Miami-Dade Legislative Item
File Number: 161515
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File Number: 161515 File Type: Ordinance Status: Amended
Version: 0 Reference: Control: Board of County Commissioners
File Name: DECLARING LAUREL WILT DISEASE AND LETHAL YELLOWING DISEASE Introduced: 6/21/2016
Requester: NONE Cost: Final Action:
Agenda Date: 7/19/2016 Agenda Item Number: 7A
Notes: SEE 161839 FOR FINAL VERSION AS ADOPTED. SUNSET 5 YEARS 6WKS/4WKS Title: ORDINANCE PROVIDING FOR REMOVAL OF DISEASED TREES AND FOR ENFORCEMENT OF NOTICE TO PROPERTY OWNERS TO REMOVE DISEASED TREES; AMENDING CHAPTER 11D OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; DECLARING LAUREL WILT DISEASE AND LETHAL YELLOWING DISEASE TO BE PUBLIC NUISANCES; PROVIDING FOR ENFORCEMENT BY CIVIL PENALTY; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE; PROVIDING FOR SUNSET OF DISEASE DESIGNATIONS (SEE ORIGINAL ITEM UNDER FILE NO. 160571)
Indexes: DISEASES
  ENFORCEMENT
Sponsors: Daniella Levine Cava, Prime Sponsor
  Jose "Pepe" Diaz, Co-Sponsor
  Sally A. Heyman, Co-Sponsor
  Barbara J. Jordan, Co-Sponsor
  Jean Monestime, Co-Sponsor
  Dennis C. Moss, Co-Sponsor
Sunset Provision: Yes Effective Date: Expiration Date:
Registered Lobbyist: None Listed


Legislative History

Acting Body Date Agenda Item Action Sent To Due Date Returned Pass/Fail

Board of County Commissioners 7/19/2016 7A Amended
REPORT: SEE 7A AMENDED, LEGISLATIVE FILE NO. 161839, FOR AMENDED VERSION.

County Attorney 6/21/2016 Assigned Lauren E. Morse 7/11/2016

Metropolitan Services Committee 6/15/2016 1G1 AMENDED Forwarded to BCC with a favorable recommendation with committee amendment(s) P
REPORT: Assistant County Attorney Gerald Sanchez read the title of the foregoing proposed ordinance into the record. Chairwoman Jordan opened the public hearing on the foregoing proposed ordinance. Assistant County Attorney Sanchez noted the foregoing proposed ordinance had a supplement. Mr. Sidney Robinson, 18710 S.W. 187th Ave, Miami, Florida, appeared before the Committee in connection with Agenda Item 1G1. He said he was representing the Board of Directors of the “Tropical Fruit Growers of South Florida”. Mr. Robinson thanked Commissioner Levine Cava for sponsoring the item. He noted the yellowing diseased trees had been spreading through the County on the eastern coast. Mr. Robinson urged the Committee to vote in favor of the item. He indicated that he had a letter from his committee that he would provide to staff. Ms. Renita Holmes, 350 NW 4th Street, Miami, Florida, appeared before the Committee in connection with Agenda Item 1G1. Ms. Holmes related that a number of her friends and family members had experienced individuals entering their properties requesting to cut down their trees. She added that when the individuals entered the properties, they did so without proper identification and lacking knowledge of the diseased trees. Ms. Holmes wondered what kind of education and knowledge these individuals had to determine the diseased trees. She stated that the residents had their own Homeowners Associations (HOA), in addition to neighborhood Association; and as taxpayers they put effort into protecting their rights. Ms. Holmes said she was concerned for the safety of individuals entering the properties of the residents. She emphasized the need for a plan, education, and awareness-raising aimed at the residents before sending individuals to cut down their trees. Ms. Tangela Sears, 1270 N.W. 119th Street, Miami, Florida, thanked the Mayor and the commissioners for allowing the members of the public to express their concerns to bring forth change. Mr. Joseph Pollio Jr., 23655 SW 202nd Ave., Homestead, Florida, appeared before the Committee in connection with Agenda Item 1G1. Mr. Pollio stated that he was a Commercial Avocado Grower. He noted how serious this matter was for avocado growers, because if the infected trees were not removed the beetles and the lower welch would begin to spread; as result it became costly, and would cause the loss of production. Mr. Polio urged the Committee to vote in favor of the item. There being no other persons wishing to appear before the Committee, the public hearing was closed by Chairwoman Jordan. Commissioner Heyman said she would move the foregoing proposed ordinance; noted she wished to be a co-sponsor of the item; and requested that the Assistant County Attorney read a proposed amendment into the record. Assistant County Attorney Loren Morse read the proposed amendment, as follows: to delete in Section one, on handwritten page 9, Section 11D-7 the following language: “…and the amount of such liens shall be included in tax statements for ad valorem taxes thereafter submitted to the owners of lands subject to such liens.” It was moved by Commissioner Heyman that the foregoing proposed ordinance be adopted, as amended. This motion was seconded by Commissioner Edmonson, followed by discussion. Commissioner Diaz expressed concerns regarding statements that were made by Mr. Pollio. He noted the diseased tree situation was an emergency, as it differed from the Canker Tree situation. Commissioner Diaz noted he was in full support of Commissioner Levine Cava’s item. He said he believed that the Mayor, under an Emergency Declaration, had the right to attempt to eradicate the diseased tree situation. Commissioner Diaz pointed out that the avocado industry was one of the largest industries in the County. He noted the residents who possessed diseased avocado trees were potentially endangering the industry if the trees were not destroyed; and placing a lien on someone’s property did not eradicate the problem. Commissioner Diaz provided the example of a property owner who lived outside of the country; who had a number of infected trees; and as a result caused his neighbor’s trees to become infected, as well. He stressed the importance of helping Commissioner Levine Cava find a solution to this situation. Mr. Charles Lapradd, Miami-Dade County Agricultural Department, noted with regards to the Canker Program, they removed healthy trees that were in proximity of the infected trees. He added that the foregoing proposed ordinance provided for the removal of infected diseased trees. Mr. Lapradd deferred the question regarding the Emergency Declaration to the Assistant County Attorney. Assistant County Attorney Morse stated that the Mayor’s Emergency Declaration would not be within the scope of the item. Commissioner Diaz noted he was supportive of the foregoing proposed ordinance, and would like to be added as a co-sponsor. However, he explained that the item would not resolve the problem of property owners, who lived out of the country; and who had diseased trees on their properties with the beetles that could spread to other properties. Commissioner Diaz said he believed that the only way to resolve the matter was to identify the diseased trees with a view to their removal, whether or not the property owners were present, and send them a bill to be paid at a later date; or to give the property owners 10 days to remove the diseased tree(s). He stressed that a $10, 000.00 fine was a significant amount of money to charge the property owners. Pursuant to Commissioner Diaz’ question as to whether after giving a property owner a certain amount of time to destroy a suspicious tree, the Mayor could use his authority under the Emergency Declaration to eradicate the tree and charge the property owner accordingly, Assistant County Attorney Morse stated that she needed to further research whether or not the Mayor had that authority. She explained that the reason the ordinance was crafted in the current manner, was to give due process rights to the property owners. Ms. Morse advised against entering the property of the homeowners without giving them proper notice to remove their trees. She stated that if they were to remove the property owners’ trees they wanted to do so with a court order along with a judge’s sanction. Commissioner Diaz said he had experienced a similar situation before, and he was simply trying to find a way to support and help Commissioner Levine Cava. Commissioner Diaz noted he believed there was a way that it could be done. Commissioner Levine Cava said she welcomed the support of the committee members as well as their interest in co-sponsoring the item. Commissioner Levine Cava indicated that the item was carefully crafted with the growers, Agricultural Practices Board (Ag Practices Board), and the Agricultural Manager. She acknowledged the sensitivity of entering into someone’s property, especially if this was an absentee landlord, who may be unwilling to make the effort or cover the cost to remove the tree(s). Commissioner Levine Cava pointed out that the trees were obviously dead. She noted she was unaware whether the proposed process would cause an undue delay; and she would welcome the opportunity, if there was a need, for further emergency action. Commissioner Levine Cava stressed the urgency to move forward with the legislation now. She related that she learned about the matter two years ago and was told, there was nothing that could be done about it. Commissioner Levine Cava indicated that the language of the ordinance was carefully crafted, and $150, 000 in funding was received from the State, along with $100, 000 in funding from the County to support the actions to remove the trees, as the Avocado industry was in grave danger. Commissioner Levine Cava reiterated that the ordinance would allow the County to move forward expeditiously, and she would welcomed the opportunity for further emergency action, if need be. In response to Commissioner Levine Cava’s question regarding whether Commissioner Diaz was willing to co-sponsor the item, Commissioner Diaz confirmed that he was willing to co-sponsor the item; however, he wanted to take the matter further. He said he believed that the Mayor had the authority to destroy the infected trees if it was an emergency situation and if it affected commerce and the livelihood of the residents. He noted his willingness to sponsor another item that would give the Mayor the authority to address the situation. Commissioner Diaz emphasized that the main issue was that many landlords or residents lived outside of the State, and this resulted in unattended properties with infected tree(s) that could potentially spread to other properties. Commissioner Diaz reiterated that as it related to the Canker situation, he believed that the $10,000 fine was excessive, and could lead to misconception. Commissioner Levine Cava said she hoped that the item would be forwarded to the County Commission; she expressed her willingness to work with Commissioner Diaz on another item. Chairwoman Jordan recalled what Assistant County Attorney Loren Morse indicated regarding the need for further research on the Mayor’s authority to declare an economic emergency. Chairwoman Jordan said she concurred with the concerns expressed by Commissioner Diaz; she suggested that the County send a property owner a notice that his/her trees had been determined to be diseased and must be removed within a certain number of days; and if nothing was heard from the property owner within a certain number of days, then the trees would be destroyed and the property owner would be charged accordingly.” Chairwoman Jordan stressed that the County could not afford to wait, as it related to having avocados in the community. She requested to be listed as a co-sponsor of the foregoing proposed ordinance. The following pictures/issues were addressed in a Power Point presentation made by Mr. Lapradd: - Ambrosia Beetle which was the size of penny and carried a fungus in its mouth that spread to the trees. - Within five weeks of the infection the tree would ultimately die. - Picture of the same property with infected trees overtime without activity; as a result the infected trees had to be removed. Commissioner Diaz referenced the power point of an unattended property with infected tree(s). He pointed to the open field located directly adjacent to the infected trees, and stated that there used to be avocado trees in that field, but they all died after being infected; and the trees across from the unattended property were endangered in the same fashion. He noted the infected trees were still in the unattended property; however, if the infected trees could be destroyed, the commercial grower next to the unattended property would still have his avocado trees. Commissioner Heyman requested to be listed as a co-sponsor of the foregoing proposed ordinance. Hearing no further questions or comments, the Committee proceeded to vote on the foregoing proposed ordinance, as amended. It was move by Commissioner Heyman that the foregoing proposed ordinance is forwarded to the BCC with a favorable recommendation with Committee amendments to delete in Section one, on handwritten page 9, Section 11D-7 it was to delete the following language: “…and the amount of such liens shall be included in tax statements for ad valorem taxes thereafter submitted to the owners of lands subject to such liens.”, the language will be deleted on page 9. The motion was seconded by Commissioner Edmonson, and upon being put to a vote, passed by a vote of 4-0. (Commissioners Souto and Zapata were absent)

Legislative Text


TITLE
ORDINANCE PROVIDING FOR REMOVAL OF DISEASED TREES AND FOR ENFORCEMENT OF NOTICE TO PROPERTY OWNERS TO REMOVE DISEASED TREES; AMENDING CHAPTER 11D OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; DECLARING LAUREL WILT DISEASE AND LETHAL YELLOWING DISEASE TO BE PUBLIC NUISANCES; PROVIDING FOR ENFORCEMENT BY CIVIL PENALTY; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE; PROVIDING FOR SUNSET OF DISEASE DESIGNATIONS

BODY
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA:
Section 1. Chapter 11D of the Code of Miami-Dade County, Florida, is hereby amended to read as follows: 1
Chapter 11D - DISEASED [[PALM]] TREE[[S]] >>REMOVAL ORDINANCE<<

Sec. 11D-1. - Title; applicability; to constitute minimum standard.

This chapter shall be known as the "Diseased [[Palm]] Tree Removal Ordinance" and shall be applicable in the unincorporated areas of >>Miami-<< Dade County and shall also constitute a minimum standard for all municipalities in >>Miami-<< Dade County, Florida. All references to County personnel shall therefore be applicable to municipal personnel who serve in comparable capacities to the County personnel referred to either by specific assignment by their municipality or by virtue of their general area of responsibility as assigned. Nothing herein shall prevent the municipality from enacting standards which are more stringent than those contained herein.


Sec. 11D-2. - Declaration of legislative intent.

The Board finds that [[the palm blight]] >>certain tree<< disease >>s<< [[known as lethal yellowing]] >> have<< [[has]] reached epidemic proportions within >>Miami-<< Dade County, that the disease >>s are<< [[is a]] highly infectious [[one]] >>,<< and that those trees which are infected [[with lethal yellowing]] to the point that they are >>dead or<< beyond treatment should be quickly removed so as to reduce spreading of [the] disease >>s, which can cause significant harm to the county�s agricultural industry<<.


Sec. 11D-3. - >>Declaration of<< Public nuisance [[declared]] >>; violation<<.

>>(a)<< The existence of [[palm]] tree[[s]] >>species<< infected with [[lethal yellowing]] >>certain diseases<< to the point that they are >>dead or<< beyond treatment >>and continue to be infectious or to act as hosts for disease vectors<< are declared a public nuisance as those trees [[continue to be infectious and are]] >>constitute<< a threat to healthy [[palm]] trees in the area >>and the agricultural industry. The County Commission shall, by ordinance, designate those diseases that constitute such public nuisances<<.
>>(b) It shall be a violation of this code to maintain, permit, let, allow, suffer, or fail to remove a tree that is a public nuisance. Each such tree shall constitute a separate offense.
(c) Enforcement under this chapter may only be brought when an ordinance declaring a specifically named disease a public nuisance is in effect.<<


Sec. 11D-4. - Notice to remedy condition.

If the [[Director of the Park and Recreation Department]] >>Mayor or Mayor�s designee<< finds and determines that a public nuisance as described and declared in Section 11D-3 hereof exists, [[he]] >>the Mayor or Mayor�s designee<< shall so notify the record owner of the offending property in writing and demand that such owner cause the condition to be remedied. The notice shall be >>served<< [[given]] by registered or certified mail, addressed to the owner or owners of the property described, as their names and addresses are shown upon the record of the County [[Tax Assessor]] >>Property Appraiser<<, and shall be deemed complete and sufficient when so addressed and deposited in the United States mail with proper postage prepaid. In the event that such notice is returned >>undelivered<< by postal authorities the [[Director]] >>Mayor or Mayor�s designee<< shall cause a copy of the notice to be served by a law enforcement officer >>or process server<< upon the occupant of the property or upon any agent of the owner thereof. In the event that personal service upon the occupant of the property or upon any agent of the owner thereof cannot be performed after reasonable search by a law enforcement officer >>or process server<< the notice shall be accomplished by physical posting on the said property. >>A copy of the notice shall also be mailed to any current mortgage holders of the property identified in the public records, provided, however that failure to provide such notice shall not prohibit enforcement against the property owner.<<

Sec. 11D-5. - Form of notice.

The notice shall be in substantially the following form:

NOTICE OF PUBLIC NUISANCE

Name of owner ______

Address of owner ______

Our records indicate that you are the owner(s) of the following property in
(described property)

An inspection of this property discloses, and [[I have]] >>it has been<< found and determined, that a public nuisance exists thereon so as to constitute a violation of the >>Miami-<< Dade County Diseased [[Palm]] Tree Removal Ordinance in that there exists on the above-described property one (1) or more [[palm]] trees which are infected with [[�Lethal Yellowing�]] >>_______________________<< and are beyond treatment [[, and which trees are designated by a red circle painted around said tree]]. >>Each infected tree constitutes a separate violation of the Ordinance. Additional information will be provided to identify the affected tree or trees and the proper methods for disposing of the trees.<<

You are hereby notified that unless the above-described trees are removed within twenty (20) days from the date hereof, >>Miami-<< Dade County will >>seek an injunction compelling you to remove the infected tree(s). Alternatively, Miami-Dade County may seek a court order allowing the County<< [[proceed]] to remove said trees >>from your property. Your failure to comply with the twenty (20) day removal deadline may also result in the judicial imposition of penalties against you, which may be up to $10,000 per tree, as well as recovery of damages, costs, and expenses, including contracting costs and related advertising costs for removal of all diseased trees, and the County�s attorney�s fees, for enforcement of the Miami- Dade County Diseased Tree Removal Ordinance, all of which<< [[and the cost of the work, including advertising costs and other expenses,]] will be imposed as a lien on your property if not otherwise paid within thirty (30) days after receipt of billing.

>>MIAMI-< By: ______
[[Park and Recreation Department Director]] >>Mayor or Mayor�s Designee<<







[[Sec. 11D-6. - Hearing.
Within twenty (20) days after the mailing of notice to the property owner, the property owner may make written request to the County Manager for a hearing before him or one (1) of his assistants to show that the palm trees referred to in the notice are not infected with lethal yellowing or that their infection has not progressed to the point that said trees are beyond treatment. At the hearing the County or the property owner may introduce such evidence as is deemed necessary. The County Manager or an assistant designated by him shall hold hearings at appropriate times and places, and the County Manager shall establish rules and regulations for the review procedure. Following the review by the County Manager or the assistant designated by him, the owner will be deemed to have exhausted his administrative remedies.]]


Sec. 11D-[[7]]>>6<<. - Trees may be removed by County; lien for expenses.

>>(a)<< If >>the trees identified in the notice provided under Section 11D-5 have not been removed<< within twenty (20) days after >>service<< [[mailing]] of the notice [[no hearing has been requested and the trees described in the notice have not been removed, the Director of the Park and Recreation Department shall have the trees removed by Dade County at the expense of the property owner. If a hearing has been held and has concluded adversely to the property owner, the Director of the Park and Recreation Department shall have the trees removed by Dade County at the expense of the property owner.]] >>, the Mayor or the Mayor�s designee is hereby authorized to seek injunctive or other appropriate judicial relief against the record owner of the property and any other relevant party to enforce compliance with the requirements of this chapter.

(b) As set forth in Section 1-5 of this code, the property owner and any other relevant parties shall be subject to the judicial imposition of a civil penalty in an amount not to exceed ten thousand dollars ($10,000.00) per tree, and shall be liable for damages, costs, and expenses, including but not limited to attorney�s fees.

(c)<< After removal of the trees [[the Director of the Park and Recreation Department or]] the County [[Manager]] >>Mayor or Mayor�s designee<< shall certify to the Director of Finance the expense incurred >>, as well as any damages, costs, including attorney�s fees, and any penalties assessed,<< and shall include a copy of the notice above-described and a copy of the decision [[of the County Manager, or his designated assistant]], if a hearing was held, whereupon such expense shall become payable within thirty (30) days, after which a special assessment lien and charge will be made upon the property, which shall be payable with interest at the rate of [[six (6)]] >>twelve (12)<< percent per annum from the date of such certification until paid.


>>(d)<< Such lien shall be enforceable [[in the same manner as a tax lien]] in favor of >>Miami-<>Miami-<< Dade County, Florida.

>>(e) Civil penalties imposed by judicial proceedings for violations of the diseased tree removal regulations in this chapter may be used to assist in the removal of diseased trees on properties complying with such regulations, to aid in tree canopy replacement, or other related purposes.<<


Sec. 11D-[[8]] >>7<<. - Duty of Director of Finance to keep records of liens.
The Director of Finance shall keep complete records relating to the amount payable for liens above-described [[and the amounts of such liens shall be included in tax statements for ad valorem taxes thereafter submitted to the owners of lands subject to such liens]].2


[[Sec. 11D-9. - Review by certiorari.
Any party aggrieved by the administrative decision may have such decision reviewed by the filing of a petition for writ of certiorari in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, for a review of the record upon which the decision is based, in accordance with the procedure and within the time provided by the Florida Appellate Rules for the review of the rulings of any commission or Board , which rules of practice and procedure are hereby adopted. For such purposes, the County Manager shall make available for public inspection and copying the record of each such decision to be reviewed; provided, the Manager may make a reasonable charge commensurate with the cost, in the event he is able to and does furnish copies of all or any portion of the record at the hearing. Prior to certifying a copy of any record or portion thereof, the Manager or his designee shall make all necessary corrections in order that the copy is a true and correct copy of the record, or those portions thereof requested, and shall make a charge of not more than twenty-five cents ($0.25) per page, instrument or exhibit; provided the charges here authorized are not intended to repeal or amend any fee or schedule of fees otherwise established.]]

Section 2. This Board hereby designates the following tree diseases to be public nuisances: (1) lethal yellowing disease and (2) laurel wilt disease.
Section 3. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 4. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.
Section 5. Section 2 of this ordinance shall sunset five years after the effective date of this ordinance, unless reenacted by this Board. Six months prior to the sunset date, the Agricultural Practices Advisory Board may issue a recommendation to this Board regarding the extension of the ordinance.


Section 6. This ordinance shall become effective ten (10) days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.


1 Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now in effect and remain unchanged.

2 Committee amendments are indicated as follows: Words double stricken through and/or [[double bracketed]] are deleted, words double underlined and/or >>double arrowed<< are added.



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