THE HERALD

4August2015
RaulAguila,Esq.
CityAttorney
CITYOFMIAMIBEACH
Subject:2A.MAlcoholRestrictionOrdinancesHeldInvalid
DearCityAttorney:
Asyouareaware,CityClerkRafaelGranado,Esq.respondedtomyinquiryastothevalidityof
therecentlyenactedordinancesregulatingthesaleandconsumptionofalcoholicbeverageson
sidewalkcafesintheweehoursofthemorning.
There has been considerable confusion among those who heard about the provisions of the
ordinancesfromvarioussources,butdidnotknowwheretoviewthembecausetheyhavenot
beencodifiedandpublished.Inanyevent,theyareinvalidforseveralreasons.
Mr. Granado sent me three related ordinances with appendages: 20153938 signed 20 May;
20153939signed20May;20153953signed18July.
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
TerminatetheSaleandConsumptionofAlcoholicBeveragesat2a.m.amendingChapter6and
Chapter82.HeappendednosuchNoticeto20153938,whichistheheartofthelegislation.
Mr.Granadoexplainedthatnoticesofhearingssatisfythestatutoryrequirementsfornoticeof
hearing.Thatmaybe,butthosenoticesdonotsatisfythemaximmaximusthatAnenactment
thatregulatespersonsorpropertyandimposesafineforviolationsmustbeaprintedlawand
citizens must have notice that it is in effect before they can be subjected to regulation and
fines.
Towit,thepublicmusthavenoticenotonlyofthepossibilitythatprospectivelegislationisto
beconsidered,butmustalsohavenoticethatlegislationunderconsiderationwaspassedinto
law.

Page1of5

THE HERALD

Furthermore,IpointedouttoMr.Granadothatthetitlesoftheresolutionsdifferedfromthe
bodyinrespecttothetimethatconsumptionandsalewouldbeprohibited.
As you both know only so well, Sec. 166.041(2) Fla. Stat. requires that The subject shall be
clearlystatedinthetitle.Thereasonforthatisobvious:mostpeopleglanceatthetitle,andif
itsatisfiestheirinquiry,passonwithoutreadingtherestofthebill.
The titles refer to 2 A.M. as the time both sale and consumption is prohibited. However, the
body of 20153938, which is at the heart of the amendments, gives 2 A.M. for halting
consumptionand1:30A.M.forhaltingsale.
Thatalonecausedconfusionwithrestaurantmanagerswhohappenedtohearfromonesource
or another that 2 A.M. was the right time to end both sale and consumption. The Notice of
PublicHearingalsogivesthewrongtime.
Sotheordinancesarefatallydefectiveforlackofeffectiveandclearpublicationandfortheir
conflictingprovisions.
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.Ofcoursearestrictionofsalesoverthreehourscitywidewillhavesomeeconomicand
fiscaleffect.
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
OceanDrivenotonlyonsidewalkcafesbutinsideestablishmentsaswell.Irecentlyobserved
two prominent members giggling on the Historic Preservation Board as they approved the
demolitionofahistoricbuildinginordertobuildmultimilliondollarcondominiums.Richpeople
willnotbeanuisancehere,theychuckled.Nodoubttheywill,however,drinkafter2A.M.,and
nodoubtafewwiveswillbesorelyabused.
Thechiefofpolicewhoanswerstothecitymanagerwhoanswerstothemayorwhocontrolsa
majorityofthecommissioncitedcriminalactivityintheOceanDriveareaafter2A.M.asthe
cause for the legislation, yet no careful study was made to determine if the crimes were
committedbypersonsdrinkingonsidewalkcafesafterthattime,and/orifpolicepatrolsalone
wereinadequatetocontrolcrimeduringthattimeincomparisontoearlierhours.
Legalissueswereraised,soitwasdecidedtorestrictsaleandconsumptiononsidewalkcafes
only, and to extend that restriction citywide to where there were none of the problems as
Page2of5

THE HERALD

allegedonOceanDrive.Soeveryonewasselectedtosufferfortheallegedmisbehaviorofafew
peoplenearOceanDrive.
IhavelivedintheghettonearOceanDriveforadecade.Myexperienceisofcourseanecdotal,
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
neighborhoodduringthosehours.
Imustaddthatthepolicedepartmentundertheoldregime,withMajorCauseyinchargeofthe
EntertainmentDistrict,wasinstrumentalinresolvingcriminalbehaviorinpartfomentedbythe
attractionofMiamiriffrafftoWashingtonAvenuehiphopclubssouthofSeventh.TheGreat
Recession and the exodus of paperless migrants was also a major factor in the reduction of
crimeintheneighborhood.
Nevertheless, we now have drunks wandering the alleys, drunks squatting and urinating in
doorwaysevenacrossthestreetfromthepolicestation,anddrunkspassingoutonthestreets
andintheparks,atallhoursofdayandnightsincethereformregimetookoffice(seephoto
gallerybelow).Andnotasingleoneofthemdrinksatsidewalkcafeswhereacocktailcostsat
least$7.Someofthemstealwhatevertheycanlaytheirhandsontosupporttheirhabit,and
wehaveexperiencedknifingsandrapes.
Andthenwehavedrunksathomebeatingandevenkillingtheirwivesandgirlfriends.Perhaps
prohibiting drinking at home after 2 A.M. would reduce that by 20%. Why not restore
Prohibition?
The current ordinance is the most illconceived and illadvised legislation that the city has
sufferedfromthereformregimethusfar.Evenworse,itishastilyandpoorlydrafted,unclear,
andinadequatelypublished.
Infine,itisinvalid.
Therefore,youwouldbewelladvisedtocounseltheadministrationtoceaseenforcementand
gotothecommissionaftertheelectionforguidance.
Repealit.Startover.
Sincerely,
DavidArthurWalters
Cc:
FrankDelVecchio,Esq.
Page3of5

THE HERALD

RandomPhotoGallery

ScottRobinsClub743WashingtonAvenue

Page4of5

THE HERALD

Page5of5

CHAPTER 6 ALCOHOLIC BEVERAGES

2015- 3938

ORDINANCE NO.

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 63( 3)( d), AND PROVIDE FOR PENALTIES; AND PROVIDING FOR REPEALER,

SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.

City of Miami Beach (" City") regulates 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, the

WHEREAS, it is in the best interest

the

of

City,

and

it

serves

the health, safety, and

welfare of the City' s residents and visitors, to require that sidewalk cafes, which are located on
public 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

quiet enjoyment of the community, cause undesirable noise, result in physical disputes amongst
patrons and passers-

by,

and contribute

to litter,

noxious odors,

and the general degradation of

the City; and

WHEREAS, the Miami Beach Police Department has requested that the City limit the
during which alcoholic beverages may be sold or consumed at sidewalk cafes, because
the sale and consumption of alcoholic beverages at sidewalk cafes implicates the safety of the

hours

City's residents and visitors, as well as the police officers sworn to protect them; and
this amendment to Chapter 6 of the City Code is intended to ensure that
Officer Eduard Alba of the Miami Beach Police Department is recognized for dedicating himself
to protecting this City and its residents and visitors, and to ensure that other officers are not
WHEREAS,

endangered; and

City the authority

regulations for the time for sale of alcoholic or intoxicating beverages; and
WHEREAS, the State expressly

grants

the

to

establish

its own

to Section 562. 14, Florida Statutes,

no alcoholic beverages may

be sold, consumed, served, or permitted to be served or consumed in any place licensed to sell
WHEREAS,

alcoholic

pursuant

beverages between the hours

of midnight and

7: 00

a. m.,

unless a municipality elects

to establish its own regulations for the time for sale of alcoholic or intoxicating beverages; and

WHEREAS, Section 562. 14, Florida Statutes, clearly indicates that the State shall not be
responsible for the enforcement of the hours of sale established by a municipal ordinance; and
WHEREAS, in

Wednesday

1972), the Florida Supreme Court

statute, which relates

to

Night, Inc.
upheld

state, municipal,

v.

City

of

Fort Lauderdale, 272 So. 2d 502 ( Fla.

Section 562. 14, Florida Statutes,

holding that the

and county regulations of the time for sale of alcoholic

1

and

intoxicating

does not contravene Federal and State constitutional guarantees

the laws; ( 2) does not constitute an unlawful delegation

beverages ( 1)

of

due

of

the powers of the legislature; and ( 3)

process and equal protection of

does not contravene any of the prohibitions against

special laws or general laws of local application appearing in Section 11 of Article III of the
Florida Constitution; and
Florida Courts

WHEREAS,

authority for
sale

municipality to

municipalities

have determined that it is

change

the hours

y
authority
have the statutory
ry aut

of alcohol;

under

within

the

police

power

and

alcoholic beverages, because

Florida
Statutes, to restrict the
Section 562. 14,
of regulation of

a municipal ordinance regulating the hours of sale of alcoholic

additionally,

beverages may be applied to a property incorporated later into the municipality by annexation.
Village

North Palm Beach

of

WHEREAS,

S & H Foster' s, Inc., 80 So. 3d 433 ( Fla. 4th DCA 2012);

v.

and

Florida Courts have held that a municipality exercising its inherent powers
the sale of intoxicating liquors and, in providing such reasonable

regulate

may reasonably

of such

may prohibit sale

169 So. 549 ( Fla. 1936); and

regulations,

liquors

within certain zones.

Attorney General has

WHEREAS, the Florida

the hours of sale, ( 2) zoning of

locations in

State

ex rel.

Floyd

that a municipality may

beverages may be sold,

opined

which alcoholic

v.

Noel,

regulate (
and ( 3)

1)

the

sanitary conditions under which alcoholic beverages may be dispensed or served to the public.
Op. Att' y

Gen. Fla., 059- 73 ( 1959);

WHEREAS,

and

the City may regulate the hours of sale of alcoholic beverages at sidewalk

provided the regulations are not exercised in an arbitrary or discriminatory manner, and
are grounded upon some reasonable basis of classification with reference to the subject matter
cafes,

to be

regulated.

Makos

hours be

WHEREAS,
provided

for in

and morals of

Prince, 64 So. 2d 670 ( 1953);

uniform

in fact, the Florida Attorney General has opined that different hours may be

the community.

WHEREAS,

North Palm Beach

v.

throughout the jurisdictional limits. Id.; and

provided there is reasonable relation to the health, safety,

Op. Att' y Gen. Fla., p. 497 ( 1950); and

a municipal ordinance,

business is

City

neither entitled

to " grandfathered" status nor entitled to enjoin

during which liquor may be sold. Village of

S & H Foster' s Inc., 80 So. 3d 433 ( Fla. 4th DCA 2012); Other Place of
Hialeah Gardens, 353 So. 2d 861 ( Fla. 3d DCA 1977); and

enforcement of an ordinance

Miami, Inc.

and

such regulations may establish separate zones and do not require that

WHEREAS,
regulation of

v.

regulating the times

v.

of

WHEREAS, injunctive relief is not available against the enforcement of a municipal

because municipalities
regulating the time at which alcoholic beverages may be sold,

ordinance

have the statutory authority to set times for sale of alcoholic beverages. Id.; Playpen S., Inc. v.
City of Oakland Park, 396 So. 2d 830 ( Fla. 4th DCA 1981); and
WHEREAS,
Daytona Rests., Inc.

Florida Courts have ruled that hours of operation are not a property right. S.
v.

City

of

S. Daytona, 186 So. 2d 78 ( Fla. 1st DCA 1966);

and

WHEREAS, the amendments set forth below are necessary to accomplish the objectives
identified above.

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

Code of the City of Miami Beach is hereby amended as follows:

CHAPTER 6
ALCOHOLIC BEVERAGES

In General

ARTICLE I.

Sec. 6- 3.

Hours of Sale.

The hours of sale of alcoholic beverages shall be according to the following schedule,

except as may be otherwise provided pursuant to subsection{ 7-)LQ:

1)

Retail stores for package sales only, either as permitted main or accessory uses.
e

e-

as permitted

- --

a of accessory us .

Vendors having a license from the state division of alcoholic beverages and
tobacco for the sale of liquor and other alcoholic beverages for consumption off

the premises shall only offer for sale alcoholic beverages within the hours of 8: 00
a. m. and midnight on any day of the week.
2)

Retail

including

stores,

grocery

and

stores,

convenience

and

gasoline

service/filling stations, which primarily offer for sale products other than alcoholic
beverages. Retail stores, including grocery and convenience stores, and gasoline
uses, which
either as permitted main or accessory
stations,
service/ filling

primarily offer for sale products other than alcoholic beverages may only make
sales of beer and wine in sealed containers for consumption off the premises
between the hours of 8: 00 a. m. and midnight on any day of the week.
3)

Alcoholic beverage
beverage

establishments.

establishments ( midnight

accessory

uses,

All

establishments

to 5: 00

a. m.),

licensed

as

alcoholic

either as permitted

main or

shall only offer alcoholic beverages for sale the or on- premises
within

consumption

the hours

of

8: 00

a. m.

and 5: 00 a. m.

on any day of the week.

a.

Restaurants not operating as dance halls or entertainment establishments.

Restaurants with full kitchen facilities, serving full meals, licensed as alcoholic
beverage establishments { midnight to 5: 00 a. m.), but not operating as dance
halls

may remain open 24 hours a day;

alcoholic beverages may not be offered for sale or on- premises

or entertainment

however,

establishments,

consumption between the hours of 5: 00 a. m. and 8: 00 a. m.

b.

Restaurants also operating as dance halls or entertainment establishments.

Restaurants with full kitchen facilities, serving full meals, licensed as alcoholic
beverage

establishments

dance halls,
day; however,

( midnight

to 5: 00

a. m.),

or entertainment establishments,
alcoholic

beverages

may

not

and

also

operating

as

may remain open 24 hours a

be

offered

for

sale

or

on-

between the hours

premises consumption

of

5: 00

a. m.

8: 00

and

a. m.,

and

dancing and entertainment shall not be conducted between the hours of 5: 00

a. m. and 10: 00 a. m.
Other

c.

beverage

alcoholic

establishments { midnight

kitchen facilities,
business

to 5: 00

close

shall

allow

not

and

establishments.

a. m.),

5: 00

at

patron

any

Other

alcoholic

beverage

not containing restaurants with full

and keep closed the place of

a. m.

other than those

persons,

other

or

employed by the vendor, to remain therein between the hours of 5: 00 a. m.

and 8: 00 a. m.
d.

Notwithstanding the provisions of subsections ( 3)( a) through

c), alcoholic beverages shall not be offered for sale or consumption at
sidewalk cafes, as defined in section 82- 366 of this Code and as otherwise
Sidewalk

cafes.

by the City in

permitted

II

subdivision

the hours

of

2: 00

m.

82,

article

IV, division 5,

1: 30 a. m. and 8: 00 a. m., and shall not be consumed at

between the hours

sidewalk cafes

chapter

accordance with

this Code ( as may be amended from time to time), between

of

from the

may be granted

of

provisions of

2: 00
this

a. m.

8: 00

and

section

a. m.

No variances

6- 3( 3)( d) as to the hours of

sale or consumption of alcoholic beverages at sidewalk cafes.

Note:

For

grade

this

of

purposes

commercial

burners,

full kitchen facilities shall mean having

and refrigeration units of sufficient size and

section,

ovens,

quantity to accommodate the occupancy content of the

kitchen facilities must contain grease trap interceptors, and

establishment.

Full

meet all applicable

city, county, and state codes.

4)

Off-premises package sales by alcoholic beverage establishments. Off-premises

package sales shall

be

between the hours

permitted

of

8: 00

a. m. and midnight,

for all establishments licensed as alcoholic beverage establishments.

5)

Private

clubs.

be

use, shall

A Private

private clubs,

considered pursuant

to

either as a permitted main or accessory

6-2( a) shall only offer alcoholic

subsection

beverages for sale or on- premises consumption if the private club, in accordance
6- 2( a), secures a license for the distribution or sale of any alcoholic

with section

from

beverages
department

of

the

division

business

and

of

beverages

alcoholic

professional

regulation

of

and

the

tobacco
state.

of

the

Hours of
Private

clubs licensed as alcoholic beverage establishments, either as permitted main or

accessory

Sunday,

shall. only offer alcoholic beverages for sale or on- premises

uses,

consumption

between the hours

on any

day

of

and guests of members

permitted

to

of

8: 00

a. m.

and 5: 00 a. m.,

provided that service is made only to members

pursuant to Florida Statutes. However, any private club

the

week,

remain open after

2: 00

a. m.

shall purchase an extra- hours license

and must provide for security in its premises by hiring private security guards or

off-duty police officers between the hours of 2: 00 a. m. and 5: 00 a. m. each day.

Private clubs securing a license from the state division of alcoholic beverages
and

tobacco

tennis,

by

complying

with

the

requirements of

F7S. 561. 20 for racquetball,

or golf course facilities may admit members at any time for use of such

facilities, but may

not serve alcoholic

beverages

after

2: 00

a. m.

each day unless

such private club is, the holder of an extra- hours license and complies with the
above requirements.

0-- -

0 - .'

9-

7-4L61 Alcoholic beverage

_,

If

establishments set

forth in

subsections (

3)

and (

5)

permitted

to remain open to serve alcoholic beverages for on- premises consumption until
5: 00

may continue to
1 ( New Year' s Day)

January

alcoholic

serve

a. m.

if

or,

January

beverages ( i)

1 is

on a

until

Sunday,

until

7: 00

a. m.

7: 00

on

a. m. on

Monday if the day that is observed as a national holiday for New Year's Day is on
Monday,

and (

ii)

until

7: 00

a. m.

during certain major event days or weekends as

may be designated by the city commission or as may be designated by the city

manager

following

approval

by

the

commission,

city

under

the

following

conditions:

a.

The police department and the code compliance division department of the

city must be notified by a letter, received no later than 15 business days prior
to

the day on which alcohol sales are to be

stating that the alcoholic beverage establishment intends to serve

either ( a)

extended,

January

or (

b)

alcoholic beverages for on- premises consumption until 7: 00 a. m.;

b.

If deemed reasonably necessary

by

the

police

chief,

or the police chiefs

designee, off-duty police officers must be provided at the alcoholic beverage

establishment until 7: 00 a. m.;
c.

There are no pending City Code violations against the alcoholic beverage
establishment;

d.

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

e.

Outdoor entertainment or open- air entertainment is not allowed;

f.

No violation of the city's noise ordinance shall be permitted;

g.

No violation of the approved fire code occupancy load shall be permitted;

h.

All required city permits and licenses are current;

i.

The State of Florida alcoholic beverage license is current; and

j.

Any other conditions required by the city manager in order to protect the
public`health, safety, or welfare.

Alcoholic beverage

establishments set

forth in

subsections (

3)

and (

5)

permitted

to remain open to serve alcoholic beverages for on- premises consumption until
5: 00

a. m.

may

continue

to

serve alcoholic

day of daylight savings time in the spring.

5

beverages

until

6: 00

a. m.

on the first

8} al The city manager may suspend the provisions of subsection {7}(6) at any 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:

The penalty for the first violation by a person or entity within a 12-

i.

month period shall

be

a civil

fine

1, 000. 00;

of$

The penalty for the second violation by a person or entity within a

ii.

12- month

period shall

be

a civil

fine

of$

5, 000. 00;

The penalty for the third violation by a person or entity within a 12-

iii.

month period shall

Upon

iv.

by

be

finding by the

a person or entity

may

city

initiate

a civil

fine

10, 000. 00;

of$

special master

have

that four (4) or more violations

12- month

occurred within a

proceedings

to

revoke

the

the

period,

certificate

of

use,

business tax receipt, or certificate of occupancy of the violator.

A

v.

sidewalk

cafe

that has been issued four ( 4)

permittee

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 permit 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

addition to any mandatory fines

enhanced
set

forth in

penalty shall
subsection (

be imposed, in
8)( a)

above,

for

violations of this section:

The sale of alcoholic beverages in violation of this section must be

immediately terminated, upon confirmation by the code compliance

i.

department that a violation has occurred.

c.

Enforcement. The code compliance department shall enforce this section.

This

not

shall

preclude

law

other

enforcement

agencies

or regulatory

bodies from any action to assure compliance with this section and all
applicable

laws. If

70- 66, includes

as defined in section

a code compliance officer ( which,

a police officer)

finds

a violation 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

and

violation, amount of

fine for

due date for paying the fine,

which

the

violator

is liable, instructions

that the violation may be appealed by

requesting an administrative hearing before a special master within ten

10) days
appeal

after service

the

violation

of

within

the

notice

of violation,

and that the failure to

ten ( 10) days of service shall constitute an

admission of the violation and a waiver of the right to a hearing.

d.

Rights

fine; right to appear; failure to pay civil fine

of violators; payment of

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

violation; or

B. request an administrative hearing before a special master

to

appeal

within

ii.

the

notice of violation,

which must be requested

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

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

by a resolution of the city commission, which shall be
refunded if the named violator prevails in the appeal.

approved

iii.

If the named violator, after issuance of the notice of violation, fails

to pay the civil fine, or fails to timely
hearing before a special master, the

request an administrative
special

master

may

be

informed of such failure by report from the officer. The failure of the
named

violator

to

appeal

the decision

of

the

officer within the

prescribed time period shall constitute a waiver of the violator' s

right to an administrative hearing before the special master, and
shall be treated as an admission of the violation, for which fines and

penalties shall be assessed accordingly.

iv.

A certified copy of an order imposing a fine may be recorded in the

public 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,

but

including levy against the violator's real or personal property,

shall

not

be

deemed

purposes.

enforcement

to

On

be

or

court

after

the

judgment
sixty- first

except for
( 61st)

day

recording of any such lien that remains unpaid, the

following the

City may foreclose or otherwise execute upon the lien.

v.

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

that decision to a court of competent jurisdiction.

vi.

The special master shall be prohibited from hearing the merits of

the notice of violation or considering the timeliness of a request for
an administrative hearing if the violator has failed to request an
administrative

hearing

within

ten ( 10) days of the service of the

notice of violation.

vii.

The special master shall not have discretion to alter the penalties
prescribed

in

subsection ( 8)( a) or(

8)( b).

SECTION 2. CODIFICATION.

It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is

hereby ordained that the provisions of this Ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered or
re- lettered

to

accomplish such

intention,

and,

the

may be changed to " section,"

word " ordinance"

article," 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,

or

clause

of

provision

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

20 day

ADOPTED this

MQ

of

2015.
i

ATTEST:

ommutt'
Lg

Rafael E. Granado,
Sponsored
Sponsored

First

by
by

City

Mayor

N\.

F,

P'

7t,

Levin;/

Clerk

a " r

Philip L= ill

Commissioner ; icha.

Reading:
Second Reading:
g

May 6, 20 r%
II C
MayY 20,

of

TM A,..

20v1

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

00;
_

City Attorney

Date

F:\A TTO\ KALN\ ORDINANCESWlcohol\Alcoholic Beverages Hours of Sale Sidewalk Cafes 2AM as amended. docx
8

c- 14( 5

NNW
um= ams

mm

1915 2015

MIAMIBEACH
OFFICE OF THE CITY ATTORNEY

COMMISSION MEMORANDUM

RAULJ. AGUILA, CITY ATTORNEY

To:

From:

Philip Levine
Members of the City Commission
Mayor

Raul J. Aguil

Q_

City Attorne
Subject:

Date: May 20, 2015

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),
FOR
REPEALER,
PENALTIES;
AND
PROVIDE
FOR
PROVIDING

AND

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

CAFES

AT

CONSUMPTION
2: 00

A. M.,

ENFORCED

PURSUANT

PROVIDING

FOR

OF

ALCOHOLIC

AND

PROVIDE

THAT

TO

SECTION

6- 3( 8)

REPEALER,

BEVERAGES

SECTION
OF

SEVERABILITY,

THE

AT

CITY

SIDEWALK

SHALL

82- 388

CODE;

CODIFICATION,

BE

AND

AND

AN

EFFECTIVE DATE.

Introduction
Pursuant to the

request of

Mayor

Philip Levine, the attached Ordinances are submitted for

consideration by the City Commission. The first Ordinance amends Chapter 6 of the City Code,
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.,
prohibit the granting of variances from the provisions of Section 6- 3( 3)( d), and provide penalties
for violations of Section 6- 3.

Agenda Item
Date

RSA
5-26-' 5"

Ordinances Terminating Sale of Alcoholic Beverages at Sidewalk Cafes at 2:00 a. m.

May 20, 2015
Page 2

The

second

Ordinance

amends

Chapter 82, Article IV, Division 5,

by creating Section 82- 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 own regulations for the time for
sale of alcoholic or intoxicating beverages. Pursuant to Section 562. 14, Florida Statutes, no
beverages may be

alcoholic

sold, consumed, served,

or permitted to be served or consumed in

any place licensed to sell alcoholic beverages between the hours of midnight and 7: 00 a. m.,
unless a municipality elects to establish its own regulations for the 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 Night, Inc. v. City of Fort Lauderdale, 272 So. 2d 502 ( Fla. 1972), the Florida
upheld Section 562. 14, Florida Statutes, holding that the statute, which relates

Supreme Court
to

and county regulations of the time for sale of alcoholic and intoxicating

municipal,

state,

beverages ( 1) does not contravene Federal and State constitutional guarantees of due process
and equal protection of

the legislature;

the laws; ( 2) does not constitute an unlawful delegation of the powers of

3)

does not contravene any of the prohibitions against special laws or

general laws of local application appearing in Section 11 of Article III of the Florida Constitution.
and (

Florida Courts have held that a municipality exercising its inherent powers may reasonably
the sale of intoxicating liquors and, in providing such reasonable regulations, may

regulate

prohibit sale of such

1936).
1)

liquors

within certain zones.

State

ex rel.

Floyd

v.

Noel, 169 So. 549 ( Fla.

Furthermore, the Florida Attorney General has opined that a municipality may regulate

the hours

of sale, (

2) zoning

of

locations in

which alcoholic

beverages may be

sold, and (

3)

the sanitary conditions under which alcoholic beverages may be dispensed or served to the
public. Op. Att' y Gen. Fla., 059- 73 ( 1959).
Based

upon

beverages

the

foregoing, it is clear that a City may regulate the hours of sale of alcoholic
cafes, provided the regulations are not exercised in an arbitrary or

at

sidewalk

discriminatory

manner,

reference

to the

and are grounded upon some reasonable basis of classification with

matter to be regulated. Makos v. Prince, 64 So. 2d 670 ( 1953). In

subject

regulating the sale of alcoholic 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.
provided

for in

The Florida Attorney General has opined that different hours may be

a municipal ordinance, provided

and morals of

the community.

To be

clear,

business is

Op. Att' y
neither

there is

reasonable relation

to the health, safety,

Gen. Fla., p. 497 ( 1950).

entitled

to "

grandfathered"

status nor entitled to enjoin

regulating the times during which liquor may be sold. Village of

H Foster' s Inc., 80 So. 3d 433 ( Fla. 4th DCA 2012); Other Place of

enforcement of an ordinance

North Palm Beach

Miami, Inc.
have

v.

upheld

City

v.
of

S&

Hialeah Gardens, 353 So. 2d 861 ( Fla. 3d DCA 1977). Further, the courts

municipal

ordinances

against

claims

for

injunctive

the

time

at

which

alcoholic

beverages

relief

against

be

municipal

because
may
regulating
have the statutory authority to set times for sale of alcoholic beverages. Id.;
Playpen S., Inc. v. City of Oakland Park, 396 So. 2d 830 ( Fla. 4th DCA 1981). Lastly, Florida

ordinances

sold,

municipalities

Courts have ruled that hours of operation are not a property

of S. Daytona, 186 So. 2d 78 ( Fla. 1st DCA 1966).

right.

S. Daytona Rests.,

Inc. v. City

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"

of the City Code, entitled " Hours of Sale," of Chapter 6, entitled " Alcoholic
regulates the hours during which alcoholic beverages may be sold in the City. The
attached Ordinance amends Section 6- 3 by creating Section 6- 3( 3)( d) to prohibit the sale or

Section

6- 3

Beverages,"
first

consumption of alcoholic

a. m.

Section 6- 3( 3)( d)

beverages

at sidewalk cafes

between the hours

of

2: 00

a. m.

and 8: 00

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 also amends Section 6- 3 to provide enforcement and penalty provisions for
violations

of

any
first

provision

of

Section 6- 3. Violators of Section 6- 3 would face a civil fine of

12- month period, $ 5, 000 for a second offense within a 1210, 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,

1, 000 for

offense within a

month period, and $

business tax

receipt,

or certificate

of

occupancy. Upon

fourth

or

subsequent

offense,

the

violator would be prohibited from applying for and obtaining a new sidewalk cafe permit for a
period of two permit years following the permit year in which the sidewalk cafe permittee
incurred the violations. Due to the public safety implications of the sale and consumption of
alcoholic

beverages

at sidewalk 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 10 days of
service

of

the

notice

constitute a waiver of
violation.

of violation.

the

The failure of a named violator to appeal a violation shall

to appeal, and shall be treated as an admission of the

violator' s right

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,
the

City'

at

Article IV, Division 5 ( the " Sidewalk Cafe Ordinance") sets forth regulations for
cafes.
The second attached Ordinance amends the Sidewalk Cafe

sidewalk

Ordinance by creating Section 82- 388, 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 sale

or consumption of alcoholic beverages in violation of Section 82- 388 shall be enforced pursuant
to Section 6- 3( 8),

as amended by the first attached Ordinance.

Fiscal Impact
The Ordinances

are not expected

to have any fiscal impact

on

the

City' s

resources.

CHAPTER 82 PUBLIC PROPERTY

SIDEWALK CAFE ORDINANCE ALCOHOL REGULATIONS

2015- 3939

ORDINANCE NO.

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
BEVERAGES AT
THE SALE AND CONSUMPTION OF ALCOHOLIC

AND PROVIDE THAT SECTION 82- 388

PURSUANT TO SECTION 6- 3( 8) OF THE CITY

SIDEWALK CAFES AT 2: 00 A. M.,

BE ENFORCED
CODE; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION,

SHALL

AND AN EFFECTIVE DATE.

WHEREAS,
sidewalk

cafes)

in

there

continues

certain

areas

of

to

exist

the

City

the
of

need

for

outdoor

eating

establishments

Miami 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 presence of sidewalk cafes may thus impede the free and safe flow of
pedestrian traffic; and

visitors

WHEREAS, in order to facilitate and ensure a safe environment for residents and
at sidewalk cafes, which are located on public rights- of-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 for sale or
consumption; and

WHEREAS, the City has established permit conditions and safety standards for sidewalk
cafes in

order

to

protect

and

promote

the

general

health, safety,

and welfare of the City' s

residents and visitors; and

WHEREAS, it is in the best interest

of

the

City,

and

it

serves

the health, safety, and

welfare of the City' s residents and visitors, to require that sidewalk cafes, which are located on
public 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

quiet enjoyment of the community, cause undesirable noise, result in physical disputes amongst
patrons and passers- by, and contribute to litter, noxious odors, and the general degradation of
the City; and
WHEREAS, the amendments set forth below are necessary to accomplish the objectives
identified

above.

NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION

OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. That Section 82- 388
the Code

of

the Cit y

Subdivision II,

of

of

Division 5, of Article IV, of Chapter 82 of

of Miami Beach is hereby created as follows:

CHAPTER 82
PUBLIC PROPERTY

Article IV. Uses in Public Rights-of-Way

DIVISION 5. SIDEWALK CAFES

Subdivision II. Permit

Sec. 82- 388. Hours of sale of alcoholic beverages; enforcement.

fal Alcoholic beverages shall not be offered for sale or consumption at sidewalk cafes
between the hours
sidewalk

cafes

of

2: 00

a. m.

1: 30

between the hours

a. m. and
of

2: 00

8: 00

a. m.

a. m.,

and shall not be consumed at

8: 00

and

a. m.

Compliance with this

section shall be a condition of maintaining a sidewalk cafe permit.

A

violation

of

this

section

accordance with section

Secs. 82- 388 82- 389-

shall

be

enforced

penalties

and

shall

be

imposed

in

6- 3( 8) of this Code.

82- 410. Reserved.

SECTION 2. CODIFICATION.
It is the intention

of

the Mayor

and

City Commission

of

the

City

of

Miami Beach, and it is

hereby ordained that the provisions of this ordinance shall become and be made part of the
Code

of

the

re- lettered

City

to

of

Miami Beach,

accomplish such

Florida. The sections of this ordinance may be renumbered or

and, the word " ordinance" may be changed to "section,"

intention,

article," 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,

clause

of

or provision

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

20 day

ADOPTED this

of

MQ

2015.

ATTEST:

I'

5 _fS 1*&
Raf:

el

E. Granado,

First

by

Commissi

Reading:
Reading:

Second

..

Philip

Le

- %

or

City

Le

Sponsored by Mayor Phi y

Sponsored

RP

cha.

57

6, 2i'ck.,44,;

ORATEp

xr

ieco):<
...
0

go

ci\
26`'''

May
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

4tP& Or-,\-ltorney

F:\ ATTO\ KALN\ ORDINANCES\ Alcohol\Alcohol Amendments to Sidewalk Cafe Ordinance

as amended. docx

5 \ v.
Date

34NE.

i SUNDAY, MAY 10, 2015

MiamiHeratd,com I MIAMI HERALD

NE .

CITY OF MIAMI BEACH

s

NOTICE OF PUBLIC HEARING

NOTICE IS HEREBY given that a public hearing will be held by the

Mayor and

City

Commissioners of the

City

of

Miami Beach, Florida,

in the Commission Chambers; Third Floor, City Hall, 1700 Convention

Center Drive, Miami Beach, Florida, on Wednesday, May 20, 2015. at
as soon thereafter as the matter can be heard, to consider:

5: 15 p. m., or

Chapter 6- Alcoholic Beverages

An Ordinance

Amending Chapter

The Code Of The

6, Entitled " Alcoholic Beverages;' Of

City Of Miami Beach, Florida, Article I, Entitled " In

6- 3 Thereof, Entitled " Hours Of Sale,' To Terminate

General;' Section
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 the Office of the City Attorney at 305.673.7470.

Chapter 82- Public Property Sidewalk Caf Ordinance- Alcohol Regulations
An Ordinance Amending Chapter :82, Entitled " Public Property;' Of

The Code OfThe 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 ProvideThat 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 Office of the City Attorney at 305.673.7470.

are invited to appear at this meeting, or be t
represented by an agent, or to express their views in writing addressed
to the City Commission, cio the City Clerk, 1700 Convention Center

INTERESTED PARTIES

Drive, 1St Floor, City Hall, Miami Beach, Florida 33139.These items are 7
available for public inspection during normal business hours in the
City Clerk' s Office, 1700 Convention Center Drive, 1" Floor, City Hall,

Miami Beach, Florida 33139: This meeting, or any item herein, may be
continued, and under such circumstances, additional legal notice need

not be provided.
Pursuant to Section 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 the testimony 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

inadmissible or irrelevant evidence, nor does it authorize challenges 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

2015- 3953

ORDINANCE NO.

AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE

CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE
ENTITLED
BEACH,
MIAMI
OF
CITY
OF
THE
MISCELLANEOUS OFFENSES," ARTICLE II, ENTITLED " PUBLIC

CODE

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

FROM

TAKE

BEVERAGE

ANY

PREMISES

THE

CONTAINER OF ALCOHOLIC

OPENED

ALCOHOLIC

OR

UNSEALED

OPEN

ANY

OR

CONTAINER

BEVERAGES, AND ( 3) AMEND THE

ENFORCEMENT AND PENALTY PROVISIONS; AND PROVIDING FOR

REPEALER, SEVERABILITY, CODIFICATION, AND AN

EFFECTIVE

DATE.

WHEREAS,

the

containers of alcoholic

disturbs the

consumption,

unauthorized

beverages in

quiet enjoyment of

service,

public places within

the community,

the

sale,

City

and

of

causes undesirable

possession

of

Miami Beach ( the "

noise,

open

City")

and contributes to

litter, noxious odors, and the general degradation of the City; and
WHEREAS, Section 70- 87

of

the

City

Code

prohibits

the

consumption,

service,

sale,

and possession of open containers of alcoholic beverages on or in public places within the City,
except in those areas as designated and approved for such use by the City Manager or the City
Commission; requires that the owner or operator of any package store or foodstore selling
regarding the

City' s open container

regulations; and provides that it shall be unlawful for any owner, operator, agent, or employee of
alcoholic

beverages

prominently

post

warning

sign

any alcoholic beverage establishment to knowingly allow any person to take from the licensed
premises

any

opened

beer,

wine,

liquor,

or other alcoholic

metal, plastic, or other open or unsealed container of

beer,

beverage
wine,

container, or any glass,

liquor, or any other alcoholic

beverage; and

WHEREAS, it is in the best interest of the City, and it serves the health, safety, and
welfare of the City' s residents and visitors, to increase ( 1) the criminal penalties against persons
who consume, serve, sell,
public

place; (

2)

or possess an open container of any alcoholic beverage on or in any

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

to take from the premises any open or

unsealed container of beer, wine, liquor, or any

person

unsealed glass, metal, plastic, or other open or

other alcoholic

beverage;

and

enforcement of this Ordinance by the City' s Police Department and Code

WHEREAS,

Department

Compliance

will

protect

the

health, safety,

welfare,

and quality of life of the

residents and visitors of the City of Miami Beach; and

the amendments set forth below are necessary to accomplish the above

WHEREAS,
objectives.

NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR

OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:

AND CITY COMMISSION

That Division 3 of Article II of Chapter 70 of the Code of the City Miami Beach is
hereby amended as follows:

SECTION 1.

CHAPTER 70
MISCELLANEOUS OFFENSES

ARTICLE II. PUBLIC PLACES

DIVISION 3. ALCOHOLIC BEVERAGES

Consumption, service, sale and possession of open containers of alcoholic

Sec. 70- 87.

beverages on or in public places; warning signs required.

a)

Violations.
1)

It

shall

be

unlawful

for any

person

to

consume,

serve,

sell,

or

possess

an

open

container of any alcoholic beverage on or in any public place within the city except in
e-

a.

the following areas:

'-' -- _ -- _ - .' :

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 for such use by the city by the issuance of a
valid special event permit.

2)

The owner or operator of any package store or foodstore selling alcoholic beverages
shall

prominently

customer

post,

on the outside of each entrance and on the inside of the main

exit of each package store or foodstore selling alcoholic beverages, a sign

with contrasting letters at least one-half inch tall, stating the following:

IT

FOR ANY PERSON TO CONSUME, SELL, SERVE, OR

UNLAWFUL

IS

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
SUCH

FOR

ARE

VIOLATORS

CITY.

THE

BY

PURPOSE

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.
It

3)

be

shall

beverage

unlawful

for any

operator,

owner,

agent or employee of any alcoholic

establishment or special event permittee

licensed to

sell,

serve or dispense

to knowingly allow
any

to take from the licensed

person

event

permit area,

- === =_=== ,

any
las is

premises, sidewalk cafe permit area, or special

-- _

=_ _=

__= _ =_

-_ ='== =--

thereof any open or unsealed glass. metal,

other al oholic
container of beer wine li uor or an

mixture

or other o. en or unsealed

beverage.

b)

Penalties for
1)

Any
be
not

violations of subsection ( a)(

convicted of a violation of subsection ( a)(

person

punished

to

by

exceed

for

conviction

by

punished

1).

imposition

of a

a-0 30 days,
of

violation

imposition

or

fine

not

both, for

fine

not

first

( a)(

subsection

of a

exceed $ 50700

to
a

to

$ 250. 00

else violation.

1)

of

exceed $

this

1) of this section shall

section,

or by imprisonment
Upon any subsequent

such

300-00.$ 500. 00,

person

shall be

or by imprisonment

not to exceed 30 60 days, or both.

violations

as

c)

Penalties for

1.

in

provided

chapter

30

violations of subsections ( a)(

-The followin
a)( 2) and ( a)( 3):

of

e.

2)

this

e .

e-

and ( a)(

Code.

Any

code

_.. .. -

inspector

e-_

who

has

e '-

3).

civil fines shall be im osed for a violation of subsections

First violation by=a=pefsen=er=entitgo within a 12-

a.

1, 000. 00;

month period:

b.

9. 90 _

e - -

e- ---- '-- - -

TIste=penalty=for=the=6060144SeCorIC

violation

within

2, 000. 00;

a 12- month period:

Third violation law=a=pefsen=er=eatrity within a

c.

12- month

period_ shall=be=a=eiv414iFte=of$

3, 000. 00;

d.

2.

Fourth or subsea uent violation = _-_==--= -=

--=_ ::_;;;:- _- -= =_ = ey within a 12- month

Enhanced penalty. The following

enhanced

to any mandatory fines set forth in

subsections ( a)( 2) or( a)( 3):

Upon

a.

finding by the

5, 000. 00.

period_

penalty

shall

( c)(

subsection

1)

be imposed, in addition

that four ( 4)

special master

for violations of

above,

or more violations by

a person or entity have occurred within a 12- month period, the special
master

shall

the

revoke

or

suspend

certificate

of use,

business tax

receipt, or certificate of occupancy of the violator.

3.

Enforcement. The

department

code compliance

enforce subsections ( a)(

shall

2)

This shall not preclude other law enforcement agencies or regulatory,

and ( a)( 3).

bodies from any action to assure compliance with this section and all applicable
laws. If

issue

a code compliance officer ( which, as

finds

officer)

police

a violation

of

this

defined in

section,

notice shall

the

which

violation

inform the

is liable, instructions

violator

be

may

the

by

appealed

special master within

nature of
and

requesting

ten ( 10) days

70- 66, includes a

The
amount of fine for
due date for paying the fine, that the

a notice of violation -- -= _- -=-_ =-- -_==- ----- _ =

violator of

section

the code compliance officer shall

an

the

-=- -_-_=_-.

violation,

hearing before a

administrative

after service of

the

and that

notice of violation,

days of service shall constitute an

admission of the violation and a waiver of the right to a hearing.

the failure to

4.

Rights

appeal

the

violation within

of violators; payment of

fine;

ten ( 10)

right to appear; failure to pay civil 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
either

i.

pay the

civil

fine in the

manner

indicated

on

the

notice

of

violation. or

request an administrative hearing before a special master to

ii.

appeal

the

notice of violation,

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 hearings must be accompanied by a fee as approved

by a resolution of the city commission, which shall be refunded if the
named violator prevails in the appeal.
mac.

The
- _-____ - _: -:-===_==-.= _ -,
-_
failure to pay the civil fine, or Ws to timely request an administrative

- -=-_

__- _

=,

hearing before a special master,

shall constitute a waiver of the violator's right to an administrative

hearing

before

the

special

master,

and

shall

be

treated

as

an

admission

the

of

for

violation,

which

fines

and

penalties

shall

be

assessed accordingly.

d.

A certified copy of an order imposing a fine may be recorded in the

and thereafter shall constitute a lien upon any real or

public records,

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 against the violator' s real or personal property, but shall not be
deemed to be a court judgment except for enforcement purposes. O
Three U months 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

hearing if the violator has failed to request an

administrative

administrative

hearing

within

ten ( 10) days of the service of the notice

of violation.

f.

The special master shall not have discretion to alter the penalties
prescribed

An

art

in
a

subsection ( c)(

rieved

1)

or ( c)( 2).

decision

of a special mas er ma

peal

ha

decision to a court of competent jurisdiction.

REPEALER.

SECTION 2.

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

SECTION 3. SEVERABILITY.
If any

section,

subsection,

clause

or

provision

of

this Ordinance is held invalid, the

remainder shall not be affected by such invalidity.

SECTION 4. CODIFICATION.

It is the intention

of

the Mayor

and

City

Commission

of

the

City

of

Miami Beach, and it is

hereby ordained that the provisions of this Ordinance shall become and be made part of the
Code

of

Miami Beach, Florida. The sections of this Ordinance may be renumbered or

to accomplish such intention, and the word " ordinance" may be changed to " section,"

the

relettered

City

of

article," or other appropriate word.

SECTION 5. EFFECTIVE DATE.

i Ordinance
This

shall

take

effect on

PASSED AND ADOPTED this

ag

the

day

da
day

NI

of

2015.
2015.

of

ATTEST:

2_,,,/ '
I

i.e.

7,
R- -

el

E.

Sponsored

ra

ad',

l`

c :

Ci '

underline

denotes

ORFAED.

7,4

.."/

afth''

denotes deletions

0
g

Ate

%-

additions

% .

44/-

i,

additions

ne,

gz:
Mi 0 a 1 9jD

denotes deletions
Double

skw'

J.

Clerk

Co
by Commissioner

Underline denotes

eh
I .'

'_
.."

eading

afte

s"

F: WTTO\ KALN\ ORDINANCES\ Open Container Ordinance Amendments( 2015)(

.
Second Reading). docx

APPROVED AS TO
FORM& LANGUAGE

FOR EXECUTION

4_,051,.

Cfty Attorney