Loading...
Ordinance 92-2808ORDINANCE NO. 92-2808 AN ORDINANCE OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING MIAMI BEACH CITY CODE CHAPTER 39, ENTITLED "STREETS, SIDEWALKS AND PUBLIC FACILITIES", BY ADDITION OF ARTICLE VI, ENTITLED "SIDEWALK CAFES"; REQUIRING PERMITS FOR THE OPERATION OF SIDEWALK CAFES AND ESTABLISHING PROCEDURES AND REQUIREMENTS FOR GRANTING SAID PERMITS; PROVIDING FOR DENIAL, SUSPENSION AND/OR REVOCATION OF PERMITS AND PROVIDING FOR APPEALS FROM SAID DECISIONS; PROVIDING FOR ENFORCEMENT BY CODE INSPECTORS, CIVIL FINES FOR VIOLATIONS OF THIS SECTION AND PROCEDURES FOR APPEALING FINES; PROVIDING FOR RECOVERY OF UNPAID FINES AND THAT SAID FINES SHALL CONSTITUTE A LIEN WHICH MAY BE FORECLOSED; PROVIDING FOR REPEALER, SEVERABILITY AND EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. That Chapter 39 of the Miami Beach City Code, entitled "Streets, Sidewalks and Public Facilities" is hereby amended by adding an Article VI, entitled "Sidewalk Cafes", to read as follows: ARTICLE VI. SIDEWALK CAFES Sec. 39-28. Declaration of Necessity and Intent. It is hereby found and declared: (1) That there exists the need for outdoor eating establishments (sidewalk cafes) in certain areas of Miami Beach to provide a unique environment for relaxation and food consumption. /2) That the existence of sidewalk cafes encourages additional pedestrian traffic to these areas. (3) That the presence of sidewalk cafes may thus impede the free and safe flow of pedestrian traffic. (4) That there 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. LJ That the 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 City of Miami Beach. (6) That there is a need to encourage the establishment of sidewalk cafes on Lincoln Road, and therefore the permit fee imposed by the City for such uses should be waived for a three year period commencing on the effective date of this Ordinance. However, a permit must still be obtained and the base application endinq, A -frame structure fixed in o fee paid. Sec. 39-29 Definitions. When used in this Article, the following words shallhave the following meanings: "Director" means the City Manager of the City of Miami Beach or his/her designee. "Permittee" means the recipient of a Sidewalk Cafe Permit under the terms and provisions of this Article. "Right -Of -Way" means land in which the state, the Florida Department of Transportation, Dade County or the City of Miami Beach owns the fee or has an easement devoted to or required for use as a transportation facility or Street. ewaik or Street::€t€ or 'collapsable, 3s.r ..................................::.............................. . ined _in --:Y4:bya'f5ti<ki:g:;:::;r�:'+Y.:::::::::::::.:::.:::::: ..�::.:::.::::::::::L:£::J::i`.:::::::::::;::::::Y:i:Y::t:•':::::::.::::;;: ••.;:;t;: Ordi eNo. "Sidewalk" means that portion of the Right -Of -Way which is located between the curb line or the lateral line of a Street and the adjacent property line and which is intended for use by pedestrians; provided that on Lincoln Road Mall "Sidewalk" shall mean Right -Of -Way as defined above but shall only refer to that area between the property line and the center line of the Right - Of -Way, exclusive of landscaped areas and a ten foot wide easement for vehicular access. "Sidewalk Cafe" means a use located on a public Sidewalk which is associated with a restaurant or food establishment where food or beverages are delivered for consumption on the premises but not having cooking or refrigeration equipment. It is characterized by tables and chairs and may be shaded by awnings, canopies or umbrellas if permits for same have been issued. "Sign", or "Signs" shall have the same meaning as provided for in Section 3-2A of the City's Zoning Ordinance No. 89-2665. "Street" means that portion of a Right -Of -Way improved, designed or ordinarily used for vehicular traffic or parking. "Usable Sidewalk Area" means the frontage of the property times the width of the Sidewalk less five (5) feet. 2 Provided, however, that for November 1st and: shall be prorated for an eleven -,month per .oc , Sec. 39-30. Permit Required. It shall be unlawful for any person to operate a Sidewalk Cafe on any Sidewalk or public Right -Of -Way within the City without obtaining a permit as required by this article. Sidewalk cafes shall only be located where permitted by the City's Zoning Ordinance No. 89-2665, and amendments thereto. No person shall establish a Sidewalk Cafe on any public Roadway or Sidewalk unless such person has obtained a valid permit to operate that Sidewalk Cafe pursuant to this Article. After thirty (30) days from the effective date of this ordinance any person or entity operating a Sidewalk Cafe without a permit or any property owner allowing the operation of a Sidewalk Cafe without a permit upon his/her/its property shall be subject to enforcement and penalties as provided in Miami Beach City Code Chapter 9B. Sec. 39-31. Permit Fee. (1) The annual permit fee for establishing or maintaining a Sidewalk Cafe shall be Ten Dollars ($10.00) per square foot of Usable Sidewalk Area, including the area between the tables and chairs,as determined by the Director. (2) The permit fee shall be paid on or before October 1 and shall cover the time period from October 1 through September 30 of the following calendar year, except that where the permit fee exceeds two thousand dollars ($2,000) the fee may be paid in two (2) semiannual increments, the first to be due on October 1 and the second to be due on April 1. the 1992-93 year the fee shall be due and payable on or prior to No license shall be issued for any fractional portion of the year; provided, however, that any person or entity operating a Sidewalk Cafe for a period beginning after May 1, may obtain a permit for the remaining portion of the fiscal year upon payment of one-half of the permit fee required by this Article. Except as provided in Section 39-36 no refund of the fees shall be granted. 3 Q J The permit fees collected pursuant to this section from Sidewalk Cafes located on Ocean Drive shall be placed and maintained in a separate fund and shall be utilized only for improvements and/or maintenance on Ocean Drive. The permit fees collected pursuant to this Section from Sidewalk Cafes located on Lincoln Road Mall shall be placed and maintained in a separate fund and shall be utilized only for Lincoln Road Mall management and improvements. L 1 Notwithstanding any other paragraph or provision of this Article, no permit fee as required by this Section shall be required for operation of Sidewalk Cafes on Lincoln Road prior to three (3) years after the effective date of this Ordinance; however, a permit must still be obtained and the base application fee required by Section 39-31 shall be paid. Sec. 39-32. Permit Application. /1) Application for a permit to operate a Sidewalk Cafe shall be made at the office of the Director. Such application shall include, but not be limited to, the following information: (a) Name, address and telephone number of the applicant; Name and address of restaurant; L j A copy of a valid City of Miami Beach occupational license to operate a restaurant adjacent to the Sidewalk area which is the subject of the application. The number of chairs to be utilized for the Sidewalk Cafe must be included in the number of chairs authorized by the license; (d) A copy of a valid Certificate of Use for the building frontage adjacent to the Sidewalk area which is the subject of the application; L C_ A copy of current insurance in the amounts and categories required by Section 39-31 of this Article; 4 ifl A drawing (drawn to scale) showing the layout and dimensions of the existing Sidewalk area and adjacent private property, proposed location, size and number of tables, chairs, steps, umbrellas, location of doorways, location of trees, parking meters, bus shelters, Sidewalk benches, trash receptacles, and any other Sidewalk obstruction either existing or proposed within the pedestrian area; and (g) Photographs, drawings or manufacturers'brochures fully describing the appearance of all proposed tables, chairs, umbrellas or other objects related to the Sidewalk Cafe. (h) An affidavit from the owner(s) of the property(ies) immediately adjacent to the Sidewalk where the proposed Sidewalk Cafe will be located consenting to the operation of the Sidewalk Cafe at that location. (2) Annual application shall be accompanied by a non- refundable base application fee of $150.00. (3) Applications shall be reviewed for compliance with City ordinances and must be approved by the following departments or divisions; Public Works, Planning & Zoning, Historic Preservation and Urban Design, Fire, Risk Management. Sec. 39-34. Standards and Criteria for Application Review. The following standards and criteria shall be used in reviewing the drawing required in Section 39-28(1)(f)(q): ill Sidewalk Cafes are restricted to the Sidewalk frontage of the licensed restaurant to which the permit is issued or within the Sidewalk frontage of the building where the validly licensed restaurant is located, provided that written approval is supplied by the building owner. (2) In the event the subject area of the permit extends to a public Right -Of -Way in front of an adjacent owner's property, the permittee must obtain written permission from the adjacent property owner for use of this area. The revocation or 5 suspension of this permission shall not operate to grant the permittee a refund of the annual permit fee or any other fees paid to the City of Miami Beach for operation of a Sidewalk Cafe. 121 Permits will not be issued where the tables and chairs would be placed within five (5) feet of bus stops, taxi stands, fire hydrants, or alleys. /4, No tables or chairs will be permitted within five (5) feet of a pedestrian crosswalk or handicap ramp. ja Sidewalk Cafes shall be located in such a manner that 50% of the Sidewalk width, with a minimum width of five (5) feet, is maintained at all times as an unobstructed pedestrian path; provided that the Director may permit Sidewalk Cafes to occupy additional space where established pedestrian and tram paths shall not be obstructed and where public safety shall not be adversely affected. In areas of congested pedestrian activity, the Director is authorized to require a wider pedestrian path, as circumstances dictate. /6) No object shall be permitted around the perimeter of an area occupied by tables and chairs which would have the effect of forming a physical or visual barrier discouraging the free use of the tables and chairs by the general public or which would have the effect of obstructing the pedestrian path. (7) Tables, chairs, umbrellas, canopies, awnings and any other objects provided with the sidewalk cafe shall be of quality, design, materials, size, elevation and workmanship both to ensure the safety and convenience of users, and to enhance the visual quality of the urban environment. Design, materials, and colors shall be approved by the Historic Preservation and Urban Design Director prior to the issuance of the Sidewalk Cafe Permit. (8) Awnings, umbrellas and other decorative material shall be fire -retardant, pressure -treated or manufactured of fire resistive material. Signs, with the exception of the establishment name, are prohibited on awnings, umbrellas, chairs, tables and any other fixture which is located on the public Right -Of -Way. Lettering may not exceed 6 inches in height. 6 (9) Prior to issuance of a sidewalk cafe permit, the Finance Director shall certify that there are no outstanding fines, monies, fees, taxes or other charges owed to the City by the current or past owners or operators of the property requesting a sidewalk cafe permit. A sidewalk cafe permit will not be issued until all outstanding debts to the City are paid in full. (10) Only one (1) menuboard shall be permitted with a maximum size that does not exceed four (4) square feet. The menuboard shall be placed in a location approved by the Director of Historic Preservation and Urban Design and the menuboard location shall be shown on the permit. x>}7ubnarci'shall not Sec. 39-35. Liability and Insurance. (1) The permittee agrees to indemnify, defend, save and hold harmless the City, its officers and employees from any and all claims, liability, lawsuits, damages and causes of action which may arise out of this permit, or the permittee's activity on the demised premises. (2) The permittee agrees to meet and maintain for the entire permit period, at its own expense, the following requirements: /a1 Commercial general liability insurance in the amount of $500,000 per occurrence for bodily injury and property damage. The City must be named as an additional insured on this policy and an endorsement must be issued as part of the policy reflecting this requirement. _Chi Workers' compensation and employersliability as required by the State of Florida. All policies must be issued by companies authorized to do business in the State of Florida and rated B+:VI or better per Best's Key Rating Guide, latest edition. 7 ill The City must receive thirty (30) days written notice prior to any cancellation, non -renewal or material change in the coverage provided. L_ The permittee must provide and have approved by the City's Risk Manager an original certificate of insurance as evidence that the above requirements have been met prior to commencing operations. Failure to comply with these requirements shall cause a suspension or revocation of this permit. (3) The permit period shall run and insurance requirements as described in subsection 2 above shall be effective from October 1 until September 30 of the following calendar year. Sec. 39-36. Conditions of Permit. In addition to the information required in Section 39-25 and the standards and criteria described in Section 39-30, the permit shall contain the following conditions: ill Each permit shall be effective for one (1) year from October 1 until September 30, subject to annual renewal with the approval of the Director. LL The permit issued shall be personal to the permittee only and shall be transferable only with the approval of the Director. Such approval shall not be unreasonably withheld. Q_ The permit may be temporarily suspended by the Director when necessary to clear Sidewalk areas for a "community or special event" authorized by a permit issued by the Police Department. iAI The Director may require the temporary removal of Sidewalk Cafes when Street, Sidewalk, or utility repairs necessitate such action. If such temporary removal exceeds fifteen(15) days, the Director shall prorate the remaining permit fee for each additional day the Sidewalk Cafe is removed and apply a credit toward the following year's permit fee or if requested to do so by the permittee, refund the remaining fee to the permittee. 8 (5) The City Manager or his designee, the Director or the Police Department may cause the immediate removal or relocation of all or parts of the Sidewalk Cafe in emergency situations. (6) The City and its officers and employees shall not be responsible for Sidewalk Cafe components relocated during emergencies. L2J The permit shall be specifically limited to the area shown on the "exhibit" attached to and made a part of the permit. The Director shall have the right to remove without notice, any tables, chairs or other objects not in the permit area. (8) The permittee shall use positive action to assure that its use of the Sidewalk in no way interferes with Sidewalk users or limits their free unobstructed passage. The Director may require relocation of tables, chairs and other objects at any time for safety or pedestrian flow considerations. 191 The Sidewalk Cafe shall be opened for use by the general public and such use shall not be restricted to patrons of the permittee. (10) Permittees holding an occupational license or Certificate of Use limited to take-out food shall not be permitted to provide table service on the Sidewalk. (11) Tables, chairs, umbrellas, and any other objects provided with a Sidewalk Cafe shall be maintained with a clean and attractive appearance and shall be in good repair at all times. (12) The Sidewalk area covered by the permit and Sidewalk and Roadway immediately adjacent to it shall be maintained in a neat and orderly appearance at all times and the area shall be cleared of all debris as needed during the day, and again at the close of each business day and as determined by the Director. (13) No advertising signs or business identification signs shall be permitted in the public Right-Of-Way. (14) No tables, chairs or any other parts of Sidewalk cafes shall be attached, chained, or in any manner affixed to any tree, post, sign, or other fixtures, curb or Sidewalk within or near the permitted area. No additional outdoor seating authorized herein shall be used for calculating seating requirements 9 pertaining to location of, applications for, or issuance of a liquor license for any establishment; nor shall it be used as the basis for computing required seating for restaurants and dining rooms, or as grounds for claiming exemption from such requirements under the provisions of any city ordinance or state law. (15) The permit covers only the public Sidewalk. Tables and chairs on private property will be governed by other applicable regulations. (16) The permittee shall notify the Director, in writing, when operation of the sidewalk cafe begins. Said notice shall be delivered to the Director within twenty-four (24) hours of such commencement. (17) No food preparation fire, or fire apparatus shall be allowed on the public Sidewalk, whether or not such area is covered by this permit. (18) Upon the issuance of a "Hurricane Warning" or "Hurricane Watch" by the Dade County Office of Emergency Management the permittee shall forthwith remove and place indoors all tables, chairs, awnings and other equipment located on the sidewalk. Sec. 39-37. Denial, Revocation or Suspension of Permit; Removal and Storage Fees; Emergencies. L11 The approval of a Sidewalk Cafe permit is conditional at all times. A Sidewalk Cafe permit be denied, revoked or suspended if it is found that: Lj Any necessary business or health permit has been suspended, revoked, or canceled. L1 The permittee does not have insurancewhich is correct and effective in the minimum amount described in Section 39-31. jgZ The permittee exceeds the approved square footage by placing any additional tables, chairs, etc., beyond the approved area. LL Changing conditions of pedestrian orvehicular traffic cause congestion necessitating removal of the Sidewalk Cafe. Such decision shall be based 10 upon findings of the Director that the minimum five (5) foot pedestrian path is insufficient under existing circumstances and represents a danger to the health, safety, or general welfare of pedestrians or vehicular traffic. LL The permittee has failed to correct violations of this article or conditions of this permit within twenty-four (24) hours of receipt of the Director's notice of same delivered in writing to the permittee. LL In the event the permittee fails to remove any tables, chairs, and other objects related to the Sidewalk Cafe within twenty four (24) hours of receipt of the Director's final notice of denial, revocation or suspension, the Director may remove said objects. The permittee shall be responsible for the expenses incurred by the City for the removal and storage of said objects. (2) Upon denial of the permit, the Director shall give written notice of such action to the permittee. (3) If the Director believes that a permittee has engaged or is engaged in conduct warranting the suspension or revocation of the permit, he shall serve the licensee by certified mail or hand delivery, at his business address as disclosed in his application for the permit, a written administrative complaint which affords reasonable notice of facts or conduct which warrant the intended action. The complaint shall state what is required to be done to eliminate the violation, if any. The permittee shall be given adequate opportunity to request a prior administrative hearing before a Special Master appointed by the City Commission, unless the Director finds that an emergency condition exists involving serious danger to public health, safety or welfare, in which case advance notice and hearing shall not be required. In the case of an emergency suspension or revocation, the licensee shall immediately be advised of the Director's action and afforded a prompt post -suspension or revocation hearing in accordance with the procedures set forth in 11 Section 20 29 20-44 of the Miami Beach City Code. Sec. 39-38. Appeals from the Decision of the Director of Special Master. Appeals from decisions of the Director made pursuant to this Article shall be to the Property Maintenance Standards Appeals Board in accordance with the procedures set forth in Section 17B- 17 of the Miami Beach City Code. Appeals from the decisions of the Special Master or Property Maintenance Standards Appeals Board shall be to a court of competent jurisdiction by petition for writ of certiorari. Sec. 39-39. Enforcement of Article by Code Inspectors; Notice of Violation If a code inspector as defined in chapter 9B of the Miami Beach City Code finds a violation of this Article, said inspector shall issue a notice of violation to the violator as provided in chapter 9B. The notice shall inform the violator of the nature of the violation, amount of fine for which the violator may be liable, instructions and due date for paying the fine, notice that the violation may be appealed by requesting an administrative hearing within twenty (20) days after service of the notice of violation, and that failure to do so shall constitute an admission of the violation and waiver of the right to a hearing. Sec. 39-40 Civil Fine for Violators. The following civil fines shall be imposed for violators of this Article: First citation = $100 fine Second citation (within a 1 year period) Third citation (within a 1 year period) $250 fine $500 fine Sec. 39-41. Rights of Violators; payment of fine; right to appeal; failure to pay civil fine or to appeal. (1Z A violator who has been served with a notice of violation shall elect either to: 12 (a) Pay the civil fine in the manner indicated on the notice; or 1121 Request an administrative hearing before a Special Master appointed by the City Commission to appeal the decision of the code inspector which resulted in the issuance of the notice of violation. (2) The procedures for appeal shall be as set forth in Section 20-44 of the Miami Beach City Code. (3) If the named violator after notice fails to pay the civil fine or fails to timely request an administrative hearing before a Special Master, the Special Master shall be informed of such failure by report from the code inspector. Failure of the named violator to appeal the decision of the code inspector within the prescribed time period shall constitute a waiver of the violator's right to administrative hearing. A waiver of the right to administrative hearing shall be treated as an admission of the violation, and penalties may be assessed accordingly. (4) Any party aggrieved by the decision of a Special Master may appeal that decision to a court of competent jurisdiction as provided in Section 162.11, Florida Statutes. Sec. 39-42. Recovery of unpaid fines; unpaid fines to constitute a lien; foreclosure (1) The City of Miami Beach may institute proceedings in a court of competent -jurisdiction to compel payment of civil fines. j 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 iudgment by the sheriffs of this state, including levy against the personal property, but shall not be deemed to be a court -judgment except for enforcement purposes. After two (2) months from the filing of any such lien which remains unpaid, the City of Miami Beach may foreclose or otherwise execute on the lien. SECTION 2. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held to be invalid, the remainder shall not be /, 13 P149"3 )q' SECTION 3. REPEALER. All Ordinances or parts of Ordinances in conflict herewith be and are hereby repealed. SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect ten (10) days after its adoption on 8th day of October , 1992. ATTEST: CITY CLERK “o41.19t. 1st reading 9/16/92 2nd reading 10/8/92 SWS:\Disk3\sidewalk.ord 9/30/92 FORM APPROVED L EPT. By Date q` 3" <f 14 MAYOR 0 is •r4 H 0 CO 4) ,a CD a 0 cx) 0 P-1 • CJ 41 ,lU G 41 )ro7-1- b <4 • • 0C . a r,,?, ,-.1 0 •., ro z r� 4..1 3 G 0 I-8() .1-1 41 0 0 % U ii •rl +-1 H < •r1 1-1 ro 0.i ;( .G C/] •rl U 1-1 �rn 03 •-d ,24 I:4 a) co ro i 0 P1 41 CZ •,-I all ,12>1 n a1 C 1~ b ro 1J r •r1 •rl C/D = (n Z- cn- a- oD v •r4 '0 G 0 JJ 0 4-1 rl •ri '-1 b JJ G •-1 -1 •-1 O 4J U 41 0 W 0 1