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HomeMy WebLinkAboutLegislation SR 3-11-10File Number: 09-01024 Final Action Date: AN ORDINANCE OF THE MIAMI COMMISSION AMENDING CHAPTER 37 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED "OFFENSES -MISCELLANEOUS," BY CLARIFYING EXISTING LANGUAGE AND ADDING AUTHORITY FOR THE CITY OF MIAMI TO REMEDY ACTS OF GRAFFITI; CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Miami ("City") is authorized by Florida Statute 806.13 to confront the blight of graffiti within the City; and WHEREAS, the City has a problem with graffiti on properties throughout the City; and WHEREAS, many property owners are not voluntarily removing the graffiti; and WHEREAS, graffiti decreases the property value of neighboring properties and encourages criminal activity including, but not limited to, gang activity; and WHEREAS, the City is authorized to promote, protect, and improve the health, safety, and welfare of its citizens and businesses; and WHEREAS, the City is authorized to collect as special assessments service costs which constitute a special benefit to residential and commercial properties; and WHEREAS, Florida Statute Chapter 173 authorizes special assessments to be treated as liens equal in rank and dignity with the lien of ad valorem taxes and superior in rank and dignity to all other liens, encumbrances, titles and claims in, to or against the real property involved; and WHEREAS, under Florida Statute Chapter 806.13 the Florida Legislature has expressed its intent to not preempt municipalities by state law from establishing ordinances that prohibit the marking of graffiti or other graffiti -related offenses. NOW, THEREFORE, BE 1T ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted and incorporated as if fully set forth in this Section. Section 2. Chapter 37 of the Code of the City of Miami, Florida, as amended, is amended in the following particulars: f 1} "CHAPTER 37 City of Miami Page I of 6 File Id: 09-01024 (Version: 2) Printed On: 3/2/2010 City of Miami City Hall 3500 Pan American merican Drive Miami, FL Legislation 33133 1 VA",miamig0v.com Ordinance File Number: 09-01024 Final Action Date: AN ORDINANCE OF THE MIAMI COMMISSION AMENDING CHAPTER 37 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED "OFFENSES -MISCELLANEOUS," BY CLARIFYING EXISTING LANGUAGE AND ADDING AUTHORITY FOR THE CITY OF MIAMI TO REMEDY ACTS OF GRAFFITI; CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Miami ("City") is authorized by Florida Statute 806.13 to confront the blight of graffiti within the City; and WHEREAS, the City has a problem with graffiti on properties throughout the City; and WHEREAS, many property owners are not voluntarily removing the graffiti; and WHEREAS, graffiti decreases the property value of neighboring properties and encourages criminal activity including, but not limited to, gang activity; and WHEREAS, the City is authorized to promote, protect, and improve the health, safety, and welfare of its citizens and businesses; and WHEREAS, the City is authorized to collect as special assessments service costs which constitute a special benefit to residential and commercial properties; and WHEREAS, Florida Statute Chapter 173 authorizes special assessments to be treated as liens equal in rank and dignity with the lien of ad valorem taxes and superior in rank and dignity to all other liens, encumbrances, titles and claims in, to or against the real property involved; and WHEREAS, under Florida Statute Chapter 806.13 the Florida Legislature has expressed its intent to not preempt municipalities by state law from establishing ordinances that prohibit the marking of graffiti or other graffiti -related offenses. NOW, THEREFORE, BE 1T ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted and incorporated as if fully set forth in this Section. Section 2. Chapter 37 of the Code of the City of Miami, Florida, as amended, is amended in the following particulars: f 1} "CHAPTER 37 City of Miami Page I of 6 File Id: 09-01024 (Version: 2) Printed On: 3/2/2010 Fite Number: 09-01024 OFFENSES -MISCELLANEOUS Sec. 37-2. Malicious defacement, marking, etc., of real property (a) Notwithstanding any Goy City Code provision to the contrary, it shall be unlawful for any person to willfully and maliciously ef-waRtGRI or without the knowledge and consent of the owner to mar, deface, damage or destroy by writing, painting or drawing any inscription, figure or mark of any type on the , public or private property. , , (1) T-9 damage, defaGe, dBGigR, mark er defile r_uGh plaGe of abode, MURiGipal. rerureatie-R-al area 9 (sb) Notwithstanding any eity City Code provision to the contrary, no person shall intentionally deface without authorization of the owner or tenant any private or public premises or property primarily used for religious, educational, residential, memorial, recreational, charitable, cemetery or utilitarian purposes, or for assembly by persons of a particular race, color, creed or religion, by placing material thereon, including symbols, objects, caricatures, an appellation, a burning cross or a Nazi swastika, or graffiti thereby exposing or tending to expose another to risk of violence, contempt or hatred on the basis of race, color, creed or religion. (dc) Notwithstanding any Gity City Code provision to the contrary, violation of subsections (a) or, (b) and (e) of this section shall be punishable by a fine of not more than $250.00 for a first offense and a fine not to exceed $500.00 for a second or each subsequent offense or by imprisonment in jail for a term not to exceed sixty J601 days or by both such fine and imprisonment upon conviction thereof. The above penalty may, in the discretion of the court, be waived or substituted by the performance of such number of hours of community service as deemed proper by the court, not to exceed 100 hours. (1) In the case of a minor, the parents or legal guardian shall be jointly and severally liable with the minor for r)avment of all fines. (2) Failure of the parents or legal guardian to make payment will result in the filing of a lien on the parents or legal guardian's property to include the fine and administrative costs. (ed) In addition to any punishment, the court shall order the defendant to make restitution to the victim or the City if the City cures the damage pursuant to Section 37-2(I) for damage or loss caused directly or indirectly by the defendant's offense in a reasonable amount or manner to be determined by the court. City of Miam i Page 2 of 6 File Id. 09-01024 (!Version: 2) Printed On: 31212010 File Number: 09-01024 (1) In the case of a minor, the parents or legal guardian shall be ordered jointly and severally liable with the minor to make such restitution. (fe) In addition to any punishment, the court may, in its discretion, order the defendant to perform monitored community service. (gf) Whenever the sity City becomes aware of the existence of graffiti on any property, including structures or improvements within the sity Com, a code enforcement officer is authorized, upon such discovery, to give, or cause to be given, notice to remove or effectively obscure such graffiti within the time period enumerated in the notice, to the owner, agent or manager who shall cause the graffiti to be removed or effectively obscured by any means so long as it is completely obliterated, painted or touched up with the same or substantially similar color of existing paint anther or texture of the original wall, fence, siding or part of the structure afflicted. Persons needing information a/sr or assistance in curing a graffiti violation may contact the " City of Miami Graffiti Mitigation Program. The phone number to the City of Miami Graffiti Mitigation Program shall appear conspicuously in bold numerals on the notice issued pursuant to this subsection for purposes of providing assistance to those who receive such notice. Persons not responsible for causing graffiti but responsible for curing it, who cannot afford to obliterate, paint or touch up such graffiti with the same color of existing paint of the original wall, fence, siding or part of the structure affected and who receive paint or assistance from the " City of Miami Graffiti Mitigation Program shall obliterate, paint or touch up graffiti on the property with paint as substantially similar in color as can be provided to the wall, fence, siding or part of the structure afflicted. (1) No penalties, fines, or costs shall be imposed on persons owning property, acting as managero or agent for the owner of property, or in possession or control of property who utilize the City of Miami Graffiti Mitigation Program to remove or effectively obscure such graffiti. Persons who request to receive assistance from the Miami Graffiti Mitigation Program and are qualified to receive such assistance but do not receive such assistance shall not be subjected to penalties, fines, or costs pursuant to this section. (#g) It shall be unlawful for any person or firm owning property, acting as manager or agent for the owner of property, or in possession or control of property, to fail to remove or effectively obscure any graffiti from such property within the time period enumerated in the notice, as described in subsection (f) of this section whiGheveF is dater. If the person or firm owning such property, acting as manager or agent for the owner of such property, or in possession or control of such property, fails to remove or effectively obscure the graffiti within the time period enumerated above, the city City shall present a case to the code enforcement board or Special Master and fines shall be assessed against the property until it comes into compliance. City of Miami Page 3 of 6 File Id: 09-01024 (Version: 2) Printed On: 3/2/2010 FIle Number; 09-01024 (h) The property owner has five (5) business days from receipt or posting of the notice to file for an appeal hearing before a Special Master. Gity E)WR8d pmpeFty leGated OrithiM the rVity limits E)f Miami as a Fesult of vielatioRs Gf subseGtiOR (a), (b), GF (G) of this E;eGtiGn. (i) The appeal hearing referenced in subsection (h) of this section shall be scheduled for the first available appeal hearing before a Special Master. (i) Appeal hearings shall be conducted by a Special Master in accordance with Article X, Section 2-826 of the City of Miami Code. (k) If the property is found guilty by the Special Master, the property owner or designee must remove or effectively obscure the graffiti within the time period ordered by the Special Master. (1) If the property continues to be in violation after the time period referred to in subsection (f) or the time period referred to in subsection (k), whichever is later, the City Manager or designee shall cause corrective action to take place at the property owner's expense. (m) The City Manager or designee shall have the right to enter upon private property to the extent necessary to take corrective action. No person shall obstruct, impede, or interfere with the City Manager or designee whenever the City Manager or designee is engaged in the work of corrective action pursuant to this section or in performing any necessary act preliminary to or incidental to such work pursuant to this section. Entry into any dwelling or structure is expressly prohibited. (n) Public Right -of -Way. Whenever the City becomes aware of the existence of graffiti on anV Property, including any structure or improvement, that abuts the public right-of-way within the City, the City Manager or designee is authorized to immediately remove or obscure such graffiti. (1) Definition. For purposes of subsection (n) of this section, property that abuts the public right-of-way shall only be property that is easily accessible to the City Manager or designee and does not substantially encroach on private property. (2) Obiection. Property owners are hereby put on notice of the requirements of this section and the City's intention to immediately remove or obscure graffiti placed on walls, buildings, and other surfaces that abut the public right-of-way. The City shall publish notice of this section once during each week for four (4) consecutive weeks in a local newspaper pursuant to Chapter 50 of the Florida Statutes. Any property owner who obiects to graffiti being removed or obscured on property abutting the public right-of-way shall file a statement of obiection with the City Manager or designee within thirty (30) days of the date of the final published notice. Such objection shall be effective for one O year. A new obiection must be filed each year thereafter to preserve the objection. If an obiection is filed by property owner, _subsection (n) of this section shall not aoply to that property owner's prooertv. The City of Miami Page 4 of 6 File Id. 09-01024 (Version: 2) Printed On: 3/212010 File Number: 09-01024 property owner who obiects pursuant to this subsection shall still be subiect to the remaining subsections of this section. (3) Notice. The appearance of graffiti on a wall, building, or other surfaces abutting the public right-of-way shall serve as notice to the property owner that the graffiti is subject to being obscured or removed by the City. Any property owner who has not filed an objection under subsection (n)(2) and who desires to obscure or remove the graffiti himself shall (i) immediately remove the graffiti or (ii) notify the City Manager or designee immediately of his intention to remove or obscure the graffiti within forty-eight (48) hours. Graffiti not removed or obscured within forty-eight48) hours is subject to removal by the City Manager or designee. (o) After taking corrective action, including any corrective action taken on property abutting the public right-of-way pursuant to subsection (n) of this section, the City Manager or designee shall file a Code Enforcement lien in the amount of all expenses incurred in correcting the condition, including all fines, continuing penalties, and actual administrative costs. (p) Such Code Enforcement liens pursuant to this section shall be treated as special assessment liens against the subiect real property, and until fully paid and discharged, shall remain liens equal in rank and dignity with the lien of ad valorem taxes, and shall be superior in rank and dignity to all other liens, encumbrances, titles, and claims in, to, or against the real property involved. The maximum rate of interest allowable by law shall accrue to such delinquent accounts. Notice of such lien shall be filed in the Office of the Clerk of the Circuit Court and recorded in the public records of Miami -Dade County, Florida. Once recorded, such lien shall constitute a lien against the property on which the graffiti existed and upon any other real or personal property owned by the property owner. Such liens shall be enforced by any of the methods provided by Florida Statute Chapter 86 or, in the alternative, foreclosure proceedings may be instituted and prosecuted under the provisions applicable to practice, pleading, and procedure for the foreclosure of mortgages on real estate set forth in Florida Statutes or may be foreclosed pursuant to Florida Statute Chapter 173, or the collection and enforcement of payment thereof may be accomplished by any other method authorized by law. The property owner shall pay all costs of collection, including reasonable attorney fees, incurred in the collection of fees, service charges, penalties, and liens imposed by virtue of this section. (g) Alternatively, code enforcement proceedings pursuant to Chapter 2, Article X of the City of Miami Code may be brought against the property upon which the graffiti exists. (r) If code enforcement proceedings are initiated, any person or firm owning property, acting as agent or manager for the owner of such property, or in possession or control of such property, who commits a violation of paragraph (g) above, shall be punished by a fine as determined by the code enforcement board. When determining the amount of fine to impose, the code enforcement board shall consider the efforts taken by the violator, if any, to remove or effectively obscure the subiect graffiti in a timely manner and how often the violator has been victimized by graffiti during the preceding calendar year. The provisions of this section shall not apply to a property owner, manager, agent, or possessor or Property if, in the sole determination of the city manager or designee, or the code enforcement board, such _property owner, agent, manager, or possessor has been victimized two (2) or more times by graffiti within any calendar year, and, during such time, has removed or effectively obscured such graffiti from the property in a timely manner. (s) The City may institute a civil action in a court of competent jurisdiction to recover compensatory and punitive damages, including_ reasonable costs and expenses, for anv damaae caused to City of Miami Page 5 of 6 File Id: 09-01024 (Mersion: 2) Printed On. 31212010 File Number: 0"1024 city -owned property located within the city limits of Miami as a result of violations of subsection (a) or (b) of this section. Section 3. If any section, part of a section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. Section 4. This Ordinance shall become effective thirty (30) days after final reading and adoption thereof.{2} APPROVED AS TO FORM AND CORRECTNESS: JULIE O. BRU 6 -V-Vx7 CITY ATTORNEY Footnotes: {1} Words/and or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. {2) This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become effective immediately upon override of the veto by the City Commission or upon the effective date stated herein, whichever is later. City of Miami Page 6 of 6 File Id: 09-01024 (Version: 2) Printed On: 312/2010