Florida Senate - 2020                              CS for SB 888
       
       
        
       By the Committee on Community Affairs; and Senator Perry
       
       
       
       
       
       578-03051-20                                           2020888c1
    1                        A bill to be entitled                      
    2         An act relating to public nuisances; amending s.
    3         60.05, F.S.; revising notice requirements for the
    4         filing of temporary injunctions relating to the
    5         enjoinment of certain nuisances; extending the period
    6         of notice before a lien may attach to certain real
    7         estate; amending s. 823.05, F.S.; making technical
    8         changes; declaring that the use of a location by a
    9         criminal gang, criminal gang members, or criminal gang
   10         associates for criminal gang-related activity is a
   11         public nuisance; declaring that any place or premises
   12         that has been used on more than two occasions during a
   13         certain period as the site of specified violations is
   14         a nuisance and may be abated or enjoined pursuant to
   15         specified provisions; providing a property owner an
   16         opportunity to remedy a nuisance before specified
   17         legal actions may be taken against the property under
   18         certain circumstances; amending s. 893.138, F.S.;
   19         declaring that any place or premises that has been
   20         used on more than two occasions during a certain
   21         period as the site of any combination of specified
   22         violations may be declared to be a nuisance and may be
   23         abated pursuant to specified procedures; providing a
   24         property owner an opportunity to remedy a nuisance
   25         before specified legal actions may be taken against
   26         the property under certain circumstances; providing an
   27         effective date.
   28          
   29  Be It Enacted by the Legislature of the State of Florida:
   30  
   31         Section 1. Section 60.05, Florida Statutes, is amended to
   32  read:
   33         60.05 Abatement of nuisances.—
   34         (1) When any nuisance as defined in s. 823.05 exists, the
   35  Attorney General, state attorney, city attorney, county
   36  attorney, or any citizen of the county may sue in the name of
   37  the state on his or her relation to enjoin the nuisance, the
   38  person or persons maintaining it, and the owner or agent of the
   39  building or ground on which the nuisance exists.
   40         (2) The court may allow a temporary injunction without bond
   41  on proper proof being made. If it appears by evidence or
   42  affidavit that a temporary injunction should be issued issue,
   43  the court, pending the determination on final hearing, may
   44  enjoin any of the following:
   45         (a) The maintaining of a nuisance.;
   46         (b) The operating and maintaining of the place or premises
   47  where the nuisance is maintained.;
   48         (c) The owner or agent of the building or ground upon which
   49  the nuisance exists.;
   50         (d) The conduct, operation, or maintenance of any business
   51  or activity operated or maintained in the building or on the
   52  premises in connection with or incident to the maintenance of
   53  the nuisance.
   54  
   55  The injunction shall specify the activities enjoined and may
   56  shall not preclude the operation of any lawful business not
   57  conducive to the maintenance of the nuisance complained of. At
   58  least 3 days’ notice in writing shall be given defendant of the
   59  time and place of application for the temporary injunction.
   60         (3)(a) The defendant shall be given written notice to abate
   61  the nuisance within 10 days after the issuance of the notice.
   62  The notice must inform the defendant that an application for
   63  temporary injunction may be filed if the nuisance is not timely
   64  abated. If the nuisance is not timely abated, the defendant must
   65  be given a second written notice that informs the defendant that
   66  an application for a temporary injunction will be filed if the
   67  nuisance is not abated within 15 days after the end of the
   68  initial 10-day period. However, if the defendant responds to the
   69  first notice in writing within the initial 10-day period, and in
   70  such response alleges and provides proof that:
   71         1.Nuisance abatement involves compliance with another law
   72  of this state and the requirements of such law make nuisance
   73  abatement within 10 days impossible; or
   74         2.The terms of an executed contract to perform services
   75  necessary to abate the nuisance require more than 10 days to
   76  complete,
   77  
   78  the defendant must be given a second written notice providing
   79  the defendant with an extended time period to abate the nuisance
   80  sufficient to comply with such other law or contract terms.
   81         (b)A second notice sent under paragraph (a) must also
   82  provide the location where the application will be filed and the
   83  time when it will be filed. If the nuisance is not timely abated
   84  as provided in the second notice, the application for the
   85  temporary injunction must be filed as indicated in the notice.
   86         (c)In addition to the information required under
   87  paragraphs (a) and (b), each notice must:
   88         1.If applicable, describe the building, booth, tent, or
   89  place that is an alleged nuisance.
   90         2.State the activities that led to the nuisance
   91  allegations.
   92         3.State the actions necessary to abate the nuisance.
   93         4.State that costs will be assessed if abatement of the
   94  nuisance is not completed and if the court determines that the
   95  nuisance exists.
   96         (d)The notices provided in this subsection must be sent by
   97  personal service to the owner at his or her address as it
   98  appears on the latest tax assessment roll or to the tenant of
   99  such address. If an address is not found for the owner, the
  100  notices must be sent to the location of the alleged nuisance and
  101  displayed prominently and conspicuously at that location.
  102         (4)(3) Evidence of the general reputation of the alleged
  103  nuisance and place is admissible to prove the existence of the
  104  nuisance. An No action filed by a citizen may not shall be
  105  dismissed unless the court is satisfied that it should be
  106  dismissed. Otherwise the action shall continue and the state
  107  attorney notified to proceed with it. If the action is brought
  108  by a citizen and the court finds that there was no reasonable
  109  ground for the action, the costs shall be taxed against the
  110  citizen.
  111         (5)(4) On trial if the existence of a nuisance is shown,
  112  the court shall issue a permanent injunction and order the costs
  113  to be paid by the persons establishing or maintaining the
  114  nuisance and shall adjudge that the costs are a lien on all
  115  personal property found in the place of the nuisance and on the
  116  failure of the property to bring enough to pay the costs, then
  117  on the real estate occupied by the nuisance. A No lien may not
  118  shall attach to the real estate of any other than such said
  119  persons unless a second 5 days’ written notice has been given in
  120  accordance with paragraph (3)(a) to the owner or his or her
  121  agent who fails to begin to abate the nuisance within the time
  122  specified therein said 5 days. In a proceeding abating a
  123  nuisance pursuant to s. 823.10 or s. 823.05, if a tenant has
  124  been convicted of an offense under chapter 893 or s. 796.07, the
  125  court may order the tenant to vacate the property within 72
  126  hours if the tenant and owner of the premises are parties to the
  127  nuisance abatement action and the order will lead to the
  128  abatement of the nuisance.
  129         (6)(5) If the action was brought by the Attorney General, a
  130  state attorney, or any other officer or agency of state
  131  government; if the court finds either before or after trial that
  132  there was no reasonable ground for the action; and if judgment
  133  is rendered for the defendant, the costs and reasonable attorney
  134  attorney’s fees shall be taxed against the state.
  135         Section 2. Section 823.05, Florida Statutes, is amended to
  136  read:
  137         823.05 Places and groups engaged in certain activities
  138  criminal gang-related activity declared a nuisance; abatement
  139  and enjoinment massage establishments engaged in prohibited
  140  activity; may be abated and enjoined.—
  141         (1) A person who erects, establishes, continues, maintains,
  142  owns, or leases any of the following is deemed to be maintaining
  143  a nuisance, and the building, erection, place, tent, or booth,
  144  and the furniture, fixtures, and contents of such structure, are
  145  declared a nuisance, and all such places or persons shall be
  146  abated or enjoined as provided in ss. 60.05 and 60.06:
  147         (a)A Whoever shall erect, establish, continue, or
  148  maintain, own or lease any building, booth, tent, or place that
  149  which tends to annoy the community or injure the health of the
  150  community, or becomes become manifestly injurious to the morals
  151  or manners of the people as provided described in s. 823.01., or
  152         (b)A any house or place of prostitution, assignation, or
  153  lewdness. or
  154         (c)A place or building in which persons engage in where
  155  games of chance are engaged in violation of law. or
  156         (d)A any place where any law of the state is violated,
  157  shall be deemed guilty of maintaining a nuisance, and the
  158  building, erection, place, tent or booth and the furniture,
  159  fixtures, and contents are declared a nuisance. All such places
  160  or persons shall be abated or enjoined as provided in ss. 60.05
  161  and 60.06.
  162         (2)(a) As used in this subsection, the terms “criminal
  163  gang,” “criminal gang member,” “criminal gang associate,” and
  164  “criminal gang-related activity” have the same meanings as
  165  provided in s. 874.03.
  166         (b) A criminal gang, criminal gang member, or criminal gang
  167  associate who engages in the commission of criminal gang-related
  168  activity is a public nuisance. Any and All such persons shall be
  169  abated or enjoined as provided in ss. 60.05 and 60.06.
  170         (c) The use of a location on two or more occasions by a
  171  criminal gang, criminal gang members, or criminal gang
  172  associates for the purpose of engaging in criminal gang-related
  173  activity is a public nuisance. Such use of a location as a
  174  public nuisance shall be abated or enjoined as provided in ss.
  175  60.05 and 60.06.
  176         (d) Nothing in This subsection does not shall prevent a
  177  local governing body from adopting and enforcing laws consistent
  178  with this chapter relating to criminal gangs and gang violence.
  179  Where local laws duplicate or supplement this chapter, this
  180  chapter shall be construed as providing alternative remedies and
  181  not as preempting the field.
  182         (e) The state, through the Department of Legal Affairs or
  183  any state attorney, or any of the state’s agencies,
  184  instrumentalities, subdivisions, or municipalities having
  185  jurisdiction over conduct in violation of a provision of this
  186  chapter may institute civil proceedings under this subsection.
  187  In any action brought under this subsection, the circuit court
  188  shall proceed as soon as practicable to the hearing and
  189  determination. Pending final determination, the circuit court
  190  may at any time enter such injunctions, prohibitions, or
  191  restraining orders, or take such actions, including the
  192  acceptance of satisfactory performance bonds, as the court may
  193  deem proper.
  194         (3) A massage establishment as defined in s. 480.033(7)
  195  which that operates in violation of s. 480.0475 or s.
  196  480.0535(2) is declared a nuisance and may be abated or enjoined
  197  as provided in ss. 60.05 and 60.06.
  198         (4)(a)Any place or premises that has been used on more
  199  than two occasions within a 6-month period as the site of any of
  200  the following violations is declared a nuisance and may be
  201  abated or enjoined as provided in ss. 60.05 and 60.06:
  202         1.Section 812.019, relating to dealing in stolen property.
  203         2.Section 784.011, s. 784.021, s. 784.03, or s. 784.045,
  204  relating to assault and battery.
  205         3.Section 810.02, relating to burglary.
  206         4.Section 812.014, relating to theft.
  207         5.Section 812.131, relating to robbery by sudden
  208  snatching.
  209         (b)Notwithstanding any other law, a rental property that
  210  is declared a nuisance under this subsection may not be abated
  211  or subject to forfeiture under the Florida Contraband Forfeiture
  212  Act if the nuisance was committed by someone other than the
  213  owner of the property and the property owner commences
  214  rehabilitation of the property within 30 days after the property
  215  is declared a nuisance and completes the rehabilitation within a
  216  reasonable time thereafter.
  217         Section 3. Section 893.138, Florida Statutes, is amended to
  218  read:
  219         893.138 Local administrative action to abate certain
  220  activities declared drug-related, prostitution-related, or
  221  stolen-property-related public nuisances and criminal gang
  222  activity.—
  223         (1) It is the intent of this section to promote, protect,
  224  and improve the health, safety, and welfare of the citizens of
  225  the counties and municipalities of this state by authorizing the
  226  creation of administrative boards with authority to impose
  227  administrative fines and other noncriminal penalties in order to
  228  provide an equitable, expeditious, effective, and inexpensive
  229  method of enforcing ordinances in counties and municipalities
  230  under circumstances when a pending or repeated violation
  231  continues to exist.
  232         (2) Any place or premises that has been used:
  233         (a) On more than two occasions within a 6-month period, as
  234  the site of a violation of s. 796.07;
  235         (b) On more than two occasions within a 6-month period, as
  236  the site of the unlawful sale, delivery, manufacture, or
  237  cultivation of any controlled substance;
  238         (c) On one occasion as the site of the unlawful possession
  239  of a controlled substance, where such possession constitutes a
  240  felony and that has been previously used on more than one
  241  occasion as the site of the unlawful sale, delivery,
  242  manufacture, or cultivation of any controlled substance;
  243         (d) By a criminal gang for the purpose of conducting
  244  criminal gang activity as defined by s. 874.03;
  245         (e) On more than two occasions within a 6-month period, as
  246  the site of a violation of s. 812.019 relating to dealing in
  247  stolen property; or
  248         (f) On two or more occasions within a 6-month period, as
  249  the site of a violation of chapter 499; or
  250         (g)On more than two occasions within a 6-month period, as
  251  the site of a violation of any combination of the following:
  252         1.Section 782.04, relating to murder;
  253         2.Section 782.051, relating to attempted felony murder;
  254         3.Section 784.045(1)(a)2., relating to aggravated battery
  255  with a deadly weapon; or
  256         4.Section 784.021(1)(a), relating to aggravated assault
  257  with a deadly weapon without intent to kill,
  258  
  259  may be declared to be a public nuisance, and such nuisance may
  260  be abated pursuant to the procedures provided in this section.
  261         (3) Any pain-management clinic, as described in s. 458.3265
  262  or s. 459.0137, which has been used on more than two occasions
  263  within a 6-month period as the site of a violation of:
  264         (a) Section 784.011, s. 784.021, s. 784.03, or s. 784.045,
  265  relating to assault and battery;
  266         (b) Section 810.02, relating to burglary;
  267         (c) Section 812.014, relating to theft;
  268         (d) Section 812.131, relating to robbery by sudden
  269  snatching; or
  270         (e) Section 893.13, relating to the unlawful distribution
  271  of controlled substances,
  272  
  273  may be declared to be a public nuisance, and such nuisance may
  274  be abated pursuant to the procedures provided in this section.
  275         (4) Any county or municipality may, by ordinance, create an
  276  administrative board to hear complaints regarding the nuisances
  277  described in subsection (2). Any employee, officer, or resident
  278  of the county or municipality may bring a complaint before the
  279  board after giving not less than 3 days’ written notice of such
  280  complaint to the owner of the place or premises at his or her
  281  last known address. After a hearing in which the board may
  282  consider any evidence, including evidence of the general
  283  reputation of the place or premises, and at which the owner of
  284  the premises shall have an opportunity to present evidence in
  285  his or her defense, the board may declare the place or premises
  286  to be a public nuisance as described in subsection (2).
  287         (5) If the board declares a place or premises to be a
  288  public nuisance, it may enter an order requiring the owner of
  289  such place or premises to adopt such procedure as may be
  290  appropriate under the circumstances to abate any such nuisance
  291  or it may enter an order immediately prohibiting:
  292         (a) The maintaining of the nuisance;
  293         (b) The operating or maintaining of the place or premises,
  294  including the closure of the place or premises or any part
  295  thereof; or
  296         (c) The conduct, operation, or maintenance of any business
  297  or activity on the premises which is conducive to such nuisance.
  298         (6) An order entered under subsection (5) shall expire
  299  after 1 year or at such earlier time as is stated in the order.
  300         (7) An order entered under subsection (5) may be enforced
  301  pursuant to the procedures contained in s. 120.69. This
  302  subsection does not subject a municipality that creates a board
  303  under this section, or the board so created, to any other
  304  provision of chapter 120.
  305         (8) The board may bring a complaint under s. 60.05 seeking
  306  temporary and permanent injunctive relief against any nuisance
  307  described in subsection (2).
  308         (9) This section does not restrict the right of any person
  309  to proceed under s. 60.05 against any public nuisance.
  310         (10) As used in this section, the term “controlled
  311  substance” includes any substance sold in lieu of a controlled
  312  substance in violation of s. 817.563 or any imitation controlled
  313  substance defined in s. 817.564.
  314         (11) The provisions of this section may be supplemented by
  315  a county or municipal ordinance. The ordinance may include, but
  316  is not limited to, provisions that establish additional
  317  penalties for public nuisances, including fines not to exceed
  318  $250 per day; provide for the payment of reasonable costs,
  319  including reasonable attorney fees associated with
  320  investigations of and hearings on public nuisances; provide for
  321  continuing jurisdiction for a period of 1 year over any place or
  322  premises that has been or is declared to be a public nuisance;
  323  establish penalties, including fines not to exceed $500 per day
  324  for recurring public nuisances; provide for the recording of
  325  orders on public nuisances so that notice must be given to
  326  subsequent purchasers, successors in interest, or assigns of the
  327  real property that is the subject of the order; provide that
  328  recorded orders on public nuisances may become liens against the
  329  real property that is the subject of the order; and provide for
  330  the foreclosure of property subject to a lien and the recovery
  331  of all costs, including reasonable attorney fees, associated
  332  with the recording of orders and foreclosure. No lien created
  333  pursuant to the provisions of this section may be foreclosed on
  334  real property which is a homestead under s. 4, Art. X of the
  335  State Constitution. Where a local government seeks to bring an
  336  administrative action, based on a stolen property nuisance,
  337  against a property owner operating an establishment where
  338  multiple tenants, on one site, conduct their own retail
  339  business, the property owner shall not be subject to a lien
  340  against his or her property or the prohibition of operation
  341  provision if the property owner evicts the business declared to
  342  be a nuisance within 90 days after notification by registered
  343  mail to the property owner of a second stolen property
  344  conviction of the tenant. The total fines imposed pursuant to
  345  the authority of this section shall not exceed $15,000. Nothing
  346  contained within this section prohibits a county or municipality
  347  from proceeding against a public nuisance by any other means.
  348         (12)Notwithstanding any other law, a rental property that
  349  is declared a nuisance under this section may not be abated or
  350  subject to forfeiture under the Florida Contraband Forfeiture
  351  Act if the nuisance was committed by someone other than the
  352  owner of the property and the property owner commences
  353  rehabilitation of the property within 30 days after the property
  354  is declared a nuisance and completes the rehabilitation within a
  355  reasonable time thereafter.
  356         Section 4. This act shall take effect July 1, 2020.