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2008-26922 ResoRESOLUTION NO. zoos-26922 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE ADMINISTRATIVE GUIDELINES FOR THE ADMINISTRATION OF ARTICLE IV, ENTITLED "NOISE," OF CHAPTER 46, ENTITLED "ENVIRONMENT," OF THE MIAMI BEACH CITY CODE AS PROVIDED FOR IN SECTION 46-162 THEREIN. WHEREAS, a majority vote of the members of the Land Use and Development Committee at its May 12, 2008 meeting considered it desirable and proper that administrative guidelines for the administration of the Noise Ordinance be adopted by resolution of the City Commission; and WHEREAS, the adoption of guidelines for the administration of the Noise Ordinance would enhance the transparency, reliability, and accountability of noise ordinance enforcement practices; and WHEREAS, on July 16, 2008, the City Commission adopted Ordinance No. 2008-3610, amending Section 46-162 of Article IV, entitled "Noise' of Chapter 46 eniitled "Environment" of the Miami Beach City Code, to provide that the city manager may establish policies and procedures consistent with Administrative Guidelines approved by separate resolution of the City Commission, as may be amended from time to time by resolution of the City Commission; and WHEREAS, on July 16, 2008, the City Commission approved Resolution 2008-26857, adopting Administrative Guidelines for the administration of the Noise Ordinance; and WHEREAS, subsequent to the approval of the Administrative Guidelines, proposed amendments have been recommended to further clarify the responsibility for compliance by business tax receipt holders of apartment buildings and by condominium owners; and WHEREAS, the proposed amendments to the Administrative Guidelines, attached hereto as Exhibit A and incorporated herein by reference, set forth procedures that will improve the effectiveness and implementation of the City's Noise Ordinance. NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve and adopt the attached amendment to the Administrative Guidelines for the administration, implementation, and enforcement of Article IV, entitled "Noise," of Chapter 46, entitled "Environment," of the Miami Beach City Code. 2008-26922 PASSED and ADOPTED this Bch day of ocrober , 2008. ATTEST: CITY CLERK Robert Parcher AYOR Matti Herrera Bower APPROVED AS TO FORM & LANGUAGE & FOR EX CUTION ~ ~ ~ ~,, ~ f G' it Attorney Date I F:1atlo1TURNIRESOS1NOiseOrd - Resolution_Ch 46.doc COMMISSION ITEM SUMMARY Condensed Title: A Resolution Of The Mayor And City Commission Of The City Of Miami Beach Florida Amending Administrative Guidelines For The Administration Of Article IV Entitled "Noise of Chapter 46 Entitled `Environment," Of The Miami Beach City Code As Provided For in Section 46-162 Therein. 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 approve the attached amendment to the Administrative Guidelines for the im lementation of Article IV of Cha ter 46 Of The Miami Beach Cit Code Entitled "Environment?" These guidelines were distributed to stakeholders. and folk Administrative Guidelines were approved by the Commission been raised about the portion of the Administrative Guidelines holders that are owners of apartment buildings, The proposed of the responsibility for compliance for business tax receiE tenants. In addition, the on who shall be heldjointly and severally liable for noise gated and processed; and requirements for reporting. ouch discussion at Committee and Commission, the holders who are owners Advisory Board Recommendation: The administrative guidelines were considered and forwarded with a favorable recommendation by the Land Use and LDevelopment Committee meeting on September 22~ 2008. Financial Information: Source of Funds: Amount Account ~N/A OBPI Total Financial Impact Summary: City Clerk's Office Legislative Tracking: Hilda Fernandez j Si n-Offs: Department Director is ant Ci anager Ci Manager t E M I AM I B EAC H AGENDA ITENt ~~~ DATE ~~- ~`0 m MIAMIBEACH City of Miami Beach, 1700 Ccnvcroior Center Drive, Micmi iluccl•., florido 33139, www.micmiboachi~_gov COMMISSION MEMORANDUM io: Mayor Matti Herrera Bower and Members of the City Commission fROM: Jorge M. Gonzalez, City Manager DATE: October 7, 2008 U SU9JECT A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,FLORIDA AMENDING THE ADMINISTRATIVE GUIDELINES FOR THE ADMINISTRATION OF ARTICLE IV ENTITLED "NOISE" OF CHAPTER 46 ENTITLED "ENVIRONMENT," OF THE MIAMI BEACH CITY CODE AS PROVIDED FOR IN SECTION 46-162 THEREIN. Adopt the resolution. BACKGROUND On July 16, 2008, the Mayor and Commission approved administrative guidelines for the administration of the city's noise ordinance. The administrative guidelines are intended to provide general guidance in the implementation of the City's noise ordinance. The administrative guidelines include, among other things: exemptions under certain conditions for private users of municipal facilities: clarification on who shall be held jointly and severally liable for noise violations; how noise cases should be generally documented, investigated and processed; and requirements for reporting. The administrative guidelines must be amended by resolution. These guidelines were discussed at the June 9: 2008 Land Use and Development Committee meeting and the Neighborhoods/Community Affairs (NGA) Committee on July 2, 2008. The proposed administrative guidelines were approved at the July 16, 2008 Commission meeting and were immediately effective. Since the implementation of the administrative guidelines, staff has received complaints regarding the implications of the requirements for who should receive a violation when a violation is issued to apartment building tenants. In addition, staff has identified some proposed amendments to the responsibility for compliance when violations are issued in condominiums. As approved by the City Commission in July, the administrative guidelines may be amended by resolution. PROPOSED AMENDMENTS In response to comments received regarding the impact of the current interpretation of the administrative guidelines relating to the manner in which violations are issued to apartment building owners (the business tax receipt holder for an apartment building), the following amendments are proposed: • In determining whether an oral warning; written warning or notice of violation shall be issued to the business tax receipt holder of an apartment building, that determination shall be made for the business tax receipt holder separately for each tenant, and not cumulatively for the entire apartment building. • The business tax receipt holder shall receive only a courtesy notice for the first two valid violations that are the result of a complaint for one particular tenant (the tenants written warning and first violation). The business tax receipt holder will receive a written warning for any third valid Commission Memorandum Amendment to Administrative Guidelines -Noise Ordinance Page 2 of 3 complaint forthat same particular tenant (the tenant's second violation). The business tax receipt holder would receive a 1S1violation for a subsequent valid complaint (the tenant's third violation). Subsequent valid violations would track accordingly. • In cases of oral warnings to tenants, the business tax receipt holder receives a courtesy notice; this courtesy notice does not count as one of the three valid complaints. • The 1St violation to the business tax receipt holder cannot be issued without proof of receipt of at least one of the courtesy notices. In response to concerns that unruly tenants may intentionally cause violations to impact the business tax receipt holder, proposed amendments would also address those cases when the business tax receipt holder has initiated eviction proceedings. Specifically: • If at any time a business tax receipt holder has filed and is actively pursuing formal eviction proceedings in court against a tenant prior to the issuance of a violation to an owner, the business tax receipt holder may appeal that violation and request administrative review of that violation and be subject to the following options: The administration shall review the documents provided and; if they reflectthat a eviction proceeding has been filed with the court prior to that violation date, the administration may request that the special master hearing not be scheduled for at least 90 days. • If the eviction proceeding concludes within 90 days, and the eviction proceeding results in an eviction of the tenant, then the case for that violation may be closed as a nolle prosse against the business tax receipt holder, and a report provided to the Special Master closing the case (thus providing a public record); • No fine would be issued for that violation; but any fines issued to the tenant for the subject violation, or to the tenant or to the business tax receipt holder for any violation(s) issued prior to the filing of the formal eviction proceedings with the court would remain valid and due. • If the eviction proceeding does not conclude within 90 days, then the case shall be scheduled for Special Master; and the business tax receipt holder may request his available continuances. • Should the eviction proceeding not conclude within the time provided by all available continuances; then the case for that violation shall be heard and the fine issued for that violation if adjudication occurs. • Should the use of all available continuances exceed more than 180 days from the date of the issuance of that violation to the business tax receipt holder, the City shall request that the Special Master hear and adjudicate the case for that violation. • Should the use of all available continuances exceed more than 180 days from the date of the issuance of the 151 violation to the business tax receipt holder, the City shall request that the Special Master hear and adjudicate the case. • Any subsequent violations issued and appealed during any period of available continuances for a prior violation shall not be set for a Special Master hearing until all available continuances for the prior violation have been exhausted. If the eviction proceeding does not result in an eviction, then all subsequent violations will be scheduled for the Special Master to hear and adjudicate the case for those subsequent violations and all applicable fines shall apply. Additionally, in reviewing the Administrative Guidelines; as approved on July 16, 2008, we are proposing amendments to the language regarding responsibility for compliance for violations in condominiums, as the current language could be interpreted to require that violations be issued to unit owners when there is a management company present. Commission Memorandum Amendment to Administrative Guidelines -Noise Ordinance Page 3 of 3 CONCLUSION The proposed amendments to the administrative guidelines are intended to provide further clarification on who should be held responsible for failure to address noise violations. As approved on July 16, 2008: the Administrative Guidelines can be amended via resolution by the City Commission. JMG1hmf T^AGENDAl2008tOctober T~Regular'~Amend Noise Ord Admin Guidelines Memo.tloc EXHIBIT A ADMINISTRATIVE GUIDELINES Chapter 46 Environment Article IV Noise Section I. Purpose and Intent II. Entities Responsible for Enforcement III. Documenting Noise Cases IV. Processing Noise Complaints -Call Taking V. Assigning Noise Complaints VI. Investigating a Complaint VII. Data Entry and Processing VIII. Exemptions from Noise Ordinance -Activities on or in Municipal/Publicly Owned Facilities IX. Responsibility for Compliance X. Reporting XI. Technical Assistance XII. Revisions. Amendments or Deletions to Administrative Guidelines XIII. Application of Administrative Guidelines I. Purpose and Intent These guidelines are intended to facilitate the efficient, effective and consistent implementation of Article IV, Noise, of Chapter 46, Environment, of the City Code. II. Entities Responsible for Enforcement 1) The Code Compliance Division, or such other organizational unit of the City that is assigned that responsibility, shall be the entity primarily responsible for the enforcement of this Article of the City Code. 2) The Police Department shall enforce this Article of the City Code as may be requested or required. III. Documenting Noise Cases 1) The City of Miami Beach will establish a telephone number that is used for complainants to report a noise complaint. 2) Code compliance officers or police officers may initiate a noise case proactively on patrol subject to the provisions of Section 46-158(b). [Code compliance officers, police officers. and other employees or agents of the city authorized to investigate noise complaints are referred to in these Guidelines as °code inspectors", as defined in Section 46-151 J 3} The City will establish and maintain a database to capture information on all noise cases opened in the City. Such database shall i. Provide a tracking number for each noise case created. ii. Allow for the capturing of information relating to the noise case and the disposition of the case. IV. Processing Noise Complaints 1) At the time of the call, the call taker shall provide the complainant with a noise case tracking number to be applied to all records and reports of the complaint and all subsequent proceedings on the complaint. 2) At the time that a noise complains or referral is received, the call taker will make a reasonable effort to capture and enter all pertinent information into the database complaint entry screen, including but not limited to: i. Information about the location that is the source of the alleged noise violation (e.g. residential, commercial. building, intersection, etc.), and/or the address: if known. ii. The complainant's name, address. and telephone number. 3) The call taker shall request the complainant to allow access by the responding code inspector to the complainant's premises, or on or about the complainant's premises, or to accompany the code inspector to the location from which the complainant observed the alleged noise violation. i. The call taker shall advise the complainant that such information and access, may assist in the investigation of the complaint: but is not required for there to be an investigation of the noise complaint. ii. If a complainant declines to provide his /her name, address and/or other identifying data, the call taker shall request that the complainant provide, if appropriate, his or her building address. building name or other identifying information that will assist the code inspector in the investigation. 4) The call taker will enter the information obtained into the database and proceed to the next step in the complaint procedure. V. Assigning Noise Complaints 1} A Code Inspector shall be dispatched to the location that is the source of the complaint, and/or the address, if known. 2) Cases. conditions or complaints that may involve an immediate or serious health, life or safety issue /hazard, or when there is no Code Compliance Officer on-duty or available: are to be referred by the call taker or dispatcher to the Police Department. VI. Investigating a Complaint 1) In cases where there is an identified complainant who has authorized access to his or her premises, or agreed to accompany the code inspector to the place from which the complainant observed the alleged noise violation, the code inspector shall visit the complainant's premises: or accompany the complainant to the place from which the complainant observed the alleged noise violation, or contact the complainant in the manner requested by the complainant. 2) In cases where there is no identified complainant (e.g. anonymous), or the complainant does not wish to allow access to a code inspector to his or her premises, or accompany the code inspector to the location from which the complainant reported to have observed the alleged noise violation, the code inspector shall investigate the noise complaint from the exterior of the complainants location: if that information has been provided or is otherwise available. 3) The responding inspector or officer, administrator, call taker or dispatcher shall not, before investigating the complaint, advise or alert any person who is in any way connected with the premises identified as the source of the sound that is the subject of the complaint, that a complaint has been made and/or that a code inspector has been dispatched to investigate. 4) Should a code inspector observe a violation of the noise ordinance, the code inspector shall issue the applicable oral warning, written warning and/or notice of violation, or courtesy copies thereof, to each person or entity with responsibility for management of the premises and, if applicable, to each other person and business responsible for the violation as set forth in section 46-153 and 46-158(a) and Administrative Guidelines Section IX. 5) After complying with any applicable guidelines of this section, and whenever possible and as a courtesy to the violator to assist the violator in correcting noise-producing activities, the code inspector may also offer to accompany the violator to the street address from which the code inspector observed the violation. VII. Data Entrv and Processing 1} The code inspector shall enter all noise complaint information into the noise case database, including a narrative description of his/her investigation, containing the following information i. All appropriate identifying information, including without limitation, the date and time of the alleged violation; ii. the place of the alleged violation; iii. a description of the alleged violation; iv. to the extent reasonably obtainable at the time of the code inspector's investigation and the preparation of the code inspector's report, the names and addresses of all persons and entities identified in code Section 46-153 relative to the premises of the alleged violation; v. Whether or not there was a complainant and, if there was a complainant, whether or not the complainant requested to be contacted; was contacted by the code inspector: and the result of that contact; vi. An identification of each of the approximate distances from which the code inspector determined whether an oral warning, written warning, or notice of violation should be issued, with such identification of approximate distances to be made, if applicable. with specific reference to the 100-foot distance described in Chapter 21 County Code, Section 21-28(b), concerning certain violations which occur between the hours of 11:00 p.m. and 7:00 a.m.; and vii. A statement of the facts on which the Code inspector concluded that there was or was not a violation. viii. If the code inspector concludes that there was a violation, the names (and, if available, the addresses) of all persons and entities to whom the code inspector issued an oral warning, written warning, notice of violation, or courtesy notice. 2) In cases where a noise complaint has been investigated by a police officer, the police officer shall complete the appropriate reporting form and forward to the Code Compliance Division for processing. issuance of the appropriate violation. and entry into the noise case database. The reporting form shall include the noise case tracking number and a narrative description of the police officer's observation of the complaint. 3) If applicable, and to the extent practicable, the code inspector shall describe the amplification equipment and/or musical instrument(s) producing the sound. their location on the premises and the person(s) operating the devices. VIII. Exemptions from Noise Ordinance -Activities on or in Municipal/Publicly Owned Facilities. 1) As provided in section 46-157(4), activities on or in municipal/publicly owned facilities shall not constitute a violation of section 46-152 if an exemption has been approved by the City Manager or his designee under the following circumstances: i. The applicant has met all of the requirements for obtaining authorization for use of the facility through a facility rental agreement and/or such other rental agreement as may be authorized by the City. ii. The applicant has established that the activity cannot be performed in compliance with section 46-152 and, as such, has requested an exemption from section 46-152. iii. The applicant has not violated any conditions of an exemption that has been previously granted. 2) Such exemption shall be subject to conditions. as may be appropriate, which may include, but not be limited to the following, to respond to the specific nature, duration (e.g., hours, days) and intensity of the event: i. Notification to residents within 375 feet of the location; ii. Review by the appropriate Neighborhood Association and/or Business Association; iii. Review by the City of the type of sound amplification equipment to be used, the volume control and limitations, and the anticipated direction of the noise, and imposition of such conditions the City deems appropriate to mitigate noise impacts; 1. A limitation on what time of day the event may beginlend; 2. A limitation on what day of the week the event may be held; 3. A limitation on the total number of attendees; 4. The precise manner by which the noise ordinance may be exceeded (e.g. for only a limited duration during an event of longer duration, etc.); 3) Any conditions imposed shall be incorporated into the facility rental agreement and/or such other rental agreement for the municipal facility. 4) In the event there is a failure by the applicant to comply with any condition for an exemption. and a violation of section 46-152 occurs, the exemption shall be voided and the applicant shall be subject to the applicable enforcement; notice of violation; and fine and penalty for violation; as provided for in Article IV. 5) The City may revoke any exemption provided to an applicant for an event at a municipal/publicly owned facility, if it is deemed to be in the best interest of the City. tX. Responsibility for Gompuance Should a code inspector observe a violation of the noise ordinance, the code inspector shall issue the applicable oral warning, written warning, notice of violation, or courtesy copies thereof to each person and entity "owning or having responsibility for management' of the premises where the violation occurred in accordance with Sections 46-153 and 46-158(a). For purposes of issuing such warnings, notices of violation: and courtesy copies to persons and entities having responsibility for management of the premises where the violation occurred, responsibility for management shall include: but not be limited to: a. the apartment unit tenant or occupant causing the noise violation: and b. the apartment building's management company, if on-site: in which case a courtesy notice of the violation shall be provided to the business tax receipt holder for the apartment building; or, c. in the event there is no management company on-site: the business tax receipt holder If at any time a business tax receipt holder has filed and is actively pursuing formal eviction proceedings in court against a tenant prior to the issuance of a violation to an owner, the business tax receipt holder may_ appeal that violation and request administrative review of that violation and be subject to the following options: 1 The administration shall review the documents provided and if they reflect that a eviction proceeding has been filed with the court prior to that violation date the administration may request that the special master hearing not be scheduled for at 2) Commercial businesses: a. the business tax receipt holder for the business causing the noise violation; If the business tax receipt holder for the business causing the noise violation is not the owner of the building where the business is located, a courtesy notice of the violation shall be provided to the owner of the building where the business is located; and b. the management company for the building in which the business is located. if on-site. 3) Hotel and Condominium-hotels: a. the hotel's or condominium-hotel's management company if there is an on-site management company, in which case a courtesy notice of the violation shall be provided to the businsess tax receipt holder for the hotel or condominium-hotel unit; b. If there is no management company on-site, the business tax receipt holder for the hotel or condominium-hotel unit; c. If a second noise complaint is received for noise from a hotel room or condominium- hotel room that has been the subject of a noise complaint in the prior 24-hours, and the complaint is valid, then a violation will also be issued to the hotel room guest or condominium-hotel room guest, in addition to any additional violation issued to the hotel's or condominium-hotel's management company on-site: or business tax receipt holder for the hotel or condominium-hotel if there is no management company on-site. 4) Single Family homes: a. the owner of the single family home; and b. the tenant or occupant, if the tenant or occupant is not the owner of the single family home. the case. d Anv subsequent violations issued and appealed during anv period of available continuances for a prior violation shall not be set for a Special Master hearing until all available continuances for the prior violation have, been exhausted. If the eviction proceeding does not result in an eviction. then all subsequent violations will be scheduled for the Special Master to hear and adi~icficate the case for those subsequent violations and all applicahle fines stall app 5) Condominiums: a. The tenant or the occupant of the condominium unit if the tenant or the occupant is not t_h_e owner of the condominium unit in which case a courtesy notice of the violation shall be provided to the owner of the condominium unit; and b. The condominium's management company if on site in which case a courtesy notice of the violation shall be provided to the owner of the condominium unit: or c. the owner of the condominium unit; b.tt•,~ te.;a^t or Nae-eECE~pant~f-t1~EOnde+~+aiam-unit +f-tke-tenant er-essupant ;s a~-t"~ ewner of~he--se+~domi+aius~3-unit, in-wl~sh-case-a-seE+rtesy netise-ef-the vielatien-shatf be provided-te-tile owfle~ef~he c©nEleminium-t+nit; and b~#e conden~inium's management cempariy if c^ s:t~ Responsibility for reporting 1) The city manager shall file reports on the implementation of the noise ordinance with the city commission twenty (20) days following the end of each calendar quarter and annually on or before April 30 for the preceding year ending March 31, which annual report shall compare data from year to year, Such reports shall include, but not be limited to: i. Total number of noise complaint calls received ii. Total number of noise cases opened iii. Classification of noise cases (oral warning, written warning, valid, not valid) iv. Noise cases by type (commercial, residential) v. Time of day, day of week of call vi. Breakdown of calls with identified complainants and with anonymous complainants vii. Exemptions granted by date, type. location, and applicant viii. Information on disposition of cases by special master and by judicial appeal ix. Any additional information that the City Manager deems is of interest or relevance to the review of the implementation of the ordinance 2) The city manager shall, with each report, provide observations and recommendations relating to the implementation of the noise ordinance. XI. Revisions Amendments or Deletions to Administrative Guidelines Any revisions, amendments or deletions to these Administrative Guidelines shall be approved by a resolution of the City Commission. XII. Application of Administrative Guidelines: These guidelines are intended to facilitate the efficient, effective and consistent implementation of the noise ordinance. Failure to comply with the provisions set forth in these Administrative Guidelines shall not impair or invalidate any proceeding or prosecution under the noise ordinance.Rev ~ ~o os