Item 7AAGENDA ITEM # 7A
MAY 26, 2009
STAFF REPORT
City of Atlantic Beach
Commission Meeting
Ordinance 95-09-99
AGENDA ITEM: Issues Regarding the PUBLIC NUISANCE CONTROL BOARD
Ordinance.
DATE: May 25th, 2009
SUBMITTED BY: Dale Hatfield Community Redevelopment Coordinator
David E. ThG~ o}~son, Asst. City Manager
BACKGROUND:
One of the primary concerns expressed about the proposed ordinance is the need to assure
that landlords are provided with the information, authority, and the reasonable time to
take significant steps to abate the nuisance. A review of the process, by way of example,
maybe helpful in understanding how these factors will be considered in the event of
multiple offenses at a rented location.
Example: A landlord rents a house to an individual. At that time, the landlord
has no reason to believe that the new tenant is going to violate the law.
The Police Department makes a drug buy out of the house where the tenant is
living. The Police Department then notifies the landlord and tells him/her about
the criminal offense, and offers to meet with the landlord to provide details,
evidence, information and guidance. The landlord may or may not choose to
meet with the Police Department.
At this point, the landlord is not penalized in any way. There are no hearings
and no fines levied against the landlord regardless of his/her decision. On a first
offense, there is an assumption that the landlord is an innocent party that had no
knowledge of the criminal activity.
Three (3) months later, the Police Department makes a controlled drug buy out of
the same house which is occupied by the same tenant. The Police Department
notifies the landlord of the criminal offense, and offers to meet with the landlord.
At this point, if the landlord does not take significant steps to abate the nuisance,
then the Police Department may refer the case to the Public Nuisance Control
Board for a hearing.
The Public Nuisance Control Board will listen to the evidence from the affected
parties, and it will apply the applicable laws and standards to the case. One of the
decisions that the Public Nuisance Control Board will make is whether or not the
AGENDA ITEM # 7A
MAY 26, 2009
landlords had "reasonable time" to address the problem. This will be taken into
consideration along with what specific actions were taken by the landlord to
resolve the matter.
Summary: The proposed language and process provide protection for the
innocent landlords. The only circumstance that will invoke the Public Nuisance
Control Board is when a landlord has been fully informed of the repeated criminal
offenses, and that landlord chooses not to take significant action to abate the
nuisance. At that point, the case will be referred to the Public Nuisance Control
Board which is comprised of private citizens. They will hear the case and make
decisions at that time.
Option: It is feasible to add language to the proposed ordinance specifically clarifying
some of the issues. For example, language can be added that states that the landlord must
take substantial action to abate the nuisance within thirty (30) calendar days of
notification of the second offense by the Police Department. This establishes a specific
timeframe that would not be subject to broad interpretation.
Language can also be added to clarify that "significant action" includes, but is not limited
to initiating eviction proceedings to remove the tenant from the dwelling. This takes into
account that a landlord is limited by the law, and eviction requires specific steps and
timeframes. The fact that the process has been initiated should be recognized as
"significant action" even though the tenant may still be living in the dwelling.
Miscellaneous Issues: Several additional questions have been received via email, and
the following discussion is intended to address those concerns:
Enacting a new Ordinance -The ordinance establishing a Public Nuisance Control Board
is already in the city code. The City of Atlantic Beach enacted a code establishing the
Public Nuisance Control Board ordinance in 1989. The proposed changes are to intended
to establish the membership of the board and to make the offenses consistent with state
law.
Landlord/Tenant Attorney has not reviewed ordinance -The city's Nuisance Control
Board ordinance is taken from Florida State Statue 893.138 which was enacted in 1980.
Since 1980 the law has been amended twice, "dealing in stolen property" and "gang
activity" verbiage was added to the law to help abate that criminal activity as well. This
law has been upheld by the Florida Supreme Court.
Loge used in the ordinance -All of the verbiage used in the ordinance is taken from
Florida State Statute 893.138
Landlord breaking any laws in F.S.S. 83 -Florida State Statute 83 is the Landlord and
Tenant Law. The statute provides an avenue to remove tenants in section
83.56 Termination of rental agreement:
AGENDA ITEM # 7A
MAY 26, 2009
"(2) (a) Examples of noncompliance which are of a nature that the tenant should not be
given an opportunity to cure include, but are not limited to, destruction, damage, or
misuse of the landlord's or other tenants' property by intentional act or a subsequent or
continued unreasonable disturbance. In such event, the landlord may terminate the rental
agreement, and the tenant shall have 7 days from the date that the notice is delivered to
vacate the premises. "
Once city staff has made the landlord aware that criminal activity is taking place on their
property, the landlord can use Statute 83 to abate the problem. Additionally statute 83
also states:
"Nothing in this act shall be construed as in any manner impairing or affecting the right
of parties to create additional rights, duties, and obligations in and by virtue of a rental
agreement ".
This language authorizes the landlord to add a lease addendum when renewing a lease
that can contain language prohibiting illegal activity on the rental property. There are
several avenues for a landlord to abate criminal activity on their property. Both of the
listed statutes work hand in hand to provide relief for the property owner and the other
residents of the neighborhood.
Tenant is not convicted of a crime -..Per Florida State Statute 893.138:
"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). 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 .
Per the above statute, no conviction is required. The City of Atlantic Beach policy is that
the police department will investigate any complainants that come before the board, and
two narcotic or prostitution violations will have to take place within a six month period
for action to be taken before the board.
Why anyone is is allowed to make acomplaint -Per Florida State Statute 893.138:
"Any employee, officer, or resident of the county or municipality may bring a complaint
before the board ".
AGENDA ITEM # 7A
MAY 26, 2009
How does fining a landlord stop crime? -The language below is from the Florida State
Senate report on Florida State Statute 893.138. Its intent is to hold landlords responsible
for knowingly facilitating criminal activity to continue on their property. A landlord can
only be fined when they refuse to try and abate criminal activity on their property.
"The provisions of s. 893.138, F.S., provide local governments with an administrative
tool to assist in enforcing nuisance ordinances whose purpose is preventing or abating
activities related to drug-abuse, prostitution, dealing in stolen property and criminal
street gangs. This section is intended to promote, protect, and improve the health, safety,
and welfare of the citizens of the state's counties and municipalities ".
BUDGET: There is no budget for this action.
RECOMMENDATIONS: Amend Ordinance 95-89-40 (Sec. 2-167 Complaints,
Hearings and Declaration of Public Nuisance) by changing the language to include all of
the enumerated offenses contained in Florida State Statute 893.138 and change the
membership of the Nuisance Control Board (Sec. 2-162 Membership) to read the
Members of the Code Enforcement Board shall constitute the members of the Public
Nuisance Control Board.
REVIEWED BY CITY MANAGER:
AGE A ITEM NUMBER:
AGENDA ITEM # 7A
MAY 26, 2009
ORDINANCE NO. 95-09-99
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; ~emeval:
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The members of the Code Enfor~e~ent Board shall constitute the members of the Public
Nuisance Control Board.
AGENDA ITEM # 7A
MAY 26, 2009
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Sec. 2-167. Complaints; hearings; declaration of public nuisance.
(a) The board shall hear complaints re ardin cgL ertaain nuisances as described herein.
Any place or premises that has been used: '
On more than two occasions within a 6-month period, as the site of a violation of FSS.
796.0? prostitution;
On more than two occasions within a 6-month period, as the site of the unlawful sale,
delivery manufacture or cultivation of anX 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 previously used on more
than one occasion as the site of the unlawful salt delivery manufacture or cultivation of any
controlled substance under FSS. 893;
By a criminal yang; for the purpose of conducting criminal gang 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.
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
Ordinance No. 95-09-99 2
AGENDA ITEM # 7A
MAY 26, 2009
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 beam Ci '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 May, 2009.
PASSED by the City Commission on second and final reading the day of , 2009.
ATTEST:
DONNA L. BARTLE, CMC
City Clerk
Approved as to form and correctness:
ALAN C. JENSEN, ESQUIRE
City Attorney
JOHN S. MESERVE
Mayor, Presiding Officer
Ordinance No. 95-09-99 3