Ordinance 94-2913 ORDINANCE NO. 94-2913
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING
MIAMI BEACH CITY CODE CHAPTER 3, ENTITLED
"ADVERTISING", AMENDING ARTICLE II, ENTITLED
"HANDBILLS", BY ADDING DEFINITIONS FOR "MOTOR
VEHICLE", "OFFENSE", "PERSON", AND "PUBLIC
PARKING LOT", BY ELIMINATING RESTRICTIONS
PERTAINING TO THE MANNER OF DISTRIBUTION OF
HANDBILLS ON PRIVATE PREMISES, BY MAKING IT
UNLAWFUL TO KNOWINGLY PERMIT OR EMPLOY ANY
PERSON TO PLACE ANY HANDBILL ON ANY MOTOR
VEHICLE IN A PUBLIC STREET, HIGHWAY, PARKING
LOT OR PLACE, AND BY PROVIDING FOR
ENFORCEMENT, PENALTIES AND APPEALS OF
CITATIONS; PROVIDING FOR REPEALER,
SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS, residents and business operators on South Beach and
in other areas of the City of Miami Beach have expressed their
concern over the proliferation of handbills placed upon vehicles
parked or standing in public streets and public parking lots; and
WHEREAS, handbills placed on vehicles parked or standing in
public streets or parking lots create visual clutter and frequently
become litter and create safety hazards for pedestrians and
vehicular traffic; and
WHEREAS, an increasing number of businesses, organizations and
individuals are employing persons to place handbills on motor
vehicles in public streets and parking lots; and
WHEREAS, it is necessary to amend regulations pertaining to
distribution of handbills on private property in keeping with
current judicial interpretations of first amendment rights.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. AMENDMENT OF ARTICLE II OF MIAMI BEACH CITY CODE
CHAPTER 3.
That Article II of Miami Beach City Code Chapter 3 , entitled
"Advertising" is hereby amended as follows:
Sec. 3-7 . "Ilandbill" dcfincd. Definitions.
For purposes of this Article, the following words shall have
the following meanings:
(a) The Tcrm "Handbill , " a used in this article, means any
handbill, dodger, circular, folder, booklet, letter, card,
pamphlet, sheet, poster, sticker, banner, notice or other
written, printed or painted matter circulated to attract the
attention of the public, whether commercial or noncommercial .
(b) "Motor Vehicle" shall mean every self-propelled device
in, upon or by which any person or property is or may be
transported or drawn upon a public right-of-way, excepting
devices moved by human power or exclusively upon rails or
tracks .
(c) "Offense" shall mean either an uncontested notice of
violation issued by a code inspector or a finding of violation
by a Special Master.
(d) "Person" shall mean any individual, trust, labor union
partnership, limited partnership, corporation or other
business entity.
(e) "Public parking lot" shall mean a parking area which is
open for motor vehicle parking for use by members of the
public for a fee or change . it may be metered or attendant or
valet operated.
Sec. 3-8 . Distributing on premises of another-When prohibited.
It shall be unlawful for any person to distribute or place any
handbills upon the premises of another if requested orally or in
writing not to do so by the owner or manager of such premises or if
forbidden to do so by an appropriate sign posted in a conspicuous
place on such premises .
Sec . 3 9 . Same Manncr.
It shall be unlawful for any person to distribute or place any
as to permit such handbill or handbills to be scattered on or about
such prcmiccs or so as to crcatc an unsightly app arancc on or
about such premises .
Sec . 3 10 .3-9 . Placing on motor vehicles-prohibited.
(a) It shall be unlawful for any person to distribute or
place any handbill on any motor vehicle by any means
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whatsoever, when such motor vehicle is parked, standing, or
stopped or located in a public street, highway, parking lot or
place .
(b) It shall be unlawful for any person to knowingly
authorize or employ any person to distribute or place any
handbill on any motor vehicle by any means whatsoever, when
such motor vehicle is parked, standing, stopped or located in
a public street, highway, parking lot or place .
Sec. 3-10 . Enforcement; penalties.
(a) Enforcement by Code inspectors; notice of violation.
If a code inspector as defined in chapter 9B of the Miami
Beach City Code finds a violation of this article, said
inspector shall issue a notice of violation to the violator as
provided in chapter 9B . The notice shall inform the violator
of the nature of the violation, amount of fine for which the
violator may be liable, instructions and due date for paying
the fine, notice that the violation may be appealed by
requesting an administrative hearing within twenty (20) days
after service of the notice of violation, and that failure to
do so shall constitute an admission of the violations and
waiver of the right to a hearing.
(b) Civil fines for violators .
The following civil fines shall be imposed for each violation
of this article :
(1) First offense $50
(2) Second offense $250
(within one year of the first offense)
(3) Third offense/additional offenses $500
(within one year of the first offense)
(c) Rights of violators; payment of fine; right to appear;
failure to pay civil fine, or to appeal .
(1) A violator who has been served with a notice of
violation shall elect either to:
(i) Pay the civil fine in the manner indicated on
the notice; or
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(ii) Request an administrative hearing before a
special master appointed by the City
Commission upon recommendation of the City
Manager to appeal the decision of the code
inspector which resulted in the issuance of
the notice of violation.
(2) The procedures for appeal by administrative hearing
of the notice of violation shall be as set forth in
section 2-43 and 20-44 of the Miami Beach City Code, and
amendments thereto.
(3) If the named violator after notice fails to pay the
civil fine or fails to timely request an administrative
hearing before a special master, the special master shall
be informed of such failure by report from the code
inspector. 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
may be assessed accordingly.
(4) Any party aggrieved by the decision of a special
master may appeal that decision to a court of competent
jurisdiction.
(d) Recovery of unpaid fines; unpaid fines to constitute a
lien; foreclosure
(1) The City of Miami Beach may institute proceedings in
a court of competent jurisdiction to compel payment of
civil fines .
(2) A certified copy of an order imposing a civil fine
may be recorded in the public records and thereafter
shall 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,
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but shall not be deemed to be a court judgment except for
enforcement purposes . After two (2) months from the
filing of any such lien which remains unpaid, the City of
Miami Beach may foreclose or otherwise execute upon the
' lien.
(e) As an additional means of enforcement, the City may seek
injunctive relief and/or follow procedures to revoke an
occupational license/certificate of use as set forth in
Chapters 8 and 20 of this Code when there are more than
three (3) offenses by the same violator with a calendar
Year.
SECTION 2 . SEVERABILITY.
If any section, subsection, clause or provision of this
Ordinance is held invalid, the remainder shall not be affected by
such invalidity.
SECTION 3 . REPEALER.
That all ordinances or parts of ordinances in conflict
herewith be and the same are hereby repealed.
SECTION 4 . EFFECTIVE DATE.
This Ordinance shall take effect ten (10) days after its
adoption.
PASSED and ADOPTED this 16th d. of March 1994 .
ATTEST: AK_ 4 / 1/
V YOR
(ILL.40.1415).;1-YOSA"....--
CITY CLERK
(Requested by Commissioner Mai . Shapiro. )
SWS:scf:disk6\handbill.ord
1st reading 3/2/94
2nd reading 3/16/94
FORM APPROVED
LE ` PT. 4. ,
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Date S 2-___•L_• 1$-• t
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OFFICE OF THE CITY ATTORNEY
6:24 lcAwe iiiyead
F L 0 R I D A
LAURENCE FEINGOLDy �h P O BOx O
CITY ATTORNEY 16 MIAMI BEACH.FLORIDA 33119-2032
TELEPHONE(305)673-7470
TELECOPY (305)673-7002
COMMISSION MEMORANDUM NO: ) u2-9q
DATE: MARCH 2, 1994
TO: MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
CITY MANAGER ROGER M. CAR ON
FROM: LAURENCE FEINGOLD
CITY ATTORNEY
SUBJECT: ORDINANCE ENABLING PROSECUTION OF ENTITIES RESPONSIBLE
FOR PLACING HANDBILLS ON MOTOR VEHICLES IN PUBLIC STREETS
AND PARKING LOTS
Commissioner Martin Shapiro requested that our office draft
the attached Ordinance to strengthen the City's ability to control
the placing of handbills on motor vehicles parked or stopped in
public streets, highways, parking lots and places. Under our
current City Code Section 3-10, placing handbills on motor vehicles
parked in public streets and places is prohibited. However, the
current Ordinance merely provides for prosecution of persons doing
the placement and does not provide for prosecution of persons
hiring them. The attached Ordinance allows us to reach the real
source of the problem.
Additionally, the attached ordinance provides for fines of
fifty dollars ($50) for a first offense, two-hundred and fifty
dollars ($250) for a second offense, and five hundred dollars
($500) for a third offense. An offense is defined as a violation
which is uncontested or is adjudicated as a violation by a judge or
special master. The ordinance provides procedures for paying fines
or appealing citations and provides that unpaid fines shall become
liens which may be recorded and foreclosed by the City.
The City Commission directed our office to study the City's
current ordinances regarding littering and to determine which
provisions are enforceable and to strengthen enforcement wherever
possible. After researching City Code Chapter 3 , Article II,
pertaining to handbills, it is our opinion that all portions of
this Article except the current Section 3-9 are legal and.
enforceable. The language contained in Section 3-9 which prohibits
distribution of handbills "in such a manner as to permit such
handbills to be scattered on or about such premises or so as to
create an unsightly appearance on or about such premises" has been
held unconstitutionally vague and unenforceable. See, Woodbury
Daily Times Co. , Inc. v. Township of Monroe, 610 F. Supp. 916 •1,.7
(D.C.N.J. 1985) . Therefore, the attached ordinance eliminate* `
Section 3-9 .
LF:Kf:mano.\n,ndbm.cm
AGENDA I E
ITEM I _
DATE 3- / 4n' -I q
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