Senate Bill sb2118c1

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    Florida Senate - 2003                           CS for SB 2118

    By the Committee on Comprehensive Planning; and Senators
    Dockery and Alexander




    316-2491-03

  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 and

28  provide an equitable, expeditious, effective, and inexpensive

29  method of enforcing ordinances in counties and municipalities

30  under circumstances when a pending or repeated violation

31  continues to exist.

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    Florida Senate - 2003                           CS for SB 2118
    316-2491-03




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

20  be abated pursuant to the procedures provided in this section.

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

22  create an administrative board to hear complaints regarding

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

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

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

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

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

28  which the board may consider any evidence, including evidence

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

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

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

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    Florida Senate - 2003                           CS for SB 2118
    316-2491-03




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

 2  subsection (2).

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

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

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

 6  appropriate under the circumstances to abate any such nuisance

 7  or it may enter an order immediately prohibiting:

 8         (a)  The maintaining of the nuisance;

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

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

11  any part thereof; or

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

13  business or activity on the premises which is conducive to

14  such nuisance.

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

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

17  order.

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

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

20  This subsection does not subject a municipality that creates a

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

22  other provision of chapter 120.

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

24  seeking temporary and permanent injunctive relief against any

25  nuisance described in subsection (2).

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

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

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

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

30  substance in violation of s. 817.563 or any imitation

31  controlled substance defined in s. 817.564.

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    Florida Senate - 2003                           CS for SB 2118
    316-2491-03




 1         (10)  The provisions of this section may be

 2  supplemented by a county or municipal ordinance.  The

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

 4  establish additional penalties for public nuisances, including

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

 6  reasonable costs, including reasonable attorney fees

 7  associated with investigations of and hearings on public

 8  nuisances; provide for continuing jurisdiction for a period of

 9  1 year over any place or premises that has been or is declared

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

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

12  provide for the recording of orders on public nuisances so

13  that notice must be given to subsequent purchasers, successors

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

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

16  nuisances may become liens against the real property that is

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

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

19  including reasonable attorney fees, associated with the

20  recording of orders and foreclosure. No lien created pursuant

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

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

23  Constitution. Where a local government seeks to bring an

24  administrative action, based on a stolen property nuisance,

25  against a property owner operating an establishment where

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

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

28  against his or her property or the prohibition of operation

29  provision if the property owner evicts the business declared

30  to be a nuisance within 90 days after notification by

31  registered mail to the property owner of a second stolen

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    Florida Senate - 2003                           CS for SB 2118
    316-2491-03




 1  property conviction of the tenant. The total fines imposed

 2  pursuant to the authority of this section shall not exceed

 3  $15,000. Nothing contained within this section prohibits a

 4  county or municipality from proceeding against a public

 5  nuisance by any other means.

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

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

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

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

10  reasonable amount of time in which to abate the nuisance

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

12  the nuisance within a reasonable time or commences and

13  diligently pursues legal proceedings to abate the nuisance,

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

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

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

17  to abate the nuisance or commence proceedings to abate the

18  nuisance may be before or after the hearing pursuant to

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

20  unabated nuisance shall not constitute a taking.

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

22  law.

23  

24          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
25                         Senate Bill 2118

26                                 

27  The committee substitute reinserts existing intent language
    that states a nuisance abatement board has authority to impose
28  administrative fines and other noncriminal penalties to
    "provide an equitable, expeditious, effective, and inexpensive
29  method of enforcing ordinances. . . ."

30  This committee substitute also reinserts existing language
    that provides a premises meeting certain criteria "may be"
31  declared a nuisance.

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