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2015-3932 Ordinance ORDINANCE NO. 2015-3932 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY," BY AMENDING ARTICLE IV, ENTITLED "USES IN PUBLIC RIGHTS-OF-WAY," BY AMENDING DIVISION 2, ENTITLED "TEMPORARY OBSTRUCTIONS," BY AMENDING SECTION 82-151 THEREOF, ENTITLED "PERMIT REQUIRED," TO AMEND THE PERMIT REQUIREMENTS AND TO AMEND THE ENFORCEMENT AND PENALTY PROVISIONS FOR TEMPORARY OBSTRUCTIONS OF THE PUBLIC RIGHT-OF-WAY IN VIOLATION OF PERMIT REQUIREMENTS; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. WHEREAS, the unregulated obstruction of sidewalks and streets pose a hazard and inconvenience to pedestrians and motorists within the City of Miami Beach; and WHEREAS, Section 82-151 of the City Code provides that "[n]o person or entity shall obstruct or cause to be obstructed any street or sidewalk in this city or impede the general movement of vehicular or pedestrian traffic thereon without first obtaining a permit from the city's public works department"; and WHEREAS, Sections 82-151(c) and (d) impose several requirements on applicants for permits for temporary obstruction of the public right-of-way; and WHEREAS, currently, the only penalty identified in Section 82-151 is that a willful violation of the conditions of a permit issued under Section 82-151 shall render the permit null and void; and WHEREAS, in the interest of promoting the free flow of vehicular and pedestrian traffic, this Ordinance provides that the City's Parking Department and Code Compliance Department shall enforce Section 82-151 and amends the penalty provisions for violations of Section 82- 151. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: SECTION 1. That Division 2 of Article IV of Chapter 82 of the Code of the City Miami Beach is hereby amended as follows: CHAPTER 82 PUBLIC PROPERTY ARTICLE IV. Uses in Public Rights-of-Way * * * DIVISION 2. Temporary Obstructions Sec. 82-151. Permit required. (a) Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning: Right-of-way means land in which the state, the state department of transportation, the county or the city owns the fee or has an easement devoted to or required for use as a transportation facility or street. Sidewalk means that portion of the right-of-way located' between the curbline on the lateral line of a street and the adjacent property line and which is intended for use by pedestrians. Street means that portion of the right-of-way improved, designed or ordinarily used for vehicular and/or pedestrian traffic. (b) Permit required. No person or entity shall obstruct or cause to be obstructed any street or sidewalk in this city or impede the general movement of vehicular or pedestrian traffic thereon without first obtaining a permit from the city's public works department as provided in this section. (c) Permit requirements. Permits for temporary obstruction of the public right-of-way shall be issued -•- -- -- - -- • •-. : - -=" = - "e -- •-- - - 'e upon completion of the following requirements: (1) The applicant shall file a completed application and shall execute a form approved by the city attorney agreeing to indemnify, defend, save and hold harmless the city, its officers and employees, from any and all claims, liability, lawsuits, damages and causes of action which may arise out of this permit, or the permittee's activity on the demised premises. (2) The permittee agrees to obtain and maintain for the entire period, at its own expense, the following: a. Commercial general liability insurance in the amount of $500,000-00 $1,000,000.00 per occurrence for bodily injury and property damage for construction activities located on city property. The city must be named as an additional insured on this policy, and an endorsement must be issued as part of the policy reflecting this requirement. b. Workers' compensation and employers' liability insurance as required by the state. All policies must be issued by companies authorized to do business in the state of Florida and rated B+= or better for financial strength and classed as financial size category VI or better per the latest edition of Best's Key Rating Guide, latest edition. The city must receive 30 days' written notice prior to any cancellation, nonrenewall or material change in the coverage provided. 2 The permittee must provide and have approved by the city's risk manager an original certificate of insurance as evidence that the above requirements have been met prior to receiving a permit and commencing the proposed activity. The city's risk manager shall be authorized to lower the amount of general liability insurance required upon a showing by the applicant that the amount set forth above is excessive under the circumstances for a particular activity. (3) The applicant shall post a cash deposit with the public works director in the estimated amount needed to pay for any damage to public property and costs for garbage, trash, and debris removal which may be necessary as a result of the applicant's use of the right-of-way for the proposed activity; the amount of the required deposit shall be determined by the public works director. The deposit shall be used by the city only if the applicant fails to repair any damage and/or remove garbage, trash, and debris resulting from the permitted activity. Any unused portion thereof of the deposit shall be promptly returned to the applicant. (4) A fee as specified in appendix A shall accompany each application. Additionally, any cost for obstruction of metered parking spaces will be determined as a separate cost by the metered parking director and must be deposited with the city prior to issuance of a permit. Following submittal of the application, the public works department shall determine the final permit fee, which shall be the higher of: a. A fee as specified in appendix A; or b. The market value of the area to be closed or occupied, pursuant to a certified appraisal. The applicant shall pay, prior to permit issuance, any additional permit fee required if the final permit fee based on market value is higher than the fee as specified in appendix A. Unless the department determines that seeking a certified appraisal would not be cost effective, the department must obtain an appraisal; if no certified appraisal is obtained, the fee as specified in appendix A shall apply. (5) No permit shall be issued if the public works, police, and/or fire departments determine that such activity would constitute a danger to public health and/or safety. (6) Appeals. Appeals from the determination of the deposit amount required by the public works director and appeals from the denial of a permit shall be to the city manager or his designee. Alternatively, the city commission may, by resolution, appoint a special master to hear such appeals. The appeals shall be conducted pursuant to the procedures set forth in sections 102-384 and 102-385. Applications for hearings must be accompanied by a fee as approved by a resolution of the city commission, which will be refunded if the applicant prevails in the appeal. (d) Permit conditions. Permits issued pursuant to this section shall set forth any conditions necessary for the protection of property and public safety. Willful violation of the 3 permit conditions shall render the permit null and void, and subiect the violator to enforcement and penalties, as provided in subsection (e). (e) Appeal. Appeal from the determination of required deposit amount by the public works director and appeals from the denial of a permit shall be to the city manager or his designee. Alternatively, the city commission may, by resolution, appoint a special master to hear (e) Penalties and enforcement. Penalties for violations. The following penalties shall be imposed for a violation of subsections (b), (c)(1) through (c)(5), or (d): a. The penalty for the first violation by a person or entity within a 12-month period shall be a civil fine of$ 1,000.00; b. The penalty for the second violation by a person or entity within a 12- month period shall be a civil fine of$ 5,000.00; c. The penalty for the third violation by a person or entity within a 12-month period shall be a civil fine of$ 10,000.00; d. The fourth or subsequent violation by a person or entity within a 12-month period shall constitute an offense enforceable pursuant to section 1-14 of this Code. al Enforcement. The Code Compliance Department or Parking Department shall enforce subsections (b), (c)(1) through (c)(5), and (d). This shall not preclude other law enforcement agencies or regulatory bodies from any action to assure compliance with this section and all applicable laws. If a parking enforcement specialist or a code compliance officer finds a violation of subsections (b), (c)(1) through (c)(5), or (d), the parking enforcement specialist or the code compliance officer shall issue a notice of violation in the manner prescribed in chapter 30 of this Code. The notice shall inform the violator of the nature of the violation, amount of fine for which the violator is liable, instructions and due date for paying the fine, that the violation may be appealed by requesting an administrative hearing before a special master within ten days after service of the notice of violation, and that failure to appeal the violation within the ten days shall constitute an admission of the violation and a waiver of the right to a hearing. Rights of violators; payment of fine; right to appear; failure to pay civil fine or to appeal; appeals from decisions of the special master. a. A violator who has been served with a notice of violation must elect to either i. pay the civil fine in the manner indicated on the notice of violation, or ii. request an administrative hearing before a special master to 4 appeal the notice of violation, which must be requested within ten days of the service of the notice of violation. b. The procedures for appeal by administrative hearing of the notice of violation shall be as set forth in sections 30-72 and 30-73. Applications for hearings must be accompanied by a fee as approved by a resolution of the city commission, which shall be refunded if the named violator prevails in this appeal. c. If the named violator, after issuance of the notice of violation, fails to pay the civil fine, or fails to timely request an administrative hearing before a special master, the special master may be informed of such failure by report from the officer. The failure of the named violator to appeal the decision of the officer within the prescribed time period shall constitute a waiver of the violator's right to an administrative hearing before the special master, and shall be treated as an admission of the violation, for which fines and penalties shall be assessed accordingly. d. A certified copy of an order imposing a fine may be recorded in the public records, and thereafter shall constitute a lien upon any real or personal property owned by the violator, which may be enforced in the same manner as a court judgment by the sheriffs of this state, including levy against the violator's real or personal property, but shall not be deemed to be a court judgment except for enforcement purposes. On or after the sixty-first day following the recording of any such lien that remains unpaid, the City may foreclose or otherwise execute upon the lien. e. Any party aggrieved by a decision of a special master may appeal that decision to a court of competent jurisdiction. - f. The special master shall be prohibited from hearing the merits of the notice of violation or considering the timeliness of a request for an administrative hearing if the violator has failed to request an administrative hearing within ten days of the service of the notice of violation. g_ The special master shall not have discretion to alter the penalties prescribed in subsection (e)(1) or (e)(4). (4) Enhanced penalties. The following enhanced penalties shall be imposed, in addition to any mandatory fines set forth in subsection (e)(1) above, for violations of subsection (b), (c)(1) through (c)(5), or (d): a. Enhanced penalties for violations of subsection (b), (c)(1) through (c)(5), or (d): i. A notice of violation of subsection (b), (c)(1) through (c)(5), or (d) shall be issued to the person or entity obstructing or causing to obstruct any street or sidewalk in this city or impeding the general movement of vehicular or pedestrian traffic thereon and, if the violation occurred within the course and scope of the violator's 5 employment, a notice of violation shall also be issued to the person or entity employing the violator, who shall be jointly and severally liable for the violation. ii. The public works director shall decline to issue, for a period of one year from the date of the violation, a temporary obstruction of right-of-way permit to such person or entity that has violated subsection (b), (c)(1) through (c)(5), or (d) three or more times within a 12-month period. (f) Exemptions. The requirements of this section shall not apply to parades as defined in section 106-346, filming, newsracks, sidewalk cafes, special events, telephones,and or to any other person obstructing the public right-of-way pursuant to a city permit or franchise. SECTION 2. REPEALER. All ordinances or parts of ordinances in conflict herewith are hereby repealed. SECTION 3. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. 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 part of the Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered or relettered 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 on the 2 5 day of Apri ] , 2015. PASSED AND ADOPTED this /5 day of Apri'/ , 2015. ATTEST: .,f/r., 4,1:// Aid(' I,4 tii_� Mayor Philip! 7 �� 1 J .-�afael E. Granado, • ty *Iry APPROVED AS TO �* }� FORM & LANGUAGE b Commi: i �'r - 0 (Sponsored Y � E UTION G & OR EX .ter'—,: Underline denotes ads,,i isINCORP G� 15 denote ti+ 'ions ORATED: .• I City Attorney A. F:WTTO\KALN\ORDINANCES\Temp•V77% � : ..rkii.-*4.,:sorc®plec , ments to ROW Permit Ordinance.docx COMMISSION ITEM SUMMARY Condensed Title: An Ordinance amending Chapter 82, entitled, "Uses in Public Right-of-Way" Division 2, entitled, "Temporary Obstructions"; amending permit requirements; enforcement and penalty provisions for temporary obstructions on the public right of way in violation of permit requirements; providing for codification, repealer, severability, and an effective date. Key Intended Outcome Supported: (1) Enhance Pedestrian Safety Universally; and (2) Ensure Comprehensive Mobility Addressing All Modes Throughout the City. Supporting Data (Surveys, Environmental Scan, etc.) Citywide procedure was implemented on January 2015 to ensure the maximization of traffic flow on Major Thoroughfares (MT), particularly during Rush Hours Monday through Friday, 7 a.m. through 7 p.m. In addition, 74% of residents and 72% of businesses rate the availability of parking across the City as "too little or much too little." Item Summary/Recommendation: On March 11, 2015, the Mayor and Commission discussed the proposed ordinance and unanimously approved the ordinance on First Reading. The unregulated obstruction of streets and sidewalks pose a hazard and inconvenience to pedestrians and motorists within the City of Miami Beach. Section 82-151 of the City Code provides that "no person or entity shall obstruct or cause to be obstructed any street or sidewalk in this city or impede the general movement of vehicular or pedestrian traffic thereon without first obtaining a permit from the city's public works department". Sections 82-151(c) and (d) impose several requirements on applicants for permits for temporary obstruction of the public right-of-way. The only penalty identified in Section 82-151 is that a willful violation of the permit conditions shall render the permit null and void. In the interest of promoting the free flow of vehicular and pedestrian traffic, this Ordinance provides that the City's Code Compliance Department and Parking Department shall enforce Section 82-151 and amends the penalty provisions for violations of Section 82-151. Administration Recommendation: Approve the attached Ordinance at Second and Final Public Hearing. Advisory Board Recommendation: N/A Financial Information: Source of Amount Account Funds: 1 2 OBPI Total Financial Impact Summary: Marginal. Will be addressed with current/existing resources. City Clerk's Office Legislative Tracking: , extension Sign-Offs: De•artment Dir .for ' t City Man er City anager•�� EC HC M � ' :/.J' JLM _ SF KG= .�✓ ..y T:\AGENDA\2015\ApriI15\ROWTemporaryObstruction .econdFinalPub'icHearingApr152015.sum.do•, • AGEN I ITEM R� MIAMI CH -1C- SATE y MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov COMMISSI n N MEMORANDUM TO: Mayor Philip Levine and Members the City C mission FROM Jimmy L. Morales, City Manager ■_ DATE: April 15, 2015 SEC•ND AND FINAL PUBLIC HEARING SUBJECT: AN ORDINANCE OF THE MAYO','AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMEN!ING CHAPTER 82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITL• D "PUBLIC PROPERTY," BY AMENDING ARTICLE IV, ENTITLED"USES IN PUBLIC RIGHTS-OF-WAY,"BY AMENDING DIVISION 2, ENTITLED "TEMPORARY OBSTRUCTIONS," BY AMENDING SECTION 82-151 THEREOF, ENTITLED "PERMIT REQUIRED," TO AMEND THE PERMIT REQUIREMENTS AND TO AMEND THE ENFORCEMENT AND PENALTY PROVISIONS FOR TEMPORARY OBSTRUCTIONS OF THE PUBLIC RIGHT-OF-WAY IN VIOLATION OF PERMIT REQUIREMENTS; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. [Sponsored by Commissioner Michael Grieco] ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission approve the attached Ordinance on Second and Final Public Hearing. BACKGROUND On March 11, 2015, the Mayor and Commission discussed the proposed ordinance and unanimously approved the ordinance on First Reading. The unregulated obstruction of sidewalks and streets poses a hazard and inconvenience to pedestrians and motorists within the City of Miami Beach. Section 82-151 of the City Code provides that "[n]o person or entity shall obstruct or cause to be obstructed any street or sidewalk in this city or impede the general movement of vehicular or pedestrian traffic thereon without first obtaining a permit from the city's public works department."Sections 82- 151(c) and (d) impose several requirements on applicants for permits for temporary obstruction of the public right-of-way. The only penalty identified in Section 82-151 is that a willful violation of the permit conditions shall render the permit null and void. ANALYSIS In the interest of promoting the free flow of vehicular and pedestrian traffic, this Ordinance provides that the City's Code Compliance Department and Parking Department shall enforce Section 82-151 and amends the penalty provisions for violations of Section 82-151. The proposed penalties include civil fines of$1,000 for a first violation within a 12-month period, $5,000 for a second violation within a 12-month period, and $10,000 for a third violation within a 12-month period. City Commission Memorandum ROW Temporary Obstructions Requirements, Enforcement, &Penalties— Second'Final Public Hearing April 15, 2015 Page 2 of 2 The Ordinance provides that a fourth or subsequent violation within a 12-month period shall constitute an offense enforceable pursuant to Section 1-14 of the City Code,which would be deemed a second degree misdemeanor pursuant to Florida Penal Law. The Police Department shall enforce the Ordinance to the extent that the Ordinance provides that a fourth or subsequent violation shall subject a violator to the enforcement provisions of Section 1-14. Due to the serious public safety implications of obstructing sidewalks and streets, the Ordinance also provides for enhanced penalties against persons or entities violating the ordinance. If a violation occurs within the course and scope of the violator's employment, a notice of violation shall be issued to both the violator and the person or entity employing the violator, who shall be jointly and severally liable for the violation. Additionally, the Public Works Department shall decline to issue,for the period of one year, a temporary obstruction of right-of-way permit to any person or entity that has violated Section 82-151 three or more times within a 12-month period. 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