HomeMy WebLinkAbout2006-3511 Ordinance ORDINANCE NO. 2006-3511
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING
CHAPTER 46 OF THE CITY CODE, ENTITLED
"ENVIRONMENT," BY AMENDING ARTICLE IV, ENTITLED
"NOISE," BY AMENDING SECTION 46-151, ENTITLED
"DEFINITIONS," TO PROVIDE NEW TERMS AND
DEFINITIONS AND DELETING CERTAIN TERMS AND
DEFINITIONS; AMENDING SECTION 46-152, ENTITLED
"UNREASONABLY LOUD NOISE PROHIBITED," BY
AMENDING THE TITLE AND ADOPTING SECTION 21 - 28 OF
THE CODE OF MIAMI-DADE COUNTY BY REFERENCE;
AMENDING SECTION 46-153, ENTITLED "RESPONSIBILITY
FOR COMPLIANCE," BY AMENDING THE PROVISIONS
THEREOF; REPEALING SECTION 46-154, ENTITLED "NOISE
LEVEL IN SPECIFIC AREA"; REPEALING SECTION 46-155,
ENTITLED "ADDITIONAL SOUND LIMITATIONS FOR PUBLIC
PROPERTY"; AMENDING SECTION 46-156, ENTITLED
"TEMPORARY PERMITS," BY EXPANDING THE PROHIBITED
AREAS FOR CONSTRUCTION NOISE TO WITHIN 300 FEET OF
CERTAIN DISTRICTS AND AMENDING THE EXEMPTIONS
FOR SPECIAL EVENTS AND FILM PERMITS; AMENDING
SECTION 46-157, ENTITLED "EXEMPTIONS," AND BY
DELETING SUBSECTION (11) AND AMENDING THE
PROVISIONS THEREOF; AMENDING SECTION 46-158,
ENTITLED "ENFORCEMENT BY CODE INSPECTORS; NOTICE
OF VIOLATION," BY AMENDING THE PROCEDURES FOR
ENFORCEMENT AND WARNINGS; AMENDING SECTION 46-
159, ENTITLED "CIVIL FINES FOR VIOLATION; APPEALS," BY
AMENDING THE FINES AND PENALTIES FOR VIOLATIONS,
THE APPEAL PROCEDURES, AND THE ALTERNATE MEANS
OF ENFORCEMENT; AMENDING SECTION 46-161, ENTITLED
"MOTOR VEHICLE ALARMS" BY AMENDING THE
PROVISIONS CONCERNING VIOLATIONS; PROVIDING FOR
CODIFICATION, REPEALER, SEVERABILITY, AND AN
EFFECTIVE DATE.
WHEREAS, noise has been a topic of concern within the City of Miami Beach for many
years and has recently been the subject of Commission discussion and community meetings to
address modified enforcement and legislative solutions; and
WHEREAS, the purpose of this ordinance is to obtain compliance with the prohibition
on unnecessary and excessive noise in the City before imposing fines and other penalties; and
WHEREAS, in order to strike a balance between the concerns of the business
community and residents, a warning and violation system has been developed which takes into
account the diverse character of the City; and
WHEREAS, the provisions in this Ordinance will serve to further address the noise
concerns of the City and its residents.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH AS FOLLOWS:
SECTION 1. That Section 46-151 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby amended as follows:
Chapter 46
ENVIRONMENT
ARTICLE IV. NOISE
Sec. 46-151. Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Accessory use means those uses deemed accessory uses under the Land Development
Regulations of this Code.
Amplification device means any instrument, machine, or system, which by electronic means
augments sound by increasing the sound level or volume.
Amplified sound means sound augmented by any electronic means that increases the sound level
or volume.
City manager means the city manager or the city manager's designee which may be. one of his
assistants or a department or division head of the city designated by the city manager, or the
Special Master.
Code inspector means an authorized employee or agent of the city whose duty it is to ensure
code compliance, including but not limited to inspectors of the city's code compliance
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department, ~nd police officers, or any authorized agent or employee of the city whose duty it is
to assure code compliance.
Conditional use means those uses deemed conditional uses under the l,and Developmenl
Regulations of this Code.
Emergency work means any work performed for the purpose of remedying conditions that create
an imminent peril to life, health or property.
Habitual means when a person or entity has more than five offenses within 3618 months of thc
first offense.
Offense means a notice of violation that has not been appealed timely or a finding of violation by
a special master following the appeal of a violation,
One daf means a 24 hour period from noon to noon.
................. ~ ..................... aming
Premises means any real property or parcel of land, including the buildings, structures or other
improvements thereon.
O, uafified Noise Engineer means any person from a list of engineers maintained by the City
selected pursuant to the Ci _ty's competitive bidding procedures.
Special master means a hearing officer appointed pursuant to chapter 30 of this Code.
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Violator means a person or entity determined or cited by a code inspector as being in violation of
the provisions of this Article.
SECTION 2. That Section 46-152 of Article IV of Chapter 46 of the Miami Beach City Code
is hereby amended as follows:
· T ........ ,.,.. ,cua .~; ..... ,.;,.;,~a Adoption by reference. Noises;
Sec. 46-152. ~ .......... ~ .......
unnecessary, and excessive prohibited.
,,-'awful fo pc
p ~:, an:,' ·
pro e ,. ...............................
loud.
Section 21-28 of the Code of Miami-Dade County, entitled "Noises; unnecessary and excessive
prohibited,''~ is recognized as being in force in the City and is hereby adopted by reference as if
Section 21 - 28 of the Code of Miami-Dade County provides as follows:
Sec. 21-28. Noises; unnecessary and excessive prohibited.
It shall be unlawful for any person to make, continue, or cause to be made or continued any
unreasonably loud, excessive, unnecessary or unusual noise. The following acts, among others,
are declared to be unreasonably loud, excessive, unnecessary or unusual noises in violation of
this section, but this enumeration shall not be deemed to be exclusive, namely:
(a) Horns, signaling devices, etc. The sounding of any horn or signaling device on any
automobile, motorcycle, bus or other vehicle on any street or public place of the County, except
as a danger warning; the creation by means of any such signaling device of any unreasonably
loud or harsh sound; and the sounding of any such device for any unnecessary and unreasonable
period of time.
(b) Radios, televisions, phonographs, etc. The using, operating, or permitting to be played,
used or operated any radio receiving set, television set, musical instrument, phonograph, or other
machine or device for the producing or reproducing of sound in such manner as to disturb the
peace, quiet and comfort of the neighboring inhabitants, or at any time with louder volume than
is necessary for convenient hearing for the person or persons who are in the room, vehicle or
chamber in which such machine or device is operated and who are voluntary listeners thereto.
The operation of any such set, instrument, phonograph, machine or device between the hours of
11:00 p.m. and 7:00 a.m. in such manner as to be plainly audible at a distance of one hundred
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full set forth herein as that code ma be amended from time to time. All code ins ectors as
defined in this Article are authorized and directed to enforce the rovisions of said Section 21-
28 and the rovisions of this Article.
(100) feet from the building, structure or vehicle in which it is located shall be prima facie
evidence of a violation of this section.
(c) Animals, birds, etc. The owning, harboring, possessing or keeping of any dog, animal or
bird which causes frequent, habitual or long continued noise which is plainly audible at a
distance of one hundred (100) feet from the building, structure or yard in which the dog, animal
or bird is located.
(d) Whistles. The blowing of any locomotive whistle or whistle attached to any stationary
boiler except to give notice of the time to begin or stop work or as a warning of fire or danger or
upon request of the proper municipal or County authorities.
(e) Exhausts. The discharge into the open air of the exhaust of any steam engine, stationary
internal combustion engine, or motor vehicle except through a muffler or other device which will
effectively prevent unreasonably loud or explosive noises therefi'om.
(f) Defect in vehicle or load The use of any automobile, motorcycle, jet ski, water bike,
recreational vehicle, dirt bike or motor vehicle so out of repair, so loaded or in such manner as to
create unreasonably loud or unnecessary grating, grinding, rattling or other noise within a
residential area.
(g) Schools, courts, hospitals. The creation of any excessive or unreasonably loud noise on
any street adjacent to any school, institution of learning, house of worship or court while the
same are in use, or adjacent to any hospital, which unreasonably interferes with the workings of
such institutions, or which disturbs or unduly annoys the patients in the hospital, provided
conspicuous signs are displayed in such streets indicating that it is a school, hospital or court
street.
(h) Hawkers, peddlers. The shouting and crying of peddlers, hawkers, and vendors which
disturbs the peace and quiet of the neighborhood.
(i) Noises to attract attention. The use of any drum, loudspeaker or other instrument or device
for the purpose of attracting attention by creation of any unreasonably loud or unnecessary noise
to any performance, show, sale, display or advertisement of merchandise.
(j) Loudspeakers, etc. The use or operation on or upon the public streets, alleys and
thoroughfares anywhere in this County for any purpose of any device known as a sound truck,
loud speaker or sound amplifier or radio or any other instrument of any kind or character which
emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or
standing upon such streets or public places aforementioned. It is provided, however, that this
subsection is not intended to be construed in a manner that would interfere with the legitimate
use of the foregoing loudspeaker type devices in political campaigns.
(k) Power tools and landscaping equipment. The operation of noise-producing lawn mowers,
lawn edgers, weed trimmers, blowers, chippers, chain saws, power tools and other noise-
producing tools which are used to maintain or at a residence out-of-doors between 8:00 p.m. and
7:00 a.m.
(1) Shouting. Any unreasonably loud, boisterous or raucous shouting in any residential area.
(Ord. No. 58-5, § 21.07, 2-18-58; Ord. No. 96-130, § 1, 9-10-96)
SECTION 3. That Section 46-153 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby amended as follows:
Sec. 46-153. Responsibility for compliance.
For purposes of ~ ;~-" ,4': ~'~ *T` ..... T` ,4'~ ~ this Article, any person owning or having
responsibility for management of a busiv, ess premises, however temporarily, any performer or
disc jockey producing sound upon any busim~ premises, any person playing music, any person
having control of volume knobs or levels or amplification devices, and the business as named on
the occupational license, if applicable, shall be jointly and severally liable for compliance with
this article and shall be responsible for any violations of this article.
SECTION 4. That Section 46-154 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby repealed.
Sec. 46-154· Noi~e :eve: :'- spec:fie a.,~.. Repealed.
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IT. ........................... ~ ~ SOb' ..... rc ............ e. k,...-.t-,,,..J
SECTION 5. That Section 46-155 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby repealed.
................... r- --r-,- '-.,-- ale .
V C,~ ,.~.,..,,. j.,,,..,,.,,.,..,.,,..,o ,..,,..,.,.,~.,*,..,,..,,., ........ ,~, ~, ~ ~.~ ....... ,, .o V ...... J '*'*"* '-' ....
SECTION 6. That Section 46-156 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby amended as follows:
Sec. 46-156. Temporary permits.
(a) The city manager or his designee is authorized to issue a temporary permit to allow noise
prohibited by sections 46-152 amt-46-t-55 when produced by a temporary use or activity
that does not significantly endanger the health, safety or welfare of the neighborhood.
The city manager or his designee may prescribe any reasonable conditions necessary to
minimize any adverse effect upon the community. A permit granted under this article
shall contain all conditions upon which the permit has been granted, including the period
of time for which the permit has been granted. Such. relief may be granted in the
following situations:
(1) Code compliance in progress. When an applicant is utilizing best efforts to
comply with the noise restrictions in this article, but additional time is required for
the applicant to modify his activity to comply and no reasonable alternative is
available to the applicant:,_ 8such permits may be granted for a period of time not
to exceed ten days.
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(2) Construction. When construction activities pursuant to a valid building permit
cannot be carried out in a manner which would comply with sections 46-152
46-1-54; provided that all equipment shall be operated in accordance with
manufacturer's specifications, shall be in good repair and shall utilize all noise
baffling methods as specified by the manufacturer, and further provided that such
activities shall occur only as follows:
a. Between the hours of 7:30 a.m. and 6:30 p.m. and between the hours of
7:30 a.m. and 7:30 p.m. during daylight savings time, on any day in areas
zoned as CCC, GU, I-l, MR, CPS-I, CPS-2, CPS-3, CPS-4, RO, WD-1,
WD-2, GC, HD, MXE, CD-1, CD-2 and CD-3.
b. Between the hours of 8:00 a.m. and 6:00 p.m. on weekdays and 10:00 a.m.
and 4:00 p.m. on Saturdays in areas zoned as RM-1, RM-2, RM-3, RM-
PRD, RPS-1, RPS-2, RPS-3, RPS-4, RMPS-1, RS-l, RS-2, RS-3, RS-4,
TH and in any exclusively residential zoning district not otherwise
specified in this subsection, or within three hundred feet of any of these
zoning districts. No construction shall be permitted on Sundays or on
national holidays.
Notwithstanding the provisions set forth in subsections (a)(2)a and b of this
section, the ,1`4:.. ,,,-~;,,
bu ...... ~, ........City Manager or his designee may authorize any
construction activity at a particular site within a zoning district set forth in
subsection (a)(2)a of this section earlier than 7:30 a.m. Under emergency
circumstances only, the building official may authorize any necessary
construction activities earlier than 8:00 a.m. and/or later than 4:00 p.m. on any
day within a zoning district set forth in subsection (a)(2)b of this section. The
work authorized by the building official pursuant to this subsection may be
conditioned upon notice to surrounding property owners and tenants. Such
permits may be granted for'a period of time not to exceed three consecutive days.
Special events andfilm and print permits. A film permit issued pursuant to section
12-1, or a special event permit issued pursuant to section 12-5 may be exempted from
the requirements of section 46-152 upon specific compliance with sections 12-1 (9) or
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5(8)
and
(b) Failure to comply with any condition of a temporary permit issued pursuant to this
section shall constitute a violation and shall result in enforcement procedures and
penalties as set forth in sections 46-158, 46-159 and 46-160.
SECTION 7. That Section 46-157 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby amended as follows:
Sec. 46-157. Exemptions.
The following uses and activities shall not constitute unnecessary and excessive noises
prohibited in section 46-152 ~' ...... + r..^~ a, ...... ; .....,~ ~,c~,,,;~-~ ~ ~ <~ ~-.~
(l) Cries for emergency assistance and warning calls.
(2) Radios, sirens, horns and bells and other sounds created by police, fire and other
emergency response vehicles.
(3) Parades, fireworks displays, spedat--eg,~ and other activities for which a permit
has been obtained from the city, pursuant to section 46-156, within such hours
and in accordance with such restrictions as may be imposed as conditions for the
issuance of the permit.
(4) Activities on or in municipal -,,nd scSco! a*&!et;.c facilities and on or in publicly
owned property and facilities, when such activities have been authorized by the
public authority owning the properties or facilities or their agents; except where
such publicly owned properties are under private operation or use. v
lease^" c,,~n.,~,,o~ .... ;.^....,"" .......
(5) Fire alarms and burglar alarms, bells and chimes of churches or other religious
institutions; however: false burglary alarms shall be subject to enforcement
procedures and penalties as set forth in article II of chapter 42.
(6) Locomotives and other railroad equipment and aircraft, to the extent that city
regulation is preempted by federal law.
(7) Noises resulting from emergency work.
(8) Any noise resulting from activities of a temporary duration permitted pursuant to
section 46-156.
(9) Noise generated by motor vehicles as defined in F.S. § 320.01 when operated and
equipped in accordance with requirements set forth in the Florida Statutes.
(10) Noise resulting from the operation of vessels when operated in compliance with
the decibel limitations in F.S. § 327.65. However, noise exceeding the limitations
set forth in F.S. § 327.65 shall be subject to enforcement and penalties as set forth
in F.S. ch. 327.
(1])
gtre, ets~.~.n"'~ ~,.~.,~.,~:*~ ..... ..~o.n~ Live or amplified sound projecting east of the east property
line ~om each prope~y ~om 1st Street to 5t~ Street on the east side of
Dfive~ from 5t~ Street to 15t~ Street on the west side of Oce~ Drive, ~
g~e ~f C~l!~z Avenue ~om 15t~ Street to 73~a Street on the east side of Collins
Avenue, on *~..~ ....., est ~.,~:~ ,.~r ~,.. .... m. ~..,~ ..... from 73rd to 75th Streets on the west
side of Oce~ Te~ace, ~d the east si~e cf Ccll~ns Avenae from 76th to 87th
Streets on the east side of Collins Avenue. Tbs exemption shall only apply to
noise that is received in that mea located east of the violating prope~y
be~een ~ the no~h and south projections of its prope~y boodles ~d where
there is no pa~ of ~y building or structure on ~ ~y prope~y to the
east of the violating prope~y unless the ~ building or stmct~e to the east is
o~ed by the violator. ~y noise ~ received by a prope~y that is outside
of this area shall ~ subject the violator to the enforcement provisions of this
~icle.
SECTION 8. That Section 46-158 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby amended as follows:
Sec. 46-158. Enforcement by code inspectors; notice of violation; warnings.
(a) Notice of Violation Tr. ,.,..4~ l ..... + ...... ; ............ 1,-,,;-+ .q- ....... .
w*,o+*,~- **,~-,;~+; ....;~+" If the code inspector the~ observes a violation of this article,
.... ~n;~* the inspector shall issue a notice of violation to the violator,
Lq response to g .....v ...... ,
and plus a courtesy copy of the violation shall be provided to the occupational license
holder, except as otherwise provided in subsection (b), and inform the violator that he
must immediately cease the violation and that the violator will be subject to
penalties if the violation continues and that issu~ a notice of violation will be issued to the
violator as provided in Chapter 30 of this Code. The notice shall inform the violator of
the:
(1) Name of the violator.
(2) Date and time of violation.
(3) Nature of the violation.
(4) Amount of fine or other penalty for which the violator may be liable
pursuant to section 46-159 of this Code or as otherwise provided by law.
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(5) Instructions and due date for paying the fine.
(6) Notice that the violation may be appealed by filing a written request for an
administrative hearing with the clerk of the special master within ten days
after service of the notice of violation, c ......... +: ..... .~:,~+~+~,,~
heai4~, that failure to do so shall constitute an admission of the violation
and waiver of the right to a heating, and that unpaid fines will result in the
imposition of liens which may be foreclosed by the city.
The notice shall also inform the violator that repeat violations of this article will result in
the imposition of larger fines and may also result in revocation, suspension, or the
imposition of restrictions on an occupational license, and/or certificate of use, or
accessory use, and/or injunctive proceedings as provided by law. The notice shall be
signed by the code inspector who witnessed the violation.
(b) V~arnings.
(1) Oral Warnings
If a code inspector observes a violation of this article without a complaint having been
made, the inspector may first issue a~ one oral courtesy warning per day and inform the
violator that the violator will be subject to penalties if the violation continues.
(2) Written Warnings
................. ~, ............... , a A code inspector shall first issue ore a written warning
to immediately cease the violation prior to issuing a notice of violation+
a. Or, .... ~;~ ~;rrtt_~ ...... ..... dc.. x'~ .; ...... .... ycc. r T. if no more than ~ t~ee ~en wmings have
been issued in the 12 months preceding the date of violation.;
b. On one ~"" ~"~ .... ~";~ ~;~ ~ .... * Period: a~ ~o.~ ............
The written warning shall be substantially in the same form as the notice of violation as
stated in section 46-158 (a) above. Failure to correct the violation within fifteen minutes
following the issuance of a written or oral warning, shall result in the issuance of a notice
of violation pursuant to this Article. A ~-~I warning ~'1.,~11 .... +1~ warn:rig v ........ e, ,-
....... ,t"l +1',... fi 1.1 i g .h~11 1-, .... ,..,';"1"J
A Code Inspector shall not issue a written warning, and instead shall issue a notice of
violation, to any person, entity or establishment who: 1) in any one day has already been
issued a written warning as specified in 46-158 or 2) in any oiae-ye~ 12 month period has
exceeded any of the waming limits specified in 46-158 (b).
11
holder of the occu ational license for the remises where a violation or wamin is
~Tssh~ed shall have the res onsibilit to kee the Cit advised of the current address of the
owner of the premises.
SECTION 9. That Section 46-159 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby amended as follows:
Sec. 46-159. ~ fF_ines ~ for violation; appeals; alternate means of
enforcemen,t..
(a) ~/Fines and penalties._ The following civil fines an_g_O_p~nalties shall be imposed for
violations of this chapter:
(1) If the offense is the trfirst offense, $250.00 fine.
(2) If the offense is the_ Ssecond offense within mae-ye~ the preceeding 436 18 months
cC,~.~ ~,-o, ^ffens,~ $1,000.00 fine.
If the offense is the :gthird offense within the preceeding oe, e4N"~ g6 18 months
of*,he first offense, $2,000.00 fine.
If the offense is the t~fourth offense within the preceeding mae-vea~ 36 18 months
of tke first offense, one weekend (Noon Friday through noon Monday)
Occupational license conditions and/or aCcessory use restrictions shall be imposed
limiting the ability to produce any live or amplified sound at that portion of thc.
remises that caused the violation in addition to a $3 000.00 fine.
5~ If the offense is the tzfifth offense within the preceeding ~ g4 18 months
oCC~ns% two weekend (noon Friday through noon Monday).
cf the first .....
occupational license conditions and/or accessory use restricti°ns shall be imposed
limiting the ability to produce any live or amplified sound at that portion of th~,
remises that caused the violation in addition to a $5 000.00 fine.
(6) If the offense is the sixth or greater Mere *,hah five offense within the preceeding
18 months, it shall be considered an habitual offender offense with penalties and
fines imposed pursuant to Section 46-159(h~.
A person may receive a separate notice of violation once every hour if a violation has occurred at
any time within that period. Each m~,c-e-of violation shall constitute a separate offense for which
a separate fine may shall be imposed. An offense shall be deemed to have occurred on the date
the violation occurred. Occu at~onal hcense con&t~ons or accessor use restrictions
ursuant to this section shall be im osed b order of the S ecial Master after findin an offense
warrantin sus ension or restncUon has occurred. An offense occurrin 43~ 18 months after the
l~f se shall be treated as a first o~ incurrin new fines and
~ However an fines or enalties im osed in an rior ~ g4 18 month enod
shall not be waived or altered.
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(b) A violator who has been served with a notice of violation shall elect either to:
(1) Pay the civil fine in the manner indicated on the notice; or
(2) File a written request ~ fo__rr an administrative heating before a special
master to appeal the decision of the code inspector that resulted in the issuance of
the notice of violation. The written request shall be submitted to the clerical staff
of the special master no later than ten (10) days of service of the notice of
violation, and shall be accompanied by a $75 appeal fee. The fee may be returned
to the violator if the special master rules in favor of the violator. All disputes
regarding proper notice of the violation and timeliness of the appeal shall be heard
by the special master prior to any hearing on the merits of the violation itself.
(c) The procedures for appeal of the notice of violation shall be as set forth in sections 192
3g4-amt 102-385. A courtesy mail notice shall .ma~ be promptly provided to the
complainant of any hearing regarding the notice of violation, and the complainant may
testify at such heatings; provided, however, that non-transmission of the courtesy notice
to the complainant shall not in any way invalidate, affect, or impair any of the further
proceedings, actions, or determinations in the case. Failure to give such notice shall not
be a cause for continuance or cancellation of any scheduled heating of the matter. Only
two continuances, for no longer than 20 days each, shall be granted by the [;special
Mmaster for ma--app~ any administrative hearing unless the alleged offender, at a
hearing on a motion for continuance, establishes by testimony, and/or other evidence, that
good cause exists for a further continuance. If the special master finds that a violation
has occurred, the applicable penalty set forth in {}46-159(a) shall be imposed.
.... h failu:e ~' ...... -~ ~^~ +~'~ ~; ..... +^- Failure of the named violator to appeal the
decision of the code inspector within the prescribed time period shall constitute a waiver
of the violator's right to administrative hearing before the special master. A waiver of the
right to an administrative hearing shall be treated as an admission of the violation and
penalties ma~ shall be assessed accordingly. In the event of a fourth or fifth offense, and
following notification by the code inspector of the violator's failure to timely request an
administrative heating, the special master shall enter an order setting the time during
which conditions shall be imposed on the violator's occupational license or, as
applicable, the accessory uses shall be restricted. Such conditions or restrictions shall
begin no later than 30 days after entry of the order by the special master.
(e) Any party aggrieved by the decision of a Special Master may appeal that decision to a
court of competent jurisdiction as provided in F.S. § 162.11 and section 30-77 of this
Code.
(f) The city may institute proceedings in a court of competent jurisdiction to compel
payment of civil fines. A certified copy of an order imposing a civil fine or city bill for
penalties due under this section may be recorded in the public records and thereafter shall
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constitute a lien upon any other real or personal property owned by the violator and it
may be enforced in the same manner as a court judgment by the sheriffs of this state,
including levy against the personal property, but shall not be deemed to be a court
judgment except for enforcement purposes. After two .months from the filing of any such
lien that remains unpaid, the city may foreclose or otherwise execute on the lien. All
costs and attorneys fees incurred by the City for collecting any fine shall be paid by the
violator.
(g) As an alternative or additional means of enforcement, the city may institute proceedings
to revoke or suspend an occupational license and/or certificate of use or seek injunctive
eli f~ ~, c^..,~..; .... +;~ A ~ 1 ~ ~
(h) ~,---~*,.. ,.. ,...~....,,..~, i_In cases of recumng habitual violations or offenses, the
City Manager may issuea ..,~..,~..~;+~+;^~ an administrative complaint for ........ v--~o~-,-,--'--
sp~4al-m, asd~ suspension or revocation of an occupational license and certificate of use
as provided in this.~-,~,..~'h~* ..... ..*'~;"..,~,~. Section 102-383. uUpon_ a finding of habitual
violations or offenses by the ~ City Manager, an per-di~m-fi~ occupational
license suspension, revocation and/or fine shall may be imposed. Suspensions shall be
imposed with restrictions limiting the ability to provide any live or amplified sound as
either a condition of the occupational license or as an accessory use restriction. In the
event the violator is a hotel, motel, condominium, apartment or other residential oropert¥,
accessory use restrictions shall be imposed in lieu of an occupational license revocation
which results in the eviction of residents. Additionally, in the event of a revocation, as a
condition of being permitted to resume operation under the occupational license, the City
Manager shall utilize the criteria set forth in Section 142-1362 of this Code to impose
such conditions or restrictions as deemed appropriate to assure the licensed property
compliance with all City. Codes. A ..1,.1.~.; ~...,..~,..,.. o°hM1..,. .. ho,, ..... ,,,.,. .o 1,I ~.~A.,...,. '"-* "~"'~"'"b'~4*' ~,
In determining the length of the suspension or accessory use restriction to be imposed
under this subsection, the City Manager shall consider the following factors: the gravity
of the violations or offenses; any actions taken by the violator to correct the violations or
offenses; and, any previous violations or offenses committed by the violator. No
suspension or accessory use restriction imposed under this subsection shall be for a
period of time of less than 30 consecutive days.
In the event a habitual violator does not hold an occupational license or certificate of use,
the Special Master shall impose a fine up to $5,000.00 per violation.
Any fine imposed under this Article shall become a lien pursuant to the procedures of
sections 30-74 and 30-75 of this code.
In addition, in the event a violator refuses to comply with a notice of violation issued
under section 46-158, a violator may be punished by imprisonment not to exceed 60 days
or by imposition of a fine not to exceed $500.00 per offense or both.
14
(k) Nothing herein shall restrict the powers and authority granted to the various boards and
committees of the city, including the imposition of conditions and sanctions not
specifically enumerated in this article.
(1) Nothing herein shall be deemed to modify existing applicable State, County or City
building and fire codes, ordinances, laws or regulations.
(m) A nolle prosequi, or any other decision made by the City not to prosecute a notice of
violation, must be based upon good cause and issued in writing in a public record.
SECTION 10. That Section 46-161 of Article IV of Chapter 46 of the Miami Beach City Code
is .hereby amended as follows:
Sec. 46-161. Motor vehicle alarms.
(a) Definition. The following term shall have the following meaning for purposes of this
section: "alarm system" shall mean a motor vehicle siren or horn alarm system contained
in or appurtenant to a motor vehicle, designed to activate and sound in the event of a
break-in or attempted break-in of the vehicle.
(b) It shall be unlawful for any motor vehicle equipped with an alarm system to activate and
emit a siren or horn noise, audible at a distance of 100 feet intermittently or continuously
within a period in excess of g0 15 minutes ~"~*- ..... '*'~ ~' ..... c,c ~ I '~ .... ~ -~.tm ~ ~
Any person who has custody of any such offending motor vehicle shall be deemed in
violation of this section.
(c) A violation of this section on the public streets or areas within the city is hereby declared
a public nuisance which may be abated by the removal of such vehicle upon authorization
of a law enforcement officer. Prior to removing such vehicle, the law enforcement officer
shall afford the owner or custodian of such vehicle the opportunity to disconnect or
deactivate the alarm system at the scene. Otherwise, the vehicle shall be removed to an
authorized facility. The law enforcement agency shall ascertain the name and address of
the registered owner of such vehicle and provide written notice by certified mail, return
receipt requested, within 24 hours of such removal, the reason(s) for the removal, and the
place where such vehicle has been removed. The fees assessed for the removal of the
vehicle may be appealed by filing a complaint in the county court and posting with the
court a cash or surety bond or security equal to the amount for the removal and/or storage
of the vehicle to ensure the payment of such in the event the owner or custodian of the
vehicle does not prevail.
(d) A violation of this section on private property shall cause the person who owns or has
custody of the offending vehicle to be fined $50.00. Any duly designated law
enforcement officer and/or code enforcement officer is authorized and empowered to
enter without force upon private property in order to detect and issue a citation or notice
of violation to and upon the owner or custodian of the offending motor vehicle. A copy of
15
the citation or notice of violation may also be left on the offending vehicle and shall
constitute notice. The citation or notice of violation may be appealed in accordance with
the procedures set forth in sections 102-384 and 102-385 and chapter 30 of this Code.
(e) It shall not be a violation of this section if it is determined by the law enforcement officer
and/or code enforcement officer that the siren or horn noise has been triggered by the
unauthorized opening of the hood, truck or door(s) of the vehicle, by the breaking or
attempted breaking of a window or by lightning, thunderstorms, or severe weather
conditions.
SECTION 11. CODIFICATION
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it
is hereby ordained that the provisions of this ordinance shall become and be made a part of the
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
SECTION 12. REPEALER
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 13. SEVERABILITY
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 14. EFFECTIVE DATE
PASSED and ADOPTED this 8th day of Ymrch ,2006.
This Ordinance shall take effect on the 18th day of March ,2006.
{J/(/ Vice-Mayor Saul Gross
Arq'ROVeD Afl TO
CITY CLERK FORM & LABIGOAO{~
& FOR ~EC~
F:XattoXTU~A~ffrd Rev 3-17-06 Version 2.doc
16 ~~~ ~
~ ~ ~ D~e
COMMISSION ITEM SUMMARY
Condensed Title:
IAn Ordinance amending the City Code to adopt a Noise Ordinance.
Key Intended Outcome Supported:
IIncrease resident satisfaction with level of code enforcement.
Issue:
I Shall the City Commission approve a Noise Ordinance on Second Reading?
Item Summary/Recommendation:
At the January 11, 2006 Commission Meeting, the Mayor and City Commissioners considered the Second
Reading of a Noise Ordinance for the City. The Mayor and City Commission deferred a formal vote on the
Second Reading until the March 8, 2006 City Commission Meeting, to allow interested parties an opportunity
to review and understand the Noise Ordinance more fully.
One policy point which the Mayor and City Commission should appropriately address in the attached Noise
Ordinance is the time period for resetting violations. The concept of a thirty six month fixed period is offered
for City Commission consideration and has not yet been voted upon by members of the City Commission as
appropriate to include in the Noise Ordinance. While the Commissioners upon reflection or as a result of
testimony at the Public Hearing may determine that other provisions should be altered or further refined,
most of the other policy points have to date been the subject of City Commission discussion and in most
instances a specific vote to express the wishes of City Commission for inclusion in the Noise Ordinance.
Advisory Board Recommendation:
[ N/A
Financial Intm-~atlon:
Source of
Funds: :
I I
OBPI
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
I Robert C. Middaugh
Si, n
F:\cmgr~$ALL\BOB\NoiseOrd
M!AM!BEACH
City Of Miami I~e¢i~:l'l.. 1700 Convention Center Drive, Miami Beach, Florida 33139, wwv.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor David Dermer and Members of t.he Ci~/Commission
FROM: Jorge M. Gonzalez, City Manager~ ~-J-/"
//~' //SECOND READING
DATE: March 8, 2006 U VPUBLIC HEARING
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 46 OF THE CITY CODE,
ENTITLED "ENVIRONMENT," BY AMENDING ARTICLE IV, ENTITLED
"NOISE," BY AMENDING SECTION 46-'151, ENTITLED "DEFINITIONS," TO
PROVIDE NEW TERMS AND DEFINITIONS AND DELETING CERTAIN TERMS
AND DEFINITIONS; AMENDING SECTION 46-'152, ENTITLED
"UNREASONABLY LOUD NOISE PROHIBITED," BY AMENDING THE TITLE
AND ADOPTING SECTION 21-28 OF THE CODE OF MIAMI-DADE COUNTY BY
REFERENCE; AMENDING SECTION 46-'153, ENTITLED "RESPONSIBILITY
FOR COMPLIANCE," BY AMENDING THE PROVISIONS THEREOF;
REPEALING SECTION 46-154, ENTITLED "NOISE LEVEL IN SPECIFIC
AREA"; REPEALING SECTION 46-155, ENTITLED "ADDITIONAL SOUND
LIMITATIONS FOR PUBLIC PROPERTY"; AMENDING SECTION 46-156,
ENTITLED "TEMPORARY PERMITS," BY EXPANDING THE PROHIBITED
AREAS FOR CONSTRUCTION NOISE TO WITHIN 300 FEET OF CERTAIN
DISTRICTS AND AMENDING THE EXEMPTIONS FOR SPECIAL EVENTS AND
FILM PERMITS; AMENDING SECTION 46-157, ENTITLED "EXEMPTIONS,"
AND BY DELETING SUBSECTION (11) AND AMENDING THE PROVISIONS
THEREOF; AMENDING SECTION 46-158, ENTITLED "ENFORCEMENT BY
CODE INSPECTORS; NOTICE OF VIOLATION," BY AMENDING THE
PROCEDURES FOR ENFORCEMENT AND WARNINGS; AMENDING SECTION
46-159, ENTITLED "CIVIL FINES FOR VIOLATION; APPEALS," BY AMENDING
THE FINES AND PENALTIES FOR VIOLATIONS, THE APPEAL
PROCEDURES, AND THE ALTERNATE MEANS OF ENFORCEMENT;
AMENDING AND RENUMBERING SECTION 46-160, ENTITLED "NUISANCE,"
AS SECTION 46-161, AND RENAMING SECTION 46-'160 AS "RELIEF FROM
VIOLATIONS FOR SOUND SYSTEMS AND COMPLIANCE" AND CREATING
PROVISIONS THEREFOR; AMENDING AND RENUMBERING SECTION 46-161,
ENTITLED "MOTOR VEHICLE ALARMS," AS SECTION 46-162 WHICH IS
HEREBY CREATED; PROVIDING FOR CODIFICATION, REPEALER,
SEVERABILITY, AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
Approve the Noise Ordinance on Second Reading.
BACKGROUND
At the January 11,2006 Commission Meeting, the Mayor and City Commissioners
considered the Second Reading of a Noise Ordinance. The Mayor and City
Commission deferred a formal vote on the Second Reading until the March 8, 2006
City Commission Meeting, to allow intereSted parties an opportunity to review and
understand the Noise Ordinance more fully.
While a vote on the Second Reading of the entire Noise Ordinance was deferred at
the January 11th meeting, the Commission did provide policy direction to be
included in the Noise Ordinance that is to be considered at the March 8, 2006 City
Commission Meeting.
A January 11~ City Commission discussion on the Noise Ordinance Second
Reading provided for both clarifications to the existing Ordinance and a few
amendments that require new language to be presented to the City Commission at
the March 8, 2006 meeting for consideration ( A copy of January 11, 2006 After
Action Report is attached). The two areas of Ordinance direction are treated
separately in the following sections.
Commission Clarifications on Issues Presented at the January 11, 2006 Meeting
and Not Resulting in New Lan(~ua_qe.
· Noise Engineer- The Commission confirmed that a section of the Noise
Ordinance providing for the review of a property by a qualified Noise
Engineer to determine how to mitigate noise issues should be deleted.
· The Commission confirmed that language in Section 46-158 (b) (2) b
identifying the City Manager as the individual to annually designate major
event periods for which a written noise warning will be made available should
be retained.
· The Commission confirmed that the issuance of an oral warning to violators
of the Noise Ordinance is discretionary when no compliant has been made.
The Ordinance uses the words "may issue" such warning rather than "shall
issue" such warning.
· The City Commission clarified and confirmed that warnings as defined in
Section 46-158 are limited to one oral warning and/or one written warning per
day within the prescribed limits.
Commission Direction or Action at the January 11, 2006 Meeting Resulting in
Lan~ua.qe Changes to the Noise Ordinance.
· The definition of one day has been added into Section 46-151 and is now
defined as the 24 hour period from noon until noon.
· Section 46-157 (11 ) was amended to delete the words lateral and adjacent in
reference to live amplified sound projecting to the east of a property.
· Language has been added to Section 46-158 (b) (2) b to indicate that major
event period written warnings are only available to the extent at least one
written warning remains available to the subject property.
2
. Language has been added to several sections to make provisions for
warnings to be used and available in a rolling twelve month period. The
language provides that six warnings are available in the twelve month period
preceding the date of the violation. Language changes to implement this
rolling 12 months period for warnings are found in Section 46-158 (b) (2) a
and in the last paragraph of 46-158 (b).
· In the January 11,2006 Commission consideration and discussion, the time
period to reset the number of violations and warnings was discussed without
distinction between the two types of action. After analysis of how the rolling
period would impact the cumulative affect of warnings and violations, it was
apparent that an unintended adverse impact could result. If the Noise
enforcement process is applied only with a 12 month rolling period to reset
the number of warnings and violations, only a flagrant offender of the Noise
Ordinance would advance through the violation schedule to the point of
significant fine and/or suspensions. It is suggested that the Commission
consider a fixed period of time for violations before resetting the number
received to help mitigate or offset this impact. A fixed time of 36 months for
the reset of violations would extend the time for violation accountability that
with a rolling 12 month reset for warnings would not adversely impact
businesses. Thirty six months is suggested as the reset time for violations
and is incorporated into the draft Ordinance for City Commission
consideration.
In the event that a different number of months or a fixed period or the same
treatment that is a rolling twelve month period is desired for both warnings and
violations, that language can be amended by the Commission as part of the
approval motion for an Ordinance.
Pursuant to the last City Commission discussion in January, an advance copy of the
draft Noise Ordinance has been provided to interested parties and several meetings
have been conducted to address questions on the Ordinance in advance of the
Commission meeting. Meetings with the Nightlife Task Force, residents that the
Administration is aware have expressed some concern relative to the Ordinance
and a meeting with the original stakeholder representatives of the residents, hotels
and nightlife industry have all been conducted.
In undertaking these meetings in advance of the City Commission meeting, the
Administration has made an effort to address questions and background information
specific to the draft presented for City Commission review. The Administration has
not attempted to renegotiate or restructure items or language within the Ordinance
on the basis of concerns expressed at the meetings.
It is fair to report to members of the City Commission that there is a serious level of
concern that was expressed and was represented to the Administration would be
expressed to the City Commission directly regarding the Noise Ordinance as it has
evolved. A concern of the residents in meetings was that the Ordinance was
unbalanced in favor of Noise violators and did not adequately protect resident
quality of life.
3
In the January 11,2006 Commission discussion, a question was raised about the
status of an existing section of the Code. The current Code contains Section 46-
160, Nuisance, and as it is not being amended, it is carried forward in the Noise
Ordinance together with the amendments embodied in the attached Ordinance. A
copy of Section 46-160 is included for Commission reference.
CONCLUSION
One policy point which the Mayor and City Commission should appropriately
address in the attached Noise Ordinance is the time period for resetting violations.
The concept of a thirty six month fixed period is offered for City Commission
consideration and has not yet been voted upon by members of the City Commission
as appropriate to include in the Noise Ordinance. While the Commissioners upon
reflection or as a result of testimony at the Public Hearing may determine that other
provisions should be altered or further refined, most of the other policy points have
to date been the subject of City Commission discussion and in most instances a
specific vote to express the wishes of City Commission for inclusion in the Noise
Ordinance.
Also included for the City Commission background and assistance in understanding
the Noise Ordinance enforcement process is a flow diagram that illustrates the
different decision points and options available within the draft Noise Ordinance. As
the process flow diagram clearly illustrates, the process that has evolved in the
Noise Ordinance is one which has a fair degree of complexity and is atypical of
other Ordinance enforcement processes which the City pursues. While it will be
difficult to deal with the complexity of the Noise Ordinance as it is currently
presented, so long as additional complexity is not added to the process the
Administration will find a way to manage the process and the work flow.
J~sam
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January 11, 2006 Commission Meeting / REGULAR AGENDA I R5 - Ordinances
10:37:31 a.m.
5:06:52 p.m.
5:48:45 p.m.
R5D An Ordinance Amending Chapter 46 Of The City Code, Entitled "Environment," By
Amending Article IV, Entitled "Noise," By Amending Section 46-151, Entitled "Definitions," To
Provide New Terms And Definitions And Deleting Certain Terms And Definitions; Amending
Section 46-152, Entitled "Unreasonably Loud Noise Prohibited," By Amending The Title And
Adopting Section 21 - 28 Of The Code Of Miami-Dade County By Reference; Amending
Section 46-153, Entitled "Responsibility For Compliance," By Amending The Provisions
Thereof; Repealing Section 46-154, Entitled "Noise Level In Specific Area"; Repealing Section
46-155, Entitled "Additional Sound Limitations For Public Property"; Amending Section 46-156,
Entitled "Temporary Permits," By Expanding The Prohibited Areas For Construction Noise To
Within 300 Feet Of Certain Districts And Amending The Exemptions For Special Events And
Film Permits; Amending Section 46-157, Entitled "Exemptions," And By Deleting Subsection
(11) And Amending The Provisions Thereof; Amending Section 46-158, Entitled "Enforcement
By Code Inspectors; Notice Of Violat'on,' By Amending The Procedures For Enforcement And
Warnings; Amending Section 46-159, Entitled "Civil Fines For Violation; Appeals," By Amending
The Fines And Penalties For Violations, The Appeal Procedures, And The Alternate Means Of
Enforcement; Amending And Renumbering Section 46-160, Entitled "Nuisance," As Section
46-161, And Renaming Section 46-160 As "Relief From Violations For Sound Systems And
Compliance" And Creating Provisions Therefore; Amending And Renumbering Section 46-161,
Entitled "Motor Vehicle Alarms" As Section 46-162 Which Is Hereby Created; Providing For
Codification, Repealer, Severability, And An Effective Date. 5:01 p.m. Second Readim3,
Public Hearing.
(City Manager's Office)
(First Reading on December 7, 2005)
ACTION: Discussion held. Public Hearing opened and continued to March 8, 2006 at 5:01
p.m. Motion made by Commissioner Gross; seconded by Commissioner Bower; Voice vote:
7-0. Robert Middaugh to handle.
10:37:51 a.m.
Kent Harrison Robbins, Esq., representing various condominium associations, requested a
deferral of this item due to concerns of changes, deletions and language added to the
ordinance that were not approved by the City commission and without public discussion.
Motion made by Commissioner Gross to give notice of intent to defer the ordinance at
the 5:01 p.m. public hearing to a future meeting as requested by Kent Harrison Robbins;
seconded by Commissioner Bower. Discussion continued and no vote taken.
Harold Rosen, Esq., objected to the deferral and stated that since the ordinance is advertised
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for 5:01 p.m., those who are planning to attend should be allowed to speak at that time.
Commissioner Garcia stated that the public hearing was advertised and should be heard at
5:01 p.m.
Discussion continued.
Commissioner Bower stated that if there was an administrative drafting error where a paragraph
was left out, she is in favor of deferring this item at 5:01 p.m. so the City Attorney can review
the entire ordinance.
Motion made by Vice-Mayor Steinberg to table the item until 5:01 p.m.; no second offered and
the discussion continued.
Mayor Dermer asked the City Attorney if the ordinance is ready to be voted upon as it stands
today.
Murray Dubbin, City Attorney, stated that the document in front of the City Commission is not
ready, as is, to be voted on.
Discussion continued.
Jorge Gonzalez, City Manager, asked that if the item is coming back at 5:01 p.m., can the
Commission request that staff, Mr. P, obbins, Mr. Blumberg, and Mr. Polisar go through the four
errors which Mr. Robbins identified in the ordinance.
Murray Dubbin, City Attorney, stated that as late as yesterday afternoon the Legal staff and the
Administration were working on ordinance language and there are issues that are not totally
clear and require direction from the City Commission. He stated that at this time there is a
motion on a notice of intent to defer the public hearing at 5:01 p.m. to a future meeting and
suggested having both parties available to discuss everyone's concerns and give the Legal
Department and the Administration the direction needed to clarify this ordinance.
Motion made by Commissioner Gross of a notice of intent to open and continue the
public hearing at 5:01 p.m. to a future meeting, but have the parties discuss their
concerns and have the Commission give the direction to the Legal Department and the
Administration; seconded by Commissioner Bower; Voice-vote: 7-0.
Mayor Dermer asked Mr. Robbins and Mr. Rosen if they could notify some of the
representatives so they know what the intent is.
5:06:47 p.m.
Mayor Dermer explained the reasons for the continuance and stated that discussion will take
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place but the second reading of the ordinance will not take place today.
Stu Blumberg, President of the Greater Miami Hotel & Restaurant Association, asked if this
item is being deferred because of missing language or are there substantive changes to what
was approved on first reading.
Murray Dubbin, City Attorney, explained that there were questions raised regarding the use of
"may" instead of "shall" and a section of the ordinance that cannot be understood and conflicts
with another section of the ordinance. He did not know if there are any philosophical
disagreements. One of the purposes of the meeting today is to give direction to the Legal
Department and the Administration.
Stu Blumberg, President of the Greater Miami Hotel & Restaurant Association, expressed being
in favor of the deferral as long as the substance of the final ordinance does not change.
Commissioner Libbin suggested discussing the issues today to clarify the City Commission's
intent so the Legal Department and the Administration are clear.
Henry Stolar spoke.
Mayor Dermer and Commissioner Bower asked if the ordinance is ready to be voted on today.
Murray Dubbin, City Attorney, stated that Mr. Robbins raised the question as to the absence of
language authorizing the bringing of a nuisance suit. He stated that the language was not
omitted and that the language in question is already part of the City Code. Secondly, in Agenda
Review questions were raised as to the language on Page 332, under the warning section,
(b)(1), second line reads: the inspector "may" first issue an oral courtesy warning. The question
was raised as to whether the word "may" should have been "shall." He requested direction on
this issue and stated that there are other items that need direction.
Mayor Dermer explained that a hearing will be held today but there will not be a final vote on the
ordinance today.
Jorge Gonzalez, City Manager, stated that he doesn't know what Mr. Robbins' issues are but he
has three issues which need to be addressed.
This item was deferred to later in the meeting to hear Agenda Item C7D.
5:48:45 p.m.
Mayor Dermer stated that there will not be a vote on the ordinance at this meeting. The
purpose of this hearing is to try to make sure the sentiment of the Commission is properly
incorporated into the ordinance.
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Jorge Gonzalez, City Manager, stated that the ordinance labeled Alternative A on page 322 of
the Agenda is the ordinance being discussed. He also stated that the ordinance is
inappropriately titled as Noise Engineer Provision Deleted, when in fact the noise engineer is
included.
Question No. 1:
Even though the Commission voted to delete the noise engineer provision, some
Commissioners asked to revisit the topic. The Administration needs direction on whether the
provision should or should not be included in the ordinance.
Commissioner Gross recommended not having a noise engineer provision. He stated that
businesses need to be told to do whatever is necessary to control the noise.
Commissioner Libbin suggested a counter proposal to allow for a sound engineer only once,
but not after the second written warning (before the third warning). After the second warning
the business should realize they have a problem which needs to be corrected.
Jorge Gonzalez, City Manager, clarified that the noise engineer is an option up to the third
warning.
Discussion continued.
Commissioner Gross stated that he would support three warnings in a residential
neighborhood; seconded by Commissioner Bower; Voice vote: 3-4; Opposed: Vice-Mayor
Steinberg and Commissioners Cruz, Garcia and Libbin. Motion failed.
Discussion continued.
Commissioner Gross proposed four warnings in a residential neighborhood; seconded by
Commissioner Bower; Voice vote: 3-4; Opposed: Vice-Mayor Steinberg and Commissioners
Cruz, Garcia and Libbin. Motion failed.
Commissioner Libbin suggested five warnings.
Motion made by Commissioner Gross not to have the noise engineer option; seconded
by Commissioner Bower; Voice vote: 5-2; Opposed: Vice-Mayor Steinberg and
Commissioner Garcia.
Jorge Gonzalez, City Manager, stated that the noise engineer section will be deleted.
Question No. 2:
Jorge Gonzalez, City Manager, reviewed the language on page 332 of the Agenda, regarding
oral courtesy warnings; "....without a complaint having been made, the inspector may first issue
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an oral courtesy warning .... "Commission direction is needed to address whether the intent
was to be "may" or "shall." He advised using "may" because it gives the code officer the
discretion necessary to exercise due diligence.
Mayor Dermer asked if anyone objected to "may" instead of "shall."
Commissioner Libbin stated that at the last meeting it was stated that the Commission wanted
the code compliance officer to be directed by the Administration to issue the oral warning if
there was no complaint, however, the "may" should be used when the noise is obviously
excessive and/or blatant that the code compliance officer should issue a written warning.
Mayor Dermer stated that the word "may" will be used without objection.
Jorge Gonzalez, City Manager, stated that if the noise is blatant or frequent the code officer will
have the ability to issue immediately a violation or a written warning. Also the courtesy notices
will only be issued once per day, per location, as are the written warnings.
Commissioner Libbin stated that the City is looking for compliance.
Question No. 3
Jorge Gonzalez, City Manager, stated that there is an issue with treatment of noise to the east.
From an Administrative perspective, in the first Commission vote, there were certain limitations
along the eastern boundary of the City that would have noise to the east not regarded as
unnecessarily loud and others that would not have noise to the east regarded as unnecessarily
loud. The recommendation from the Legal Department is that enforcement needs to be
consistent for the entire City. As long as there is no building to the east of an establishment,
facing the water, the ordinance will be enforced to the east as if noise is considered not to be a
violation of the ordinance.
Commissioner Bower gave the example of events which are held in Lummus Park and asked
how noise will be enforced to the east. She also asked for clarification on what does it mean
that noise will not be measured to the east.
Commissioner Gross stated that the noise will still be regulated to the north, south or the west.
Commissioner Bower also stated that sometimes events are held on the beach and language
should be added to the ordinance to be able to regulate noise to the east during special events.
She also asked how the City can enact an ordinance which is less stringent, by excluding the
regulation of noise to the east amendment, than the Miami-Dade County Ordinance.
Murray Dubbin, City Attorney, explained that the enforcement of the Miami-Dade County Code,
as far as noise violations are concerned, falls under the general provisions of the County Code
in that it shall prevail over less stringent provisions of municipal ordinances, and the County
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Code basically sets minimum standards. Commissioner Bower is concerned that by eliminating
the regulation to the east of the noise making facilities that is creating a less stringent provision
and may be trumped by the County Code. However, the Legal Department is proceeding on
the assumption that the City Commission is making a finding that the noise to the east, where
no buildings are to the east, is acceptable. The Legal Department feels that if there is an attack
on this ordinance, it can be successfully defended.
Commissioner Gross, regarding section 46-157(11), page 331 in the Agenda, has a problem
with the language "on the adjacent property" because the sound will flair out at an angle. He is
concerned that any loud noise may be heard from property which is not the adjacent property.
He stated that the building does not have to be adjacent and suggested removing the word
"adjacent" and also the words "any lateral property."
Murray Dubbin, City Attorney, stated that the word "adjacent" be replaced with "on any
property to the east."
Commissioner Gross stated that in that same paragraph the words, "and any lateral
property" also needs to the stricken. He stated that he would get with Legal to work out
the language.
Discussion continued.
Jorge Gonzalez, City Manager, stated that the ordinance will be amended to include language
that if noise can be heard from any building to the east it is a violation. He also asked about an
exception for special events held in Lummus Park which Commissioner Bower raised.
Commissioner Bower stated that Art Deco Weekend is loud as was the Luciano Pavarotti
Concert. She is more concerned about the quieter events, but this will be worked out.
Kent Harrison Robbins, Esq., stated that his concerns are the written warnings and the major
event periods. He stated that language was inserted specifying that the major event periods in
which there could be additional warning, over and above the six, for those event periods as
designated annually by the City Manager. He stated that the language "by the City Manager"
was inserted subsequent to the last hearing.
Jorge Gonzalez, City Manager, stated that for major events, this has always been the case.
Mayor Definer stated that without objection it is the intent of the City Commission that
the City Manager or his designee is the designated official to specify major events
periods for noise warning purposes,
Kent Harrison Robbins, Esq., stated that language was deleted regarding the determination of
when an inspector shall not issue a warning and instead issue a notice of violation. He stated
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that the third criteria was mat any time during one year is guilty of a violation," they lose the right
to additional warnings.
Jorge Gonzalez, City Manager, stated that direction was given by the City Commission
that if all of the warnings were not used up and a violation is issued, the remainder of
the warnings can still be used.
Discussion continued.
Stu Blumberg, President of the Greater Miami Hotel & Restaurant Association, spoke.
David Wallack, owner of Mango's Tropical Cafe, spoke.
Commissioner Bower stated that the residents need to know how to make a noise complaint.
She suggested that the ordinance contain language explaining who and where to complaint and
there should be a direct line for residents to call.
Stu Blumberg, President of the Greater Miami Hotel & Restaurant Association, spoke.
Steve Polisar, Chairman of the Nightlife Task Force, spoke.
Kent Harrison Robbins, Esq. stated that the 46-158(b) (2) ". ..... Failure to correct the violation
within fifteen minutes following the issuance of a warning, shall result in the issuance of a notice
of violations pursuant to this Article." is not clear. He asked if this is a written warning or an oral
warning.
Commissioner Bower requested clarification and asked if a courtesy notice, a warning, and a
violation can be issued, on the same day. On a different day they start with a warning again,
and get a violation. She also asked if a courtesy warning is given, does it have to be written to
track it. If it is not written down, what proof is there that a courtesy notice was issued?
Vice-Mayor Steinberg stated that since the Commission already voted in the warnings section
to leave the "may" versus "shall", it is not relevant. The fact that someone goes before the
Special Master and states that they never received a courtesy warning is irrelevant because the
ordinance states that the inspector "may' issue an oral courtesy notice.
David Wallack, owner of Mango's Tropical Cafe, spoke.
Commissioner Libbin suggested changing the language in 46-158(b) (2) to "...within fifteen
minutes following the issuances of a written warning, shall ...". Add the word written.
Jorge Gonzalez, City Manager, clarified the action, there may be courtesy warnings that are not
written, non-complaint driven, if within 15 minutes compliance is not achieved, the inspector will
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write a written warning, and if within 15 minutes of the written warning there is not compliance a
violation will be issued within a day period. There will be one warning per day issued and one
courtesy per day.
Commissioner Bower again asked for clarification. If a warning is given, and the first violation is
given because of lack of compliance and one hour later the violation still exists, another
violation is written.
Kent Robbins, Esq., suggested that instead of "per day" it should be "within a 24 hour period."
Jorge Gonzalez, City Manager, requested that it stay "per day."
Commissioner Bower stated that the "per day" is not fair.
Mayor Dermer stated that there was agreement to change the "per day" to "within 24
hour period."
Commissioner Cruz asked what the ruling is for special events.
There was a discussion regarding how special events will be handled regarding the noise
ordinance.
Commissioner Gross stated that what could be done is if the number of warnings has
been exhausted, during the remainder of the year, you don't get any warnings during the
major event period. This was agreed to by consensus.
Jorge Gonzalez, City Manager, stated that he wanted to make it clear that those violations
count against the escalating fee schedule.
Vice-Mayor Steinberg stated that he believes the sentiment of the majority was that
one-freebee per special events period would be given; however, if the six warnings have
already been exhausted you don't get the freebee. He also stated that every major event is not
a noise generator and every major event is not citywide. In addition, on page 332 in the
Agenda (46-158(b)(2)(a), the one year period needs to be clarified. It was not intended to be a
calendar year.
Vice-Mayor Steinberg also requested clarification of when the violations reset.
Jorge Gonzalez, City Manager, stated that the question is whether the reset should be on a
rolling twelve month period or a fixed twelve month period. The ordinance today resets to zero
in twelve months from the first warning.
Commissioner Bower stated that it must be a rolling twelve months.
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David Wallack, owner of Mango's Tropical Caf6, objected to the rolling twelve months.
Jorge Gonzalez, City Manager, stated that as a possible compromise that only the warnings
can be reset. There needs to be six warnings before the first violation. If the offender is
flagrant enough to get into the violation schedule, then maybe the violations should not be
reset.
Commissioner Libbin stated that the whole purpose of the ordinance is to achieve compliance.
The idea was that the fines are fairly significant after the first couple of violations and shutting
down the outdoor music for a weekend or two, is a significant penalty. He stated that the reset
time should be based on one year from the first warning.
Kent Robbins, Esq., stated that this is the central issue of this legislation.
Stu Blumberg, President of the Greater Miami Hotel & Restaurant Association, asked for a one
year trial to determine what is good or bad with the ordinance.
Motion made by Vice-Mayor Steinberg to reset warnings and violations on a rolling
twelve month period; seconded by Commissioner Bower; Voice vote: 6-1; Opposed:
Commissioner Libbin.
Jorge Gonzalez, City Manager, stated that one always measures from the oldest warning and a
violation is dropped.
Discussion continued.
Commissioner Garcia stated that the reset would be handled similar to the way driver license
violation points are removed.
Commissioner Bower requested that sufficient time be given so everyone will have enough time
to review the final draft of the ordinance.
Frank Del Vecchio spoke.
Motion made by Commissioner Gross to exempt the residential zone below 5th Street
from the condition that noise to the east is not unnecessarily loud; seconded by
Commissioner Bower; Voice vote: 3-4; Opposed: Vice-Mayor Steinberg and
Commissioners Cruz, Garcia and Libbin. Motion failed.
Jorge Gonzalez, City Manager, stated that as of yesterday the legal opinion was that sections
of the City cannot be segregated; it must be for the entire beach.
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Murray Dubbin, City Attorney, stated that Legal Department's issue is equal protection.
Benita Argos spoke.
Evelyn Dominique spoke.
Judy Claton spoke.
Christine LaBuzetta spoke.
Henry Stolar spoke.
Marco Lara spoke.
Harry Cherry spoke.
Commissioner Bower asked about when a violator is ready to go to the Special Master, if the
year rolls over, will the violator, because of timing, still have to go to the Special Master
process.
Jorge Gonzalez, City Manager, stated that the rolling warnings are okay to do. It will be hard to
get the violations rolling because they escalate. The 5th violation is a different penalty than the
4th violation. To drop the first one and make the 5th violation the 4th is a problem. He
suggested making the warnings rolling, but make the violations reset after maybe 36 months.
Morris Sunshine spoke. He stated that since the City Attorney's Office has opined that
eastbound noise and immunization against it is lawful he wants to be on the record of objecting.
It is not unlawful and it is not exempt. He stated that in the last sentence of 46-157(11) instead
of "generated" perhaps it should be "received." He also stated that this ordinance allowing east
bound noise may seriously interfere with the Planning Board's right to regulate excessive noise
by means of conditional use permits.
Commissioner Bower asked the Legal Department to research. Legal Department to
handle.
Richard Harris spoke.
Brad Stevens stated that on New Year's there was suppose to be police presence on two of the
intersections that surround the Opium area; however, there was no police patrolling the area.
He added that Sunday nights are horrible and explained that especially going from Nikki Beach
Club over to Opium is the worst. He stated that police presence is needed. Chief De Lucca to
handle.
Commissioner Cruz stated that this area has been a concern and that they will talk to Chief De
Lucca.
Commissioner Bower requested adding language in the ordinance to assist residents on how to
file a noise complaint. Robert Middaugh to handle.
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Jorge Gonzalez, City Manager, stated that language will be added to facilitate this.
The second reading and public hearing is scheduled for March 8, 2006 at 5:01 p.m.
Handout or Reference Materials:
1. Notice of Ad in The Miami Herald
2. 17-page memo from Frank Del Vecchio to City Commission dated Jan. 11, 2006 RE: Jan
11, 2006 Commission Agenda Item R5D: Noise Ordinance: Legally-relevant issues and
departures from Dec. 7, 2005 initial city commission vote.
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Sec. 46-160. Nuisance.
Any violation of this article shall constitute a nuisance. The city attorney may bring suit
on behalf of the city, or any affected citizen may bring suit in his name, against the person or
persons causing or maintaining the violation, and against the owner/agent of the building or
property on which the violation exists. Relief may be granted according to the terms and
conditions of F.S. § 60.05, relating to abatement of nuisances, or pursuant to section 46-159. In
any such action, the city or affected citizen, if the prevailing party, shall be awarded costs,
including reasonable attorney's fees.
(Ord. No. 95-2982, § 2(24-9), 3-22-95)
CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY given that public headngs will be held by the Mayor and City Commission of the City of
Miami. Beach, Florida, in the Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive,
Miami Beach, Florida, on Wednesday, January 11,2006, to consider the following:
10:15 a,m.
An Ordinance Amending Ordinance No. 1605, The Unclassified Employees Salary Ordinance, By
Establishing The Classifications Of Bicycle Program Coordinator, Case Worker Ii, Chief Building-Code
Compliance Officer, Chief Fire Protection Analyst, Community Information Coordinator, Emergency
Management Coordinator, Environmental Resources Manager, Film & Event Production Manager, Grants And
Operations Administrator, Labor Relations Director, Labor Relations Specialist, Landscape Projects
Coordinator, Management Consultant, Media Assistant, Neighborhood Services Projects Administrator, Park
Facility Manager, Radio Systems Administrator, Senior Management Consultant, Senior Network
~,dministrator, Senior Systems Analyst, Senior Systems Administrator, Senior Telecommunications
Specialist, Systems Admfnistrator, Systems Analyst, Telecommunications Specialist, Traffic Engineer,
Transportation Manager, Truancy Preventation Program Coordinator, Urban Forester, And Voip Network
Administrator; Amending The Title And Grade Of The Classification Of Labor Relations Director And Grades
Of The Classifications Of Network Administrator, Procurement Coordinator And Senior Procurement
Specialist.
inquiries may be directed to the Human Resources Department at (305) 673-7520.
1'0:20 a.m.
An Ordinance Amending Division 2, Entitled "The Barrier-Free Environment committee"; Amending Section
2-31 Entitled "Established; Purpose; Composition" By Changing The Committee's Name To "Disability
Access Committee".
Inquiries may be directed to the Public Works Department at (305) 673-7080.
10:25 a.m.
An Ordinance Amending The Land Development Regulations Of The Code Of The City Of Miami Beach, By
Amending Chapter 118, "Administration And Review Procedures," Article VI, "Design Review Procedures"
By Clarifying The Scope Of Review Of The Design Review Board As It Pertains To Single Family Homes And
Townhomes.
Inquiries may be directed to the Planning Department at (305) 673-7550.
5:0'1 p,m.
An Ordinance Amending Chapter 46 Of The City Code, Entitled "Environment," By Amending Article IV,
Entitled "Noise," By Amending Section 46~151, EnUtied "Definitions," To Provide New Terms And DefiniUons
And Deleting Certain Terms And Definitions; Amending Section 46-152, Entitled "Unreasonably Loud Noise
Prohibited," By Amending. The Title And Adopting Section 21 - 28 Of The Code Of Miami-Dade County By
Reference; Amending Section 46-153, Entitled "Responsibility For Compliance," By Amending The
Provisions Thereof; Repealing Section 46-154, Entitled "Noise Level 'In Specific Area"; Repealing Section
46-155, Entitled "Additional Sound Limitations For Public Property"; Amending Section 46-156, Entitled
"Temporary Permits," By Expanding The Prohibited Areas For Construction Noise To Within 300 Feet Of
Certain Districts And Amending The Exemptions For Special Events And Film Permits; Amending Section 46-
157, Entitled "Exemptions," And By Deleting Subsection (11)And Amending The Provisions Thereof;
Amending Section 46-158, Entitled "Enforcement By Code Inspectors; Notice Of ViolAtion," By Amending
The Procedures For Enforcement And Warnings; Amending Section 46-159, EnUtled "Civil Fines For
Violation; Appeals," By Amending The Fines And Penalties For Violations, The Appeal Procedures,And The
Alternate Means Of Enforcement; Amending And Renumbering Section 46-160, Entitled "Nuisance," As
Section 46-161, And Renaming Section 46-160 As "Relief From Violations For Sound Systems And
Compliance" And Creating Provisions Therefore; Amending And Renumbering Section 46-161, Entitled
"Motor Vehicle Alarms" As Section 46-162 Which Is Hereby Created.
Inquiries may be directed to the City Manager's Office at (305) 673-7010.
INTERESTED PARTIES are invited to appear at this meeting, or be represented by an agent, or to express
their views in writing addressed to the City Commission, c/o the City Clerk, 1700 Convention Center Drive,
1st Floor, City Hall, Miami Beach, Florida 33139. Copies of these ordinances are available for public
inspection during normal business hours in the City Clerk's Office, 1700 Convention Center Drive, 1st Floor,
City Hall, and Miami Beach, Florida 33139. This meeting may be continued and under such circumstances
additional legal notice would not be provided.
Robert E. Parcher, City Clerk
City of Miami Beach
Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: if a person decides to
appeal any decision made by the City Commission with respect to any matter considered at its meeting or
its hearing, such person must ensure that a verbatim record of the proceedings is made, which record
includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute
consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence, nor
does it authorize challenges or appeals not otherwise allowed by law.
To request this material in accessible format, sign language ir~terpreters, information on access for persons
with disabilities, and/or any accommodation to review any document or participate in any city-sponsored
proceeding, please contact (305) 604-2489 (voice), (305)673-7218(T'I'Y) five days in advance to initiate
your request. TTY users may also call 711 (Florida Relay Service).
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