HomeMy WebLinkAboutO-13317City of Miami
Legislation
Ordinance: 13317
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 12-00158 Final Action Date: 3/8/2012
AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 22 OF
THE CODE OF THE CITY OF MIAMI CODE, FLORIDA, AS AMENDED ("CITY
CODE"), ENTITLED "GARBAGE AND OTHER SOLID WASTE," MORE
PARTICULARLY BY AMENDING SECTION 22-93 ENTITLED "ENFORCEMENT
AND ADMINISTRATIVE FEES", TO DETAIL AN ENFORCEMENT AND COLLECTION
PROCESS, DELETING CODE ENFORCEMENT PROCEDURES ALREADY SET
FORTH IN CHAPTER 2 OF THE CITY CODE; FURTHER CREATING SECTION
22-94 TO PROVIDE FOR AN APPEAL PROCESS; CONTAINING A SEVERABILITY
CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the proposed amendment to Chapter 22 of the Code of the City of Miami, Florida,
as amended ("City Code"), will clarify the collection process of the existing temporary roll -off container
permit fee, enable disposition of illegal containers and implement an appeal process and will delete
code enforcement procedures already set forth in Chapter 2 of the City Code;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the Preamble of this Ordinance are adopted and
incorporated as fully set forth in this Section.
Section 2. Chapter 22 of the City Code, is amended in the following particulars: {1}
"CHAPTER 22
GARBAGE AND OTHER SOLID WASTE
ARTICLE III. ENFORCEMENT AND ADMINISTRATION
Sec. 22-93. Enforcement and administrative fees.
{a) Any person, franchisee, firm, corporation or other legal entity who has not strictly complied with
the provisions of this chapter shall be subject to the enforcement procedures as set forth herein:
person, franchisee, firm, corporation or other legal entity in writing. Service shall be effected by
City of Miami
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or older and informing that person of its contents, or the civil violation notice may be sent by certified
mail, return receipt requc ted. In addition to providing notioe-as set forth abovo at the option of the
days in at least two locations, one of which shall be the property upon which the violation -is alleged to
agcnt who postcd the notice. Evidcncc that an attcmpt has been madc to hand dclivcr or mail notice
together with proof of posting shall be sufficient that notice requirements have been met.
(a) The Director of Solid Waste, or designee, shall have the authority to initiate enforcement
proceedings, against any person, franchisee, firm, corporation or other legal entity who has not strictly
complied with the provisions of this chapter.
(1) If an inspector finds a violation of this chapter, the Director of Solid Waste, or designee,
shall issue a notice of violation to the violator, as provided in section 2-823 of this
Code. The notice shall inform the violator of the nature of the violation, the amount of
fine for which the violator may be liable, instructions and due date for paying the fine,
notice that the violation may be appealed by requesting an administrative hearing
within ten (10) days after service of the notice of violation, and that failure to do so
shall constitute an admission of the violation and waiver of the right to a hearing.
gj A non -franchisee roll-off/container shall be subject to seizure and impoundment. Written
notice of the Department's intent to seize the roll-off/container shall be posted to the
roll-off/container which is subject to seizure and impoundment. The Department shall
not seize any roll-off/container within ten (10) days from the posting of the written
notice. In addition to posting notice, the Department shall also provide written notice of
such seizure and impoundment to all persons, firms, corporations, or other legal
entities, whom the Department knows, or with reasonable investigation should know, to
have a legal interest in the subject roll-off/container by certified mail, return receipt
requested, within 24 hours of posting notice. The written notice shall include the
following:
a. The name of the City department or division issuing such notice.
b. The date upon which the notice was issued.
c. The date that the notice was posted to the roll-off/container.
d. The section number of the City code or ordinance that has been violated.
e. Notice that the Department will seize and impound the roll-off/container in the event
that the roll-off/container is not removed from the premises within ten (10) days
from the date of the posting of the written notice.
f. Notice of the right to request a preliminary hearing, pursuant to section 22-94, to
contest the seizure and impoundment of the roll-off/container.
g_ Notice of the right to request a preliminary hearing, pursuant to section 22-94, to
contest the seizure and impoundment of the roll-off/container and immediately
retrieve the roll-off/container from the Department upon the posting with the
Department a cash bond in the amount of $500.00, plus costs incurred by the
Department.
h. Notice of the right to waive the preliminary hearing and immediately retrieve the
roll-off/container from the Department upon the payment of a $500.00
administrative penalty, plus costs incurred by the Department.
i. Notice that the failure to request a preliminary hearing within ten (10) days after the
notice was mailed shall constitute a waiver of the right to a preliminary hearing
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pursuant to section 22-94.
A roll-off/container that has been seized and impounded, which has not been returned
to the owner or interested party by virtue of a preliminary hearing, final hearing, appeal,
or payment of an administrative penalty, shall become the property of the City.
(3) The Department is authorized to immediately seize and impound a roll-off/container in the
event the Department determines that said roll-off/container constitutes a public
nuisance and poses a health and safety concern. Written notice of the Department's
action shall be posted at the site where the roll-off/container was located. In addition
to posting notice, the Department shall also provide written notice of such seizure and
impoundment to all persons, firms, corporations, or other legal entities, whom the
Department knows, or with reasonable investigation should know, to have a legal
interest in the subject roll-off/container by certified mail, return receipt requested, within
24 hours of posting notice. The written notice shall include the following:
a. The name of the City department or division issuing such notice.
b. The date upon which the notice was issued.
c. The date that the notice was posted at the location where the roll-off/container was
found.
d. The section number of the City code or ordinance that has been violated.
e. Notice of the right to request a hearing, pursuant to section 22-94, to contest the
seizure and impoundment of the roll-off/container.
f. Notice of the right to request a hearing, pursuant to section 22-94, to contest the
seizure and impoundment of the roll-off/container and immediately retrieve the
roll-off/container from the Department upon the posting with the Department a cash
bond in the amount of $500.00, plus costs incurred by the Department.
g_ Notice of the right to waive the hearing and immediately retrieve the
roll-off/container from the Department upon the payment of a $500.00 fine, plus
costs incurred by the Department.
h. Notice that the failure to request a hearing within ten (10) days after the notice was
mailed shall constitute a waiver of the right to a preliminary hearing pursuant to
section 22-94.
A roll-off/container that has been seized and impounded, which has not been returned
to the owner or interested party by virtue of a preliminary hearing, final hearing, appeal,
or payment of an administrative penalty, shall become the property of the City.
{2) A violator who has been served with a civil infraction notice shall elect either to:
the violation; or
i� Regustanadministrative hearing b re hearing ofrfiiear—te appeal he
determination of the enforcement officer which resulted in the i.suance of the civil
infraction notice.
{-a)
writing to set the hearing for review and mailing said request to the code
enforcement cicrk or hip/her designee or to the address indicated on the notice, no
Inter than tcn (10) days after the service of the civil infraction.
If 4If 4h omed viola ocor, afternotice, fails to pay tho i iil penalt d corrreGt—the
violation (within Oho time spe ed1 o ely request an administrative
rhari y efforc—ahearin ee�r sach —fuirure—sharl— constrtute—a-warver -ofr the
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{5)
right to administrative hearing shall be treated as an admi.cion of the violation and
penalties may be a.ce.ced accordingly.
I Ipon receipt of a named violator's timely reguest for an administrative hearing Oho
0
code enforcement clerk or his/her designee shall set the matter down for hearing
on the next available regularly scheduled hearing date or as soon as po.cible.
{6) The code enforcement clerk or his/her designee shall send a notice of hearing by
certed mail to the violator at his/her last known address.TTrhe nootiGe-Gf-Tearingg
shall include but not be limited to the following:
a: Name of the enforcement officer who issued the notice;
Factual description of the alleged violation;
Date of alleged violation;
Section of the Code allegedly violated;
e: Place, date and time of hearing;
f Right of violator to be represented by an attorney;
g Right of violator to present wi ?aesc�and-evidencece; and
Notice that failure of violator to attend a hearing may result in civil penalty being
ac•cecced against him/her.
{7)
or more frequently upon request of the city manager or his/her designee. No
hearing shall be set sooner than 20 days from the date of service of the civil
infraction.
{8) All hearings before the hearing officer shall be open to the public. All testimony
shall hap-be-una er ticv a hearinag ma ooceed in amta absencce-ef
the named violator.
{9)
The violator shall be allowed to make a record of the hearing by the use of a court
reporter; such recording may be transcribed at the expense of the party requesting
the transcript. The party desiring the court reporter shall be responsible for the
app rance fee.
personnel to facilitate the proper i.cuance of civil infraction notices, proce.cing and
review of cases as many he reasonably re I firer! and for the proper performance of
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clerical and hearing officer's duties.
{11}
representative of the department which i.cued the violation.
{12) The hearing need not be conducted in accordance with formal rules of evidence.
Any relevant evidence shall be admitted if the hearing officer finds it competent and
Teliablee regardless ofT heexisteneegf common law or stab stor y rule to e
contrary.
tvo Asa examami�o-p�sinsing �a n any matteerreleya t t�v cTissues-even
though that matter w�'a` s not covered in the direcexamination to impeach an y
rrrc�crgi��rra-maTc�.�wa��rv� v �mrr�arrc � �TTTP �TTY
witne?s-regard ess off whrich party first driedhim to testify anrloTelut the
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c-✓idencc against him.
{14) The hearing officer shall make findings of fact based on the evidence in the record
alone. In ordcr to make a finding upholding an enforcement officer's determination
evidence indicates that thc violator wa., legally responsible for thc infraction of the
relev aFcant section „f the city ordinnaanGe-orc-ity easc ed, and that a violation
does/did in fact exist.
{15) Thy e-presc-r-i-loed ti o co rection of the violati ento t amedviolator and
contained inin the nottice of violation shall be presumed to have been a reasonable
time for correction. Upon presentation of relevant evidence by the named violator
that the time for correction was not reasonable the hearing officer may make a
trr rrc �.r �r �vr-ra-�crn�r rn--r9--vrrrc
redetermination as to the reaconablenec.c of the time for correction contained in the
notice of violation, if the time was Ie.s than five days.
{ Integratediolator is found guilty of the violation, he/she may be held liable for the
costs of the prosecution.
{17) The fact-finding determination of the hearing officer shall be limited to whether the
named in the civil infraction is legally responsible for that violation. The hearing
to the responsibility of the named violator for the correction of the city ordinance or
city Code violation. If the hearing officer reverses the determination of the
enforceri�� +cer anal finds the named violator not responsible for the alleged
Tvr cr-arra�ma���c�--rarrr vrrc�rn
ruling by the city, the named violator shall not be liable for the payment of any civil
penalty. If the decision of the hearing officer is to affirm the enforcement officer's
determination of violation, then the following elements shall be included in the
decision:
a- Amount of civil penalty• anal
0
Costs of prosecution.
Verbal warning that failure to comply with date by which violation must be
corrected will result in an automatic referral to the hearing officer
The hearing officer shall have the power to:
a, Adopt procedures for the conduct of hearings;
Y Sub-ppooena alleged violators and witnesses for heari�j; s b—peenas m�e
served by either the city police department or by the staff of the hearing officer;
Subpoena evidence;
d- Take-testinniony-unde-r-oaanel
d
0
e: A.ce.s and order the payment of civil penalties as provided herein.
Sec. 22-94. Hearings.
(a) The owner, or authorized representative, of a roll-off/container that has been seized and
impounded pursuant to section 22-93 (a)(2) or 22-93 (a)(3) of this Chapter, may file a written request
with the Department of Hearing Boards for a preliminary hearing within ten (10) days from the date
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the Department's notice is mailed.
(1) The hearing shall be scheduled before a special master of the city within ten (10) days of
receipt of the written request, excluding Saturdays, Sundays, and legal holidays.
(2) At the hearing, the city shall have the burden to show that probable cause existed to
believe that the roll-off/container constituted a public nuisance under Chapter 22 of the
city code and was subject to seizure and impoundment pursuant to section 22-93 (a)
(2). If the roll-off/container was immediately seized and impounded pursuant to section
22-93 (a)(3), the city shall have the burden of showing that probable cause existed to
believe that the roll-off/container constituted a public nuisance under Chapter 22 of the
city code and posed a health and safety concern.
(3) The formal rules of evidence shall not apply at the hearing and hearsay and circumstantial
evidence is admissible.
(4) If, after the hearing, the special master determines that the city has met its burden, as set
forth by section 22-94 (a)(2), the special master shall order the continued
impoundment of the roll-off/container, if applicable, and set the date for a final hearing.
The owner, or authorized representative, may immediately retrieve the roll-off/container
from the Department upon the posting of a cash bond with the Department in the
amount of $500.00 without impairing the right to a final hearing.
(5) If, after the hearing, the special master determines that probable cause did not exist, the
roll-off/container shall be released forthwith to the owner, or authorized representative,
without the imposition of the administrative civil penalty. If the owner, or authorized
representative, has already posted a bond for the immediate release of the
roll-off/container, the bond shall be refunded to the owner or authorized representative.
(b) The final hearing shall be scheduled and held, unless continued by order of the special master, no
later than thirty (30) days after the date that the roll-off/container was seized and impounded. At the
final hearing, the city shall have the burden of showing by clear and convincing evidence that the
roll-off/container constituted a public nuisance under Chapter 22 of the city code. If the
roll-off/container was seized and impounded pursuant to section 22-93 (a)(3), then the city must also
show by clear and convincing evidence that the roll-off/container posed a health and safety concern.
If, after the hearing, a finding is made that the roll-off/container was properly impounded and seized,
then the special master shall enter an order finding the owner of the roll-off/container civilly liable to
the city for an administrative civil penalty of up to $500.00, as outlined in subsection 22-93 (a)(2)(h) or
22-93 (a)(3)(g), plus costs incurred by the Department. If, after the hearing, a finding is made that the
city did not meet its burden of proof as set forth in this subsection, the roll-off/container shall be
returned to the owner along with any cash bond posted.
Sec. 22-95. Appeal.
The city or the owner of the roll-off/container that has been the subject of a seizure and impoundment
pursuant to sections 22-93 (a)(2) or 22-93 (a)(3) may, after a hearing pursuant to section 22-94,
appeal the final ruling and decisions of the special master to the appellate division of the circuit court
of the Eleventh Judicial Circuit of Miami -Dade County, Florida, within thirty (30) days of the date of
the final order being appealed. The city may charge the appellant a reasonable fee for preparation of
the record for purposes of making the appeal.
*I1
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
City of Miami
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thereof.{2}
Footnotes:
{1} Words and/of figures stricken through shall be deleted. Underscored words and/or figures shall
be added. The remaining provisions are not 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 state stated herein, whichever is later.
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