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2008-13 ORDINANCE NO. 2008 -13 AN ORDINANCE OF THE CITY OF A VENTURA, FLORIDA; AMENDING THE CITY CODE BY AMENDING CHAPTER 18 "BUSINESS REGULATIONS,TAXES AND PERMITS", BY CREATING ARTICLE IV" POLICE COST RECOVERY"; CONSISTING OF SECTION 18-80 "RECOVERY OF COSTS FOR FAILURE OF RESPONSIBLE PERSON TO APPEAR ON BEHALF OF BUSINESS"; PROVIDING A MECHANISM FOR THE RECOVERY OF COSTS INCURRED BY THE CITY POLICE DEPARTMENT UNDER CIRCUMST ANCES IN WHICH A CRIMINAL PROSECUTION IS ABANDONED, DISMISSED OR FAILS AS A DIRECT RESULT OF THE FAILURE OF A RESPONSIBLE PERSON TO APPEAR IN LAW ENFORCEMENT OR COURT PROCEEDINGS, ON BEHALF OF THE OWNER OR OPERATOR OF A BUSINESS ESTABLISHMENT; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN CODE; PROVIDING FOR PENALTY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, based upon information provided by the police department of the City of A ventura ("City"), the City Commission finds that it is necessary to create a mechanism which permits the City to recover the costs incurred by the City's police department, including costs incurred in responding to a suspected crime scene, investigating and reporting suspected crime, apprehending and/or transporting persons accused of committing crimes, and assisting the prosecuting authorities in connection with the prosecution of crime, in those circumstances in which criminal prosecutions are abandoned, dismissed or fail as a direct result of the failure of the responsible person of a business establishment to appear as required by law; and WHEREAS, this Ordinance, by the creation of a cost recovery mechanism, shall serve to mitigate the financial harm which is caused to City law enforcement resources by the failure of responsible persons to appear as required by law; and WHEREAS, the City Commission has held the required public hearing, duly noticed in accordance with law; and Ordinance No. 2008-13 Page 2 WHEREAS, the City Commission finds that this proposed Ordinance serves to further enhance the protection of the public health, safety and welfare and to protect and preserve limited public resources. NOW, THEREFORE, IT IS HEREBY ORDAINED BY THE CITY COMMISSION OF THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS: Section 1. Recitals Adopted. That each of the above stated recitals is hereby adopted and confirmed. Section 2. City Code Amended. That Chapter 18 "Business Regulations, Taxes, and Permits" of the City Code, is hereby amended by creating Article IV "Police Cost Recovery", consisting of Section 18-80 "Recovery of Costs for Failure of Responsible Person to Appear on behalf of Business," to read as follows: ARTICLE IV. POLICE COST RECOVERY Section 18-80. Recovery of Costs for Failure of Responsible Person to Appear on behalf of Business. a) Definitions. The following terms used in this section shall have the meaning ascribed to them in this paragraph unless the context requires otherwise. (i) Business Owner or Operator: the owner or operator of a business establishment which is operating within the City or which holds a Local Business Tax Receipt issued by the City, which business is the victim, subject, complainant, reporter or is the site of the suspected commission of criminal activity or transactions, and which activity or transaction is within the jurisdiction of the City police department, and who, as a business owner or operator, may be liable for Costs Incurred upon a Responsible Person's Failure to Appear as provided by this section. 2 Ordinance No. 2008-13 Page 3 (ii) City: the Florida municipal corporation situated within Miami-Dade County, Florida, and known as the City of Aventura, Florida; (iii) Costs Incurred: any and all monetary costs directly incurred by the City in relation to the investigation, enforcement or prosecution of suspected criminal activities or transactions which has been complained of, witnessed or reported by a Responsible Person or concerning which a Responsible Person is required to appear at Court Proceedings. (iv) Court Proceedings: any law enforcement, prosecutorial or judicial proceedings related to the reporting, filing, initiation or maintenance of a complaint or charge concerning a criminal prosecution, including but not limited to State Attorney intake and pre- filing proceedings, filing of criminal proceedings, depositions, or court appearances; (v) Criminal Charge is Abandoned, Dismissed or Fails: when a criminal complaint or charge is abandoned, declined to be filed or further prosecuted by the State Attorney or is dismissed by the State Attorney or by the court or a verdict of "not guilty" is made or directed by the court, directly upon the basis of the Failure to Appear ofa Responsible Person. (vi) Failure to Appear: the failure of a Responsible Person to appear in Court Proceedings or to comply with the requirements of this section, under circumstances in which the Criminal Charge is Abandoned, Dismissed or Fails. (vii) Person: any natural person, individual, firm, partnership, association, or corporation; (viii) Responsible Person: the person who, as a Business Owner or Operator, or who, as an employee, officer or agent of a Business Owner or Operator, furnishes information to police, initiates a report or files a complaint upon or concerning suspected criminal activities or transactions upon behalf of any Business Owner or Operator or concerning an incident in which it is 3 Ordinance No. 2008-13 Page 4 reported by such person that criminal activities or transactions within the police jurisdiction of the City may have occurred at or concerning the place of business or in connection with the activities or transactions of the business establishment. The term "Responsible Person" includes, but is not limited to, victims and witnesses; (ix) State Attorney: the regular or specially assigned prosecuting attorney for the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. b) Service Charge Imposed. Pursuant to the City's authority under its constitutional home rule powers, as codified in Section 166.021, Florida Statutes, and as also authorized by Section 166.201, Florida Statutes, a service charge in the full amount of the City's Costs Incurred is hereby imposed upon the Business Owner or Operator, in the event that a Criminal Charge is Abandoned, Dismissed or Fails as a direct result of a Responsible Person's Failure to Appear in Court Proceedings. The identity of each Responsible Person may be noted in the applicable offense report or in a supplemental report. A written certification by the State Attorney, court administrator or the City's Police Chief that a Criminal Charge is Abandoned, Dismissed or Fails as a direct result of the Failure to Appear of a Responsible Person shall be prima facie evidence that the Costs Incurred are the obligation of the Business Owner or Operator pursuant to this section. c) Computation of Costs. The City's finance director shall calculate the Costs Incurred by the City's police department, based upon pertinent information provided in writing by the Police Chief or his designee. d) Appeal of Finance Director's Determination. Any person aggrieved by a decision of the finance director concerning the calculation of Costs Incurred as required by this section, may appeal the matter to the City Manager. The aggrieved person shall have ten (10) days from receiving the written decision of the City's finance director to file a written appeal to the City 4 Ordinance No. 2008-13 Page 5 Manager. The written appeal shall specify as to whether review is sought as to the liability of the Business Owner or Operator and/or as to the calculation of the Costs Incurred. The City Manager may accept, reject, or modify the decision of the City's finance director, based upon the scope of review requested and upon a review of the information provided to the City Manager and his or her findings as to whether or not the Business Owner or Operator is, pursuant to the intent, purposes and requirements of this section, liable for the Costs Incurred and as to whether the amount of the Costs Incurred has been correctly calculated. The City Manager shall find that the Business Owner or Operator is not liable for the Costs Incurred in the event that the Business Owner or Operator demonstrates that: (1) the Responsible Person no longer served as an employee, agent or servant of the Business Owner or Operator at the time of the Failure to Appear; or (2) the Responsible Person's Failure to Appear occurred solely because the Responsible Person did not receive a notice or subpoena to appear at Court Proceedings, if such notice or subpoena was required by law; or (3) the Responsible Person's Failure to Appear was not caused by the negligent, reckless or intentionally wrongful conduct of the Responsible Person and was unavoidable . Any person aggrieved by a decision of the City Manager may timely seek judicial review of the matter in a court of competent jurisdiction to the extent and manner authorized by applicable law. e) Liability; Collections. Each Business Owner and Operator on whose behalf a Responsible Person has Failed to Appear as required by this section, shall be jointly and severally liable to the City for the Costs Incurred as a result of such Failure to Appear. Costs Incurred pursuant to this section may be collected by the City pursuant to the following procedure: (i) The service charge imposed by the City for the Costs Incurred shall be due and payable not later than thirty (30) days after the date of the mailing or hand delivery of the City's 5 Ordinance No. 2008-13 Page 6 invoice to the Business Owner or Operator for cost recovery, and said due date shall be indicated upon the invoice of the City. (ii) If such service charges are not fully paid by the Business Owner or Operator on or before the past due date, a late fee of five (5) percent shall be imposed by City and shall be added to the outstanding invoice. Unpaid balances of Business Owners or Operators for such service charges and late fees shall be subject to an interest charge at the rate of one (1 %) percent per month in accordance with the provisions of paragraph (iii) below. Imposition of said interest charge shall commence for any delinquency existing thirty (30) days after the past due date of the invoice and shall continue to accrue until all service charges, late fees and interest charges are paid. (iii) Service charges and late fees, together with any interest charges, shall be debts due and owing to the City and such debts shall be recoverable by the City or its assignee, in any court of competent jurisdiction. f) Implementation. The City Manager and Police Chief, with any necessary assistance from the City Attorney, are authorized to develop and implement forms for the efficient administration and implementation of this section. 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 City Commission, and it is hereby ordained that the provisions of this Ordinance shall become and be made a part of the Code of the City of A ventura; that the sections of this Ordinance may be renumbered or relettered to 6 Ordinance No. 2008-13 Page 7 accomplish such intentions; and that the word "Ordinance" shall be changed to "Section" or other appropriate word. Section 5. Penalty. That any person who violates any provisions of this Ordinance shall, upon conviction, be punished by a fine not to exceed $500.00 or imprisonment in the County jail not to exceed sixty (60) days or both such fine and imprisonment. Each day that a violation continues shall be deemed a separate violation. This Ordinance shall also be subject to enforcement under the Local Government Code Enforcement Act, Chapter 162, F.S., as amended, and City Code Section 2-331, et. seq., as amended. Enforcement may also be by suit for declaratory, injunctive or other appropriate relief in a court of competent jurisdiction or as authorized by Section 162.22, F. S. Section 6. Effective Date. That this Ordinance shall be effective immediately upon adoption on second reading. The foregoing Ordinance was offered by Commissioner Weinberg, who moved its adoption on first reading. This motion was seconded by Commissioner Diamond, and upon being put to a vote, the vote was as follows: Commissioner Bob Diamond yes Commissioner Teri Holzberg yes Commissioner Billy Joel yes Commissioner Michael Stern yes Commissioner Luz Urbaez Weinberg yes Vice Mayor Zev Auerbach yes Mayor Susan Gottlieb yes The foregoing Ordinance was offered by Commissioner Holzberg, who moved its adoption on second reading. This motion was seconded by Vice Mayor Auerbach and upon being put to a vote, the vote was as follows: Commissioner Bob Diamond Commissioner Teri Holzberg Commissioner Billy Joel Commissioner Michael Stern Commissioner Luz Urbaez Weinberg Vice Mayor Zev Auerbach Mayor Susan Gottlieb yes yes yes yes absent yes yes 7 Ordinance No. 2008- I'J) Page 8 PASSED AND ADOPTED on first reading this 3rd day of June, 2008. PASSED AND ADOPTED on second reading this rday of July, 2008. Approved as to Form and Legal Sufficiency: ;v(~ ~ City Attorney 8