§ 38-209. Conduct of hearing.

(a)

Upon request of the police department, city attorney or complainant, or at such other times as may be necessary, the chairman of the nuisance abatement board shall call a hearing of the nuisance abatement board. A hearing also shall be called upon by written notice signed by at least four members of the nuisance abatement board.

(b)

Minutes shall be kept of all hearings by the nuisance abatement board, and all hearings and proceedings shall be open to the public. Clerical and administrative personnel, as may be reasonably required by the nuisance abatement board for the proper performance of its duties, shall be provided by such department as the city commission or city manager may designate from time to time.

(c)

The nuisance abatement board shall proceed to hear the cases on the agenda for that day. All testimony shall be under oath and shall be recorded. The board shall conduct a hearing on the complaint, receiving evidence pertaining to the alleged public nuisance. The board may also receive and consider evidence of the general reputation of the place or premises which is the subject of the complaint. The nuisance abatement board may take testimony from the complainant, investigating law enforcement officers, code inspectors, the owner, nearby residents and/or businesses and any other relevant witnesses. The owner may appear in person as well as through his or her legal counsel and shall have an opportunity to present evidence in his or her defense. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings.

(d)

Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all the other evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of this state. The burden of proof shall be upon the police department, city attorney, or complainant to show, by a preponderance of the evidence, that a public nuisance exists.

(e)

Any member of the nuisance abatement board, or the counsel to the nuisance abatement board, may inquire of any witness before the nuisance abatement board. The police department, city attorney, or complainant, and the alleged violator or his attorney, shall be permitted an inquiry of any witness before the nuisance abatement board and to present brief opening and closing statements.

(f)

At the conclusion of the hearing, and based on the evidence of record and conclusions of law, the board may find and declare that the place or premises has been used as alleged in the complaint and that such place or premises thereby constitutes a public nuisance. The finding shall be by motion approved by a majority of those members present and voting, except that at least four members of the nuisance abatement board must vote in order for the action to be official. The board in its discretion may continue the hearing in order to receive additional evidence, testimony, or for any other reason the board deems appropriate before ruling on the complaint. If the board does not find that the allegations of the complaint have been proven, it shall enter an order dismissing the complaint.

(g)

If the board finds and declares the existence of a public nuisance, the board shall enter an order requiring the owner to adopt such procedures as may be appropriate under the circumstances to abate the public nuisance and at its discretion it may also enter an order mandating one or more of the following:

(1)

Immediately prohibiting the maintaining of the nuisance; or

(2)

Immediately prohibiting the operating or maintaining of the place or premises; or

(3)

Immediately prohibiting the conduct, operation, or maintenance of any business or activity on the premises which is conducive to such nuisance; or

(4)

Requiring the owner to immediately close the place or premises or any part thereof.

Such order shall expire after one year or at such earlier time as is stated in the order. The order may include a notice that it must be complied with by a specific date and that a fine may be imposed, in accordance with section 38-211 of this article.

(h)

Before the board can order the closure of a place or premises, the board must make a factual finding:

(1)

That the respondent did not abate the nuisance after being ordered by the nuisance abatement board to do so; or

(2)

That the respondent did not substantially comply with an appropriate order issued by the nuisance abatement board; or

(3)

That the respondent continued to maintain an ongoing nuisance; or

(4)

That closure is the only effective option in eradicating the nuisance.

Such finding is to be supported by a written order setting forth the factual basis for this determination.

A certified copy of such order shall be recorded in the public records of Orange County and shall constitute notice to any subsequent purchasers, successors in interest or assigns and the findings therein shall be binding upon the owner and any subsequent purchasers, successors in interest or assigns. If an order is recorded in the public records pursuant to this subsection and the order is complied with by the date specified in the order, the nuisance abatement board shall issue an order acknowledging compliance which shall be recorded in the public records. A hearing is not required to issue such an order acknowledging compliance.

(i)

If the city prevails in prosecuting a case before the nuisance abatement board, the city shall be entitled to recover its costs, including reasonable attorney's fees, incurred in prosecuting the case before the nuisance abatement board.

(Ord. No. 02-05, § 1, 3-28-02)