§ 66-159. Trespass warnings for public property.

(1)

Trespass warning decision by authorized personnel. Only authorized personnel may make an initial determination to issue a trespass warning for public property.

(2)

Procedures for issuing trespass warnings. The following procedures govern the issuance of trespass warnings:

(a)

Authorized personnel may have cause to remove any respondent they determine:

1.

Uses language which by its very utterance inflicts injury or tends to incite an immediate breach of the peace;

2.

Acts in any manner which violates any rule, policy, or directive on any sign at the public property;

3.

Acts in any manner which violates one or more of the following laws, rules, regulations:

a.

United States Statutes;

b.

United States Code of Federal Regulations;

c.

Florida Statutes;

d.

Florida Administrative Code; or

e.

County ordinances.

(b)

The initial determination by authorized personnel that a trespass warning is needed may take into consideration the facts and circumstances of the individual situation, including, but not limited to, the following:

1.

The gravity of the alleged violation;

2.

The respondent's refusal to conform to any verbal requests or warnings to desist or cease the violation;

3.

Any previous violations committed by the respondent; or

4.

The harm or potential harm to the public or public property threatened by the respondent's actions.

(c)

The decision to issue a trespass warning shall originate from authorized personnel, but the law enforcement officer shall perform the ministerial duty of writing the trespass warning.

(d)

The trespass warning shall state the facts and circumstances justifying its issuance.

(e)

The trespass warning must designate with specificity which of the following laws, rules, regulations, or policies has been violated:

1.

United States Statute section;

2.

United States Code of Federal Regulations Rule;

3.

United States policy posted at the public property;

4.

Florida Statute section;

5.

Florida Administrative Code Rule;

6.

State policy posted at the public property;

7.

County ordinance number; or

8.

County rule or policy posted at the public property.

(f)

The trespass warning must identify the scope of its prohibition(s) by address, parcel identification number, or other description so that a reasonable person would understand its meaning, e.g., Anclote River Park; Hudson Regional Library.

(g)

The trespass warning may only be issued by a law enforcement officer after receiving a written witness statement containing the information specified in subsection (2)(a) and (2)(b) of this section.

(h)

The law enforcement officer shall personally issue or attempt to issue the original trespass warning to the respondent. If the respondent refuses to accept the trespass warning, then the law enforcement officer shall note that refusal on the trespass warning. A respondent's failure to accept a trespass warning shall have no bearing on any arrest for trespassing under subsection (4) of this section.

(i)

The law enforcement officer shall forward a copy of the trespass warning within the next business day after issuance to each of the following:

1.

The designee of the Pasco County Sheriff's Office that keeps track of trespass warnings;

2.

The designee of the county administrator that keeps track of trespass warnings; and

3.

The County Attorney's Office, 8731 Citizens Dr., Suite 340, New Port Richey, FL 34654.

(3)

Time period of trespass warning. Trespass warnings shall be issued for a period of one year and shall prohibit respondent's entry onto the subject public property for any reason.

(4)

Arrest. Any respondent who returns or remains on the public property in violation of any trespass warning received pursuant to the provisions of this article may be arrested for trespassing, consistent with the provisions of F.S. ch. 810, as may be amended from time to time.

(5)

Authority of law enforcement preserved. This section shall not be construed to limit the authority of law enforcement officers to arrest or cite individuals for violating any federal law, Florida law, or local government ordinance.

(6)

Appeal. The written trespass warning shall advise the respondent of the right to appeal and the location at which to file the form to initiate the appeal. A respondent shall have the right to appeal the issuance of the trespass warning as follows:

(a)

An appeal of the trespass warning must be filed, in writing, within ten days of the issuance of the warning, and shall include the respondent's name, address and phone number, if any. The appeal shall be filed with County Attorney's Office, 8731 Citizens Dr., Suite 340, New Port Richey, FL 34654. No fee shall be charged for filing the appeal.

(b)

The county attorney's office shall act as legal counsel for authorized personnel from Pasco County and its constitutional officers during the appeal process. All other governments shall represent themselves through counsel or other designated representatives.

(c)

Appeals shall be heard by a special magistrate with whom the county contracts to provide this service.

(d)

Within seven days following the filing of the appeal, the special magistrate shall schedule a hearing. Notice of the hearing shall be provided to the respondent through regular U.S. mail to the respondent's address as provided on the notice of appeal. Additionally, the county shall provide notice using one of the two methods listed below:

1.

By leaving or posting the notice on the bulletin board at the first floor of the West Pasco Government Center, 8731 Citizens Dr., New Port Richey, FL 34654; or

2.

By contacting the respondent through the telephone number provided on the notice of appeal.

(e)

The special magistrate shall hold a quasi-judicial hearing as soon as possible. In no event shall the hearing be held later than 30 days from the filing of the appeal.

(f)

Respondent shall be entitled to copies of any document that the petitioner intends to rely upon during the special magistrate hearing upon request to the respondent in the same manner as provided by F.S. ch. 119.

(g)

The respondent shall have the right to attend the hearing with an attorney, the right to testify, and to call witnesses and present evidence. Any attorney appearing on behalf of the respondent or authorized personnel shall file a notice of appearance with the county attorney's office at least three days prior to the hearing.

(h)

No stenographic record by a certified court reporter is made of the special magistrate hearing. Accordingly, any respondent who may seek to appeal any decision involving the matters noticed for hearing shall have the right to bring a court reporter at their own expense and will be responsible for making a verbatim record of the testimony and evidence at this hearing upon which any appeal is to be based. The failure of any person to record the hearing and transcribe the hearing for purposes of appeal shall result in affirmance of the special magistrate's decision.

(i)

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.

(j)

The order of presentation at the hearing shall be as follows:

1.

Opening statements, if desired by the government or respondent;

2.

The government shall present their case-in-chief demonstrating the validity of the trespass warning;

3.

Respondent shall present his or her case-in-chief challenging the validity of the trespass warning;

4.

The government shall present any rebuttal testimony; and

5.

Closing arguments, if desired by the government or respondent.

(k)

The government 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.

(l)

Failure of the respondent to appear personally or through legal counsel shall result in a waiver of rights under this section, dismissal of the action, and an order affirming the determination or action.

(m)

Within seven days of the hearing, the special magistrate shall issue a written decision on the appeal which shall be mailed to the respondent at the address provided.

(n)

The quasi-judicial decision of the special magistrate shall be final and the respondent shall be deemed to have exhausted all administrative remedies. Such decision may be subject to judicial review through a petition for writ of certiorari.

(o)

The trespass warning shall remain in effect during the appeal and review process, including any judicial review.

(7)

First Amendment rights acknowledged. The special magistrate shall have continuing jurisdiction to consider ,and authorize a respondent to enter the public property that is the subject of the trespass warning to exercise his or her First Amendment rights if there is no other reasonable alternative location to exercise such rights or to conduct necessary government business. Such authorization shall be through order of the special magistrate, shall specify the duration of the authorization and any conditions thereof, and shall not be unreasonably denied.

(Ord. No. 15-21, § 3, 10-20-15)