2009-3640 OrdinanceORDINANCE NO. 2009-3640
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
70 OF THE MIAMI BEACH CITY CODE ENTITLED
"MISCELLANEOUS OFFENSES"; BY AMENDING ARTICLE III
ENTITLED "GRAFFITI"; BY AMENDING DIVISION I, ENTITLED
"GENERALLY"; BY AMENDING SECTION 70-121 ENTITLED
"RESERVED" TO PROVIDE PROVISIONS DECLARING
GRAFFITI A NUISANCE; BY AMENDING SECTION 70-122
ENTITLED "DEFINITIONS" TO PROVIDE ADDITIONAL AND
AMENDED DEFINITIONS RELATIVE TO GRAFFITI; BY
AMENDING SECTION 70-123 ENTITLED "PROHIBITIONS" BY
AMENDING THE ACTS PROHIBITED AND AMENDING
ENFORCEMENT AND PENALTY PROVISIONS; BY AMENDING
SECTION 70-124 ENTITLED "POSSESSION OF SPRAY PAINT
AND MARKERS" BY AMENDING ENFORCEMENT AND
PENALTY PROVISIONS; BY AMENDING AND RENUMBERING
SECTION 70-125 ENTITLED "GRAFFITI DECLARED A
NUISANCE" BY MOVING SAID SECTION TO SECTION 70-121;
BY AMENDING AND RENUMBERING SECTION 70-126
ENTITLED "RESPONSIBILITY OF PROPERTY OWNER(S);
GRAFFITI REMOVAL AND NOTICE" BY AMENDING THE
RESPONSIBILITIES OF PROPERTY OWNERS WITH REGARD
TO THE REMOVAL OF GRAFFITI AND AMENDING
ENFORCEMENT PROVISIONS; BY AMENDING AND
RENUMBERING SECTION 70-127 ENTITLED "APPEAL" BY
PROVIDING FOR PENALTY AND LIEN PROVISIONS; BY
AMENDING AND RENUMBERING SECTION 70-128 ENTITLED
"COST OF GRAFFITI REMOVAL AS LIEN ON PROPERTY,
COLLECTION; FORECLOSURE AND SALE" BY AMENDING
CITY LIEN PROCEDURES; BY RENUMBERING SECTION 70-
129 ENTITLED "INTERESTED PERSONS MAY PETITION TO
DISPUTE ASSESSED COSTS"; BY RENUMBERING
SECTIONS 70-130 THROUGH 70-145, ENTITLED
"RESERVED;" BY AMENDING DIVISION II ENTITLED "SPRAY
PAINT, BROAD-TIPPED INDELIBLE MARKERS" BY
AMENDING SECTION 70-146, ENTITLED "SALE
PROHIBITED," AND SECTION 70-147, ENTITLED "SIGNS
REQUIRED," BY ADDING ETCHING ACID TO THE ITEMS
PROHIBITED FOR SALE TO MINORS AND SIGNAGE
REQUIREMENTS; BY AMENDING SECTION 70-148, ENTITLED
"PENALTIES; PROCEDURES FOR ADMINISTRATION," BY
AMENDING THE ENFORCEMENT AND PENALTY
PROVISIONS; PROVIDING FOR REPEALER; SEVERABILITY;
CODIFICATION; AND AN EFFECTIVE DATE.
WHEREAS, the immediate removal of graffiti is the most effective deterrent to its
reoccurrence; and
WHEREAS, graffiti depreciates the value of the defaced property as well as the
surrounding neighborhood; and
WHEREAS, the presence of graffiti etching acid on surfaces which come in contact with
the public pose a health and safety risk; and
WHEREAS, the City recognizes the importance of preserving the City's aesthetic beauty
and protecting the City's image and quality of life for its residents and visitors; and
WHEREAS, in order to preserve the integrity of the commercial and residential
neighborhoods of the City, including its historically designated districts, and to protect the
health, safety, and welfare of the general public, the Mayor and City Commission find that more
stringent measures and updated terminology with regard to graffiti are needed in the City Code
to serve and protect the best interests of the citizens of Miami Beach and to promote and
maintain the aesthetic appearance of the City of Miami Beach, which is an internationally
renowned tourist destination.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1.
That Article III, entitled "Graffiti," of Chapter 70 of the Miami Beach City Code, entitled
"Miscellaneous Offenses," is hereby amended as follows:
CHAPTER 70
MISCELLANEOUS OFFENSES
ARTICLE III. GRAFFITI
DIVISION 1. GENERALLY
Sec. 70-121. °°°rcc~ev- Graffiti declared a nuisance.
The creating or maintaining of the unauthorized application of paint ink chalk dye felt tip or
indelible marker. or anv non-water soluble substance or the applying or affixing of other
inscribed or engraved materials, including posters, placards, and flyers of anv size and type on
public or private structures located on publicly or privately owned real property in the city is
hereby declared to be nuisance.
Sec. 70-122. Definitions.
Unless it is apparent from the context that another meaning is intended, the following,
when used in this article, shall have the meanings attributed to them by this section:
2
Abatement means the repair, rehabilitation, demolition or removal of a public nuisance.
Broad-tipped indelible marker means any indelible marker that is capable of leaving a
mark that is not water soluble and which has a flat or angled writing surface one half (1/2)_inch
or greater.
City's agent means an independent contractor performing graffiti abatement for the city.
Code compliance officer means any designated employee or person hired by the city
acting as an agent of the city whose duty it is or who is authorized to enforce codes and
ordinances enacted or adopted by the city.
Commercial property means property that is used for business, commercial, or for-profit
purposes. It shall be prima facie evidence that a property is commercial if it is located in a
business, commercial, office, apartment, hotel or industrial zoning district. "Commercial
property" shall include non-permanent structures such as trailers, dumpsters, traffic signs,
barricades, utility poles, traffic signal boxes, and construction equipment. "Commercial property"
shall not include: (1) single-family homes or residential property of three or less units; (2)
property owned by governments; (3) property used for non-profit purposes by educational
institutions, charities, or religious institutions.
Corrective action means an act required to remove or effectively obscure graffiti that is
visible from the right-of-way.
Director means the director of the department designated by the city manager to enforce
and administer this article or the director's designated representative.
Etching means the application of Graffiti by using a hard or sharp object or etching acid
on glass or on anv other type of natural or human-made material or surface.
Etching acid means any liquid substance or chemical capable of etching corroding
destroying, or leaving a permanent mark on anv natural or human-made surface or material.
Graffiti means the unauthorized application or inscription of anv word, figure, graphic
design, marking, or defacement that is applied by etching or of paint, ink, chalk, dye, felt-~-~
broad-tipped indelible marker, crayon or any non-water soluble substance, or by anv graffiti
implement, or by applying or affixing inscribed or engraved materials, including posters,
placards and flyers of any size and type on public or private ro e
structures, or fixtures located on publicly or privately owned real property within the city.
AAaflEer Graffiti implement means any felt-t+p-er broad-tipped indelible marker, e+~-
aerosol paint container, Gummed label. oaint stick. Graffiti stick. etching eauir~ment_ hrush nr anv
other tvpe of device eF, instrument liquid substance or etching acid capable of leaving a visible
mark on anv natural or human-made surface or material. ^~ °°.,~,~~~r ;^~.,ie.,,,e^+ `•,hinh ,.,,.,...;., .,
3
a~~
Minor means any person who has not attained the age of 18 nears.
Non-commercial property means all property that is not included in the definition of
commercial property in this section.
Non-permanent structures means trailers, dumpsters, traffic signs, barricades, utility
poles, traffic signal boxes, and construction equipment.
Nuisance means anything injurious to health so as to interfere with the comfortable
enjoyment of life or property, which nuisance affects at the same time an entire community or
neighborhood, or any considerable numbers of persons, although the extent of the annoyance
or damage inflicted upon individuals may be unequal.
Owner means any and all persons with legal and/or equitable title to real property in the
city as their names and addresses are shown upon the records of the Miami-Dade County
Property Appraiser.
Public right-of--way means any road, parkway, alley, swale, sidewalk, bavwalk,
beachwalk, cutwalk, boardwalk, easement or other public way.
Supervising adult means an individual twenty-one (21) years of age or older who has
been given responsibility by a minor's parents, legal guardian, or other lawful authority to
supervise the minor.
Sec. 70-123. Prohibitions;_enforcement; and penalties.
(a) Prohibitions. It shall be unlawful for any person to deface, destroy, or otherwise damage
private or public property without the owner's consent, by or through the application of graffiti.
In addition a .violation of Florida law prohibiting criminal mischief by the placement of graffiti
shall be a violation of this section.
(b)
imr. ricnnman} ~} }ho rli nro}inr~
of
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4
Enforcement by code compliance officer; nofice of violation. If a code compliance officer
finds a violation of this article the officer shall issue a notice of violation to the violator as
provided in chapter 30. The notice shall inform the violator of the nature of the violation, amount
of fine and other penalties for which the violator may be liable, instructions and due date for
paying the fine and completing the wed voluntary community service, notice that the
violation may be appealed by requesting an administrative hearing within 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 request a hearing.
~c) ,
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~t~tien-:
Civil .fines and penalties. for violators. The following civil fines and penalties shall be
imposed for each violation of this agile-section:
(a} First offense... $250.00.
(b) Second offense (within one year of the first offense) ...-$500.00.
(c) Third or more offenses (within one year of the first offense) ... $1,000.00.
In lieu of a fine, the Special Master may accept voluntary community service removing
graffiti in the City naay-be-sewed equivalent to one hour of community service for each $25-:0_AA
X5.00 of an imposed fine and voluntary restitution. If the community service is not completed
and the restitution is not paid within 6 months of an adjudication of quilt. the fine shall be
reinstated
(2) Criminal fines and penalties. In addition to the above civil fines and penalties a court
rnay impose both civil fines and penalties restitution not less than 40 hours and if possible at
least 100 hours of community service that involves the removal of graffiti in the city and
imprisonment for up to 6 months in accordance with the requirements of state law.
~d)
~nrf~rm .v,~ni4~ro.d ,.,,,,.,.„,,,,;~„ ~e.,,;,.e ;,, +tio re.,,,,.,.,i „f „~.,~;+; Rights of violators: payment of
~ ~ , ~ uav, v... ....~.. ... ..... ..~ ...v, .,w ~,~
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:
a. pay the civil fine in the manner indicated on the notice or
b. request an administrative hearing before a special master to appeal the notice of
violation within 20 days of the issuance of the notice of violation.
L2~ The procedures for appeal by administrative hearing of the notice of violatiori'shall
be as set forth in sections 30 - 72 and 30 - 73.
j3) 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 compliance officer. Failure of the named violator to
appeal the decision of the code compliance officer 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 fines and penalties may be assessed accordingly.
(4) As an alternative to the procedures set forth in (d)(1)-(3), the city may request an
administrative hearing pursuant to sections 30-71 through 30-79 if the violation is
irreparable or irreversible in nature. In such case, the fines and penalties in said
sections shall apply.
(5) Any party aggrieved by a decision of a special master may appeal that. decision to a
court of competent iurisdiction.
(e) Recovery of unpaid fines; .unpaid fines to constitute a lien; foreclosure.
(1~ The city 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, but shall not be
deemed to be a court judgment except for enforcement purposes. After two months from
the filing of any lien which remains unpaid, the city may foreclose or otherwise execute
upon the lien.
(f) lniunctive relief,' license or certificate of use revocation. As an additional means. of
enforcement, the city may seek injunctive relief and/or revoke an occupational license/certificate
of use as set forth in chapters 14 and 18 of this Code when there are more than three offenses
by the same violator within one year of the first offense.
~q) Liability of parents or legal guardians. In the case of a minor, the parents or legal guardians
shall be jointly and severally liable with the minor for the payment of all fines. Failure of the
parents or legal guardian to pay any fines will result in the filing of a lien on the real property of
the parents or legal guardians, which lien shall include all administrative costs.
Sec. 70-124. Possession of spray paint and broad-tipped indelible markers-; enforcement;
penalties.
(a) Possession of spray paint and broad-tipped indelible markers with intent to make graffiti
is prohibited.
(b) Possession of spray paint and broad-tipped indelible markers by minors on public
property is prohibited. No person under the age of 18 shall have in his or her possession any
aerosol container of spray paint or broad-tipped indelible marker while on any public property, or
right-of-way, except in the company of a supervising adult.
(c) Possession of spray paint and broad-tipped' indelible markers by minors on private
property is prohibited without the consent of the owner. No person under the age of 18 shall
have in his or her possession any aerosol container of spray paint or bread-tipped indelible
marker while on any private property unless the owner, agent, manager, or person(s) in
possession of the property have knowledge of the minor's possession of the aerosol container
or broad-tipped indelible marker and have consented to the minor's possession while on his or
her property.
(d)
Vie-
(1) Civil fines and penalties for violators. The following civil fines and penalties shall be
imposed for each violation of this art+sle section:
(a) First offense ... $125.00.
(b) Second offense (within one year of the first offense) ... $250.00.
(c) Third ar more offenses (within one year of the first offense) ... $500.00.
In lieu of a fine, the Special. Master may accept voluntary community service removing
graffiti in the city °~~ ~° °°^~°~ equivalent to one hour of community service for each $25-9A
$5.00 of an imposed fine and voluntary restitution. If the community service is not completed
and the restitution is not paid within 6 months of an adjudication of quilt. the fine shall be
reinstated
(2) Criminal fines and penalties. In addition to the above civil fines and penalties a court
may impose both civil fines and penalties, restitution, not less than 40 hours and, if possible at
least 100 hours of community service that involves the removal of graffiti in the city and
imprisonment for up to 6 months in accordance with the requirements of state law.
(e) Rights of violators paymenf of fine• right to appear failure to pay civil Erne or to appeal
(1) A violator who has been served with a notice of violation shall elect either to:
a. pay the civil fine in the manner indicated on the notice' or
b. request an administrative hearing before a special master to appeal the notice of
violation within 20 days of 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 sections 30 - 72 and 30 - 73.
(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 compliance officer. Failure of the named violator to
appeal the decision of the code compliance officer 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 fines and penalties may be assessed accordingly
(4) Any party aggrieved by a decision of a special master may appeal that decision to a
court of competent jurisdiction.
(f) Recovery of unpaid fines; unpaid fines fo constitute a lien; foreclosure.
(1) The city 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, but shall not be
deemed to be a court judgment except for enforcement purposes. After two months from
the filing of any lien which remains unpaid, the city may foreclose or otherwise execute
upon the lien.
fig) Injunctive relief,' license or certificate of use revocation. As an additional means of
enforcement, the city may seek injunctive relief and/or revoke an occupational license/certificate
of use as set forth in chapters 14 and 18 of this Code when.. there are,_more than three offenses
bathe same violator within one year of the first offense.
(h) Liability of parents or legal guardians. In the case of a minor, the parents or legal
guardians shall be jointly and severally liable with the minor for the payment of all fines. Failure
o_f the parents or legal guardian to pay any fines will result in the filing of a lien on the real
property of the parents or legal guardians, which lien shall include all administrative costs.
here ti~i rlonh rod #~ he n~ sic ~+nno
Sec. 70-1265.. Responsibility of property owner(s) to remove araffiti; graffiti removal and
notice:; enforcement.
(a) Maintenance or allowance of graffiti to exist for more than seven business days on a
commercial property, or 10 business days on a residential property, is prohibited.
(b) Whenever the city becomes aware of the existence of graffiti on any property, a code
compliance officer is authorized upon such discovery to give, or cause to be given, notice to
take corrective action to the property owner or the property owner's agent or manager.
(1) Commercial property. For commercial property, the property owner or the
property owner's agent or manager shall take corrective action within seven business
days from the receipt or delivery of the notice referenced within this section.
(2) Non-commercial property. For non-commercial property, the property owner, or
property owner's agent shall take corrective action within 10 business days from the
receipt or delivery of the notice referenced within this section.
(c) Such notice shall be given by certified mail, return receipt requested; or by hand delivery
by code compliance officer to the owner of record of the property described as recorded in the
current county tax rolls. Mailed notice shall be deemed complete and sufficient notice when so
deposited in the United States mail with proper postage prepaid.
(d) The city shall waive painting permit requirements for abating graffiti, subject to the use of
the same, or substantially same, colored exterior paint, provided that the existing paint complies
with all city requirements.
(e) Graffiti abatement shall consist of:
(1) Painting of the entire st~#ase area defaced
by graffiti with paint matching, or substantially matching, the permitted paint color on the
surface, regardless of whether the city has temporarily abated the graffiti with a different
paint color.
(2) Pressure-cleaning or cleaning by any other method that will successfully remove
graffiti from ,the su~se-area defaced by the
raffiti without causing damage.
~f} The property owner is responsible for ensuring compliance with sections 142-1191
through 142-1193 of the City Code and a violation of this section shall be enforced pursuant to
sections 114-7 through 114-8.
Sec. 70-126. Appeal.
(a) A property owner who has been served with the notice set forth in section 70-1265 shall
elect either to:
(1) Remove or cause to remove the graffiti within the time specified on the notice; or
(2) Request an administrative hearing before the special master to appeal the
determination of the inspector which resulted in the issuance of the notice.
(b) An appeal for an administrative hearing shall be held before the special master and shall
be accomplished by filing a request in writing to set the hearing for review and mailed to the
code compliance officer or designee, not later than two business days after the service of the
notice. The remainder of the appeal procedures, and penalty and lien provisions, wilt be in
accordance with sections 30-72 through 30-79 of the Code.
9
Sec. 70-1297. Cost of graffiti removal as lien on property3 collection; foreclosure and
sale.
(a) Upon failure of the owner of the property to remedy the conditions existing in violation of
section 70-123, the code compliance officer shall proceed to have such condition remedied by
the city and/or city agent in an effort to abate the nuisance.
(b) City employees and/or the city's agents may enter upon private property to abate the
nuisance pursuant to the provisions of this article. No person shall obstruct, impede, or interfere
with any city employee and/or city's agent whenever said person is engaged in the work of
graffiti abatement pursuant to this article, or in performing any necessary act preliminary to or
incidental to such work as authorized or directed pursuant to this article.
(c) Following corrective action taken by the city or city's agent, the code compliance officer
shall proceed to have all cost incurred thereof to be and become a lien against such property
thirty (30) days after notice of completion of work by the city if such costs remain unpaid. Said
lien shall be of equal dignity with a lien for special assessments, and with the same penalties
and with the same rights of collection, foreclosure, sale and forfeiture provided for special
assessment Ilens. Tho n~c4 nh.~rne.~hlc +n 4hc nuir~er eh.~ll nnI ovnoorl +he ~m~~ ~n4 ~,f n~~4 ~~ ~e4
Sec. 70-1298. Interested persons may petition to dispute assessed costs.
(a) Any person owning property which has been found to be in violation of this article, and
upon which remedial work by the city has been done shall have the right, at any time within 30
days after notice of completion of work under this article, to present to the city clerk a sworn
petition stating his or her interest in the property and alleging that in the opinion of the petitioner,
the cost of the work exceeds the actual cost thereof or is otherwise erroneous.
(b) Such petition shall be presented to the special master for consideration. The special
master may fix and confirm the amount to be charged based on the information presented.
Secs. 70-1~A29--70-145. Reserved.
DIVISION 2. SALE OF SPRAY PAINT, BROAD-TIPPED INDELIBLE MARKERS, .ETCHING-
ACID.
Sec. 70-146. Sale prohibited.
It shall be unlawful for any person to sell, barter, exchange or otherwise transfer any aerosol
containers of spray paint erg any broad-tipped indelible marker, or etching acid to any person
under the age of 18 years.
Sec. 70-147. Signs required.
Every person who owns, conducts, operates or manages a retail commercial establishment
selling aerosol containers of spray paint erg broad-tipped indelible markers, or etching acid shall:
(1) Place a sign in clear public view at or near the display of such products stating:
10
Graffiti is a crime. Any person defacing real or personal property not his
own with paint or any other liquid or device is guilty of a crime punishable
by imprisonment for up to six months, with a fines up to $1,000.00 or u
to $15 000.00 if the violation is irreparable or irreversible in nature,
restitution, and a minimum of 100 hours of community service in the ci
(2) Place a sign in the direct view of such persons responsible for accepting customer
payment for aerosol containers of spray paints eF broad-tipped indelible markers, or etching acid
stating:
It is a violation of the law punishable by a civil fine of $-1-9~~8 250.00 for a
first offense to sell aerosol containers of spray paints of broad-tipped
indelible markers, or etching acid to persons under 18 years of age.
(3) Store or cause such aerosol containers er broad-tipped indelible marker or
etching acid to be stored either in the direct line of sight from the cash register work station or
any other work station normally continuously occupied while the store is open, or in a place not
accessible to the public in the regular course of business without employee assistance, pending
legal sale or disposition of such items.
Sec. 70-148. Penalties; procedures for administration.
(a) Violation of this division shall result in a civil penalty of $~-99:88 250.00 for a first offense
and $289:89 500.00 for all subsequent offenses within 12 months of a prior offense. When
three such offenses occur within any calendar year at a commercial establishment, that
establishment shall be subject to an injunction from a court of competent jurisdiction forbidding
the sale of aerosol containers of spray paints a+~ broad-tipped indelible markers, and etching
acid for a period of two years.
(b) Procedures for enforcement, appeals1 and collection of fines by the city shall be as
provided in sections 30-71 through 30-79.
Secs.70-149--70-180. Reserved.
SECTION 2. Repealer.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 3. Severability.
If any section, sentence, clause or phrase of this ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect
the validity of the remaining portions of this ordinance.
SECTION 4. Codification.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made a part of the
11
2009-3640
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
re-lettered to accomplish such intention, and the word "ordinance""may be changed to "section,"
"article," or other appropriate word.
SECTION 5. Effective Date.
This Ordinance shall take effect the 23rd day of May , 2009.
PASSED and ADOPTED this 13th day of Mai? , 2009.
ATTEST:
C~ atti errera Bower
Mayor
Robert Parcher
City Clerk
Underline denotes additions
C4riLc 4hr~+~ ~..h denotes deletlOn$
Shading denotes amendments subsequent to the Neighborhoods/Community Affairs Committee
Meetings
j
~_
F:\atto\TURN\ORDINANC\Graffiti - 2.doc
/~~ APP AS TO
FO & LA GUAGE
& OR CUTION
//
C ATTORNEY AT
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COMMISSION ITEM SUMMARY
Condensed Title:
An Ordinance amending Chapter 70 of the Miami Beach City Code entitled "Miscellaneous Offenses" by amending Article II I entitled "Graffiti."
Ircey Intenaea uutcome supportea:
Ensure Well Maintained Infrastructure; Ensure Compliance with Code Within Reasonable Time Frame; Improve Cleanliness of Miami Beach
Rights of Way Especially in Business Areas; & Increase Resident Satisfaction With Level of Code Enforcement
,Supporting Data (Surveys, Environmental Scan, etc.): 2008 Environmental Scan shows that the Number of Warnings for Property
Maintenance Decreased by 39%; and that the Overall City Cleanliness Score has improved by 15.4% compared to the base 2005/06 year; The
2007 Community Survey Suggests that 61 % of the City's residents are very satisfied or satisfied with the fairness and consistency of the
enforcement of codes and ordinances in their neighborhoods; The same survey suggests that 61 %of the City's residents and 52% of the City's
Businesses rate cleanliness of streets in residential/business areas as ood or excellent.
Issue:
Shall the Mayor and the City Commission Approve The Amendments to the Ordinance?
Item Summa /Recommendation:
SECOND READING PUBLIC HEARING
At the City Commission meetings on September 8, 2008 and October 7, 2008 discussion was held regarding the problem of graffiti
in the City and the City's response to graffiti on public and private property. As discussed, unabated graffiti is a major concern,
especially as it frequently triggers the "broken window" theory. In the broken window theory, it is believed that when behaviors
such as graffiti or litter are left unabated, these issues trigger further acts of the same behavior or accelerates other acts of
vandalism. At that time, Commissioner Jerry Libbin requested that the matter of amending the graffiti ordinance be referred to the
Neighborhoods/Community Affairs Committee for discussion. At the Neighborhood/Community Affairs Committee Meeting on
October 22, 2008, a further discussion occurred concerning the current situation with graffiti in the City, and the need to update the
City's existing anti-graffiti ordinance. Of particular concern was what appeared to be a possible disconnect between the criminal
cases opened by the Police Department, and City Code cases that would be handled by the Special Master. A draft ordinance was
developed that addressed definitions, fines and penalties, including voluntary community service and restitution, reduced
compliance periods, and provided for an easier means for graffiti to be remediated.
The ordinance was considered and approved on first reading at the March 18, 2009 Commission meeting, and a referral made to
the NCAC for further discussion on the fines, as well as the remediation process for graffiti that is acid etched on glass . In the
interim, the City Attorney's office also made other minor, non-substantive adjustments to the ordinance intended to provide further
clarity. The proposed ordinance amendment is adjusted to reflect the comments from the Commission at the March 18~' meeting
and the direction of the NCAC at their April 15'h meeting. The committee requested language that allowed for paint that
substantially matched to be used (rather than an actual match), but could not agree on language relating to the abatement of acid
etched graffiti. The Committee approved moving the ordinance to the Commission for second reading, and bringing back options
for the remediation of graffiti that is acid etched on glass for potential amendments to the ordinance. The Committee also decided
not to amend the ordinance to change compliance time from business to calendar days.
The proposed draft ordinance has been developed by the Administration together with the City Attorney's Office pursuant to the
instruction by the Neighborhood/Community Affairs Committee. The amendments to the City's existing anti-graffiti ordinance
provide updated definitions and modernized terminology as well as more effective fine and penalty schedules. The proposed
changes provide for voluntary community service in the City and restitution to victims for code prosecutions in court, and provide
the City with a means to recover unpaid fines.. The mentioned changes should make the City's endeavors to fight graffiti more
effective. The Administration recommends approving the ordinance on second reading. The Item was opened and continued at the
April 22, 2009 Commission Meeting.
Adviso Board Recommendation:
Nei hborhoods/Communi Affairs Committee, 10/22/08; NCAC meetin on A ril 15, 2009.
Financial Information:
Source of Funds: Amount Account
1
OBPI Total
Financial Impact Summary: The proposed amendment includes fines and penalties that could produce revenues for the City.. While
there are provisions for liens to be attached to private property owners, the City will incur the hard costs (labor and paint) until such time as the
reimbursement to the City is made. Additionally, the ordinance provides that penalties can include restitution to the victim, which would include
the rivate ro ert owner, or the ublic ro ert owner such as the Cit
Ci Clerk's Office Le islative Trackin
Hilda Fernandez, ACM
Sign-Offs: ~
De artment Director s ista Ci er Ci Mana er
T:\AGENDA\2009UAay 13\Regular\Graffiti Ordina~ce Summary Sheet.doc U ` / f ~/ \
~ M I ~M I ~ E,A H AGENDA ITEM ~~~
~ DATE S' !3 -~ 5
m MIAMIBEACH
City of Miami Beath, 1700 Convention Center Drive, Miami Beach, Florida 33139, vrww.miamibeachFl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager SECOND READING
PUBLIC HEARING
DATE: May 13, 2009
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE MIAMI BEACH
CITY CODE ENTITLED "MISCELLANEOUS OFFENSES"; BY AMENDING
ARTICLE III ENTITLED "GRAFFITI"; BY AMENDING DIVISION I, ENTITLED
"GENERALLY"; BY AMENDING SECTION 70-121 ENTITLED "RESERVED"
TO PROVIDE PROVISIONS DECLARING GRAFFITI A NUISANCE; BY
AMENDING SECTION 70-122 ENTITLED "DEFINITIONS" TO PROVIDE
ADDITIONAL AND AMENDED DEFINITIONS RELATIVE TO GRAFFITI; BY
AMENDING SECTION 70-123 ENTITLED "PROHIBITIONS" BY AMENDING
THE ACTS PROHIBITED AND AMENDING ENFORCEMENT AND PENALTY
PROVISIONS; BY AMENDING SECTION 70-124 ENTITLED "POSSESSION
OF SPRAY PAINT AND MARKERS" BY AMENDING ENFORCEMENT AND
PENALTY PROVISIONS; BY AMENDING AND RENUMBERING SECTION 70-
125 ENTITLED "GRAFFITI DECLARED A NUISANCE" BY MOVING SAID
SECTION TO SECTION 70-121; BY AMENDING AND RENUMBERING
SECTION 70-126 ENTITLED "RESPONSIBILITY OFPROPERTY OWNER(S);
GRAFFITI REMOVAL AND NOTICE" BY AMENDING THE RESPONSIBILITIES
OF PROPERTY OWNERS WITH REGARD TO THE REMOVAL OF GRAFFITI
AND AMENDING ENFORCEMENT PROVISIONS; BY AMENDING AND
RENUMBERING SECTION 70-127 ENTITLED "APPEAL" BY PROVIDING
FOR PENALTY AND LIEN PROVISIONS; BY AMENDING AND
RENUMBERING SECTION 70-128 ENTITLED "COST OF GRAFFITI
REMOVAL AS LIEN ON PROPERTY, COLLECTION; FORECLOSURE AND
SALE" BY AMENDING CITY LIEN PROCEDURES; BY RENUMBERING
SECTION 70-129 ENTITLED "INTERESTED PERSONS MAY PETITION TO
DISPUTE ASSESSED COSTS"; BY RENUMBERING SECTIONS 70-130
THROUGH 70-145, ENTITLED "RESERVED;" BY AMENDING DIVISION II
ENTITLED "SPRAY PAINT, BROAD-TIPPED INDELIBLE MARKERS" BY
AMENDING SECTION 70-146, ENTITLED "SALE PROHIBITED," AND
SECTION 70-147, ENTITLED "SIGNS REQUIRED," BY ADDING ETCHING
ACID TO THE ITEMS PROHIBITED FOR SALE TO MINORS AND SIGNAGE
REQUIREMENTS; BY AMENDING SECTION 70-148, ENTITLED "PENALTIES;
PROCEDURES FOR ADMINISTRATION," BY AMENDING THE
ENFORCEMENT AND PENALTY PROVISIONS; PROVIDING FOR
REPEALER; SEVERABILITY; CODIFICATION; AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
Adopt the Ordinance on second reading.
BACKGROUND
City Commission Memorandum
April 22, 2009
Graffiti Ordinance
Page 2 of 5
This ordinance was opened and continued at the April 22, 2009 Commission Meeting.
Graffiti on private or public property is currently enforceable by City Code, Chapter 70 Article III. "Graffiti"
(Section 70-122-129). This section also provides for fines and penalties for violators, as well as
requirements or the abatement of graffiti by private property owners.
Section 70-126 describes the responsibility of property owners with regard to graffiti removal. As currently
provided in the Code, commercial property owners must take corrective action within seven (7) business
days from the receipt or delivery of a notice requiring corrective action; residential property owners must
take corrective action within ten (10) business days from receipt or delivery of the notice. The Code
Compliance Division issues notices to private property owners.
Under the current ordinance, the City waives permitting fees related to abating graffiti as long as the same
color exterior paint is used and the existing paint complies with all city requirements. Currently, abatement
requires the painting the entire wall and/or non-permanent structure defaced by graffiti, or pressure
cleaning or using any other method that will successfully remove the graffiti from a wall and/or other non-
permanentstructure without causing damage. Underthe current ordinance, the City can, upon the failure of
the private property owner to abate the graffiti, enter the private property to address the nuisance. The
private property owner is then billed for the expense associated with the abatement, and is provided an
opportunity to appeal the costs billed for the abatement. This appeal is heard by the special master. Unpaid
bills are deemed special assessment liens and are subject to foreclosure.
It is the City's responsibility to remove graffiti from public property. The Public Works Department
dispatches staff to address public property graffiti including, occasionally, graffiti on public property that
many not be under the City's direct jurisdiction (etc .., FDOT signs on the Julia Tuttle, County street traffic
signs, etc.). Generally, public property graffiti is removed within 24 hours to 72 hours after it is reported to
Public Works. However, it must be noted that it may take longer to remove after a major event weekend. A
contract with a contractor to address private property graffiti that has not been abated following a violation
notice and expiration of the time to clean the graffiti, was discontinued due to budget adjustments.
However, historically, there has been a high rate of compliance with graffiti on private property.
ANALYSIS
At the City Commission meetings on September 8, 2008 and October 7, 2008, discussion was held
regarding the problem of graffiti in the City and the City's response to graffiti on public and private property.
As discussed, unabated graffiti is a major concern, especially as it frequently triggers the "broken window"
theory. In the broken window theory, it is believed that when behaviors such as graffiti or litter are left
unabated, these issues trigger further acts of the same behavior or accelerates other acts of vandalism. At
that time, Commissioner Jerry Libbin requested that the matter of amending the graffiti ordinance be
referred to the Neighborhoods/Community Affairs Committee for discussion.
At the Neighborhood/Community Affairs Committee Meeting on October 22, 2008, a further discussion was
held concerning the current situation with graffiti in the City, as well as the need to update the City's
existing anti-graffiti ordinance, especially to ensure better coordination between the City's police
department and other enforcement agencies. Among the discussion items was the need to ensure that
violators (persons caught in the act of placing graffiti) are assigned community service hours on Miami
Beach.
The Committee instructed the Administration to make changes to the existing ordinance to among other
things, update the definitions to reflect current trends in graffiti vandalism; amend the fine schedule for
violators, including a requirement to perform community service within Miami Beach; and adjust the period
for private property compliance, to ensure that private property graffiti was handled in a more timely
manner.
City Commission Memorandum
Apri122, 2009
Graffiti Ordinance
Page 3 of 5
While in the process of developing the proposed amendments to the ordinance, the City implemented
certain internal changes to ensure a more timely response to graffiti. This included establishing a program,
"T.A.G. -You're It!" designed to encourage residents, businesses and employees to notify the City when
they see graffiti. An email (graffitiCa~miamibeachfl.gov) was activated to allow for easy reporting of
incidences of graffiti. Reports are then evaluated to determine if they are public or private locations. For
public locations, the Public Works Department is immediately dispatched to abate the nuisance, and
information is shared with the Police Department to assist with any investigations and/or prosecutions.
Private property graffiti cases are referred to Code Compliance for handling (and information also provided
to Police). The Police Department's processes have also been adjusted to ensure that graffiti arrests are
reported to Code Compliance, so that an accompanying Code Violation case can also be opened. This
new internal process appears to have improved the routing of these cases, and as a result our response to
this nuisance.
PROPOSED ORDINANCE AMENDMENT
As instructed by the Neighborhood/Community Affairs Committee, the Administration worked with the City
Attorney's Office to propose amendments to the City's existing anti-graffiti legislation, and reviewed current
programs and legislation in other metropolitan cities' (Chicago, Atlanta, Los Angeles and New York). The
Administration has also considered the model ordinance developed by the International Municipal Lawyer
Association (IMLA).
The ordinance was considered on first reading at the March 18, 2009 Commission meeting. To follow is
the proposed ordinance amendment, adjusted to reflect the comments from the Commission at the March
18th meeting. Additionally, the Commission requested that the proposed ordinance amendment be referred
to the Neighborhoods/Community Affairs Committee (NCAC) for the Committee's review of potential
changes to the fine process relating to community service hours and to discuss the manner in which to
address abatement for graffiti that is acid etched on glass. The item was considered at the NAC meeting of
April 15, 2009. In the interim, the City Attorney's office also made other minor, non-substantive adjustments
to the ordinance intended to provide further clarity. The below reflects these additions and deletions.
Updated definitions and modernized terminology
The proposed draft ordinance updates the definition of graffiti and makes it more comprehensive. The
amended definition no longer limits graffiti to the vandalism on permanent structures, but covers all public
and private properties, structures and fixtures. The amendment also provides an updated more
comprehensive definition of graffiti implements, as it adds broad-tipped indelible marker, pen, aerosol paint
container, gummed label, paint stick, graffiti stick, etching equipment, brush or any other type of device or,
instrument, liquid, substance, or etching acid to the list of the items that can deface properties in the city.
The proposed ordinance also incorporates the definition of etching acid which has been increasingly used
in cities for graffiti vandalism. The ordinance defines minor as a person who has not attained the age of 18
years. As discussed at the NCAC, the definition of Code Compliance Officer has also been amended to
include anyone hired by the City, or authorized, to enforce city codes and ordinances.
Section 70-123 (b)
This section was changed to reflect that the community service hours are voluntary, not required.
Amended fine and penalty schedules
In order to provide a more effective and quick mechanism for the enforcement of the City's anti-graffiti
legislation, the Administration proposed a revised fine and penalty schedules for graffiti vandalism,
possession of graffiti implements and sale of graffiti implements to minors, which are the three (3) types of
violations that can occur under the ordinance. These schedules are as follows:
City Commission Memorandum
Apri122, 2009
Graffiti Ordinance
Page 4 of 5
Fine and penalty schedule for graffiti vandalism
Fine ($)
1St offense within a 12 month period: 250.00
2"d offense within a 12 month period: 500.00
3`d offense within a 12 month period: 1000.00
As an alternative means of enforcement, the City may take a violator to the Special Master, in which case
fines may be imposed of up to $1,000.00 per day for a first offense, $5,000.00 per day for a second
offense, and up to $15,000.00 per violation if the graffiti violation is irreparable or irreversible in nature.
Fine and penalty schedule for possession of graffiti implements
Fine ($)
1St offense within a 12 month period: 125.00
2"d offense within a 12 month period: 250.00
3`d offense within a 12 month period: 500.00
Fine and penalty schedule for sale of graffiti implements to minors
Fine ($)
1St offense within a 12 month period: 250.00
2"d offense within a 12 month period: 500.00
The proposed fine and penalty schedules are intended to serve as a deterrent to graffiti. As you will note,
Section 70-123 (c) (2) provides that in addition to these fines and penalties, a court can also impose fines
and penalties, as well as imprisonment for up to six months (as per state law). Direction from the
Commission on these fine schedules is requested.
Community service
Pursuant to the instruction by the Neighborhood/Community Affairs Committee, the Administration was
requested to incorporate mandatory community service hours as part of the fine and penalty provisions for
violations of the City code. However, following review by the City Attorney's office, it was determined that a
Special Master cannot impose community service hours. However, language in the ordinance provides that
when any criminal case is filed for violations of the City Graffiti ordinance, the court can impose community
service hours as an additional penalty, with a specific reference that the community service be graffiti
remediation in the City. Additionally, we have included a provision that would allow a violator to voluntarily
choose to serve community service in the City in lieu of payment of their fines for city code violations. At
the first reading, it was recommended that the proposed service-in-lieu of payment schedule of one
community service hour for every $25.00 of an imposed fine be changed to one community service hour (in
the City) for every $5.00 of an imposed fine. The option to serve community service hours in lieu of paying
the fine remains voluntary. Section 70-124 (d) was amended to reflect that it is a voluntary option that can
be accepted by the Special Master.
Restitution
In orderto provide compensation to the victims of graffiti vandalism, the proposed draft ordinance provides
for restitution to the victim(s). However, the Special Master cannot order restitution; it must be ordered by a
court.
Recovery of unpaid fines
In order to provide the City with an effective means to recover unpaid fines for graffiti vandalism and
possession of graffiti implements, the proposed draft ordinance authorizes the City to either institute
proceedings in a court to compel payment or to impose a lien that may lead to a property foreclosure. The
proposed changes also envision revocation of an occupational license or certificate of use. Section 70-123
(g) also clarifies that the parents or legal guardians of a minor will be jointly and severally liable with the
City Commission Memorandum
April 22, 2009
Graffiti Ordinance
Page 5 of 5
minor for the payment of fines.
Adjusted period for private property compliance
The ordinance at first reading substituted the use of business days for compliance (abatement) with
calendar days in order to require a much quicker time for graffiti removal from the private property,
especially as this abatement period begins after there has been notice, which means the graffiti may be on
the property for at least 20-30 days before the City can abate if the private property owner fails to do so.
However, at the NCAC on April 15, 2009, it was requested that the compliance period be allowed to remain
as business days instead of calendar days. The attached ordinance keeps the current provisions.
Process for Graffiti Abatement
The ordinance provides for more flexibility in the manner in which abatement occurs to allow for a much
faster response to graffiti abatement. Section 70-125 (d) and (e) address this process, which currently
includes the waiver of a painting permit when the painting is necessary to abate graffiti. Additionally,
language has been incorporated in Section 70-125 (e) (1) that, instead of requiring the entire wall that has
been "tagged" to be remediated as is currently required, only the "area" that has been defaced needs to be
remediated. Additionally, at the request of the NCAC on April 15th, language has been added in 70-125 (d)
and (e) (1) that the paint color used to abate the graffiti must substantially match the paint of the area that
was defaced.
The Committee was presented with alternatives to address the abatement of acid etched graffiti on glass.
The memo presented to Committee is attached for your reference (Attachment A). However, they did not
conclude on this issue and referred this back to Committee with the intention that a new amendment to the
ordinance would be prepared once consensus was reached on the best approach. The ordinance, as
currently written, provides no direction on abating graffiti other than painted graffiti. As you will note, there
are no penalty provisions included in the ordinance for the failure of the private property owner to
remediate the graffiti, nor is one recommended.
FISCAL IMPACT
The proposed amendment includes additional fines and penalties that could produce revenues for the City.
The change to a shorter timeframe for private property to remediate the graffiti priorto the City remediating
the graffiti may result in an increase in the number of properties remediated by the City on behalf of private
property owners. While there are provisions for liens to be attached to private property owners, the City will
incur the hard costs (labor and paint) until such time as the reimbursement to the City is made. Additionally,
the ordinance provides that penalties can include restitution to the victim, which would include the private
property owner, or the public property owner (such as the City).
CONCLUSION
The proposed draft ordinance has been developed by the Administration together with the City Attorney's
Office pursuant to the instruction by the Neighborhood/Community Affairs Committee. The amendments to
the City's existing anti-graffiti ordinance provide updated definitions and modernized terminology as well as
more effective fine and penalty schedules. The proposed changes add an option for voluntary community
service in the City, and restitution for court prosecutions under the City Code; provide the City with a means
to recover unpaid fines; and provide for easier means for property owners to abate graffiti on their property.
The mentioned changes should make the City's endeavors to fight graffiti more effective. The staff will
provide the NCAC with options to address graffiti that is acid etched on glass at the next Committee
meeting for possible, future amendments to the ordinance.
JMG/HFNJ
T:WGENDA\2009\May 13\Regular\Graffiti ord 2nd rdg memo.doc