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HomeMy WebLinkAboutO-12804City of Miami Legislation Ordinance: 12804 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 06-00389 Final Action Date: 5/11/2006 AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 10, OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY CODE") ENTITLED "BUILDINGS" BY ADDING A NEW ARTICLE III, ENTITLED "LEAD BASED PAINT ON BUILDING EXTERIORS" TO PROVIDE FOR AND CLARIFY ENFORCEMENT AUTHORITY AND THE RESPONSIBILITIES OF OWNERS AND CONTRACTORS CONCERNING WORK THAT DISTURBS LEAD PAINT ON BUILDING EXTERIORS AND, MAKING MISCELLANEOUS CLARIFICATIONS; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Miami ("City") wishes to facilitate the removal of lead based paint from older structures throughout the City; and WHEREAS, the City is aware that lead -contamination is more likely to exist in structures built before 1950 and such contamination may pose problems for the owners and occupants of such older structures; and WHEREAS, certain federal government benefits would be available to the City and the owners and occupants of such older structures if the City enacts provisions establishing and providing for the regulations of, and responsibilities of, the owners and contractors who disturb lead paint on the exterior of buildings; and WHEREAS, the City Commission finds that lead poisoning is preventable. Childhood lead poisoning is caused by children ingesting lead from their environment. It is proven that lead poisoning can cause irreversible physical and mental disabilities in children including learning disabilities, hyperactivity, decreased growth, and more. The uncontrolled disturbance and removal of exterior lead -based paint is one of the major contributors of lead to the Miami environment. Furthermore, the close proximity of buildings to one another in Miami, along with the small lot size typical of many residential buildings, increases the risk of contamination of adjacent properties by lead paint debris; and WHEREAS, the exterior surfaces of buildings are frequently prepared for new painting by dry scraping, sanding, pressure blasting, or burning off the old paint and that such surface preparation methods generate waste products that include large quantities of paint debris, paint dust, and pressure blasting agents. Currently, most waste products generated by exterior surface preparation in Miami are not contained and are instead discharged directly into the air, soil, and sewer system; and WHEREAS, during uncontrolled exterior paint disturbance or removal in a residential neighborhood, numerous small pieces of paint debris and sometimes the blasting agents are deposited throughout the neighborhood -inside homes, on parked cars, on sidewalks, and in back City of Miami Page 1 of 9 File Id: 06-00389 (Version: 1) Printed On: 1/23/2017 File Number: 06-00389 Enactment Number: 12804 yards. Miami children and pets have been poisoned with lead as a result of uncontrolled exterior paint disturbance and removal. Painters and other workers working without personal protective equipment may also suffer health effects. These persons can in turn transfer lead dust from their work clothes to their children and their home environment; and WHEREAS, uncontrolled exterior paint disturbance and removal, including surface preparation, deposits lead and other metals on the ground, in storm water and sewer drains. Preventing the spread of paint debris and blasting agents is the best way to eliminate this major source of lead contamination; and WHEREAS, open -flame burning or torching of lead paint produces a lead fume in the form of a fine particulate emission from the surface of the heated metal. Once the particulate cools, it settles as a non -visible solid lead contaminant, in the environment. Because burning processes are extreme fire hazards and because lead fume contamination cannot be visually assessed, it is difficult to design and verify appropriate containment and cleanup. For these reasons, this ordinance prohibits acetylene and propane open -flame burning and torching; and, WHEREAS, the City seeks to 1) ensure that persons performing exterior lead -based paint disturbance or removal, including surface preparation, on residential, commercial, and public buildings and steel structures use work practices that reduce environmental contamination; and 2) reduce childhood lead poisoning and other dust -related health effects in Miami caused by uncontrolled exterior lead -based paint disturbance and removal, including surface preparation; NOW, THEREFORE, BE IT 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 by reference and incorporated as if fully set forth in this Section. Section 2. Chapter 10 of the Miami City Code entitled "Buildings" is amended by the addition of a new ARTICLE III, entitled "Lead- Based Paint on Building Exteriors" to read as follows:{1} "CHAPTER 10" ARTICLE III LEAD BASED PAINT ON BUILDING EXTERIORS WORK PRACTICES FOR EXTERIOR LEAD -BASED PAINT *** Section 10-27. Definitions. (1) "Accredited Laboratory' means a laboratory, which operates within the EPA National Lead Laboratory Accreditation Program. City of Miami Page 2 of 9 File Id: 06-00389 (Version: 1) Printed On: 1/23/2017 File Number: 06-00389 Enactment Number: 12804 (2) "Adjacent Properties" means properties that adjoin the regulated area of the property in question, including at the corners of lot lines. (3) "Certified" means a process used by the State of Florida and/or Miami -Dade County DERM and the US Environmental Protection Agency (EPA) to identify individuals who have completed training and other requirements to permit the safe execution of lead risk assessments and inspections, or lead hazard reduction and control work. "Certified" includes current "Interim Certification" by DHS, unless and until this status is modified by state legislation. (4) "Containment Barriers" means measures that prevent the migration of lead paint contaminants. Containment barriers shall be at least as effective at protecting human health and the environment as those contained in the most current HUD Guidelines. (5) "Contractor" means any person, whether or not in possession of a valid state contractor's license, which undertakes to or offers to undertake to or purports to have the capacity to undertake to or submits a bid to, or does by himself or herself or by or through others, any action that may or will disturb or remove paint. For purpose of this Chapter, "Contractor" shall also include subcontractors. (6) "Disturb or Remove Paint" means any action that creates friction, pressure, heat or a chemical reaction upon any lead -based paint on an exterior surface so as to abrade, loosen, penetrate, cut through or eliminate paint from that surface. This term shall include all demolition and surface preparation activities that are performed upon an exterior surface containing lead based paint. (7) "Exterior" means the outside of a building or steel structure and the areas around it within the boundaries of the property, including the outside of any detached structures, including but not limited to, outside and common walls, stairways, fences, light wells, breezeways, sheds and garages. (8) "HEPA" means a High Efficiency Particulate Air Filter. (9) "HUD Guidelines" means the most recent "Guidelines for Evaluation and Control of Lead -Based Paint Hazards" promulgated by the United States Department of Housing and Urban Development (HUD). (10) "Landlord" means an owner, lessor, or sublessor who receives or is entitled to receive rent for the use or occupancy of any commercial or residential rental property in the City of Miami, and the agent, representative or successor of any of the foregoing. (11) "Lead" means metallic lead and all inorganic and organic compounds of lead. (12) "Lead -Based Paint" or "Lead Paint" means any paint, varnish, shellac or other coating on surfaces with lead in excess of 1.0 mq/cm2 (milligrams per square centimeter) as measured by x-ray fluorescence (XRF) detector or laboratory analysis or in excess of 0.5 percent by weight, also expressed as 5,000 ppm (parts per million), 5,000 jg/g (micrograms per gram), or 5,000 mg/kg (milligrams per kilogram) as measured by laboratory analysis. City of Miami Page 3 of 9 File Id: 06-00389 (Version: 1) Printed On: 1/23/2017 File Number: 06-00389 Enactment Number: 12804 (13) "Lead -Based Paint Testing" means testing of surfaces to determine the presence of lead -based paint performed by an independent Certified Risk Assessor/Inspector, in accordance with the HUD Guidelines, and where testing includes bulk paint samples, such An Accredited Laboratory analyzes samples. (14) "Lead -Contaminated Dust" means surface dust that contains an area or mass concentration of Lead in excess of 100 pg/ft2 (micrograms per square foot) on uncarpeted floors, 500 jg/ft2 on interior window sills, and 800 jg/ft2 on exterior window sills and exterior horizontal surfaces. (15) "Lead Dust Testing" means tests conducted in accordance with the most recent federal guidelines to determine the presence or absence of Lead -Contaminated Dust within a defined area. (16) "Lead -Contaminated Soil' means areas that contain total Lead in excess of 400 ppm (parts per million) in bare soil. (17) "Lead Soil Testing" means tests conducted in accordance with the most recent federal guidelines to determine the presence or absence of Lead -Contaminated Soil within a defined area. (18) "Lead Paint Contaminants" means substances containing lead paint which are potentially hazardous to human health or the environment, including but not limited to paint chips and paint -containing soil, debris, dust, abrasives, fumes and water. (19) "Owner" means the owner of a property or the owner's authorized agent. (20) "Person" means a natural person, his or her heirs, executors, administrators or assigns, and also includes a municipal or state agency to the extent allowable by law, a firm, joint stock company, business concern, association, partnership or corporation, its or their successors or assigns, or the agent of any of the aforesaid. (21) "Prohibited Practices" means work practices prohibited under this Chapter . (22) "Responsible Party' means either (i) the owner of the property where the owner or the owner's employees or persons otherwise under the control of the owner are performing the activities regulated under this Chapter; or (ii) the owner and the contractor where the owner has entered into a contract with another to carry out ((contractor is performing)) the activities regulated under this Chapter. (23) "Regulated Area" means an area in which work is being performed that Disturbs or Removes paint, and to which access is restricted in order to prevent migration of paint contaminants. "Regulated area" shall also include any area contaminated with lead paint contaminants as a result of a breach or lack of containment barriers or a violation of the containment requirement set forth in this Chapter. (24) "Steel Structure" means any structure that is not a building and which has exterior City of Miami Page 4 of 9 File Id: 06-00389 (Version: 1) Printed On: 1/23/2017 File Number: 06-00389 Enactment Number: 12804 surfaces made of steel or other metal, such as bridges, billboards, walkways, water towers, steel tanks and roadway or railway overpasses. Section 10-28. Prohibitions. No person shall Disturb or Remove Lead Paint, or in any other way generate Lead Paint Contaminants during demolition or work on the Exterior of any existing (residential, commercial or public) building(s) or Steel Structure, except in accordance with the requirements of this Chapter. Section 10-29. Exemptions. This Chapter shall not apply to activities that Disturb or Remove paint where those activities are being performed on buildings or Steel Structures on which construction was completed after 1950, or on new construction. For purposes of this Chapter, all paint on the Exterior of any building or Steel Structure on which the original construction was completed prior to December 31, 1950, shall be presumed to be Lead Based Paint. Any person seeking to rebut this presumption shall establish through Lead -Based Paint Testing, or other means satisfactory to the City, that the paint on the building or Steel Structure in question is not Lead -Based Paint. Section 10-30. De Minimis Notification Exemption. Any person performing work subject to this Chapter who Disturbs or Removes less than ten (10) square feet of Lead -Based Paint in total shall not be required to comply with the notification requirements set forth in this Chapter. Section 10-31. Containment Barriers. Any person performing work subject to this Chapter shall establish Containment Barriers at least as effective at protecting human health and the environment as those contained in the HUD Guidelines or the Lead Paint Removal Guide published by the Steel Structure Painting Council, whichever is applicable. Section 10-32. Prohibited Practices. No person performing work subject to this Chapter shall use prohibited practices, including but not limited to: (1) Acetylene or propane burning and torching; (2) Scraping, sanding or grinding without Containment Barriers or a HEPA local vacuum exhaust tool; (3) Hydroblasting or high-pressure wash without Containment Barriers; (4) Abrasive blasting or sandblasting without Containment Barriers or a HEPA local vacuum exhaust tool; and, (5) Heat guns operating above 1,100 degrees Fahrenheit. City of Miami Page 5 of 9 File Id: 06-00389 (Version: 1) Printed On: 1/23/2017 File Number: 06-00389 Enactment Number: 12804 Section 10-33. Migration. Any person performing work subject to this Chapter shall make all reasonable efforts to prevent migration of Lead Paint Contaminants beyond Containment Barriers during the course of the work. Section 10-34. Visible Lead Paint Contaminants. The Responsible Party performing work subject to this Chapter shall make all reasonable efforts to remove all visible Lead Paint Contaminants from all Regulated Areas of the property prior to completion of the work. NOTIFICATION REQUIREMENTS. Section 10-35. Notifying Bidders. In any instance where an Owner or a Contractor is requesting bids for work subject to this Chapter, the Owner or Contractor shall notify all bidders of any paint inspection reports disclosing the presence (or absence) of any Lead Based Paint in the Regulated Area of the proposed project. Section 10-36. Contents of Notice. Prior to the commencement of work expressly subject to this Chapter, the Responsible Party (owner or contractor) shall provide written notice to the NET Office of the following: the location of the project; (2) the (nature and approximate square footage of the painted surface being Disturbed and/or Removed)) scope of work; (3) the methods and tools for paint Disturbance and/or Removal; Oj the approximate age of the building; (5) the anticipated job start and completion dates for work subject to this Chapter; (6) whether the Responsible Party has reason to know or presume that Lead -Based Paint is present; (7) whether the building is residential or non-residential, and whether it is owner -occupied or rental property, and the approximate number of dwelling units, (if any), on the property; (8) the dates by which the Responsible Party has or will fulfill any tenant or adjacent property notification requirements as described in the applicable sections of this Chapter below; and City of Miami Page 6 of 9 File Id: 06-00389 (Version: 1) Printed On: 1/23/2017 File Number: 06-00389 Enactment Number: 12804 (9) the name, address, telephone number, and (10) if available, pager number, of the party who will perform the specified work. Section 10-37. Contents of Notice. The City shall make available to the public a form that complies with the requirements of Section 10-36 and contains blank spaces for the required information. Section 10-38. Notice (by Landlord)) to Tenants. Where (the Responsible Party is a Landlord, a person or persons in the employ of a Landlord, or where a Landlord has entered into a contract with a Contractor to perform work subject to the requirements of this Chapter) work subject to this Chapter is to be performed on a residential property occupied by one or more tenants, not less than three business days before the work is to commence, the Landlord shall provide written notice to the tenant (s) of the building on which the work is being performed that lead -related work is being performed. This notice shall be in the form of a sign, letter or memorandum, and shall prominently state the following: "Work is scheduled to be performed on this property starting [date]. This work may Disturb or Remove Lead Based Paint. The persons performing this work are required to follow federal, state and local laws regulating work with Lead Based Paint. You may obtain information regarding these laws, or report any violation concerning these laws, by calling your local City of Miami NET Office. The Owner of this property is also required to provide tenants with a copy of the U.S. Environmental Protection Agency pamphlet entitled Protect Your Family From Lead Based Paint in Your Home." The City shall make available to the public a form containing this required information in English, Spanish and Creole. Section 10-39. Availability of Pamphlet. The Owner shall provide to all tenants in the building, the U.S. Environmental Protection Agency pamphlet entitled Protect Your Family From Lead -Based Paint in Your Home, except that an Owner (Landlord) shall not be required to comply with this requirement with respect to tenants to whom the Owner (Landlord) has previously provided a copy of the pamphlet. Section 10-40. Notice of Lead Contaminated Dust or Soil. Except as may be otherwise inconsistent with state law, any property Owner who has performed Lead Dust Testing or Lead Soil Testing in a Regulated Area shall provide written notice to tenants of the property of the presence of any Lead -Contaminated Dust or Lead -Contaminated Soil verified by the test results within five business days of receipt of written results. The City shall make available to the public a form that complies with the above requirements and restates the generic Information required by the notice in English, Spanish and Creole. Section 10-41. Removal of Notice of Lead Contaminated Dust or Soil. City of Miami Page 7 of 9 File Id: 06-00389 (Version: 1) Printed On: 1/23/2017 File Number: 06-00389 Enactment Number: 12804 The Owner may remove such signs when: (1) all visible Lead Paint Contaminants have been removed from the Regulated Area in accordance with this Chapter, prior to the completion of the work; or (2) upon receipt of results of additional Lead Dust or Lead Soil Testing indicating that no Lead Contaminated Dust or Lead -Contaminated Soil remains in the Regulated Area. Section 10-42. Authority of the Building Official to Sample. The City and the Building Official of the Department of Public Health may also collect paint, dust, and soil samples from the property where the work is being performed and from Adjacent Properties in order to determine whether the work is being carried out in accordance with the requirements of this Chapter. Section 10-43. Enforcement in General. The City is authorized to make use of all enforcement authority authorized by law, including, but not limited to, the authority set forth in sections 1-13(General Penalty) and/or 10-25(Enforcement of chapter 10) of this Code to enforce against any violation of this Chapter. Where the Owner and the Contractor are both Responsible Parties, the City may proceed against either the Owner or the Contractor, or against both. The City is further authorized, pursuant to Chapter 2 Article X (Code Enforcement) of this Code, following issuance of a Notice of Violation, to require as a condition of resuming work, that the Responsible Party conduct a special inspection by a Certified risk assessor in order to establish that the Regulated Area is in compliance with this Chapter. Section 10-44. Stop Work Orders. The City shall have the power to stop any work that is Disturbing or Removing Lead Paint or otherwise generating Lead Paint Contaminants in violation of this Chapter or the construction, alteration or repairs of any Steel Structure or building subject to the requirements of this Chapter when such work is being done in violation of any of the provisions of this Chapter and to order all work to be stopped upon notice to any persons engaged in the doing or causing such work to be done. The work shall be stopped immediately and shall not be resumed without authorization. Section 10-45. No Obligation by City. In undertaking the enforcement of this ordinance, the City of Miami is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury. Section 10-46. Discretionary Duty. Subject to the limitations of due process, notwithstanding any other provision of this Code, whenever the words "shall" or "must" are used in establishing a responsibility or duty of the City, its elected or appointed officers, employees, or agents, it is the legislative intent that such words establish a discretionary responsibility or duty requiring the exercise of judgment and discretion. City of Miami Page 8 of 9 File Id: 06-00389 (Version: 1) Printed On: 1/23/2017 File Number: 06-00389 Enactment Number: 12804 Section 3. All Ordinances or parts of Ordinances that are inconsistent or in conflict with the provisions of this Ordinance are repealed. Section 4. 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 5. This Ordinance shall become effective 30 days after final reading and adoption thereof.{2} 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 9 of 9 File Id: 06-00389 (Version: 1) Printed On: 1/23/2017