HomeMy WebLinkAboutV (A) SECOND READING AND PUBLIC HEARING - ORDINANCE NO. 93-03, relating to the 2 Clerk Rule Ordinance, repealing Chapter 57 of the Code of Ordinances which provides for security standards for convenience businesses AGENDA 4-6-93
Item V A
FOLEY & LARDNER
III NORTH ORANGE AVENUE, SUITE 1800
ORLANDO, FLORIDA 32801
TELEPHONE (407) 423-7656
FACSIMILE (407) 648-1743
TAMPA, FLORIDA MAILING ADDRESS MILWAUKEE, WISCONSIN
JACKSONVILLE, FLORIDA POST OFFICE BOX 2193 MADISON, WISCONSIN
TALLAHASSEE, FLORIDA WASHINGTON, D.C.
WEST PALM BEACH, FLORIDA ORLANDO. FL. 32802-2193 ANNAPOLIS, MARYLAND
CHICAGO, ILLINOIS
MEMORANDUM
TO: The Fonorable Mayor and City Commissioners
of the City of Ocoee
FROM: Paul E. Rosenthal, Esq. , City Attorney /k
DATE: March 25, 1993
RE: Convenience Business Security Act
For your information, please find enclosed a copy of the
Convenience Business Security Act adopted by the Florida
legislature. This Act supersedes the existing City of Ocoee
Ordinance. If you have any questions, please let me know.
enclosure
.. s. 812.15 1o0SUPPLEMENT TO FLORIDA STATUTES 1991
s. 812.172 11
2. Award damages pursuant to paragraphs(c),(d), (3) FAILURE TO REDELIVER HIRED OR LEASED i
.. and (e); and PERSONAL PROPERTY.—Whoever,after hiring or leas-
3. Direct the recovery of full costs,including award- ing any personal property or equipment under an agree-
ing reasonable attorney's fees, to an aggrieved party ment to redeliver the same to the person letting such i
who prevails. personal property or equipment or his agent at the termi- I
(c) Damages awarded by any court under this sec- nation of the period for which it was let,shall,without the
tion shall be computed in accordance with either of the consent of such person or persons and with the intent
following: to defraud, abandon or willfully refuse to redeliver such
1. The party aggrieved may recover the actual dam- personal property or equipment as agreed, shall, upon
ages suffered by him as a result of the violation and an `1=
Y conviction, be guilty of a misdemeanor of the second i
profits of the violator that are attributable to the violation degree, punishable as provided in s. 775.082 or s.
which are not taken into account in computing the actual
damages;in determining the violator's profits,the party 775.083, unless the value of the personal property or
aggrievedmbe required to proveatr onlyr the thevioparty equipment is of a value of$300 or more;in that event the
revenue,and the violator is required to prove his violation constitutes a felony of the third degree,punish-
grossdeductible expenses and the elements of profit attribut- able( as provided in s. FRAUDULENT,S. ll4T,or s-75,084, •
INTENT.—
able to factors other than the violation;or (4) EVIDENCE OF INTENT: s
2. The party aggrieved may recover an award of (a) In prosecutions under this section, fraudulent
statutory damages for all violations involved a the intent may be inferred from proof that the property or
action, in a sum of not less than $250 or more than equipment was obtained by false pretenses; by a
'in$10,000, as the court considers just. absconding without payment or offering to pay any out
(d) In any case in which the court finds that the viola- standing balance; or by surreptitiously removing or
tion was committed willfully and for purposes of com- attempting to remove the property or equipment from
mercial advanta e, the court in its discretion ma the county, without the express written consent of the
increase the award of damages,whether actual or statu lessor.
IA
tory under this section, by an amount of not more than (b) Fraudulent intent may be inferred from proof of
$50,000. the failure to make payment or redeliver Upon demand
(e) made either inperson ort Y
In any case in which the court finds that the viola by certified mail.This inference
tor was not aware and had no reason to believe that his may be made only when there is no dispute as to the i
acts constituted a violation of this section, the court in amount owed.
its discretion may reduce the award of damages to a (5) EXCLUSION OF RENTAL-PURCHASE AGREE
of not less than$100. MENTS.—This section does not
History.—s.3,�,.92_t�. apply to personal prop-
sum
erty or equipment that is the subject of a rental- 1'I
812.155 Hiring,leasing,or obtaininpersonal prop- purchase agreement that permits the lessee to acquire _
9 P P ownership of the personal property or equipment. t,
erty or equipment with the Intent to defraud;failing to History.—s.6,ch.92-79.
return hired or leased personal property or equipment;
rules of evidence.— 812.1701 Short title.—Sections 812.1701-812.175
(1) OBTAINING BY TRICK, FALSE REPRESENTA- may be cited as the "Convenience Business Security
TION, ETC.—Whoever, with the intent to defraud the Act."
owner or any person lawfully possessing any personal History.—s.1,ch.92-103.
property or equipment,obtains the custody of such per- 812.171 Definition.—As used in this act, the term
sonal property or equipment by trick,deceit,or fraudu- .
lent or willful false representation shall be guilty of a mis- convenience business' means any place of business
demeanor of the second degree, punishable as pro- that is primarily engaged in the retail sale of groceries,
vided in s.775.082 or s.775.083,unless the value of the or both groceries and gasoline,and that is open for busi-
vided
personal property or equipment is of a value of$300 or ness at any time between the hours of 11 p.m. and 5
more; in that event the violation constitutes a felony of a.m.The term'convenience business'does not include:
the third degree, punishable as provided in s. 775.082, (1) A business that is solely or primarily a restaurant.
s. 775.083, or s. 775.084. (2) A business that always has at least five employ-
(2) HIRING OR LEASING WITH THE INTENT TO nes on the premises after 11 p.m.and before 5 a.m.
DEFRAUD.—Whoever,with intent to defraud the owner (3) A business that has at least 10,000 square feet
•
or any person lawfully possessing any personal property of retail floor space.
or equipment of the rental thereof, hires or leases said
The term`convenience business'does not include any
personal property or equipment from such owner or
such owner's agents or any person in lawful possession work betweeness in which the owner or members . his family
thereof shall, upon conviction, be'guiltyof a misde- Hit the hours of 11 p.m.and 5 a.m:
meanor of the second degree, punishable as provided g'3.�' S.2,a,.92-103.
in s. 775.082 or s.775.083, unless the value of the per- 812.172 Intent.—The Legislature finds that the pro-
sonal property or equipment is of a value of $300 or visions of this act are intended to prevent violent crimes
more; in that event the violation constitutes a felony of and thereby to protect employees and the consumer
the third degree, punishable as provided in s. 775.082, public at late-night convenience businesses.It is the fur-
s. 775.083,or s. 775.084. ther intent of the Legislature that security standards for
2111
-� -Th.
s.812.172 • 1992 SUPPLEMENT TO FLORIDA STATS. _S 1991 s. 812.174
1 late-night convenience businesses be uniform through- 1. American Society for Testing and Materials Stan-
! out this state.
dard D3935(classification PC110 B 3 0800700)and that
History.—s.4,ch.90-346;s.3,ch.92-103. has a thickness of at least 0.375 inches and has an
i 812.1725 Preemption.—A political subdivision of impact strength of at least 200 loot pounds; or
2. Underwriters Laboratory Standard UL 752 for
j this state may not adopt, for convenience businesses, medium power small arms (level one), Bullet Resisting
security standards which differ from those contained in Equipment;
i ss. 812.173 and 812.174, and all such differing stand
-
i j ards, whether existing or proposed, are hereby pre- (c) Provide a security guard on the premises at all
empted and superseded by general law, except any times after 11 p.m. and before 5 a.m.;
local ordinance in effect prior to September 1988 and (d) Lock the business premises throughout the
hours of.11 p.m. to 5 a.m., and only transact business
determined by the Department of Legal Affairs to pro- through an Indirect pass-through trough, trapdoor, or
• vide more stringent security standards than those con- window ;or
tr
wined in ss. 812.173 and 812.174 shall not be pre- (e) Close the business at all times after 11 p.m.and
empted and superseded by general law for a period of before 5 a.m.
2 years from December 31, 1992..
History.—s.-4.ch.92-103. (5) For purposes of this section, any convenience
business that by law implemented any of the security
' : R i , 812.173 Convenience business security.— measures set forth in paragraphs(4)(a)through(e)and
(1) Every convenience business shall be equipped has maintained said measures as required by the
with the following security devices and standards: Department of Legal Affairs without any occurrence or
i i (a) A security camera system capable of recording incidence of the crimes identified by subsection(4)for
and retrieving an image to assist in offender identifica- a period of no less than 24 months immediately preced-
' tion.and apprehension. ing the filing of a notice of exemption,may file with the
(b) A drop safe or cash management device for department a notice of exemption from these enhanced
restricted access to cash receipts. security measures. In no event shall this exemption be
(c) A lighted parking lot illuminated at an intensity of interpreted to preclude full compliance with the security
at least 2 foot-candles per square foot at 18 inches measures set forth in subsection (4) should any occur-
,
r ' above the surface. rence or incidence of the crimes identified by subsection
4 cause subsection
I .: (d) A conspicuous notice at the entrance which O (4)to be statutorily applicable.As
", ! states that the cash register contains$50 or less. of the date this act becomes law, the Department of
(e) Window signage that allows a clear and unob- Legal Affairs will provide notice to any convenience busi-
structed view from outside the.building and in a normal ness to which a subsection (4) incident has previously
line of sight of the cash register and sales transaction occurred.In no event shall the state or the Department
area. of Legal Affairs incur any liability for the regulation and
I (f) Height markers at the entrance of the conven en�fotrcrye s 5 too.fthis' ..th 92_10a
! , ience business which display height measures.
•
(g) . A cash management policy to limit the cash on 812.174 Training of employees.—The owner or
1`i hand at all times after 11 p.m. principal operator of a convenience business or conven-
;., 2 A conven1. ience business shall not have window
( ) ience businesses shall provide proper robbery deter-
tinting that reduces exterior or interior view in a normal rence and safety training by an approved curriculum to
St, line of sight. its retail employees within 60 days of employment.Exist-
i (3) Every convenience business shall be equipped ing retail employees shall receive training within 6
with a silent alarm to law enforcement or a private secur- months of April 8, 1992.A prl', oposed p ' p oposed curriculum shall be
ity agency,unless application for an exemption is made submitted in writing to the Attorney General with an
$ to and granted by the Attorney General.An application administrative fee not to exceed $100. The Attorney
tl'' for exemption must be in writing and must be accompa- General shall review and approve or disapprove the cur-
-', nied by an administrative fee of$25 for each store for riculum in writing within 60 days after receipt.The state
IIl' which an exemption would apply. shall have no liability for approvinci or disapproving a
ii (4) If a murder, robbery,sexual battery, aggravated training curriculum under this section.Approval shall be
assault, aggravated battery, or kidnapping or false given to a curriculum which train,and familiarizes retail
ll imprisonment, as those crimes are identified and employees with the security prnnc.ptes, devices, and
i defined by Florida Statutes, occurs or has occurred at measures required by s.812.173. Disapproval of a cur-
l''i a convenience business since 1, 1989, and arises
July riculum shall be subject to thew;ions of chapter 120.
( out of the operation of the convenience business, that No person shall be liable for ordin.a'-v negligence due to
convenience business shall implement at least one of implementing an approved curricuu' nt if the training was
,,I the following security measures:- actually provided. A curriculum s'-all be submitted for
(a) Provide at least two employees on the premises reapproval biennially with an ad -v istrative fee not to
i` , at all times after 11 p.m.and before 5 a.m.; exceed$100.Any curriculum sccr:A•ed by the Attorney
(b) Install for use by employees at all times after 11 General since September 1990 a11 be subject to reap-
',i p.m. and before 5 a.m. a secured safety enclosure of proval 2 years from the anniverc:y of initial approval
I . transparent polycarbonate or other material'that meets and biennially thereafter.
Ii
at least one of the following minimum standards: History.-s 6.ch.93-346:s.6.«, 9<-r,.
I 1
2112
w
. s.812.175 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 817.234 I.
812.175 Enforcement;civil fine;Convenience Busi- 817.234 False and fraudulent insurance claims.—
ness Security Trust Fund.— (1)(a) Any person who, with the intent to injure,
(1) The violation of any provision of this act by any defraud,or deceive any insurance company, including,
owner or principal operator of a convenience business but not limited to, any statutorily created underwriting
shall result in a notice of violation from the Attorney Gen- association or pool of insurers or any motor vehicle, life,
eral. Violators shall have 30 days after receipt of the disability, credit life, credit, casualty, surety, workers'
notice to provide proof of compliance to the Attorney compensation, title, premium finance, reinsurance, fra-
General's office. If the violation continues after the 30- ternal benefit,or home or automobile warranty company:
day period,the Attorney General may impose a civil fine ,
not to exceed $5,000. The Attorney General has the oral1Presentsatmeasr cpart oto in presented of,any writtenmr
authority to investigate any alleged violation and may oastatement part of,or in support a claim for
compromise any alleged violation by accepting from the
•payment or other benefit pursuant to an insurance pol
owner or principal operator an amount not to exceed icy, knowing that such statement contains any false,
$5,000.The Attorney General may suspend the imposi incomplete, or misleading information concerning any
tion of any fine conditioned upon terms the Attorney fact or thing material to such claim;or
General's office in its discretion deems appropriate. 2. Prepares or makes any written or oral statement
Notices of violation and civil fines shall be subject to the that is intended to be presented to any insurance com }
provisions of chapter 120. pany in connection with,or in support of, any claim for
(2) There is established in the Department of Legal payment or other benefit pursuant to an insurance polii
-
Affairs a trust fund to be known as the Convenience icy, knowing that such statement contains any false,
Business Security Trust Fund. Moneys deposited incomplete, or misleading information concerning any :
therein shall be used by the Attorney General to admin- fact or thing material to such claim,
ister and enforce the provisions ofthis section and ss.
812.173 and 812.174.Moneys received by the Attorney is guilty of a felony of the third degree, punishable as77
General pursuant to this act shall be deposited into the provided in s. 775.082, s. 775.083,or s. 775.084. `
trust fund. (b) All claims forms shall contain a statement in a a
(3) The Attorney General is given full power and form approved by the Department of Insurance that
authority to petition for an injunction when it is deter- clearly states in substance the following: 'Any person
mined that the health, safety, and public welfare is who knowingly and with intent to injure,defraud, or
threatened by continued operation of a convenience deceive any insurance company files a statement of ::
business in violation of this act.In any action for injunc- claim containing any false, incomplete, or misleading
tion,the Attorney General may seek a civil penalty not information is guilty of a felony of the third degree'
to exceed$5,000 per violation,plus attorney's fees and (2) Any physician licensed under chapter 458,
costs. osteopath licensed under chapter 459, chiropractor
(4) The Attorney General may enter into agreements licensed under chapter 460, or other practitioner
with local governments to assist in the enforcement of licensed under the laws of this state who knowingly and
ss. 812.1701-812.175. Such agreements may include willfully assists, conspires with, or urges any insured I
provision for reimbursement of investigative and party to fraudulently violate any of the provisions of this t j i
enforcement costs incurred by such local governments. section or part XI of chapter 627,or any person who,due
History.—s.7,ch.90-346:s.7,w,.s2-190. to such assistance,conspiracy,or urging by said physi-
cian,osteopath,chiropractor,or practitioner, knowingly
812.176 Rulemaking authority.—The Department
and willfull
of Legal Affairs shall have the power to adopt rules aur y benefits from the proceeds derived from the
suant to chapter 120 as necessary to implement the pro- use of such fraud,is guilty of a felony of the third degree,
Punishable as provided in s. 775.082, s. 775.083, or s.
visions of the Convenience Business Security Act. The
security measures and training provisions of ss.812.173 775.084. In the event that a physician,osteopath,chiro-
practor,or practitioner is adjudicated guilty of a violation
and 812.174 shall meet the requirements of the depart-
ment as set forth by rule. of this section, the Board of Medicine as set forth in
History.—s.8,ch.92-103. chapter 458, the Board of Osteopathic Medicine as set
forth in chapter 459, the Board of Chiropractic as set
forth in chapter 460, or other appropriate licensing
CHAPTER 817 authority shall hold an administrative hearing to consider
the imposition of administrative sanctions as provided
FRAUDULENT PRACTICES by law against said physician, osteopath, chiropractor,
or practitioner.
PART I (3) Any attorney who knowingly and willfully assists,
conspires with,or urges any claimant to fraudulently vio- ,
FALSE PRETENSES AND FRAUDS, late any of the provisions of this section or part XI of
GENERALLY chapter 627,or any person who,due to such assistance,
conspiracy,or urging on such attorney's part,knowingly .
817.234 False and fraudulent insurance claims. and willfully benefits from the proceeds derived from the i
817.566 Misrepresentation of association with,or aca- use of such fraud,is guilty of a felony of the third degree, '
demic standing at, postsecondary educa- punishable as provided in s. 775.082, s. 775.083, or s. i
tional institution. 775.084. t4
2113 t
Agenda 3-16-93
Item VI E
FOLEY & LARDNER
III NORTH ORANGE AVENUE.SUITE 1800
POST OFFICE BOX 2193
ORLANDO. FLORIDA 32802-2193
JACKSONVILLE. FLORIDA TELEPHONE 14071 423-7656 IS A MEMBER OF GLOBALEX
TALLAHASSEE. FLORIDA FACSIMILE 14071 648.1743 WITH MEMBER OFFICES IN
TAMPA, FLORIDA
WEST PALM BEACH. FLORIDA LONDON. ENGLAND
MILWAUKEE. WISCONSIN PARIS. FRANCE
MADISON. WISCONSIN BERLIN, GERMANY
CHICAGO, ILLINOIS STUTTGART, GERMANY
WASHINGTON. D.C. DRESDEN. GERMANY
ALEXANDRIA. VIRGINIA SINGAPORE
ANNAPOLIS. MARYLAND TAIPEI, TAIWAN
MEMORANDUM
TO: Sergeant Ken Fisher
FROM: Steven W. Zelkowitz, Assistant City Attorney
THROUGH: Paul E. Rosenthal, City Attorney
DATE: March 10, 1993
RE: Convenience Business Security Act
In response to your letter to Paul Rosenthal dated
January 7, 1993 regarding the above captioned matter, I have
reviewed both the Convenience Business Security Act ("Act") ,
Section 812. 1701 to 812 . 176, Florida Statutes, and Late Night
Businesses, Stores or Operations Ordinance ("Ordinance") , Chapter
57, Ocoee Code (copies attached hereto for your reference) . In
this regard, Section 812. 1725, Florida Statutes, expressly provides
that the Act preempts and supersedes any local ordinances
containing security standards for convenience businesses different
from those contained in the Act. There is a temporary exemption to
the preemption provision which applies to local ordinances in
effect prior to September, 1988. However, Chapter 57 of the Ocoee
Code was adopted by the City Commission on April 3, 1990 and such
exemption does not apply in the instant matter.
Accordingly, since the provisions of the Ordinance differ
from and conflict with those of the Act, the Ordinance is
superseded by the Act. Therefore, the City of Ocoee should enforce
the provisions of the Act and repeal the Ordinance. In this
regard, attached is a proposed ordinance repealing Chapter 57 which
should be added to the agenda for the City Commission meeting to be
held on March 16, 1993 .
cc: Jean Grafton, City Clerk
t% T mkt
r
•
6Z
= Y E w R 5;z 1
ORDINANCE NO. 93- 03
AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA
REPEALING THE PRESENT CHAPTER 57 OF THE CODE
OF ORDINANCES OF THE CITY OF OCOEE IN ITS
ENTIRETY; PROVIDING FOR SEVERABILITY;
PROVIDING FOR CODIFICATION; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Ocoee desires
to repeal the present Chapter 57 of the Code of Ordinances of the
City of Ocoee.
NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF
THE CITY OF OCOEE, FLORIDA, AS FOLLOWS:
SECTION ONE. The City Commission of the City of Ocoee
has the authority to adopt this Ordinance pursuant to Article VIII
of the Constitution of the State of Florida and Chapter 166,
Florida Statutes.
SECTION TWO. The present Chapter 57 of the Code of
Ordinances of the City of Ocoee, Florida, is hereby repealed in its
entirety.
SECTION THREE. Severability. If any section,
subsection, sentence, clause, phrase or portion of this Ordinance
is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate,
distinct and independent provision and such holding shall not
affect the validity of the remaining portion hereto.
SECTION FOUR. Codification. It is the intention of the
City Commission of the City that the provisions of this ordinance
shall become and be made a part of the Code of Ordinances of the
City; and that sections of this ordinance may be renumbered or
relettered and the word "ordinance" may be changed to "chapter",
"section", "article" , or such other appropriate word or phrase in
order to accomplish such intentions; and regardless of whether such
inclusion in the code is accomplished, sections of this ordinance
may be renumbered or relettered and the correction of typographical
errors which do not affect the intent may be authorized by the City
Manager, without need of public hearing, by filing a corrected or
recodified copy of same with the City Clerk.
SECTION FIVE. Effective Date. This Ordinance shall
become effective immediately upon passage and adoption.
PASSED AND ADOPTED this day of , 1993 .
APPROVED:
ATTEST: CITY OF OCOEE, FLORIDA
•
Jean Grafton, City Clerk S. Scott Vandergrift, Mayor
(SEAL)
ADVERTISED March 25 , 1993
READ FIRST TIME March 16 , 1993
READ SECOND TIME AND ADOPTED
, 1993, UNDER
AGENDA ITEM NO.
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA
APPROVED AS TO FORM AND LEGALITY
this day of , 1993 .
FOLEY & LARDNER
By:
City Attorney
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