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Ordinance No. 95-22-121ORDINANCE NO. 95-22-121 AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, COUNTY OF DUVAL, STATE OF FLORIDA, REPEALING AND REPLACING SECTION 5-33, ENFORCEMENT OF PARK RULES AND REGULATIONS; PROVIDING FOR A NEW TITLE; PROVIDING NOTICE REQUIREMENTS AND EXCLUSION PROVISIONS FOR TRESPASS WARNINGS AND FOR TRESPASS AFTER WARNINGS; ESTABLISHING AN APPEAL PROCESS; PROVIDING FOR CONFLICT; PROVIDING FOR CODIFICATION; PROVIDING FOR APPLICABILITY; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City's Police Department, as authorized by state law and the City's Code of Ordinances, may issue "trespass warnings" and "trespass after warnings" to individuals on City owned property, who are warned that if they return to the property, they will be charged with trespassing as set forth herein; and WHEREAS, such trespass warnings and trespass after warnings may be given to individuals who act in violation of City ordinances, City park rules and regulations, or Florida Statutes while located on City owned property; and WHEREAS, the City Commission desires to create a process for individuals to appeal trespass warnings and trespass after warnings issued by the City; and WHEREAS, the City Commission desires to expand the City's current trespass ordinance to include additional City owned property; and WHEREAS, the City Commission finds that the presence of individuals who violate state statutes, the City's Code of Ordinances, or the City's park rules and regulations, creates a threat to the public safety and welfare; and WHEREAS, the City Commission deems this Ordinance necessary to promote public safety and public welfare. NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION ON BEHALF OF THE PEOPLE OF THE CITY OF ATLANTIC BEACH, FLORIDA: SECTION 1. Repeal and Replace. Section 5-33, Enforcement of park rules and regulations, is hereby repealed in its entirety and renamed and replaced as shown in Exhibit A, Trespass procedures on public property, attached hereto and incorporated herein by reference. New Section 5-33 as shown in Exhibit A, Trespass procedures on public property, is hereby adopted as fully revised Section 5-33 to the City's Code of Ordinances. 01784563.2 SECTION 2. Conflict. All ordinances, resolutions, official determinations, or parts thereof previously adopted or entered by the City or any of its officials and in conflict with this Ordinance are repealed to the extent inconsistent herewith. SECTION 3. Codification and Scrivener's Errors. The publisher of the City of Atlantic Beach's Code of Ordinances, the Municipal Code Corporation, is hereby directed to incorporate Exhibit A attached hereto, Section 5-33 — Trespass procedures on public property, into the City's Code of Ordinances. Sections of Chapter 5 may be renumbered or re -lettered and scrivener's errors, formatting and typographical errors and other minor, inadvertent graphical errors in Chapter 5 which do not affect the intent may be authorized by the City Manager and City Attorney without the need of public hearing, by filing a corrected or re -codified copy of same with the City Clerk. SECTION 4. Applicability_ The provisions of Section 5-33, Trespass procedures on public property, set forth in Exhibit A hereto, shall apply to all applications, decisions or controversies pending before the City of Atlantic Beach upon the effective date hereof or filed or initiated thereafter. SECTION 5. Severabilitv. If any section, sentence, clause, or other provision of this Ordinance, or any provision of Exhibit A attached hereto, Section 5-33, Trespass procedures on public property, shall be held to be invalid or unconstitutional by a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding of invalidity or unconstitutionality shall not be construed as to render invalid or unconstitutional the remaining sections, sentences, clauses, or provisions of this Ordinance, or of Exhibit A, which shall remain in full force and effect. SECTION 6. Effective Date. This ordinance shall take effect upon final reading and approval. PASSED by the City Commission on first reading on this 811 day of August, 2022. PASSED by the City C�ommission on second and final reading and following a public hearing on this 22 day of A l , 2022. CITY OF ATLANTIC BEACH n ass r, Mayor Attest: X-�///Jpw� /� onna L. Bartle, City Clerk Approved as to form and correctness: ,, A� - J'�7jrJ�. Br a 5 Durde ity Attorney 01784563-2 2 i 8/19/2022 EXHIBIT A, New Section 5-33 Sec. 5-33. Trespass procedures on public property. (a) Trespass for violation of State Statutes. If aperson is arrested based upon probable cause to believe that the person has committed any offenses enumerated in the Florida Statutes within any Cit facility, building or outdoor area that is open to the general public, including without limitation, municipal parks and beaches, an officer of the Atlantic Beach Police Department may exclude that person from all City property identified herein for a period of up to one year. Upon arrest, every person excluded from City property pursuant to this subsection must be provided a notice of trespass after warning, in accordance with this Section. (b) Trespass for violation ofpark rules and eegulationsAtlantic Beach's Code of Ordinances. If a person is cited for violation of park rules or the City of Atlantic Beach's Code of Ordinances, an officer of the Atlantic Beach Police Department may exclude for a period of up to one year as provided below that person from the particular City property where the offense occurred as set forth below. Every person excluded from City property pursuant to this subsection must be provided a notice of trespass after warning in accordance with this Section. 4K 11 First violation: (warning onh ). First time violations Of PaFk FUIeS and FegUlatiGF&will result in the violator being YeFbally waFned by the eity eFApleyee.warned of the violation by an officer of the Atlantic Beach Police Department and other certain city employees designated by the Chief of Police. If the violator is a juvenile, then the eFnpleyee op lice officer will obtain parental/guardian information and contact the juvenile's parent/guardian and inform the parent/guardian of the warning. All warnings will be documented on an ABPD notice of warning form, a copy of which will be provided to the violator and will be retained by the Police Department. (Q) Second violation within 9e) deysone year from the date of the rst e#enseviolation. If the violator is a juvenile, then the PaFkS and Feffeations a police officer will eGntae4noti the juvenile's parent/guardian and ���*��• the pelke to complete a notice of trespass after warning ) formfeF thiFty (39) days. excluding the juvenile WeFFAat+eA will be PUFged AeF niRety (90) days unless theFe aFe subsequent from the City_property for thirty (30) days and make available a copy for the juvenile's parent. If the violator is an adult, then a notice of a trespass after warning (an) ter will be issued to the violator excluding that person from the City property for thirty (30) days. (e) Third and subsequent violations, including but not limited to a violation of a thirty (30) day exclusion period issued pursuant to subsection (2) above, within ninety(90) dGysone year from the date of the second offense. If the Aende violator is a juvenile, the parks and FP;AGAR �*A'Fpolice officer will contact the juvenile's parent/guardian and cen*aet the pel 01814490-1 8/19/2022 te-complete a notice of trespass after warning (TAW) for one (1) year.. If the violator is an adult, the police to complete aofficer will issue a notice of trespass after warning for one (1) year. Third and subsequent violations will be considered a violation of Section 810.09(2)(b), Florida Statutes. (c) The notice of trespass after warning must be in writing with a case number and a copy delivered to the excluded person either by hand delivery or certified mail return receipt requested. In the event that hand delivery or certified mail is not an option for delivery, the notice may be posted at City Hall. The notice of trespass after warning must specify the following_ (d) [Welefiens OfStOte iGVV-.j TFeSpaSSORg ViGlat*8RS Will bP- ha—RE-UP-d- �a,-; Vin—l�atOR-A'S A -f r -4 -ate law. (1) The areas of City property from which that person is excluded; (2) The nature, reason and basis of the violation; (3) The duration of the trespass after warning as applicable; and (4) Information concerningthe he rih�ppeal the exclusion to the special magistrate as provided for in this Section. (d) Authority to regulate park activities. The City Manager, with assistance of the Director of Parks and Recreation Department and the Chief of Police, is authorized to adopt rules and regulations related to activities in the City's parks and beaches, to include but not limited to hours of operation and terms and conditions of use, which shall be approved by resolution of the City Commission. (e) The Police Department is authorized to: (1) Direct any individual to leave any city k—park or beach or any specific area of any city park, and to complete a trespass after warning notice prohibiting an individual from returning to a city park or beach or any specific area of a city park based on the individual's violation of posted park rules or violations of criminal codes and/or statutes. as set forth in this Section. (2) Close down a city park or any portion of a city park due to violations of park rules, violations of criminal codes and/or statutes, or due to public safety concerns. (3) This subsection shall not be construed to limit the authority of a police officer to issue a notice of trespass to any person for any lawful reason for any Cityproperty, including without limitation rights-of-way, when closed to general vehicular or pedestrian use, as necessary or appropriate in the sole discretion of the City police officer. 01814490-1 2 frea FeiV 2921-10-2-Z 10:09:54 [Ki] 8/19/2022 (fl This Section shall not be construed to limit the authority of officers of the Atlantic Beach Police Department to arrest or cite individuals for violations of any section of the City's Code of Ordinances or the Florida Statutes. (g) Any person found on or within any Cityproperty identified in subsection (a), in violation of a notice of trespass after warning issued in accordance with this Section may be arrested for trespassing except as otherwise provided in this Section. (h) The City ManagerY, upon request, authorize an individual who has received a trespass after warning to enter the property or premises to exercise his or her First Amendment rights if there is no other reasonable alternative location to exercise such rights or to conduct necessary municipal business. Such authorization must be in writing, shall specify the duration of the authorization and any conditions thereof, and shall not be unreasonably denied. (i) Appeal of trespass warning or trespass after warningperson to whom a trespass warning or a trespass after warning is issued under this Section shall have the right to appeal the issuance of the subject warning as follows: (1) An appeal of the trespass warning or the trespass after warning must be filed, in writing to the City Clerk, within fifteen days of the issuance of the warning, and shall include the appellant's name, address and phone number, if any. No fee shall be charged for filingthe he appeal. (2) Appeals shall be heard by a special magistrate with whom the City contracts to provide this service. (3) Within seven days following the filing of the appeal, the special magistrate shall schedule a hearing. Notice of the hearing shall be provided to the appellant in one of two ways: a. By providingthe appellant a copy of the notice of hearing in person at the time he or she files the appeal. This shall be the preferred method of notice. When it is not possible to provide notice in this manner, the appellant shall be informed that notice of the hearing will be provided in accordance with paragraph (b) below. b. By leaving or posting the notice at the front desk of Cites 4) The special magistrate shall hold the hearinp- as soon as possible. In no event shall the hearing be held later than 60 days from the filing of the appeal. (5) Copies of documents in the City's control which are intended to be used at the hearing, and which directly relate to the issuance of the subject warning to the appellant, shall be made available upon request to the appellant at no cost. (6) The appellant shall have the right to attend with an attorney, the to testify, and to call witnesses and present evidence. The appellant shall have the right to bring a court reporter, at his or her own expense. (7) The special magistrate shall consider the testimony, reports or other documentary evidence, and any other evidence presented at the hearing. Formal rules of evidence shall not apply, but fundamental due process shall govern the proceedings. 01814490-1 Create4: 2921-19-22 19:99:54 {EST] 8/19/2022 (8) The City shall bear the burden of proof by clear and convincing evidence that the subject warning was properly issued pursuant to the criteria of this Section. (9) If the appellant fails to attend a scheduled hearing the special magistrate shall review the evidence presented and determine if the subject warningproperly issued pursuant to the criteria of this Section. (10) Within ten days of the hearing, the special magistrate shall issue a written decision on the appeal which shall be mailed to the appellant at the address provided. (11) The decision of the special magistrate shall be final and the appellant shall be deemed to have exhausted all administrative remedies. Such decision may be subject to judicial review in the manner provided by law. (12) The subject warning shall remain in effect duringthe he appeal and review process, including any judicial review. W Review of decision of special magistrate. The decision of the special magistrate is subject to review in the Circuit Court by petition for writ of certiorari. Any petition for writ of certiorari for review shall be filed with the Clerk of Circuit Court within 30 days from the date of the special magistrate's written decision. 01814490-1 `t Created: 2821-16-22 le $9:54 [EST]