2017-4100 Ordinance ORDINANCE NO. 2017-4100
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED
"PUBLIC PROPERTY," ARTICLE IV, "USES IN PUBLIC
RIGHTS-OF-WAY, DIVISION 5, "SIDEWALK CAFES,"
SUBDIVISION I, "GENERALLY," SECTION 82-370, "NOTICE
OF VIOLATION," TO REMOVE THE 24-HOUR WARNING
REQUIREMENT FOR NON-LIFE SAFETY VIOLATIONS, AND
TO AMEND THE PROVISIONS RELATING TO NOTICES OF
VIOLATION; AMENDING SECTION 82-371, "CIVIL FINES AND
PENALTIES; DENIAL OF FUTURE PERMITS TO REPEAT
VIOLATORS; ENHANCED PENALTIES," TO INCREASE
PENALTIES FOR VIOLATIONS OF THE CITY'S SIDEWALK
CAFE ORDINANCE AND TO PROVIDE FOR ENHANCED
PENALTIES; AND AMENDING SECTIONS 82-372, "RIGHTS;
PAYMENT OF FINE; RIGHT TO APPEAL; FAILURE TO PAY
CIVIL FINE OR TO APPEAL," AND 82-373, "RECOVERY OF
UNPAID FINES; UNPAID FINES TO CONSTITUTE A LIEN;
FORECLOSURE," TO AMEND THE PROVISIONS RELATING
TO ENFORCEMENT, PENALTIES, APPEALS, AND LIENS;
AND AMENDING SUBDIVISION II, "PERMIT," SECTION 82-
382, "APPLICATION," TO PROVIDE THAT A PERMITTEE WHO
HAS BEEN ISSUED MORE THAN FOUR VIOLATIONS
PURSUANT TO THIS ARTICLE SHALL BE PROHIBITED FROM
APPLYING FOR AND OBTAINING A SIDEWALK CAFE
PERMIT FOR THE FOLLOWING TWO CONSECUTIVE PERMIT
YEARS; PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, pursuant to City Code Section 82-367, "[t]here is a need for regulations and
standards for the existence and operation of sidewalk cafes to facilitate and ensure a safe
environment in these areas," and "[t]he establishment of permit conditions and safety standards
for sidewalk cafes is necessary to protect and promote the general health, safety, and welfare of
the residents of the [C]ity"; and
WHEREAS, the City's Sidewalk Cafe Ordinance establishes the application
requirements, operational conditions, and enforcement and penalty provisions for sidewalk cafe
permits in Miami Beach; and
WHEREAS, in order to (i) encourage compliance with the City's Sidewalk Cafe
Ordinance, (ii) deter future violations of the Sidewalk Cafe Ordinance, and (iii) protect the
health, safety, and welfare of the City's residents and visitors, the Mayor and City Commission
desire to increase penalties for violations of the Sidewalk Cafe Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. Chapter 82, entitled "Public Property," is hereby amended as follows:
CHAPTER 82
PUBLIC PROPERTY
* * *
ARTICLE IV. - USES IN PUBLIC RIGHTS-OF-WAY
* * *
DIVISION 5. —SIDEWALK CAFES
Subdivision I. -Generally
* * *
Sec. 82-370. — Notice of violation.
(a) Code compliance officers shall—issue 21 hour warning notices for all non life safety
(b)ipl No warning notices shall be required prior to the issuance of life Life safety violations
and/or sidewalk cafe site plan violations, and such violations shall be corrected
immediately. Life safety violations are defined as those conditions which, in the reasonable
determination and judgment of the city manager, involve serious danger and/or risk to the
public health, safety or welfare (including, without limitation, blocking pedestrian pathways
and violations of the state accessibility code for building construction). Site plan violations
are defined to include those instances where the permittee is operating outside of the
permitted sidewalk cafe area (as approved pursuant to subsection 82-382(b)(6)) and shall
include a table or tables set up outside the approved boundaries of the sidewalk cafe site
plan, and/or umbrellas, heaters, fans, bussing stations and other sidewalk cafe furniture
found to be outside the approved site plan; but shall not be deemed to include instances
where a chair or chairs are moved outside the approved boundaries of site plan by a
sidewalk cafe patron(s).
()j If a code compliance officer finds a violation of this division, such code compliance
officer shall issue a notice of violation to the violators-follows-. The notice shall inform the
violator of the nature of the violation, amount of fine for which the violator is liable,
instructions and due date for paying the fine, that the violation may be appealed by
requesting an administrative hearing before a special master within ten (10) days of the
date printed on the notice of violation, and that the failure to appeal the violation within ten
(10) days of the date printed on the notice of violation shall constitute an admission of the
violation and a waiver of the right to a hearing.
(4) For non life safety violations of this division (where a 21 hour notice has been
be issued
(2) -e - •- - -- -• - - - - - - - - - - -- -
-- -- - - - - -- - --
•
Sec. 82-371. — Civil fines and penalties; denial of future permits to repeat violators;,
enhanced penalties.
(a) The following civil fines and penalties shall be imposed for violations of this division:
(1) First violation $4-00410$500.00
(2) Second violation within the preceding 12 months 250.00 $750.00
(3) Third violation within the preceding 12 months 500.00 suspension of the sidewalk
café permit for one weekend (Saturday and Sunday) and $1,000.00
(4) Fourth violation within the preceding 12 months 750.00 revocation of the sidewalk
café permit for the remaining portion of the permit year and $1,250.00
(5) Fifth violation within the preceding 12 months, suspension of the sidewalk cafe permit
for one weekend (Saturday and Sunday) and 1,000.00
for the remaining portion of the permit year and 1,000.00
(7)ffil Failure to apply for permit—termination of sidewalk cafe operations until a permit is
applied for and obtained.
(�)1 Failure to renew permit—suspension of sidewalk cafe operations until the permit is
renewed.
(b) Enhanced penalties. The following enhanced penalties must be imposed by the city
manager:
A permittee who has been issued more than six four violations pursuant to this
division within a permit year shall be prohibited from applying for and obtaining a
sidewalk cafe permit for a period of two permit years, following the permit year in
which the applicant/permittee incurred the aforestated violations.
al For life safety violations of this division, site plan violations, and violations of section
82-385(v), (w), or (x), the city manager shall be authorized to issue an immediate
order suspending the sidewalk cafe permit and operation, and the sidewalk cafe
operator must cease operations for at least 24 hours, and until the city manager finds
that the violation(s) have been corrected and withdraws the suspension order. The
issuance of a notice of violation or an order suspending the sidewalk cafe permit
shall raise a rebuttable presumption that a life safety violation, site plan violation, or
violation of section 82-385(v), (w), or(x) has occurred.
Sec. 82-372. – Rights; payment of fine; right to appeal; failure to pay civil fine or to appeal.
(a) A violator who has been served with a notice of violation shall elect either to:
(1) Pay the civil fine (as set forth in section 82-371(a)) in the manner indicated on the notice;
or
(2) Request an administrative hearing before a special master;to appeal the decision of the
code compliance officer which resulted in the issuance of the notice of violation, which
hearing must be requested within ten (10) days of the date printed on the notice of
violation.
(b) The procedures for appeal shall be as set forth in sections 30-72 and 30-73 hereof. Applications
for hearings must be accompanied by a fee as approved by a resolution of the city commission,
which shall be refunded if the named violator prevails in the appeal.
(c) Failure of the named violator to pay the civil fine, or to timely request an administrative hearing
before a special master, appeal the decision of the code compliance officer within ten days after the
date printed on the notice of violation shall constitute a waiver of the violator's right to administrative
hearing before the special master, and. A waiver of the right to administrative hearing shall be treated
as an admission of the violation, and for which fines and penalties shall be assessed accordingly.
(d) The special master shall be prohibited from hearing the merits of the notice of violation or
considering the timeliness of a request for an administrative hearing if the violator has failed to request
an administrative hearing within ten (10) days of the the date printed on the notice of violation. The
special master shall not have discretion to alter the penalties prescribed in this article. Any party
aggrieved by the decision of a special master may appeal that decision to a court of competent
jurisdiction by petition for writ of certiorari.
Sec. 82-373. - Recovery of unpaid fines; unpaid fines to constitute a lien; foreclosure.
(a) The city may institute proceedings in a court of competent jurisdiction to compel
payment of civil fines.
(b) A certified copy of an order imposing a civil fine may be recorded in the public records
and thereafter shall constitute a lien upon any other real or personal property owned by
the violator, and it may be enforced in the same manner as a court judgment by the
sheriffs of this state, including levy against the violator's real or personal property, but
shall not be deemed to be a court judgment except for enforcement purposes. After two
months from the filing of any such lien which remains unpaid, the city may foreclose or
otherwise execute on the lien for the amount of the lien plus accrued interest.
* * *
Subdivision II. — Permit
* * *
Sec. 82-382. -Application.
* * *
(c) Renewals. As provided in subsection 82-371(b), a permittee who has been issued more than s+x
four violations pursuant to this division within a permit year, shall be prohibited from applying for
and obtaining a sidewalk cafe permit for the following two consecutive permit years.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 3. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 4. 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 part of the
Miami Beach City Code. 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 5. EFFECTIVE DATE.
This Ordinance shall take effect on the 47 day of /111 , 2017.
PASSED AND ADOPTED this /7 day of MA , 2017
ATTEST:
Philip Levi -
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F:\ATTO\KALN\ORDINANCES\Ordinance increasing sidewalk cafe penalties- 1st reading.docx
Ordinances - R5 M
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: May 17, 2017
11:00 a.m. Second Reading Public Hearing
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE OF
THE CITY OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY," ARTICLE
IV, "USES IN PUBLIC RIGHTS-OF-WAY, DIVISION 5, "SIDEWALK CAFES,"
SUBDIVISION I, "GENERALLY," SECTION 82-370, "NOTICE OF
VIOLATION," TO REMOVE THE 24-HOUR WARNING REQUIREMENT FOR
NON-LIFE SAFETY VIOLATIONS, AND TO AMEND THE PROVISIONS
RELATING TO NOTICES OF VIOLATION; AMENDING SECTION 82-371,
"CIVIL FINES AND PENALTIES; DENIAL OF FUTURE PERMITS TO
REPEAT VIOLATORS; ENHANCED PENALTIES," TO INCREASE
PENALTIES FOR VIOLATIONS OF THE CITY'S SIDEWALK CAFE
ORDINANCE AND TO PROVIDE FOR ENHANCED PENALTIES; AND
AMENDING SECTIONS 82-372, "RIGHTS; PAYMENT OF FINE; RIGHT TO
APPEAL; FAILURE TO PAY CIVIL FINE OR TO APPEAL," AND 82-373,
"RECOVERY OF UNPAID FINES; UNPAID FINES TO CONSTITUTE A LIEN;
FORECLOSURE," TO AMEND THE PROVISIONS RELATING TO
ENFORCEMENT, PENALTIES, APPEALS, AND LIENS; AND AMENDING
SUBDIVISION II, "PERMIT," SECTION 82-382, "APPLICATION," TO
PROVIDE THAT A PERMITTEE WHO HAS BEEN ISSUED MORE THAN
FOUR VIOLATIONS PURSUANT TO THIS ARTICLE SHALL BE
PROHIBITED FROM APPLYING FOR AND OBTAINING A SIDEWALK CAFE
PERMIT FOR THE FOLLOWING TWO CONSECUTIVE PERMIT YEARS;
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
RECOMMENDATION
The Administration recommends adopting the Ordinance.
ANALYSIS
At the request of Commissioner Ricky Arriola, the Office of the City Attorney and the Code
Compliance Department reviewed the provisions in Chapter 82 of the City Code regarding
Sidewalk Cafes in an effort to increase compliance and adherence to the rules and regulations
of doing business on the City of Miami Beach public right-of-way. The draft Ordinance amends
Chapter 82 of the City Code to increase penalties for violations of the Sidewalk Cafe
Ordinance. In addition to increasing monetary penalties, a separate provision would authorize
Page 520 of 878
the City Manager to suspend a sidewalk cafe permit and operation for life safety violations and
site plan violations, for at least 24 hours, and until the violation has been corrected. Sidewalk
cafe operations may also be suspended for failing to comply with the recently adopted
amendments requiring cafes to accurately disclose the price of food and drink items, as well as
gratuities or service charges.
These recommendations stem from recent observations made during the implementation of the
Ocean Drive 10-Point Plan, adopted on September 27, 2016 pursuant to Resolution No. 2016-
29590, and input from the Ocean Drive Association.
CONCLUSION
The Administration recommends that the City Commission approve the Ordinance on First
Reading and set a Second Reading Public Hearing for May 17, 2017.
FINANCIAL INFORMATION
There is no fiscal impact; enforcement will be accomplished with existing Code Compliance
resources.
Legislative Tracking
Office of the City Attorney/Code Compliance
Sponsor
Commissioner Ricky Arriola
ATTACHMENTS:
Description
o Ordinance
Page 521 of 878