16South Miami
GIi•NnecaCilp
CITY OF SOUTH MIAMI 1
OFFICE OF THE CITY MANAGER
INTER - OFFICE MEMORANDUM 2001
To: The Honorable Mayor Feliu and Members of the M Commission
Via: Roger M. Carlton, Acting City Manager —
From: Thomas J. Vageline, Director
Planning and Zoning Department
Date: January 26, 2010 . ITEM No.
Subject:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA AMENDING THE SOUTH MIAMI
CODE OF ORDINANCES BY REVISING CHAPTER 15, ARTICLE III
SECTION 1.5 -100 ENTITLED "MALICIOUS DEFACEMENT, MARKING OF
REAL PROPERTY" IN ORDER TO MAKE MALICIOUS MARKING AND
PLACEMENT OF GRAFFITI ON PERSONAL PROPERTY UNLAWFUL;
PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN
CONFLICT; AND PROVIDING FOR AN EFFECTIVE DATE.
BACKGROUND
In recent months the City has received complaints that graffiti is appearing on personal, property
which items are viewable by the public and are often offensive and visually distracting. City of
South Miami Code of Ordinances, Section 15 -100 entitled "Malicious defacement, marking of real
property" does set forth regulations which makes it unlawful to deface, mark or place graffiti on
any building, wall, telephone booth, bus bench or public ways with drawings, writing, or painting
without the consent of the property owner. It would be appropriate and in the public interest and
safety to amend the South Miami Code of Ordinances in order to expand the prohibition against
malicious marking and graffiti on tangible items which are classified as personal property.
This amendment would assist code enforcement officers to remove graffiti on such items as
dumpsters, boats, trailers, storage containers, vehicles and signs which are not part of a building or
structure, and are often defaced.
PROPOSED LEGISLATION
It is proposed that South Miami Code of Ordinances, Section 15 -100 entitled "Malicious
defacement, marking of real property" be amended to include the wording "on any personal
property" in several paragraphs within that section. This would expand the prohibition against
graffiti to objects and property which are not on a building, a structure or wall. The actual wording
of the amendment is contained in the attached draft ordinance.
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RECOMMENDATION
It is recommended that the attached draft ordinance be approved on first reading.
Attachments:
Draft Ordinance
Copy of Public Notices
TJU /SAY
X: (Comm ltems1201011- 26 -MCtty Code Amend Graffiti CM Report.doc
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ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA AMENDING THE SOUTH
MIAMI CODE OF ORDINANCES BY REVISING CHAPTER 15,
ARTICLE III SECTION 15 -100 ENTITLED "MALICIOUS
DEFACEMENT, MARKING OF REAL PROPERTY" IN ORDER TO
MAKE MALICIOUS MARKING AND PLACEMENT OF GRAFFITI
ON PERSONAL PROPERTY UNLAWFUL; PROVIDING FOR
SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City has received complaints that graffiti is appearing on personal
property which items are viewable by the public and are often offensive and visually
distracting; and
WHEREAS, the City of South Miami Code of Ordinances, Section 15 -100 entitled
"Malicious defacement, marking of real property" does set forth regulations which makes it
unlawful to deface, mark or place graffiti on any building, wall, telephone booth, bus bench
or public ways with drawings, writing, or painting without the consent of the property owner;
and
WHEREAS, it would be appropriate and in the public interest and safety to amend
the South Miami Code of Ordinances in order to expand the prohibition against malicious
marking and graffiti on tangible items which are classified as personal property; and
WHEREAS, the amendment would assist code enforcement officers to remove
graffiti on such items as dumpsters, boats, trailers, storage containers, vehicles and signs
which are not part of a building or structure, and are often defaced; and
WHEREAS, the South Miami Code of Ordinances, Section 15 -100 entitled
"Malicious defacement, marking of real property" should be amended to make it unlawful to
deface, mark or place graffiti on any personal property.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF SOUTH MIAMI, FLORIDA, THAT:
Section 1. The City Commission hereby approves amending Chapter 15, Article III
Section 15 -100 of the City's Code of Ordinances entitled "Malicious defacement, marking of
real property" by making the following amendments:
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2 Chapter 15 OFFENSES AND MISCELLANEOUS PROVISIONS
3 ** *
4 Article III. NOISE
5 + ++
6 Sec. 15 -100. Malicious defacement, marking of real property.
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8 (a) Notwithstanding any city code provision to the contrary, it shall be unlawful for any
9 person to maliciously, wantonly or without the knowledge and consent of the owner to mark,
10 deface, damage or destroy by writing, painting or drawing any inscription, figure or mark of
11 any type on the exterior or interior, including walls and appurtenances, of any public or
12 private building, telephone booth, bus bench, public way, church, synagogue, or school, or
13 on any personal properly.
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15 (b) Notwithstanding any city code provision to the contrary, it shall be unlawful for any
16 person to willfully or maliciously affix or attach, by any means whatsoever, upon or in any
17 place of abode, municipal recreational area or facility, office, telephone booth, bus bench,
18 store, public building or way, church, synagogue, school or other building constructed or
19 used for religious or educational purposes; or upon any wall or appurtenance, or on any
20 personal Property, felt -tip, indelible marker, crayon, chalk, ink, sign, poster placard,
21 adhesive stickers, or any implement containing non - water - soluble fluid with unlawful intent.
22 Unlawful intent shall mean:
23 (1) To damage, deface, design, mark or defile such place of abode, municipal recreational
24 area or facility, telephone booth, bus bench, office, store, public building or way, church,
25 synagogue, school, or on any personal Property or other building constructed or used for
26 religious educational purposes; or
27 (2) To defame with words or symbols any person occupying or using same.
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29 (e) Notwithstanding any city code provision to the contrary, no person shall intentionally
30 deface without authorization of the owner or tenant any private or public premises or
31 property primarily used for religious, educational, residential, memorial, recreational,
32 charitable; cemetery or utilitarian purposes, or for assembly by persons of a particular race,
33 color, creed, sexual orientation or religion, by placing material thereon, including symbols,
34 objects, caricatures, an appellation, a burning cross or a Nazi swastika, or graffiti thereby
35 exposing or tending to expose another to risk of violence, contempt or hatred on the basis of
36 race, color, sexual orientation, creed or religion.
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38 (d) Notwithstanding any city code provision to the contrary, violation of subsections (a),
39 (b), and (c) of this section shall be punishable by a fine of not more than two hundred fifty
40 dollars ($250.00) for a first offense and a fine not to exceed five hundred dollars ($500.00)
41 for a second or each subsequent offense.
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43 (e) Whenever the city becomes aware of the existence of graffiti on any property, including
44 structures or improvements within the city, or on any Personal Property, a code
45 enforcement officer is authorized, upon such discovery, to give, or cause to be given, notice
46 to remove or effectively obscure such graffiti within the time period enumerated in the
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notice, to the owner, agent or manager who shall cause the graffiti to be removed or
effectively obscured by any means so long as it is completely obliterated, painted or touched
up with the same or similar color of existing paint and /or texture of the original wall, fence,
siding or part of the structure afflicted. Persons needing information and /or assistance in
curing a graffiti violation may contact the Metropolitan Dade County "graffiti hotline."
Persons not responsible for causing graffiti but responsible for curing it, who cannot afford to
obliterate, paint or touch up such graffiti with the same color of existing paint of the original
wall, fence, siding or part of the structure affected and who receive paint or assistance from
the Metropolitan Dade County agency known as "graffiti hotline" shall obliterate, paint or
touch up graffiti on the property with paint as similar in color as can be provided to the wall,
fence, siding or part of the structure afflicted.
(f) It shall be unlawful for any person or firm owning property, acting as manager or agent
for the owner of property, or in possession or control of property to fail to remove or
effectively obscure any graffiti from such property within thirty (30) days from receipt of the
notice described in subsection (e) or within the time period enumerated in the notice,
whichever is later. If the person or firm owning such property, acting as manager or agent for
the owner of such property, or in possession or control of such property, fails to remove or
effectively obscure the graffiti within the time period enumerated above, the city shall issue a
citation pursuant to section 2 -25 of this Code and fines shall be assessed against the property
until it comes into compliance.
(g) Any person or firm owning property, acting as agent or manager for the owner of such
property, or in possession or control of such property, who commits a violation of subsection
(e) above, shall be punished by a fine of two hundred fifty dollars ($250.00) for a first
offense, and five hundred dollars ($500.00) per offense, thereafter.
(h) In an appeal to the special master, the special master may take into consideration, when
deciding to mitigate the fine amount, the efforts taken by the violator, if any, to remove or
effectively obscure the subject graffiti in a timely manner and how often the violator has
been victimized by graffiti during the preceding calendar year. The provisions of this section
shall not apply to a property owner, manager, agent, or possessor of property if, in the sole
determination of the special master, such property owner, agent, manager, or possessor has
been victimized two (2) or more times by graffiti within any calendar year, and, during such
time, has removed or effectively obscured such graffiti from the property in a timely manner.
(i) The city may institute a civil action in a court of competent jurisdiction to recover
compensatory and punitive damages, including reasonable costs and expenses, for any
damage caused to city -owned property located within the city limits of South Miami as a
result of violations of subsections (a), (b) or (e) of this section.
(Ord. No. 1926, § 1, 9 -4 -07)
Section 2. All ordinances or parts of ordinances in conflict with the provisions of this
ordinance are hereby repealed.
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Section 3. If any section, clause, sentence, or phrase of this ordinance is for any reason
held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not
affect the validity of the remaining portions of this ordinance.
Section 4. This ordinance shall be effective immediately after the adoption hereof.
PASSED AND ADOPTED this _ day of 2010
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
APPROVED:
MAYOR
1st Reading:
2nd Reading:
X: \Comm Items \2010 \1 -26.10 \City Code Amend Graffiti Ord.doc
COMMISSION
VOTE:
Mayor Feliu:
Vice Mayor Beasley:
Commissioner Palmer:
Commissioner Newman:
Commissioner Sellars: