CAO 01-22 Cooking/Heating
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CITY OF MIAMI BEACH
CITY ATTORNEY'S OFFICE
TO:
Jorge M. Gonzalez
City Manager '~. r' 'vI/'
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i\t~urray H. Dubbi~ \ \. \.\/V.....J
City Attorney ;\N \ (.
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CAO NO. 01-22
FROM:
DATE: October 18, 2001
SUBJECT: Legal Opinion Request regarding Cooking and Heating by Beach
Concessionaires, dated September 28, 2001.
I have received the above request together with the additional information that I.requested in order
to provide you with the opinion you are seeking.
Your question was:
As part of the City Commission's 'action on September 5, 2001, grandfathering in the
existing food and beverage providers on the beach, please advise if this grandfathering
applies to the concessionaire or to the location. Furthermore, pl~se clarify, if the grand-
fathered concessionaires can assign or sell their license.
The After Action Report of Agenda Item R 7 E heard on September 5, 2001, now kno'wn as
Resolution N? 2001-24571, states the following:
Amendment # 1.
Motion made by Vice-Mayor Bower to grandfather existing cooking facilities and
exempt Ocean Terrace, Lummus Park, and North Shore Open Space Park, seconded
by Mayor Kasdin; Voice vote: 5-1; Opposed: Commissioner Liebman; Absent
Commissioner Cruz. Joe Damien to handle.
The first half of your question seeks my interpretation of this policy decision made by the Mayor and
Commission.
Through subsequent oral communication, I now understand that your dilemma is: Whether the
grandfathered permitted activity inures to the concessionaire, whereby he/she can carry such
permitted activity from one location to another; or whether such permitted activity inures to the
location itself; or whether both apply.
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The entity most qualified to clarify confusing or unclear policy decisions is the agency that made that
decision, namely the Mayor and Commission. However, since you have requested my advice. I will
be pleased to supply it.
As stated in the After Action Memo: The grand fathering relates to: "Existing cooking facilities.
Accordingly, it is my opinion that the existing concessionaires enjoy the benefit of the
Commission's policy at the location they occupied at the time of adoption of the policy. [ftheir
Concession Agreement terminates, or is mo\'ed to another location. the permit to cook on the Beach
is no longer effective as to the concessionaire. nor either location.
If it had been the intent of the policy makers to grant the concessionaire a movable license :0 cook
on the beach, or to grandfather the original location for the benetlt of that concessionaire and hlture
concessionaires at that location. the motion would have made that clear, The policy makers did not
do either.
You have further inquired as to whether grandfathered concessionaires can assign or sell their
license. I have reviewed the Concession Agreement with one of the affected concessionaires which
you provided to me, the same being the standard type of Concession Agreement.
Neither the Letter of Authorization, nor the Application. nor the backup documents provide that the
concession is assignable. In fact, paragraph 4 of the Rules and Regulations requires that the
concessionaire obtains written authorization from the upland owner allowing the concessionaire to
operate behind the upland owner's property, Accordingly, the c.oncessionaire must be personally
approved by the upland o'lNtler as well as the City. This fact in and of itself impairs the free
assignability of the Concession Agreement.
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Further review of the Agreement and Rules and Regulations in effect at the time of entry into the
subject Concession Agreement clarifies that the permit granted by the City to use public land is
personal permit which inures only to the benet'it of the grantee. A new concessionaire could not come
into possession of the location without the \vritten approval of the upland owner as well as the City.
In my opinion, under the standard Concession Agreement, neither the grandfathered concessionaires
nor any concessionaire can assign or sell their license without approval of the City and the upland
owner. In the event such occurred, in my opinion, it would require a new concession agreement with
a new owner/operator.
MHD:lm
cc: Mayor Neisen Kasdin
Commissioner Matti Bower
Commissioner Simon Cruz
Commissioner David Dermer
Commissioner Luis Garcia
Commissioner Nancy Liebman
Commissioner Jose Smith