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    Florida Senate - 2003                                  SB 2118
    15-985B-03




 1  present evidence in his or her defense, the board may declare

 2  the place or premises to be a public nuisance as described in

 3  subsection (2).

 4         (4)  If the board declares a place or premises to be a

 5  public nuisance, it may enter an order requiring the owner of

 6  such place or premises to adopt such procedure as may be

 7  appropriate under the circumstances to abate any such nuisance

 8  or it may enter an order immediately prohibiting:

 9         (a)  The maintaining of the nuisance;

10         (b)  The operating or maintaining of the place or

11  premises, including the closure of the place or premises or

12  any part thereof; or

13         (c)  The conduct, operation, or maintenance of any

14  business or activity on the premises which is conducive to

15  such nuisance.

16         (5)  An order entered under subsection (4) shall expire

17  after 1 year or at such earlier time as is stated in the

18  order.

19         (6)  An order entered under subsection (4) may be

20  enforced pursuant to the procedures contained in s. 120.69.

21  This subsection does not subject a municipality that creates a

22  board under this section, or the board so created, to any

23  other provision of chapter 120.

24         (7)  The board may bring a complaint under s. 60.05

25  seeking temporary and permanent injunctive relief against any

26  nuisance described in subsection (2).

27         (8)  This section does not restrict the right of any

28  person to proceed under s. 60.05 against any public nuisance.

29         (9)  As used in this section, the term "controlled

30  substance" includes any substance sold in lieu of a controlled

31  

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    Florida Senate - 2003                                  SB 2118
    15-985B-03




 1  substance in violation of s. 817.563 or any imitation

 2  controlled substance defined in s. 817.564.

 3         (10)  The provisions of this section may be

 4  supplemented by a county or municipal ordinance.  The

 5  ordinance may include, but is not limited to, provisions that

 6  establish additional penalties for public nuisances, including

 7  fines not to exceed $250 per day; provide for the payment of

 8  reasonable costs, including reasonable attorney fees

 9  associated with investigations of and hearings on public

10  nuisances; provide for continuing jurisdiction for a period of

11  1 year over any place or premises that has been or is declared

12  to be a public nuisance; establish penalties, including fines

13  not to exceed $500 per day for recurring public nuisances;

14  provide for the recording of orders on public nuisances so

15  that notice must be given to subsequent purchasers, successors

16  in interest, or assigns of the real property that is the

17  subject of the order; provide that recorded orders on public

18  nuisances may become liens against the real property that is

19  the subject of the order; and provide for the foreclosure of

20  property subject to a lien and the recovery of all costs,

21  including reasonable attorney fees, associated with the

22  recording of orders and foreclosure. No lien created pursuant

23  to the provisions of this section may be foreclosed on real

24  property which is a homestead under s. 4, Art. X of the State

25  Constitution. Where a local government seeks to bring an

26  administrative action, based on a stolen property nuisance,

27  against a property owner operating an establishment where

28  multiple tenants, on one site, conduct their own retail

29  business, the property owner shall not be subject to a lien

30  against his or her property or the prohibition of operation

31  provision if the property owner evicts the business declared

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    Florida Senate - 2003                                  SB 2118
    15-985B-03




 1  to be a nuisance within 90 days after notification by

 2  registered mail to the property owner of a second stolen

 3  property conviction of the tenant. The total fines imposed

 4  pursuant to the authority of this section shall not exceed

 5  $15,000. Nothing contained within this section prohibits a

 6  county or municipality from proceeding against a public

 7  nuisance by any other means.

 8         (11)  A place or premises may be closed under paragraph

 9  (4)(b) if occupancy of the property materially contributes to

10  the nuisance.  If the owner of the place or premises does not

11  reside upon the property, the owner shall be given a

12  reasonable amount of time in which to abate the nuisance

13  before the property is closed. If the nonresident owner abates

14  the nuisance within a reasonable time or commences and

15  diligently pursues legal proceedings to abate the nuisance,

16  the property shall not be closed.  The legal proceedings shall

17  be initiated on or before the tenth day after the hearing

18  pursuant to subsection (3). A nonresident owner's opportunity

19  to abate the nuisance or commence proceedings to abate the

20  nuisance may be before or after the hearing pursuant to

21  subsection (3).  Closure of property which constitutes an

22  unabated nuisance shall not constitute a taking.

23         Section 2.  This act shall take effect upon becoming a

24  law.

25  

26            *****************************************

27                          SENATE SUMMARY

28    Clarifies the uses of property which constitute a public
      nuisance. Provides for closure of property if occupancy
29    of the property materially contributes to the nuisance.
      Provides exceptions to closure if the owner of the
30    nuisance does not reside upon the property. Declares that
      closure of an unabated nuisance is not a taking.
31  

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