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2010-3668 OrdinanceSECOND READING ORDINANCE NO. 2010-3668 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 30, ENTITLED "CODE ENFORCEMENT," BY AMENDING ARTICLE III THEREOF, ENTITLED "ENFORCEMENT PROCEDURE," BY AMENDING SECTION 30-74, ENTITLED "FINE," BY AMENDING THE PROVISIONS RELATING TO THE MITIGATION OF FINES AND THE REDUCTION OF A FINE CAP DUE TO PARTIAL COMPLIANCE; BY AMENDING SECTION 30-76, ENTITLED "REHEARINGS; MITIGATION," BY REQUIRING THAT MITIGATION MUST BE REQUESTED WITHIN THREE YEARS FROM THE FILING OF AN AFFIDAVIT OF COMPLIANCE FROM A CITY INSPECTOR WITH THE CLERK OF THE SPECIAL MASTER; PROVIDING FOR REPEALER; SEVERABILITY; CODIFICATION; AND AN EFFECTIVE DATE. WHEREAS, the code enforcement procedures adopted in Chapter 30 of the Miami Beach City Code provide necessary regulations, fines, and penalties for the violation of the City Code; and WHEREAS, under certain circumstances, the mitigation of fines subsequent to the correction and compliance with code requirements is warranted and equitable; and WHEREAS, the Mayor and City Commission deem it advisable to amend the code enforcement provisions in Chapter 30 to provide provisions for the reduction of a fine cap due to partial compliance and to provide that fine mitigation must be requested within three years from the filing of an affidavit of compliance from a city inspector with the clerk of the special master. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: SECTION 1. That Section 30-74, entitled "Fine" of Article III, entitled "Enforcement Procedure," of Chapter 30, entitled "Code Enforcement," of the Miami Beach City Code, is hereby amended as follows: CHAPTER 30 CODE ENFORCEMENT Article III. Enforcement Procedure Sec.30-74. Fine. (d) A fine imposed pursuant to this section shall not exceed $1,000.00 per day for a first violation and shall not exceed $5,000.00 per day for a repeat violation. In addition, the special master may include all costs of repairs pursuant to subsection 30-74 (c). However, if .the special master finds the violation to be irreparable or irreversible in nature, he may impose a fine not to exceed $15,000.00 per violation. The special master shall, at the time of the imposition of a fine, impose a cap on the total amount of a fine that may accrue, a+~-aAt a subsequent hearing, the special master shall reduce the fine cap to reflect partial compliance, except that the special master shall not reduce the cap if, due to non-compliance, the accrued fine reached the cap imposed by the special master. In no event shall the cap be reduced for partial compliance below an accrued fine. The cap provisions set forth in this section shall not apply to the fines imposed pursuant to other chapters in this Code that do not impose per diem fines. (e) In determining the amount of the fine, if any, the fine cap, or a reduction in the fine cap to reflect partial compliance, the special master shall consider the following factors: (1) The gravity of the violation; (2) Any actions taken by the violator to correct the violation; and (3) Any previous violations committed by the violator. The cap provisions in subsections (d) and (e) shall automatically sunset and shall be repealed on September 19, 2011. Section 2. That Section 30-76, entitled "Rehearings; mitigation" of Article III, entitled "Enforcement Procedure," of Chapter 30, entitled "Code Enforcement," of the Miami Beach City Code is hereby amended as follows: Sec. 30-76. Rehearings; mitigation. (b) Mitigation. All applications for mitigation shall be made in writing and under oath. No applications 'for mitigation shall be considered until an affidavit of compliance has been filed by ~e a city inspector . A petition for relief from order shall be brought within one year. A petition for mitigation shall be brought within three years after the erg filing of an affidavit of compliance with the clerk of the special master and is subject to the following mitigation criteria: (1) The gravity of the violation; (2) The promptness of compliance; (3) The good faith actions taken to correct the violation; and (4) The amount of equity in the property relative to the amount of the lien. (c) Mitigation may not be used for purpose of rehearing or appeal of the original order imposing the fine. 2 SECTION 3. Repealer. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 4. Severability. If any section, sentence, clause or phrase of this ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ordinance. SECTION 5. 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 6. Effective Date. This Ordinance shall take effect the ~ day of ~~MU/'F-Zy , 26~ PASSED and ADOPTED this !3 day of ~ahKAr l , 2t~ AT ST: ~~\ Robert Parcher, City Clerk F:\atto\TURN\ORDINANC\Code Enforcement -Fine Cap Reduction.doc atti errer ower Mayor ~i ~ CiJ'T4C~ 3 COMMISSION ITEM SUMMARY An Ordinance amending Chapter 30, entitled "Code Enforcement," by amending Article III thereof, entitled "Enforcement Procedure," by amending Section 30-74, entitled "Fine," by amending Section 30-76, entitled "Rehearings; Mitigation." Condensed Title: Key Intended Outcome Supported: Ensure compliance with code within reasonable time frame. Supporting Data (Surveys, Environmental Scan, etc.): Issue: Shall the Mayor and City Commission adopt the Ordinance on Second Reading? Item Summa /Kecommendation: SECOND READING PUBLIC HEARING At the September 9, 2009 City Commission meeting, the City Commission approved on Second Reading an Ordinance that amended Section 30-74 and Section 30-76 of the City Code relating to the imposition of a fine cap to be imposed by the Special Master and to extend the jurisdiction of the Special Master for City Code violations. As the Administration has proceeded to implement the terms of the City Commission Ordinance, as welt as Administrative Guidelines approved by the City Commission subsequently, which provided further details in the fine and lien process, several items that may present a problem in the future have been discovered. The items are generally minor in nature but do require an Ordinance to amend the original provisions. In Section 30-74 entitled "Fine" Subsection (d}the Commission added language at the September 9, 2009 meeting which required the Special Master to impose a cap on any fine that may accrue subsequent to a violation. The section also made provision for the Special Master to reduce the amount of the fine cap to reflect partial compliance. Unfortunately, the language did not make clear what was to be done in a circumstance where a fine reaches the cap imposed by the Special Master and then partial compliance is achieved. It is suggested in the attached Ordinance that Subsection (d) be amended to provide that the Special Master may reduce the fine cap to reflect partial compliance except that the Special Master can not reduce the fine cap below the amount of fines which have accrued to date. In Section 30-76 entitled "Rehearings; mitigation" Subsection (b) there is a reference in the original 30-76 Section that was not amended by the Commission action in September 2009 that is antiquated and does not appropriately belong within the Ordinance. tt is completely inappropriate to have the property owner reference in this Section of the Code and it is suggested that it be deleted. Also in the same Subsection (b) of 30-76 is a reference to the filing of the affidavit of compliance but it is not clear where or with whom the affidavit must be filed. In order to make it clear to departments, as well as to persons affected by violations, it is recommended that the words °with the Clerk of the Special Master" be added to clarify that that is the appropriate place to have an affidavit of compliance filed within the system we follow today. Each of the three (3) changes recommended are relatively minor in nature and they do not in anyway change the original intent or purpose of the changes originally enacted by the City Commission at the September 9, 2009 meeting. Advisory Board Recommendation: Financial Information: Source of Funds: Amount Account OBPI Total Financial Im act Summa City Clerk's Office Legislative Tracking: Robert C. Middaugh, Assistant City Manager Sign-Offs: T:WGENDA\2010Uanuary 13\RegularlCodeEnforcement-FineCapReductionSum1-13-2010.doc De artment Director As Ci Mana er na e R JMG /~ ~~ J~ ~ AGEAIDA ITEM Se- _ /""~ ~/ ~ DATE (_') _(c7 m MIAMIBEACH City of Miomi Beoth, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachFl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: January 13, 2010 SE NG PUBLIC HEARING SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 30, ENTITLED "CODE ENFORCEMENT," BY AMENDING ARTICLE III THEREOF, ENTITLED "ENFORCEMENT PROCEDURE," BY AMENDING SECTION 30-74, ENTITLED "FINE," BY AMENDING THE PROVISIONS RELATING TO THE MITIGATION OF FINES AND THE REDUCTION OF A FINE CAP DUE TO PARTIAL COMPLIANCE; BY AMENDING SECTION 30-76, ENTITLED "REHEARINGS; MITIGATION," BY REQUIRING THAT MITIGATION MUST BE REQUESTED WITHIN THREE YEARS FROM THE FILING OF AN AFFIDAVIT OF COMPLIANCE FROM A CITY INSPECTOR WITH THE CLERK OF THE SPECIAL MASTER; PROVIDING FOR REPEALER; SEVERABILITY; CODIFICAITON; AND AN EFFECTIVE DATE. ADMINISTATION RECOMMENDATION Adopt the Ordinance. ANALYSIS At the September 9, 2009 City Commission meeting, the City Commission approved on Second Reading an Ordinance that amended Section 30-74 and Section 30-76 of the City Code relating to the imposition of a fine cap to be imposed by the Special Master and to extend the jurisdiction of the Special Master for City Code violations. As the Administration has proceeded to implement the terms of the City Commission Ordinance, as well as Administrative Guidelines approved by the City Commission subsequently, which provided further details in the fine and lien process, several items that may present a problem in the future have been discovered. The items are generally minor in nature but do require an Ordinance to amend the original provisions. An Ordinance has been prepared for City Commission consideration that addresses three (3) areas of change suggested that the Commission approve for incorporation into the City Code. In Section 30-74 entitled "Fine" Subsection (d) the Commission added language at the September 9, 2009 meeting which required the Special Master to impose a cap on any fine that may accrue subsequent to a violation. The section also made provision for the Special Master to reduce the amount of the fine cap to reflect partial compliance. Unfortunately, the language did not make clear what was to be done in a circumstance where a fine reaches the cap imposed by the Special Master and then partial compliance is achieved. With the present language in place, the Special Master is required to make a reduction in the fine cap when there is partial compliance. In a situation where fines have already reached the cap before compliance, a reduction in the cap would effectively be a fine reduction and mitigation that is addressed in a separate process and hearing procedure by the Special Master. It is suggested in the attached Ordinance that Subsection (d) be amended to provide that the Special Master may reduce the fine cap to reflect partial compliance except that the Special Master can not reduce the fine cap below the amount of fines which have accrued to date. In Section 30-76 entitled "Rehearings; mitigation" Subsection (b) there is a reference in the original 30-76 Section that was not amended by the Commission action in September 2009 that is antiquated and does not appropriately belong within the Ordinance. Unfortunately, this was not picked up at the time the Commission passed the last Ordinance and amended this Section. In Subsection (b) there is a reference to an affidavit of compliance being filed by a City inspector or the property owner. As our system is followed today there is only one (1) official affidavit of compliance form which is issued by whichever of the City inspectors is engaged in the violation. The reference to the property owner is confusing and as a practical matter might create a situation where a property owner makes an inappropriate filing without the knowledge of the inspection department or with appropriate inspections completed or accurate facts. It is completely inappropriate to have the property owner reference in this Section of the Code and it is suggested that it be deleted. Also in the same Subsection (b) of 30-76 is a reference to the filing of the affidavit of compliance but it is not clear where or with whom the affidavit must be filed. In order to make it clear to departments, as well as to persons affected by violations, it is recommended that the words "with the Clerk of the Special Master" be added to clarify that that is the appropriate place to have an affidavit of compliance filed within the system we follow today. Each of the three (3) changes recommended are relatively minor in nature and they do not in anyway change the original intent or purpose of the changes originally enacted by the City Commission at the September 9, 2009 meeting. CONCLUSION The Administration recommends that the City Commission adopt the Ordinance upon Second Reading. JM ~sam T:WGENDA12010Wanuary 13U2egular\CodeEnforcement-FineCapReductioncommemo1-13-2010.doc 2 THURS~AY,'DECEP~BER3a,;20a9 . - . - • - _ C.1'i~f ~~F. IUI~1~ Bf~CH - ~ - -' - , - ~ .. ,. i!IDTlCE-1S }IEREBY given #hat serond readings and pirblir fiearirtgs will be hsld.by the Mayor end: Gi1Y Cammission pf the City of lr $ee~Flocida; fiShe Commission.Chambera, 3rdtioor, ~yl~ail~'t7DD Cbru!er~bgCenter drive, Miami Beach, t~oti!da, Nr Wedne~lay, Januar~'t3ti;tptp; ):p der; ,'Ordipance Amending Chapter n3 6f Tfie-Miami Beach CBy t~:lrntiited °Busines~,° :ay AmeritJing Atticle.~, Fntiited "~reet~ Afrd,~t .Vendtus"ByAmend'afigSecironi8=9D7,~dlfled"}kfnifion&;".R,y~xP>~~9~9raphirwal©efiniNonsAt~d.Arei~s.Aele#ing7o~;~et~ ersAndAi3ist Yendirrs• By Amending 9ectign #li_909, Faatftled ArlistVentlor,~ .. erfa~ n -Required;" dyAmendingThe Proai:dures'farThe Processing (i#Appticatibn's;,BY': AmeridthgSectiorrt8-9D5r.i:rititied"Permitl~ppiicetion*° ByAmend'm9Tttei tie~tive Toi~emdts;The Payfnea~#li-Fees,#1nd L.~feryl~OCedyres;= ,$yAmendingSectionl&90li,Entitied RegulatiortsAndProhibitions"ByAmendingTheProv~sionsConcemiagLattPryProxies,ZoneLrnations,Expanding Number Of ZanesArnt Sl>+9 PetrJVtAsslgrlments in ,A UfiThe I~ty,~dAinend'irag~'t[irisfoi~}iegatr~g"ihe Ifl~nfierrariUe [#istYend'br; `Or SlreefPe>'former~es;'Bt+`Amending ~ectign 1~-9t19, ~ntlq~I "D'~sclaimer, l~splaY; Anil Expireiiba Permit ~3i lte "ffl CorrectA fi Iti~t f .1:rr~r Apd To fiepuire•'that P~trnds Be-l~lsp~red fln `fi~e~e~mifteea - r .- f lriquines:maybe'dher~edto.tfieC~s.~Go ~ra~eDe - _ ~ P~nerttat;{~15) ti73, 755'.s, , 745 e.m: ~ ' - - - _ - . _ . 17rdmanceAmen ~ " - ~ ~ . ~' ' ~ ' . ,.- ding Chap#er30, Entitled. •Code Entorcemerrt," ByAmentlingArtieie IIiT~fiereof,frititledYEr~for.'oerpentP[u~"' By~ltnga[linq Sectlbq*: 3D-Tat, F,nirtled "Fine." BY Ameridmg7he Prrue~iorrs:Relating~Ta The Mibgaticn Of Rnes An6 The fleduction (?f~A Fine Cap i)ue To Partial ~;~( Arnet~digg Settiinn 3A-'~6, fnh~tied' ~fiet_iearlru~; 'll~gati0n," By,Aeyuiru~ That'iVNfifrga~F llAust lie=i3e9uesUed iNrthiraThtee Ye<us-Fwd The F~ltu~ d~l~i ' Ad'idpvit t)fi Compliance From A City hapesTo-'~1th fhe Clerk Af Ttre Special Masted. , " - _ _ _ . _ _ ._ . > r _ ... . tr~riiries may be~lirecied #o~the ~Y Manager's l}~e:(305) X73-7A1p. • ~ _ Ehdl[rar~es A~eniiing'B~rifd'u~'Deyelpp~erg:p~b[~ss~Fees: - ~ ' • ~ .w K _ ~ _ . , _ .~ .., ' 1. An Ordin'adee Artiendipg Chapter# 4 Of'[he City Of INiami Beaelr 1~eBy Oelettrfg Division !;Section 1d 31 Thru t 4-381taeregi.lrl Its E-itirety;: :Amending Division 2 TheTeoT~rrtriJed, °pErmtiFees"; Amer-ding Sections l4-fit T#~rougfi #gJTU Therr;o~ A1ttt Amending~lppendix A7tteereb~,.En#ltled .'°~e~Schedtae" , Sad Amendments Providipg Far A Modr~~rcxi#ian.ln Period Aiid Inspeetiran ve.Fetinrary 1,'2D1D Trer $wldrng, Plumtrmg;, llectGicat, Anil INechanwl Work, And €or t~der #3urldu3g l~eparU~ntAc~vDres,, - - •. v ; ing6iries may brr tFirected:ta~he Building beryl ztt {8e~ b"13-76'~i. _ > ~. An OrcGnance Amendmg Chapthi' 50 Ot The CdY Df'Itltialfn.Beacfi Djr Amen _ ~- ~-tlthtt 5t1.-~ fead~ "llte ~ectton 50-x, Enttiled "-Adb~fon BY #~efierence; ,Short~'rtlei, Safety Code Adoption 63f ice,"• By, Amendrrlg.Section 50-3, Er~tled~'~Jans riit>al~ort,-lr~peCtitiriq; I?~zrrriits",.Anr1By~Apl1e-~A,F.rdifled"Fee$chedrile"•B#rModiiy_ingFee~edkrleFor,Frr~Deparlmerrt. _ . 1'tquiries rAay be direc#ed tom FirE a# (305j 673-726. ' . _ _ - -- Y, :AnOrdurdt~eAd~Tfie-Cpt~il~eCiiy.Df.Miami.Beach;ByAmending>r3A;;4rbci~ll~iu75ion~,;~on'1M~30"6enerallnformafiD(i," Sebtibn i443{t(5J Te lie#ersnce A Sepecate Zoning Review Fee ~ #tr Tfie~ l~tilding Pry ;Ci'~ea~t~t (tg '~apter t5, "tb Ark! A Z~Review FQe Associatetl Wirth The Burldirig P ~'~ending Appendix A Thereof 1"o Irrclude.~Charges f-or Zontng t'ieviewAssoctated fiNitir7lte 8tuldthg Prooe;SSArid To Adjust And Revise few EorAdministrafibn Of land Development Re~ufations. Jttquiries rrray txe>direated to the Planning Department at 1305) F73~75SD. - ' - ' v ~ An Ordinance Amending The~Gode Of Ttie~G' Ut fNiami Beach, 8 ' ~ ~ 3emron 98-92. " ~ Y~ GllaplEr ~ ~ And Sidawaltcs, Art-CIB lit "11?cts" 1Lfrisron. ~" Applic~ion;,~trmurit Df Ii'eposit; lise~Df Depostt'To Beptaoe';;uir~ace; Penni~ Fees;'.By.Amend'mg; Sec~on 98-92 7o Add • A;Srircharge Wr Pemut Piairs Review And 1r~spec Sgrvira"& Rendered.By 7fie 1?eparfiient Of Public Works;. And Amending Appendix "A°7ttereto. ~ ~ - ~.lnquiries may be,direr.#ed is ~ Pttbtic Werits lI. a - . - .. ~ - •~. . ep rlrnent ai; (305) fi73~55D. ~ l '" ' r, `TfD PAi'CiIES are innitet9 to appearet this rrreetirrg, or be rsJrresen#ed by an egerrf, or fo:express thea~views in wring addressed th the•Giiy l~trttrrissien; rdo the;;Gity Clerk, ?700 Convention .GenterDrive,lst Floor; City Hall, iV-iami EeaCh, Florida 33139: Copies of these ordinances are available . t 1ar 1>~ibhc-~s}?eci~n.drar~g~normal3wsotessfieurs;ia bae:6ity Cledt's tl~,, a 700 t•~nveAiion ~et~~ive,'lat Flleara i~ty.kaa(t~ Miami ~eaCh,,Flodda .33'IS9. This inesting maybe ~itinued and undersuch circumstances additional legal ngtice,won~tl not be provided. - - _ . _ ' ~ - `' _ ~ - ~ - flotiert'~.~ParcherCiipCterk v ,- - . ~ _ . ~ ~tybf ~1liami 8eacti ~ ' ~ittoSection'286.0705,FIa.'Stat.;theGiiy fiera~radwsesthepubtlc~faPersondecidastnaP„pealany~ecisionmade; ,: ± wdh~respectth arty matter considered at•i1s metlti or its fa _ . ktythe City Conmf~sion ng earirtg, such person must erisurethate verbatimrecord ofthe~proeeedings is made; wh(ch feLrogi indudeslhe testirnoty~:and.evidence awn which the Peel is ~ be t~ased.Tfvs notice does rrot'eanstihrte canseM by"the-CiEyfDrRre ~Cnduction .or ~lmission of irttierwise inadmiss~le.~rrrelevan#ce, nor does itii?gBlmllet~esr,>r aPprals'~therwlse"a7lpwed by lour . - - 7A request this mathriatin accessible format,-sign aangr~ge:krterpr~e~~±nfnrr+rationbn access"~brper~ons vvtih>ilfties. arrd/~ir sny #o review ~iy ~documeut or par'tieipate`m any etfy-sponged Aroceedmg, please irontact (3D5j F04=~89 {voice), (305} 67372#8 (TfY} filre days ~ advance to initia#e ,year request. TTY usersmay also cdlf 717 {Florida Relay Service). .