Bill Text: HB 0719

HB 0719

2003

CHAMBER ACTION

The Committee on Judiciary recommends the following:

Committee Substitute

Remove the entire bill and insert:

A bill to be entitled

An act relating to nuisance abatement; amending s.

893.138, F.S.; revising language with respect to

legislative intent concerning local administrative action

to abate drug-related, prostitution-related, stolen-

property-related, or street-gang-related public nuisances;

providing for a mandatory, rather than optional,

declaration of a place or premises as a public nuisance

under certain circumstances; providing for the closure of

a place or premises under certain circumstances; providing

an effective date.

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

Section 1. Section 893.138, Florida Statutes, is amended

to read:

893.138 Local administrative action to abate drug-related,

prostitution-related, or stolen-property-related public

nuisances and criminal street gang activity.--

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

and improve the health, safety, and welfare of the citizens of

the counties and municipalities of this state by authorizing the

creation of administrative boards with authority to impose

administrative fines and other noncriminal penalties, including,

but not limited to, the power to close property for up to 1

year, in order to abate drug-related, prostitution-related,

stolen-property-related, or street-gang-related public nuisances

on the property~~provide an equitable, expeditious, effective,~~

~~and inexpensive method of enforcing ordinances in counties and~~

~~municipalities~~under circumstances when a pending or repeated

violation continues to exist.

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

(a) On more than two occasions within a 6-month period, as

the site of a violation of s. 796.07;

(b) On more than two occasions within a 6-month period, as

the site of the unlawful sale, delivery, manufacture, or

cultivation of any controlled substance;

of a controlled substance, where such possession constitutes a

felony and that has been previously used on more than one

occasion as the site of the unlawful sale, delivery,

manufacture, or cultivation of any controlled substance;

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

conducting a pattern of criminal street gang activity as defined

by s. 874.03; or

(e) On more than two occasions within a 6-month period, as

the site of a violation of s. 812.019 relating to dealing in

stolen property

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

be abated pursuant to the procedures provided in this section.

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

an administrative board to hear complaints regarding the

nuisances described in subsection (2). Any employee, officer, or

resident of the county or municipality may bring a complaint

before the board after giving not less than 3 days' written

notice of such complaint to the owner of the place or premises

at his or her last known address. After a hearing in which the

board may consider any evidence, including evidence of the

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

owner of the premises shall have an opportunity to present

evidence in his or her defense, the board may declare the place

or premises to be a public nuisance as described in subsection

(2).

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

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

such place or premises to adopt such procedure as may be

appropriate under the circumstances to abate any such nuisance

or it may enter an order immediately prohibiting:

(a) The maintaining of the nuisance;

(b) The operating or maintaining of the place or premises,

including the closure of the place or premises or any part

thereof; or

or activity on the premises which is conducive to such nuisance.

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

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

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

pursuant to the procedures contained in s. 120.69. This

subsection does not subject a municipality that creates a board

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

provision of chapter 120.

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

temporary and permanent injunctive relief against any nuisance

described in subsection (2).

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

to proceed under s. 60.05 against any public nuisance.

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

substance" includes any substance sold in lieu of a controlled

substance in violation of s. 817.563 or any imitation controlled

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substance defined in s. 817.564.

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(10) The provisions of this section may be supplemented by

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a county or municipal ordinance. The ordinance may include, but

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is not limited to, provisions that establish additional

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penalties for public nuisances, including fines not to exceed

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$250 per day; provide for the payment of reasonable costs,

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including reasonable attorney fees associated with

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investigations of and hearings on public nuisances; provide for

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continuing jurisdiction for a period of 1 year over any place or

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premises that has been or is declared to be a public nuisance;

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establish penalties, including fines not to exceed $500 per day

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for recurring public nuisances; provide for the recording of

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orders on public nuisances so that notice must be given to

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subsequent purchasers, successors in interest, or assigns of the

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real property that is the subject of the order; provide that

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recorded orders on public nuisances may become liens against the

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real property that is the subject of the order; and provide for

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the foreclosure of property subject to a lien and the recovery

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of all costs, including reasonable attorney fees, associated

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with the recording of orders and foreclosure. No lien created

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pursuant to the provisions of this section may be foreclosed on

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

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State Constitution. Where a local government seeks to bring an

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administrative action, based on a stolen property nuisance,

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against a property owner operating an establishment where

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multiple tenants, on one site, conduct their own retail

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

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against his or her property or the prohibition of operation

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provision if the property owner evicts the business declared to

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be a nuisance within 90 days after notification by registered

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mail to the property owner of a second stolen property

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conviction of the tenant. The total fines imposed pursuant to

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the authority of this section shall not exceed $15,000. Nothing

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contained within this section prohibits a county or municipality

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from proceeding against a public nuisance by any other means.

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(11) A place or premises may be closed pursuant to

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paragraph (4)(b) when occupancy of the property materially

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contributes to the public nuisance. If the owner of the place or

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premises does not reside upon the property, then the owner shall

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have a reasonable time in which to abate the public nuisance

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before the property is closed. If the nonresident owner abates

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the public nuisance within a reasonable time or commences and

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diligently pursues legal proceedings to abate such nuisance, the

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property shall not be closed. The legal proceedings shall be

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initiated on or before the 10th day after the hearing pursuant

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to subsection (3). A nonresident owner’s opportunity to abate

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the public nuisance or commence proceedings to abate such

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nuisance may be before or after the hearing pursuant to

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subsection (3). Closure of property which constitutes an

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unabated public nuisance shall not constitute a taking.

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