Loading...
HomeMy Public PortalAboutOrdinance 2023-0649 - Trespass Ordinance Second ReadingORDINANCE NO. 2023-649 AN ORDINANCE OF THE VILLAGE COUNCIL OF BAL HARBOUR VILLAGE, FLORIDA AMENDING CHAPTER 2 OF THE VILLAGE CODE TO CREATE SECTION 2-113 "TRESPASS" OF CHAPTER 2 "ADMINISTRATION", ARTICLE IV "OFFICERS AND EMPLOYEES," DIVISION 2 "POLICE", SO THAT VILLAGE POLICE MAY TRESPASS INDIVIDUALS FROM PUBLIC PROPERTY IN THE VILLAGE; PROVIDING FOR SEVERABILITY, INCLUSION IN THE VILLAGE CODE, CONFLICT, AND FOR AN EFFECTIVE DATE. (SECOND READING) WHEREAS, a person who remains in a property, structure, or conveyance in defiance of an order to leave, personally communicated to that person by the owner or an authorized person, commits the offense of trespass pursuant to Sections 810.08 and 810.09, Florida Statutes; and WHEREAS, the Village seeks to assure that its police department has all the powers necessary to maintain peace and order at public properties, structures, and conveyances in the Village; and WHEREAS, the Village therefore seeks to amend its Code of Ordinances to authorize its police department to issue trespass orders on public properties in the case of violations of law or a threat to public safety or welfare, and to specify rules of interpretation, standards and procedures related to trespass orders; and WHEREAS, this Ordinance amends the Village Code of Ordinances to provide authorization forthe police department through its police officers to trespass persons from public properties and to provide procedures for appeal of trespass orders. NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF BAL HARBOUR VILLAGE, FLORIDA, AS FOLLOWS: Section 1. Recitals Adopted. That the above stated recitals are hereby adopted and confirmed. Section 2. Village Code Amended - Chapter 2. That Section 2-113 "Trespass" of Chapter 2 "Administration", Article IV "Officers and Employees," Division 2 Bal Harbour Village Ordinance 2023-649 VER: 7 1 "Police" of the Code of BaI Harbour Village, Florida, is hereby amended to read as follows:' CHAPTER 2 -ADMINISTRATION ARTICLE IV. - OFFICERS AND EMPLOYEES DIVISION 2. - POLICE Sec. 2-113. -Trespass. (a) Authorization. (1) Interpretation. This section is not intended to, and shall not be construed to, inhibit or deny otherwise lawful expression or other lawful activity guaranteed by the federal or state Constitutions. Nothing in this section is intended to limit the statutory authority of a police officer to issue trespass warnings or orders, or to enforce trespass laws in the manner provided in general law. This section shall not be construed to limit the authority of a police officer to issue a trespass order to any person for any lawful reason for any public 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. (2) Police Department authorized. The Village's Police Department and its police officers are authorized to act as agents of the Village, and issue trespass orders for all public property, structures, and conveyances in the Village. (b) Trespass. Whoever, without being authorized, licensed, or invited, willfully enters or remains in any public property, structure, or conveyance, or, having been authorized, licensed, or invited, is ordered by a police officer to depart and refuses to do so, commits the offense of trespass pursuant to Florida Statutes Sections 810.08 and 810.09. Violators of this subsection shall be deemed trespassers, and may be ordered to be banished from the location of the trespass. (c) Trespass Orders. A Trespass Order ("Order') is the written embodiment of the trespass warning issued, banishing a person from Village property. A copy of the Order, specifying the duration of banishment and the location(s) to which the trespass order applies, shall be provided by mail or hand delivery to the individual and to the Village Manager or ' Additions to existing Village Code text are shown by underline; deletions from existing Village Code text are shown by StFikethFOUgh. Any changes between first and second reading are shown by highlighted double underline and font. Bal Harbour Village Ordinance 2023-649 VER: 7 designee within 7 calendar days of issuance. The scope and duration of banishment shall be based upon the severity of the conduct prompting the trespass order, in accordance with departmental polio (1) For the trespass incident ("Incident"), the Order may ban the individual for a period not to exceed one year. (2) For a second or subsequent Incident, the trespass order may ban the individual for a period not to exceed two years. (3) The trespass order shall apply to the location at which it was originally issued. All Orders issued pursuant to this section will be reviewed and either confirmed or revoked by the Chief or designee. The written trespass order shall advise the individual of the right to appeal, and the location and telephone number for filing the appeal. Violators of a trespass order may be subject to punishment as provided in section 1-14 of this Code, or Sections 810.08 or 810.09, Florida Statutes. (d) First Amendment activity or Village Business. A recipient of an Order may plea for a temporary reprieve of the Order for purposes of conducting business with the Village, or to participate in activities exercising his or her rights under the First Amendment. The Village Manager shall have the authority to rule on the plea. The Village Manager may authorize an individual who has received an Order to enter the property at issue if there is no other reasonable alternative location to exercise such rights or to conduct necessary Village business. Such authorization must be in writing, shall specify the duration of the authorization and any conditions thereof, and shall not be unreasonably denied. (e) Appeal Process. The Trespass Order may be appealed prior to the expiration of the period of banishment as follows: (1) An appeal of the Order must be filed with the Village Clerk, in writing, within ten days of the issuance of the Order, and shall include the appellant's name, address and phone number, if any. No fee shall be charged for filing the appeal. (2) The appeal shall be filed in writing or in person at the Office of the Village Clerk, located at 655 96th St, Bal Harbour, FL 33154. (3) Appeals shall be heard by a Special Master, as provided in Section 2-182 of the Village Code. (4) Within five days following the filing of the appeal, the Special Master shall schedule a hearing, in accordance with Section 2-187 of the Village Code. (5) Notice of the hearing shall be provided to the appellant, as provided in Section 2-187 of the Village Code, as applicable. (6) Notice shall be achieved in one of the following manners: a. Hand delivery: Bal Harbour Village Ordinance 2023-649 VER: 7 b. Certified mail, at an address provided by the appellant, c. Posting the notice at the Bal Harbour Village Hall; or d. Telephone should no address be available and if a telephone number has been provided. If the appellant cannot be reached by telephone, then notice at the information desk shall be sufficient. (7) The Special Master shall hold the hearing as soon as possible, in accordance with due process. No hearing shall be set sooner than 20 calendar days from the date of service of the Order, except as provided in section 2-183(f) of the Village Code. (8) A hearing date shall not be postponed or continued unless a request for continuance showing good cause for such continuance, is received in writing by the Special Master at least ten calendar days prior to the date set for the hearing. (9) Copies of documents in the Village's control which are intended to be used at the hearing and which directly relate to the issuance of the Order to the appellant, shall be made available to the appellant upon request. (10) The appellant and the Village shall have the right to attend with an attorney, the right to testify, to call witnesses, to cross examine witnesses and to present evidence. The appellant shall have the right to bring a court reporter, at appellant's own expense. (11) The Special Master 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. (12) The Village shall bearthe burden of proof thatthe Orderwas properly issued pursuant to the criteria of this section. (13) If the appellant fails to attend a scheduled hearing, the Special Master shall review the evidence presented and determine whether the Order was properly issued pursuant to the criteria of this section. (14) Within five business days after the hearing, the Special Master 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 trespass decision shall be posted at the information desk of the police department or at the information board at Village Hall. (15) The trespass decision of the Special Master shall constitute final Village action and the appellant shall be deemed to have exhausted all administrative remedies. Such decision is subject to judicial review in the manner provided by law for Village quasi-judicial decisions. (16) The Order and trespass decision shall remain in effect during the appeal and review process including any judicial review unless required to be stayed under general law or rule, or stayed by a court. Bal Harbour Village Ordinance 2023-649 VER: 7 Sec. 2-11 -34 - 2-125. - Reserved. Section 3. Severability. That 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, clauses, 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 4. Inclusion in the Code. That it is the intention of the Village Council, and it is hereby ordained that this Ordinance shall become and be made a part of the Bal Harbour Village Code; that the sections of this Ordinance may be renumbered or re - lettered to accomplish such intention; and that the word "Ordinance" shall be changed to "Section" or other appropriate word. Section 5. Conflict. That all Sections or parts of Sections of the Code of Ordinances, all ordinances or parts of ordinances, and all resolutions, or parts of resolutions, in conflict with this Ordinance are repealed to the extent of such conflict. Section 6. Effective Date. That this Ordinance shall be effective immediately upon adoption on second reading. PASSED AND ADOPTED on first reading this 16' day of May, 2023. PASSED AND ADOPTED on second reading this 20th day of June, 2023. of. aBAI HARBOUR . 4 S ATV ST: - •` ��` Dwight S. anie, Village Clerk AP O ED TO FORM AND LEGAL SUFFICIENCY: Village Attorney Weiss Serota Helfman Cole & Bierman P.L. Jeffrey - - P. Freimark Bal Harbour Village Ordinance 2023-649 VER: 7 5