HomeMy WebLinkAboutOrdinance 2021-4452 ORDINANCE NO. 2021-4452
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 46 OF THE CODE OF
THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "ENVIRONMENT," BY
AMENDING ARTICLE IV, ENTITLED "NOISE," BY AMENDING SECTION
46-158 THEREOF, ENTITLED "ENFORCEMENT BY CODE INSPECTORS;
NOTICE OF VIOLATION; WARNINGS; RESPONSIBILITY TO PROVIDE
CURRENT ADDRESS," BY ESTABLISHING AN ADDITIONAL EXCEPTION
TO THE REQUIREMENT THAT A WRITTEN WARNING BE PROVIDED
PRIOR TO THE ISSUANCE OF A NOTICE OF VIOLATION; AND BY
AMENDING SECTION 46-159 THEREOF, ENTITLED "FINES AND
PENALTIES FOR VIOLATION; APPEALS; ALTERNATE MEANS OF
ENFORCEMENT," BY INCREASING THOSE CIVIL FINES TO BE IMPOSED
FOR VIOLATIONS OF CHAPTER 46, ARTICLE IV; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, unreasonably loud and excessive noise can have an adverse effect and
significant impact on the quality of life and well-being of the residents of the City of Miami Beach; and
WHEREAS, noise has been a topic of concern within the City for many years and has recently
been the subject of discussion at various City Commission meetings and other public meetings;Land
WHEREAS, residents continue to express to the Mayor and City Commission, as well as to
the City Administration, their desire for protection from uninvited noise into their homes which
disturbs family privacy and domestic tranquility; and
WHEREAS, enforcing the City's noise ordinance against excessive noise (amplified music)
emanating from the sound systems of vehicles and vessels is particularly challenging due to the
inherent mobility of vehicles and vessels; and
WHEREAS, the current requirement that a written warning (and fifteen minutes to comply)
be provided prior to the issuance of a notice of violation renders the City's noise ordinance nearly
unenforceable against vehicles and vessels, as vehicles and vessels often travel many miles away
from the initial incident location prior to the requisite fifteen minutes having elapsed; and
WHEREAS, in addition, the civil fines set forth in the City's, noise ordinance (which are
applicable to persons, residences, and businesses) have not been amended since their initial
adoption in 2006; and
WHEREAS, after discussion at the Neighborhood and Quality of Life Committee ("NQLC")
meeting on July 21, 2021, the City Attorney's Office was asked to prepare a legislative solution to
provide for a strengthened enforcement mechanism and fine structure, in order to address the
unreasonably loud and excessive noise from vehicles; and
WHEREAS, at its September 20, 2021 meeting, the NQLC provided a further recommendation
that vessels, in addition to vehicles, should also be exempted from the written warning requirement
prior to the issuance of a notice of violation; and
WHEREAS, the City Administration and the Police Department have determined that the
amendments herein are necessary to accomplish the objectives identified above.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1.
That the Sections of the City's Noise Ordinance, as such Ordinance is codified in Sections 46-158 and
46-159 of the City Code, be amended as follows and as hereinafter set forth below:
CHAPTER 46
ENVIRONMENT
ARTICLE IV. NOISE
Sec. 46-158. Enforcement by code inspectors; notice of violation; warnings; responsibility to
provide current address.
(a) Notice of violation. If the code inspector observes a violation of this article, the inspector shall
issue a notice of violation to each person and entity identified in section 46-153, and a courtesy
copy of the violation shall be provided to an employee or other representative of the business tax
receipt holder who is on the premises of the business tax receipt holder, except as otherwise
provided in subsection (b). The code inspector shall inform the violators that the must
immediately cease the violation. The notice shall include the following information:
(1) Name of the violator.
(2) Date and time of violation.
(3) Nature of the violation.
(4) Amount of fine or other penalty for which the violator may be liable pursuant to section 46-
159 of this Code or as otherwise provided by law.
(5) Instructions and due date for paying the fine.
(6) Notice that the violation may be appealed by filing a written request for an administrative
hearing with the clerk of the special master within ten days after service of the notice of
violation, that failure to do so shall constitute an admission of the violation and waiver of the
right to a hearing, and that unpaid fines will result in the imposition of liens which may be
foreclosed by the city.
The notice shall also inform the violator that repeat violations of this article will result in the imposition
of larger fines and may also result in revocation, suspension, or the imposition of restrictions on the
business tax receipt, and/or certificate of use, or accessory use, and/or injunctive proceedings as
provided by law. The notice shall be signed by the code inspector who witnessed the violation.
(b) Warnings.
(1) Oral warnings. If a code inspector observes a violation of this article without a complaint
having been made, the inspector may first issue one oral courtesy warning per day and
inform the violator that the violator will be subject to penalties if the violation continues.
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(2) Written warnings. A code inspector shall first issue a written warning to immediately cease
the violation prior to issuing a notice of violation unless one written warning has been issued
in the 12 months preceding the date of violation.
The written warning shall be substantially in the same form as the notice of violation as
stated in subsection 46-158(a) above. Failure to correct the violation within 15 minutes
following the issuance of a written or oral warning shall result in the issuance of a notice of
violation pursuant to this article.
A code inspector shall not issue a written warning, and instead shall issue a notice of
violation, to any person, entity or establishment who:
a. In any one day has already been issued a written warning as specified in section 46-
158; or
b. In any 12-month period has exceeded the warning limits specified in subsection 46-
158(b)2; or
c. Is also being cited for an illegal commercial or nonpermitted nonresidential use in a
residential zoning district-; or
d. Is in violation of subsection 46-152(b) and the noise is emanating from any vehicle,
including bicycles, electric bicycles and motorized bicycles, or from any vessel, except
that the ioint and several liability provision set forth within section 46-153 shall only
apply to rental business operators that rent vehicles or vessels to the general public.
(c) Responsibility to provide current address. The holder of the business tax receipt for the premises
where a violation or warning is issued shall have the responsibility to keep the city advised of its
current address and of the current address of the owner of the premises.
Sec. 46-159. Fines and penalties for violation; appeals; alternate means of enforcement.
(a) The following civil fines and penalties shall be imposed for violations of this article:
(1) If the offense is the first offense, $250.00 -0- 0 250.00 fine.
(2) If the offense is the second offense within the preceding 12 months, $1,000.00 $1,500.00
fine.
(3) If the offense is the third offense within the preceding 12 months, $2,000.09$3,000.00 fine.
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(4) If the offense is the fourth offense within the preceding 12 months, one weekend (noon
Friday through noon Monday) business tax receipt conditions and/or accessory use
restrictions shall be imposed limiting the ability to produce any live or amplified sound at that
portion of the premises that caused the violation, in addition to a$3,000.09$4,000.00 fine.
(5) If the offense is the fifth offense within the preceding 12 months, two weekend (noon Friday
through noon Monday) business tax receipt conditions and/or accessory use restrictions
shall be imposed limiting the ability to produce any live or amplified sound at that portion of
the premises that caused the violation, in addition to a $5,000.00 fine.
(6) If the offense is the sixth or greater offense within the preceding 12 months, it shall be
considered an habitual offender offense with penalties and fines imposed pursuant to
subsection 46-159(h).
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(7) The first time an offense is committed while the violator was also engaged in an illegal
commercial or nonpermitted, nonresidential use in a residential zoning district, $1,OdO.00,
notwithstanding the fine provision in subsection (1) above.
(8) The second or any subsequent time an offense is committed while the violator was also
engaged in an illegal commercial or nonpermitted, nonresidential use in a residential zoning
district, $5,000.00, notwithstanding the fine provisions in subsections (2)—(4) above.
A person may receive a separate notice of violation once every hour if a violation has occurred at any
time within that period. Each violation shall constitute a separate offense for which a separate fine
shall be imposed. An offense shall be deemed to have occurred on the date the violation occurred.
Business tax receipt conditions or accessory use restrictions pursuant to this section shall be imposed
by order of the special master after finding an offense warranting suspension or restriction has
occurred. An offense occurring 12 months after the last offense shall be treated as a first offense for
purposes of incurring new fines and penalties. However, any fines or penalties imposed in any prior
12-month period shall not be waived or altered. .
(b) A violator who has been served with a notice of violation shall elect either to:
(1) Pay the civil fine in the manner indicated on the notice; or
(2) File a written request for an administrative hearing before a special master to appeal the
decision of the code inspector that resulted in the issuance of the notice of violation, . The
written request shall be submitted to the clerical staff of the special master no later than ten
days of service of the notice of violation and shall be accompanied by an appeal fee as
approved by a resolution of the city commission. The fee may be returned to the violator if
the special master rules in favor of the violator. All disputes regarding proper notice of the
violation and timeliness of the appeal shall be heard by the special master prior io any
hearing on the merits of the violation itself.
(c) The procedures for appeal of the notice of violation shall be as set forth in sections 102-384 and
102-385. A courtesy mail notice shall be promptly provided to the complainant of any hearing
regarding the notice of violation, and the complainant may testify at such hearings; provided,
however, that nontransmission of the courtesy notice to the complainant shall not in any way
invalidate, affect, or impair any of the further proceedings, actions, or determinations in the case.
Failure to give such notice shall not be a cause for continuance or cancellation of any scheduled
hearing of the matter. Only two continuances, for no longer than 20 days each, shall be granted
by the special master for any administrative hearing unless the alleged offender, at a hearing on
a motion for continuance, establishes by testimony, and/or other evidence, that good cause
exists for a further continuance. If the special master finds that a violation has occurred, the
applicable penalty set forth in subsection 46-159(a) shall be imposed.
(d) 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 I as an
admission of the violation and penalties shall be assessed accordingly. In the event of a fourth or
fifth offense, and following notification by the code inspector of the violator's failure to timely
request an administrative hearing, the special master shall enter an order setting the time during
which conditions shall be imposed on the violator's business tax receipt or, as applicable, the
accessory uses shall be restricted. Such conditions or restrictions shall begin no later than 30
days after entry of the order by the special master.
(e) Any party aggrieved by the decision of a special master may appeal that decision to a court of
competent jurisdiction as provided in F.S. § 162.11 and section 30-77 of this Code.
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(f) The city may institute proceedings in a court of competent jurisdiction to compel payment oif civil
fines. A certified copy of an order imposing a civil fine or city bill for penalties due under this
section may be recorded in the public records and thereafter shall constitute a lien upo,' 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 such lien that remains unpaid, the city may foreclose or otherwise execute
on the lien. All costs and attorney's fees incurred by the city for collecting any fine shall be paid
by the violator.
(g) As an alternative or additional means of enforcement, the city may institute proceedings to
revoke or suspend a business tax receipt and/or certificate of use or seek injunctive relief.
(h) In cases of habitual offender violations or offenses, the city manager may issue an administrative
complaint for suspension or revocation of a business tax receipt and certificate of use as
provided in section 102-383. Upon a finding of habitual offender violations or offenses by the city
manager, a business tax receipt suspension, revocation and/or fine shall be imposed.
Suspensions shall be imposed with restrictions limiting the ability to provide any live or amplified
sound as either a condition of the business tax receipt or as an accessory use restriction. In the
event the violator is a hotel, motel, condominium, apartment or other residential property,
accessory 'use restrictions shall be imposed in lieu of a business tax receipt revocation which
results in the eviction of residents. Additionally, in the event of a revocation, as a condi Jon of
being permitted to resume operation under the business tax receipt, the city manager shall utilize
the criteria set forth in section 142-1362 of this Code to impose such conditions or restrictions as
deemed appropriate to assure compliance with all city codes.
In determining the length of the suspension or accessory use restriction to be imposed under this
subsection, the city manager shall consider the following factors: the gravity of the violations or
offenses; any actions taken by the violator to correct the violations or offenses; and, any previous
violations or offenses committed by the violator. No suspension or accessory use restriction imposed
under this subsection shall be for a period of time of less than 30 consecutive days.
In the event a habitual offender does not hold a business tax receipt or certificate of use, the special
master shall impose a fine up to $5,000.00 per violation.
(i) Any fine imposed under this article shall become a lien pursuant to the procedures of sections
30-74 and 30-75 of this Code.
(j) In addition, in the event a violator refuses to comply with a notice of violation issued under
section 46-158, a violator may be punished by imprisonment not to exceed 60 days or by
imposition of a fine not to exceed $500.00 per offense or both.
(k) Nothing herein shall restrict the powers and authority granted to the various boards and
committees of the city, including the imposition of conditions and sanctions not specifically
enumerated in this article.
(1) Nothing herein shall be deemed to modify existing applicable state, county or city building and
fire codes, ordinances, laws or regulations.
(m) A nolle prosequi, or any other decision made by the city not to prosecute a notice of violation,
must be based upon good cause and issued in writing in a public record.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
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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 Miami
Beach City Code. 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 G day of k 0tle 6 , 2021.
PASSED AND ADOPTED this 47 day of OLrL°ber , 2021.
ATTEST:
140V O, 12021 Dan Gelber, Mayor
42�1 -
Rafael E. Granado, City Clerk
(Sponsored by Commissioner Mark Samuelian and Co-Sponsored by Commissioner Steven Meiner)
Underline denotes additions
st-Okethrough denotes deletions =� ^!•BE9�,a,,
Double underline denotes additions after First Reading
denotes deletions after First Reading
1y(OR ORATED1 =
� �4
APPROVED AS TO
FORM& LANGUAGE-1
&FOR EXECUTION
City AttomeyAAA Dote
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Ordinances - R5 D
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Rafael A. Paz, City Attorney
DATE: October 27, 2021
5:07 p.m. Second Reading Public Hearing
SUBJECT:AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA,AMENDING CHAPTER46 OF THE CODE OF
THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "ENVIRONMENT," BY
AMENDING ARTICLE IV, ENTITLED "NOISE," BY AMENDING SECTION
46-158 THEREOF, ENTITLED "ENFORCEMENT BY CODE INSPECTORS;
NOTICE OF VIOLATION; WARNINGS; RESPONSIBILITY TO PROVIDE
CURRENT ADDRESS," BY ESTABLISHING AN ADDITIONAL EXCEPTION
TO THE REQUIREMENT THAT A WRITTEN WARNING BE PROVIDED
PRIOR TO THE ISSUANCE OF A NOTICE OF VIOLATION; AND BY
AMENDING SECTION 46-159 THEREOF, ENTITLED "FINES AND
PENALTIES FOR VIOLATION; APPEALS; ALTERNATE MEANS OF
ENFORCEMENT," BY INCREASING THOSE CIVIL FINES TO BE IMPOSED
FOR VIOLATIONS OF CHAPTER 46, ARTICLE IV; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION,AND AN EFFECTIVE DATE.
ANALYSIS
See Commission Memorandum attached.
SUPPORTING SURVEY DATA
N/A
Applicable Area
Citywide
Is this a "Residents Right Does this item utilize G.O.
to Know" item, pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Legislative Tracking
Office of the City Attorney
Sponsor
Commissioner Mark Samuelian and Co-sponsored by Commissioner Steven Meiner
Page 72 of 226
ATTACHMENTS:
Description
❑ Commission Memorandum
❑ Ordinance
Page 73 of 226
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach, FL 33139 www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Dan Gelber
Members of the City Commission Second Reading/Public Hearing
Alina T. Hudak, City Manager
FROM: Rafael A. Paz, Acting City Attorney
DATE: October 27, 2021
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 46 OF THE CODE OF THE
CITY OF MIAMI BEACH, FLORIDA, ENTITLED "ENVIRONMENT," BY
AMENDING ARTICLE IV, ENTITLED "NOISE," BY AMENDING SECTION 46-
158 THEREOF, ENTITLED "ENFORCEMENT BY CODE INSPECTORS;
NOTICE OF VIOLATION; WARNINGS; RESPONSIBILITY TO PROVIDE
CURRENT ADDRESS," BY ESTABLISHING AN ADDITIONAL EXCEPTION
TO THE REQUIREMENT THAT A WRITTEN WARNING BE PROVIDED PRIOR
TO THE ISSUANCE OF A NOTICE OF VIOLATION; AND BY AMENDING
SECTION 46-159 THEREOF, ENTITLED "FINES AND PENALTIES FOR
VIOLATION; APPEALS; ALTERNATE MEANS OF ENFORCEMENT," BY
INCREASING THOSE CIVIL FINES TO BE IMPOSED FOR VIOLATIONS OF
CHAPTER 46, ARTICLE IV; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
The proposed Ordinance (the "Ordinance"), which is sponsored by Commissioner Mark
Samuelian and co-sponsored by Commissioner Steven Meiner, is submitted for Second Readir�g
at the October 27, 2021 meeting of the City Commission.
Without question, unreasonably loud and excessive noise has an adverse effect and significant
impact upon the quality of life of the residents and visitors subjected to such nuisance-con U t
and contributes to the carnival atmosphere that threatens the City's public safety.
Unreasonable or excessive noise has been a topic of concern in the City for many years, an,
d
has been discussed at various meetings of the City Commission and other public meetings.
Nevertheless, and despite the proactive enforcement efforts of the City's Code Compliance a Td
Police Departments, City residents continue to express their desire for further protection from
uninvited noise which disturbs the peaceful enjoyment of their homes and the City's pub is
spaces.
Enforcement of the City's noise ordinance against excessive noise (amplified music) emanating
from vehicular and vessel sound systems is particularly challenging due to the inherent
Page 74 of 226
Commission Memorandum - Noise Ordinance— Establishing Exceptions to the Written Warning
Requirement and Increasing the Civil Fines for Repeat Violations
October 27, 2021
Page 2
mobility of vehicles and vessels. In addition, the current requirement that a written warning (and
fifteen minutes to comply) be provided prior to the issuance of a notice of violation renders the
City's noise ordinance nearly unenforceable against vehicles and vessels, as vehicles and
vessels often travel many miles away from the initial incident location prior to the requisite fifteen
minutes having elapsed. Moreover, the civil fines set forth in the City's noise ordinance (which
are applicable to persons, residences, and businesses)have not been amended since their initial
adoption in 2006.
After discussion at the Neighborhood and Quality of Life Committee ("NQLC") meeting on July
21, 2021, the City Attorney's Office was asked to prepare a legislative solution to provide for a
strengthened enforcement mechanism and fine structure, in order to address the unreasonably
loud and excessive noise from vehicles. The NQLC disc,issed the proposed Ordinance at its
September 20, 2021 meeting, and provided a further recommendation that vessels, in addition
to vehicles, should also be exempted from the written warning requirement prior to the issuance
of a notice of violation.
The proposed Ordinance would authorize the immediate issuance of a notice of violation (without
providing 15 minutes to comply and a prior written warning)for the noise ordinance infractions of
Section 46-152(b)committed by persons in vehicles(which specifically includes bicycles, electric
bicycles and motorized bicycles) and vessels. In addition, the Ordinance would incrementally
increase the associated civil fines pertaining to violations of the City's noise ordinance.
Based on to the discussion of the City Commission at First Reading on October 13, 2021, the
following aspects of the proposed Ordinance have been modified prior to Second Reading:
(1) The civil fine for a first offense of the City's noise ordinance will remain $250 (and
shall not be increased to $500), however the fines for all repeat violations within the
preceding 1,2 month period shall be increased as set forth in the proposed Ordinance
at First Reading; and
(2) The joint and several liability, as set forth in Section 46-153 of the City Code, for
compliance and responsibility for any violation(s) of the noise ordinance, shall nIot
apply to privately-owned vehicles and vessels, which are neither rented or leased, nor
publicly available for rent or lease.
Additionally, at First Reading, questions were raised regarding the constitutionality of the City's
noise ordinance. The City's noise ordinance was largely based on Miami-Dade County's noise
ordinance. In DA Mortg., Inc. and 136 Collins Avenue, L.C. vs. City of Miami Beach and Miami-
Dade County, 486 F.3d 1254 (2007), the United States Court of Appeals for the Eleventh Circuit
held that Miami-Dade County's noise ordinance is constitutional.
In that case, the Plaintiff/Appellant ("L.C.") was the owner of a Miami Beach nightclub, Opium
Garden, which subleased the premises at 136 Collins Avenue from DA Mortgage, Inc. LAC.
alleged that the ordinance and the City's enforcement violated its First and Fourteenth
Amendment rights. The City had adopted Miami-Dade County's noise ordinance in its entirety,
and was enforcing those provisions of the County's ordinance throughout the City.
Page 75 of 226
Commission Memorandum - Noise Ordinance— Establishing Exceptions to the Written Warning
Requirement and Increasing the Civil Fines for Repeat Violations
October 27, 2021
Page 3
The Eleventh Circuit held that the County's noise ordinance was content-neutral, advanced a
significant governmental interest in regulating reproduced sound, and included permissible time(
place and manner restrictions. Equally important, the Court held that the ordinance was narrowly
tailored to achieve a legitimate governmental interest and provided clear enforcement standards
that provided ample alternative channels of expression. To further validate the legitimacy of the
noise ordinance, the Court of Appeals determined that the ordinance was neither
unconstitutionally overbroad nor vague so as to violate due process. In conclusion, the Court of
Appeals recognized that enforcement officers are legally permitted to utilize the reasonable
person standard for the issuance of a violation pursuant to the noise ordinance.
If the proposed Ordinance is adopted at Second Reading, it is anticipated that the Mayor and
City Commission will also direct the City Administration to track the statistical data pertaining to
the enforcement of the City's noise ordinance, as applied to vehicles and vessels,from November
7, 2021 through June 7, 2022, and further direct that such statistical data be presented to the
Mayor and City Commission in June of 2022.
RAP/AB/MAF/bhs
Page 76 of 226