FR.2 - AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 54/ARTICLE I, TITLED “STREETS AND SIDEWALKS/IN GENERAL,” AND CHAPTER 54/ARTICLE II, TITLED “STREETS AND SIDEWALKS/CONSTRUCTION, EXCAVATION, AND REPAIR,” OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, TO REQUIRE THE PROMPT REMOVAL OF CONSTRUCTION-RELATED MATERIALS, EQUIPMENT, DEVICES AND SIGNS FROM RIGHT-OF-WAY WHEN NO LONGER AUTHORIZED OR REASONABLY NECESSARY; CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, the City of Miami (“City”) is a dense, pedestrian-oriented urban community with substantial sidewalk activity throughout residential, commercial, and mixed-use areas; and

WHEREAS, the public right-of-way is a critical component of the City’s transportation network and public safety infrastructure; and

WHEREAS, construction, demolition, façade maintenance, and similar activities frequently require the temporary installation of construction related equipment/devices and signs to advise the public of the on-going activity within or above the public right-of-way; and

WHEREAS, certain construction related equipment/devices and signage, including traffic control devices, serve legitimate public safety and traffic management purposes while authorized work is actively being performed; and

WHEREAS, when the authorized work due to construction has ceased for any reason, the unremoved construction related equipment/devices and signage constitutes an obstruction to the right-of-way, which may create safety hazards, impede accessibility, including pedestrian or vehicular movement, impair sightlines, damage public property or landscaping, interfere with maintenance operations, and adversely affect the appearance, safety, and welfare of neighborhoods and commercial corridors; and

WHEREAS, the City regulates the use of its streets, sidewalks, swales, medians, public rights-of-way, and other City-owned or City-controlled property in order to protect the health, safety, and welfare of residents, pedestrians, motorists, cyclists, businesses, and visitors; and

WHEREAS, the City Commission finds that the prompt removal of unauthorized construction related equipment/devises and signs promotes public safety, accessibility, cleanliness, neighborhood aesthetics, and the efficient maintenance, operation, and use of public property; and

WHEREAS, the City desires to establish clear, mandatory, and enforceable standards to protect pedestrians, ensure sidewalk accessibility, maintain aesthetics, traffic management, and the preservation, maintenance, and efficient use of public right-of-way;

NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:

Section 1.  The recitals and findings contained in the Preamble to this Ordinance are adopted and incorporated as if fully set forth in this Section.

Section 2.  Chapter 54, Article I of the City Code is hereby amended in the follow particulars:

“CHAPTER 54

STREETS AND SIDEWALKS

ARTICLE I. IN GENERAL

Sec. 54-1. Definitions.

The following words, terms and phrases, when used herein, shall have the meanings ascribed to them in this Code, except where the context clearly indicates a different meaning:

Hazardous or obstructive condition means a physical condition that creates an immediate threat to public health or safety and obstructs, impedes or interferes with pedestrian, bicycle, or vehicular access and/or visibility, including but not limited to emergency services and/or City maintenance operations.

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Unpermitted or unauthorized construction materials shall be considered any materials related to construction or other similar activities, including but not limited to construction related equipment, construction related devises, construction signs, traffic cones, traffic safety posts or markers, barricades, traffic barrels, fencing.

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Sec. 54-2.Obstruction of free passage on sidewalks, etc.

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(c)   Prohibited behavior. It is unlawful for any person or any number of persons:

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(3)  To maintain any hazardous or obstructive condition, including any unpermitted or unauthorized construction material, equipment, devices or signs, beyond the applicable permitted or authorized period upon any street, sidewalk, or public right-of-way.

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Sec. 54-9.1.Enforcement, rebuttable presumption.

A violation of sections 54-7, 54-9(b) and (c) is a civil violation and will be enforced pursuant to the provisions of section 2-823 through 2-830 subject to the following conditions:

(1)At any prosecution for violation of this section where the circumstances relating to the placement and number of signs make it more likely than not that the signs were placed there, or caused to be placed there, by an agent, employee, contractor, promoter, or other representative of the business or benefactor advertised on the face of the sign, the code enforcement board or special master shall apply a rebuttable presumption that the business or benefactor advertised on the face of the sign placed, posted or affixed the sign.

(2)If a person is found posting signs in violation of this Code, every code enforcement officer is authorized to seize, for use as evidence in the prosecution of the person, business or benefactor before the code enforcement board or special master, all signs in the possession of the person.

(3)When a sign is found to be located on public property and without a required permit, the city shall have the right to remove such sign. The owner may recover the sign by paying the removal costs within fifteen (15)60 days of the removal. If the sign is not recovered by the owner withinfifteen (15)60 days then it shall be considered abandoned property in the hands of the city and shall be disposed of as permitted by law.  Prior to or at the time of removal, the City shall create a record, including photograph(s), that includes the date and time of removal, approximate location of removal, and brief identifying statement of the sign(s) removed. The city shall recover all costs in conjunction with such removal of signs from the owner or the owner's property. Such recovery may be by way of personal action against the owner or an in rem lien against any property of the owner.

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Section 3.  Chapter 54, Article IIof the City Code is hereby amended in the follow particulars:1

“CHAPTER 54

STREETS AND SIDEWALKS

“ARTICLE II. – CONSTRUCTION, EXCAVATION, AND REPAIR

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Sec. 54-49. Obstructing street with materials,including construction related materials; removal of abandoned construction related materials.

Materials such as are to be used in the work or for construction purposes may be stored in the right-of-way by the contractor only upon approval of the resilience and public works department if no suitable alternative exists and obtaining a permit pursuant to section 54-3. All gutters, drains, fire hydrants, roadways and private driveways within the block in which work is being done are to be kept open by the contractor for their intended use. As soon as the work is finished or the permit expires, whichever occurs first, all accumulated rubbish or surplus materials, forms, tools and equipment shall be promptly removed from the right-of-way by the contractor.

(a)    All materials, equipment, devices, tools, forms, supplies, and other items used or intended to be used in connection with construction, excavation, repair, maintenance, traffic-control devices, utility work, or similar activity may be stored or maintained in the public right-of-way only upon approval of the Department of Resilience and Public Works that no suitable alternative location exists and pursuant to a valid permit issued under section 54-3.

(b)   The contractor and/or permittee shall keep all gutters, drains, fire hydrants, roadways, sidewalks, accessible routes, bicycle facilities, private driveways, traffic-control devices, and emergency-access routes within the area of the work open, unobstructed, and available for their intended use, except to the extent expressly authorized by the applicable permit or approved maintenance-of-traffic plan.

(c)    Except to the extent expressly authorized by the applicable permit or approved maintenance-of-traffic plan, it is the primary responsibility of the contractor and/or permittee to ensure the removal from the public right-of-way all accumulated rubbish, surplus materials, forms, tools, equipment, construction signs, traffic cones, delineators, barrels, barricades, message boards, temporary traffic-control devices, temporary fencing, warning devices, and any other construction-related materials, equipment or devices.  If there is an applicable permit or approved maintenance-of-traffic plan, then removal is mandatory upon the earliest of:

(1)   Completion of the permitted or authorized work;

(2)   Expiration or revocation of the applicable permit;

(3)   The time the material, equipment or devices are no longer reasonably necessary for the permitted or authorized work.

(d)    If the applicable permit, approved maintenance-of-traffic plan, or other City authorization does not establish a specific time frame for removal of material, equipment or devices, then any item remaining within the public right-of-way more than forty-eight (48) hours after any event identified in section (c), shall be deemed abandoned for purposes of this section.

(e)    The City may immediately remove any hazardous or obstructive condition. All other items remaining within the public right-of-way deemed abandoned will be removed and stored for not less than fifteen (15) days from removal date.  Within three (3) business days after removal of a stored item, the City shall provide post-removal notice to the contractor, permittee, owner, or other responsible person, if reasonably ascertainable. The notice shall identify the item removed; the date, approximate time, and location of removal; the basis for removal; the location and hours for retrieval; the retrieval deadline; costs incurred; and the right to contest the removal and/or the incurred costs.

(f) The stored items may be retrieved upon proof of ownership and payment of incurred costs.

(g)The removal and/or incurred costs may be appealed by requesting an administrative hearing.  The request shall be made to the mailing address, e-mail address indicated in the post-removal notice or on-line via the City’s website, as available, no later than ten (10) days from the post-removal notice. If a timely appeal is filed, the City shall retain the item until issuance of a final administrative decision. If no timely request for an administrative hearing is received, the removal and assessments of costs shall constitute final administrative action. The City may recover all necessary costs of removal, transportation, storage, disposition, and repair or restoration of damaged City property.

(h)Nothing in this subsection limits the removal of items obstructing the public right-of-way as set forth in Section 54-57 or any other provision of this Chapter or applicable law.

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Section 4.  If any section, part of a section, paragraph, clause, phrase, or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected.

Section 5.  This Ordinance shall become effective immediately after adoption and signature of the Mayor.