Item 8CAGENDA ITEM # 8C
APRIL 27, 2009
STAFF REPORT
City of Atlantic Beach
Commission Meeting
AGENIDA ITEM: Amending the PUBLIC NUISANCE CONTROL BOARD Ordinance.
DATE: April 27th, 2009
SUBMITTED BY: Dale Hatfield Community Redevelopment Coordinator
BACKI~ROUND: The purpose of this report is to improve the manner in which drug
and prostitution violations are handled in rental properties. It is not uncommon, in certain
areas, for a person to be arrested in a rental property for drug and or prostitution
violations, and when released, move back into the same property or another property
owned by the same landlord. The landlord's action in this manner facilitates the
continuing drug and prostitution problems in local rental property.
Due to the small amounts of drugs that are sometimes found in rental properties, the State
Attorney's Office is not able to penalize a landlord that facilitates these criminal
activities.
The original ordinance only addressed the drug portion of Florida State Statute 893.138.
However Florida State Statute 893.138 specifically addresses drugs, prostitution, gang
activity and dealing in stolen property (Sec. 2-167 Complaints, Hearings and Declaration
of Public Nuisance).
The proposed changes to this ordinance will help to reduce drug and prostitution
problems along the Mayport Corridor. This will be accomplished by making the owner of
the property aware, and subsequently liable for future problems concerning violations of
drugs, prostitution, dealing in stolen property and gang activity that are repeat violations.
Once the owner is aware of the violations, the owner is obligated to abate these criminal
activities
In 1989 the City of Atlantic Beach established a Public Nuisance Control Board per
Florida State Statute 893.138 to address nuisance complaints concerning drugs.
The Nuisance Control Board convened on one occasion in 1990 to address a drug
complaint and never met again.
Since the Public Nuisance Control Board is no longer active, it is proposed that the Code
Enforcement Board should be designated to act as the Nuisance Control Board to hear
complaints under this ordinance (Sec. 2-162 Membership). In many other Cities within
the State of Florida the code enforcement board is designated to act as the nuisance
control board as well.
AGENDA ITEM # 8C
APRIL 27, 2009
BUDGET: There is no budget for this action.
RECOMMENDATIONS: Authorize staff to prepare an amendment to the Public
Nuisance Control Board Ordinance for first reading.
ATTACHMENTS:
1. Amended draft of Ordnance 95-89-40 with strikeout and underlined text.
2. Florida State Statute 893.138 Local Administrative Action
3. Florida State Statute 60.05 Nuisance Abatement
4. Florida state Statute 893.13 Drug Prohibited Acts
5. Florida state Statute 796.07 Prostitution
6. Florida state Statute 874.03 Criminal Gangs
7. Florida state Statute 812.019 Dealing in Stolen Property
REVIEWED BY CITY MANAGER:
AG DA ITEM NUMBER:
AGENDA ITEM # 8C
APRIL 27, 2009
ORDINANCE NO. 09
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA,
AMENDING CHAPTER 2, ADMINISTRATION, ARTICLE V, BOARDS
AND COMMISSIONS, DIVISION 3, NUISANCE CONTROL BOARD,
PROVIDING FOR THE CODE ENFORCEMENT BOARD TO ALSO
CONSTITUTE THE NUISANCE CONTROL BOARD, AMENDING
PUBLIC NUISANCES TO CONFORM WITH FLORIDA STATUTES,
AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE CITY COMMISSION ON BEHALF OF THE PEOPLE OF
THE CITY OF ATLANTIC BEACH, FLORIDA:
SECTION 1: Division 3, Nuisance Control Board, consisting of Sections 2-161 through
2-170, of the Code of Ordinances of the City of Atlantic Beach, Florida, is hereby
amended to read as follows:
"DIVISION 3. NUISANCE CONTROL BOARD
Sec.2-161. Created.
Pursuant to Florida Statutes Section 893.138, an administrative board to be known
as the "Public Nuisance Control Board" is hereby created. The word "board" when used
in this ordinance shall be construed to mean the said "Public Nuisance Control Board."
(Ord. No. 95-89-40, § 1, 6-12-89)
Sec. 2-162. Membership; r
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AGENDA ITEM # 8C
APRIL 27, 2009
The members of the Code Enforcement Board shall constitute the members of the
Public Nuisance Control Board.
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Sec. 2-167. Complaints; hearings; declaration of public nuisance.
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(a) The board shall hear complaints re ardin~ certain nuisances as described
herein. Anyplace or premises that has been used•
On more than two occasions within a 6-month period as the site of a violation of
FSS. 796.07 prostitution;
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•
On more than one occasion as the site of the unlawful possession of a controlled
substance, where such possession constitutes a felony and that has been previouslyused
on more than one occasion as the site of the unlawful sale delivery, manufacture or
cultivation of any controlled substance under FSS 893•
By a criminal yang for the purpose of conducting criminal ang activity as
defined by FSS. 874.03; or
On more than two occasions within a 6-month period as the site of a violation of
FSS. 812.019 relating to dealing in stolen property
AGENDA ITEM # 8C
APRIL 27, 2009
may be declared to be a public nuisance and such nuisance may be abated pursuant to the
procedures provided in this section.
(b) Any employee, officer or resident of the city may bring a complaint before
the board after giving not less than three (3) days' written notice of such complaint to the
owner of the place or premises at his last known address. Any such complaint shall be
filed with the Code Enforcement Officer.
(c) The board shall conduct a hearing during which the owner of the premises
shall have an opportunity to present evidence in his defense. After considering any
evidence, including evidence of the general reputation of the place or premises, the board
may declare the place or premises to be a public nuisance as described herein.
(d) If the board declares a place or premises to be a public nuisance, it may enter
an order immediately prohibiting:
(1) The maintaining of the nuisance;
(2) The operating or maintaining of the place or premises; or
(3) The conduct, operation or maintenance of any business or activity on the
premises which is conducive to such nuisance. Any such order entered shall expire after
one year or at such earlier time as stated in the order.
Sec. 2-168. Permanent injunctions.
The City may bring a complaint under Florida Statutes Section 60.05
seeking a permanent injunction against any nuisance described herein.
Sec.2-169. Restrictions.
This division does not restrict the right of any person to proceed under Florida
Statutes Section 60.05 against any public nuisance."
SECTION 2: This Ordinance shall take effect immediately upon its final passage and
adoption.
PASSED by the City Commission on first reading the day of April, 2009.
PASSED by the City Commission on second and final reading the day of
2009.
ATTEST:
DONNA L. BARTLE, CMC
City Clerk
JOHN S. MESERVE
Mayor, Presiding Officer
3
AGENDA ITEM # 8C
APR[L 27, 2009
Approved as to form and correctness:
ALAN C. JENSEN, ESQUIRE
City Attorney
AGENDA ITEM # 8C
APRIL 27, 2009
The 2008 Florida Statutes
Title XLVI Chapter 893
CRIMES DRUG ABUSE PREVENTION AND CONTROL
893.138 Local administrative action to abate drug-related, prostitution-related, or stolen-
property-related public nuisances and criminal 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
in order to 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 sate, delivery,
manufacture, or cultivation of any controlled substance;
(c) On one occasion as the site of the unlawful possession 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 gang for the purpose of conducting criminal 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
AGENDA ri'EM # 8C
APRIL 27, 2009
premises or any part thereof; or
(c) The conduct, operation, or maintenance of any business 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 substance defined in s.
817.564.
(10) The provisions of this section may be supplemented by a county or municipal ordinance. The
ordinance may include, but is not limited to, provisions that establish additional penalties for
public nuisances, including fines not to exceed $250 per day; provide for the payment of
reasonable costs, including reasonable attorney fees associated with investigations of and hearings
on public nuisances; provide for continuing jurisdiction for a period of 1 year over any place or
premises that has been or is declared to be a public nuisance; establish penalties, including fines
not to exceed $500 per day for recurring public nuisances; provide for the recording of orders on
public nuisances so that notice must be given to subsequent purchasers, successors in interest, or
assigns of the real property that is the subject of the order; provide that recorded orders on public
nuisances may become liens against the real property that is the subject of the order; and provide
for the foreclosure of property subject to a lien and the recovery of all costs, including reasonable
attorney fees, associated with the recording of orders and foreclosure. No lien created pursuant to
the provisions of this section may be foreclosed on real property which is a homestead under s. 4,
Art. X of the State Constitution. Where a local government seeks to bring an administrative action,
based on a stolen property nuisance, against a property owner operating an establishment where
multiple tenants, on one site, conduct their own retail business, the property owner shall not be
subject to a lien against his or her property or the prohibition of operation provision if the property
owner evicts the business declared to be a nuisance within 90 days after notification by registered
mail to the property owner of a second stolen property conviction of the tenant. The total fines
imposed pursuant to the authority of this section shall not exceed $15,000. Nothing contained
within this section prohibits a county or municipality from proceeding against a public nuisance by
any other means.
AGENDA ITEM # 8C
APRIL 27, 2009
The 2008 Florida Statutes
Title VI Chapter 60
CIVIL PRACTICE AND PROCEDURE INJUNCTIONS
60.05 Abatement of nuisances.--
(1) When any nuisance as defined in s. 823.05 exists, the Attorney General, state attorney, city
attorney, county attorney, or any citizen of the county may sue in the name of the state on his or
her relation to enjoin the nuisance, the person or persons maintaining it, and the owner or agent of
the building or ground on which the nuisance exists.
(2) The court may allow a temporary injunction without bond on proper proof being made. If it
appears by evidence or affidavit that a temporary injunction should issue, the court, pending the
determination on final hearing, may enjoin:
(a) The maintaining of a nuisance;
(b) The operating and maintaining of the place or premises where the nuisance is maintained;
(c) The owner or agent of the building or ground upon which the nuisance exists;
(d) The conduct, operation, or maintenance of any business or activity operated or maintained in
the building or on the premises in connection with or incident to the maintenance of the nuisance.
The injunction shall specify the activities enjoined and shalt not preclude the operation of any
lawful business not conducive to the maintenance of the nuisance complained of. At least 3 days'
notice in writing shall be given defendant of the time and place of application for the temporary
injunction.
(3) Evidence of the general reputation of the alleged nuisance and place is admissible to prove the
existence of the nuisance. No action filed by a citizen shall be dismissed unless the court is
satisfied that it should be dismissed. Otherwise the action shall continue and the state attorney
notified to proceed with it. If the action is brought by a citizen and the court finds that there was
no reasonable ground for the action, the costs shall be taxed against the citizen.
(4) On trial if the existence of a nuisance is shown, the court shall issue a permanent injunction
and order the costs to be paid by the persons establishing or maintaining the nuisance and shall
adjudge that the costs are a lien on all personal property found in the place of the nuisance and on
the failure of the property to bring enough to pay the costs, then on the real estate occupied by
the nuisance. No lien shall attach to the real estate of any other than said persons unless 5 days'
written notice has been given to the owner or his or her agent who fails to begin to abate the
nuisance within said 5 days. In a proceeding abating a nuisance pursuant to s. 823.10 or s. 823.05,
if a tenant has been convicted of an offense under chapter 893 or s. 796.07, the court may order
the tenant to vacate the property within 72 hours if the tenant and owner of the premises are
parties to the nuisance abatement action and the order will lead to the abatement of the nuisance.
(5) If the action was brought by the Attorney General, a state attorney, or any other officer or
agency of state government; if the court finds either before or after trial that there was no
reasonable ground for the action; and if judgment is rendered for the defendant, the costs and
reasonable attorney's fees shalt be taxed against the state.
AGENDA ITEM # 8C
APRIL 27, 2009
The 2008 Florida Statutes
Title XLVI Chapter 893
CRIMES DRUG ABUSE PREVENTION AND CONTROL
893.13 Prohibited acts; penalties.--
(1)(a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell,
manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled
substance. Any person who violates this provision with respect to:
1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or
(2)(c)4., commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3.,
(2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. A controlled substance named or described in s. 893.03(5) commits a misdemeanor of the first
degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Except as provided in this chapter, it is unlawful to sell or deliver in excess of 10 grams of any
substance named or described in s. 893.03(1)(a) or (1)(b), or any combination thereof, or any
mixture containing any such substance. Any person who violates this paragraph commits a felony of
the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or
within 1,000 feet of the real property comprising a child care facility as defined in s. 402.302 or a
public or private elementary, middle, or secondary school between the hours of 6 a.m. and 12
midnight, or at any time in, on, or within 1,000 feet of real property comprising a state, county, or
municipal park, a community center, or a publicly owned recreational facility. For the purposes of
this paragraph, the term "community center" means a facility operated by a nonprofit community-
based organization for the provision of recreational, social, or educational services to the public.
Any person who violates this paragraph with respect to:
1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or
(2)(c)4., commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or
s. 775.084. The defendant must be sentenced to a minimum term of imprisonment of 3 calendar
years unless the offense was committed within 1,000 feet of the real property comprising a child
care facility as defined in s. 402.302.
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3.,
(2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. Any other controlled substance, except as lawfully sold, manufactured, or delivered, must be
sentenced to pay a $500 fine and to serve 100 hours of public service in addition to any other
penalty prescribed by law.
This paragraph does not apply to a child care facility unless the owner or operator of the facility
posts a sign that is not less than 2 square feet in size with a word legend identifying the facility as
AGENDA TEEM # 8C
APRIL 27, 2009
a licensed child care facility and that is posted on the property of the child care facility in a
conspicuous place where the sign is reasonably visible to the public.
(d) Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or
within 1,000 feet of the real property comprising a public or private college, university, or other
postsecondary educational institution. Any person who violates this paragraph with respect to:
1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or
(2)(c)4., commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or
s. 775.084.
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3.,
(2)(c)5., (2){c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. Any other controlled substance, except as lawfully sold, manufactured, or delivered, must be
sentenced to pay a $500 fine and to serve 100 hours of public service in addition to any other
penalty prescribed by law.
(e) Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance not
authorized by law in, on, or within 1,000 feet of a physical place for worship at which a church or
religious organization regularly conducts religious services or within 1,000 feet of a convenience
business as defined in s. 812.171. Any person who violates this paragraph with respect to:
1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or
(2)(c)4., commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or
s. 775.084.
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3.,
(2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. Any other controlled substance, except as lawfully sold, manufactured, or delivered, must be
sentenced to pay a $500 fine and to serve 100 hours of public service in addition to any other
penalty prescribed by law.
(f) Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or
within 1,000 feet of the real property comprising a public housing facility at any time. For purposes
of this section, the term "real property comprising a public housing facility" means real property, as
defined in s. 421.03(12), of a public corporation created as a housing authority pursuant to part I of
chapter 421. Any person who violates this paragraph with respect to:
1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or
(2)(c)4., commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or
s. 775.084.
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3.,
(2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
AGENDA ITEM # 8C
APRIL 27, 2009
3. Any other controlled substance, except as lawfully sold, manufactured, or delivered, must be
sentenced to pay a $500 fine and to serve 100 hours of public service in addition to any other
penalty prescribed by taw.
(g) Except as authorized by this chapter, it is unlawful for any person to manufacture
methamphetamine or phencyclidine, or possess any listed chemical as defined in s. 893.033 in
violation of s. 893.149 and with intent to manufacture methamphetamine or phencyclidine. If any
person violates this paragraph and:
1. The commission or attempted commission of the crime occurs in a structure or conveyance
where any child under 16 years of age is present, the person commits a felony of the first degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In addition, the defendant must be
sentenced to a minimum term of imprisonment of 5 calendar years.
2. The commission of the crime causes any child under 16 years of age to suffer great bodily harm,
the person commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084. In addition, the defendant must be sentenced to a minimum term of imprisonment of
10 calendar years.
(h) Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or
within 1,000 feet of the real property comprising an assisted living facility, as that term is used in
chapter 429. Any person who violates this paragraph with respect to:
1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or
(2)(c)4. commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3.,
(2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2)(a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to
purchase, or possess with intent to purchase, a controlled substance. Any person who violates this
provision with respect to:
1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or
(2)(c)4., commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3.,
(2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. A controlled substance named or described in s. 893.03(5) commits a misdemeanor of the first
degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Except as provided in this chapter, it is unlawful to purchase in excess of 10 grams of any
substance named or described in s. 893.03(1)(a) or (1)(b), or any combination thereof, or any
mixture containing any such substance. Any person who violates this paragraph commits a felony of
the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Any person who delivers, without consideration, not more than 20 grams of cannabis, as
AGENDA ITEM # 8C
APRIL 27, 2009
defined in this chapter, commits a misdemeanor of the first degree, punishable as provided in s.
775.082 or s. 775.083. For the purposes of this paragraph, "cannabis" does not include the resin
extracted from the plants of the genus Cannabis or any compound manufacture, salt, derivative,
mixture, or preparation of such resin.
(4) Except as authorized by this chapter, it is unlawful for any person 18 years of age or older to
deliver any controlled substance to a person under the age of 18 years, or to use or hire a person
under the age of 18 years as an agent or employee in the sale or delivery of such a substance, or to
use such person to assist in avoiding detection or apprehension for a violation of this chapter. Any
person who violates this provision with respect to:
(a) A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or
(2)(c)4., commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or
s. 775.084.
(b) A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3.,
(2)(c)5., (2)(c)b., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Imposition of sentence may not be suspended or deferred, nor shall the person so convicted be
placed on probation.
(5) It is unlawful for any person to bring into this state any controlled substance unless the
possession of such controlled substance is authorized by this chapter or unless such person is
licensed to do so by the appropriate federal agency. Any person who violates this provision with
respect to:
(a) A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or
(2)(c)4., commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
(b) A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3.,
(2)(c)5., (2)(c)b., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) A controlled substance named or described in s. 893.03(5) commits a misdemeanor of the first
degree, punishable as provided in s. 775.082 or s. 775.083.
(b)(a) It is unlawful for any person to be in actual or constructive possession of a controlled
substance unless such controlled substance was lawfully obtained from a practitioner or pursuant
to a valid prescription or order of a practitioner while acting in the course of his or her professional
practice or to be in actual or constructive possession of a controlled substance except as otherwise
authorized by this chapter. Any person who violates this provision commits a felony of the third
degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the offense is the possession of not more than 20 grams of cannabis, as defined in this
chapter, the person commits a misdemeanor of the first degree, punishable as provided in s.
775.082 or s. 775.083. For the purposes of this subsection, "cannabis" does not include the resin
extracted from the plants of the genus Cannabis, or any compound manufacture, salt, derivative,
mixture, or preparation of such resin.
(c) Except as provided in this chapter, it is unlawful to possess in excess of 10 grams of any
substance named or described in s. 893.03(1)(a) or (1)(b), or any combination thereof, or any
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mixture containing any such substance. Any person who violates this paragraph commits a felony of
the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(d) Notwithstanding any provision to the contrary of the laws of this state relating to arrest, a law
enforcement officer may arrest without warrant any person who the officer has probable cause to
believe is violating the provisions of this chapter relating to possession of cannabis.
(7)(a) It is unlawful for any person:
1. To distribute or dispense a controlled substance in violation of this chapter.
2. To refuse or fail to make, keep, or furnish any record, notification, order form, statement,
invoice, or information required under this chapter.
3. To refuse an entry into any premises for any inspection or to refuse to allow any inspection
authorized by this chapter.
4. To distribute a controlled substance named or described in s. 893.03(1) or (2) except pursuant
to an order form as required by s. 893.06.
5. To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or
other structure or place which is resorted to by persons using controlled substances in violation of
this chapter for the purpose of using these substances, or which is used for keeping or selling them
in violation of this chapter.
6. To use to his or her own personal advantage, or to reveal, any information obtained in
enforcement of this chapter except in a prosecution or administrative hearing for a violation of this
chapter.
7. To possess a prescription form which has not been completed and signed by the practitioner
whose name appears printed thereon, unless the person is that practitioner, is an agent or
employee of that practitioner, is a pharmacist, or is a supplier of prescription forms who is
authorized by that practitioner to possess those forms.
8. To withhold information from a practitioner from whom the person seeks to obtain a controlled
substance or a prescription for a controlled substance that the person making the request has
received a controlled substance or a prescription for a controlled substance of like therapeutic use
from another practitioner within the previous 30 days.
9. To acquire or obtain, or attempt to acquire or obtain, possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge.
10. To affix any false or forged label to a package or receptacle containing a controlled substance
11. To furnish false or fraudulent material information in, or omit any material information from,
any report or other document required to be kept or filed under this chapter or any record
required to be kept by this chapter.
12. To store anhydrous ammonia in a container that is not approved by the United States
Department of Transportation to hold anhydrous ammonia or is not constructed in accordance with
sound engineering, agricultural, or commercial practices.
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APRIL 27, 2009
(b) Any person who violates the provisions of subparagraphs (a)1.-7. commits a misdemeanor of
the first degree, punishable as provided in s. 775.082 or s. 775.083; except that, upon a second or
subsequent violation, the person commits a felony of the third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
(c) Any person who violates the provisions of subparagraphs (a)8.-12. commits a felony of the third
degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(8)(a) Notwithstanding subsection (9), a prescribing practitioner may not:
1. Knowingly assist a patient, other person, or the owner of an animal in obtaining a controlled
substance through deceptive, untrue, or fraudulent representations in or related to the practice of
the prescribing practitioner's professional practice;
2. Employ a trick or scheme in the practice of the prescribing practitioner's professional practice
to assist a patient, other person, or the owner of an animal in obtaining a controlled substance;
3. Knowingly write a prescription for a controlled substance for a fictitious person; or
4. Write a prescription for a controlled substance for a patient, other person, or an animal if the
sole purpose of writing such prescription is to provide a monetary benefit to, or obtain a monetary
benefit for, the prescribing practitioner.
(b) If the prescribing practitioner wrote a prescription or multiple prescriptions for a controlled
substance for the patient, other person, or animal for which there was no medical necessity, or
which was in excess of what was medically necessary to treat the patient, other person, or animal,
that fact does not give rise to any presumption that the prescribing practitioner violated
subparagraph (a)1., but may be considered with other competent evidence in determining whether
the prescribing practitioner knowingly assisted a patient, other person, or the owner of an animal
to obtain a controlled substance in violation of subparagraph (a)1.
(c) A person who violates paragraph (a) commits a felony of the third degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.
(d) Notwithstanding paragraph (c), if a prescribing practitioner has violated paragraph (a) and
received $1,000 or more in payment for writing one or more prescriptions or, in the case of a
prescription written for a controlled substance described in s. 893.135, has written one or more
prescriptions for a quantity of a controlled substance which, individually or in the aggregate, meets
the threshold for the offense of trafficking in a controlled substance under s. 893.15, the violation
is reclassified as a felony of the second degree and ranked in level 4 of the Criminal Punishment
Code.
(9) The provisions of subsections (1)-(8) are not applicable to the delivery to, or actual or
constructive possession for medical or scientific use or purpose only of controlled substances by,
persons included in any of the following classes, or the agents or employees of such persons, for
use in the usual course of their business or profession or in the performance of their official duties:
(a) Pharmacists.
(b) Practitioners.
(c) Persons who procure controlled substances in good faith and in the course of professional
practice only, by or under the supervision of pharmacists or practitioners employed by them, or for
AGENDA ITEM # 8C
APRIL 27, 2009
the purpose of lawful research, teaching, or testing, and not for resale.
(d) Hospitals that procure controlled substances for lawful administration by practitioners, but
only for use by or in the particular hospital.
(e) Officers or employees of state, federal, or local governments acting in their official capacity
only, or informers acting under their jurisdiction.
(f) Common carriers.
(g) Manufacturers, wholesalers, and distributors.
(h) Law enforcement officers for bona fide taw enforcement purposes in the course of an active
criminal investigation.
(10) Notwithstanding any provision of the sentencing guidelines or the Criminal Punishment Code
to the contrary, on or after October 1, 1993, any defendant who:
(a) Violates subparagraph (1)(a)1., subparagraph (1)(c)2., subparagraph (1)(d)2., subparagraph
(2)(a)1., or paragraph (5)(a); and
(b) Has not previously been convicted, regardless of whether adjudication was withheld, of any
felony, other than a violation of subparagraph (1)(a)1., subparagraph (1)(c)2., subparagraph
(1)(d)2., subparagraph (2)(a)1., or paragraph (5)(a),
may be required by the court to successfully complete a term of probation pursuant to the terms
and conditions set forth in s. 948.034(1), in lieu of serving a term of imprisonment.
(11) Notwithstanding any provision of the sentencing guidelines or the Criminal Punishment Code
to the contrary, on or after January 1, 1994, any defendant who:
(a) Violates subparagraph (1)(a)2., subparagraph (2)(a)2., paragraph (5)(b), or paragraph (6)(a);
and
(b) Has not previously been convicted, regardless of whether adjudication was withheld, of any
felony, other than a violation of subparagraph (1)(a)2., subparagraph (2)(a)2., paragraph (5)(b), or
paragraph (6)(a),
may be required by the court to successfully complete a term of probation pursuant to the terms
and conditions set forth in s. 948.034(2), in lieu of serving a term of imprisonment.
(12) If a person violates any provision of this chapter and the violation results in a serious injury to
a state or local law enforcement officer as defined in s. 943.10, firefighter as defined in s. 633.30,
emergency medical technician as defined in s. 401.23, paramedic as defined in s. 401.23, employee
of a public utility or an electric utility as defined in s. 366.02, animal control officer as defined in
s. 828.27, volunteer firefighter engaged by state or local government, law enforcement officer
employed by the Federal Government, or any other local, state, or Federal Government employee
injured during the course and scope of his or her employment, the person commits a felony of the
third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If the injury sustained
results in death or great bodily harm, the person commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
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APRIL 27, 2009
The 2008 Florida Statutes
Title XLVI Chanter 796
CRIMES PROSTITUTION
796.07 Prohibiting prostitution, etc.; evidence; penalties; definitions.--
(1) As used in this section:
(a) "Prostitution" means the giving or receiving of the body for sexual activity for hire but excludes
sexual activity between spouses.
(b) "Lewdness" means any indecent or obscene act.
(c) "Assignation" means the making of any appointment or engagement for prostitution or
lewdness, or any actin furtherance of such appointment or engagement.
(d) "Sexual activity" means oral, anal, or vaginal penetration by, or union with, the sexual organ of
another; anal or vaginal penetration of another by any other object; or the handling or fondling of
the sexual organ of another for the purpose of masturbation; however, the term does not include
acts done for bona fide medical purposes.
(2) It is unlawful:
(a) To own, establish, maintain, or operate any place, structure, building, or conveyance for the
purpose of lewdness, assignation, or prostitution.
(b) To offer, or to offeror agree to secure, another for the purpose of prostitution or for any other
lewd or indecent act.
(c) To receive, or to offer or agree to receive, any person into any place, structure, building, or
conveyance for the purpose of prostitution, lewdness, or assignation, or to permit any person to
remain there for such purpose.
(d) To direct, take, or transport, or to offer or agree to direct, take, or transport, any person to
any place, structure, or building, or to any other person, with knowledge or reasonable cause to
believe that the purpose of such directing, taking, or transporting is prostitution, lewdness, or
assignation.
(e) To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.
(f) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation.
(g) To reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any
conveyance, for the purpose of prostitution, lewdness, or assignation.
(h) To aid, abet, or participate in any of the acts or things enumerated in this subsection.
{i) To purchase the services of any person engaged in prostitution.
(3)(a) In the trial of a person charged with a violation of this section, testimony concerning the
reputation of any place, structure, building, or conveyance involved in the charge, testimony
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APRIL 27, 2009
concerning the reputation of any person residing in, operating, or frequenting such place,
structure, building, or conveyance, and testimony concerning the reputation of the defendant is
admissible in evidence in support of the charge.
(b) Notwithstanding any other provision of law, a police officer may testify as an offended party in
an action regarding charges filed pursuant to this section.
(4) A person who violates any provision of this section commits:
(a) A misdemeanor of the second degree for a first violation, punishable as provided in s. 775.082
or s. 775.083.
(b) A misdemeanor of the first degree for a second violation, punishable as provided in s. 775.082
or s. 775.083.
(c) A felony of the third degree for a third or subsequent violation, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
(5) A person who is charged with a third or subsequent violation of this section shall be offered
admission to a pretrial intervention program or a substance-abuse treatment program as provided
in s. 948.08.
(6) A person who violates paragraph (2)(f) shall be assessed a civil penalty of $500 if the violation
results in any judicial disposition other than acquittal or dismissal. The proceeds from penalties
assessed under this subsection shall be paid to the circuit court administrator for the sole purpose
of paying the administrative costs of treatment-based drug court programs provided under s.
397.334.
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APRIL 27, 2009
The 2008 Florida Statutes
Title XLVI Chapter 874
CRIMES CRIMINAL GANG ENFORCEMENT AND PREVENTION
874.03 Definitions.--As used in this chapter:
(1) "Criminal gang" means a formal or informal ongoing organization, association, or group that has
as one of its primary activities the commission of criminal or delinquent acts, and that consists of
three or more persons who have a common name or common identifying signs, colors, or symbols,
including, but not limited to, terrorist organizations and hate groups.
(a) As used in this subsection, "ongoing" means that the organization was in existence during the
time period charged in a petition, information, indictment, or action for civil injunctive relief.
(b) As used in this subsection, "primary activities" means that a criminal gang spends a substantial
amount of time engaged in such activity, although such activity need not be the only, or even the
most important, activity in which the criminal gang engages.
(2) "Criminal gang associate" means a person who:
(a) Admits to criminal gang association; or
(b) Meets any single defining criterion for criminal gang membership described in subsection (3).
(3) "Criminal gang member" is a person who meets two or more of the following criteria:
(a) Admits to criminal gang membership.
(b) Is identified as a criminal gang member by a parent or guardian.
(c) Is identified as a criminal gang member by a documented reliable informant.
(d) Adopts the style of dress of a criminal gang.
(e) Adopts the use of a hand sign identified as used by a criminal gang.
(f) Has a tattoo identified as used by a criminal gang.
(g) Associates with one or more known criminal gang members.
(h) Is identified as a criminal gang member by an informant of previously untested reliability and
such identification is corroborated by independent information.
(i) Is identified as a criminal gang member by physical evidence.
(j) Has been observed in the company of one or more known criminal gang members four or more
times. Observation in a custodial setting requires a willful association. It is the intent of the
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Legislature to allow this criterion to be used to identify gang members who recruit and organize in
jails, prisons, and other detention settings.
(k) Has authored any communication indicating responsibility for the commission of any crime by
the criminal gang.
Where a single act or factual transaction satisfies the requirements of more than one of the criteria
in this subsection, each of those criteria has thereby been satisfied for the purposes of the statute.
(4) "Criminal gang-related activity" means:
(a) An activity committed with the intent to benefit, promote, or further the interests of a
criminal gang, or for the purposes of increasing a person's own standing or position within a
criminal gang;
(b) An activity in which the participants are identified as criminal gang members or criminal gang
associates acting individually or collectively to further any criminal purpose of a criminal gang;
(c) An activity that is identified as criminal gang activity by a documented reliable informant; or
(d) An activity that is identified as criminal gang activity by an informant of previously untested
reliability and such identification is corroborated by independent information.
(5) "Electronic communication" has the meaning provided in s. 934.02 and includes, but is not
limited to, photographs, video, telephone communications, text messages, facsimile, electronic
mail messages as defined in s. 668.602, and instant message real-time communications with other
individuals through the Internet or other means.
(6) "Hate group" means an organization whose primary purpose is to promote animosity, hostility,
and malice against a person or persons or against the property of a person or persons because of
race, religion, disability, sexual orientation, ethnicity, or national origin.
(7) "Terrorist organization" means any organized group engaged in or organized for the purpose of
engaging in terrorism as defined in s. 775.30. This definition shall not be construed to prevent
prosecution under this chapter of individuals acting alone.
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APRIL 27, 2009
The 2008 Florida Statutes
Title XLVI Chapter 812
CRIMES THEFT, ROBBERY, AND RELATED CRIMES
812.019 Dealing in stolen property.--
(1) Any person who traffics in, or endeavors to traffic in, property that he or she knows or should
know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.082,
775.083, and 775.084.
(2) Any person who initiates, organizes, plans, finances, directs, manages, or supervises the theft of
property and traffics in such stolen property shall be guilty of a felony of the first degree, punishable
as provided in ss. 775.082, 775.083, and 775.084.
History.--s. 7, ch. 77-342; s. 1237, ch. 97-102.