miami beach curbs alcohol use after 2 a.m

8/20/2019 Miami Beach Curbs Alcohol Use after 2 A.M.

1/26

THE HERALD

Page 1 of 5

4 August 2015

Raul Aguila, Esq.

City Attorney

CITY OF MIAMI BEACH

Subject: 2 A.M Alcohol Restriction Ordinances Held Invalid

Dear City Attorney:

As you

are

aware,

City

Clerk

Rafael

Granado,

Esq.

responded

to

my

inquiry

as

to

the

validity

of

the recently enacted ordinances regulating the sale and consumption of alcoholic beverages on

sidewalk cafes in the wee hours of the morning.

There has been considerable confusion among those who heard about the provisions of the

ordinances from various sources, but did not know where to view them because they have not

been codified and published. In any event, they are invalid for several reasons.

Mr. Granado sent me three related ordinances with appendages: 2015‐3938 signed 20 May;

2015‐3939 signed 20 May; 2015‐3953 signed 18 July.

When asked if the enacted bills were published in the newspaper, he referred me to 2015‐

3939, which has appended a copy of a 10 May Notice of Public Hearing to consider bills “To

Terminate the Sale and Consumption of Alcoholic Beverages at 2 a.m. amending Chapter 6 and

Chapter 82.” He appended no such Notice to 2015‐3938, which is the heart of the legislation.

Mr. Granado explained that notices of hearings satisfy the statutory requirements for notice of

hearing. That may be, but those notices do not satisfy the maxim maximus that “An enactment

that regulates persons or property and imposes a fine for violations must be a printed law and

citizens must have notice that it is in effect before they can be subjected to regulation and

fines.”

To wit, the public must have notice not only of the possibility that prospective legislation is to

be considered, but must also have notice that legislation under consideration was passed into

law.


2/26

THE HERALD

Page 2 of 5

Furthermore, I pointed out to Mr. Granado that the titles of the resolutions differed from the

body in respect to the time that consumption and sale would be prohibited.

As you both know only so well, Sec. 166.041(2) Fla. Stat. requires that “The subject shall be

clearly stated in the title.” The reason for that is obvious: most people glance at the title, and if

it satisfies

their

inquiry,

pass

on

without

reading

the

rest

of

the

bill.

The titles refer to 2 A.M. as the time both sale and consumption is prohibited. However, the

body of 2015‐3938, which is at the heart of the amendments, gives 2 A.M. for halting

consumption and 1:30 A.M. for halting sale.

That alone caused confusion with restaurant managers who happened to hear from one source

or another that 2 A.M. was the right time to end both sale and consumption. The Notice of

Public Hearing also gives the wrong time.

So the

ordinances

are

fatally

defective

for

lack

of

effective

and

clear

publication

and

for

their

conflicting provisions.

That is not all. Even worse, no independent economic or fiscal impact study was made as

required by the city charter. Instead, as you can see from the attachments, it was simply

presumed there would be no impact in the rush to curb sale and consumption of alcoholic

beverages on sidewalk cafes, even those with 5 A.M. licenses. That assumption is logically

absurd. Of course a restriction of sales over three hours citywide will have some economic and

fiscal effect.

My understanding

of

the

history

of

this

rush

to

judgment

is

that

influential

neighborhood

association members brought pressure on the mayor to cut back hours for alcohol sale on

Ocean Drive not only on sidewalk cafes but inside establishments as well. I recently observed

two prominent members giggling on the Historic Preservation Board as they approved the

demolition of a historic building in order to build multimillion dollar condominiums. Rich people

will not be a nuisance here, they chuckled. No doubt they will, however, drink after 2 A.M., and

no doubt a few wives will be sorely abused.

The chief of police who answers to the city manager who answers to the mayor who controls a

majority

of

the

commission

cited

criminal

activity

in

the

Ocean

Drive

area

after

2

A.M.

as

the

cause for the legislation, yet no careful study was made to determine if the crimes were

committed by persons drinking on sidewalk cafes after that time, and/or if police patrols alone

were inadequate to control crime during that time in comparison to earlier hours.

Legal issues were raised, so it was decided to restrict sale and consumption on sidewalk cafes

only, and to extend that restriction citywide to where there were none of the problems as


3/26

THE HERALD

Page 3 of 5

alleged on Ocean Drive. So everyone was selected to suffer for the alleged misbehavior of a few

people near Ocean Drive.

I have lived in the ghetto near Ocean Drive for a decade. My experience is of course anecdotal,

yet I can say that most of the crime in the area has nothing to do with visitors drinking at

sidewalk cafes

on

Ocean

Drive,

and

a lot

to

do

with

ineffective

police

enforcement

in

the

neighborhood during those hours.

I must add that the police department under the old regime, with Major Causey in charge of the

Entertainment District, was instrumental in resolving criminal behavior in part fomented by the

attraction of Miami riff raff to Washington Avenue hip hop clubs south of Seventh. The Great

Recession and the exodus of paperless migrants was also a major factor in the reduction of

crime in the neighborhood.

Nevertheless, we now have drunks wandering the alleys, drunks squatting and urinating in

doorways even across the street from the police station, and drunks passing out on the streets

and in the parks, at all hours of day and night since the “reform” regime took office (see photo

gallery below). And not a single one of them drinks at sidewalk cafes where a cocktail costs at

least $7. Some of them steal whatever they can lay their hands on to support their habit, and

we have experienced knifings and rapes.

And then we have drunks at home beating and even killing their wives and girlfriends. Perhaps

prohibiting drinking at home after 2 A.M. would reduce that by 20%. Why not restore

Prohibition?

The current ordinance is the most ill‐conceived and ill‐advised legislation that the city has

suffered from the “reform” regime thus far. Even worse, it is hastily and poorly drafted, unclear,

and inadequately published.

In fine, it is invalid.

Therefore, you would be well advised to counsel the administration to cease enforcement and

go to the commission after the election for guidance.

Repeal it. Start over.

Sincerely,

David Arthur Walters

Cc:

Frank Del Vecchio, Esq.


4/26

THE HERALD

Page 4 of 5

Random Photo Gallery

Scott Robins Club 743 Washington Avenue


5/26

THE HERALD

Page 5 of 5


6/26

CHAPTER

6—

ALCOHOLIC BEVERAGES

ORDINANCE

NO.

2015-

3938

AN ORDINANCE OF THE MAYOR

AND

CITY COMMISSION OF THE CITY OF

MIAMI BEACH,

FLORIDA,

AMENDING

CHAPTER

6,

ENTITLED

ALCOHOLIC

BEVERAGES,

OF

THE CODE

OF THE

CITY

OF

MIAMI

BEACH,

FLORIDA,

ARTICLE

I,

ENTITLED

IN

GENERAL, SECTION

6-3

THEREOF, ENTITLED

HOURS

OF

SALE,

TO TERMINATE

THE

SALE AND CONSUMPTION OF

ALCOHOLIC

BEVERAGES

AT

SIDEWALK

CAFES

AT 2:00

A.

M.,

PROHIBIT

THE GRANTING OF VARIANCES FROM THE PROVISIONS OF SECTION 6-

3(3)( d),

AND

PROVIDE FOR

PENALTIES;

AND PROVIDING

FOR

REPEALER,

SEVERABILITY,

CODIFICATION, AND

AN EFFECTIVE DATE.

WHEREAS, the

City

of Miami

Beach (

City )

reguates

the location,

size and

hours of

operation, and patron

age

of uses, that permit the sale and consumption

of

alcoholic beverages

in Chapter 6

of

the

City

Code,

entitled

Alcoholic

Beverages ;

and

WHEREAS, it is in

the

best

interest

of

the

City,

and

it

serves

the

health,

safety,

and

welfare

o f th e

City'

s

residents and

visitors,

to require t ha t s id e w a lk cafes, which

are

located on

pubic

rights-of-

way,

terminate the sale and consumption of alcoholic beverages at 2: 00 a. m .,

because

the

sale

and

consumption of alcoholic beverages at sidewalk cafes can disturb

the

q u ie t e n jo y me n t o f th e c o mm u nity , c a us e u n de s ira ble noise, resul t in

phys ica l

d is p ute s a m on g st

patrons

and

passers-

b y,

and

contribute

to

litter, noxous

odors,

and the general degradation of

the City; a n d

WHEREAS,

the Miam i

Beach Police Department

h a s requested

that the City limit the

hours

during

whch

acohoic

beverages

may

be

sod

or

consumed

at

sdewakcafes,

because

the

s a le a nd

consumption of alcoholic beverages a t sidewalk cafes implicates the safety of the

City'

s

residents

and

visitors,

as

well

as

th e

p olice of fi cers

s wo rn to

p rote ct them ;

and

WHEREAS,

this amendment

to

Chapter 6 of the City

Code

is intended to

ensure

that

Officer Eduard

Alba of

the

M i a m i

Beach Police

Department

is recognized

for

dedicating himself

to

protecting

this

City

and its

resdents

and

vstors, and to

ensure that other

officers are not

endangered; and

WHEREAS,

the

State

expressly

grants the

City

the

authority

to

estabish its own

regulations for the time for sale

of

alcoholic or intoxicating beverages;

and

WHEREAS,

pursuant to

Section

562.

14,

Florida

Statutes,

n o

alcoholic beverages may

be sold, consumed, served, or permitted

to be

served or consumed in any place

licensed

to

sel l

acohoic

beverages

between

the

hours

of

mdnght

and

7:

00 a.

m.,

unless

a

municipality elects

to

establish its o w n regulations for the time for

sa l e

of alcoholic or intoxicating beverages;

a n d

WHEREAS, Sect ion 562. 14, F lo r id a S ta t u tes , c l ear ly i n d ic a te s t h a t th e S ta te s ha ll n ot

be

responsible for the enforcement of

the

hours of

sale

established

by

a

municipal

ordinance;

a n d

WHEREAS,

in

Wednesday

Nght,

Inc.

v.

City

of

Fort

Lauderdale,

272

So.

2d

502 (

Fla.

1972),

the Florida

Supreme

Court uphed

Section

562.

14,

Florida Statutes,

holding

that the

statute,

whch

reates

to

state,

muncpa,

an d

c o u n t y r eg u la tio n s o f th e t ime

for

sale o f alcohol ic

1


7/26

and

intoxicating

beverages (

1 )

does

not contravene Federal and

State

constitutional guarantees

ofdue

process

and

equa

protection

of

the

laws; (

2) does not constitute an unlawful delegation

of the powers

of

the

legislature;

and (

3)

does

not contravene

any of

the prohibitions against

s p ec i a l

laws

o r ge ne ra l la ws

of

l oca l a p p lic a tio n a p p ea r in g in Sect ion 1 1 of

Article

II I o f th e

Florida Constitution;

and

WHEREAS,

Florida

Courts

have

determined

that

it is

wthn

the

police

power

and

authority

for

a

municipality

to

change

the

hours of

reguationof alcoholic

beverages,

because

authority

under

Section 562.

14,

Florida

Statutes,

to

restrict the

have the statutory

aut

uncpaities

ry

y

sae

of

acoho;

additionally,

a municipal

ordinance

regulating the hours

of

sale

of alcoholic

beverages

ma y be applied

to

a p rop er ty incorp ora te d lat er into the munic ipal ity by annexat ion.

Village

of

North

Palm

Beach

v. S &

H

Foster'

s,

Inc., 80

So.

3d 433 (

Fla. 4th

DCA

2012); and

WHEREAS,

Flor ida C o u r t s h a v e he ld

that

a m u n ic ip a li ty e x e r c is i n g it s in h e re n t p o w e rs

may

reasonably

reguate the

sae

of

intoxicating

liquors

and,

in providing

such reasonable

reguations,

may

prohbt

sae

ofsuch

liquors

wthncertan

zones.

State

ex

rel.

Floyd

v.

Noel,

169 So. 549 (

Fla. 1936);

and

WHEREAS, the Florida

Attorney

General

has

opned

that

a

municipality may

reguate (1

the hours

ofsae, (

2)

zoning

of

locations

in

whch

acohoic

beverages

may

be

sod,

and (

3) the

s a nita ry c o nd itio n s u n de r which a lcoholic be ve ra ges ma y

be

dispensed o r s er ve d to th e public.

Op.

Att'

y

Gen.

Fla.,

059-73 (

1959);

and

WHEREAS,

th e City

ma y

regulate

th e

hours of sale o f a lc o ho lic b ev era ge s at sidewalk

cafes,

provided the regulations

a re n o t

exercised

in an

arbitrary

or discriminatory

manner,

a n d

are grounded upon

some reasonable

basis

of

classification with

reference

to the subject matter

to

be

reguated.

Makos

v.

Prince,

64

So. 2d

670 (

1953);

and

WHEREAS,

such regulat ions ma y e sta blis h s ep ara te z on e s an d do n ot re qu ire th a t

reguation

ofhours be

unform

throughout

the

jurisdictional limits.

Id.; and

WHEREAS,

in fact, th e Florida

Attorney

General has o pin ed t ha t

dif ferent

h ou rs ma y

be

provded

for in

a

muncpa

ordnance,

provided there is

reasonable

relation to

the

health, safety,

and

morasof

the

community.

Op.

Att'

y

Gen.

Fla.,

p.

497 (

1950);

and

WHEREAS,

a business

is

nether

entitledto

grandfathered

status nor entitled to enjoin

enforcement

of

an

ordnance

regulating

the

times

during

whch

liquor

may

be

sod.

Village of

North

Palm

Beach

v. S &

H

Foster's

Inc.,

80

So.

3d

433 ( Fla.

4th

DCA

2012);

Other Place of

Miami,

Inc.

v.

City

of

Hialeah

Gardens,

353 So.

2d

861 (

Fla.

3d

DCA

1977);

and

WHEREAS,

injunctive

relief

is not available

against

the

enforcement

of

a

municipal

ordnance

regulating

the

time

at

whch

acohoic

beverages

may

be sod,

because municipalities

have

the

statutory authority

to

set

times

for

sae

ofacohoic

beverages. Id.;

Playpen S.,

Inc.

v.

City

of

Oakland

Park,

396

So.

2d

830 (

Fla.

4th

DCA

1981);

and

WHEREAS, F lo rid a C o u r ts

h a v e

ru led that

h o u r s

o f o p e ra tio n a re n o t

a

p r o pe r ty r ig h t. S.

Daytona

Rests.,

Inc.

v.

City

ofS.

Daytona,

186

So.

2d

78 (Fla.

1st DCA

1966);

and

WHEREAS,

the amendments

set

forth below are necessary

to

accomplish

the

objectives

identified

above.

2


8/26

NOW,

THEREFORE,

BE

IT

ORDAINED BY THE MAYOR AND CITY COMMISSION

OF

THE

CITY

OF

MIAMI BEACH,

FLORIDA:

SECTION

1.

That

Section

6-

3,

entitled Hours

of Sale,

of

Article

I,

of

Chapter

6,

of

the

City

C od e of th e C ity o f M ia mi B e a ch is h e re b y a me n d ed as fol lows:

CHAPTER

6

ALCOHOLIC BEVERAGES

ARTICLE

I.

In

General

Sec. 6-

3.

Hours of

Sale.

Th e

h o u r s

o f

sale o f

alcoholic b ev er ag es

shal l be

ac c o r d i n g

to

th e fo llo w in g s c he d ule ,

except as ma y be otherwise

provided

pursuant

to

subsect ion{

7-)

LQ :

1 )

Retail stores

for

package

sales

only, either

as

permitted

main

or

accessory

uses.

e -

e - --

as

permtted

a

of

accessory us .

V e n d ors having

a license fro m th e state divis io n

o f a lc oh o lic

beverages

and

tobacco

for the sale of

liquor and

other

alcoholic beverages

for

consumption

off

th e premises shal l

only

offer

fo r sale

a lc o ho li c b ev e ra ge s w i th in t he

hours

of 8 : 0 0

a.

m.

and

midnight o n

any day

of the

week.

2)

Retail

stores,

including

grocery

and

convenence

stores,

and

gasoine

service/fi l l ing

stat ions,

which primarily

offer

fo r sale

products

other than alcoholic

beverages. Retail stores, including

grocery

and

convenience

stores, and gasoline

servce/

filling

stations,

ether as

permtted

man or

accessory

uses,

whch

primarily offer fo r

sale

p ro d u cts o th e r than a lcoholic be ve ra ges

may on ly

make

sales

of

beer and wine

in

sealed

containers

for

consumption

off

the

premises

between

the

hours

of

8: 00 a.

m.

and

midnight

o n any day of

the week.

3)

Alcoholic

beverage

estabishments.

All

estabishments

licensed as

acohoic

beverage

estabishments (

mdnght

to 5:00

a.

m.),

either as permitted

main

or

accessory

uses,

s ha ll o nly o ff er a lc o h o lic b e ve ra g es for sale

the

o r on- premises

consumption

wthnthe

hours

of

8:

00 a.

m.

and

5:

00 a.

m.

o n

any day of

the

week.

a. Restaurants

not operating

as dance halls

or entertainment establishments.

Restaurants with

f u ll k it c he n

facilities, serving

fu ll m e a l s , l ic e n s e d

a s alcoholic

beverage

estabishments {

mdnght to

5:

00

a.

m.),

but

not operating

a s

dance

halls

or

entertanment

estabishments,

may

remain

open 24

hours

a

d ay ;

however,

a lc o h o lic b e ve ra g es may no t be o ffe re d fo r

s a le or

on- premises

consumption between the

hours

of

5: 00 a .

m . and

8 : 00 a.

m .

b.

Restaurants also operating as dance halls or

entertainment

establishments.

R e s ta u r a n ts w i th f u ll k it ch e n faci l i t ies, serv ing ful l meals , l i censed a s alcohol ic

beverage

estabishments (

mdnght to 5: 00

a.

m.),

and also

operating

as

dance halls,

or

entertanment

estabishments,

m ay re ma in o p e n 24 h o u r s

a

day;

however,

acohoic

beverages

may

no

be ofered

for sae

or

on-

3


9/26

premses

consumption

between

the hours

of 5: 00 a.

m. and

8:

00

a.m., and

dancing

and enter ta inment

shall

not be conducted

between

th e hours of 5: 0 0

a. m.

and

10:

00

a.m.

c.

Other

acohoic

beverage

estabishments.

Other

acohoic beverage

estabishments {

mdnght

to

5:

00

a.m.),

n ot c o nta in in g res taurants

w ith fu ll

kitchen

facilities,

shal coseat

5:

00

a.

m.

and

keep closed the place of

business

and

no

alow

any

patron

or

other

persons, other

than those

employed

by

th e vendor, to remain th ere in betw een th e hours of 5:

0 0

a .

m.

and

8:00 a. m.

d.

Sidewalk cafes.

Notwithstanding

the

provsons

ofsubsections (3)(a)

through

c),

acohoic

beverages

shal

not be

offered for sale

or consumption at

sdewakcafes,

as defined

in

section 82-366 of

this Code

and as otherwise

permtted

by

the

City

in accordance

wth

chapter

82, artice

IV, division

5,

subdvson

II

of

this

Code ( as

may

be

amended

from time

to

time),

between

the

hours

of

2:00 °

m.

1 :

30

a. m.

and

8:

00 a. m., and

shall

not be consumed at

sdewakcafes

between

the

hours

of

2:00

a.

m. and

8:00

a.

m.

No

variances

may

be

granted

from

the

provsonsof

this

section

6-

3(3)(

d)

as to

the

hours

of

sale or consumption of alcoholic beverages at sidewalk cafes.

Note:

For purposes

of this

section,

full

kitchen

facilities

shal mean

having

commerca grade

burners,

ovens, and

refrigeration

units

of sufficient

size

and

quantity

to

accommodate

the

occupancy

content

of the

estabishment. Full

kitchen

facilities

mus

contangrease

trap

interceptors,

and mee all

appicabe

city,

county, and

state

codes.

4)

Off-premises package

sales

by

alcoholic

beverage establishments. Off-

premises

package

saes

shal

be

permtted

between

the

hours

of

8:00 a.

m.

and

mdnght,

for all establishments

licensed as

alcoholic beverage establishments.

5)

Private

cubs.

A

Private

private

cubs,

either as

a

permitted

main or accessory

use, shal

be

consderedpursuant

to

subsection6-2(

a)

shall

only

offer alcoholic

beverages for sale or on-premises consumption

if

the private club, in accordance

wth

section

6-

2(

a),

secures a license for the

distribution

or sale of any

alcoholic

beverages

from

the

division of acohoic

beverages

and

tobacco

of the

department

of business

and

professona

reguation of the

state Hours

of

Private

clubs

licensed as alcoholic

beverage

establishments, either as

permitted main or

accessory

uses,

shall. only

offer alcoholic beverages for

sale

or on- premises

consumption between

the

hours

of

8:

00 a.m. and 5:00 a.

m.,

Sunday,

on

any

day

of

the

week,

provided that service is made only to

members

and

guests

of

members

pursuant

to

Florida

Statutes.

However,

any

private club

permtted

to

reman

open

after

2:00

a.m.

shall purchase an

extra-

hours

license

an d

m u st p ro v id e for secur i t y

in it s

premises

by

h irin g p riv a te s e c ur ity

gu a rd s

o r

off-

duty

police

officers

b etw e en th e h ou rs

of

2 : 00

a . m .

an d

5 :

00

a. m .

e ach d ay .

Private c lu bs s e cu rin g a lic en se fro m th e state d iv is io n o f a lc oh o lic b ev e ra ge s

and

tobacco

by

complying

wth

the

requrements

of

F7S. §

561. 20

for racquetball,

tennis,

o r gol f course

facil it ies ma y

a d mit m e mb er s at

an y

t ime fo r

use o f such

facilities,

but

may

no

serve

acohoic

beverages

after

2:

00

a.

m.

each day unless

4


10/26

such private

club

is ,

the holder

of

a n

extra-hours license and

complies

with

the

aboverequrements.

0 - .'

0-- - -

9- . _,

f

7-

4L6 1

Alcoholic

beverage

estabishments

set

forth

in subsections (

3)

and (5)

permtted

to remain open to serve alcoholic

beverages for on-premises

consumption until

5:00

a.

m.

may

continue

to

serve

acohoic

beverages (

i

until 7:

00

a.

m. on

January

1

New

Year'

s

Day)

or,

if

January

1

is

on

a

Sunday,

until 7:

00

a.

m. on

Monday if th e d ay

that i s

observed as

a

national holiday

fo r

N ew

Year'

s D ay i s on

Monday,

and (ii)

until

7:

00

a.

m.

d u r in g c e rt ai n major e ve n t d ay s o r

w e e k e n d s as

ma y

be

designated

by

th e c ity commission

or as

may

be

designated

by th e city

manager

following

approva

by

the

city

commsson,

under

the

following

condtions:

a.

The

police department and the

code

compliance division department of the

city

must

be

notified

by a letter,

received

no later than 1 5 business days prior

to

ether (

a)

January

1

or (b)

th e

d ay

on which a lc oh ol s ale s

are

to be

extended,

s ta tin g th at th e a lc oh olic b ev era ge

establ ishment

intends

to s erve

alcoholic beverages

for

o n - premises consumption

until

7: 00 a . m.;

b.

If

deemed

reasonably

necessary by

the

poice

chef,

or the police chiefs

designee, off-d u ty p olic e officers must

be

provided at th e a lc oh o lic b ev er ag e

establishment until

7:

00

a.

m.;

c.

There are no pending

C ity C ode

v io la tio ns a ga in st th e a lc oh olic b ev era ge

estabishment;

d. No delinquent or past due monies are owed to the city;

e.

Outdoor entertainment or

open-air

entertainment is not

allowed;

f.

N o

violat ion

of

th e

city'

s noise o rd i n a n c e shal l

be

permi t ted ;

g.

N o

violation of

the approved

fire code occupancy

l oad

shall be permitted;

h.

A ll re q uire d c ity permits a n d l i censes

a re

current;

i.

The State

of

Florida

alcoholic beverage

license

is

current;

and

j.

Any o ther

condit ions

required by th e

city

manager

in

order

to

p ro te ct th e

public`

health,

safety,

or

welfare.

Alcoholic

beverage

estabishments

set forth

in

subsections (3)

and (

5)

permtted

to

remain open to

serve

alcoholic beverages

for

o n - premises consumption until

5:

00

a.

m.

may

continueto

serve

acohoic

beverages

until

6:

00 a.m.

on the

first

d ay

o f

d a y lig h t s a v in g s t im e in t he s p rin g .

5


11/26

8} al

Th e

city manager ma y

suspend

t he p ro v is io n s of

subsection {

7}(6)

at

an y time

to protect the public health, safety, or welfare.

Penalties and enforcement.

a.

The

following

penalties shall be

imposed

for a violation of

this section:

i.

The penalty for the first violation

by

a person or entity within a 1 2-

month

period

shal

be

a

cvl

fine

of$

1 , 000.

00;

ii.

The penalty for

the

second

violation by

a person

or entity

within a

12-

month

period

shal

be

a

cvl

fine

of$

5,000.00;

iii.

Th e p en a lty fo r th e th ir d v io la tio n by a person o r e n tity w ith in a 12-

monthperiod

shal

be a

cvl fine

of$

10,

000. 00;

iv.

Upon

a

finding

by

the

speca

masterthat four (

4) ormore

voations

by

a

person

or

entity

have occurred

wthn

a

12-

month

period,

the

city may

initiate

proceedngs

to

revoke

the

certificate of

use,

business tax receipt, or certificate of occupancy of the

violator.

v.

A

sdewakcafe

permtteethat

has been

issued four (

4) or

more

violations

pursuant to this section or section 82-388 within a

permit

year

shall

be prohibited

from applying for

and

obtaining

a

sidewalk

cafe

permt

for a

period

of

two (

2)

permit years following the permit

year in which

the sidewalk cafe

permittee

incurred the

violations.

b.

Enhanced

penalty.

The

following

enhanced

penalty

shal

be

imposed, in

addtion

to

any

mandatory

fines

set forth

in

subsection (8)(

a) above,

for

violations of

this

section:

i The

sale of

alcoholic

beverages

in

violation

of this section

must

b e

immediately

terminated,

upon

confirmation by

the

code compliance

department

that a violation has occurred.

c.

Enforcement. The code compliance department shall enforce

this

section.

This

shal

no

precude

other

law

enforcement

agences

or regulatory

bodies from any action to assure

compliance

with this section and a ll

appicabe

laws.

If a

code

compance

officer (

whch, as defined

in

section

70-66,

includes

a

poiceofficer)

finds

a

voation

of this

section,

the

code

compliance

officer shall

issue

a notice

of

violation in the

manner

prescribed

in

chapter

30

of

this Code.

The

notice

shall

inform

the violator of

the nature

of the

voation,

amount of

fine

for

whchthe

voator is liable,

instructions

and

due date

for

paying

the fine,

that the violation

may be

appealed

by

requesting

an administrative h e arin g b efo re a special master w ith in te n

10)

days

after

servce

of

the

noice

of

voation, and

that

the

failure

to

appea the

voation

wthn

ten (

10)

days

of service

shall

constitute

an

admission of the violation and a

waiver of

the right to a hearing.

6


12/26

d.

Rights

of

voators;

payment

of fine;

right

to

appear;

failure to

pay

civil fine

or

to appeal;

appeals

from

decisions of the

special

master.

i.

A violator

who

has

been served with a notice of violation must elect

to

either

A.

pay the civil fine

in

the manner indicated

on

the notice of

voation; or

B. request an administrative hearing before a special master

to

appea

the

noice

o

voation,

which must be requested

wthn

ten (

10) days

of

the service

of

the notice

of

violation.

ii.

The procedures for appeal

by

administrative hearing of the

notice

of

violation

shall

be as

set

forth

in

sections 30-72 and 30-73 of

this

Code. Applications for

hearings must

be accompanied by a fee as

approved

by

a

resoutionof the

city

commsson,

which shall

be

refunded

if

the named

violator

prevails

in

the

appeal.

iii.

If

the named

violator, after

issuance

of

the notice

of

violation, fails

to

pay

the

cvl

fine,

or fails

to timely

request an

administrative

hearing

before

a

speca

master,

the

speca master

may

be

informed

of

such

failure by report from the officer. The failure of the

named

voator

to

appea

the

decision

of

the

officer

within the

prescribed time period shall constitute a

waiver of

the

violator'

s

right to

an

admnstrative

hearing

before

the

speca

master,

and

shall be treated as an admission of the violation, for

which

fines

and

penalties shall be

assessed

accordingly.

iv.

A c e rt if ie d copy o f an o r d er imposing a f ine ma y

be

recorded in th e

pubic

records,

and

thereafter

shall

constitute

a

lien upon any real

or p e rs o n a l p ro p e rt y o w n e d by t h e v io l a to r , w h i ch may be enforced

in the same

manner

a s a

court judgment

b y

the

sheriffs of

this

state,

including levy

against the violator'

s real or personal property,

but

shal no

be

deemed to

be

a

court

judgment

except

for

enforcement

purposes.

On or

after

the

sixty-

first ( 61st)

day

following

the

recording

of

any

such

lien

that

remans

unpad,

the

C ity m ay fo re c lo s e o r o th e rw is e e x e cu te upon th e l ien.

v.

Any party aggrieved by a decision of a special master may appeal

that

decision to a

court of competent

jurisdiction.

v.

Th e s pe cia l

master

shal l

be p ro h ib ite d fr om hear ing th e me rits o f

th e n otic e o f v io la tio n o r c on sid erin g th e t imel iness o f a re q u e s t

fo r

an administrative hearing if the

violator

has failed to request an

admnstrative

hearing

wthn

ten (

10)

days of

the service

of the

noiceofvoation.

vi. The

special

master

shall not have

discretion

to alter the penalties

prescribedin

subsection (

8)(

a)

or(

8)( b).

7


13/26

SECTION

2.

CODIFICATION.

It

is th e in te ntio n o f th e M ay or and City C o mm is sio n o f th e City o f

Miami

Beach, and it is

h ere by o rd ain ed th at th e p ro vis io ns of this O rd in an ce shall be co me an d be made part of the

Code

o f th e

City

of

Miami B each , Florida.

Th e s ec tio ns o f th is O r din an ce

ma y be

r en u mb ere d o r

re-

lettered

to

accompish

such

intention,

and,

the

word

ordnance

m a y be changed to section,

artice,

or other appropriate word.

SECTION 3. REPEALER.

All ordinances or parts of ordinances in conflict herewith are hereby repealed.

SECTION

4. SEVERABILITY.

If

any

section,

subsection,

cause

or

provson

of

this

Ordinance

is

held invalid,

the

remainder shall n o t

be

affected by s uc h invalidity.

SECTION 5. EFFECTIVE DATE.

This Ordinance shall take effect

ten days

following adoption.

PASSED

and

ADOPTED this

20

day

of

M

Q

2015.

ATTEST:

ommutt'

Lg

N \ .

F,

7 t ,

Levin;/

L

a

r

P'

V

Rafael E.

Granado,

City

Clerk

i

Sponsored

by

Mayor

Philip

L=

ill

Sponsored

by

Commissioner ;

icha.

4

o

First

Reading:

M a y 6, 20 r•%

Second

Reading:

May

20,

2 v1

II

C

T M A.•.

g

Y

I

rp

Underline denotes new language

Double underline denotes language added at Second Reading

denotes removed

language

APPROVED

AS TO

FORM

AND LANGUAGE

AND

FOR EXECUTION

c9J _

0;

5

14(

5

City

Attorney

Date

F:\

A

TTO\

K A L N \ O RDI N AN C ESWl c o h o l \Alcoholic Beverages H ou rs o f S ale Sidewalk

Cafes

2AM as

amended.docx

8


14/26

NNW

um

ams

mm

1915 •

2015

MIAMIBEACH

OFFICE

OF THE

CITY ATTORNEY

RAULJ.

AGUILA,

CITY

ATTORNEY

COMMISSION

MEMORANDUM

To:

Mayor

Philip

Levine

Date: May 20,

2015

Members of

th e

City Commission

From:

Raul

J.

Aguil

Q _

City

Attorne

e

Subject:

AN ORDINANCE

OF THE MAYOR

AND

CITY COMMISSION

OF

THE CITY OF

MIAMI

BEACH,

FLORIDA,

AMENDING

CHAPTER

6,

ENTITLED

ALCOHOLIC

BEVERAGES,

OF

THE

CODE

OF

THE CITY OF

MIAMI

BEACH, FLORIDA,

ARTICLE

I, ENTITLED IN

GENERAL,

SECTION

6-3

THEREOF, ENTITLED

HOURS

OF

SALE,

TO

TERMINATE

THE SALE AND

CONSUMPTION

OF

ALCOHOLIC BEVERAGES AT SIDEWALK CAFES

AT 2:

00

A.M.,

PROHIBIT

THE

GRANTING

OF

VARIANCES

FROM THE

PROVISIONS OF

SECTION

6- 3(

3)(d),

AND PROVIDE FOR

PENALTIES; AND

PROVIDING

FOR

REPEALER,

SEVERABILITY,

CODIFICATION, AND

AN

EFFECTIVE DATE.

AN

ORDINANCE OF THE MAYOR AND

CITY COMMISSION OF THE CITY

OF

MIAMI

BEACH, FLORIDA, AMENDING CHAPTER

82,

ENTITLED PUBLIC

PROPERTY,

OF THE

CODE

OF THE CITY OF MIAMI BEACH,

FLORIDA,

BY

AMENDING

ARTICLE IV,

ENTITLED

USES

IN PUBLIC

RIGHTS-

OF-

WAY,

DIVISION

5,

ENTITLED

SIDEWALK

CAFES,

SUBDIVISION

II,

ENTITLED

PERMIT, BY CREATING SECTION

82-

388

THEREOF, ENTITLED HOURS

OF

SALE

OF

ALCOHOLIC

BEVERAGES;

ENFORCEMENT,

TO

TERMINATE

THE

SALE

AND

CONSUMPTION

OF

ALCOHOLIC

BEVERAGES

AT SIDEWALK

CAFES

AT 2:

00

A.M., AND

PROVIDE THAT SECTION 82-388

SHALL

BE

ENFORCED

PURSUANT

TO

SECTION 6-

3(

8) OF

THE

CITY CODE; AND

PROVIDING

FOR REPEALER,

SEVERABILITY, CODIFICATION, AND

AN

EFFECTIVE

DATE.

Introduction

Pursuant

to the

request of

Mayor

Philip

Levine, the

attached Ordinances

are

submitted for

consideration

by th e City

Commission.

Th e firs t O r d in a nc e a m en d s

Chapter

6 o f th e City C o d e ,

entitled Alcoholic

Beverages, Article

I,

Section 6-

3

thereof,

entitled Hours

of Sale,

to

terminate the sale

and

consumption of alcoholic beverages at sidewalk cafes at 2:00

a.

m.,

prohbt the

granting

of

variances

from

the

provsonsof

Section 6-3(

3)(d), andprovdepenaties

for violations of Section

6-

3.

Agenda

Item

RSA

Date

5-26-'


15/26

Ordinances Terminating

Sale

ofAlcoholic Beveragesat Sidewalk Cafes at

2: 0 0 a.

m .

May 20, 2015

Page

2

The

second

Ordinance

amends

Chapter 82,

Article

IV,

Dvision

5,

by creating

Section

8 2-

388

thereof, to

reflect that alcoholic beverages

shall not be offered for sale

or consumption

at

sidewalk

cafes between

the

hours of 2:00

a. m. and

8:00 a.

m.

The

City'

s

Authority

to Regulate the Hours

of

Sale

of

Alcoholic

Beverages

The State expressly grants the City the authority to establish its o w n regulations

for

the time for

sae

of acohoic

or

intoxicating

beverages. Pursuant to Section

562.

14,

Florida Statutes, no

acohoic

beverages

may

be sod, consumed,served,

or permitted to be served or consumed in

a ny p la ce lic en se d

to se ll alcoholic beverages

b e t w e e n

th e h ou rs

of

midnight a n d

7:

0 0

a.

m.,

unless a municipality elects

to

establish

it s o w n

regulations

for th e

time for sale of alcoholic or

intoxicating

beverages.

Section

562. 14,

Florida

Statutes,

clearly indicates that the State shall

not be responsible

for

the enforcement of the hours of sale established

by

municipal ordinance.

In

Wednesday

Nght,

Inc.

v.

City

of Fort

Lauderdale,

272

So.

2d

502 (

Fla. 1972),

the Florida

Supreme Court

uphed

Section

562. 14,

Florida

Statutes,

holding

that

the

statute,

which

relates

to

state,

muncpa,

and

county regulations of

the

time for

sale of

alcoholic

a n d

intoxicating

beverages (

1 )

does not contravene Federal and State constitutional guarantees of due process

andequa proectionof

the laws; (

2)

does

not constitute an

unlawful

delegation of the

powers

of

the

legislature; and (

3)

does not contravene any

of

the prohibitions against

special

laws or

general l aws of l oca l application appearing in Section 11 of Article II I of the Florida Constitution.

Florida

Courts

have

held that

a

municipality exercising it s inherent

powers may

reasonably

reguate

the

saeof

intoxicating

liquors

and,

in

providing

such

reasonabe

reguations,

may

prohbt saeof

such

liquors

wthn

certanzones. State

ex

re.

Floyd

v. Noel,

169 So.

549 ( Fla.

1936).

Furthermore,

the Florida

Attorney

General has

opined that

a

municipality may

regulate

1 )

the

hours

of

sale, (

2)

zoning

of locations in whchacohoicbeverages

may

be

sod, and (

3)

the

sanitary conditions under

which alcoholic

beverages

may

be dispensed o r

served

to

the

pubic.

Op.

Att'

y

Gen.

Fla.,

059-

73 ( 1959).

Based

upon

the

foregoing, it is clear that a City may regulate the hours of sale of alcoholic

beverages

at

sdewak

cafes,

provided the regulations are not exercised in a n arbitrary or

discriminatory

manner,

and are

grounded upon

some

reasonable basis of classification with

reference

to

the

subect

matter to

be reguated.

Makos

v.

Prince, 64 So.

2d

670 (

1953). In

regulating

the

sae

of

acohoic beverages,

the

City may create regulations that establish

separate zones and

the

Courts do

not

require that regulation of hours be uniform throughout

the

jurisdictional

limits.

Id.

The Florida Attorney General

h a s

opined

that different h o u r s

may be

provded

for

in

a

muncpa ordnance, provdedthere is reasonabereation

to

the

health,

safety,

andmoras

of

the

community.

Op.

Att'

y

Gen.

Fla.,

p.

497 (1950).

To

be

cear,

a

business

is nether

entitled

to

grandfathered

status nor entitled to

enjoin

enforcement

of an ordnance

regulating

the times

during

whch liquor

may

be

sold. Village of

North

Palm

Beach

v.

S &

H Foster'

s

Inc.,

80

So.

3d

433 (

Fla.

4th DCA 2012); Other Place of

Miami,

Inc.

v.

City

of

Hialeah Gardens, 353

So. 2d 861 ( Fla. 3d

DCA

1977).

Further, the courts

have uphed

muncpa

ordnances

aganst

cams

for injunctive reief aganst muncpa

ordnances

regulating

the time

at

whch

acohoic

beverages

may

be

sod,

because

muncpaities have

the

statutory authority

to

set

times for

saeof

acohoic

beverages.

Id.;

Playpen

S.,

Inc.

v.

City

ofOakland

Park, 396 So.

2d

830 ( Fla. 4th DCA

1981).

Lastly,

Florida

Courts have

rued

that

hours

of

operation

are

no a

property

right. S.

Daytona Rests.,

Inc.

v.

City

ofS. Daytona,

186

So. 2d 78 (

Fla.

1st

DCA

1966).


16/26

Ordinances Terminating

Sale of

Alcoholic Beverages at Sidewalk Cafes at

2: 00

a.

m .

May 20, 2015

Page

3

Amendments to

Chapter

6,

Alcoholic Beverages

Section

6-3

of

the

City

Code,

entitled

Hours

of

Sale,

of Chapter 6, entitled Alcoholic

Beverages,

regulates th e

hours during which

alcoholic beverages

may

be so l d in the

City.

The

first

attached

Ordinance

amends

Section

6-3

by

creating Section

6- 3(3)(d)

to

prohibit the

sale

or

consumpton

ofacohoic

beverages at

sdewakcafes

between

the hours

of2:

00

a.m.

and 8:00

a.

m. Section

6- 3(

3)(d)

also prohibits the grant of any variances that would allow a sidewalk cafe

permittee

to

offer alcoholic beverages

for sale or

consumption

between

the hours

of

2:00 a.

m.

and

8:

00

a. m.

The

first Ordinance

al so

amends Section 6- 3

to

provide enforcement a n d penalty provisions for

voationsof

any

provsonof

Section

6-

3.

Violators of

Section 6- 3 would face a

civil

fine

of

1 , 000

for a

first

offense

wthn

a

12-

month

period, $5,

000

for a second offense within a 12-

monthperiod, and $

10,

000 for

a third offense

within

a 12-

month period. A fourth or subsequent

offense

within

a 12- month

period

would result

in

a revocation of the violator'

s

certificate of use,

business

tax

recep,

or

certificateof

occupancy.

Upon

a

fourth

or

subsequent

offense, the

violator

would

be

prohibited from applying

for

a n d

obtaining

a

new sidewalk cafe permit

for

a

per iod of tw o permit years following the permit year in which the sidewalk cafe permittee

incurred

the voations.

D u e to

the

public

safety implications of

the sale and

consumption of

acohoic

beverages

at

sdewak

cafes

after

2:

00 a.

m., Section

6-3(8)( b)

requires that the sale of

alcoholic beverages in

violation

of Section

6- 3

must

be

immediately terminated.

A

citation

under

Section 6- 3 may be appealed

to

the City's Special Master within 1 0 days

of

servce

of

the

noiceof

voation.

The

failure of a

named

violator to

appeal

a violation shall

constitute

a waver

of

the

voator's righ to

appea, and shall be treated as an admission of the

voation. The

special

master

shall not hear the merits

of

a notice of

violation

or

consider

the

timeliness of

a request

for

appeal if a violator fails to

request

a

hearing

within ten

days of the

service of the

notice

of

violation. Additionally, the special master shall not

be authorized

to

alter

the

penalties prescribed

in

Section

6-

3(8).

Amendments to the Sidewalk Cafe Ordinance

Chapter 82,

at

Article

IV,

Dvision 5 ( the

Sidewalk

Cafe

Ordinance )

sets forth regulations for

the

City'

s sdewak cafes. The second attached Ordinance amends the

Sidewalk

Cafe

O r d i n a n c e

by

c r e a ti n g S e c tio n 8 2-

388, to

r e fle c t t ha t alcoho l ic b ev era ge s s ha ll n ot be offered fo r

sae

or

consumption

at

sdewak

cafes

between

the

hours of

2:

00 a.

m.

and8:00 a.m.

The sale

or consumption of alcoholic beverages in violation of Section 82-

388 shall

be enforced pursuant

to

Section 6-

3(

8),

a s amended by the

first

attached

Ordinance.

Fiscal Impact

The

Ordinances

are

noexpectedto have

any

fiscal

impact

on the

City'

s resources.


17/26

CHAPTER

82—

PUBLIC PROPERTY

SIDEWALK CAFE

ORDINANCE —

ALCOHOL

REGULATIONS

ORDINANCE NO.

2015-

3939

AN

ORDINANCE OF THE

MAYOR

AND

CITY COMMISSION

OF THE CITY OF

MIAMI BEACH, FLORIDA, AMENDING CHAPTER

82,

ENTITLED

PUBLIC

PROPERTY,

OF

THE CODE

OF

THE CITY OF MIAMI

BEACH,

FLORIDA,

BY

AMENDING

ARTICLE

IV,

ENTITLED USES IN PUBLIC RIGHTS-

OF-WAY,

DIVISION

5,

ENTITLED

SIDEWALK

CAFES,

SUBDIVISION

II, ENTITLED

PERMIT,

BY CREATING

SECTION

82-

388

THEREOF,

ENTITLED HOURS

OF SALE OF

ALCOHOLIC

BEVERAGES;

ENFORCEMENT, TO

TERMINATE

THE SALE

AND

CONSUMPTION

OF

ALCOHOLIC

BEVERAGES

AT

SIDEWALK CAFES

AT

2:

00

A.

M.,

AND

PROVIDE THAT SECTION 82-388

SHALL

BE

ENFORCED

PURSUANT

TO

SECTION

6-3(8)

OF

THE CITY

CODE;

AND

PROVIDING FOR

REPEALER,

SEVERABILITY,

CODIFICATION,

AND

AN

EFFECTIVE DATE.

WHEREAS, there

continues to

exst

the

need

for

outdoor

eating

estabishments

sdewakcaes)

in

certan

areas

o

the

City

o

Mami

Beach (

City )

to provide a unique

environment for

relaxation and food and/

or

beverage consumption; and

WHEREAS,

the existence of sidewalk cafes encourages additional pedestrian traffic to

these

areas; and

WHEREAS, the p resence of s idewalk cafes m ay thus im pede the free and safe flow of

pedestrian traffic;

and

WHEREAS,

in order to facilitate and ensure

a safe

environment for residents

and

visitors a

sdewak caes,

whch are

located

on pubic

righs-

o-

way,

there is

a

need for

regulations and standards for the existence and

operation

of sidewalk cafes, including a need to

regulate

the

hours during

which sidewalk cafes

may

offer

alcoholic beverages fo r sale or

consumptionand

WHEREAS, the

City

has established permit conditions and safety standards for sidewalk

cafes

in

order to

protect and

promote

the

genera

health,

safety,

and

welfare

of the City' s

residents and visitors; and

WHEREAS, it

is

in

the

best

interest

o

the

City,

and it serves

the

health,

safety,

and

welfa re o f the C ity '

s

residents and visitors, to requ ire that sidewalk cafes, which are located

on

pubicrighs-

of-

way,

terminate the sale

and

consumption of alcoholic beverages at

2:

00

a.

m .,

because the

sale and

consumption of alcoholic beverages

at

sidewalk

cafes can

disturb the

q u ie t enjo yment o f

the

community,

cause undesirable

noise,

result in

physical d isputes amongst

paronsand

passers-

by,

and

conribue

to

litter,

noxous

odors,

and the general degradation

of

th e

City;

an d

WHEREAS,

the amendments set forth below are necessary

to

accomplish

th e

objectives

identified

above


18/26

NOW,

THEREFORE,

BE IT ORDAINED BY THE MAYOR

AND

CITY COMMISSION

OF THE

CITY

OF

MIAMI

BEACH,

FLORIDA:

SECTION

1 . That

Section

82-

388 o

Subdivision

II, o

Division

5,

of

Article IV,

of

Chapter

82 of

the Code

o the Cit

y

follows:

of Miami

Beach is

hereby created as

CHAPTER

82

PUBLIC PROPERTY

Article

IV. Uses in Public Rights-

of-

Way

DIVISION

5.

SIDEWALK CAFES

Subdivision

II.

Permit

Sec. 82-

388.

Hours of saleof alcoholic beverages;

enforcement.

fal Alcoho lic beverages shall not

be

offered

for

sale or consumption at sidewalk cafes

between

the

hours

o 2:00 a.

m.

1 : 30

a.m. and

8:

00 a.

m., and shall not be

consumed

at

sdewak

caes

between

the

hours

o 2:

00 a.

m.

and 8:

00 a.

m.

Compliance

with

this

section shall be a condition

of

maintaining a

sidewalk

cafe permit.

A

voation

o

this

section

shal

be

enorced

and

penaties

shal be

imposed in

accordancewth

section6-

3(

8)

of

this Code.

Secs.

82-

388

82-

389-

82-410. Reserved.

SECTION 2. CODIFICATION.

It

is

the

intention

o the

Mayor and

City

Commission

o

the

City

o

Mami

Beach,

and it is

hereby

ordained that

the

prov is ions of

this

ordinance

shall

become

and be m ade part

of

the

Code

o the

City

o

Miami

Beach,

Florida. The sections of this ordinance

m ay

be renumbered

or

re-

lettered

to

accompishsuch

intention,

and, the

word

ordnance

may be changed to section,

artice

orotherappropriaeword.

SECTION 3. REPEALER.

All

ordnancesorparts

o

ordnances

in

conlict

herewith are

hereby

repeaed.


19/26

SECTION4. SEVERABILITY.

If

any

section

subsection

cause

or

provson

o

this

Ordinance is

held

invalid,

the

remainder shall not be

affected

by such

invalidity.

SECTION

5.

EFFECTIVE

DATE.

This

Ordinance

shall take

effect

ten days following adoption.

PASSED

and

ADOPTED this

20

day

o

M

Q

y

2015.

ATTEST:

5_

S

1*& . ..

I'

Philip

Le - %

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Raf:

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Granado,

City

0

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by

Mayor

Phi y

Le

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Sponsored

by

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0

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57

4...

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First

Reading:

May

6,

2'

k.,

44,;

26 •̀'''

Second

Reading:

May

20, 2015 -̀

Underline denotes new language

Double

underline denotes language

added

at

Second Reading

denotes removed language

APPROVED AS TO

FORM

AND LANGUAGE

AND

FOR

EXECUTION

Or-,\--

\

v. •

tP&

ltorney

Date

F:\

ATTO\

KALN\

ORDINANCES\

Acohol\

Acohol

Amendments to

Sidewalk

Cafe

Ordinance

as amended

docx


20/26

34NE.

i

SUNDAY,

MAY 10,

2015

NE .

MiamiHeratd,com I

MIAMI

HERALD

CITY OF MIAMI BEACH

A

p

NOTICE OF

PUBLIC HEARING

NOTICE

IS

HEREBY given that a public

hearing

will be held

by

the

Mayor and

City

Commissioners of

the

City

o

Miami Beach,

Florida,

in the

Commission

Chambers; Third

Floor,

City Hall,

1700 Convention

Center

Drive,

Miami

Beach, Florida, on Wednesday, May

20,

2015.

at

5:

15

p.

m,

or

as

soon

thereateras

the

mattercan

be heard, toconsider:

Chapter 6-

Alcoholic

Beverages

An Ordinance

Amending

Chapter

6,

Entitled

Alcoholic

Beverages;' Of

The

Code Of

The

City

Of

Miami

Beach,

Florida, Article I

Entitled In

General;'

Section

6-

3 Thereof, Entitled

Hours Of Sale,'

To

Terminate

The

Sale And

Consumption

Of Alcoholic Beverages

At

Sidewalk Cafes

At

2:

00

a.

m.,

Prohibit

The

Granting Of

Variances

From The Provisions

Of

Section

6-3( 3)(d),

And Provide

For Penalties;

And Providing For

Repealer,

Severability,

Codification, And An Effective

Date.

Inquiries

may

be

directed

to

theOffice

of

the City

Attorney

at

305.673.

7470.

Chapter

82 -

Public

Property Sidewalk

Café Ordinance-

Alcohol Regulations

An

Ordinance

Amending

Chapter :82, Entitled Public

Property;'

Of

The Code

OfThe

City Of

Miami B e a c h Florida,

ByAmending Article

I V

Entitled

Uses

In Public

Rights-

Of-

Way,`

Division

5,

Entitled

Sidewalk

Cafes

Subdivision

II,

Entitled

Permit,'

By

Creating Section

82-388

Thereof,Entitled

Hours Of SaleOf

Alcoholic

Beverages;

Enforcement, '

To Terminate The Sale

And

Consumption Of

Alcoholic. Beverages At

Sidewalk

Cafes

At 2:

00A.M.,

And Prov ideTha t Section 82-

388:

Shall

Be

Enforced

Pursuant

To Section 6 - 3(

8) Of

The

City

Code;

And Providing

For Repealer,Severability, Codification, And An Effective Date.

Inquiries

may

be directed

to the Of fi ce of the

CityAttorney at

305.673.7470.

INTERESTED

PARTIES

are

invited

to

appear a ths

meeting,

or

be

represented

by an

agent,

or to express their

views

in writing addressed

to the

City

Commission,

cio the

City

Cerk, 1700 Convention

Center

Drive,

1 S t

Floor, City

Hall,

Miami

Beach,

Florida

33139.These

items

are

available

for public inspection during normal

business

hours

in the

City

Cerk'

s

Office, 1700

Convention Center

Drive,

1

Floor, City

Hall,

Miami Beach, Florida

3 3 1 3 9 :

This meeting, or any

item

herein, may be

continued, and under

such

circumstances, additional

legal notice need

not

be

provided.

Pursuant

toSection 286.

0105,

Fla. Stat.,

the City hereby advises the.

i

public

that

if a person decides

to appeal any

decision made

by the

City

Commission

with

respect to any matter considered at

its

meeting

or its

hearing, such

person

must ensure that a verbatim record

of the

proceedings

is made,

which record includes

thetestimony

and evidence

upon which the appeal is to be based. This notice does not constitute:

consent

by

the

City

for

the introduction or admission of otherwise

inadmissibleor irrelevant evidence, nor does it authorizechallenges or

appeals

not

otherwise allowed

by

law.

To requestthese

materials in alternate format,sign language

interpreter

five-

day

notice

required),

information

on access for persons with

disabilities,

and/

or

any accommodation to review any document or

participate

in any City-

sponsored

proceedings, call 305.

604.

2489 and.

select

1 for English or 2 for

Spanish,

then option 6; TTY users may call

via

711 (

Florida Relay Service).

Rafael E . Granado,

City Clerk

City

of

Miami

Beach


21/26

ORDINANCE

NO.

2015-3953

AN ORDINANCE

OF

THE MAYOR AND CITY COMMISSION

OF

THE

CITY

OF

MIAMI BEACH,

FLORIDA, AMENDING CHAPTER

70 OF

THE

CODE

OF THE

CITY OF

MIAMI

BEACH,

ENTITLED

MISCELLANEOUS

OFFENSES,

ARTICLE

II,

ENTITLED

PUBLIC

PLACES,

DIVISION 3,

ENTITLED

ALCOHOLIC

BEVERAGES,

BY

AMENDING

SECTION

70-

87

THEREOF

TO (

1)

CLARIFY THAT THE

CONSUMPTION,

SERVICE,

SALE,

OR

POSSESSION

OF

OPEN

CONTAINERS OF ALCOHOLIC BEVERAGES

AT

SIDEWALK CAFES

IS

ONLY

PERMITTED

DURING

THE

HOURS

SET

FORTH

IN

CHAPTER

6

OF

THE

CITY

CODE, (

2)

CLARIFY THAT ALCOHOLIC

BEVERAGE ESTABLISHMENTS

SHALL NOT ALLOW ANY PERSON

TO

TAKE

FROM

THE

PREMISES

ANY

OPENED

ALCOHOLIC

BEVERAGE

CONTAINER

OR

ANY

OPEN

OR

UNSEALED

CONTAINER

OF

ALCOHOLIC BEVERAGES, AND (

3)

AMEND

THE

ENFORCEMENT

AND

PENALTY PROVISIONS;

AND

PROVIDING

FOR

REPEALER,

SEVERABILITY,

CODIFICATION,

AND AN

EFFECTIVE

DATE.

WHEREAS, the

unauhorized

consumpion

servce

sae and

possessono

open

conaners

o

acohoic

beverages

in

pubic

paces

wthnthe

City

o

Miami Beach (

the

City )

disturbs

the

que

enoymen

o the

community,

causes

undesrabe

nose and

contributes to

litter, noxious odors, an d the general degradation of the City; an d

WHEREAS,

Section 70-

87 o

the

City

Code

prohbtsthe

consumpion servce

sae

an d

p os se ss io n o f

open

containers

of

alcoholic beverages

on

or

in

public

places within

th e

City,

except

in

those areas as designated and approved

fo r

s uch us e

by

the City M a na ge r o r th e City

Commission;

requires that the ow ner or operator of an y package store o r fo o ds to re selling

acohoic

beverages

prominently

post a

warning

sgn

regarding

the

City'

s

open

conaner

regulations; and provides

that it shall

be unlawful

for any owner, operator,

agent, or employee of

any alcoholic beverage establishm ent

to knowingly

allo w any p erson to

take

fro m the lice nsed

premses

any

opened

beer,

wne

liquor,

or

oheracohoic

beverage

conaner,

or any glass,

mea,

pastic,

or

oher

open

or

unseaed

conaner

o

beer, wne

liquor,

or

any other

alcoholic

beverage;

and

WHEREAS,

it

is

in the

best

interest

o

the

City,

and

it

serves

the

health,

safety,

and

wefare

o

the

City'

s

resdens

and

vstors, to

increase (

1 )

the criminal penalties

against

persons

whoconsumeserve

sel,

or

possess

an

open

container

of

an y

alcoholic beverage

on

or

in

an y

pubic

pace (

2)

the civil fines against owners or operators of package stores or foodstores

selling

alcoholic

beverages who fail to post a warning sign

regarding

the City' s open

container

regulations;

and (

3)

the civil fines against alcoholic beverage establishments that allow any

person

to

take

from the

premses

any

openorunseaed

gass,

mea,

plastic, or

oher

open or

unseaed

conanero

beer,

wne

liquor, or

any

oher

acohoic

beverage;

and


22/26

WHEREAS,

enforcement

o f this

Ordinance by the

City' s

Police

Department

and Code

Compliance

Department

wll proect

the

health,

safety,

wefare

and

quality of life of

the

residents an d visitors of the City of Miami Beach; an d

WHEREAS,

the

amendments set

forth below are necessary to accomplish

the above

obectives

NOW,

THEREFORE, BE

IT

ORDAINED BY

THE

MAYOR AND CITY COMMISSION

OF THE

CITY

OF

MIAMI

BEACH,

FLORIDA,AS

FOLLOWS:

SECTION

1 .

That Division

3 of

Article II of Chapter 70

of

the Code of the C ity M iam i B ea ch is

h er eb y a m e n de d as follows:

CHAPTER 70

MISCELLANEOUS OFFENSES

ARTICLE II. —

PUBLIC PLACES

DIVISION 3. ALCOHOLIC BEVERAGES

Sec. 70-

87.

Consumption,

service,

sale and

possession of

open containers

of alcoholic

beverages

on

or in public places; warning signs required.

a)

Violations.

1 ) It

sha

be

unawu

for

any

person

to

consume

serve

sel,

or possess

an

open

container of

any

alcoholic

beverage

on

or

in

any public place

within

the city

except

in

e- _ '-•' -- _ -- _ - .' :

the

following areas:

a.

Sidewalk sidewalk

cafes

having a valid city sidewalk cafe

permit,

during the hours

at which alcoholic beverages

may

be consumed at sidewalk cafes pursuant to

chapter

6 of this

Code;

b.

Public

public property

leased from

the

city

by

a

private

entity

and licensed by the

city

for such

user; and

c.

Areas areas temporarily

designated

fo r such use

by

the

city

by

th e issuan ce

of

a

valid special event permit.

2)

The owner o r o p erat or of

an y

p acka ge s to re or foodstore selling alcohol ic beverages

sha

prominently

pos,

on

the outside of

each

entrance

and on the inside

of the

main

customer

exit

o

each

packagestore

or

foodstore

selling

acohoic

beverages,

a sign

with

contrasting

letters at

least

one-

half

inch tall, stating

the

following:

2


23/26

IT

IS

UNLAWFUL

FOR

ANY

PERSON

TO

CONSUME, SELL,

SERVE,

OR

POSSESS

AN OPEN CONTAINER OF ANY

ALCOHOLIC BEVERAGE ON/ IN

ANY

PUBLIC

PLACE, ALLEY, STREET, SIDEWALK, PARK, BEACH, OR OTHER

SUCH PLACE WITHIN

THE

CITY

OF MIAMI

BEACH UNLESS DESIGNATED

FOR

SUCH

PURPOSE

BY THE

CITY.

VIOLATORS ARE

SUBJECT TO

CRIMINAL PROSECUTION.

Failure

to

post this sign shall

be deemed

a

violation of

this

section. This

sign shall be

exempt from permit requirements of Chapter 138 of this Code.

3)

It

sha be

unawu

for

any

owner,

operaor,

agent or employee of

an y

alcoholic

beverage

estabshmen

orspeca

even

permttee

licensed

to

sel,

serve

or dispense

to knowingly allow

any

personto take

from the

licensed

premses,

sdewak

cae

permt

area

orspeca

even

permt area - —=== =_—=== , -- _ =_ _= _—_= —_ =_ -_ =—== =--

any

mxture

thereof

any

openor

unseaed

gass

mea,

las

is

or

oher

o.

enor

unseaed

conaner

o

beer

wne

li•

uor or

an

oheral ohoic

beverage.

b)

Penalties

for

voaions

o

subsection(a)(

1 ) .

1 )

Any

person

convcted

o

a

voaion

osubsection(

a)(

1 )

of

this section shall

be

punshed

by

imposition

o

a fine no

to

exceed$

50700 $

250.00 or

by

imprisonment

not

to

exceeda-

0

30

days,

orboth,

for a

first

ese

oaion

Upon

any subsequent

convction

for

voaion o

subsection (a)(

1 )

o

this

section such

personshall

be

punshed

by

imposition

o

a

fine no

to exceed$

300-

00.$

500.00,

or by imprisonment

not to

exceed 30

60 days,

or both.

e- ----• '-- - -

e - •• -

9.

90 _ _.. .. - -

e-_

voaions

as

provded

in

chaper 30

o

this Code.

Any

code

inspector

who

has

e -

e

e.

e e . e-

e '-

c)

Penalties

for

voaions

o

subsections (

a)(

2)

and(

a)(

3).

1 .

The

followin• -- =

civil fines shall be im• osed for a violation of subsections

a)(

2) and(a)(

3):

a.

First violation by=

a=pefsen=

er=

entitgo

within a

1 2-

monh

period:

1 ,

000.00;

b.

TIste=

penalty=

or=

he=

6060144SeCorIC voaion

wthn

a

12-

monh

period

2,000.00;

c.

Third violation l a w = a=pefsen=er=

eatrity

within a

12-

monh

perod_

shal=e=

a=

eiv414Fte=

o$3,000.00;

3


24/26

d. --=_ ::_;;;:- _- -= =_ = -

Fourth or subseauent violation = _-_==--= -=

ey

thna

12-

monhperiod_

5,000.00.

2.

Enhanced

penalty.

The

following

enhanced

penalty

sha

be imposed,

in addition

to

any

mandatory

fines

se

forth

in

subsection (

c)( 1 )

above

for violations of

subsections (

a)(2)

or(

a)(

3):

a.

Upon a

finding

by

the

specamasterthat

four (

4)

or

more

violations by

a person or entity

have

occurred within a

1 2- month

period, the special

master

sha

suspend

or

revoke

the

certificae

o

use

business tax

receipt, or certificate of occupancy of the violator.

3.

Enforcement.

The

code

compance

department

sha

enorce

subsections (a)(

2)

and(a)(

3). This shall

not

preclude other law

enforcement

agencies or regulatory,

bodies from an y a ctio n to a ssure c om pl ia n ce with this sect ion an d all applicable

laws.

If

a

code

compance

oficer (

whch as

defined

in section

70-

66,

includes a

poice

oficer) finds

a

voaiono this

section the code compliance officer shall

issue

a

noice

o

voaion -- -= _- -=-_ =-- -_==- ----- _ = -=- -•_-_=_-.

The

noicesha

inform the

voaoro

the

naureo

the

voaion

amount

of

fine

for

whch

the

voaor

is

liable,

instructions anddue date

for

paying

the

fine,

that the

voaion

may

be

appeaed

by

requesting

an

admnstraive

hearing

before a

speca

master

wthnten (

10)

days

aterservce

o

the

noice

ovoaion

and that

the

failure

to appea

the

voaion

wthnten ( 10) days

of

service shall constitute

an

admission

of

the

violation and a waiver

of the

right to a hearing.

4.

Rights

o

voaors

paymen

o fine;

right to appear;

failure

to p ay c ivil

fine

or to

appeal; appeals from

decisions

of the special master.

a. A violator who has been served with

a

notice

of

violation must elect to

ether

i.

pay

the

cvl fine

in the

manner indicated

on the notice

of

voaion or

ii.

request an administrative

hearing before

a

special

master to

appea the

noice

o

voaion which must be requested within

ten (

10) days of the service of the notice of violation.

b.

The procedures

for

appeal

by administrative

hearing

of

the notice

of

violation shall be as set forth in sections 30-72 and 30-73 of this Code.

Applications for h ea rin gs m u s t be accompanied by

a

fee

as

approved

by

a

resouion

o

the

city

commsson which shall

be

refunded if the

named

violator

prevails

in

the appeal.

mac. - -=-_ __- •_ = , - _-•____ - _: -:-===_==-.•= _ • -, -_

The

failure

to

pay

the

cvl

fine,

or Ws to timely request an administrative

h e ar in g b e fo re a special

master,

shall

constitute a

waiver

of

the violator'

s right

to

an administrative

hearing

before

the

speca master, and

sha

be treated as

an

4


25/26

admssono the

voaion

for whch fines

and penaties

sha

be

assessed accordingly.

d.

A certified copy of an order imposing a fine may

be

recorded

in

the

pubic

records,

and thereafter shall

constitute a

lien

upon

any real or

personal

property

owned

by the

violator, which may

be

enforced

in

the

same manner

as

a

court

judgment

by

the sheriffs

of

this state,

including

levy

aganst

the

voaors

rea or

persona

property,

but shall not

be

deemed to be a

court

judgment except for enforcement purposes.

O

Three Umonths after the recording

of

any such

lien which

remains

unpaid, the City may foreclose or

otherwise execute

upon

the

lien,

for the amount of the

lien

plus

accrued

interest

e. The special master shall

be

prohibited from hearing the merits

of

the

notice of

violation

or

considering the

timeliness of

a

request

for

an

admnstraive

hearing

if the

voaor

has

failed

to

request

an

admnstraive

hearing

wthn

ten ( 10) days

of the service

of

miami beach curbs alcohol use after 2 a.m

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