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HomeMy WebLinkAboutMemorandumCITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Victoria Mendez, City Attorney DATE: October 11, 2018 RE: Proposed amendment to Chapter 50 of the Code of the City of Miami, Florida, as amended, presented to the City Commission for consideration. File No. 4485 The attached proposed legislation amends Chapter 50 of the Code of the City of Miami, Florida, as amended ("City Code"), entitled "Ships, vessels, and waterways," to establish a process for the removal, destruction, and other disposition of Derelict Vessels by the Code Enforcement Board. Attachment(s) VM/BLM/FLA cc: Emilio T. Gonzalez, City Manager Miriam M. Arcia, Agenda Coordinator City of Miami File ID: 4485 (Revision:) Printed On: 4/3/2025 City of Miami Legislation Ordinance Enactment Number :13797 City Hall 3500 Pan Ameican Drive Miami, FL 33133 www.miamigov.com File Number: 4485 Final Action Date:10/11/2018 AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 50 OF THE CODE OF CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY CODE"), TITLED "SHIPS, VESSELS, AND WATERWAYS," TO ESTABLISH A PROCESS FOR THE REMOVAL, DESTRUCTION, AND OTHER DISPOSITION OF DERELICT VESSELS BY A HEARING SETTING FORTH PURPOSE AND FINDINGS, DEFINITIONS, A PROCEDURE FOR REMOVAL OR RELOCATION, HEARING DATE SCHEDULING, AND HEARING PROCEDURES; CONTAINING A SEVERABILITY CLAUSE; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, there are currently a number of Derelict Vessels, as defined herein, in, on, and under the City of Miami's ("City") public waterways and on the adjoining shoreline; and WHEREAS, such Derelict Vessels pose potential hazards to safe navigation and commercial and recreational use of City waters as well as to the environment; and WHEREAS, such Derelict Vessels are hazards to public safety and waterfront property during severe weather; and WHEREAS, Derelict Vessels are sources of degradation of the aesthetic value of City waters and shoreline; and WHEREAS, the City has, by virtue of Section 823.11, Florida Statutes, the authority to provide by ordinance for the removal and disposition, including destruction, of Derelict Vessels; and WHEREAS, the purpose of amending Chapter 50 of the Code of the City of Miami, Florida, as amended ("City Code"), is to add a new Article VII, titled "Derelict Vessels," to promote the public safety, health, and welfare of the residents of the City and the tourists and guests visiting or vacationing in the City by reducing or eliminating the threats posed by Derelict Vessels through the exercise of the authority granted to the City pursuant to Section 823.11, Florida Statutes; and WHEREAS, the City Commission desires to provide a procedure for the removal and disposition of Derelict Vessels in, on, and under the City's public waterways and on the adjoining shoreline; 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 by reference and incorporated as if fully set forth in this Section. City of Miami File ID: 4485 (Revision:) Printed On: 4/3/2025 Section 2. Chapter 50 of the City Code is amended by establishing a new Article VII, titled "Derelict Vessels," in the following particulars:1 "CHAPTER 50 SHIPS, VESSELS, AND WATERWAYS ARTICLE VII. DERELICT VESSELS Sec. 50-1. Purpose and findings. (a) There are currently a number of Derelict Vessels, as defined herein, in, on, and under the City's public waterways and on the adjoining shoreline. (b) Such Derelict Vessels pose potential hazards to safe navigation and commercial and recreational use of City waters as well as to the environment. (c) These Derelict Vessels are hazards to public safety and waterfront property during severe weather. (d) Derelict Vessels are sources of degradation of the aesthetic value of City waters and shoreline. (c) The City has, by virtue of Section 823.11, Florida Statutes, the authority to provide by Ordinance for the removal and disposition, including destruction, of Derelict Vessels. (e) The purpose of this Article is to promote the public safety, health, and welfare of the residents of the City and the tourists and guests visiting or vacationing in the City by reducing or eliminating the threats posed by Derelict Vessels through the exercise of the authority granted to the City pursuant to Section 823.11, Florida Statutes. Sec. 50-2. Definitions. Unless otherwise expressly stated, the following terms shall, for the purpose of this Article, have the meanings indicated in this Article: Derelict Vessel means a vessel as defined in Section 327.02, Florida Statutes, as amended from time to time, that is left, stored, or abandoned: 1. In a wrecked, junked, or substantially dismantled condition upon any public waters of this State; 2. At a port in this State without the consent of the agency having jurisdiction thereof; or 3. Docked, grounded, or beached upon the property of another without the consent of the owner of the property. 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. City of Miami File ID: 4485 (Revision:) Printed On: 4/3/2025 Law Enforcement Officer means any person who is elected, appointed, or employed full time by any sheriff, any municipality, or the State or any political subdivision thereof who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the State. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time Law Enforcement Officers or auxiliary Law Enforcement Officers but does not include support personnel employed by the employing agency. Sec. 50-3. Procedure for removal or relocation. (a) Without prior notice. Where a Law Enforcement Officer determines that a vessel constitutes a navigational hazard or a hazard to public safety or is determined to interfere with another vessel or where a Derelict Vessel obstructs or threatens to obstruct navigation or in any way constitutes a danger to the environment, property, or persons, the Law Enforcement Officer may immediately remove or relocate, but not destroy, the vessel pursuant to Sections 327.44, 327.70, 376.15, and 823.11, Florida Statutes. In the event a Derelict Vessel is removed or relocated prior to notice being given to the owner of the Derelict Vessel, the Law Enforcement Officer shall make a reasonable effort to ascertain the name and address of the last registered owner(s) of the Derelict Vessel. The Law Enforcement Officer shall also contact the Department of Highway Safety and Motor Vehicles in order to determine the name and address of any person(s) who has filed a lien on the Derelict Vessel as provided in Section 319.27(2) or (3) or Section 328.15(1). On receipt of this information, the Law Enforcement Officer shall mail a notice by certified mail, return receipt requested, to the owner(s) and lienholder(s), if any, advising of the location where the Derelict Vessel is being held, the reason for removal or relocation, that the owner(s) may request an administrative hearing in accordance with Section 50-4 of this Article, and that failure to request a hearing pursuant to Section 50-4 of this Article shall be deemed a waiver of the right to a hearing and an agreement to the remedy of removal, sale, destruction, or other disposition of the Derelict Vessel. Notice given pursuant to this Subsection is presumed to be delivered when it is deposited with the United States Postal Service, certified, and properly addressed with prepaid postage. Certified mail that is returned undeliverable or if delivery is refused shall be deemed as delivered for purposes of this Section. (b) With prior notice. Except where a Derelict Vessel constitutes an immediate hazard to navigation, the environment, or to public health, safety, and welfare, a Law Enforcement Officer shall affix a notice upon the Derelict Vessel at least forty-five (45) days before removing or relocating it, in substantially the following form: NOTICE TO THE OWNER AND ALL PERSONS INTERESTED IN THE ATTACHED PROPERTY. This property, to wit: (setting forth brief description) is unlawfully upon public property known as (setting forth brief description of location) and must be removed. Failure to remove the property will result in the City of Miami taking steps to have the property removed and destroyed pursuant to Chapter 705, Florida Statutes. The owner will be liable for the costs of removal, storage, and destruction of the property as provided by law. Incident/Summary Number (setting forth incident/summary number). Date of Posting: (setting forth the date of posting of notice), signed: (setting forth name, title, address, and telephone number of Law Enforcement Officer). City of Miami File ID: 4485 (Revision:) Printed On: 4/3/2025 THIS ACTION MAY AFFECT YOUR INTERESTS. YOU MAY HAVE A RIGHT TO AN ADMINISTRATIVE HEARING ON THESE ISSUES. PLEASE CONTACT THE CITY OF MIAMI DEPARTMENT OF HEARING BOARDS AT (305) 416-2030 IMMEDIATELY. URGENT ACTION REQUIRED. Such notice shall be not less than eight inches (8') by ten inches (10') and shall be sufficiently weatherproof to withstand normal exposure to the elements. In addition to posting notice upon the Derelict Vessel, the Law Enforcement Officer shall make a reasonable effort to ascertain the name and address of the last registered owner(s) of the Derelict Vessel. If such is reasonably available to the Law Enforcement Officer, he or she shall mail a copy of the aforementioned notice by certified mail, return receipt requested, to the owner(s) on or before the date of posting. The Law Enforcement Officer shall also contact the Department of Highway Safety and Motor Vehicles in order to determine the name and address of any person(s) who has filed a lien on the Derelict Vessel as provided in Section 319.27(2) or (3) or Section 328.15(1), Florida Statutes. On receipt of this information, the Law Enforcement Officer shall mail a copy of the aforementioned notice by certified mail, return receipt requested, to the lienholder(s), if any. Notice given pursuant to this Subsection is presumed to be delivered when it is deposited with the United States Postal Service, certified, and properly addressed with prepaid postage. Certified mail that is returned undeliverable or if delivery is refused shall be deemed as delivered for purposes of this Section and will begin the forty-five (45) day count for removal if the Derelict Vessel has been posted with the Derelict Vessel Notice Sticker. If, at the end of forty-five (45) days after posting the notice and mailing such notice, if required, the subject Derelict Vessel is not removed, the Law Enforcement Officer may immediately remove or relocate, but not destroy, the Derelict Vessel pursuant to Sections 327.44, 327.70, 376.15, and 823.11, Florida Statutes. Sec. 50-4. Administrative hearings to determine disposition of Derelict Vessels. (a) Request for an administrative hearing. The owner(s) of a Derelict Vessel may request a hearing before the Code Enforcement Board to show that the condition(s) alleged in the notice does not exist or that the Derelict Vessel is not derelict pursuant to Section 823.11, Florida Statutes, by submitting a written request for hearing to the Office of Hearing Boards within twenty-one (21) days after the notice required by this Section is given. The written request may be provided by facsimile, electronic mail, or other electronic means and must indicate if the owner contends that the vessel is not derelict, or indicate such other specific grounds on which impoundment, removal, or destruction of the Derelict Vessel is challenged. Failure to request a hearing pursuant to this Section shall be deemed a waiver of the right to a hearing and an agreement to the remedy of removal, impoundment, sale, destruction, or other disposition of the Derelict Vessel. (b) Hearing notices. (1) Within thirty (30) days of receipt of a Derelict Vessel owner's timely written request for an administrative hearing, the Office of Hearing Boards shall schedule a hearing before the Code Enforcement Board. (2) The Office of Hearing Boards shall send a written notice of hearing by certified mail, return receipt requested, to the Derelict Vessel owner(s) at his or her last known mailing address stating the time, date, and place of the hearing. (3) The notice of hearing shall inform the owner(s) of the specific grounds for classification of the vessel as derelict, and his or her opportunity to demonstrate why the condition(s) City of Miami File ID: 4485 (Revision:) Printed On: 4/3/2025 alleged in the notice does not exist or that the vessel is not derelict pursuant to Section 823.11, Florida Statutes. The notice of hearing shall additionally advise that: (i) Failure of the owner(s) or person(s) entitled to possession of the Derelict Vessel to timely request or attend a scheduled hearing shall be deemed a waiver of the right to such hearing and creates a presumption that the vessel is derelict. (ii) The person(s) demanding the hearing shall carry the burden of establishing by a preponderance of the evidence that the condition(s) alleged in the notice does not exist or that the vessel is not derelict. (iii) The costs of impoundment, removal, sale, destruction, or other disposition of a Derelict Vessel shall be taxed to the registered owner(s). (iv) Pursuant to Section 705.103(4), Florida Statutes, any person who neglects or refuses to pay such amount shall not be entitled to be issued a certificate of registration for such Derelict Vessel or motor vehicle, or any other vessel or motor vehicle, until such costs have been paid. No other notices are required. Unless the Derelict Vessel constitutes an immediate hazard to navigation or to public health, safety, and welfare, a timely written request for a hearing under this Section stays all enforcement proceedings until an order of the Code Enforcement Board is rendered. (c) Conduct of hearings. (1) Hearings pursuant to this Article shall be conducted by the Code Enforcement Board. (2) The City Manager shall provide all necessary clerical and administrative staff support to the Code Enforcement Board, including space and necessary expenses which may be reasonably required by the Code Enforcement Board for the proper performance of its duties. Among other duties, the Office of Hearing Boards shall be custodian of all cases and documents pertaining thereto and shall have the authority to certify orders and other documents issued by the Code Enforcement Board. (3) All hearings before the Code Enforcement Board shall be open to the public. All testimony shall be given under oath and shall be recorded electronically or by a stenographer. Such recording may be transcribed at the expense of the party requesting the transcript. (4) The Code Enforcement Board shall consider the evidence presented by the Derelict Vessel owner(s) and the City at the hearing. Formal rules of evidence shall not apply, but fundamental due process shall govern the proceedings. All parties shall have an opportunity to present evidence and argument on all issues involved, conduct cross examination, submit rebuttal evidence, and be represented by counsel. (5) The Code Enforcement Board shall proceed with a hearing in absentia on the merits of the alleged violation for all registered owner(s) whom have been properly noticed in regard to the hearing and fail to appear. Any findings or orders resulting from such hearing are valid and binding upon the registered owner(s). City of Miami File ID: 4485 (Revision:) Printed On: 4/3/2025 (6) The Code Enforcement Board shall determine whether a vessel is derelict in violation of this Article. If the Code Enforcement Board determines that a vessel is not derelict, then the vessel shall be returned to the owner(s) without payment of costs for removal and storage or the owner(s) shall be entitled to a refund or reimbursement of the reasonable costs of removal and storage if they were paid by the owner(s). If the Code Enforcement Board determines that a vessel is derelict, the City may proceed to dispose of the Derelict Vessel as provided in Section 823.11, Florida Statutes. The costs of storage, removal, sale, destruction, or other disposition of a Derelict Vessel shall be taxed to the registered owner(s). If the registered Derelict Vessel owner(s) does not pay the costs of removal, storage, and disposal (whether by destruction, sale, or otherwise) of a Derelict Vessel within thirty (30) days of the date the City sends an invoice, then the City may lien the Derelict Vessel with such costs. (7) Following a hearing, the Code Enforcement Board shall make findings of fact and conclusions of law based upon the evidence presented and made part of the record determining whether a vessel is derelict. The decision of the Code Enforcement Board is final. Sec. 50-5. Special assessment lien for costs of removal and disposition of Derelict Vessels. All costs of removal, storage, and disposal (whether by destruction, sale, or otherwise) of a Derelict Vessel shall be charged to the owner of such Derelict Vessel to the full extent permitted by law. Any person who neglects or refuses to pay such amount shall not be entitled to be issued a certificate of registration for such Derelict Vessel or motor vehicle, or any other vessel or motor vehicle, until such costs have been paid. If the registered Derelict Vessel owner(s) does not pay the costs of removal, storage, and disposal (whether by destruction, sale, or otherwise) of a Derelict Vessel within thirty (30) days of the date the City sends an invoice, then the City may lien the Derelict Vessel with such costs. The lien created shall be considered a special assessment lien that may be recorded in the public records of Miami -Dade County. The lien shall accrue interest at the maximum legal rate allowed by law from the date of the City's invoice until the costs and administrative fee are paid. The City Attorney is hereby authorized to file such instruments as are necessary to establish and enforce any lien upon such Derelict Vessel for such costs. The City may foreclose on such lien pursuant to Section 2-827 of this City Code. Such lien shall have equal dignity with a tax lien. Sec. 50-6, Appeal. An aggrieved party, including the City, may appeal a final decision of the Code Enforcement Board to the circuit court of the Eleventh Judicial Circuit of Florida in accordance with the Florida Rules of Appellate Procedure. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the Code Enforcement Board. An appeal shall be filed within thirty (30) days of rendition of the order to be appealed. Sec. 50 -7. Nonexclusivity of remedy. The remedies referenced in this Section are cumulative with other available remedies pursuant to state law, including but not limited to, arrest and prosecution pursuant to criminal statutes, civil remedies, and fines, and are not exclusive. The City's access to the courts of the state is neither precluded nor prohibited by the enactment of this Article. *„ City of Miami File ID: 4485 (Revision:) Printed On: 4/3/2025 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: ndez, ity Attor ey 9/4/2018 2 This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten (10) calendar 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 File ID: 4485 (Revision:) Printed On: 4/3/2025