§ 78-4. Trespass warnings on public property.

(a)

The county manager and law enforcement officers are authorized to issue a trespass warning to any individual who violates any county ordinance, rule or regulation, or state law, which violation was committed on or within any county maintained or owned public properties, buildings, county parks, and including the beach and approaches, as defined in the county Charter section 205.6.

(b)

Trespass warnings shall be issued as follows:

(1)

A person receiving a first violation may be issued a trespass warning for a period not to exceed one year.

(2)

A person receiving subsequent violations may be issued a trespass warning for a period not to exceed two years.

(c)

A copy of the trespass warning shall be provided by mail or hand delivered to the person receiving the trespass warning. The written trespass warning shall advise of the right to appeal and the location at which to file the appeal. The trespass warning shall identify the property by common name or address. A beach trespass warning shall identify the location as that area of the beach 1,000 feet north and south from the nearest upland address.

(d)

Any person found on or within any county maintained or owned public property, building, and county parks, including the beach and approaches as defined in the county Charter section 205.6, in violation of a trespass warning may be arrested for trespassing, except as otherwise provided in this section.

(e)

The county manager may authorize an individual who has received a trespass warning to enter the property or premises to exercise his or her First Amendment rights if there is no other reasonable alternative location to exercise such rights or to conduct necessary county business. Such authorization must be in writing, shall specify the duration of the authorization and any conditions thereof, and shall not be unreasonably denied.

(f)

This section shall not be construed to limit the authority of any county employee or official to issue a trespass warning to any person for any lawful reason for any county owned or maintained property, including rights-of-way when closed to general vehicular or pedestrian use, when necessary or appropriate in the sole discretion of the county employee or official. The term rights-of-way is as defined in section 72-2 of the county's code of ordinances.

(g)

This section shall not be construed to limit the authority of law enforcement officers to cite or arrest individuals for violating any section of the County of Volusia, Code of Ordinances, or the Florida Statutes.

(h)

Appeal of trespass warning. A person to whom a trespass warning is issued under this section shall have the right to appeal as follows:

(1)

An appeal of the trespass warning must be filed, in writing, within ten days of the issuance of the warning, and shall include the appellant's name, address, and phone number, if any. No fee shall be charged for filing the appeal.

(2)

The appeal shall be filed at the location specified in the trespass warning.

(3)

The county shall contract with a special magistrate to hear all trespass appeals.

(4)

Within five days following the filing of the appeal, the special magistrate shall schedule a hearing. Notice of the hearing will be provided to the appellant by:

a.

Posting the notice at the Thomas C. Kelley Administration Center (hereinafter "Administration Center") located at 123 W. Indiana Ave., DeLand, Florida 32720, and

b.

Mailing a copy of the notice if an address is provided. In the event of non-delivery, the notice posted at the Administration Center shall suffice.

(5)

The special magistrate shall hold the hearing as soon as possible. In no event shall the hearing be held sooner than seven days following the filing of the appeal and no later than 30 days from the filing of the appeal.

(6)

Copies of documents in the county's control which are intended to be used at the hearing, and which directly relate to the issuance of the trespass warning to the appellant, shall be made available upon request to the appellant at no cost.

(7)

The appellant and the county shall have the right to attend with an attorney, the right to testify, to call witnesses, to cross-examine witnesses, and to present evidence. Any attorney appearing on behalf of the appellant shall file a notice of appearance with the office of the county attorney at least three days prior to the hearing. The appellant shall have the right to bring a court reporter, at his or her own expense.

(8)

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.

(9)

The county shall bear the burden of proof by clear and convincing evidence that the trespass warning was issued pursuant to the criteria of this section.

(10)

If the appellant fails to attend a scheduled hearing, the special magistrate shall review the evidence presented and determine if the trespass warning was properly issued pursuant to the criteria of this section.

(11)

Within five days of the hearing, the special magistrate shall issue a written decision on the appeal which shall be mailed to the appellant at the address provided. If no address is provided, a copy of the decision shall be posted at the Administration Center.

(12)

The decision of the special magistrate shall be final and appellant shall be deemed to have exhausted all administrative remedies. Such decision may be subject to judicial review in the manner provided by law by the appellant. The county may not appeal the decision of the special magistrate.

(13)

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

(Ord. No. 2018-18, § I, 10-16-18)