Florida Senate - 2020                       CS for CS for SB 888
       
       
        
       By the Committees on Rules; and Community Affairs; and Senator
       Perry
       
       
       
       
       595-04461-20                                           2020888c2
    1                        A bill to be entitled                      
    2         An act relating to public nuisances; amending s.
    3         60.05, F.S.; authorizing sheriffs to enjoin public
    4         nuisances; revising notice requirements for the filing
    5         of temporary injunctions relating to the enjoinment of
    6         certain nuisances; extending the period of notice
    7         before a lien may attach to certain real estate;
    8         amending s. 823.05, F.S.; making technical changes;
    9         declaring that the use of a location by a criminal
   10         gang, criminal gang members, or criminal gang
   11         associates for criminal gang-related activity is a
   12         public nuisance; declaring that any place or premises
   13         that has been used on more than two occasions during a
   14         certain period as the site of specified violations is
   15         a nuisance and may be abated or enjoined pursuant to
   16         specified provisions; providing a property owner an
   17         opportunity to remedy a nuisance before specified
   18         legal actions may be taken against the property under
   19         certain circumstances; amending s. 893.138, F.S.;
   20         declaring that any place or premises that has been
   21         used on more than two occasions during a certain
   22         period as the site of any combination of specified
   23         violations may be declared to be a nuisance and may be
   24         abated pursuant to specified procedures; providing a
   25         property owner an opportunity to remedy a nuisance
   26         before specified legal actions may be taken against
   27         the property under certain circumstances; providing an
   28         effective date.
   29          
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Section 60.05, Florida Statutes, is amended to
   33  read:
   34         60.05 Abatement of nuisances.—
   35         (1) When any nuisance as defined in s. 823.05 exists, the
   36  Attorney General, state attorney, city attorney, county
   37  attorney, sheriff, or any citizen of the county may sue in the
   38  name of the state on his or her relation to enjoin the nuisance,
   39  the person or persons maintaining it, and the owner or agent of
   40  the building or ground on which the nuisance exists.
   41         (2) The court may allow a temporary injunction without bond
   42  on proper proof being made. If it appears by evidence or
   43  affidavit that a temporary injunction should be issued issue,
   44  the court, pending the determination on final hearing, may
   45  enjoin any of the following:
   46         (a) The maintaining of a nuisance.;
   47         (b) The operating and maintaining of the place or premises
   48  where the nuisance is maintained.;
   49         (c) The owner or agent of the building or ground upon which
   50  the nuisance exists.;
   51         (d) The conduct, operation, or maintenance of any business
   52  or activity operated or maintained in the building or on the
   53  premises in connection with or incident to the maintenance of
   54  the nuisance.
   55  
   56  The injunction shall specify the activities enjoined and may
   57  shall not preclude the operation of any lawful business not
   58  conducive to the maintenance of the nuisance complained of. At
   59  least 3 days’ notice in writing shall be given defendant of the
   60  time and place of application for the temporary injunction.
   61         (3)(a) The defendant shall be given written notice to abate
   62  the nuisance within 10 days after the issuance of the notice.
   63  The notice must inform the defendant that an application for
   64  temporary injunction may be filed if the nuisance is not timely
   65  abated. If the nuisance is not timely abated, the defendant must
   66  be given a second written notice that informs the defendant that
   67  an application for a temporary injunction will be filed if the
   68  nuisance is not abated within 15 days after the end of the
   69  initial 10-day period. However, if the defendant responds to the
   70  first notice in writing within the initial 10-day period, and in
   71  such response alleges and provides proof that:
   72         1.Nuisance abatement involves compliance with another law
   73  of this state and the requirements of such law make nuisance
   74  abatement within 10 days impossible; or
   75         2.The terms of an executed contract to perform services
   76  necessary to abate the nuisance require more than 10 days to
   77  complete,
   78  
   79  the defendant must be given a second written notice providing
   80  the defendant with an extended time period to abate the nuisance
   81  sufficient to comply with such other law or contract terms.
   82         (b)A second notice sent under paragraph (a) must also
   83  provide the location where the application will be filed and the
   84  time when it will be filed. If the nuisance is not timely abated
   85  as provided in the second notice, the application for the
   86  temporary injunction must be filed as indicated in the notice.
   87         (c)In addition to the information required under
   88  paragraphs (a) and (b), each notice must:
   89         1.If applicable, describe the building, booth, tent, or
   90  place that is an alleged nuisance.
   91         2.State the activities that led to the nuisance
   92  allegations.
   93         3.State the actions necessary to abate the nuisance.
   94         4.State that costs will be assessed if abatement of the
   95  nuisance is not completed and if the court determines that the
   96  nuisance exists.
   97         (d)The notices provided in this subsection must be sent by
   98  personal service to the owner at his or her address as it
   99  appears on the latest tax assessment roll or to the tenant of
  100  such address. If an address is not found for the owner, the
  101  notices must be sent to the location of the alleged nuisance and
  102  displayed prominently and conspicuously at that location.
  103         (4)(3) Evidence of the general reputation of the alleged
  104  nuisance and place is admissible to prove the existence of the
  105  nuisance. An No action filed by a citizen may not shall be
  106  dismissed unless the court is satisfied that it should be
  107  dismissed. Otherwise the action shall continue and the state
  108  attorney notified to proceed with it. If the action is brought
  109  by a citizen and the court finds that there was no reasonable
  110  ground for the action, the costs shall be taxed against the
  111  citizen.
  112         (5)(4) On trial if the existence of a nuisance is shown,
  113  the court shall issue a permanent injunction and order the costs
  114  to be paid by the persons establishing or maintaining the
  115  nuisance and shall adjudge that the costs are a lien on all
  116  personal property found in the place of the nuisance and on the
  117  failure of the property to bring enough to pay the costs, then
  118  on the real estate occupied by the nuisance. A No lien may not
  119  shall attach to the real estate of any other than such said
  120  persons unless a second 5 days’ written notice has been given in
  121  accordance with paragraph (3)(a) to the owner or his or her
  122  agent who fails to begin to abate the nuisance within the time
  123  specified therein said 5 days. In a proceeding abating a
  124  nuisance pursuant to s. 823.10 or s. 823.05, if a tenant has
  125  been convicted of an offense under chapter 893 or s. 796.07, the
  126  court may order the tenant to vacate the property within 72
  127  hours if the tenant and owner of the premises are parties to the
  128  nuisance abatement action and the order will lead to the
  129  abatement of the nuisance.
  130         (6)(5) If the action was brought by the Attorney General, a
  131  state attorney, or any other officer or agency of state
  132  government; if the court finds either before or after trial that
  133  there was no reasonable ground for the action; and if judgment
  134  is rendered for the defendant, the costs and reasonable attorney
  135  attorney’s fees shall be taxed against the state.
  136         Section 2. Section 823.05, Florida Statutes, is amended to
  137  read:
  138         823.05 Places and groups engaged in certain activities
  139  criminal gang-related activity declared a nuisance; abatement
  140  and enjoinment massage establishments engaged in prohibited
  141  activity; may be abated and enjoined.—
  142         (1) A person who erects, establishes, continues, maintains,
  143  owns, or leases any of the following is deemed to be maintaining
  144  a nuisance, and the building, erection, place, tent, or booth,
  145  and the furniture, fixtures, and contents of such structure, are
  146  declared a nuisance, and all such places or persons shall be
  147  abated or enjoined as provided in ss. 60.05 and 60.06:
  148         (a)A Whoever shall erect, establish, continue, or
  149  maintain, own or lease any building, booth, tent, or place that
  150  which tends to annoy the community or injure the health of the
  151  community, or becomes become manifestly injurious to the morals
  152  or manners of the people as provided described in s. 823.01., or
  153         (b)A any house or place of prostitution, assignation, or
  154  lewdness. or
  155         (c)A place or building in which persons engage in where
  156  games of chance are engaged in violation of law. or
  157         (d)A any place where any law of the state is violated,
  158  shall be deemed guilty of maintaining a nuisance, and the
  159  building, erection, place, tent or booth and the furniture,
  160  fixtures, and contents are declared a nuisance. All such places
  161  or persons shall be abated or enjoined as provided in ss. 60.05
  162  and 60.06.
  163         (2)(a) As used in this subsection, the terms “criminal
  164  gang,” “criminal gang member,” “criminal gang associate,” and
  165  “criminal gang-related activity” have the same meanings as
  166  provided in s. 874.03.
  167         (b) A criminal gang, criminal gang member, or criminal gang
  168  associate who engages in the commission of criminal gang-related
  169  activity is a public nuisance. Any and All such persons shall be
  170  abated or enjoined as provided in ss. 60.05 and 60.06.
  171         (c) The use of a location on two or more occasions by a
  172  criminal gang, criminal gang members, or criminal gang
  173  associates for the purpose of engaging in criminal gang-related
  174  activity is a public nuisance. Such use of a location as a
  175  public nuisance shall be abated or enjoined as provided in ss.
  176  60.05 and 60.06.
  177         (d) Nothing in This subsection does not shall prevent a
  178  local governing body from adopting and enforcing laws consistent
  179  with this chapter relating to criminal gangs and gang violence.
  180  Where local laws duplicate or supplement this chapter, this
  181  chapter shall be construed as providing alternative remedies and
  182  not as preempting the field.
  183         (e) The state, through the Department of Legal Affairs or
  184  any state attorney, or any of the state’s agencies,
  185  instrumentalities, subdivisions, or municipalities having
  186  jurisdiction over conduct in violation of a provision of this
  187  chapter may institute civil proceedings under this subsection.
  188  In any action brought under this subsection, the circuit court
  189  shall proceed as soon as practicable to the hearing and
  190  determination. Pending final determination, the circuit court
  191  may at any time enter such injunctions, prohibitions, or
  192  restraining orders, or take such actions, including the
  193  acceptance of satisfactory performance bonds, as the court may
  194  deem proper.
  195         (3) A massage establishment as defined in s. 480.033(7)
  196  which that operates in violation of s. 480.0475 or s.
  197  480.0535(2) is declared a nuisance and may be abated or enjoined
  198  as provided in ss. 60.05 and 60.06.
  199         (4)(a)Any place or premises that has been used on more
  200  than two occasions within a 6-month period as the site of any of
  201  the following violations is declared a nuisance and may be
  202  abated or enjoined as provided in ss. 60.05 and 60.06:
  203         1.Section 812.019, relating to dealing in stolen property.
  204         2.Section 784.011, s. 784.021, s. 784.03, or s. 784.045,
  205  relating to assault and battery.
  206         3.Section 810.02, relating to burglary.
  207         4.Section 812.014, relating to theft.
  208         5.Section 812.131, relating to robbery by sudden
  209  snatching.
  210         (b)Notwithstanding any other law, a rental property that
  211  is declared a nuisance under this subsection may not be abated
  212  or subject to forfeiture under the Florida Contraband Forfeiture
  213  Act if the nuisance was committed by someone other than the
  214  owner of the property and the property owner commences
  215  rehabilitation of the property within 30 days after the property
  216  is declared a nuisance and completes the rehabilitation within a
  217  reasonable time thereafter.
  218         Section 3. Section 893.138, Florida Statutes, is amended to
  219  read:
  220         893.138 Local administrative action to abate certain
  221  activities declared drug-related, prostitution-related, or
  222  stolen-property-related public nuisances and criminal gang
  223  activity.—
  224         (1) It is the intent of this section to promote, protect,
  225  and improve the health, safety, and welfare of the citizens of
  226  the counties and municipalities of this state by authorizing the
  227  creation of administrative boards with authority to impose
  228  administrative fines and other noncriminal penalties in order to
  229  provide an equitable, expeditious, effective, and inexpensive
  230  method of enforcing ordinances in counties and municipalities
  231  under circumstances when a pending or repeated violation
  232  continues to exist.
  233         (2) Any place or premises that has been used:
  234         (a) On more than two occasions within a 6-month period, as
  235  the site of a violation of s. 796.07;
  236         (b) On more than two occasions within a 6-month period, as
  237  the site of the unlawful sale, delivery, manufacture, or
  238  cultivation of any controlled substance;
  239         (c) On one occasion as the site of the unlawful possession
  240  of a controlled substance, where such possession constitutes a
  241  felony and that has been previously used on more than one
  242  occasion as the site of the unlawful sale, delivery,
  243  manufacture, or cultivation of any controlled substance;
  244         (d) By a criminal gang for the purpose of conducting
  245  criminal gang activity as defined by s. 874.03;
  246         (e) On more than two occasions within a 6-month period, as
  247  the site of a violation of s. 812.019 relating to dealing in
  248  stolen property; or
  249         (f) On two or more occasions within a 6-month period, as
  250  the site of a violation of chapter 499; or
  251         (g)On more than two occasions within a 6-month period, as
  252  the site of a violation of any combination of the following:
  253         1.Section 782.04, relating to murder;
  254         2.Section 782.051, relating to attempted felony murder;
  255         3.Section 784.045(1)(a)2., relating to aggravated battery
  256  with a deadly weapon; or
  257         4.Section 784.021(1)(a), relating to aggravated assault
  258  with a deadly weapon without intent to kill,
  259  
  260  may be declared to be a public nuisance, and such nuisance may
  261  be abated pursuant to the procedures provided in this section.
  262         (3) Any pain-management clinic, as described in s. 458.3265
  263  or s. 459.0137, which has been used on more than two occasions
  264  within a 6-month period as the site of a violation of:
  265         (a) Section 784.011, s. 784.021, s. 784.03, or s. 784.045,
  266  relating to assault and battery;
  267         (b) Section 810.02, relating to burglary;
  268         (c) Section 812.014, relating to theft;
  269         (d) Section 812.131, relating to robbery by sudden
  270  snatching; or
  271         (e) Section 893.13, relating to the unlawful distribution
  272  of controlled substances,
  273  
  274  may be declared to be a public nuisance, and such nuisance may
  275  be abated pursuant to the procedures provided in this section.
  276         (4) Any county or municipality may, by ordinance, create an
  277  administrative board to hear complaints regarding the nuisances
  278  described in subsection (2). Any employee, officer, or resident
  279  of the county or municipality may bring a complaint before the
  280  board after giving not less than 3 days’ written notice of such
  281  complaint to the owner of the place or premises at his or her
  282  last known address. After a hearing in which the board may
  283  consider any evidence, including evidence of the general
  284  reputation of the place or premises, and at which the owner of
  285  the premises shall have an opportunity to present evidence in
  286  his or her defense, the board may declare the place or premises
  287  to be a public nuisance as described in subsection (2).
  288         (5) If the board declares a place or premises to be a
  289  public nuisance, it may enter an order requiring the owner of
  290  such place or premises to adopt such procedure as may be
  291  appropriate under the circumstances to abate any such nuisance
  292  or it may enter an order immediately prohibiting:
  293         (a) The maintaining of the nuisance;
  294         (b) The operating or maintaining of the place or premises,
  295  including the closure of the place or premises or any part
  296  thereof; or
  297         (c) The conduct, operation, or maintenance of any business
  298  or activity on the premises which is conducive to such nuisance.
  299         (6) An order entered under subsection (5) shall expire
  300  after 1 year or at such earlier time as is stated in the order.
  301         (7) An order entered under subsection (5) may be enforced
  302  pursuant to the procedures contained in s. 120.69. This
  303  subsection does not subject a municipality that creates a board
  304  under this section, or the board so created, to any other
  305  provision of chapter 120.
  306         (8) The board may bring a complaint under s. 60.05 seeking
  307  temporary and permanent injunctive relief against any nuisance
  308  described in subsection (2).
  309         (9) This section does not restrict the right of any person
  310  to proceed under s. 60.05 against any public nuisance.
  311         (10) As used in this section, the term “controlled
  312  substance” includes any substance sold in lieu of a controlled
  313  substance in violation of s. 817.563 or any imitation controlled
  314  substance defined in s. 817.564.
  315         (11) The provisions of this section may be supplemented by
  316  a county or municipal ordinance. The ordinance may include, but
  317  is not limited to, provisions that establish additional
  318  penalties for public nuisances, including fines not to exceed
  319  $250 per day; provide for the payment of reasonable costs,
  320  including reasonable attorney fees associated with
  321  investigations of and hearings on public nuisances; provide for
  322  continuing jurisdiction for a period of 1 year over any place or
  323  premises that has been or is declared to be a public nuisance;
  324  establish penalties, including fines not to exceed $500 per day
  325  for recurring public nuisances; provide for the recording of
  326  orders on public nuisances so that notice must be given to
  327  subsequent purchasers, successors in interest, or assigns of the
  328  real property that is the subject of the order; provide that
  329  recorded orders on public nuisances may become liens against the
  330  real property that is the subject of the order; and provide for
  331  the foreclosure of property subject to a lien and the recovery
  332  of all costs, including reasonable attorney fees, associated
  333  with the recording of orders and foreclosure. No lien created
  334  pursuant to the provisions of this section may be foreclosed on
  335  real property which is a homestead under s. 4, Art. X of the
  336  State Constitution. Where a local government seeks to bring an
  337  administrative action, based on a stolen property nuisance,
  338  against a property owner operating an establishment where
  339  multiple tenants, on one site, conduct their own retail
  340  business, the property owner shall not be subject to a lien
  341  against his or her property or the prohibition of operation
  342  provision if the property owner evicts the business declared to
  343  be a nuisance within 90 days after notification by registered
  344  mail to the property owner of a second stolen property
  345  conviction of the tenant. The total fines imposed pursuant to
  346  the authority of this section shall not exceed $15,000. Nothing
  347  contained within this section prohibits a county or municipality
  348  from proceeding against a public nuisance by any other means.
  349         (12)Notwithstanding any other law, a rental property that
  350  is declared a nuisance under this section may not be abated or
  351  subject to forfeiture under the Florida Contraband Forfeiture
  352  Act if the nuisance was committed by someone other than the
  353  owner of the property and the property owner commences
  354  rehabilitation of the property within 30 days after the property
  355  is declared a nuisance and completes the rehabilitation within a
  356  reasonable time thereafter.
  357         Section 4. This act shall take effect July 1, 2020.