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HomeMy WebLinkAboutOrdinance 2018-520 ORDINANCE NO. 2018 — 520 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AMENDING CHAPTER 195 TO CREATE ARTICLE II ENTITLED "TRESPASSING ON PUBLIC PROPERTY"; ESTABLISHING A PROCESS FOR THE ISSUANCE OF TRESPASS WARNINGS ON PUBLIC PROPERTY; PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEALER; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Sunny Isles Beach may lawfully designate the use of City facilities for activities consistent with their purpose and the City Commission seeks to maintain a safe and orderly environment of City property; and WHEREAS, the City Commission seeks to discourage unlawful, unsafe, destructive, harassing or otherwise prohibited activity on City property that interferes with the designated use of City property; and WHEREAS,the City Commission finds that the presence of individuals who have violated City ordinances, rules or regulations, or State law on public property or on private property for which the City has a public access easement creates a threat to the safety and welfare of the citizens and visitors of the City as well as the City property and facilities and therefore deem this ordinance to promote such public safety, public welfare and protection of property; and WHEREAS,the City Commission desires to provide for a method to allow for the issuance of trespass warnings for individuals committing violations of City ordinances, rules or regulations, or State law, followed by the opportunity for a hearing to address the alleged deprivation of any constitutionally protected liberty interest of such individual. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH: Section 1. Incorporation of Recitals: The foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this ordinance upon adoption hereof. From and after the effective date of this ordinance,the Code of Ordinances of the City of Sunny Isles Beach, shall be, and is hereby amended to include Chapter 195, Article II entitled "Trespass on Public Property". Section 2. Purpose: The Purpose of this Chapter is to stop any unlawful, unsafe, destructive, harassing or otherwise prohibited activity on City property that interferes with the designated use of City property or the efficient rendering of public services. Article II Trespassing on Public Property Section 1. Definitions The following words, terms and phrases when used in this Chapter shall have the meanings ascribed to them in this chapter, except where the context clearly indicated a different meaning: CITY- The term City means the City of Sunny Isles Beach. CITY MANAGER—The City Manager of the City of Sunny Isles Beach or designee. HEARING MASTER — A person contracted by the City to make a decision on the trespass warning appeal. POLICE OFFICER—Shall mean any law enforcement officer of the City of Sunny Isles Beach or any other sworn law enforcement officer certified pursuant to Chapter 943, Florida Statutes. RIGHT-OF-WAY—For the purpose of this section, right-of-way shall include those sidewalks which are closets to a paved street, provided that the street side edge of the sidewalk is within (20) twenty feet of the curb line closest to the property. TRESPASS — Shall have the same meaning as defined in Chapter 810, Florida Statutes, as may be amended from time to time. TRESPASS WARNING — Shall mean a written document that bars the person who received it from entering or remaining on the specified City property. Section 2. Trespassing on Public Property A. Issuance of Trespass Warning: Police Officers are authorized to issue a trespass warning to any individual who violates any City ordinance, rule or regulation, or State law or lawful directive of a City employee or official which violation was committed while on or within a City facility, building, or outdoor area, including municipal parks, (but excluding rights-of-way), for the specific property where the violation occurred. B. Receipt of Trespass Warning: A copy of the trespass warning shall be provided by mail or hand delivery to the individual and to the City employee or official having control over the City park, facility, building, or outdoor area. The written trespass warning shall advise the individual of the right to appeal and the location and telephone number for filing the appeal. C. Time Period of Trespass Warnings: (a) For the first violation, the individual may be issued a trespass warning for a period not to exceed one (1) year. (b) For the second or subsequent violation, the individual may be issued a trespass warning for a period not to exceed two (2) years. D. Violation of Trespass Warning: Any person found on or within any City facility, building, or outdoor area, including municipal parks, in violation of a trespass warning may be arrested for trespassing, except as otherwise provided in this section. E. Permissible Entrance after Issuance of Trespass Warning: The City employee or official having control over a City facility, building, or outdoor area, including municipal parks, may upon request, authorize an individual who has received a trespass 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. F. Right-of-Way: This section shall not be construed to limit the authority of any Police Office to issue a trespass warning to any person for any lawful reason for any City property, including rights-of way when closed to general vehicular or pedestrian use,when necessary or appropriate in the sole discretion of the Police Officer; nor shall this Section be construed to limit the authority of any Police Officer to arrest or cite individual for violating any section of the City Code or the Florida Statutes. Section 3. Appeal Process of Trespass Warning Any person to whom a trespass warning is issued under this section shall have the right to appeal it. A. Requirement to File an Appeal: (a) An appeal of the trespass warning must be filed, in writing, within ten (10) 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 filing the appeal. (b) The appeal shall be filed at the Office of the City Clerk of the City of Sunny Isles Beach located at 18070 Collins Avenue, 4th Floor, Sunny Isles Beach, Florida 33160. B. Notice of Appeal Hearing: Within five (5) days following the filing of the appeal, the City Clerk shall schedule the hearing. Notice to the appellant will be provided in one of two ways: (a) By leaving or posting the notice at the information desk of the Sunny Isles Beach Police Department; or (b) By telephone if a telephone number has been provided. If appellant cannot be reached by telephone, then the notice at the information desk shall be sufficient. C. Commencement of Appeal Hearing: The Special Magistrate shall hold the hearing as soon as possible. In no event shall the hearing be held sooner than seven (7) days following the filing of the appeal and no later than thirty (30) days from the filing of the appeal. D. Public Records Request for Appeal Hearing: 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 trespass warning to the appellant, shall be made available upon request to the appellant at no cost. E. Appeal Hearing: (a) The appellant shall have the right to attend with an attorney, to testify and to call witnesses, cross examine witnesses, and present evidence. The appellant shall have the right to bring a court reporter, at appellant's own expense. (b) 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. (c) The City shall bear the burden of proof by a preponderance of the evidence that the trespass warning was properly issued pursuant to the criteria of this section. (d) If the appellant fails to attend a scheduled hearing, the Special Magistrate shall review the evidence presented and determine if the trespass warning was properly issued pursuant to the criteria of this section. F. Decision of Appeal: (a) Within five (5) 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. If no address is provided, a copy of the decision shall be posted at the information desk of the Sunny Isles Beach Police Department. (b) 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 by the appellant. The City may not appeal any decision of the Special Magistrate. (c) The trespass warning shall remain in effect during the appeal and review process, including any judicial review. Section 3. Inclusion in the Code. It is the intention of the City Commission, and it is hereby • ordained that the provisions of this Ordinance shall become and made a part of the City of Sunny Isles Beach Code; that the sections of this Ordinance may be renumbered or re-lettered to accomplish such intentions; and that the word "Ordinance" shall be changed to "Section" or other appropriate word, as required. Section 4. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clause, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 5. Repealer. All Ordinances or part of Ordinances in conflict herewith be and the same are hereby repealed Section 6. Effective Date. This Ordinance shall become effective upon adoption on second reading. PASSED AND ADOPTED on first reading the tSday of 'ebru .ry 2018. PASSED AND ADOPTED on second reading the lam"d i y of M.rch 2018. Georg: H. Scholl, Mayor ATTE i ��:•lk : Mauricio C etanc , CMC, City Clerk APPROVED AS TO FORM AND _ • L SUFFICIENCY • F- H H. G ttinot, City Attorney Moved by: V S CE r Y`kloc- OI%# Seconded by: LAM(SSl or,i6r--- (✓i A -D VOTE: Mayor Scholl ✓ (Yes) (No) Vice Mayor Goldman I (Yes) (No) Commissioner Aelion ✓ (Yes) (No) Commissioner Gatto ✓ (Yes) (No) Commissioner Svechin ✓(Yes) (No) • (I-30NY t54 , Cit of Sunn Isles Beach City Commission sy �' George``Bud"Scholl,A/ayor %- '� F 18070 Collins Avenue, Suite 250 Dana Goldman, Vice Major L1---n-z.ice:,;+ • Sunny Isles Beach; Florida 33160 Isaac Aelion, Commissioner G F- x Jeanette Gatto,Commissioner t :�; ==_ (305) 947-0606 City Hall Larisa Svechin,Commissioner (305) 949-3113 Fax y • `t- P Christopher J.Russo City Alanager � 9> - F�- `-.0,9''\C) v,P (305)947-2150 Building Department 305 947-5107 Fax Bans Ottinot,City Attorney C,T OF S ( ) iilauricio Betancur,CMC,City Clerk . MEMORANDUM • TO: The Honorable Mayor and City Commission r FROM: Hans Ottinot, City Attorney ;J -/: 10-- DATE: February 15, 2018 V RE: Ordinance Amending Chapter 195 to Create Article II Entitled Trespassing on Public Property Recommendation: This Ordinance is presented for your consideration. Reasons: The purpose of the attached Ordinance is to provide the Police Department with the tools to address the problems associated with individuals remaining on City property after the time for public use is over. Notwithstanding verbal warnings to vacate public property issued by staff, individuals have continued to occupy public property during hours when the public property is not available to the public. As such, staff is requesting the adoption of the proposed Ordinance to provide the Police Department with the ability to issue trespass warnings for violating the City Code or state law when the individual refuses to vacate public property. This Ordinance also provides the individual with the right to contest the trespass warning via an administrative hearing before a Special Magistrate. Essentially, this Ordinance is an additional tool to ensure compliance with local and state law. Please note numerous municipalities have adopted similar ordinances. This Ordinance was requested by the Police Department and the Office of the City Manager.