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Drug Nuisance Board Procedure 2002BROWN, WARD, SALZiVIA,N & WEISS, P.A. ATTORNEYS AT LAW Usher L. Brown' Suzanne D'Agresta Anthony A. Garganese° Gary S. Salzman° John H. Ward' Jeffrey S. Weiss Debra S. Babb Jeffrey P. Buak Alfred Truesdell Joseph E. Butch Scott D. Danahy Kristine Kutz Brett A. Marlowe Cheyenne R. Young 'Board Certifed Civil Trial Lawyer °Boazd Certified Business Litigation Lawyer °Boazd Certified City, County & Local Government Law Nlay 20, 2002 Two Landmark Center 225 East Robinson Street, Suite 660 Post Office Box 2873 Orlando, FL 32802-2873 Telephone: (407) 425-9566 Facsimile: (407) 425-9596 Email: firm~u:.orlandolaw.net Website: www.orlandt~law.uet Cocoa: 866-425-9566 This document is presented by the City Attorney as a general guide for prosecuting drug nuisance cases before the City of Cocoa Drug Nuisance Board. Each case may have circumstances which require variations to the general procedures provided below. CITY OF COCOA DRUG NUISANCE BOARD PROCEDURE I. Code enforcement in conjunction with Police Department ("Staff') shall identify property with potential violation of Section 893.138, Florida Statutes. 1. Violation =Property used on more than two occasions, within six month period for: a. Prostitution (797.07, Florida Statutes); b. Sale, delivery, manufacture or cultivation of any controlled substance; c. Conducting pattern of youth and/or street gang activity; or d. One occasion of possession of any controlled substance constituting a felony and more than one occasion of sale, delivery, manufacture or cultivation of any controlled substance. May 20, 2002 Page 2 II. Staff confers with City Attorney's office to conduct preliminary review of alleged violation of Section 893.138, Florida Statutes. Staff provides preliminary evidence of violation. IF: Staff provides prima facie case that a violation has occurred.' III. Code enforcement notifies property owner of probable violation and makes recommendations to the property owner to abate public nuisance (First Notice) Written notification and recommendations by Certified Mail (Return Receipt Requested); Staff works with property owner to implement recommendations, and abate nuisance, if possible. IF.' Property owner fails to implement recommendations and/or nuisance continues: IV. Police Department sends evidentiary materials, in final form, to City Attorney's office for final review. Eor each particular drug, prostitution, or gang violation on the property, the following documents shall be provided that are legible and certified (attested to as true and correct copies of public records) by the Department's Clerk or State Attorney's office. a. A probable cause affidavit written and signed by the arresting officer; b. A prosecution/witness affidavit signed by the arresting officer; A Cocoa Police incident report written and signed by the arresting officer; d. If drug violation, an FDLE lab report regarding the controlled substance which was the basis of the arrest; e. Written proof that charges were filed by the State Attorney regarding the arrest in question; tilay 20, 2002 Page 3 f. Written documentation from the State Attorney or Court regarding the disposition of the arrest (i. e. was the defendant found guilty or not guilty), if available; and g. A Cocoa Police summary incident report of the property for the past six (6) months should be provided to demonstrate the bad reputation of the property. h. V. Upon City Attorney approval, Police Department sends property owner a notice to appear before Drug Board (Second Notice). 1. Written notice by Service of Process and/or Certified Nlail (Return Receipt Requested) at least 20 days prior to Board hearing. VI. City Attorney's office prepares prosecution of case before Board and with the advice of the Staff finalizes an Order to recommend to the Board if prosecution is successful. Staff provides documents to support Recommended Orders (e.g. site plans, maps, agreement to authorize police trespass warnings). VII. City Attorney prosecutes Case before Drug Board. 1. Introduction of written evidentiary materials; 2. Arresting Police Officer's testify before the Board for each arrest; 3. Staff testifies to non-arrest matters, if necessary. VIII. It' prosecution is successful. 1. Board's Secretary sends the property owner an executed copy of the Board's Order by Certified Mail (Return Receipt Requested); 2. Staff insures Order implemented and monitors property for further public nuisance violations of Section 893.138, Florida Statutes. 3. Board's Secretary maintains full and complete record of hearing (e.g. original evidence, executed Order, minutes, tape recording, etc.) Nlay 20, 2002 Page 4 IF further violations occur: LY. Additional Drug Board hearings if deemed necessary by Staff and further Board action if deemed appropriate under the circumstances. Y. File complaint in Circuit Court to enforce Board's Order or seek injunctive or other relief from Circuit court, if deemed necessary by City Manager and/or City Council. ARTICLE X. DRUG-RELATED PUBLIC NUISANCE BOARD* *Editor's note--Ordinance No. 13-92, adopted Nov. 10, 1992, did not specifically amend the Code; hence, codification of § 1 as Art. X, §§ 2-391--2-394, was at the discretion of the editor. Section 1 of Ord. No. 13-93, adopted Oct. 26, 1993, further amended Ord. No. 13-92, adopted Nov. 10, 1992, by deleting § 5 thereof, which pertained to sunset provisions regarding the drug-related public nuisance board. Said § 5 was not codified herein. Cross reference(s)--Code enforcement board, § 6.3-1 et seq.; nuisances, Ch. 13.5. Sec. 2-391. Establishment; membership; meetings. (a) Pursuant to Florida Statutes, Section 893.138, the code enforcement board of the city is hereby designated and established as the drug-related public nuisance board (hereinafter referred to as "board"), and shall act as the city's administrative board to hear complaints regarding nuisances as provided for herein. (b) The terms of office of the board members shall coincide with the terms of office of the code enforcement board members. (c) At the first meeting of the board, and annually thereafter, the board members shall elect a chairman and a vice chairman. The presence of four (4) members or more shall constitute a quorum. A quorum shall be required for the board to take action other than to adjourn, and provided three (3) members are present to schedule the next meeting. (d) The board shall establish a schedule of regular meetings at such intervals as the board may determine, but not less frequently than once every two (2) months. Regular meetings may be canceled by the chairman if there is no business to come before the board. (e) Minutes shall be maintained at all meetings and hearings held by the board; and all meetings, hearings, and proceedings shall be opened to the public. (f) The city manager shall provide such clerical and administrative support to the board as may be reasonably required for the proper performance of the board's duties. (Ord. No. 13-92, § 1, 11-10-92) Sec.2-392. Powers. The drug-related public nuisance board shall have the powers as delineated in Florida Statutes, Section 893.138, which shall include, but not be limited to, the following: (1) Adopt rules for the conduct of its hearings. (2) Subpoena alleged violators and witnesses to its hearings. (3) Subpoena records, surveys, plats, or other documentary evidence which subpoenas shall be served by the police department. (4) Take testimony under oath. (5) Issue orders having force and effect of law commanding whatever steps are necessary to bring a violation into compliance. (6) Establish and levy fines. (Ord. No. 13-92, § 1, 11-10-92) Sec. 2-393. Enforcement procedure hearing. (a) Any place or premises which has been used on more than two (2) occasions, within a six-month period, as a site of the unlawful sale or delivery of controlled substances or as the site of a violation of Section 796.07, Florida Statutes, or any place or building used by a youth or street gang for the purpose of conducting a pattern of youth and street gang activity 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 or officer of the city or resident of the county or city may bring a complaint before the board. (c) The city shall, at least twenty (20) days prior to the hearing at which the complaint shall be heard, provide written notice of such complaint to the owner(s) of the place or premises which is the subject of the complaint at the owner(s) last known address. (d) At the hearing, the board may consider any evidence, regarding the activities occurring about the premises, and the owner(s) of the premises shall have the opportunity to present evidence in defense. All testimony shall be taken under oath and shall be recorded. The board shall take testimony of such witnesses as may be called by the respective sides. Formal rules of evidence shall not apply, but fundamental due process shall be observed and govern said proceedings. (e) At the conclusion of the hearing, the board shall issue findings of fact based on evidence in the record and conclusions of law, and shall issue an order affording the proper relief consistent with the powers granted by Florida Statutes and by this section. The order shall be stated orally at the meeting and shall be reduced to writing and mailed to the alleged violator within ten (10) days after the hearing. The finding shall be by motion and approved by a majority of those present and voting; provided, however, that at least three (3) affirmative votes of members of the board must be received in order for an action declaring a nuisance to be official. (f) 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. (Ord. No. 13-92, § 1, 11-10-92; Ord. No. 13-93, §§ 2, 3, 10-26-93) Sec.2-394. Penalties. (a) The drug-related public nuisance board may, upon notification by the secretary of the board that a previous order of the board has not been complied with, order the violator to pay a fine not to exceed two hundred fifty dollars ($250.00) for each day the violator continues past the date set by the board's order for compliance. (b) A certified copy of an order imposing a fine may be recorded in the public records of the county, and thereafter shall constitute a lien against the land on which the violation exists. (c) The board may further bring a complaint under Florida Statutes, Section 60.05, seeking a permanent injunction against any nuisance as described in paragraph (f) of section 2-393 above. This section does not restrict the right of any person to proceed under Florida Statutes, Section 60.05, against any public nuisance. (Ord. No. 13-92, § 1, 11-10-92) Secs.2-395--2-400. Reserved. DRUG-RELATED PUBLIC NUISANCE BOARD CITY OF COCOA, FLORIDA CASE NO.: THE CITY OF COCOA, A Florida municipal corporation, Complainant, v. Owner of the Property located at: Respondent. STATEMENT OF VIOLATION PURSUANT to Section 893.138, Florida Statutes, and Chapter 2, Article X, of the City of Cocoa Code of Ordinances, the undersigned Code Officer hereby gives notice of a violation of the aforesaid state and local law, as more specifically described herein. Respondent(s) is/are hereby notified that unless the public nuisance(s) described below is/are voluntarily abated, Respondent(s) shall be further notified to attend a hearing before the Drug-Related Public Nuisance Board where an order may be entered requiring the Respondent(s) to abate the nuisance or may prohibit certain activities upon the premises. Place or Premises where violation exists: 2. Name and address of owner of Place or Premises where violation exists: Description of violation: Place or Premises, as stated in paragraph 1, has been used on more than two (2) occasions within a six (6) month period for: 4. Recommendations for the abatement of the public nuisance(s) described above: If you have any questions regarding this Statement of Violation or the recommendations contained herein do not hesitate to contact the below signed Code Enforcement Officer. Code Enforcement Officer Date: F:\Lawyer\jeHb\City of CocoatDrug Nuisance\First Violation Notice.wpd DRUG-RELATED PUBLIC NUISANCE BOARD CITY OF COCOA, FLORIDA CASE NO.: THE CITY OF COCOA, A Florida municipal corporation, Complainant, v. Owner of the Property located at: Respondent. STATEMENT OF VIOLATION Final Notice PURSUANT to Section 893.138, Florida Statutes, and Chapter 2, Article X, of the City of Cocoa Code of Ordinances, the undersigned Police Officer hereby gives notice of a violation of the aforesaid state and local law, as more specifically described herein. Respondent(s) have previously been notified by the Code Enforcement Department for the City of the existence of a pubic nuisance upon the Property or Premises, and Respondents have either failed to voluntarily abate such nuisance(s) or allowed such nuisance(s) to continue. Respondent(s) are hereby notified this violation shall be heard before the Drug-Related Public Nuisance Board as provided on the attached Notice of Hearing. Place or Premises where violation exists: 2. Name and address of owner of Place or Premises where violation exists: Description of violation: Place or Premises, as stated in paragraph 1, has been used on more than two (2) occasions within a six (6) month period for: Recommendations for the abatement of the public nuisance(s) described above: Police Officer Date: F:1Lawyer\jef~blCity of Cocoa' Drug Nuisance\Final Violation Notice.wpd DRUG-RELATED PUBLIC NUISANCE BOARD CITY OF COCOA, FLORIDA THE CITY OF COCOA, A Florida municipal corporation, Complainant, v. Owner of the Property located at: Respondent. ORDER CASE NO.: THIS CAUSE having come on for consideration, after being duly noticed, before the Drug Related Nuisance Board of the City of Cocoa, Florida, on , 2002, for the determination of whether the Respondent(s) property is a public nuisance. The Board having heard the arguments of the parties and the evidence presented and having reviewed the record and being otherwise fully advised, it is ORDERED that Respondent's property be declared a public nuisance pursuant to Section 893.138, Florida Statutes, and Cocoa Code Chapter 2, Article X; ORDERED that Respondent pay a fine to the City of Cocoa -pursuant to Cocoa Code Section 2-394 - of Two Hundred Fifty Dollars ($250.00) for each incident of the unlawful sale, delivery, manufacture, or cultivation ofany controlled substance (defined by Section 893.138, Florida Statutes) or unlawful possession of a controlled substance constituting a felony occurring on the Respondent's property located at , AFTER ; ORDERED that Respondent adopt and institute all necessary procedures available to immediately prohibit the maintenance of the public nuisance ofthe Respondent's property located at including those specific procedures identified in "Appendix A" which is attached hereto and incorporated herein by reference; ORDERED that Respondent personally appear at the Drug-Related Public Nuisance Board's regularly scheduled meeting in _, to report all specific procedures adopted and initiated in furtherance of this Order; ORDERED that this Order shall remain in full force and effect far a period of one (1) year beginning on _, and ending one (1) year later on _, unless sooner rescinded by a similar Order by the Drug-Related Public Nuisance Board; ORDERED that this Order shall be posted, in open view of the public, at the place, building, or premises where the public nuisance exists in violation of the law; ORDERED that the Drug-Related Public Nuisance Board hereby reserves the right to take further necessary action against the Respondent to enforce this Order and abate the aforementioned public nuisance, in accordance with Section 893.138, Florida Statutes, and Cocoa Code Chapter 2, Article X. DONE AND ORDERED in the City Council Chambers at Cocoa, Brevard County, Florida, this day of . HIRAM REED, JR., Chairman Copies furnished to ,Respondent City of Cocoa, Community Development Department APPENDIX A Require that a security guard be placed on the property during hours of operation. Require that signs be placed inconspicuous locations on the property stating that no loitering or drinking of alcoholic beverages is permitted on the premises. Require that new lighting be placed in the parking area to properly illuminate the property. The amount of illumination shall be approved by the Police Department. 4. Require that the exterior of the premises shall be cleaned on a daily basis with proper trash containers in place to discourage littering. Require that parking be restricted to individuals shopping at the business with a thirty minute time limit sign posted in the parking lot. 6. Restrict hours of operation.