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2007-3560 OrdinanceORDINANCE NO. 2007-3560 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING SECTION 46-92, "THROWING LITTER IN PUBLIC PLACES; POSSESSION OF GLASS OR METAL CONTAINERS ON BEACHES UNLAWFUL; SWEEPING OR THROWING LITTER IN GUTTERS; GARBAGE CONTAINERS REQUIRED FOR TAKE-OUT RESTAURANTS; CIVIL FINES FOR VIOLATION," OF DIVISION 1, "GENERALLY," OF ARTICLE III, "LITTER," OF CHAPTER 46 OF THE CITY CODE, "ENVIRONMENT," BY CREATING CRITERIA FOR REBUTTABLE PRESUMPTIONS CONCERNING LITTERING WITH COMMERCIAL HANDBILLS; BY PROVIDING FOR SEIZURE OF HANDBILLS FOR USE AS EVIDENCE AT PROSECUTION; BY PROVIDING FOR REMOVAL OF HANDBILLS AT VIOLATOR'S EXPENSE; BY AMENDING DEFINITIONS SECTIONS; BY AMENDING PROVISIONS PROVIDING FOR FINES AND PENALTIES FOR VIOLATIONS; AND PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, litter on public property caused by persons distributing commercial handbills and flyers has been a problem in the City of Miami Beach for many years and has recently been the subject of City Commission and Planning Board discussion to address modified enforcement and legislative solutions; and WHEREAS, the severe litter problem caused by littering with commercial handbills, in addition to harming the City's aesthetics and visual beauty by causing visual blight, harms and damages the City's efforts to promote, provide for, and protect the public health, safety, morals, and welfare; and WHEREAS, the City of Miami Beach is an internationally famous tourist destination, and the visual blight caused by the handbills that end up as litter harms the City's goal of promoting tourism and continuing to be an internationally famous tourist destination; and WHEREAS, the persons and entities who are the primary beneficiaries of the distribution of commercial handbills that end up as litter in the City gain financial benefits and profits from commercial handbills that end up as litter; and WHEREAS, the City's Administration is exploring methods to provide free alternative methods of advertising in the Cityincluding the creation of kiosks, electronic kiosks, and use of the City's website and television station-that could be used by City businesses to advertise in away that is less harmful to the environment; and WHEREAS, the City is forced to spend substantial financial and human resources cleaning up litter caused by commercial handbills; and WHEREAS, the City also recognizes that a portion of the handbill litter problem in the City is caused by out-of--City businesses that send their agents to litter the City's streets with handbills advertising their out-of--City businesses, and the City intends to prosecute these out-of- City business violators to the full extent permitted by law, including by recording all special master orders imposing fines as liens on violators' property and pursuing all actions permitted at law and in equity to enforce such orders imposing fines; and WHEREAS, it would serve a substantial governmental interest for the Commission to enact an Ordinance increasing the City's ability to enforce its regulations concerning litter by creating criteria for rebuttable presumptions concerning littering with commercial handbills. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH AS FOLLOWS: SECTION 1. That Division 1 of Article III of Chapter 46 of the Code of the City of Miami Beach, Florida is hereby amended as follows: Chapter 46 ENVIRONMENT *** ARTICLE III. LITTER *~~ DIVISION 1. GENERALLY Sec. 46-92. Throwing litter in public places; possession of glass or metal containers on beaches unlawful; sweeping or throwing litter in gutters; garbage containers required for take-out restaurants; rebuttable presumptions; civil fines for violations; seizure; removal; definition of litter. (a) It shall be unlawful for any person or benefactor to throw, discard, place or deposit, or cause to be thrown, discarded, placed, or deposited litter in any manner or amount whatsoever in or on any public highway, sidewalk, road, street, alley, thoroughfare or any other public lp ace ~a~s, except in containers or areas lawfully provided therefor. It shall be unlawful for any person to throw, discard, place or deposit any garbage, cans, bottles or containers in or on any freshwater lakes, rivers, streams or tidal or coastal waters within the city. In addition, it shall be unlawful for any person to throw, discard, place or deposit litter in any manner or amount whatsoever on any private property, unless prior consent of the owner has been given and unless such litter will not cause a public nuisance or be in violation of any other state or local laws, rules or regulations. (b) It shall be unlawful for any person to carry onto any beach within the city a glass or metal bottle or other glass or metal container. 2 (c) It shall be unlawful for any person to sweep, cast or throw, or cause to be cast or thrown, into any of the gutters, drains or sewers within the city any garbage, litter, paper, handbill, trash, tree or grass cuttings or other objects or substances. (d) All restaurants with take-out service shall have up to four garbage containers, as need requires, based on the determination of the city manager or his designee. The containers shall be located in front of and within 50 feet in each direction of the premises at locations approved by the city manager or his designee. These containers shall be kept in clean and sanitary condition at all times and shall be emptied daily or more frequently if necessary to prevent overflowing. The garbage containers required by this section are in addition to those required by chapter 90 of this Code. (e) The following civil fines shall be imposed for violations of this section except as provided in subsections (,below. (1) First offense, $50.00 fine. (2) Second offense, $100.00 fine. (3) Third offense, $500.00 fine. (f) If a violation of this section resulted from the throwing discarding placing or depositing or causing to be thrown, discarded, placed, or deposited, of commercial handbills as litter then the following civil fines shall be imposed. The special master shall not have discretion to alter these prescribed penalties except as to the per handbill fine of $50.00 ^~ provided in (f)(1). 1) If the offense is the first offense, $100.00 fine plus x$50.00 per handbill; (2) If the offense is the second offense within the preceding 12 months $500.00 fine plus $50.00 per handbill; (3) If the offense is the third or subsequent offense within the preceding 12 months $1,500.00 fine plus $50.00 per handbill. (4) Notwithstanding Sections (1~3 no person or benefactor shall receive more than 1 offense within any one day period however the $50.00 per handbill fine shall apply to all littered handbills found during that one dam eriod. (g) At any~rosecution for violation of this section when the litter involved is a commercial handbill, if 10 or more commercial handbills advertising the same business are found in plain view as litter under circumstances that make it more likely than not that the commercial handbills were placed there or caused to be placed there by an agent employee contractor promoter, or other representative of the business advertised on the face of the handbills the special master shall apply a rebuttablepresumption that the business advertised on the face of the handbills threw, discarded, placed or deposited the commercial handbills as litter (h) If a person is found littering with commercial handbills the code compliance officer is authorized to seize, for use as evidence in the prosecution of the violator before the special master, all commercial handbills in the possession of the violator (i) The city may cause the removal, at the violator's expense, of all litter distributed or placed in violation of this section. ~j) Definitions: Benefactor means the owner of the business advertised in the commercial handbill whose went, employee, contractor, promoter, or other representative did or caused the throwing discarding=placin or depositing (2) Business means any commercial or industrial activity entity or event in or for which any goods or services are made, sold or offered for sale or other consideration pecuniary or otherwise. (3) Handbill means any handbill, flypaper document dodger circular folder booklet letter card, pamphlet, sheet, poster, sticker, banner, notice or other written, printed or painted matter or object that conveys any information, except that "handbill" shall not include a newspaper or its contents. (4) Commercial Handbill means any handbill that convey information about an~good or service provided by a business. (5) Litter means any paper handbill ag rbage or other waste that has been placed or deposited and left on a public sidewalk street road avenue beach swale median building fence wall boardwalk, park or any other public area or on an~bject located on public property or on the kneewall, window ledge or sill of any public or private building or on a motor vehicle or private property as prohibited by sections 46-117 and 46-118. Handbills attached to a trash receptacle but not within the trash receptacle in the usual manner shall also be considered litter. ~6) One day means a 24 hour period from noon to noon. (7) Person benefactor or owner include within their respective meanings either an individual or an entity. (k) Enforcement by code compliance o~cers • notice of violation If a code com lip ante officer as defined in chapter 30 finds a violation of this article such code compliance officer shall issue a notice of violation to 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 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 a hearing_ (1) Rights of violators • payment o f fine • right to appeal • failure to pay civil fine or to appeal ~l) 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 appointed by the city commission upon recommendation of the city manager to appeal the decision of the code compliance officer which resulted in the issuance of the notice of violation (2) 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 violators 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 penalties maybe assessed accordingly. (3) An~part~gti~rieved by the decision of the special master ma~ppeal the decision in accordance with law. ~) Recovery of unpaid apes; 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, includin~y 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 which remains unpaid, the city may foreclose or otherwise execute upon the lien. (n) Nothing in this Article shall limit or restrict an_y condition or limitation imposed by the Planning Board. SECTION 2. 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 Code of the City of Miami Beach, Florida. The sections of this ordinance maybe renumbered or re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word. SECTION 3. REPEALER All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 4. SEVERABILITY If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 5. EFFECTIVE DATE PASSED and ADOPTED THIS 6th DAY OF J ne This Ordinance shall take effect on the 16th d of ATTEST: ~~~~ Mayo. CITY CLERK Robert Parcher avid Dermer F:~attoASACS\ORD(NANC\littering ordinance6.doc 20p7. 2007. APt~fcOVEp AS 1~ FggQPP~lpp& t~~/rAh~tG{{ llAGww ~~E (J~ I~iC ~A~CCi~OiV G ~ 67 arnw ~ +9fe COMMISSION ITEM SUMMARY Condensed Title: An Ordinance Amending Section 46-92, "Throwing Litter In Public Places; Possession Of Glass Or Metal Containers On Beaches Unlawful; Sweeping Or Throwing Litter In Gutters; Garbage Containers Required For Take-Out Restaurants; Civil Fines For Violation," Of Division 1, "Generally," Of Article III, "Litter," Of Chapter 46 Of The City Code, "Environment," By Creating Criteria For Rebuttable Presumptions Concerning Littering With Commercial Handbills; B Providin For Seizure Of Handbills For Use As Evidence At Prosecution. Intended Outcome Supported: ~ Improve cleanliness of Miami Beach rights of way especially in business areas ~ Issue: Shall the Mayor and City Commission approve on second reading an amendment to the City's litter ordinance establishin fines and enalties for the litterin of commercial handbills in the Cit ? Item Summa /Recommendation: SECOND READING PUBLIC HEARING Following discussion late last year on possible solutions for the issue of commercial handbill littering, the proposed ordinance was submitted to the Neighborhoods/Community Affairs Committee at their February 28, 2007 meeting. The proposed ordinance amends the existing provisions in city code relating to litter by including commercial handbills as litter under certain circumstances, and the use of a rebuttable presumption. The proposed ordinance was revised to reflect recommendations from the committee, and presented to the Neighborhoods committee on April 25, 2007 with a reduction in the fines for violations in Section 46-92 (f), to $100 for the first offense, $500 for the second offense and $1,500 for the third or subsequent offense; the previous fine schedules were $250, $1,000 and 2,000 respectively. This reduction was made in response to concerns that distributors observed violating the ordinance would be subject to high fine amounts. However, in all cases a per handbill fine of $50 remains, which is in addition to the base fine. The ordinance proposes a rolling 12-month period relating to the re-setting of fines. The Committee moved the item to the Commission for first reading. The proposed ordinance was submitted for consideration to the City Commission on May 16, 2007, and approved on first reading. The Commission recommended some level of mitigation for first offenses. In response, the ordinance has been amended to provide the Special Master fine mitigation/discretion on the per handbill charge of up to $50 for first offenses only. The base fine ma not be miti ated, nor ma fines/ enalties for subse uent offenses. AdVISO t30ard K@COmmendatlOn: The proposed ordinance was presented and discussed at the February 28, 2007, Neighborhoods/Community Affairs meeting. The Committee members offered a number of suggestions and comments, including, but not limited to, the proposed fine schedule, the limitation on special master mitigation, clarification on how multiple offenses in one day are handled, and clarifying that accidentally placing a handbill on the rim of a trash receptacle does not constitute a violation. The ordinance was reconsidered by the Neighborhoods/Community Affairs Committee on April 25, 2007 with the recommendations included. The Committee moved the item to the Commission for first reading. The ro osed ordinance was resented and distributed to the NiteLife Task Force on March 2, 2007, and April 20, 2007. Financial Information: Source of Amount Account Approved Funds: ~ 2 3 4 OBPI Total Financial Impact Summary: Clerk's Office Legislative Tracki I• ~~ I ~~ ~ ~ ~~~ ~ AGENDA ITEM s~3 DATE - ~ m MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor David Dermer and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: June 6, 2007 '' SECOND READING/PUBLIC HEARING SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING SECTION 46-92, "THROWING LITTER IN PUBLIC PLACES; POSSESSION OF GLASS OR METAL CONTAINERS ON BEACHES UNLAWFUL; SWEEPING OR THROWING LITTER IN GUTTERS; GARBAGE CONTAINERS REQUIRED FOR TAKE-OUT RESTAURANTS; CIVIL FINES FOR VIOLATION," OF DIVISION 1, "GENERALLY," OF ARTICLE III, "LITTER," OF CHAPTER 46 OF THE CITY CODE, "ENVIRONMENT," BY CREATING CRITERIA FOR REBUTTABLE PRESUMPTIONS CONCERNING LITTERING WITH COMMERCIAL HANDBILLS; BY PROVIDING FOR SEIZURE OF HANDBILLS FOR USE AS EVIDENCE AT PROSECUTION; BY PROVIDING FOR REMOVAL OF HANDBILLS AT VIOLATOR'S EXPENSE; BY AMENDING DEFINITIONS SECTIONS; BY AMENDING PROVISIONS PROVIDING FOR FINES AND PENALTIES FOR VIOLATIONS; AND PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION Adopt the Ordinance. BACKGROUND Following extensive discussion late last year on the issue of commercial handbills resulting as litter, the administration was directed to review existing code to determination if amendments to the code could address the continued proliferation of commercial handbills that result as litter in City streets. City code currently addresses the placement of commercial handbills on motor vehicles and the placement of signs/flyers on public property. In both of these sections of code, a rebuttable presumption is applied and fines are levied that include aper-handbill fee. As you know, the cleanliness of streets was identified in the Community Satisfaction Surveys as an issue of concern for both residents and businesses; commercial handbills that result in litter have been identified as contributing to the cleanliness issues in City streets. At the February 28, 2007, Neighborhoods/Community Affairs Committee meeting, the Administration provided a presentation that reflected that the issue of commercial handbills resulting in litter has remained the same in spite of the Commission's request to the entertainment industry during its December 6, 2006 meeting to self regulate this issue. In response, the Administration, working with the City Attorney's office, reviewed the existing Section 46-92 of the City Code (Litter) and developed and presented an ordinance that amends this section of the code to address commercial handbills found as litter. The Committee members made comments, recommendations and suggestions relating to, among other things, the fine structure, the role of the Special Master and the issue of multiple violations in one day. Adjustments to the proposed ordinance were made and reviewed by the Neighborhoods/Community Affairs Committee at their April 25, 2007 meeting. The revised ordinance reflected a reduction in the fine schedule to address concerns with first offenders, especially distributors. The ordinance was clarified to reflect that only one base fine would be applied in one 24-hour period, although the per-handbill fee would apply for all commercial handbills that result as litter in that period. A 12-month rolling period relating to the re-setting of fines was also included. PROPOSED ORDINANCE More specifically, the proposed ordinance amends Section 46-92 and includes the following: 1) The application of a rebuttable presumption as it relates to commercial handbills that result in litter when commercial handbills are found "in plain view as litter under circumstances that make it more likely than not that the commercial handbills were placed there, or caused to be placed there..." The proposed ordinance establishes that a rebuttable presumption would be applied only when ten (10) or more commercial handbills are found in the above-described manner. The ordinance still allowed for a violation to be issued under Section 46-92 to a distributor that is observed littering the commercial handbills; 2) Establishes an alternative fine/penalty schedule for commercial handbills that result in litter, to include a base fine and a "per handbill" fine; 3) Defines a benefactor, handbill, commercial handbill, litter and business for purposes of this provision of the code; 4) Establishes provisions for enforcement of the ordinance, and due process for violators; 5) Addresses the issue of mitigation of fines by the Special Master for first offenders. As you may recall, at first reading, commissioners requested that the administration recommend provisions for some level of mitigation of fines for first time offenders. As proposed in first reading, Section 46-92 (f) specifically provides that "The special master shall not have discretion to alter these prescribed penalties." It has been and continues to be the administrations position that the inconsistent application of fines by the Special Master for violators of the current codes relating to handbills (placement of handbills on motor vehicles or placement of handbills on public property) has not served as a disincentive for businesses to discontinue the practice, or to better monitor their distributors. A review of fines levied versus fines imposed at Special Master reflects inconsistent mitigation, often resulting in fines that amount to 10% of the total fines levied, or fines that don't appear to be consistent with the volume of illegally littered handbills. Notwithstanding, in response to concerns expressed at the commission meeting relating to first time offenders, the proposed ordinance has been amended to provide discretion on the part of the Special Master with regards to the mitigation of the per handbill fee for first offenders. As currently proposed, Section 46-92 (f) 1 provides that if "the offense is the first offense, $100.00 fine plus up to $50.00 per handbill." The Special Master may not mitigate the base fine of $100.00, but can mitigate the per handbill fee by levying an amount up to $50.00. For second and subsequent violations, the per handbill fee is set at $50.00 with no opportunity for mitigation. The proposed ordinance was presented and distributed to the NiteLife Task Force (NITE) on March 2, 2007, and April 20, 2007. The NITE Task Force had requested that the administration review the current Promoter Ordinance to determine its applicability when violations for commercial handbills occur. The administration is working with the City Attorney's office to review what, if any, amendments to the promoter ordinance may be required. The Administration recommends approval of the Ordinance on second reading. FISCAL IMPACT The proposed ordinance has no fiscal impact, as code compliance staff currently monitors the city for litter. JMG/HMF/VPG T:WGENDA\2007\jun0607\Regular\handbill ord 2nd rdg memo.doc CITY OF MIAMI BEACH s NOTICE OF PUBLIC HEARING NOTICE IS HEREBY given that a second reading and public hearings will be held by the Mayor anC City Commission of the City of Miami Beach, av Florida, in the Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach, Floritla, on Wednesday, June 6, 2007, to Q consider the following: , g 10:15 a.m. );. An Ordinance Amending Chapter 86 Of The Miami Beach City Code Entitled "Sales", By Amending Article III Entitled "Non-Profit Vending And Deadl ne For Submittal Of Applilcatios" ToG'AdminlstratveeRules"And ProvidingsThat The C ty Ma9agertOr H86Desig ee Shall Deve opGAnd Impose Administrative Rules. ~~ quiries may be directed to the Finance Department at (305) 673-7466. 10:16 a.m. n Ordinance Amending Section 46-92, "Throwing Litter In Public Places; Possession Of Glass Or Metat Containers On Beaches Unlawful; "t Sweeping Or Throwing Litter In Gutters; Garbage Containers Required For lake-Out Restaurants; Civil Fines For Violation," Of Division 1, L tter rig (Wit QComlmerlciial Handbil0ls; CBy Pt ovidfingf ForeSe ZI urea Of Handb~ s Fort~UseyAsr Evidence At (Prose ution;aBy Provid ngtlFor Removall0f Handbills At Violator's Expense; By Amending Definitions Sections; By Amending Provisions Providing For FinesMd Penalties ForViofations. Inquiries may be directed to the Neighborhood Services Department at (305) 604-2489. 10:20 a.m. An Ordinance Amending Miami Beach City Code Chapter 2, Article VII, Division 2 Thereof Entitled "Officers, Employees And Agency Members," Section 2-459 "Certain Appearances Prohibited" By Including "Employee" And "Of Counsel" Relationships Within The Definition Of The Term "Associate". -- Inquiries may be directed to the City Attorney's Office at (305) 673-7470. ~ 10:25 a.m. ° An Ordinance Amending Chapter 82 Of The City Code, Entitled "Public Pro e And Establishments Of Monuments And Memorials", By Amending Section 82 501, Entt ed tlGenerallly"", Tlo Provide T at The Cdy Ownied Guttural ~ Facility Currently Named The "Jackie Gleason Theater Of The Pertorming Arts," Located At 1700 Washington Avenue, Miami Beach, Florida, Shall 2 Be Exempt kom The Provisions Of Said Article VI. c Inquiries may be directed to the Ciry Manager's Office at (305) 673-7010. INTERESTED PARTIES are invfted to appear at this meeting, or be represented by an agent, or to express their views in writing addressed to the City Commission, Go the City Clerk, 1700 Convention Center Drive, 1st Floor, City HaII, Miami Beach, Florida 33139. Copies of these ordinances a are available for public inspection during normal business hours in the City Clerk's Office, 1700 Convention Center Drive, 1st Fioar, Ciry Hall, and ? Miami Beach, Florida 33139. This meeting maybe continued and under such circumstances additional legal notice would not be provided. ~, ~ Robert E. Percher, City Clerk ~ City of Miami Beach an matter Pursuant ~wnsidered at0iis meeting or its hearing, such p~son us ensure that a erbatim ecored of the paeeeed rigs Is made, wh h arece d~1~mluA~ m te~sy~ spy end ~ evdence upon wh~h the appeal is to be basetl. This notice does not constltute consent by the Ctty for the introduction or admission of otherwise inadmissible or Irrelevarrt evidence, nor does it authorize challenges or appeals not otherwise allowed by law. To request this material in accessible format, sign language interpreters, iMormation on access for persons with disabilities, and/or any accommodation to review any 1 ~ f also wlll77 t (FI da R~elaY~$arvirceej procceding, please contact (30~ 664-2489 (voice), (305) 673-727 BITTY) flue days In advance to initiate your request TTy ?~ .% L:. z ka~ r F ~- ~ ~ ~p~ ~.