CAO 99-20
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CITY OF MIAMI BEACH
CITY ATTORNEY'S OFFICE
CAO 99-20
TO: Mayor Neisen Kasdin
FROM:
Murra.y H. DUbbi.n \ ~J.\,Ol/-
City ~ttorney . ~ \k\~.
Aug~st 10, 1999 '.
DATE:
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SUBJECT:
YOUR MEMO OF JULY 12, 1999 - PENDING P.LANNING BOARD
RECOMMENDATIONS - DANCE ESTABLISHMENTS - HOURS OF
OPERATION
In the above referenced memorandum you refer to legislation pending before the Planning Board,
which amongst other things restricts the operation of dance halls between the hours &f 5 :00 a.m. and
10:00 a.m. citywide. You also point out that pending legislation would preclude these establishments
from operating on Lincoln Road.
You have requested that I review the above matters and "opine as to the City's position regarding
the imposition of operating hours for dance .hal1s which do not serve alcoho1." The Planning
Department transmitted to me. the latest version of legislation approved by the Planning Board,
which addresses the above issues. This is contained in a single ordinance dealing with hours of sale
and permitted uses. A copy of the proposal is attached to this opinion. Since the thrust of your
inquiry emphasizes the question of hours of operation, I will limit my response to that issue.
The pertinent portion of the attached proposed Ordinance is set forth on page 3, in the third
grammatical paragraph, which sets forth new language to be incorporated in the existing Code,
Section 114-1, Definitions, which would read as follows:
"Dance hall means a commercial establishment where dancing by patrons is allowed,
including, but not limited to, restaurants, alcoholic beverage establishments and
entertainment establishments. Dance halls may not operate between the hours of 5 :00
a.m. to 10:00 a.m."
Accordingly, the Ordinance, if adopted as written, would apply to any commercial establishments
where patron dancing is allowed whether or not alcoholic beverages are sold and require them to
close down at 5:00 a.m. Thus, the operable occurrence is patron dancing.
The case of City of Dallas v. Stan~lin. 490 US 19, 109 S.Ct. 1591, dealt with a City Ordinance
which restricted use of certain dance halls to minors 14 - 18 years of age and excluded adults. In
upholding the constitutionality of the Ordinance, the Supreme Court cited San Antonio School
District v. Rodrieuez, 411 US 1,40,93. S. Ct. 1278, which held:
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. ''Unless laws create suspect classifications or -infringe upon constitutionally protected
. rights - - - it need only be shown [in order to uphold their constitutionality] that they
bear 'some rational relationship to a legitimate Sate purpose', citing San Antonio
School District v. Rodriguez, 411 US 1,40,93, S.Ct 1278."
In San Antonio the Supreme Court held that patrons of dance halls were not "a suspect class"* and
the Ordinance did not jmpinge upon a constitutionally pr~tected right. * 1
The City of Dallas Court, having determined that First Amendment' freedom of Expression was not
involved, explored the question of whether the Ordinance passed scrutiny under the Equal Protection
Clause, where the standard for review was "rational-basis scrutiny," which it. described as "the most
relaxed and tolerant form of judicial scrutiny under the equal protection clause." Under that standard,
the Court will determine whether a rational relationship exists between the restrictions imposed
(hour of operation) and the City's interest and objectives. The Court held that a ratioruu relationship
existed in the City of Dallas case.
CONCLUSION
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Accordingly, upon a showing of the City's objective and evidence in the record as to how the closing
of dance halls at 5:00 a.m. will meet that objective, in my opinion, the Ordinance will meet
constitutional guidelines.
*1
A constitutionally protected class.
Interestingly, other forms of dancing, i.e., GoGo, nude and semi nude dancing have been held
to be a (marginally) protected class of activity as Freedom of Expression under the First
Amendment.
*
MHD:lm
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cc: Members of the City Commission
City Manager Sergio Rodriguez
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