Malicious defacement, marking, etc

, of real property.

(a)

Notwithstanding any City Code provision to the contrary, it shall be unlawful for any person to willfully and maliciously or without the knowledge and consent of the owner to mar, deface, damage or destroy by writing, painting or drawing any inscription, figure or mark of any type on public or private property.

(b)

Notwithstanding any City Code provision to the contrary, no person shall intentionally deface without authorization of the owner or tenant any private or public premises or property primarily used for religious, educational, residential, memorial, recreational, charitable, cemetery or utilitarian purposes, or for assembly by persons of a particular race, color, creed or religion, by placing material thereon, including symbols, objects, caricatures, an appellation, a burning cross or a Nazi swastika, or graffiti thereby exposing or tending to expose another to risk of violence, contempt or hatred on the basis of race, color, creed or religion.

(c)

A violation of subsection (a) or (b) of this section shall be punishable as provided by F.S. § 806.13.

(d)

In addition to any punishment, the court shall order the defendant to make restitution to the victim or the city if the city cures the damage pursuant to subsection (i) for damage or loss caused directly or indirectly by the defendant's offense in a reasonable amount or manner to be determined by the court. In the case of a minor, the parents or legal guardian shall be ordered jointly and severally liable with the minor to make such restitution.

(e)

In addition to any punishment, the court may, in its discretion, order the defendant to perform monitored community service.

(f)

Whenever the city becomes aware of the existence of graffiti on any property, including structures or improvements within the city, a code enforcement officer is authorized, upon such discovery, to give, or cause to be given, notice to remove or effectively obscure such graffiti within the time period enumerated in the 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 substantially similar color of existing paint or texture of the original wall, fence, siding or part of the structure afflicted. The time period enumerated in the notice shall not be less than ten days. Persons needing information or assistance in curing a graffiti violation may contact the code compliance department graffiti mitigation program. The phone number to the code compliance department graffiti mitigation program shall appear conspicuously in bold numerals on the notice issued pursuant to this subsection for purposes of providing assistance to those who receive such notice. 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 code compliance department graffiti mitigation program shall obliterate, paint or touch up graffiti on the property with paint as substantially similar in color as can be provided to the wall, fence, siding or part of the structure afflicted. No penalties, fines, or costs shall be imposed on persons owning property, acting as manager or agent for the owner of property, or in possession or control of property who utilize the code compliance department graffiti mitigation program to remove or effectively obscure such graffiti. Persons who request to receive assistance from the code compliance department graffiti mitigation program and are qualified to receive such assistance, shall not be subjected to penalties, fines, or costs pursuant to this section. The requirements for the code compliance department graffiti mitigation program are:

(1)

Only ground floor areas of structures that abut the public rights-of-way;

(2)

The city will clean/obscure the graffiti affecting the qualifying non-violating owners' property structure a maximum of two occasions in one calendar year (at least two weeks apart) of the first violation without penalty if the property owner contacts code compliance department within ten days of the issuance of the violation;

(3)

If the graffiti is visible from the public rights-of-way but not accessible due to height of graffiti or other barriers, the qualifying non-violating property owner shall be required to sign a release authorizing city employees entry upon the property to clean/obscure the graffiti; if owner complies with said requirement, the city's assistance will count towards the maximum of two as indicated above in above subsection (f)(2). To receive assistance without penalty, the qualifying owner will be required to provide the release within ten days of receiving the request for authorization;

(4)

A qualifying non-violating property may be eligible for a third cleaning/obscuring by the city without penalty if the property owner can show they have taken steps to mitigate the ability of third-party(s) to graffiti the property by the deployment of security cameras, security personnel, or other actions to deter further acts.

(g)

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 the time period enumerated in the notice, as described in subsection (f). 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 present a case to the code enforcement board or special master and fines shall be assessed against the property until it comes into compliance.

(h)

The property owner has five business days from receipt or posting of the notice to file for an appeal hearing before a special master.

(i)

The appeal hearing referenced in subsection (h) shall be scheduled for the first available appeal hearing before a special master.

(j)

Appeal hearings shall be conducted by a special master in accordance with article X, section 2-826.

(k)

If the property is found guilty by the special master, the property owner or designee must remove or effectively obscure the graffiti within the time period ordered by the special master.

(l)

If the property continues to be in violation after the time period referred to in subsection (f) or the time period referred to in subsection (k), whichever is later, the city manager or designee shall cause corrective action to take place at the property owner's expense.

(m)

The city manager or designee shall have the right to enter upon private property to the extent necessary to take corrective action. No person shall obstruct, impede, or interfere with the city manager or designee whenever the city manager or designee is engaged in the work of corrective action pursuant to this section or in performing any necessary act preliminary to or incidental to such work pursuant to this section. Entry into any dwelling or structure is expressly prohibited.

(n)

Public right-of-way. Whenever the city becomes aware of the existence of graffiti on any property, including any structure or improvement, that abuts the public right-of-way within the city, the city manager or designee is authorized to immediately remove or obscure such graffiti.

(1)

Definition. For purposes of subsection (n), property that abuts the public right-of-way shall only be property that is easily accessible to the city Manager or designee and does not substantially encroach on private property.

(2)

Objection. Property owners are hereby put on notice of the requirements of this section and the city's intention to immediately remove or obscure graffiti placed on walls, buildings, and other surfaces that abut the public right-of-way. The city shall publish notice of this section once during each week for four consecutive weeks in a local newspaper pursuant to F.S. ch. 50. Any property owner who objects to graffiti being removed or obscured on property abutting the public right-of-way shall file a statement of objection with the city manager or designee within 30 days of the date of the final published notice. Such objection shall be effective for one year. A new objection must be filed each year thereafter to preserve the objection. If an objection is filed by a property owner, subsection (n) shall not apply to that property owner's property. The property owner who objects pursuant to this subsection shall still be subject to the remaining subsections of this section.

(3)

Notice. The appearance of graffiti on a wall, building, or other surfaces abutting the public right-of-way shall serve as notice to the property owner that the graffiti is subject to being obscured or removed by the city. Any property owner who has not filed an objection under subsection (n)(2) and who desires to obscure or remove the graffiti himself/herself shall (i) immediately remove the graffiti or (ii) notify the city manager or designee immediately of his/her intention to remove or obscure the graffiti within 48 hours. Graffiti not removed or obscured within 48 hours is subject to removal by the city manager or designee.

(o)

After taking corrective action, including any corrective action taken on property abutting the public right-of-way pursuant to subsection (n), the city manager or designee shall file a code enforcement lien in the amount of all expenses incurred in correcting the condition, including all fines, continuing penalties, and actual administrative costs.

(p)

Such code enforcement liens pursuant to this section shall be treated as special assessment liens against the subject real property, and until fully paid and discharged, shall remain liens equal in rank and dignity with the lien of ad valorem taxes, and shall be superior in rank and dignity to all other liens, encumbrances, titles, and claims in, to, or against the real property involved. The maximum rate of interest allowable by law shall accrue to such delinquent accounts. Notice of such lien shall be filed in the office of the clerk of the circuit court and recorded in the public records of Miami-Dade County, Florida. Once recorded, such lien shall constitute a lien against the property on which the graffiti existed and upon any other real or personal property owned by the property owner. Such liens shall be enforced by any of the methods provided by F.S. ch. 86, or, in the alternative, foreclosure proceedings may be instituted and prosecuted under the provisions applicable to practice, pleading, and procedure for the foreclosure of mortgages on real estate set forth in the Florida Statutes, or may be foreclosed pursuant to F.S. ch. 173, or the collection and enforcement of payment thereof may be accomplished by any other method authorized by law. The property owner shall pay all costs of collection, including reasonable attorney fees, incurred in the collection of fees, service charges, penalties, and liens imposed by virtue of this section.

(q)

Alternatively, code enforcement proceedings pursuant to chapter 2, article X may be brought against the property upon which the graffiti exists.

(r)

If code enforcement proceedings are initiated, 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 (g), shall be punished by a fine as determined by the code enforcement board. When determining the amount of fine to impose, the code enforcement board shall consider 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 or property if, in the sole determination of the city manager or designee, or the code enforcement board, such property owner, agent, manager, or possessor has been victimized two 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.

(s)

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 as a result of violations of subsection (a) or (b).

(Ord. No. 10958, §§ 1—10, 4-2-92; Code 1980, § 37-36.1; Ord. No. 13148, § 2, 3-11-10; Ord. No. 13676, § 2, 4-27-17; Ord. No. 14292, § 2, 6-27-24)

County Code cross reference—Similar provisions, § 21-30.01.