R5G -Enforcement Provisions Temporary Obstructions Of ROW -Grieco-lntended Outcome S
Item Summary/Recommendation :
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
ents, providinq for codification , severabilitv, and an effective date.
(1) Enhance Pedestrian Safety Universally; and (2) Ensure Comprehensive Mobility
Addressing All Modes Throuqhout the City.
Supporting Data (Surveys, Environmenta! 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,T
a.m. through 7 p.m. ln addition, 74o/o of residents and72o/o of businesses rate the availability
of parking across the City as "too little or much too little."
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. ln 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 Heari
Financial lnformation :
Source of
Funds:
Amount Account
1
2
OBPI Total
Financial lmpact Summary: Marginal. Will be addressed with currenUexisting resources.
extension
Department DirqQtor 4 pt City Man;ger Gity I anager
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City of Miomi Beoch, 1700 Convention Center Drive, Miomi Beoch, Florido 33,l39, www.miomibeochfl.gov
COMMISS MEMORANDUM
To: Mayor Philip Levine and Members the City
FROM: Jimmy L. Morales, City Manager
DATE: April 1 5,2015
SUB]ECT: AN ORDINANCE OF THE MAY
MIAMI BEACH, FLORIDA,NG CHAPTER 82 OF THE CODE OF THE
CITY OF MIAMI BEACH,D "PUBLIC PROPERTY," BY AMENDING
ARTICLE IV, ENTITLED "USES IN PUBLIG RlGHTS.OF.WAY," BYAMEND!NG
DIVISION 2, ENTITLED "TEMPORARY OBSTRUCTIONS," BY AMENDING
SECTION 82.151THEREOF, 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 lN VIOLATION OF PERMIT REQUIREMENTS; AND
PROVIDING FOR REPEALER, SEVERABILITY, CODIFIGATION, AND AN
EFFECTIVE DATE. [Sponsored by Commissioner Michae! Grieco]
ADMINISTRATION REGOMMEN DATION
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 ahazard 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
ln 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.
D AND FINAL PUBLIC HEARING
CITY COMMISSION OF THE CITY OF
342
City Com m ission Me mora n d u m
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. lf 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, atemporary obstruction
of right-of-way permit to any person or entity that has violated Section 82-151three or more
times within a 12-month period.
CONCLUSION
The Administration recommends the Mayor and Commission approve the attached
Ordinance on Second and Final Public Hearing.
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T:\AGENDA\201S\April15201S\ROWTemporaryObstructionsSecondReadingAprl520l5.cme.doc
343
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND GITY 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 lV of Chapter 82 of the Code of the City Miami Beach is
hereby amended as follows:
CHAPTER 82
PUBLIC PROPERTY
ARTTCLE,r.
:""=
in Public*Rights-of-Way
344
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.
Sfreef 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 requiremenfs. Permits for temporary obstruction of the public right-of-way
shall be issued within ten days ef the filing ef a-eempleted applieatien and 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 $500S00S0
$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 employersl 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 strenqth and classed as financial
size cateqory Vl or better per the latest edition of Best's Key Rating Guider-latest
editioe. The city must receive 30 days' written notice prior to any cancellation,
nonrenewal. or material change in the coverage provided.
345
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 receivinq a p-ermit 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 the+eef 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.
16) Appeals. Appeals from the determination of the deposit amount required bv the
public works director and appeals from the denial of a permit shall be to the citv
manaoer or his desiqnee. Alternativelv. the citv commission mav, bv 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 hearinqs must be accompanied bv a fee as approved bv a
resolution of the citv 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
346
permit conditions shall render the permit null and void, and subiect the violator to enforcement
and oenalties. as provided in subsection (e\.
e
102 384 and 102 385, Applieatiens fer hearings must be aeeempanied by a fee as appreved by
P e n alti e s and e nfo rce ment.
(l-) Penalties for violations. The followinq penalties shall be imposed for a violation of
subsections (b), (c)(1) throuqh (cXS). or (d):
a. The penaltv for the first violation bv a person or entitv within a 12-month
period shall be a civil fine of $ 1,000.00:
b. The penaltv for the second violation bv a person or entitv within a 12-
month period shall be a civil fine of $ 5.000.00:
c. The penaltv for the third violation bv a person or entitv within a 12-month
period shall be a civilfine of $ 10,000.00:
d. The fourth or subsequent violation bv a person or entitv within a 12-month
period shall constitute an offense enforceable pursuant to section 1-14 of
this Code.
(!) Enforcement. The Code Compliance Department or Parkino Department shall
enforce subsections (b). (c)(1) throuqh (c)(5). and (d). This shall not preclude
other law enforcement agencies or reoulatory bodies from anv action to assure
compliance with this section and all applicable laws. lf a parkinq enforcement
specialist or a code compliance officer finds a violation of subsections (b). (cX1)
throuqh (cX5), or (d). the parkinq 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 payino
the fine. that the violation mav be appealed bv requestins an administrative
hearinq before a special master within ten davs after service of the notice of
violation, and that failure to appeal the violation within the ten davs shall
constitute an admission of the violation and a waiver of the rioht to a hearinq.
(Q Riohts of violators: oavment of fine: riqht to appear: failure to pav 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
pav the civil fine in the manner indicated on the notice of violation,
or
request an administrative hearino before a special master to
t
ii.
347
appeal the notice of violation, which must be requested within ten
davs of the service of the notice of violation.
b. The procedures for appeal bv administrative hearinq of the notice of
violation shall be as set forth in sections 30-72 and 30-73. Applications for
hearinqs must be accompanied bv a fee as approved bv a resolution of
the citv commission, which shall be refunded if the named violator
prevails in this appeal.
c. lf the named violator, after issuance of the notice of violation, fails to pav
the civil fine. or fails to timelv request an administrative hearino before a
special master. the special master mav be informed of such failure bv
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 rioht 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 accordinslv.
d. A certified copv of an order imposinq a fine mav be recorded in the public
records, and thereafter shall constitute a lien upon anv real or personal
propertv owned by the violator, which mav be enforced in the same
manner as a court iudgment bv the sheriffs of this state, includinq levv
aoainst the violator's real or personal propertv, but shall not be deemed to
be a court iudoment except for enforcement purposes. On or after the
sixtv-first dav followinq the recordinq of anv such lien that remains unpaid,
the Citv mav foreclose or otherwise execute upon the lien.
e. Anv partv aoqrieved bv a decision of a special master mav appeal that
decision to a court of competent iurisdiction.
L The special master shall be prohibited from hearinq the merits of the
notice of violation or considering the timeliness of a request for an
administrative hearinq if the violator has failed to request an
administrative hearino within ten davs of the service of the notice of
violation.
91, The special master shall not have discretion to alter the penalties
prescribed in subsection (e)(1) or (e)(4).
([) Enhanced penalties. The followinq enhanced penalties shall be imposed, in
addition to anv mandatorv fines set forth in subsection (e)(1) above. for violations
of subsection (b), (cX1) throuqh (c)(5), or (d):
a. Enhanced penalties for violations of subsection (b). (c)(1) throuqh (c)(5),
or (d):
!. A notice of violation of subsection (b), (c)(1) throuqh (cXS), or (d)
shall be issued to the person or entitv obstructino or causino to
obstruct anv street or sidewalk in this citv or impedinq the oeneral
movement of vehicular or pedestrian traffic thereon and. if the
violation occurred within the course and scope of the violator's
348
emplovment, a notice of violation shall also be issued to the
person or entitv emplovinq the violator, who shall be iointlv and
severallv liable for the violation.
ii. The public works director shall decline to issue, for a period of one
vear from the date of the violation, a temporarv obstruction of
riqht-of-wav permit to such person or entitv that has violated
subsection (b), (c)(1) throuqh (c)(5), or (d) three or more times
within a 12-month period.
(0 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 rightof-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. SEVERABILIry.
lf 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 shalltake effect on the
PASSED AND ADOPTED this
ATTEST:
day of 2015.
day of ,2015.
Mayor Philip Levine
Rafael E. Granado, City Clerk
(Sponsored by Commissioner Michael Grieco)
Underline denotes additions
S+ike+n+eugh denotes deletions
APPROVED AS TO
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