CAO 99-18
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CITY OF MIAMI BEACH
CITY ATTORNEY'S OFFICE
CAO 99-18
TO:
Commissioner David Dermer
Murray H. DUbbi: J A 1.1J 11 ~
City Attorney / W I ~tpllV"
August 5, 1999
FROM:
DATE:
SUBJECT:
Your inquiry of August 2, 1999 - Beachfront Concessions
.
The memo requests advice as to:
1) The legal relationship between an upland property owner along the public beach and
the City as relates to concession agreements; specifically the upland owners' rights
in regulating concessionaires on the public beach.
2) The rights of the City to regulate the upland owners' decision?
Pursuant to Section 161.141-161.211, Florida Statutes, the State is title holder of all beachfront land
between the erosion control line and the mean high water line.
On February 3, 1982, the City entered into a Management Agreement with the Board of Trustees of
the Internal Improvement Trust Fund of the State of Florida (TIITF) for the City's management of
the above referred to property for a period of25 years. This Agreement bears TllTF #3595 and City
#750-006. A copy of the Management Agreement is attached as Exhibit A. Pursuant to the
Management Agreement and Section 253.034(4)(5), Florida Statutes, the City was required to
submit a Management Plan every five years. On October 6, 1982, the Commission adopted
Resolution #82-17152 which adopted a Beachfront Concession Plan presented to the Commission
by the City Manager. This action apparently constitutes the first Management Plan adopted under
the Agreement. A copy of Resolution #82-17152 with plan attached is enclosed as Exhibit B.
Section IT of the Plan establishes the rule governing the Grant of Concessions and provides in part:
''The Concessionaire operating on the Public Beach behind the upland owners
property will be granted an occupational license only after they receive from the
upland owner and the City of Miami Beach in writing, permission to offer said
services to the public."
Although the Management Plan has been updated, the above quoted language remains the same.
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The City has implemented its management responsibilities by the adoption of Rules and Regulations,
the latest having been adopted September 24, 1997 by Resolution No. 97-22533. Although the
Resolution and package are not enclosed, the Rules and Regulations including an application form
to be used by proposed concessionaires behind private upland owners is attached as Exhibit C.
Accordingly, under the Beachfront Management Plan applicable at this time, your questions are
answered as follows:
1) A concessionaire operating on beachfront behind a private upland owner must be
approved by the upland owner and the City. The Rules and Regulations adopted by
the City require the concession and the concessionaire to be authorized by the upland
owner and provide for the City to issue such occupational licenses and other permits
as may be required, in accordance with the Code and such Rules and Regulations.
2) The City may not arbitrarily substitute its judgment for that of the upland owner, as
to the concessionaire authorized. However, the City, through its applicable Rules
and Regulations and the licensing process, has ultimate regulatory control over the
concession, the concessionaire and the use of public land.
If you have other or further questions, please inquire.
MHD:lm
Encl.
cc: Mayor Neisen Kasdin
Members of the City Commission
City Manager Sergio Rodriguez