CAO 03-12 Certificate of Use CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
To:
From:
Subject:
MEMORANDUM
Jorge M. Gonzalez
City Manager
C.M.O. No. 2-6/03
C.A.O. No. 03-12
Murray H. Dubbin/~.~
City Attorney /~ :~..~
Roberto Datorre, ~~
Assistant City Attorney
Certificate of use and Annual Fire Fee and Occupational License of The Alliance for
Education, Inc. - Appeal of the restrictions on the license which provide for inside sales
only.
This memorandum responds to your June 27, 2003 request for legal opinion regarding the above-
referenced issue, C.M.O. Number 2-6/03, in which you ask what the appeal process is for a
restriction on outside sales placed on the occupational license.
The restriction against outside sales is not unique to The Alliance for Education, Inc.'s license.
Section 142-874(a) of the Code of the City of Miami Beach, entitled "Required Enclosures,"
provides that:
Store enclosures. In all use districts designated in these land development
regulations, the sale, or exposure for sale or rent, of any personal property, including
merchandise, groceries or perishable foods, such as vegetables or fruits, is prohibited,
unless such sale, or exposure for sale, is made from a substantially enclosed,
permanent building or structure...
§142-874(a), City Code (emphasis added). All occupational licenses in the City are subject to this
section of the City Code.
A notation was placed on the license to ensure that the licensee understood that the City Code
restricted the ability of sales to inside enclosures only.~ Enforcement of this section of the City Code
should be appropriately handled by the Code Compliance Department.
1 The documentation provided by the licensee did not indicate an enclosed location available to it.
The Alliance for Education obtained the license as a subleasee contemplating the placement of a
table on the outside of the property at 918 Ocean Drive, in the space currently used by Fat Tuesdays
as an outdoor sidewalk caf6.
Consequently, there is no appeal available to The Alliance for Education, h~c., or any other licensee,
to remove the restriction against outside sales placed by § 142-874(a) of the City Code. Relief from
the restrictions of ~ 142-874(a) would require an amendment to the City Code.
If you have any other questions or concerns, please do not hesitate to contact me.
Cc:
Christina M. Cuervo
Patricia Walker
Jorge Gomez
Jorge Montes
F:~atto\DATR\City Attorney Opinions and MemosXAlliance for Education.doc
CITY OF MIAMI BEACH
Office of the City Manager
Request for Legal Opinion
C.M.O. Number: ~.~..~L~
To:
From:
Subject:
Murray H. Dubbin
City Attorney
Jorge M. Gonzalez0-~
City Manager
CERTIFICATE OF USE AND ANNUAL FIRE FEE AND OCCUPATIONAL
LICENSE OF THE ALLIANCE FOR EDUCATION, INC. -
APPEAL OF THE RESTRICTIONS ON THE LICENSE WHICH PROVIDE
FOR INSIDE SALES ONLY
Date: June 27, 2003
Attached is a letter from Laurence Feingold, Attorney, dated May 16, 2003. Mr. Feingold
represents The Alliance for Education, Inc., holder of the attached merchant sales license
at 918 Ocean Drive, Miami Beach. The Alliance for Education is requesting an appeal of
the restrictions on the aforestated license which provide for inside sales only.
Please advise what the appeal process is for said request.
Thank you.
JMG\CMC\Icd
Attachments
c'
Christina M. Cuervo
Patricia Walker
Jorge Gomez
Jorge Montes
F:\cmgr~$ALL~JORGEGON\MEMOS~request for legal opinion Feingold The Alliance for Education.doc
Murray B. Weft, Jr.
of Counsel
Admitted in Florida & Massachusetts
Law Offices
Laurence Feingold
Professional Association
S. David Sheffman, J.D., LLB.
Attorney/Mediator
May 16, 2003
Jorge Gonzalez, City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Re:
Certificate of Use and Annual Fire Fee and Occupational of The Alliance for
Education, Inc.
Dear Mr. Gonzalez:
The undersigned represents The Alliance for Education, Inc., holder of the attached merchant
sales license at 918 Ocean Drive, Miami Beach, Florida.
This letter shall constitute an appeal of the restrictions on the license which provide for inside
sales only.
The basis of this appeal is the First Amendment of the Bill of Rights of the United States
Constitution and Ordinance No. 97-3094 of the City of Miami Beach.
Ordinance No. 97-3094, as well as the First Amendment of the United States Constitution,
allows non-profit vending and distribution in public right of ways. The Ordinance simply sets forth
the guidelines for non-profit vending on public right of ways. The rationale of said Ordinance is that
the uncontrolled placement of portable tables constitutes an inconvenience and hazard to persons
using the City's public right of way and thereibre, constitutes a public nuisance.
Thus, all the Ordinance seeks to do is to regulate a first amendment fight to Free Speech in
such a way that such right does not become a hazard to other persons using the public right of way.
In the attached license, my client, The Alliance for Education, Inc., a tax exempt non-profit
organization under Section 501 of the Internal Revenue Code, seeks to maintain the placement of
a portable table on private property. Attached hereto is the IRS verification of its tax exempt status.
My client has the absolute right under the First Amendment to perform those very same acts
on private property that he would be entitled to perform under Ordinance No. 97-3094 in public
property. In fact, the rationale of Ordinance No. 97-3094 concerning the uncontrolled use of the
City's public right of ways simply does not apply at all to a non-profit corporation seeking the
placement of portable tables on private property.
407 Lincoln Road · Suite 708
Miami Beach, Florida 33139
(305) 53s-~os6. tax (305) 538-zsz5
May 16, 2003
Page -2-
Based upon the constitutional and selective enforcement considerations set forth herein, this
Appeal to you, the City Manager, seeks to eliminate from the attached license the limitation of
"inside sales only."
Please let me hear from you at your earliest convenience.
· .............. Sincerely, ......
Laurence FeingokF
LF:rcd
Encl.
cc: Moshe Rabin (The Alliance for Education, Inc.)
CITY OF MIAMI BEAt, r1 CERTIFICATE OF USE, AhNUAL FIRE FEE~ AND:
OCCUPATIONAL LICENSE
TRADE NAME: THE ALLIANCE FOR EDUCATION INC
IN CARE OF: MOSHE RABIN
ADDRESS: 1911 N W 40TH COURT
POMPANO BEACH FL
333064
A penalty is imposed for failure to keep this license exhibited
conspicuously at your place of business.
A Certificate of Use Occupational License issued under this
article does not waive or supersede other City Laws, does not
constitute City approval of a particular business activity and
does not excuse the licensee from all other laws applicable to
the licensee's business.
This license may be transferred:
A. Within 30 days of a bonafide sale, otherwise a complete
annual payment is due.
B. To another location within the City if proper approvals and
the license are obtained prior to the opening of the new
location.
/~"~'~itional Locations Used I Serviced:
[..2,DE SA'tS O.LV.
NO SALES OUTSIDE OR DISPLAY
OF MERCHANDISE IN PUBLIC RIGHT
NO HAWKING. NO PEDDLING.,./
OF WAY. /
17.00 Convention Center Drive ACCOUNT #: RL03001650
Miami Beach, Florida 33139-1819 Beginning: 10/'01/2002
Expires: 09/30/2003
Parcel No: 32340080050
TRADE ADDRESS: 918 OCEAN DR
Code Unit Certificate of Use I Occupation
9999
95012065
Certificate of Use is Shared
1000 Merchant Sales
FROM: CITY OF MIAMI BEACH
t700 CONVENTION CENTER DRIVE
MIAMI BEACH, FL. 33139-18t9
PRESORTED
FIRST CLASS
U.S. POSTAGE
PAID
MIAMI BEACH, FL
', PERMITNo 1525
THE ALLIANCE FOR EDUCATION , INC
1911 N W 40TH COURT
POMPANO BEACH FL
33064
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