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