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R5B -Amend Ch 90 Penalties For Failure To Pay Franchise Fees -Weithorn-lntended Outcome Su Ensure Expenditure Trends Are Sustainable Over The Long Term. Supporting Data (Surveys, Environmental Scan, etc.) N/A COMMISSION ITEM SUMMARY Condensed Title: Second Reading to consider an Ordinance Amendment to increase penalties to private waste and specialty contractors for not paying franchise and permit fees due to the City based on a percentage of fees not paid. n-Offs: T:\AGENDA\201S\October\Solid Waste Franchise Fees Penalties - Second Reading AGEN,A nem RSB oor; /oTq-/{ ln two recent audits performed, the private waste contractors collected revenues and franchise fees for rolloff services in the City and failed to report these revenues and remit applicable franchise and permit fees to the City. The changes recommended for this ordinance primarily provide for eliminating the current flat late fee and establishing a penalty based upon a percentage of fees not remitted. An approach similar to penalties established for the City's resort tax collection is recommended. Penalties for resort taxes not remitted are currently at 10% for those taxes due within 30 days after the due date with additional penalties of 10% being charged for each subsequent 30 day period afterwards with a cap of 50% penalty of the total amount of the fees. This change should encourage compliance to the City Code by these contractors. On September 2,2015, the City Commission accepted the recommendation of the Audit Committee via separate motion and approved the Ordinance at First Reading and scheduled a Second Reading Public Hearing for October 14,2015. The Administration recommends that the City Commission adopt the Ordinance. On April 28, 2015 the Audit Committee recommended increasing the penalty to private waste contractors for not reporting franchise and permit fees to the City. Advisory Board Recommendation: Financial I nformation : Source of Funds: Amount Account 1 2 3 UBPr Total Financial lmpact Summary: ln accordance with Charter section 5.02, which requires that the "City of Miami Beach shall consider the longterm economic impact (at least 5 years) of proposed legislative actions," this shall confirm that the City Administration evaluated the longterm economic impact (at least 5 years) of this proposed legislative action, and determined that there will be no measurable impact on the City's budqet. MIAMIBEACH 425 City of lltiomi Beoch, I200 Convention Center Drive, Miomi Beoch, Florido 33,139, www.miomibeochfl.gov MIAMIBEACH TO: C Mayor Philip Levine and Members of FRoM: Jimmy L. Morales, City Manager DATE: October 14,2015 SUBJECT: AMENDING PENALTIES FOR FRA TO THE CITY BY PRIVATE WASTE CHISE AND PERMIT FEES NOT PAID SPECIALry CONTRACTORS AN ORDTNANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 90 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED "SOLID WASTE,'' BY AMENDING ARTICLE IV, ENTITLED "PRIVATE WASTE COLLECTORS/CONTRACTORS," BY AMENDING DIVISION 3, ENTITLED'FRANCHISE," BY AMENDING SECTION 90.225, ENTITLED ..FAILURE TO PAY FRANGHISE FEE" TO PROVIDE PENALTIES FOR FAILURE TO PAY FRANCHISE FEES; AND BY AMENDING DIVISION 4, ENTITLED "SPECIALTY CONTRACTORS," BY AMENDING SECTION 90.278, ENTITLED "FEES AND REQUIREMENTS" TO AMEND THE PENALITIES FOR THE FAILURE TO PAY PERMIT FEES; PROVIDING FOR REPEALER; SEVERABILIW; CODIFICATION; AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission adopt the Ordinance. BAGKGROUND The City's lnternal Audit Division audits private waste contractors to verify whether required franchise fees and other rolloff permit fees for solid waste picked up within the City's limits are being reported to the City. Waste contractors charge their customers an 18% City franchise fee on revenues earned with the City limits. These franchise fees are to be remitted monthly to the City. At present, the penalties for not paying the franchise fees are based upon a flat fee of $50 for each late return or return not filed. lnterest is also charged on any franchise or permit fees due to the City. ln two recent audits performed within the current fiscal year, the specialty (rolloff) contractors collected revenues and franchise fees for rolloff services in the City and failed to report these revenues and remit applicable franchise fees to the City. Other than standard interest allowed by the City Code, a flat fee of $50 is assessed for any late returns or on revenues not reported. For these two audits, late fees amounted to $1,700 and $400 on assessed franchise fees not reported in the amount of $58,462 and $1,791 respectively. MMISSI MEMORANDUM City Co OND - PUBLIG HEARING 426 Commission Memorandum Amending Penalties for Franchise and Permit Fees Not Paid October 14, 2015 Page 2 ot 2 ANALYSIS These contractors did not comply with certain reporting provision sections in the City Code during the audit period. They collected revenues and franchise fees for services rendered within the City of Miami Beach and failed to file. The changes recommended for this ordinance primarily provide for eliminating the current flat late fee and establishing a penalty based upon a percentage of fees not remitted. An approach similar to penalties established for the City's resort tax collection is recommended. Penalties for resort taxes not remitted are currently at 10o/o for those due within 30 days after the due date with additional penalties of 10% being charged for each subsequent 30 day period aftenrvards with a cap of 50% penalty of the total amount of the fees. This change should encourage compliance to the City Code by these contractors. AUDIT COMMITTEE REVIEW At the April 28, 2015 Audit Committee meeting, the committee recommended proposing a change to the City ordinance to allow for a higher penalty which is based on a percentage of fees not remitted rather than a flat non-filing fee. This change would be similar to how penalties are currently calculated on businesses not remitting resort taxes and would encourage timelier compliance. Commissioner Weithorn is sponsoring these changes. SUMMARY On September 2,2015, the City Commission accepted the recommendation of the Audit Committee via separate motion and approved thg subject Ordinance at First Reading and scheduled a Second Reading Public Hearing for October 14,2015. CONCLUSION The Administration recommends that the City Commission adopt the Ordinance. T:\AGENDAVo1S\October\Solid Waste Franchise Fees Penalties - Second Reading MEM.docx 427 ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 90 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED..SOLID WASTE," BY AMENDING ARTICLE IV, ENTITLED..PRIVATE WASTE CONTRACTORS," BY AMENDING DIVISION 3, ENTITLED ..FRANCHISE," BY AMENDING SECTION 90-225, ENTITLED "FAILURE TO PAY FRANCHISE FEE,'' TO AMEND THE PENALTIES FOR FAILURE TO PAY FRANCHISE FEES; AND BY AMENDING DIVISION 4, ENTITLED "SPECIALTY CONTRACTORS,'' BY AMENDING SECTION 90-278, ENTITLED "FEES AND REQUIREMENTS," TO AMEND THE PENALTIES FOR THE FAILURE TO PAY PERMIT FEES; PROVIDING FOR REPEALER; SEVERABILITY; CODIFICATION; AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Miami Beach, Florida finds it in the public interest to ensure that all areas within the City limits are adequately provided with high-quality solid waste collection and disposal service; and WHEREAS, the City Commission finds it in the public interest to strengthen its regulatory authority, as permitted by law, over solid waste collection and disposal because of the overriding public health, welfare, and ecological considerations associated with the provisions of solid waste services; and WHEREAS, the City Commission finds it in the public interest to ensure public sanitation, to promote aesthetic considerations, and to protect the public investment in right-of-way property; and WHEREAS, the City Commission finds that charging penalties based on a percentage of fees not paid for the failure to pay solid waste franchise and permit fees is the best means of assuring that the above-described interests of the City are served. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA as follows: SECTION 1. That Miami Beach Code Chapter 90, entitled "Solid Waste," Section 90- 225 and Section 90-278 are hereby amended as set forth below: 428 CHAPTER 90 SOLID WASTE *** Article lV. Private Waste Contractors *** Division 3. Franchise Sec. 90-225. Failure to pay franchise fee; penalties. lf a franchise waste contractor fails to pay any franchise fee (as set forth in section 90- 221), when due and within the time provided, the contractor shall pay any and all of the city's expenses for collection of same, including, without limitation, audit costs and reasonable attorney fees and costs. lf the contractor fails to pay the full franchise fee on or before the last day of each month, i penalty fees for private waste collectors/contractors shall be as follows: Or?rnal delrnouency. Anv franchise waste contractor who fails to remit anv franchise fee imposed bv this division within the time required shall pav a penaltv of ten percent of the amount of the delinquent fee in addition to the amount of the delinquent fee. Confinued delrnouency. Anv franchise waste contractor who fails to remit the franchise fee on or before the 30th dav followinq the date on which the fee first became delinquent shall pav a second delinquencv penaltv of ten percent of the amount of the delinquent fee. in addition to the amount of the fee. and the ten percent penaltv imposed pursuant to section (1). An additional penalty of ten percent of the amount of the delinquent fee shall be paid for each additional 30-dav period. or part thereof. durins which the franchise fee is delinquent, provided that the total penaltv imposed bv subsection (1) and this subsection (2) shall not exceed 50 percent of the amount of the franchise fee. This penalty shall be in addition to the franchise fee and interest imposed by this division. /nferesf. ln addition to the penalties imposed in subsections (1) and (2) of this section, anv franchise waste contractor who fails to remit anv franchise fee imposed bv this division shall pav interest at the hiqhest leqal rate of interest permitted by law on the amount of the franchise fee. exclusive of penalties. from the date on which the franchise fee first became delinquent until paid. u 4 3) 429 !) Penalties merqed with franchise fee. Everv penallv imoosed and all interest accrued under the provisions of this section shall become a part of the franchise fee required to be paid. Division 4. ,0"","n, Contractors *** S u bd ivision I l. Rol loff/Portable Waste Gontai ner Contractors Sec.90-278. Fees and requirements; penalties for non-pavment. The permit fees and requirements for rolloff container and grapple service contractors shall be as follows: (6) Failure to pay permit fee; penalties for late payment lf the contractor fails to timely pay the full permit fee as set forth in subsections (1) and (2) of this section, the contractor shall pay any and all of the city's expenses for collection of such fees, including, but not limited to, court costs, audit costs and reasonable attorney fees. lf the contractor fails to pay the full permit fee on or before the last day of each month, -a-late payment penatty as the ameunt due at the highest lawful rate ef interest per annum, nenalty fees for specialty contractors shall be as follows: a) On?rnal delinouency. Anv specialtv contractor who fails to remit any pgrmit fee imposed bv this division within the time required shall pay a penaltv of ten percent of the amount of the delinquent fee in addition to the amount of the fee. b) Confrnued delrnouency. Anv specialtv contractor who fails to remit the permit fee on or before the 30th day following the date on which the fee first became delinquent shall pav a second delinquencv penaltv of ten percent of the amount of the fee in addition to the amount of the fee and the ten percent penaltv imposed pursuant to subsection (1). An additional penaltv of ten percent of the amount of the delinquent fee shall be paid for each additional 30-day period, or part thereof. durinq which the permit fee is delinquent. provided that the total penaltv imposed bv subsection (a) and this subsection (b) shall not exceed 50 percent of the amount of the permit fee. This penaltv shall be in addition to the permit fee and interest imposed bv this division. 430 c) /nferesf. ln addition to the penalties imposed in subsections (a) and (b), any specialty contractor who fails to remit any permit fee imposed by this division shall pav interest at the hiqhest leqal rate of interest permitted bv law on the amount of fee, exclusive of penalties, from the date on which the permit fee first became delinquent until paid. g!) Penalfies merqed u/ifh permrt fee. Everv penaltv imposed and all interest accrued under the provisions of this section shall become a part of the permit fee required to be paid. SECTION 2. SEVERABILITY !f in 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 portion of the Ordinance. SECTION 3. REPEALER All ordinances or parts in conflict herewith be the same are hereby repealed. 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 re-lettered to accomplish such intention, and, the word "ordinance" may be changed to "section," "article," or other appropriate word. SEGTION 5. EFFECTIVE DATE This Ordinance shalltake effect ten days following adoption. PASSED and ADOPTED this day of ATTEST: ,2015. Philip Levine, Mayor Rafael E. 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