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hereby repealed in its entirety and renamed and replaced as shown in Exhibit A, Trespass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are repealed to the extent inconsistent herewith.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
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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
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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.
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(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.
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(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.
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