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Transcript of Miami Beach Curbs Alcohol Use after 2 A.M.
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8/20/2019 Miami Beach Curbs Alcohol Use after 2 A.M.
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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.
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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
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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.
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THE HERALD
Page 4 of 5
Random Photo Gallery
Scott Robins Club 743 Washington Avenue
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THE HERALD
Page 5 of 5
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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
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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
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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-
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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
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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
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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.
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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
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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
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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-'
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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).
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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.
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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
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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.
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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_
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I'
Philip
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or
Raf:
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E.
Granado,
City
0
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by
Mayor
Phi y
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Sponsored
by
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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
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8/20/2019 Miami Beach Curbs Alcohol Use after 2 A.M.
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
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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
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8/20/2019 Miami Beach Curbs Alcohol Use after 2 A.M.
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
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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
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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
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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