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2010-3669 OrdinanceORDINANCE NO. 2010-3669 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 62 OF THE CITY CODE, ENTITLED, "HUMAN RELATIONS;" AMENDING ARTICLE II, SECTION 62-32 THEREIN ,TO FORMALLY NAME AND ALSO HEREINAFTER REFER TO THE PROVISIONS OF SAID ARTICLE (AND SECTIONS THERETO) AS THE "CITY OF MIAMI BEACH HUMAN RIGHTS ORDINANCE;" AMENDING ARTICLE 11, SECTIONS 62-31 THROUGH 62-66, TO AMENDING THE EXISTING PROVISIONS AND, WHERE NOTED, CREATING NEW PROVISIONS PERTAINING TO THE PROCEDURES FOR FILING AND INVESTIGATING COMPLAINTS, MEDIATION OF COMPLAINTS, HEARING PROCEDURES, AND PENALTIES; FURTHER AMENDING CHAPTER 62, ARTICLE II, DIVISION 3, SECTIONS 62-88.1, AND 62- 90, AND 62-91 THEREOF, AND CHAPTER 62, ARTICLE II, DIVISION 4, SECTION 62-112(c), TO INCLUDE ALL CLASSIFICATION CATEGORIES (AS SET FORTH IN SECTION 62.33) BY WHICH DISCRIMINATION IS PROHIBITED UNDER THE CITY'S HUMAN RIGHTS ORDINANCE; AND PROVIDING FURTHER FOR CODIFICATION, SEVERABILITY, AND AN EFFECTIVE DATE. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. That Chapter 62, Article II, Divisions 1 and 2, Sections 62-31 through 62-66, of the Code of the City of Miami Beach, Florida, is hereby amended as follows: DIVISION 1. GENERALLY Sec.62-31. Definitions. The following words, terms and phrases, meanings ascribed to them in this section, different meaning: when used in this article, shall have the except where the context clearly indicates a Administrator means that person appointed pursuant to section 62-56~. Age means the chronological age of any individual who is ei hteen 18~ years or older. Classification category means each category by which discrimination is prohibited as set forth within section 62-33. These categories are as follows: race, color, national origin, religion, ge~deFSex, ,gender identity, sexual orientation. disability, marital sta#~s; and familial status, or age. Committee means the City of Miami Beach Human Rights Committee. Disability. Disabled persons are persons who: (1) Have a physical or mental impairment that substantially limits one or more of such $e~ssr~s' erp son's major life activities. a. Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. b. Qualified, with respect to employment, means such individual can perform the essential functions of the job in question with reasonable accommodations, and with respect to public services means an individual who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the city. c. Substantially limited means likely to experience difficulty in securing, retaining or advancing in employment because of a disability. Discriminatory practice means an intentional act that is unlawful and prohibited. Employee means a person employed by or seeking employment from an employer. It does not include any person employed by parents, a spouse or child. Employer means any person who has five ~ or more employees, in each of four ~ or more calendar weeks in the current calendar year, and any agent of such person. Entity includes "employee," "employer," and "person." Familial status means one or more individuals who have not attained the age of eighteen ~18~ years being domiciled with: (1) A parent or another person having legal custody of such individual or individuals; or (2) The designee of such parent or other person having custody, with the written permission of such parent or other person. Family means one or more individuals living as a single housekeeping unit. &eee~e~ Gender identity includes actual or perceived sex, p~ ,and shall also include a person's gender identity. ,self-image, appearance, expression or behavior, whether or not that gender identity. self image, appearance. expression or behavior is different from that traditionally these associated with the ~ sex assigned to that person at birth. 2 Housing or housing accommodations means any building, structure or portion thereof, or other facility occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof, mobile home, trailer or other facility. However, nothing in this article shall apply to rooms or units in housing containing living quarters occupied or intended to be occupied by no more than four ~ families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence. Interested party means the person filing a complaint or the person against whom a complaint has been filed. Marital status means the presence or absence of a marital relationship and includes the state of being married, separated, or unmarried , .The term "unmarried" includes persons who are single, divorced or widowed. Mediation agreement means a written agreement entered into between a complainant and respondent setting forth the resolution of the issues raised by a complaint, or by the investigation of such complaint, through informal negotiations involving the complainant, the respondent,, and the mediator. Mediator means that person appointed pursuant to section 62-t~3. National origin means the origin of an ancestor, the country of origin of a person's forbearer, naturally, by marriage or by adoption. Person means one or more individuals, partnerships, associations, political subdivisions. labor unions, organizations, cooperatives, mutual companies, joint-stock companies, unincorporated organizations, trusts, trustees, or receivers, legal representatives, for- profit and not-for-profit associations and corporations, and business associations of whatever kind including without limitation general partnerships, limited liability partnerships, corporations, limited liability companies. business trusts, and joint ventures. Owner means any person, including but not limited to a lessee, sublessee, assignee, manager or agent, and also including the city and its departments or other subunits, having the right of ownership or possession or the authority to sell or lease any real property. Public accommodations means any retail establishment, an inn, hotel, motel or other establishment providing lodging to transient guests, other than an establishment located within a building containing not more than five ~ rooms for rent or hire and is actually occupied by the proprietor of such establishment as his residence; any restaurant, cafeteria, lunchroom, lunch counter, soda fountain or other facility principally engaged in selling food for consumption on the premises, including but not limited to any such facility located on the premises of any retail establishment, or any gasoline station; any bar, lounge, nightclub or other facility principally engaged in selling alcoholic beverages for consumption on the premises or any facility principally engaged in selling both food and alcoholic beverages for consumption on the premises; any motion picture house, theater, concert hall, convention hall, or other place of exhibition of entertainment; and any establishment physically located within the premises of any establishment otherwise covered by this article or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment. Public services means services, programs, or activities of the city. Real property means any land, buildings, fixtures, and all other improvements to land. The terms "land", "real estate," "realty" and "real property" may be used interchangeably. Rent means to lease, sublease, assign, let or otherwise grant for a consideration the right to occupy premises not owned by the occupant. Respondent means any person against whom a complaint is filed pursuant to this article. Sale includes any contract to sell, exchange, convey, transfer or assign legal or equitable title to, or a beneficial interest in, real property. Sex means male or female gender, and includes pregnancy, child birth, or medical conditions related to pregnancy or child birth. Sexual orientation means actual or perceived heterosexuality, homosexuality, or bisexualit Sec. 62-32. City of Miami Beach Human Rights Ordinance. This article shall be known and may be cited as the "City of Miami Beach Human Rights Ordinance. Sec. 62-3~3. Purpose; declaration of policy. In the city, with its cosmopolitan population consisting of people of every race, color national origin, religion, gender, gender identity. sexual orientation, marital and familial status, and ape, some of them who are disabled as defined under Section 62-31 hereof. there is no greater danger to the health, morals, safety and welfare of the city and its inhabitants than the existence of prejudice against one another and antagonistic to each other because of differences of race. color, national origin, religion sex gender identity sexual orientation, marital and familial status, ape, or disability. The city finds and declares that prejudice, intolerance. bigotry and discrimination and disorder occasioned thereby threaten the rights and proper privileges of its inhabitants and menace the very institutions. foundations and bedrock of a free, democratic society. The general purpose of this article and the policy of the city, in keeping with the laws of the United States of America and the spirit of the state constitution, is to promote through fair, orderly and lawful procedure the opportunity for each person so desiring to obtain employment, housing and public accommodations of the person's choice in the city without regard to race, color, national origin, religion, ~eFSex, , gender identity, sexual orientation, disabitit~y; marital +~ and familial status, e~age, or disability, and, to that end, to prohibit discrimination in employment, housing and public accommodations by any person. 4 Sec. 62-34. City of Miami Beach Human Rights Committee established. Effective April 15, 2010, there shall be established a City of Miami Beach Human Rights Committee, which shat! be a standing committee of the city. Sec. 62-35 Membership. ~, The committee shall consist of a minimum of five (5) and a maximum of eleven (11) members, with one (1) out of every five (5) members to be a direct appointment by the Mayor, and with the remaining members to be at-large appointments of the city commission. The members of the committee shall reflect, as nearly as possible, the diversity of individuals protected under the City's Human Rights Ordinance. In keeping with this policy. not less than two (2) months prior to making appointments or re-appointments to the committee, the city manager shall solicit nominations from as many public service groups and other sources, which he/she deems appropriate, as possible. ~ At least one (1) of the committee members shall possess. in addition to the general aualifications set forth herein for members, a license to practice law in the State of Florida; be an active member of and in good standing with the Florida Bar: and have experience in civil rights law. The attorney member shall also serve as chair of the committee. ,rte Members shall serve without compensation. Sec. 62-36 Meetings: conduct of business. ~ Regular meetings of the committee shall be held at least monthly. The city manager shall provide such adeauate and competent administrative. technical and clerical personnel as may be reasonably reauired for the proper performance of the committee's duties. Sec. 62-37 Duties and powers. The committee shall have the following advisory duties, functions. powers. and responsibilities: ~ to study, advise, and make recommendations to the city manager and city commission for: (i) legislation on policies. procedures, and practices which would further the purposes of this article: ii developing human relations plans and policies for the city to consider and making investigations and studies appropriate to effectuate the purposes of this article: to inform persons of the rights assured and remedies provided under this article and to promote goodwill, and minimize or eliminate discrimination because of race color, national origin, religion, sex, sexual orientation, gender identity, disability. marital and familial status, or age;- ~ to call conferences of persons in the industries of housing, public accommodations, and employment in the city to acquaint them with the requirements of this article and, without limitation, the City of Miami Beach Human Rights Ordinance, and to endeavor with their advice to develop programs of voluntary compliance and enforcement;-And to hear appeals from the city manager's determination of no probable cause, where appropriate and necessary; and designate committee members to hear, in an advisory capacity to the hearing examiner, complaints alleging unlawful discrimination ~ractices~ and provide the hearing examiner (through the designated committee members) with anon-binding advisory recommendation prior to final disposition of the complaint. The City's adoption of any committee recommendations (pursuant to those powers and duties which may be exercised by the committee under subsections (a) - (d) above, including, without limitation, recommendations that the city enact any legislation; plans, policies and procedures; call for studies and/or investigations: call for conferences; enact any programs; and/or distribute educational/informational materials-all with the purpose of furthering and effectuating the mission of the City of Miami Beach Human Rights Ordinance and this article), shall be subject to prior approval of the city commission, and such approval if given at all)_shall be further subject to funding availability. DIVISION 2. ADMINISTRATION Sec. 62-56. Administrative authority; powers and duties. (a) The provisions of this article shall be administered and enforced by the city manager or his/her designee (The city manager or his/her designee shall hereinafter be referred to as the "administrator"). (b) The administrator's powers and duties include the following: (1) receive written complaints as provided by this article relative to alleged unlawful discriminatory practices) and transmit those complaints te--a eF for proper handlingi- (2) €establish, administer or review programs at the request of the city commission and make reports on such programs to the city commission- (3) render to the city commission annual written reports of activities under the provisions of this articles along with such comments and recommendations as the administrator may choose to makei- (4) cooperate with and render technical assistance to federal, state, local and other public and private agencies, organizations and institutions that are formulating or carrying on programs to prevent or eliminate the unlawful discriminatory practices covered by the provisions of this article;,.- and (5) Gconduct educational and public information activities at the request of the city commission that are designed to promote the policy of this article. 6 Sec. 62-57. Religious organizations. The provisions in this article relating to sexual orientation shall not apply to any religious organization, association, society or any nonprofit charitable or educational institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society. Sec. 62-58. Filing of a complaint and time limit. ~ Any person alleging that an unlawful discriminatory practice has occurred must file a verified, written complaint with the administrator within 180 days after the alleged unlawful discriminatory practice occurred. The complaint may be filed by personal delivery, ordinary mail, registered mail or certified mail, addressed to the office of the city manager. Sec. 62-59. Information on complaint. ~ A complaint of an unlawful discriminatory practice must be in writing, either on a form promulgated by the city administration (and approved by the administrator) or on any paper suitable for a complaint. The complaint shall be signed by the person making the complaint (hereinafter, the "complainant"): shall be sworn to or affirmed;i and shad at a minimum, shall state the full name and address, ~; of the ~espe~e~~ complainant; the full name and address of each respondent aaainst whom the complaint is made, and who are alleged to have committed the unlawful discriminatory practice the facts upon which the complaint is based;i and other such information as may be required by as the administrator-re~i~es. A complaint shall not be within the iurisdiction of the City of Miami Beach Human Rights Ordinance if: (1) the complaint has been filed more than 180 days after the alleged unlawful discriminatory practice occurred: (2) the complainant has previously initiated. or initiates, a civil action in a court of competent iurisdiction alleging an unlawful discriminatory practice with respect to the same grievance which is the subject of the complaint under this article: or (3) the complainant has previously filed. or files an action or proceeding before any administrative agencv under any other law of the state county, or city (including, without limitation, an agencv with duties and powers similar to those prescribed in this article) alleging an unlawful discriminatory practice with respect to the same arievance which is the subject of the complaint under this article. and the administrative agencv is either proceeding with its own investigation of the complaint or final determination has been made thereon. 7 Sec. 62-60. Notification of respondent; answer. ~ The administrator shall, within *~•~°^*r~o; fortv-five (45) days after the filing of a verified, written complaint of an unlawful discriminatory practices ' ,serve on eas#the respondents by certified mail or personal deliverys a copy of the complaint and a notice identifying the alleged unlawful discriminatory practice and advising eask- respondent of the procedural rights and obligations of respondents under this article. ' Within fi•~°~ '~; fortv-five (45) days after a copy of the complaint is served upon the respondent by the administrator, the respondent may file an answer thereto. If an answer is filed, the administrator shall cause a copy of such answer to be served upon the complainant , If an answer is filed, the answer shall be in writing and contain, at a minimum, a separate and specific response to each and every particular of the complaint or a denial of anv knowledge or information thereof sufficient to form a belief. Anv allegation in the complaint which is not denied shall be deemed admitted. If the respondent elects not to answer the complaint (i.e. and an answer to the complaint is not filed), then the hearing shall proceed on the evidence in support of the complaint. Sec. 62-61. Amending complaints or answers. A complaint of an unlawful discriminatory practices or answer if filed may be amended in writing at any time when it would be fair and reasonable to do so, so long as the administrator will have adequate time to investigate anv additional allegations and the parties will have adequate time to present the administrator, mediator, or hearing examiner (as the case may be) with evidence concerning such allegations before the issuance of findings of fact and a determination. at~d tThe administrator shall furnish a copy of each amended complaint or answer to the respondent or complainants respectivelys as promptly as practicable. For jurisdictional purposes, such amendments shall be related back to the date the original complaint was first filed. Sec. 62-62. Investigation of complaints. ~ Whenever a verified, written complaint is filed pursuant to this article, the administrator, at his or her sole option and election, shall either designate a member of his/her administrative staff. or retain an outside consultant/investipator, who shall make a full and prompt investigation in connection therewith (including a prompt and full investigation of the alleged unlawful discriminatory practice), and forward to the administrator a written summary of the investigation. In the event that the administrator retains an outside investigator, he/she shall first report same to the city commissioners through the "Letter to Commission" (LTC) process. indicating the name, qualifications and other curriculum vitae of the investigator; and the proposed fee for the investigation Anv city commissioner may place the administrator's proposed retention of an outside investigator for discussion by the full city commission; provided that the item must be placed on the agenda of the next city commission meeting immediately following the administrator's issuance of the LTC. The administrator may determine, upon conclusion of the investigation and review of the written summary, that (i) the complaint has no validity (ii) the respondent charged in the complaint has not engaged in or is not engaging in the alleged unlawful discriminatory practice; and/or (iii) the complaint is not within the iurisdiction of the City of Miami Beach Human Rights Ordinance. Such determination shall be issued in writing. With respect to the written determination, "issued" shall be defined as the date signed by administrator. Upon issuance, the administrator's findings of fact, determination and order may not be amended or withdrawn except upon the agreement of the parties or, by the administrator, in response to an appeal taken pursuant to subsection 62-62(d) below; provided, however, that the administrator may correct clerical mistakes or errors arising from oversight or omission. ~ If, upon conclusion of the investigation and review of the written summary, the administrator finds that probable cause exists for the allegations made in the complaint, such determination shall also be made in writing. Upon issuance, the written determination shall be furnished promptly to the complainant and respondent. Determination of no probable cause; appeal from and dismissal. If a determination is made by the administrator that no probable cause exists for the allegations made in the complaint, the complainant shall have the right to appeal such determination to the committee within thirty (30) days of the issuance of the written determination, by ding a written statement of appeal with the committee. The committee shall promptly deliver a copy of the statement to the administrator and the respondent, and shall, at a duly noticed meeting of the committee, promptly consider and act upon such appeal by either (i) affirming the administrator's determination, or (ii) remanding it to the administrator with appropriate instructions. In the event no appeal is taken or such appeal results in affirmance; or, if remanded on appeal (and on remand), the administrator still determines that no probable cause exists, the determination of the administrator shall be final; the complaint shall be closed with a ministerial finding of no probable cause or no iurisdiction; the complainant and the respondent shall be promptly notified, in writing; and the complaint shall be dismissed. Sec. 62-6~3. Med+ate~Mediation. ~ If a determination is made by the administrator that probable cause exists to believe that an unlawful discriminatory practice has occurred, or is occurring, the administrator shall first endeavor to resolve the complaint by mediation. At his or her election. the administrator may serve as the mediator, or (in consultation with the city attorney) the administrator may appoint an independent mediator to act as a neutral third person to encourage and facilitate the resolution of a~the complaint_ The independent mediator shall be an individual who shall have been determined by the si#~ ~aa~age~ administrator and city attorney to have the knowledge, skillsi and abilities to perform in such capacity as mediator. In the event that the administrator appoints an independent mediator, the costs for mediation shall be shared eaually by the complainant and the respondent. The mediator~e shall attempt to mediate the dispute and to report to the si#~ar3age~ administrator and the 9 city attorney on the results of the mediation efforts within 120 days of commencement of mediation ......,..._ _T. ............_.., ...,..._.._....~..._..._...... tThe terms of the mediation shall be reduced to writing in the form approved by the mediators and must be signed and verified by the complainant and respondents and approved by the mediator. The mediation agreement is shall constitute an agreement between the complainant and respondent;i is shall be for mediation purposes only;i and deer shall not constitute an admission by any party that the law has been violated. If the respondent complies with the recommendations under the mediation agreement, the matter shall be deemed settled and terminated and no further proceedings with regard to the complaint need be taken. Sec. 62-654. Proceeding before hearing examiner; decision and order eclat a~aste~. (a) In the event mediation fails to resolve a complaint or after 120 days have passed from commencement of mediation. ' the administrator shall refer the complaint to the city attorneva~ ~ese~l: The city attorney shall prosecute the complaint tabefore a hearing examiner The hearing shall be conducted a-Bear-i~~ pursuant to the procedures set forth- in section 30-72-~ provided, however. that if the city attorney determines that there is no legal basis for a complaint to be filed, or for the proceedings to continue. the complaint shall be dismissed, and a statement of the reasons therefor shall be filed with the administrator, with copies furnished to the complainant and respondent. The city attorney's determination shall be final. For purposes of this article, the hearing examiner shall be selected by the city's chief special master, and shall have the knowledge, skills and abilities to perform in such capacity as special master with regard to hearing the particular complaint. At his or her election, the chief special master may either select one of the city's sitting special masters, or a hearing examiner pro tempore, appointed by the chief special master from a list approved by the city commission (and having the knowledge, skills and abilities to perform in the capacity of special master with regard to hearing the particular complaint). ~ The committee. after notice of the date of hearing from the hearing examiner shall, appoint two (2) members of the committee who have not otherwise been involved in the charge, investigation, fact-finding, or other resolution and proceedings on the merits of the case. who have not formed an opinion on the merits of the case and who have no pecuniary, private or personal interest or bias in the matter to hear the case with the hearing examiner. The committee designated representatives shall act in an advisory capacity to the hearing examiner. The hearing examiner shall preside over the hearing, serve as the chair, and make all evidentiary rulings• provided however that following conclusion of the hearing but prior to the hearing examiner's ruling on the case as provided in subsection 62-64(d) below, the designated committee members shall 10 issue their non-binding advisory recommendation to the hearing examiner as to whether, based on the evidence presented, a violation of this article has occurred. Within ten ~ days of the conclusion of the hearing, the s~pesiai-masl:eF hearing examiner shall issue written findings of fact and conclusions of laws and a determination as to whether a violation of this article has occurred:~#isf} Co ies shall be sent by certified mail to the complainant and the respondent, with copies also sent to the administrator, city attorney, and the committe ' ss~s+der~ie~. ##~is-Gads: Sec. 62-65. Penalties; compliance investigation. to , Any person~sl found in violation of this article shall be subject to the following penalties: (1) For a first finding of an unlawful discriminatory practice within a five ~- year period, up to $1,000.OOi (2) For a subsequent finding of an unlawful discriminatory practice within a five ,~- year period, up to $5,000.00: and (3) Notwithstanding subparagraphs (1) and (2), for a finding of an unlawful discriminatory practice which is irreparable or irreversible in nature, up to $15,000.00. (b) In determining the amount of the fine, the spes~e~ hearing examiner shall consider the following factors: (1) The gravity of the violation; (2) Any actions taken by the violator to correct the violation; and (3) Any previous violations committed by the violator. ~ In addition to the fines which may be imposed in subsection (a) the following penalties may also be applied: In the event of a finding of discrimination in either public accommodations, housing, or employment, a letter may be sent asking that the alleged offender desist from the actions complained of. In the event of a finding of discrimination in public accommodations where the alleged offender holds a license to sell alcoholic beverages the hearing examiner may request that the administrator refer the violation to the appropriate state agency to determine whether due cause exists under applicable state law to revoke such license In the event of a finding of discrimination in either public accommodations, housing, or employment where the alleged offender holds an occupational license issued by the city or is doing business with the city pursuant to a contract, the hearing examiner may reauest 11 that the administrator direct the appropriate city department to conduct an investigation to determine whether due cause exists to revoke such license or contract. In the event of a finding of discrimination in either public accommodations. housing, or emplovment, the hearing examiner may reauest that the administrator direct the appropriate city department to conduct an investigation to determine whether the alleged offender has violated anv other city ordinance which applies to the alleged discriminatory conduct. In the event of a finding of discrimination in either public accommodations, housing, or emplovment, the hearing examiner may request that the administrator refer the alleged discriminatory practice to the appropriate and applicable state and/or federal agencv(ies) for further investigation, action, and handling (including, without limitation, determination by such appropriate/applicable agency(ies) as to whether the alleged offender has violated anv state or federal law which applies to the alleged discriminatory conduct). (sd) The~4-special-master hearing examiner may reduce a fine imposed pursuant to this article ses#:ie+~ in accordance with the procedures contained in chapter 30 of this Code. ~ Compliance investigation. Not later than one (1) year from the date of a mediation agreement or findings after hearing, and at any other times (in his or her discretion) the administrator shall investigate, or may direct the committee to investigate whether the respondent is complying with the terms of such aareement or recommendations. Sec. 62-66. Additional remedies. The procedures prescribed by this article do not constitute an administrative prerequisite to another action or remedy available under other law. Further, nothing in this article shall be deemed to modify, impair, diminish, limit or otherwise affect any right or remedy conferred by local, state or federal law. SECTION 2. That Chapter 62, Article II, Division 3, Sections 62-88.1 and 62-90 is hereby amended as follows: DIVISION 3. REGULATIONS **** 12 Sec. 62-88.1. Discrimination in public services. No individual shall, by reason of race, color, national origin, religion, Qea~sex, sexual orientation, Gender identity, marital sfa#~+s; and familial status, or age, nor any qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of the public services of the city, or be subjected to discrimination by the city. **,~* Sec. 62-90. Use of municipal facilities. The use of municipal facilities in the city shall be regulated pursuant to the provisions of this section. The purpose and intent of this section is to establish legislative and administrative policies for the non-discriminatory use of municipal facilities, which shall be defined as any and all city-owned and operated facilities including buildings, parks, fields, and any other facility now or in the future owned, controlled, leased, or operated by the city. All organizations, .clubs, and individuals wishing to obtain any fee waiver to use municipal facilities shall confirm in writing as follows: I [name of organization, club, or person] the [title] of [name of organization or club], certify that I/my organization or club does not discriminate in its membership or policies based on race, color, national origin, religion, sexes, sexual orientation, gender identity, familial s#a#~s and marital status, age or d i s a b i l i ty-k~ar~disap. Sec. 62-91. Municipal funds. Municipal funding of organizations or clubs shall be regulated pursuant to this section. The purpose and intent of this section is to establish legislative and administrative polices for the award of municipal funds to organizations or clubs that do not discriminate in their membership or policies. All organizations or clubs wishing to obtain municipal funding shall confirm in writing as follows: I [name of organization or club] the [title] of [name of organization or club], certify that my organization/club does not discriminate in its membership or policies based on race, .color, national origin, religion, sexes, sexual orientation, gender identity, familial s#~a~ and marital status, age or #andis~pdisability. SECTION 3. That Chapter 62, Article ll, Division 4, Sections 62-112(c) is hereby amended as follows: DIVISION 4. EXCEPTIONS Sec. 62-112. Housing. **** 13 (c) Nothing contained in this article shall preclude the seller, developer, condominium association, lessor, property owner, or that person's authorized agent from setting forth reasonable rules, regulations, terms and conditions pertaining to the sale, lease or disposal of that person's property provided such rules, regulations, terms and conditions are not based on race, color, religion, sex ~, sexual orientation, eg nder identity, national origin, age, ~iar~isa~isabilit ,familial status, or marital status and provided there is no conflict with the affirmative provisions set forth in this article. Furthermore, nothing in this article shall preclude reasonable rules, regulations, or terms and conditions pertaining to the safe and prudent use by minors of facilities and amenities provided in conjunction with real property. SECTION 4. REPEALER All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 5. SEVERABILITY If any section, sentence, clause or phrase of this ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ordinance. SECTION 6. 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 a part of the Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section", "article," or other appropriate word. SECTION 7. EFFECTIVE DATE This Ordinance shall take effect the ~ day of JANU~u , 2010; provided however that Sections 62-34 through 62-37 (pertaining to the establishment of the City of Miami Beach Human Rights Committee) shall not take effect until April 15, 2010. PASSED and ADOPTED this t 3 day of f ~h u~t. , 2010. ATTEST: ~~'" l CITY CLERK ~~ F:\attoWGUR\RESOS-ORD\Human Relations Ordinance -Chapter 62 (Final 1-13-10).doc 14 APPROVED AS TO FORM & IANGI!>~.i':E iGiJ Z~-fib 1~ Daf>> m MIAMIBEACH OFFICE OF THE CITY ATTORNEY JOSE SMITH, CITY ATTORNEY COMMISSION MEMORANDUM 70: Mayor Matti Herrera Bower and Memb rs of the City Commission FROM: Jose Smith, City Attorne cc: Jorge Gonzalez, City Man SATE: January 13, 2010 suB~ECT: Supplement to Commission Memorandum regarding Second and Final Reading of the City's Human Rights Ordinance The City's Human Rights Ordinance (HRO or the Ordinance) was approved on First Reading at the October 14, 2009 City Commission Meeting. Following First Reading approval, the City Commission directed that the Ordinance be referred to the Neighborhoods and Community Affairs Committee for further discussion, prior to returning to the full City Commission for Second and Final Reading. As requested by the City Commission, two (2) versions of the HRO were presented to the Committee at its November 12, 2009 Meeting: Option A, which was the version of the HRO without the incorporation of language providing for creation of an accompanying Human Rights Committee (as a standing City committee); and Option B, which was the revised version of the HRO, with the language creating the Human Rights Committee. Following discussion, the Neighborhoods Committee voted to recommend that Option B of the Ordinance be forwarded to the City Commission for Second and Final Reading. Second Reading of the HRO was scheduled for the City Commission Meeting on December 9, 2009, but the item was deferred at the request of former Commissioner Victor Diaz, who had sponsored the proposed revisions to the existing anti-discrimination legislation in the City Code (which resulted in the drafting of the subject HRO). Along with Commissioner Diaz, Mayor Bower (who established the Mayor's Gay Business Development Committee, which, now also referred to as the GLBT Committee is a standing committee of the City), and Commissioner Libbin have also been very involved with, and have tracked the progress of, the HRO (as it's made its way since February 2009 through the committee process and up to approval on First Reading). While the attached Commission Memorandum and Ordinance reflect the version (Option B) that was recommended by the Neighborhoods and Community Affairs Committee, the purpose of this Supplemental Memorandum, and the Ordinance attached to this Supplemental Memorandum, is to inform the Commission of additional changes proposed, respectively, by SAVE-DADE (who has also worked closely with the City on the drafting of the HRO) and Commissioner Libbin who, following his own extensive review of Option B, met with the City Agenda Item 5~ _ Date J-~,3-/~ Human Rights Ordinance Page 2 January 13, 2010 Attorney's Office to propose additional changes; which were primarily intended to alleviate certain fiscal concerns that could arise as a result of adoption of the HRO and creation of the accompanying Human Rights Committee. SAVE DADE's proposed changes go exclusively to certain definitions in the HRO; the revisions made (which we recommend) are to assure that the City HRO's terminology is consistent with comparable progressive legislation in other cities. Commissioner Libbin's changes are summarized as follows: Section 62-37 (which prescribes the duties and powers for the new Human Rights Committee): Commissioner Libbin wanted to make absolutely certain that, in keeping with its advisory nature, the committee not be granted independent authority to expend City funds on matters it may deem important toward fulfilling its mission (For example, commissioning reports and studies by independent consultants, retaining experts in the field to develop plans, policies ,procedures, and additional legislation to address the problem of discrimination, etc.). While it was not the Commissioner's intent to in any way inhibit any discussion and/or recommendation that the committee may make, he requested that language be inserted that any such recommendation involving the expenditure of public dollars, be subject to City Commission approval and availability of funds. Neither the Administration nor City Attorney's Office has an objection to this language. 2. With regard to the process in the HRO for the filing, investigation, and hearing of complaints, Commissioner Libbin requested the following revisions: a) That the respondent's time for answering a complaint be extended from 20 to 45 days (No objection by Staff). b) Under Option B of the HRO, in investigating complaints, the City Manager has the discretion to use either a member of his staff, or an outside investigator. Commissioner Libbin requested that the option to retain an outside investigator be eliminated and that all complaints be investigated in-house. The Administration requests that the language in Option B remain as written; the rationale is that, as some complains may be based on an area (such as discrimination based on gender identity) which is relatively new and somewhat more complex than other protected categories, investigation of these complaints may require special skills and/or knowledge that staff may not readily have. c) In Section 62-63 (which addresses mediation of complaints), Commissioner Libbin requested that language be added that, where the services of an outside independent mediator are required, the costs be split equally between the parties. Neither the Administration nor the City Attorney's Office has any objection to this language. d) In Section 62-64(a) (pertaining to hearings before the special master), Option B allows the City Attorney the option of prosecuting complaints, either through his office or through retention of special counsel. Commissioner Libbin has requested removing that, and option requiring that all complaints that go to hearing are prosecuted by the City Attorney's Office. Again, as with the Administration's concern with being able to hire an outside investigator (for a complaint of a special nature or requiring special knowledge or skills that are not readily available to staff), the City Attorney's Office requests that the language in We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. Human Rights Ordinance Page 3 January 13, 2010 Option B, allow him the discretion to prosecute complaints using outside counsel, remain. e) Section 62-64(b) provides that complaint hearings may either be heard by one of the sitting special masters or by a special master pro tempore-the latter, in the event that particular skills or knowledge with regard to adjudicating the complaint are necessary. Commissioner Libbin has requested that complaints only be heard by sitting special masters. Again, for the same reasons reiterated above, the Administration and City Attorney's Office recommend that the language, as drafted in Option B (and giving the City the discretion to appoint an outside special master) remain. F:\atto\AGUR\RESOS-ORD\MEMOS\Human Relations Ordinance (Supplement to T2-9-09 Comm. Memo -Final 1-13-10).doc We are committed to providing excellent public service and safety to oll who live, work, and play in our vibrant, tropical, historic community. m MIAMIBEACH OFFICE OF THE CITY ATTORNEY JOSE SMITH, CITY ATTORNEY COMMISSION MEMORANDUM To: Mayor Matti Herrera Bower em e s of the City Commission FROM: Jose Smith, City Attorne cc: Jorge Gonzalez, City Manager SECOND AND FINAL READING SATE: December 9, 2009 sueJECT: An Ordinance Amending Chapter 62, Sections 62-31 through 62-66 of the City Code (hereinafter, the "City of Miami Beach Human Rights Ordinance") [Sponsored by Commissioner Victor Diaz] Background: At its regular meeting on February 3, 2009, the Mayor's Gay Business Development Committee (also referred to as the GLBT Committee) heard a presentation from the City Attorney's Office regarding the City's existing Human Relations (i.e. anti-discrimination), Domestic Partnership, and Equal Benefits legislation. The presentation included a summary of the rights: afforded under each law, as well as the complaint procedures and other mechanisms for ongoing enforcement. Following the City Attorney's presentation, the GLBT Committee also heard separate presentations from Commissioner Libbin and Commissioner Diaz, who had been invited by the Committee to present their respective proposed initiatives for expanding and strengthening sections of the aforestated legislation. Subsequent to Commissioner Libbin and Commissioner Diaz's individual presentations, the GLBT Committee unanimously endorsed the following recommendation, which was also referred to and discussed by the Neighborhoods and Community Affairs Committee (and jointly sponsored and endorsed by Mayor Bower, Commissioner Diaz, and Commissioner Libbin) at its regular meeting on March 11, 2009. Commissioner Libbin's Recommendations/Request: Commissioner Libbin had inquired whether the City offered the following benefits to City employees with domestic partners: 1. Non-Spousal Rollover benefits -for surviving domestic partners identified as beneficiaries under the employees benefits plan; and 2. Hardship Distribution -for employees who list their domestic partners as beneficiaries under a 401 (k) plan (so that employees who list their domestic Human Rights Ordinance Page 2 December 9, 2009 partners as beneficiaries under a 401(k) plan would be able to withdraw monies from their retirement fund, in case of the partner's medical or financial emergencies). As set forth in Deputy City Attorney Raul Aguila's memorandum to the Committee, dated March 10, 2009 (and incorporated as part of the record during discussion of the item at the March 11, 2009 Neighborhoods Committee Meeting), the City currently offers the aforestated benefits to City employees in registered domestic partnerships (where the registered domestic partner is designated as a surviving [or other] beneficiary by the employee); accordingly, no further action was required. Commissioner Diaz's Recommendations/Request: Commissioner Diaz requested consideration of the following items: 1. City should consider more aggressive efforts to publicize the City's existing Human Relations, Domestic Partnership, and Equal Benefits Legislation. 2. The City Code section containing the provisions of the Human Relations (i.e. anti-discrimination) Ordinance should be officially named to reference said section as the City's "Human Rights Ordinance." 3. Section 62-32 of the City Code, which sets forth the purpose and "Declaration of Policy" for the Human Relations Ordinance, should be reviewed, updated, and expanded upon (to make the legislation stronger). 4. Section 62-32 of the Code, which also sets forth the individuals/protected categories in the Human Relations Ordinance, should be reviewed to determine whether the current protected classes/categories should be expanded to include other individuals, groups, etc. that may also be perceived to be victims of discrimination. 5. The current mechanisms for enforcement of the Human Relations Ordinance (including the current administrative complaint and hearing procedures, and the system of fines for violation of the ordinance) should be reviewed and strengthened. This recommendation should include discussion on whether to create a City "Human Rights Commission," along the lines utilized by the City of San Francisco. Following discussion of Commissioner Diaz's portion of the item at the March 11, 2009 Neighborhoods Committee, the Committee directed the City Attorney's Office to proceed with the preparation of an amendment to the City's existing Human Relations (i.e. anti-discrimination) legislation, as codified in Sections 62-31 through 62-66 of the City Code, with the goal of not only further clarifying and expanding the procedures for filing and handling of complaints therein, but also (in doing so) creating a purposeful revised, stronger City law. Discussion: Using the City's existing anti- discrimination legislation (which was initially adopted in 1992, and is codified in Sections 62-31 through 62-66 of the City Code) as the template, the proposed We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. Human Rights Ordinance Page 3 December 9, 2009 amendments thereto address the majority of Commissioner Diaz's concerns. Specifically, the proposed ordinance, as amended: • establishes a proper name for the law ("City of Miami Beach Human Rights Ordinance" ); • reiterates the purpose of the law, via expanded language in the declaration of policy; • further clarifies the procedures for submittal, investigation, and disposition of complaints; • provides that, for those complaints that cannot be resolved through the mediation process and proceed to a hearing, that they be heard by hearing examiners who are qualified and skilled to hear complaints with regard to the particular discriminatory practice alleged; and • in addition to the existing monetary fines, provides for other penalties (in addition to fines) that can be applied, including license revocation, termination or debarment of a city contract (where the respondent is a city vendor), and referral to other governmental entities (County, State, federal). In drafting the proposed Ordinance, the City Attorney's Office reviewed human rights ordinances from New York, San Francisco, Seattle, Cambridge, MA, and Des Moines; in addition to reviewing focal ordinances from Miami-Dade, Broward County, and Key West. The City Attorney's Office has also worked closely with the executive director (as well as attorney representatives) of Save Dade, anot-for-profit organization which, as part of its mission statement, is to advocate for equal rights for persons of all sexual orientation and gender identities. As noted in one of Commissioner Diaz's recommendations, many cities with anti-discrimination legislation also have "human rights commissions," which are composed of members appointed by the mayor and/or elected officials. Among their powers and duties, these commissions are also vested with the power to receive, investigate and preside as the body hearing discrimination complaints. To this end, they have broad powers conferred upon them, including the right to initiate investigations, issue subpoenas for witness and records, hold hearings, take testimony, issues rulings, and assess fines and other penalties. In the Commission Memorandum accompanying First Reading of the Ordinance (on October 14, 2009), this office noted that further research (and direction from the City Commission) would be. required to incorporate the necessary language enabling the creation, and powers and duties, of, a proposed Miami Beach Human Rights Committee into the Ordinance. Accordingly, concurrent with the City Commission's approval of the Ordinance on First Reading, Commissioner Diaz requested that the Human Rights Committee component be incorporated for Second and Final Reading, with the following recommended parameters/ criteria: that the Committee be created as a standing City committee; that membership be comprised of three (3) members, with one (1) member to be a direct appointment of the Mayor, and the remaining two (2) to be appointed at-large by the City Commission; that at least one (1) member be a lawyer licensed to practice law in Florida, and in good standing with the Florida Bar, and that -overall -the membership of the Committee reflect (as nearly as possible) the diversity of individuals protected under the City's Human Rights Ordinance; and We are committed to providing excellent public service and safely to all who live, work, and play in our vibrant, tropical, historic community. Human Rights Ordinance Page 4 December 9, 2009 that, to maximize diversity among the Committee membership, the City Manager solicit recommendation for members from various existing City committees (i.e. such as the GLBT Committee, Committee on Status of Women, Hispanic Affairs Community, Community Affairs, etc.) In addition to the above, following approval on First Reading, the City Commission also referred the Ordinance to the Neighborhoods and Community Affairs Committee (for its recommendation, prior to Second and Final Reading). At its regular meeting on November 12, 2009, the Committee considered two (2) options of the Ordinance: the version presented to the City Commission on October 14, 2009 (without the incorporation of language for the Human Rights Committee), and a revised version, providing for the creation of a Human Rights Committee, based upon the recommendations made by Commissioner Diaz. Following discussion, the Committee unanimously recommended Option "B" of the Ordinance, which is the revised version containing the Human Rights Committee component, and which is the version attached hereto for Second and Final Reading. Economic Impact: Enforcement of the proposed Ordinance may generate the following additional costs to the City: Section 62-62 requires that properly submitted complaints be investigated to establish probable cause, either (at the election of the City Manager) by a member of the City's administrative staff, or by an outside investigator. Selection of the latter option will result in a cost incurred by the City. Section 62-63 provides that, for complaints where probable cause has been found, and which cannot be resolved through an informal dispute resolution process (for example, through meetings among City staff, the complaints, and the respondent), then the complaint proceeds to mediation. The City would incur the mediator's fees and costs. Section 62-64 - If a complaint cannot be resolved through the informal administrative meeting process, or through mediation, then it proceeds to hearing before a special master. The complaint may either be prosecuted by the City Attorney's Office, or by independent counsel selected by the City Attorney. Additionally, for complaints with an additional level of difficulty or complexity, requiring unique knowledge and/or skills, and/or understanding of the subject matter, the chief special master may appoint an "outside" special master (a special master pro tempore) to preside as the hearing examiner. Compensation of the outside special master would be an additional cost incurred by the City. The incorporation of the proposed Human Rights Committee to the proposed Ordinance may also result in additional costs related to administrative staffing and support for the Committee, and implementation of future Committee recommendations which may foreseeably involve and/or require the City to retain an outside consultant(s) to assist with and/or prepare studies and/or reports We are committed to providing excellent public service and safely to all who live, work, and play in our vibrant, tropical, historic community. Human Rights Ordinance Page 5 December 9, 2009 recommended by the Committee (i.e. including, without limitation, studies and/or reports related to combating discrimination in the City, etc.). Notwithstanding the aforestated potential economic impacts, it should be noted that (to the best of the Human Resources Department's knowledge) only one (1) discrimination complaint has been filed under the (current) City ordinance, and that complaint was resolved through informal meeting with the City Administration. Therefore, although the aforestated identifies potential additional costs as a result of adoption of the proposed ordinance at this time, it is difficult to ascertain whether the economic impact will continue to be de-minimus, or whether passage of the proposed Ordinance will result in more complaints being filed (thereby generating a possible proportionate increase in costs). RJA/ed F:\atto\AGUR\RESOS-ORDWIEMOS\Human Relations Ordinance (Final -Second Reading 11-16-09).doc We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community.