Item R026
CM
ounty of onroe
BOARD OF COUNTY COMMISSIONERS
Mayor Heather Carruthers, District 3
Mayor Pro Tem George Neugent, District 2
TheFloridaKeys
Danny L. Kolhage, District 1
David Rice, District 4
Sylvia J. Murphy, District 5
County Commission Meeting
July 20, 2016
Agenda Item Number: R.2
Agenda Item Summary #1656
BULK ITEM: DEPARTMENT:
No County Attorney's Office
TIME APPROXIMATE:STAFF CONTACT:
Bob Shillinger (305) 292-3470
None
AGENDA ITEM WORDING:
Discussion and direction regarding request from Monroe County
Sheriff Rick Ramsay for the Board of County Commissioners to adopt an ordinance which would
authorize deputies and/or county staff to remove graffiti from properties where the owner is unable
to do so.
ITEM BACKGROUND:
Sheriff Ramsay has asked the Board to consider adopting an anti-graffiti
ordinance that would provide deputies and county staff with a tool for cleaning up of graffiti from
properties where the owner is unable to clean up the graffiti. The Sheriff is seeking the authority
under an ordinance for deputies and county staff to be able to enter onto properties bearing graffiti
for the purpose of cleaning up the graffiti and imposing a lien against the property for the clean up
costs. Property owners would be given notice and the opportunity to clean up the graffiti prior to the
Sheriff's office and county staff taking action to remove the graffiti. The City of Hialeah is one of
several Florida local governments which has adopted such an ordinance.
Under state law, graffiti is considered criminal mischief, a criminal offense under F.S. 806.13. The
penalties for violation of that statute range from a 2nd degree misdemeanor up to a 3rd degree felony
depending on the value of the damage caused by the graffiti. The Legislature has specifically
authorized cities and counties to adopt ordinances regarding graffiti. F.S. 806.13(9).
PREVIOUS RELEVANT BOCC ACTION:
none
CONTRACT/AGREEMENT CHANGES:
n/a
STAFF RECOMMENDATION:
Approval for the County Attorney's Office to work with the
Sheriff's General Counsel to draft an ordinance.
DOCUMENTATION:
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FS 806.13 Criminal mischief penalties penalty for minor
City of Hialeah Graffiti Code
FINANCIAL IMPACT:
Effective Date: TBD
Expiration Date: n/a
Total Dollar Value of Contract: n/a
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match
:
Insurance Required:
Additional Details:
n/a
REVIEWED BY:
Bob Shillinger Completed 07/05/2016 4:51 PM
Bob Shillinger Completed 07/05/2016 4:51 PM
Budget and Finance Skipped 07/05/2016 4:50 PM
Maria Slavik Skipped 07/05/2016 4:50 PM
Kathy Peters Completed 07/05/2016 6:07 PM
Board of County Commissioners Pending 07/20/2016 9:00 AM
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F.S. 806.13 –Criminal Mischief
(1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or
damages by any means any real or personal property belonging to another, including, but not limited to,
graffiti
the placement of thereon or other acts of vandalism thereto.
(b)1. If the damage to such property is $200 or less, it is a misdemeanor of the second degree,
punishable as provided in s. 775.082or s. 775.083.
2. If the damage to such property is greater than $200 but less than $1,000, it is a misdemeanor of
the first degree, punishable as provided in s. 775.082or s. 775.083.
3. If the damage is $1,000 or greater, or if there is interruption or impairment of a business
operation or public communication, transportation, supply of water, gas or power, or other public
service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third
degree, punishable as provided in s. 775.082,s. 775.083, or s. 775.084.
4.If the person has one or more previous convictions for violating this subsection, the offense
under subparagraph 1. or subparagraph 2. for which the person is charged shall be reclassified as
a felony of the third degree, punishable as provided in s. 775.082,s. 775.083, or s. 775.084.
(2) Any person who willfully and maliciously defaces, injures, or damages by any means any church, synagogue,
mosque, or other place of worship, or any religious article contained therein, commits a felony of the third degree,
punishable as provided in s. 775.082,s. 775.083, or s. 775.084, if the damage to the property is greater than $200.
(3) Whoever, without the consent of the owner thereof, willfully destroys or substantially damages any public
telephone, or telephone cables, wires, fixtures, antennas, amplifiers, or any other apparatus, equipment, or
appliances, which destruction or damage renders a public telephone inoperative or which opens the body of a
public telephone, commits a felony of the third degree, punishable as provided in s. 775.082,s. 775.083, or s.
775.084; provided, however, that a conspicuous notice of the provisions of this subsection and the penalties
provided is posted on or near the destroyed or damaged instrument and visible to the public at the time of the
commission of the offense.
(4) Any person who willfully and maliciously defaces, injures, or damages by any means a sexually violent
predator detention or commitment facility, as defined in part V of chapter 394, or any property contained therein,
commits a felony of the third degree, punishable as provided in s. 775.082,s. 775.083, or s. 775.084, if the
damage to property is greater than $200.
(5)(a) The amounts of value of damage to property owned by separate persons, if the property was damaged
during one scheme or course of conduct, may be aggregated in determining the grade of the offense under
this section.
(b) Any person who violates this section may, in addition to any other criminal penalty, be required to pay
for the damages caused by such offense.
graffiti
(6)(a) Any person who violates this section when the violation is related to the placement of shall, in
addition to any other criminal penalty, be required to pay a fine of:
1. Not less than $250 for a first conviction.
2. Not less than $500 for a second conviction.
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3. Not less than $1,000 for a third or subsequent conviction.
graffiti
(b) Any person convicted under this section when the offense is related to the placement of shall,
in addition to any other criminal penalty, be required to perform at least 40 hours of community service
graffiti
and, if possible, performat least 100 hours of community service that involves the removal of .
(c) If a minor commits a delinquent act prohibited under paragraph (a), the parent or legal guardian of the
minor is liable along with the minor for payment of the fine. The court may decline to order a person to
pay a fine under paragraph (a) if the court finds that the person is indigent and does not have the ability to
pay the fine or if the court finds that the person does not have the ability to pay the fine whether or not the
person is indigent.
(7) In addition to any other penalty provided by law, if a minor is found to have committed a delinquent act under
graffiti
this section for placing on any public property or private property, and:
(a) The minor is eligible by reason of age for a driver license or driving privilege, the court shall direct the
Department of Highway Safety and Motor Vehicles to revoke or withhold issuance of the minor’s driver
license or driving privilege for not more than 1 year.
(b) The minor’s driver license or driving privilege is under suspension or revocation for any reason, the
court shall direct the Department of Highway Safety and Motor Vehicles to extend the period of
suspension or revocation by an additional period of not more than 1 year.
(c) The minor is ineligible by reason of age for a driver license or driving privilege, the court shall direct
the Department of Highway Safety and Motor Vehicles to withhold issuance of the minor’s driver license
or driving privilege for not more than 1 year after the date on which he or she would otherwise have
become eligible.
(8) A minor whose driver license or driving privilege is revoked, suspended, or withheld under subsection (7) may
elect to reduce the period of revocation, suspension, or withholding by performing community service at the rate
of 1 day for each hour of community service performed. In addition, if the court determines that due to a family
hardship, the minor’s driver license or driving privilege is necessary for employment or medical purposes of the
minor or a member of the minor’s family, the court shall order the minor to perform community service and
reduce the period of revocation, suspension, or withholding at the rate of 1 day for each hour of community
graffiti
service performed. As usedin this subsection, the term “community service”means cleaning from public
property.
graffiti
(9) Because of the difficulty of confronting the blight of , it is the intent of the Legislature that
municipalities and counties not be preempted by state law from establishing ordinances that prohibit the marking
graffitigraffitigraffiti
of or other -related offenses. Furthermore, as related to , such municipalities and counties
are not preempted by state law from establishing higher penalties than those provided by state law and mandatory
penalties when state law provides discretionary penalties. Such higher and mandatory penalties include fines that
do not exceed the amount specified in ss. 125.69and 162.21, community service, restitution, and forfeiture. Upon
graffiti
a finding that a juvenile has violated a -related ordinance, a court acting under chapter 985 may not
provide a disposition of the case which is less severe than any mandatory penalty prescribed by municipal or
county ordinance for such violation.
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City of Hialeah, Florida
Graffiti Code
ARTICLE III. - GRAFFITI
Sec. 58-32. - Definitions.
Unless it is apparent from the context that another meaning is intended, the following words when
used in this article shall have the meanings attributed to them by this section:
Abatement means the repair, rehabilitation, demolition or removal of a public nuisance.
Bona fide evidence of majority means a document issued by a federal, state, county or municipal
government or agency thereof, including, but not limited to, a motor vehicle operator's license, a passport
or an identification card issued to a member of the armed forces that identifies an individual and provides
proof of the age of such individual.
City's agent means an independent contractor performing graffiti abatement for the city.
Code enforcement officer means any designated employee, including a police officer, acting as an
agent of the city whose duty it is to enforce codes and ordinances enacted or adopted by the city.
Commercial property means property that is used for business, commercial or for-profit purposes. It
shall be prima facie evidence that a property is commercial if it is located in a commercial or industrial
zoning district or land use classification and a multiple-family residential zoning district. "Commercial
property" shall include, but is not limited to, nonpermanent structures such as trailers, dumpsters, traffic
signs, barricades, utility poles, traffic signal boxes and construction equipment. "Commercial property"
shall not include: (a) single-family homes or residential property of three or fewer units; (b) property
owned by government; and (c) property used for nonprofit purposes by educational institutions, charities
or religious institutions.
Corrective action means an act required to remove or effectively obscure graffiti that is visible from
the right-of-way by painting the entire wall or nonpermanent structure defaced by graffiti or pressure
cleaning or any other method that will successfully remove graffiti from a wall or nonpermanent structure,
without causing damage.
Graffiti means the unauthorized application of paint, ink, chalk, dye or other similar substance or
other inscribed, engraved or embossed material on public or private permanent and nonpermanent
structures located on publicly or privately-owned real property within the city.
Marker means any felt-tip marker or similar implement that contains a fluid that is not water soluble
and has a flat or angled writing surface one-quarter inch or greater.
Minor means a person who is under 18 years of age.
Noncommercial property means all property that is not included in the definition of commercial
property.
Nonpermanent structure means any object, device, entity or any arrangement, organization or
configuration of such objects, devices or entities not intended to be imperishable or invariable such as,
but not limited to, trailers, dumpsters, traffic signs, barricades, utility poles, traffic signal boxes and
construction equipment.
Nuisance means anything injurious to health so as to interfere with the comfortable enjoyment of life
or property and which affects at the same time an entire community or neighborhood or any considerable
numbers of persons, although the extent of the annoyance or damage inflicted upon individuals may be
unequal.
Owner means any and all persons with legal or equitable title to real property in the city as indicated
in the county tax rolls.
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Public right-of-way means any road, parkway, alley, swale, sidewalk or other right-of-way.
Supervising adult means an individual 21 years of age or older who has been given written
responsibility by the minor's parents, legal guardian or other lawful authority to supervise the minor.
(Ord. No. 2001-39, § 1, 5-22-2001)
Sec. 58-33. - Prohibitions.
It shall be unlawful for any person to deface, write, paint, draw, inscribe, engrave, destroy or
otherwise damage private or public property without the owner's consent, by or through the application of
what is commonly known as "graffiti."
(Ord. No. 2001-39, § 1, 5-22-2001)
Sec. 58-34. - Possession of spray paint and markers.
(a) Possession of spray paint and markers with intent to make graffiti is prohibited.
(b) Possession of spray paint and markers by a minor on public property is prohibited. No minor shall
have in the minor's possession any aerosol container of spray paint or broad-tipped indelible marker
while on any public property or right-of-way except in the company of a supervising adult.
(c) Possession of spray paint and markers by minors on private property is prohibited without consent of
the owner. No minor shall have in the minor's possession any aerosol container of spray paint or
broad-tipped indelible marker while on any private property unless the owner, agent, manager or
personnel in possession of the property knows of the minor's possession of the aerosol container or
marker and consents to possession of such property.
(d) No person shall sell or give an aerosol container of spray paint or broad-tipped indelible marker to a
minor for the purpose of violating this section.
(e) No person shall purchase an aerosol container of spray paint or a broad-tipped indelible marker for a
minor for the purpose of violating this section.
(Ord. No. 2001-39, § 1, 5-22-2001)
Sec. 58-35. - Declared nuisance.
The creation or maintenance of the unauthorized application of paint, ink, chalk, dye or other similar
substance or other inscribed, engraved or embossed material on public or private structures located on
publicly or privately-owned real property in the city is hereby declared a nuisance.
(Ord. No. 2001-39, § 1, 5-22-2001)
Sec. 58-36. - Responsibility of property owner; graffiti removal and notice.
(a) Maintenance or allowance of graffiti to exist for more than 48 hours on a commercial property, or
seven days on a residential property, is prohibited.
(b) Whenever the city becomes aware of the existence of graffiti on any property, a code enforcement
officer is authorized to provide notice to the property owner, agent or manager to take corrective
action.
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(1) Commercial property. For commercial property, the property owner, agent or manager shall
take corrective action within 48 hours from the receipt or delivery of the notice described in
paragraph (c).
(2) Noncommercial property. For noncommercial property, the property owner, agent or manager
shall take corrective action within seven days from the receipt or delivery of the notice described
in paragraph (c).
(c) Such notice shall be given by certified mail, return receipt requested, by hand-delivery or posted on
the property by the code enforcement officer to the "home of record," as identified in the current
county tax rolls. Notice shall be deemed complete and sufficient when so mailed, proper postage
prepaid. The notice to remove graffiti shall substantially comply with the following language:
WARNING NOTICE TO REMOVE GRAFFITI
TO THE OWNER, AGENT OF THE OWNER OR PERSON MANAGING THE PROPERTY
HEREINAFTER DESCRIBED.
YOUR ATTENTION IS HEREBY DIRECTED TO THE PROVISIONS OF SECTION ____ OF THE
HIALEAH CITY CODE. PURSUANT THERETO, YOU ARE HEREBY NOTIFIED THAT GRAFFITI,
WHICH IS DECLARED A NUISANCE IN THE CITY OF HIALEAH, EXISTS ON THE PREMISES
SPECIFICALLY DESCRIBED AS _______, IS INJURIOUS TO THE HEALTH SO AS TO
INTERFERE WITH THE COMFORTABLE ENJOYMENT OF LIFE OR PROPERTY, AND AFFECTS
AT THE SAME TIME AN ENTIRE COMMUNITY OR NEIGHBORHOOD, OR ANY CONSIDERABLE
NUMBER OF PERSONS, ALTHOUGH THE EXTENT OF THE ANNOYANCE OR DAMAGE
INFLICTED UPON INDIVIDUALS MAY BE UNEQUAL. YOU ARE THEREFORE NOTIFIED AT
ONCE, AND IN ANY EVENT WITHIN 48 HOURS (FOR COMMERCIAL PROPERTY) OR 7
CALENDAR DAYS (FOR RESIDENTIAL PROPERTY) FROM THE RECEIPT OF THIS NOTICE, TO
REMOVE THE GRAFFITI FROM THE PROPERTY AND THEREAFTER TO KEEP THE
PROPERTY FREE THEREFROM.
IF YOU FAIL TO COMPLETE SUCH WORK WITHIN THE PERIOD HEREIN MENTIONED, THE
CITY OF HIALEAH SHALL CAUSE THE SAME TO BE REMOVED AND THE COSTS OF SUCH
WORK WILL BE IMPOSED AS A LIEN UPON THIS PROPERTY. THE ESTIMATED COSTS TO
REMEDY THIS CONDITION ARE _________, PLUS $50.00 FOR ADMINISTRATIVE CHARGES,
FOR A TOTAL COST OF _______.
NOTICE POSTED AT __________ A.M./P.M.
DATED AT HIALEAH, FLORIDA THIS _____ DAY OF _______, 20__.
/s/
OFFICER
(Ord. No. 2001-39, § 1, 5-22-2001)
Sec. 58-37. - Procedures.
The procedures of chapter 22 of the Code shall govern to the extent that a civil violation notice or
citation is issued for a violation of this article.
(Ord. No. 2001-39, § 1, 5-22-2001)
Sec. 58-38. - Costs of graffiti removal as lien on propertyCollection, foreclosure and sale.
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(a) Upon failure of the property owner to remedy the conditions after notice and the compliance period
has elapsed, the code enforcement officer shall proceed to have such condition remedied by the city
or its agent in an effort to abate the nuisance.
(b) A city employee or its agent may enter upon private property to abate the nuisance. No person shall
obstruct, impede or interfere with any city employee or its agent whenever such person engages in
the work of graffiti abatement or in performing any necessary act preliminary to or incidental to such
work.
(c) Following corrective action taken by the city or its agent, the code enforcement officer shall proceed
to have all costs incurred thereof to be and become a lien against such property 30 days after notice
of the completed work to the same extent and character as code enforcement liens, and with the
same penalties and with the same rights of collections, foreclosure, sale and forfeiture as outlined for
code enforcement liens. The costs chargeable to the owner shall not exceed the amount of cost, as
set forth in the notice served to the property owner.
(Ord. No. 2001-39, § 1, 5-22-2001)
Sec. 58-39. - Procedure to dispute assessed costs set forth in warning notice.
(a) Any person owning property that has been found to be in violation of this article, and upon which
remedial work by the city has been done, shall have the right, at any time within 30 days after receipt
or posting of the notice of completed work, to present to the police chief a sworn petition stating his
interest in the property and alleging that in the opinion of the petitioner the cost of the work exceeds
the actual costs thereof or is otherwise erroneous.
(b) Such petition shall be presented to either the code enforcement board or special master for a final
determination.
(Ord. No. 2001-39, § 1, 5-22-2001)
Sec. 58-40. - Reward fund.
(a) An anti-graffiti reward fund is hereby established.
(b) Ten percent of all graffiti-related fines collected by the city shall be placed in the anti-graffiti reward
fund.
(c) Information regarding graffiti which leads to the arrest, conviction or fine of a person placing graffiti
on public or private property will be reviewed for reward by the mayor for payment from the anti-
graffiti reward fund, up to an amount not exceeding $250.00. The mayor's decision shall be final.
(Ord. No. 2001-39, § 1, 5-22-2001)
Sec. 58-41. - Violations.
The code enforcement officer shall fine any person violating this section $250.00 for the first offense
and $500.00 for each subsequent violation, or as provided by the imposition of fines in section 22-184 of
the Code. In the case of a minor, the parents or legal guardian shall be jointly and severally liable with the
minor for payment of all fines. Failure of the parents or legal guardian to make payment will result in filing
a lien against the parents' or legal guardian's property to recover the fine and administrative costs.
(Ord. No. 2001-39, § 1, 5-22-2001)
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