2009-3665 OrdinanceORDINANCE NO. 2009-3665
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA AMENDING THE CODE OF THE
CITY OF MIAMI BEACH, BY AMENDING CHAPTER 82, "PUBLIC
PROPERTY," ARTICLE IV, "USES IN PUBLIC RIGHTS-OF-WAY,"
DIVISION 6, "PROHIBITED SIGNS OVER PUBLIC PROPERTY,"
SECTION 82-411 TO ADD AN EXEMPTION FOR FLAGS AND
FLAGPOLES; AND AMENDING CHAPTER 138, "SIGNS," ARTICLE III,
"PROHIBITED SIGNS," SECTION 138-72 "PENNANTS, BANNERS,
STREAMERS, FLAGS AND FLAGPOLES" TO CREATE A
PROCEDURE FOR TEMPORARY FLAGS AND FLAGPOLES AND TO
CLARIFY THAT THE SECTION APPLIES TO FLAGS OF NATIONALLY
OR INTERNATIONALLY RECOGNIZED SYMBOLS OF CULTURAL
DIVERSITY; PROVIDING FOR CODIFICATION, REPEALER,
SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS, the City Code contains a section regulating flags, banners,
pennants, and streamers, in order to address aesthetic and safety concerns by
minimizing clutter, obstructed views and various traffic hazards; and
WHEREAS, as part of the discussion adopting a resolution authorizing the Public
Works Department to issue revocable permits to applicants wishing to display the
Rainbow/Pride flag during the month of April 2009, in support of the City's annual Gay
Pride event, the issue of businesses being able to fly the American Flag or other
authorized flags without having to ~ obtain a permit was referred to the
Neighborhoods/Community Affairs Committee by the City Commission on March 18,
2009; and
WHEREAS, the proposed ordinance adds language clarifying that the exemption
applies equally to flags of nationally or internationally recognized symbols of cultural
diversity, as well as the already referenced national, state and governmental flags and
flags of civic, charitable, fraternal and welfare organizations; and
WHEREAS, the amendments set forth below are necessary to accomplish all of
the above objectives.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
Section 1.
Chapter 82, "Public Property," Article IV, "Uses in Public Rights of Way," Division 6,
"Prohibited Signs Over Public Property," is hereby amended as follows:
Sec. 82-411. Prohibited signs generally; exemptions; banners; removal.
(a) Except as provided in this chapter or by city ordinance, by statutes or by county
ordinance, no sign of any character shall be suspended across any public street, alley or
waterway; nor shall any sign of any description be posted or painted on or applied to any
curb, sidewalk, tree, light standard, utility pole, hydrant, bridge, wall, or any structure,
other than an awning, which is within the property lines of any street, alley or waterway
within the city. The following signs shall be exempt from this requirement:
(1) Official traffic signs, information signs and warning signs erected by a
governmental agency and temporary signs indicating danger.
(2) Temporary special public event directional signs approved pursuant to article
IV of this chapter.
(3) Historical markers approved by the historic preservation board.
(4) Light pole banners as provided for in subsection 82-411(d).
Flaps and flagpoles as provided for in subsection 138-72(b).
Section 2.
Chapter 138, "Signs," Article III, "Prohibited Signs," is hereby amended as follows:
Sec. 138-72. Pennants, banners, streamers, flags and flagpoles.
(a) Pennants, banners, streamers, and all other fluttering, spinning or similar type signs
and advertising devices are prohibited except as provided in sections 138-72(d), 138-
137 and 138-139, subsection 82-411(d) and section 138-204, and except for national
flags and flags of political subdivisions of the United States, flaps of civic, charitable,
fraternal, and welfare and other organizations, and flags of nationally or internationally
recognized symbols of cultural diversity.
(b) Flags and flagpoles must meet the following requirements, except during nationally
recognized holidays:
(1) Flagpoles shall be permanently affixed to the ground, building or other
structure in a manner acceptable to the building official.
(2) Flagpoles shall not exceed 50 feet in height above grade when affixed at
ground level. The length of flagpoles permanently affixed to buildings or other structures
shall be approved through the design review process, not to exceed 25 feet above the
height of the main roof deck. The installation of permanent flagpoles projecting over
public property shall require approval from the Public Works Department. si#~
2
Attached or detached flagpoles in single-family districts shall not exceed 30 feet in
height, as measured from grade.
(3) Temporary flagpoles may be affixed to buildings or other structures without
requiring a building permit or approval from the Public Works Department. For exempt
temporary flagpoles:
i. The flagpole shall be of a temporary nature. i.e., not permanently affixed
to the structure;
ii. The mounting hardware must be placed at least six feet, eight inches
(6' - 8") above ground level;
iii. The flag may not exceed three feet by five feet (3' x 5') and must be
made of flame retardant material.
iv. No portion of any flap that extends over public property shall be less
than nine feet (9') above such property, measured vertically directly beneath the
flag to grade.
v. All temporary flaps and flagpoles must be immediately removed upon
the issuance of an official hurricane warning.
(34~ Detached flagpoles shall have the following setback requirements:
a. Any yard facing a street: ten ~10~ feet.
b. I nterior side yard: seven and one-half ,(7.51 feet.
c. Rear yard, oceanfront, bayfront: ten ~10~ feet.
(45) The length of the flag shall be one-fourth the length of the pole when affixed
to the ground and one-third the length of the pole for flags on roofs, structures or
buildings. The width of the flag shall be two-thirds of the length.
(~6) The arrangement, location and number of flags and flagpoles in excess of
one per property shall be determined by the design review process.
SECTION 3. REPEALER.
All ordinances or parts of ordinances and all section and parts of sections in conflict
herewith be and the same are hereby repealed.
3
SECTION 4. CODIFICATION.
It is the intention of the City Commission, and it is hereby ordained that the provisions of
this ordinance shall become and be made part of the Code of the City of Miami Beach as
amended; that the sections of this ordinance may be renumbered or reiettered to
accomplish such intention; and that the word "ordinance" may be changed to "section" or
other appropriate word.
SECTION 5. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 6. EFFECTIVE DATE.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this 9tfl day of December 2009.
T HERRERA WER MAYOR
ATT ST:
CITY CLERK
ROBERT E. PARCHER
First Reading: October 14, 2009
Second Reading: December 9, 2009
APPROVED AS TO
FORM AND LANGUAGE
& FOR EXECUTION
~ ~~9
c,, _ City Atto ey Date
~~
Verified by:
Ri hard G. Lorber, AICP, LEED AP
Acting Planning Director
Underscore denotes new language
~#~et~e~~ denotes deleted language
F:\PLAN\$PLB\draft ordinances\1943 -Flags\Flag Ordinance Ord Revised 12-10-09 FINAL.docx
4
COMMISSION ITEM SUMMARY
Condensed Title:
An ordinance amending Chapter 82, "Public Property," Section 82-411, to add an exemption for flags
and flagpoles; and amending Chapter 138, "Signs," Section 138-72 "Pennants, Banners, Streamers,
Flags And Flagpoles" to create a procedure for temporary flags and flagpoles and to clarify that the
section applies to flags of nationally or internationally recognized symbols of cultural diversity.
Key Intended Outcome Supported:
Increase satisfaction with neighborhood character; quality of life.
Supporting Data (Surveys, Environmental Scan, etc
64.1 % of residents and 68.2% of businesses said the level of code enforcement and ordinances
established by the City of Miami Beach government is "about the right amount."
Issue:
Should the City Commission adopt the proposed ordinance which would clarify and simplify the
process of being able to fly various types of authorized non-commercial flags.
Item Summary/Recommendation:
SECOND READING PUBLIC HEARING
The proposed ordinance clarifies that exemptions apply equally to flags of nationally or internationally
recognized symbols of cultural diversity, as well as to national, state and governmental flags and flags
of civic, charitable, fraternal and welfare organizations, and permits temporary flagpoles which meet
specific criteria to be installed without a permit, and eliminates the requirement for City Commission
approval of revocable permits for flagpoles extending over the right of way.
The Administration recommends that the City Commission adopt the proposed ordinance upon second
reading public hearing.
Advisory Board Recommendation:
At the September 22, 2009 meeting the Planning Board voted 6-1 (Weisburd opposed) to
recommend adoption of the proposed ordinance, with an amendment adding restrictions on the
maximum amount of time and maximum number of days per year for temporary flagpoles.
Financial Information:
Source of Amount Account
Funds: q
2
3
OBPI Total
Financial Impact Summary:
In accordance with Charter Section 5.02, which requires that the "City of Miami Beach shall consider
the long term economic impact (at least 5 years) of proposed legislative actions," the City
Administration evaluated the long term economic impact (at least 5 years) of this proposed legislative
action and determined that the originally proposed Ordinance can be expected to have no fiscal
impact. The Planning Board recommended version may have additional fiscal impacts if it creates an
undue burden on City staff to implement a monitoring and enforcement mechanism to regulate the
ro osed limits on duration and cumulative time tem ora fla oles are ro osed to be allowed.
Clerk's Office Legislative Tracking:
I•
Richard Lorber or Mercy Lamazares
Sian-Offs:
T:\AGENDA12009\December 9\Regular\Flags
NI I ANI I B EAC H AGENDA ITEM s~
DATE ~ Z'~/~ O 5
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the C'Ly Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: December 9, 2009 Second Reading Public Hearing
SUBJECT: Proposed Ordinance Amendment -Flags and Flagpoles
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA AMENDING THE CODE OF THE
CITY OF MIAMI BEACH, BY AMENDING CHAPTER 82, "PUBLIC
PROPERTY," ARTICLE IV, "USES IN PUBLIC RIGHTS-OF-WAY,"
DIVISION 6, "PROHIBITED SIGNS OVER PUBLIC PROPERTY,"
SECTION 82-411 TO ADD AN EXEMPTION FOR FLAGS AND
FLAGPOLES; AND AMENDING CHAPTER 138, "SIGNS," ARTICLE III,
"PROHIBITED SIGNS," SECTION 138-72 "PENNANTS, BANNERS,
STREAMERS, FLAGS AND FLAGPOLES" TO CREATE A
PROCEDURE FOR TEMPORARY FLAGS AND FLAGPOLES AND TO
CLARIFY THAT THE SECTION APPLIES TO FLAGS OF NATIONALLY
OR INTERNATIONALLY RECOGNIZED SYMBOLS OF CULTURAL
DIVERSITY; PROVIDING FOR CODIFICATION, REPEALER,
SEVERABILITY AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the City Commission adopt the proposed
ordinance upon second reading public hearing.
BACKGROUND
The issue of businesses being able to fly the American Flag or other authorized flags
without having to obtain a permit was referred to the Neighborhoods/Community Affairs
Committee by the City Commission on March 18, 2009. This referral took place as part
of the discussion adopting a resolution authorizing the Public Works Department to issue
revocable permits to applicants wishing to display the Rainbow/pride flag during the
month of April 2009, in support of the City's annual gay pride event.
ANALYSIS
The City Code has for many years contained a section regulating flags, banners,
pennants, and streamers, in order to address aesthetic and safety concerns by
minimizing clutter, obstructed views and various traffic hazards. While this regulation is
important, the ordinance is also written in a reasonably broad, content-neutral manner, in
order to permit all forms of non-commercial free expression as protected by law (see
attached memo from Raul Aguila, Deputy City Attorney). However, as evidenced by the
discussions over the past several months, the existing language of the ordinance can be
confusing. To that end, staff of the Planning Department and the Public Works
City Commission Memorandum
Proposed Ordinance Amendment -Flags and Flagpoles
December 9, 2009 Page 2
Department, together with the City Attorney's Office, has drafted a proposed ordinance
amendment which would serve to clarify and simplify the process of being able to fly
various types of authorized non-commercial flags.
The proposed ordinance adds language clarifying that the exemption applies equally to
flags of nationally or internationally recognized symbols of cultural diversity, as well as
the already referenced national, state and governmental flags and flags of civic,
charitable, fraternal and welfare organizations.
The ordinance addresses the issue of flags proposed to be flown both on private
property, and on flagpoles extending out over public property such as sidewalks, and
makes a distinction between temporary flagpoles and permanent flagpoles. For
temporary flagpoles which meet specific criteria, no building permit will be required, and
for those projecting over public property no approval from the Public Works Department
will be required. The criteria for temporary flagpoles state that the mounting hardware
must be placed at least six feet, eight inches high (6' - 8"), the flag may not exceed three
feet by five feet (3' x 5') and must be made of flame retardant material, and no portion of
any flag which extends over public property shall be less than nine feet (9') above such
property, measured vertically directly beneath the flag to grade.
The installation of permanent flagpoles will continue to require a building permit, and
those permanent flagpoles extending over public property will require approval from the
Public Works Department. The requirement for City Commission approval of a
revocable permit has been eliminated. One flag and/or flagpole may be put up per
property, without requiring design review or historic preservation approval. Additional
flags or flagpoles could be approved through the design review process as applicable.
COMMISSION COMMITTEE ACTION
The Neighborhood/Community Affairs Committee discussed the proposed ordinance
amendment on June 17, 2009, and referred the item to the Planning Board. The Report
of the Neighborhood/Community Affairs Committee was approved by the City
Commission on July 15, 2009.
PLANNING BOARD ACTION
At the September 22, 2009 meeting the Planning Board recommended that the City
Commission adopt the proposed ordinance by a vote of 6-1 (Weisburd opposed), with an
amendment to the original ordinance adding: "to qualify as temporary, a flagpole must be
removed within 30 days after its installation, and the total number of days that a flaaaole
can qualify as temporary is a maximum of 90 days per calendar near" as they were
concerned that the overuse of temporary flags and flagpoles could have negative
aesthetic consequences.
The Administration, however, did not share that concern, and noted that the expectation
of enforcement of such a limitation may create an undue burden on City resources.
Additionally, the City Attorney's Office had expressed a concern that the ordinance not
be so restrictive as to limit expression based purely on an arbitrary number, without a
compelling governmental interest.
City Commission Memorandum
Proposed Ordinance Amendment -Flags and Flagpoles
December 9, 2009 Page 3
CITY COMMISSION ACTION
At the October 14, 2009 meeting, the City Commission approved on first reading the
original version of the proposed ordinance, without the amendment recommended by the
Planning Board.
FISCAL IMPACT
In accordance with Charter Section 5.02, which requires that the "City of Miami Beach
shall consider the long term economic impact (at least 5 years) of proposed legislative
actions," this shall confirm that the City Administration evaluated the long term economic
impact (at least 5 years) of this proposed legislative action and determined that the
originally proposed Ordinance can be expected to have no fiscal impact. The ordinance
as recommended by the Planning Board may have additional negative fiscal impacts if it
creates an undue burden on City staff to implement a monitoring and enforcement
mechanism to regulate the proposed limits on duration and cumulative time temporary
flagpoles are proposed to be allowed.
CONCLUSION
The Administration recommends that the City Commission adopt the proposed
ordinance as it clarifies and simplifies the process of being able to fly various types of
authorized non-commercial flags without creating an undue burden of enforcement.
Attachment
JMG/JGG/RGL
T:WGENDA\2009\December 9\Regular\Flags Ordinance memo.doc
MEMORANDUM-
"Pride" Flag-
BACKGROUND INFORMATION ON THE LEGAL STATUS OF FLAG
REGULATION
An individual's free speech right to send a message by flying a particular type or size
of flag is circumscribed by the aesthetic considerations of the locality. Generally,
restrictions on flags will be encompassed within the city's regulation of signs.
In the context of flag's, where the banned use involves the expression of ideas, First
Amendment free speech considerations come to the fore. In this context, a number of courts
have considered the ramifications of the enactment of ordinances that limit or prohibit the
flying of flags, banners, pennants, and streamers, other than those used for commercial
purposes only.
For example, there is case law finding that a city flag ordinance limiting the
permitted size or type of flags in particular areas did not violate the First Amendment as
applied to a display of American flags. American Legion Post 7 of Durham, N. C. v. City of
Durham, 239 F.3d 601, (4th Cir. 2001). This was based on findings that the ordinance
furthered a substantial government interest of aesthetics, was narrowly tailored to further
that interest, and left open ample alternative channels of communication because the
restrictions were not onerous and because exceptions were available.
A municipality may exercise its police power to promulgate and enforce regulations
regarding placement of signs that vindicate its citizens' aesthetic and safety interests by
minimizing clutter, obstructed views and various traffic hazards.2
Where zoning or other forms of land use regulation are directed at or impact conduct
protected by the First Amendment of the federal constitution, courts will give greater
scrutiny to the validity of the regulation. Generally, the city will have the burden of showing
that regulation is content-neutral and serves as merely a reasonable time, place, and manner
restriction on the protected conduct in furtherance of a substantial public purpose for
regulation. Texas v. Johnson, 491 U.S. 397, 412 (1989). (where conduct is restricted
because of the message expressed, the regulation must survive the most exacting scrutiny).
Specific activities and conduct triggering this First Amendment analysis are listed below:
• regulation of political or commercial speech particularly in the context of signs and
billboards; as well as newspaper display racks.
• regulation of religious activities, displays and churches; and
Members of Council v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) (setting forth the appropriate
framework for reviewing a zoning regulation as sufficiently justified within the Constitution if it is within the
constitutional power of the Government; if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on
alleged first amendment freedoms is no greater than is essential to the furtherance of that interest (quoting
United States v. O'Brien, 391 U.S. 367, 377 (1968))).
a See Department of Transp.v. Shiflett, 310 S.E.2d 509, 511 (Ga. 1984) (holding sign restrictions as valid
when there is a nexus between the aesthetic regulation and traffic safety concerns, such as how far a
billboard must be located from a highway).
2
MEMORANDUM -
"Pride" Flag-
^ regulation of sexually oriented businesses or so-called adult uses which involve
protected "speech" such as movies, books or theatrical performances.
Noncommercial (including political and ideological) signs clearly can be regulated
by reasonable time, place, and manner restrictions so long as regulation is content-neutral
and not an attempt to suppress such speech.3 Perry Education Ass 'n v. Perry Local
Educator's Ass'n., 460 U.S. 37, 45 (1983). (content based restriction on noncommercial
speech must be "necessary to serve a compelling state interest").
FLORIDA AND ELEVENTH CIRCUIT CASE LAW REGARDING
ORDINANCES ON FLAGS/SIGNS
Dimmitt v. City of Clearwater, 985 F.2d 1565 (11`~ Cir. 1993) (City's ordinance was not
content neutral regulation because it exempted two flags displayed on commercial property
from the permit requirement only as long as they were government flags. The court held
that by limiting the permit exemption to government flags, appellant had unconstitutionally
differentiated between speech based upon its content);
Messer v. City of Douglasville, 975 F.2d 1505, 1509-1511 (11th Cir.1992) (city's aesthetic
interests in preserving historic district supported content neutral restriction upon off-site
commercial and noncommercial signs);
Don's Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053 (11th Cir.1987), cert.
denied, 485 U.S. 981, (1988) (regulation of portable signs directly advances city's
legitimate interest in reducing visual clutter);
Harnish v. Manatee County, 783 F.2d 1535, 1540 (11th Cir.1986) (upholding total ban on
portable signs based upon aesthetics and traffic safety);
Supersign of Boca Raton, Inc. v. City of Fort Lauderdale, 766 F.2d 1528, 1530 (11th
Cir.1985) (partial restriction of floating signs supported by interests in traffic safety and
aesthetic improvement).
COMMON FLAGS/FLAG FACTS IN FLORIDA
Today, in addition to the state flag, many other flags regularly appear in Florida.
Among the most common are the red-and-white diver's flag,4 the red-and-black hurricane
flag, and the blue-and-gold flag of the Conch Republic. Other often encountered flags are
s Metromedia, Inc. v. San Diego, 453 U.S. 490, 502 (1981). Most forms of media combine communicative and
noncommunicative aspects. Id. at 494. The government has legitimate interests in controlling the
noncommunicative aspects of the medium. Id. at 502. Because regulation of the noncommunicative aspects of a
medium often impinges to some degree on the communicative aspects, it has been necessary for the courts to
reconcile the government's regulatory interests with the individual's right to expression. Id. at 501.
a The diver's flag, consisting of a white diagonal stripe on a red field, "warns of diving in the area where it is
displayed[.]"In Florida, all divers are required to "prominently display adivers-down flag in the area in
which the diving occurs, other than when diving in an area customarily used for swimming only." Fla. Stat. §
861.065(4) (1991).
~3
MEMORANDUM -
"Pride" Flag-
foreign flags,s municipal and corporate flags,
P.O.W.-M.LA. flag.b
and the deeply moving black-and-white
The desire of commercial dive shops to fly the dive
interesting situation in Fort Lauderdale and other B~
both the County and the various municipalities, the
See, e.g., FORT LAUDERDALE, FLA., II CODE §
exempt from the prohibition. Id. § 47- 50.3(c)(5). S.
flag of the Brazilian state of Para looks exactly like
middle of the white horizontal stripe. MAURO TAI
225 (rev. ed. 1982). As a result, the Para flag now c
SNowhere is this more true than in Coral Gables, why
permanently display the flags of more than 200 cow
business community. See Coral Gables Salutes the '
Cuban, Haitian, and Israeli flags are very prominent i
Leaf is the most frequently seen foreign flag.
e The P.O.W.-M.I.A. flag, which depicts a prisoner
wire in the background, was created after the Viet
19, 1990, the Florida Legislature has required "eac
States is displayed [tol also display a P.O. W.M.I.A.
flag in front of their stores has spawned an
ward County cities. Under the zoning ordinances of
e of commercial banners, including flags, is illegal.
~-50.3(c) (1990). Governmental flags, however, are
ie years ago, dive shop owners discovered that the
e diver's flag, except that it adds a blue star to the
ICCI, GUIDE TO THE FLAGS OF THE WORLD
be seen throughout Broward County
the Local chamber of commerce convinced the City to
pies in a colorful salute to the city's large international
orld, NEW MIAMI, Oct. 1993, at 8. Although the
South Florida, on a statewide basis the Canadian Maple
f war in the foreground and a sentry box and barbed
am War to honor missing soldiers. Since September
stateowned building at which the flag of the United
sg [[[.]" Fla. Stat. § 256.12 (1991).
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s onsored proceeding,~please~onttact (306).-604
m:adyanse to mttiate,yourrequest TN users may:alsa call:.7{11 .(F.Iorida Relay. Serwce .
'Ad #581