2008-3610 OrdinanceORDINANCE NO. 2008-3610
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING
CHAPTER 46 OF THE MIAMI BEACH CITY CODE ENTITLED
"ENVIRONMENT," BY AMENDING ARTICLE IV ENTITLED
"NOISE" BY AMENDING SECTION 46-157 ENTITLED
"EXEMPTIONS" BY AMENDING THE EXEMPTIONS IN
SUBSECTION (4) RELATIVE TO ACTIVITIES ON OR IN
PUBLICLY OWNED PROPERTIES AND FACILITIES AND
CLARIFYING THE EXEMPTION IN SUBSECTION (11)
REGARDING EASTWARD OCEANFRONT NOISE; BY
AMENDING SECTION 46-158 ENTITLED "ENFORCEMENT BY
CODE INSPECTORS; NOTICE OF VIOLATION; WARNINGS"
BY AMENDING THE PROVISIONS REGARDING WARNINGS IN
ZONING DISTRICTS OTHER THAN SINGLE FAMILY ZONING
DISTRICTS AND THE RESPONSIBILITY TO PROVIDE THE
CURRENT ADDRESSES OF PREMISES OWNERS AND
BUSINESS TAX RECEIPT HOLDERS; BY AMENDING SECTION
46-159 ENTITLED "FINES AND PENALTIES FOR VIOLATION;
APPEALS; ALTERNATE MEANS OF ENFORCEMENT" BY
AMENDING THE PERIOD OF TIME FOR THE RESETTING OF
FINES AND PENALTIES FOR VIOLATIONS FROM 18 TO 12
MONTHS; BY CREATING SECTION 46-162 ENTITLED
"ADMINISTRATIVE POLICIES AND PROCEDURES" TO
AUTHORIZE THE CITY MANAGER TO ESTABLISH SUCH
POLICIES AND PROCEDURES IN ACCORDANCE WITH
ARTICLE IV AND ADMINISTRATIVE GUIDELINES APPROVED
BY RESOLUTION OF THE CITY COMMISSION; BY
SUBSTITUTING THE NEW TERMINOLOGY OF "BUSINESS
TAX RECEIPTS" FOR "OCCUPATION LICENSES" WHERE
APPROPRIATE IN THE AMENDMENTS TO ARTICLE IV, AND
PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, City Ordinance 2006-3511, enacted March 8, 2006 and as amended by
Ordinances 2006-3516 (enacted June 7, 2006) and 2006-3520 (enacted July 12, 2006)
(collectively, the "Noise Ordinance"), has been in effect for more than two years; and
WHEREAS, the City Manager's report on noise enforcement for the period March 19,
2006 to September 29, 2007 in Letter to Commission No. LTC #031-2008, dated January 30,
2008, raised concerns regarding the implementation and enforcement of the Noise Ordinance as
currently codified; and
WHEREAS, case studies of Noise Ordinance complaints were reviewed by City
Officials, representatives of the business community, and members of the public at three public
meetings of the City's Commission Land Use and Development Committee ("Land Use
Committee") held April 14, 2008, May 12, 2008, and June 9, 2008; and
WHEREAS, a supplemental report to the City Commission by the City Manager, dated
April 14, 2008, titled "Analysis of Noise Ordinance Implementation," identified the need for
more effectively addressing noise disturbances experienced by residents generated by radios,
televisions, musical instruments, phonographs, and other machines or devices which produce or
reproduce sound; and
WHEREAS, a further supplemental report to the City Commission Land Use and
Development Committee from the City Manager, dated May 12, 2008, titled "Follow-up -Noise
Ordinance Implementation," which was presented at the May 12, 2008 Land Use Committee,
provided additional information on enforcement during March and April, 2008, the City's efforts
to provide tracking numbers to complainants, and recommendations and options on proposed
amendments to the Noise Ordinance; and
WHEREAS, the Land Use Committee at its May 12, 2008 meeting publicly reviewed
the City Manager's May 12, 2008 Supplemental Report and received input from interested
members of the business and residential communities on the substance of the report and on the
various Noise Ordinance amendment options presented in that report; and
WHEREAS, the Land Use Committee considered various alternatives to address noise
concerns at its May 12, 2008 meeting which were considered by the City Commission on May
14, 2008 and on May 14, 2008, the City Commission passed a proposed ordinance on first
reading, but again referred the issue to the Land Use Committee for further discussion and
recommendations; and
WHEREAS, due to various amendments made to the proposed ordinance title and its
content between the first reading by the City Commission and further consideration of the
proposed ordinance by the Land Use Committee on June 9, 2008, it was recommended and
agreed that the proposed ordinance should return to the City Commission on June 25, 2008 for a
first reading; and
WHEREAS, the provisions of this Ordinance, as further amended pursuant to
community input and further consideration by the City's Land Use Committee, .will more
effectively address the City's substantial interest in protecting its citizens from unwelcome noise
by providing, inter alia, modified warning and penalty provisions; and
WHEREAS, the adoption of the provisions herein are deemed necessary to protect the
public health, safety, and welfare, and to address the actual, material, and on-going disruptions
caused by amplified sound in the City by persons or entities violating the Noise Ordinance; and
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WHEREAS, other amendments to the Noise Ordinance are also required to facilitate
events held at various City-owned properties in order to accommodate public demand for
cultural programming, to facilitate the enforcement of the Noise Ordinance by providing for
administrative guidelines, to substitute the new terminology of "business tax receipt" for
"occupational license," to require business tax receipt holders to provide current address
information relative to their business premises, to clarify the exemption regarding eastward
oceanfront noise, and by reducing the number of written warnings to be given in zoning districts
other than single family zoning districts, as well as reducing the period of time for the resetting
of violations from 18 months to 12 months.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That Section 46-157 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby amended as follows:
CHAPTER 46
ENVIRONMENT
ARTICLE IV. NOISE
Sec. 46-157. Exemptions.
The following uses and activities shall not constitute unnecessary and excessive noises
prohibited in section 46-152:
(1) Cries for emergency assistance and warning calls.
(2) Radios, sirens, horns and bells and other sounds created by police, fire and other
emergency response vehicles.
(3) Parades, fireworks displays, and other activities for which a permit has been
obtained from the city, pursuant to section 46-156, within such hours and in accordance
with such restrictions as may be imposed as conditions for the issuance of the permit.
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(4) Authorized z4activities on or in municipal or publicly owned
properties and facilities,~e~--susin~t~4*~°° '' '~°° -a~a~od~y-tie-his
*~ --~*-- ° ^ *~ ~ ~ ~ ^~~'*~°~ *'~oir-ate : *~• except where such publicly
owned properties or facilities are under private operation or use, unless the city manager
or the city manager's designee has specifically authorized an exemption from this
section which exemption will be subject to specific requirements consistent with the
administrative guidelines approved by separate resolution of the city commission.
(5) Fire alarms and burglar alarms, bells and chimes of churches or other religious
institutions; however, false burglary alarms shall be subject to enforcement procedures
and penalties as set forth in article II of chapter 42.
(6) Locomotives and other railroad equipment and aircraft, to the extent that city
regulation is preempted by federal law.
(7) Noises resulting from emergency work.
(8) Any noise resulting from activities of a temporary duration permitted pursuant to
section 46-156.
(9) Noise generated by motor vehicles as defined in F.S. § 320.01 when operated and
equipped in accordance with requirements set forth in the Florida Statutes.
(10) Noise resulting from the operation of vessels when operated in compliance with
the decibel limitations in F.S. § 327.65. However, noise exceeding the limitations set
forth in F.S. § 327.65 shall be subject to enforcement and penalties as set forth in F.S. ch.
327.
(11) Live or amplified sound projecting east of the east property line from each
property from 1st Street to 5th Street on the east side of Ocean Drive, from 5th Street to
15th Street on the west side of Ocean Drive, from 15th Street to 73rd Street on the east
side of Collins Avenue, from 73rd to 75th Streets on the west side of Ocean Terrace, and
from 76th to 87th Streets on the east side of Collins Avenue. This exemption shall only
apply to noise that is received in that area located east of the violating property and
between the north and south projections of its property boundaries and where there is no
part of any residential building or structure on any property to the east of the violating
property unless the building or structure to the east is owned by the violator. Any noise
received by a property that is outside of this area shall subject the violator to the
enforcement provisions of this article.
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SECTION 2. That Section 46-158 of Article IV of Chapter 46 of the Miami Beach City Code is
hereby amended as follows:
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 thc~utor 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 ^,.,.,,r.,*~^r~' '~~°~~° 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 he they 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.
(2) Written warnings. A code inspector shall first issue a written warning
to immediately cease the violation prior to issuing a notice of violation-
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b--~ unless one written warning has been issued in the 12 months
preceding the date of violation ~~a +'~° ~ ^'~+~^~ ^ "'°
~~~-~ '^~~~^~ a;°~, except that violators in zoning districts other
than single famil~ning districts that have received less than
three written warnings in the 12 months prior to July 26, 2008 shall
be entitled to one additional written warning for 12 months after
their last written warning. Violators in zoning districts other than
single family zoning districts that have received three written
warnings in the 12 months prior to July 26, 2008 shall receive a
notice of violation for the next violation that occurs within 12
months of the first of their three written warnings.
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 non-permitted
nonresidential use in a residential zoning district.
(c) Responsibility to provide current address. The holder of the ess~ ~ '
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.
SECTION 3. That Section 46-159 of Article IV of Chapter 46 of the Miami Beach City Code
is hereby amended as follows:
Sec. 46-159. Fines and penalties for violation; appeals; alternate means of enforcement.
(a) Fines and penalties. The following civil fines and penalties shall be imposed for violations
of this ~ article:
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(1) If the offense is the first offense, $250.00 fine.
(2) If the offense is the second offense within the preceding ~8 12 months, $1,000.00
fine.
(3) If the offense is the third offense within the preceding ~ 8 12 months, $2,000.00
fine.
(4) If the offense is the fourth offense within the preceding -1-8~ 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 $3,000.00 fine.
(5) If the offense is the fifth offense within the preceding ~8 12 months, two weekend
(noon Friday through noon Monday) a 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 4S I2 months, it
shall be considered a habitual offender offense with penalties and fines imposed pursuant
to subsection 46-159(h).
(7) The first time an offense is committed while the violator was also engaged in an
illegal commercial or non-permitted, nonresidential use in a residential zoning district,
$1,000.00, 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 non-permitted, 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. 'seise 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 ~8 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 ~S 12 month period shall not be waived or altered.
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(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 (10) days of service of the notice of violation, and shall be accompanied
by a $75.00 appeal fee. 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 to 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 section 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
non-transmission 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 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 esst~eisense 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.
(f) The city may institute proceedings in a court of competent jurisdiction to compel payment of
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 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, 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
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on the lien. All costs and attorneys 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 business tax receipt and/or certificate of use or seek
injunctive relief.
(h) In cases of habitual 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 violations or
offenses by the city manager, ~~ ~~~*~^r~' '~^°^°° 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 se
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 condition 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 violator 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.
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SECTION 4. That Section 46-162 of Article IV of Chapter 46 of the Miami Beach City Code
is hereby created as follows:
Sec. 46-162. Administrative policies and procedures. Secs. 4~-l~ 46-163 - 46.200 Reserved.
The city manager or the city manager's designee, is authorized to establish policies and
procedures consistent with this Article IV and the Administrative Guidelines approved from time
to time by separate resolution of the city commission.
SECTION 5. 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 may be renumbered or
re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
SECTION 6. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 7. SEVERABILITY.
If 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 portions of this ordinance.
SECTION 8. EFFECTIVE DATE.
This Ordinance shall take effect the 26th day of July , 2008.
PASSED and ADOPTED this 16th day of July , 2008.
ATTEST:
~/ ~f ,~ ^~~ ~ ~ MAY R Matti Herrera Bower
CITY CLERK ROBERT PARCHER
Words added are underlined.
Words deleted have been st-~isl~r
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COMMISSION ITEM SUMMARY
Condensed Title:
An Ordinance Amending Chapter 46 Of The Miami Beach City Code Entitled "Environment," By Amending Article IV Entitled "Noise" By
Amending Section 46-157 Entitled "Exemptions" By Amending The Exemptions In Subsection (4) Relative To Activities On Or In Publicly
Owned Properties And Facilities And Clarifying The Exemption In Subsection (11) Regarding Eastward Oceanfront Noise; By Amending
Section 46-158 Entitled "Enforcement By Code Inspectors; Notice Of Violation; Wamings" By Amending The Provisions Regarding
Wamings In Zoning Districts Other Than Single Family Zoning Districts And The Responsibility To Provide The Current Addresses Of
Premises Owners And Business Tax Receipt Holders; By Amending Section 46-159 Entitled "Fines And Penalties For Violation; Appeals;
Alternate Means Of Enforcement" By Amending The Period Of Time For The Resetting Of Fines And Penalties For Violations From 18 To
12 Months; By Creating Section 46-162 Entitled "Administrative Policies And Procedures" To Authorize The City Manager To Establish
Such Policies And Procedures In Accordance With Article IV And Administrative Guidelines Approved By Resolution Of The City
Commission; And Providing For Repealer, Severability, Codification, And An Effective Date.
Ke Intended Outcome Su orted:
Increase resident satisfaction with the level of code enforcement
Supporting Data (Surveys, Environmental Scan, etc.): In the 2007 Community Satisfaction Survey, 26% of the residents citywide rated
the amount of noise in their neighborhoods as too much or much too much.
Issue:
Shall the Mayor and City Commission amend Chapter 46, Article IV, Noise to provide for a reduction in the number of available wamings
for commercial entities from three to one in a 12-month period; to adjust the reset of the fine schedule from 18 months to 12 months; to
provide clarifying language regarding who is responsible for providing updated contact information forthe ownerand occupational license
holder of a premise; to provide forthe use of administrative guidelines; and to provide an exemption, under certain conditions, for private
operation and use of a municipal facility?
Item Summa /Recommendation:
SECOND READING
While recent adjustments to the implementation and enforcement of the noise ordinance have resulted in an increased number of
identified complainants, an increased number of verbal wamings, and higher ratio of cases opened resulting in valid dispositions, it has
been recommended that amendments to the noise ordinance be considered. Four amendments are proposed that are intended to: 1)
provide uniformity in the provision of wamings to violators by reducing the number of wamings for commercial violators from three to one;
2) reduce the period for fines to reset from 18 months to 12 months; 3) address the provision of exemptions under certain conditions for
private users of municipal facilities, such as the North Beach Band Shell; and 4) provide clarifying language on who is responsible for
ensuring that contact information is updated on an annual basis forthe occupational license holderand ownerof a premise. As requested,
a resolution to address the administrative guidelines, including the requirement for holding responsible all parties with operational control
of a premise, has been developed and will be presented as a resolution for consideration by the Commission at the second reading public
hearing of this ordinance. In light of noticing issues relating to the first reading on May 14, 2008, the proposed amendment to the
ordinance is placed on this commission agenda as first reading, and incorporates the changes approved by the Land Use and
Development Committee on June 9~h. Approve this ordinance on second reading.
-dvisory Board Recommendation:
A report on the implementation of the Noise Ordinance was discussed at the April 14, 2008 Land Use and Development Committee. At the
direction of the Committee, afollow-up report was discussed on May 12, 2008, and proposed amendments to the ordinance were
approved and forwarded for commission consideration. On May 14, 2008, the Commission approved the proposed amendment on first
reading, including a daytime rebuttable presumption for plainly audible noise. However, the ordinance was referred to the LUDC for review
of the administrative guidelines. At the June 9, 2008 LUDC, the Committee voted to delete the proposed daytime rebuttable presumption,
and made further adjustments to the administrative guidelines. The ordinance was approved on first reading on June 25, 2008.
Financial Information:
Source of Funds: Amount Account
1 N/A
OBPI Total
Financial Impact Summary: The proposed amendment provides for a reduction in the number of warnings prior to the
issuance of a violation with a fine. The otential additional fine revenues are unknown.
Ci Clerk's Office Le islative Trackin
Hilda Fernandez
~ Department Director ~ /Assistant City Manager ~ City Manager ~
~, /~ ~ ~ ~ /~ I ~ ~~~ ~ AGENDA ITEM R S ~
~~ I ~/ t I 1 V ~ QATE 7~ ~ ~0 ~O
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, vvww.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: July 16, 2008 SECOND READING
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 46 OF THE MIAMI BEACH
CITY CODE ENTITLED "ENVIRONMENT," BY AMENDING ARTICLE IV
ENTITLED "NOISE" BY AMENDING SECTION 46-157 ENTITLED
"EXEMPTIONS" BY AMENDING THE EXEMPTIONS IN SUBSECTION (4)
RELATIVE TO ACTIVITIES ON OR IN PUBLICLY OWNED PROPERTIES AND
FACILITIES AND CLARIFYING THE EXEMPTION IN SUBSECTION (11)
REGARDING EASTWARD OCEANFRONT NOISE; BY AMENDING SECTION
46-158 ENTITLED "ENFORCEMENT BY CODE INSPECTORS; NOTICE OF
VIOLATION; WARNINGS" BY AMENDING THE PROVISIONS REGARDING
WARNINGS IN ZONING DISTRICTS OTHER THAN SINGLE FAMILY ZONING
DISTRICTS AND THE RESPONSIBILITY TO PROVIDE THE CURRENT
ADDRESSES OF PREMISES OWNERS AND BUSINESS TAX RECEIPT
HOLDERS; BY AMENDING SECTION 46-159 ENTITLED "FINES AND
PENALTIES FOR VIOLATION; APPEALS; ALTERNATE MEANS OF
ENFORCEMENT" BY AMENDING THE PERIOD OF TIME FOR THE
RESETTING OF FINES AND PENALTIES FOR VIOLATIONS FROM 18 TO 12
MONTHS; BY CREATING SECTION 46-162 ENTITLED "ADMINISTRATIVE
POLICIES AND PROCEDURES" TO AUTHORIZE THE CITY MANAGER TO
ESTABLISH SUCH POLICIES AND PROCEDURES IN ACCORDANCE WITH
ARTICLE IV AND ADMINISTRATIVE GUIDELINES APPROVED BY
RESOLUTION OF THE CITY COMMISSION; AND PROVIDING FOR
REPEALER, SEVERABILffY, CODIFICATION, AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
Adopt the ordinance.
BACKGROUND
The City approved a new Noise Ordinance on March 8, 2006 (Ord. No. 2006-3511) following several
years of discussion and input from stakeholders representing residents, hotels and
nightclubs/restaurants. The ordinance adopted by reference Section 21-28 of the County Code and
applied the County's standards for noise violation. The County's standard threshold for noise, as well as
the City's ability to use the County's standards for enforcement, were both upheld by the United States
Court of Appeals, Eleventh Circuit. In addition to incorporating the standards for noise in Sec. 21-28 of
the County Code, the City's noise ordinance also, among other things, established exemptions and
developed a fine and penalty schedule for violators. The Noise Ordinance was subsequently amended
by ordinance 2006-3516 (June 7, 2006) and by ordinance 2006-3520 (July 12, 2006) to address
construction noise and temporary permits, and to reduce the number of written warnings for in a single-
Commission Memorandum
Amendment to Noise Ordinance - 2"d Reading
Page 2 of 3
family residential district from three to one in a 12-month period.
In January, 2008, a report was provided to the Commission on the first 18-months of implementation of
the Noise Ordinance. At the April 14, 2008 Land Use and Development Committee (LUDC) ,the
committee was provided a comprehensive report relating to the analysis conducted by staff of all of the
invalid noise cases closed during the first 18-month implementation of the City's Noise ordinance. This
analysis was requested in response to concerns raised regarding the rate of noise cases closed as
"non-valid" during that period. Testimony from residents and businesses was provided relating to
suggested amendments to the noise ordinance, including a recommendation to reduce the number of
written warnings issued to commercial entities from three to one, and to apply the 100' plainly rebuttable
presumption currently in place from 11 pm to lam, during the entire day. Additionally, residents also
requested clarification language to ensure that all responsible parties are issued violations.
The administration described specific improvements made to the noise enforcement process since
March 15t, including new protocols for Police dispatchers, the capturing of complainant information, and
updated training for Code staff regarding report writing and the use of the 100' standard after 11 pm for
all complaints. The Committee requested additional information, as well as recommendations and
options for the Committee's consideration on proposed amendments to the Noise ordinance.
Additionally, staff was requested to look at options to address noise resulting from the use of the North
Beach Bandshell.
At the May 12, 2008 LUDC meeting, the Committee members were presented with the requested
reports. Additionally, the committee considered the specific items that had been presented by several
residents as possible amendments to the noise ordinance. Comments and testimony were provided by
residents and representatives of local businesses on this issue. Following public comment, the
committee recommended several amendments to be forwarded to the full Commission for its
consideration. These amendments were considered at the May 14, 2008 Commission meeting, as a
first reading item and included a reduction in the number of written warnings from three to one for
commercial violators; the inclusion of a rebuttable presumption that a noise violation has occurred if the
noise is plainly audible at 100', at any other time other than 11 pm to lam, and that noise disturbs the
peace, quiet and comfort of a neighboring inhabitant; clarification of who is responsible for ensuring
updated contact information for occupational license holders and owners; and the provision of an
exemption of the noise ordinance for the private operation or use of municipal facilities, only as
authorized, under certain circumstances and as may be subject to conditions.
The Commission approved the item on first reading, with an additional amendment that the fine/penalty
schedule would reset at twelve months instead of the current 18 months. It was additionally requested
that pending issues relating to Administrative Guidelines for the Noise Ordinance, language to address
the issuance of warnings/violations to all responsible parties, possible consideration for new
businesses, and who would have standing to report a Noise ordinance violation, be referred to the Land
Use and Development Committee meeting for further discussion and conclusion prior to the item
returning for second reading.
Since the May 14'h Commission Meeting and prior to the Land Use and Development Committee
meeting (LUDC) of June 9, 2008, the Administration had the opportunity to coordinate meetings with
representatives of hotel, nightclub and resident interests, as well as ourCity Attorney's office, for the
purpose of reaching consensus on proposed amendments to the Noise ordinance. The meetings were
productive, with stakeholders considering options before reaching agreement on proposed language,
especially language relating to the daytime plainly audible standard.
The proposed, revised amendments to the noise ordinance were presented to the LUDC meeting on
June 9, 2008, and included the addition of a plainly audible [rebuttable presumption] standard for the
Commission Memorandum
Amendment to Noise Ordinance - 2"d Reading
Page 3 of 3
daytime, that would only apply when thereis an identified neighboring inhabitant whose peace, quite
and comfort is disturbed, and who permits a code compliance officer to visit the location from which the
complaint alleges the violation can be observed; and the development and incorporation by reference
of administrative guidelines that detail, among other things, exemptions for private use of public
facilities, reporting requirements and who has responsibility for compliance. The committee reviewed
the administrative guidelines and provided suggested changes.
Residents, as well as representatives of local businesses, attended the LUDC meeting on June 9,
2008. Following much discussion, the committee approved a motion recommending the proposed,
revised amendments, with the exception of the 100' plainly audible rebuttable presumption during the
daytime hours. Committee members were advised that the ordinance would be placed as a first reading
item to ensure there were not issues relating to notice. The item was considered and approved by the
City Commission at the June 25, 2008 meeting.
As recommended, a resolution approving the Administrative Guidelines for the implementation of the
noise ordinance has been placed on the Commission Agenda for consideration.
FISCAL IMPACT
The proposed amendments provide no significant fiscal impact, as the enforcement of the noise
ordinance is currently handled by the Code Compliance Division. However, the reduction of the number
of available written warnings may trigger violations that carry fines much sooner.
CONCLUSION
The proposed amendments to the Noise Ordinance address issues that have been raised relating to
the implementation of this provision of the code. The proposed amendments are intended to provide
uniformity in the provision of warnings to violators, and address other issues of concern to residents
and businesses. As requested, a resolution to approve the administrative guidelines that will be
incorporated by reference in this ordinance, including the requirement for holding responsible all parties
with operational control of a premise, has been placed on the Commission Agenda for consideration.
JMG\hmf
T:WGENDA\2008Wu1y 161Regular\Noise Ordinance Amendment 2nd rdg Memo.doc
- CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARINGS
16 NOTICE IS HEREBY given that a second reading and public hearings will be held by the Mayor and City Commission of the CRy of Miami
0o Beach, Florida, in the Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida, on Wednesday,
°o July 16 2008, to consider the following:
M 11:00 a.m.
r ! An Ordinance Amending Chapter 106 Of The City Code Entitled "Traffic And Vehicles"; By Amending Article I, Entftled "In General," By Amending
~ Section 106-1, Entitled "Definitions," By Amending The Definitions Of Bicycle And Bicycle Path; By Amending Section 106-3, Entitled "Vehicles
Prohibtted On Portion Of Lincoln Road; Exceptions" By Prohibiting Pedicabs Op Portions Of Lincoln Road And On Ocean Drive; By Creating
~- Article VII, To Be Entitled "Pedicabs," Of Chapter 106, Entitled "Traffic And Vehicles," Of The Miami Beach City Code To Provide Regulations For
N ` Pedicabs By Creating Sections 106-262 Through 106-267 To Provide Definrtions; Business Tax Receipt Requirements; Regulations Regarding
~ The Operation Of Pedicabs; Enforcement Provisions; And Fines And Penalties.
_ ' Inquiries may be directed to the City Manager's Office at (305) 673-7010.
5:05 p:m.
o ' An Ordinance Amending Chapter 46 OiThe Miami Beach City Code Entitled "Environment," By Amending Article IV Entitled "Noise" By Amending.
a Section 46-157 Entitled "Exemptions" By Amending The Exemptions In Subsection (4) Relative To Activtties On Or In Publicly Owned Properties
~ And Facilities And Clarifying The Exemption In Subsection (11) Regarding Eastward Oceanftont Noise; By Amending Section 46-158 Entitled
i ' "Enforcement By Code Inspectors; Notice Of Volation; Warnings" By Amending The Provisions Regarding Warnings In Zoning Districts Other
~ Than Single Family Zoning Districts And The Responsibility To Provide The Current Addresses Of Premises Owners And Business Tax Receipt
a Holders; By Amending Section 46-159 Entitled "Fines And Penalties For Violation; Appeals; Alternate Means Of Enforcement" By Amending
f ' The Period Of Time For The Resetting Of Fines And Penalties For Violations Fwm 18 To 12 Months; By Creating Section 46-162 Entitled
"' "Administrative Policies And Procedures" To Authorize The City Manager To Establish Such Policies And Procedures In Accordance Wtth Article
x
~ IV And Administrative Guidelines Approved By Resolution Of The Ctty Commission; By Substituting The New Terminology Of "Business Tax
- ', Receipts" For "Occupation Licenses" Where Appropriate In The Amendments To Article IV.
s Inquiries may be directed to City Manager's Office at (305) 673-7010.
L INTERESTED PARTIES are invRed 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 l st Floor, City HaII, Miami Beach, Florida 33139. Copies of these ordinances '
? are available for public inspection during normal business hours in the City Clerk's Office, 1700 Convention Center Drive, l st Floor, City Nall, and f
o Miami Beach, Florida 33139. This meeting may. be continued and under such circumstances additional legal notice would not be provided.
Robert E. Parcher, City Clerk c
~ City of Miami Beach ~;
_ Pursuant to Section 286.0105, Fla. Stat., the Ctty hereby advises the public that: 'rf a person decides to appeal any decision made by the
~~ ! City Commission with respect to any matter considered at its meeting or its hearing, such person must ensure that a verbatim record of
~? ' the proceetlings is made, which recgrdincludes-the testimony and evidence upon which the appeal is to be based. This notice does not E ~
~ constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence; nor does it authorize challenges
or appeals not otherwise allowed bylaw.
m ' To request this material in accessible format, sign language interpreters, information on access for persons with disabilities, and/or
~ any .accommodation to review any document or participate in any city-sponsored proceeding, please contact (305) 604-2489 (voice),
', (305)673-7218(TTY) five days in advance to initiate your request. TTY users may also call 711 (Florida Relay Service).
r
m MIAMI BEACH ~`