Ordinance 2018-4188ORDINANCE NO. 2018 -4188
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," TO
AMEND THE DISCLOSURE REQUIREMENTS FOR SIDEWALK
CAFE OPERATORS, AND TO FURTHER PROVIDE
SUPPLEMENTAL PENALTY PROVISIONS FOR SPECIFIED
VIOLATIONS OF THIS DIVISION; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
WHEREAS, pursuant to Ordinance Nos. 2015 -3982 and 2017 -4082, and in order to
prevent deceptive or misleading business practices in the operation of the City's sidewalk cafes,
the Mayor and City Commission have amended the City's Sidewalk Cafe Ordinance, codified in
Chapter 82, Article IV, Division 5 of the City Code, to require that sidewalk cafes display or
disclose (i) prices for food and drink menu items or menu specials; (ii) any automatic gratuity or
service charges; and (iii) the amount of all applicable City, County, and State taxes; and
WHEREAS, in order to further promote transparency and reduce the incidence of
deceptive or misleading business practices by sidewalk cafe operators, the Mayor and City
Commission now desire to adopt the amendments and additional disclosure requirements set
forth herein.
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 -371. Civil fines and penalties; denial of future permits to repeat violators;
enhanced penalties.
(a) [Civil fines and penalties.] The following civil fines and penalties shall be imposed for
violations of this division:
(1) First violation: $500.00.
(2) Second violation within the preceding 12 months: $750.00.
(3)
Third violation within the preceding 12 months: Suspension of the sidewalk cafe
permit for one weekend (Saturday and Sunday) and $1,000.00.
(4) Fourth violation within the preceding 12 months: Revocation of the sidewalk cafe
permit for the remaining portion of the permit year and $1,250.00.
Failure to apply for permit: Termination of sidewalk cafe operations until a permit is
applied for and obtained.
(6) Failure to renew permit: Suspension of sidewalk cafe operations until the permit is
renewed.
(5)
(b) Enhanced penalties. The following enhanced penalties must be imposed by the city
manager:
(1)
A permittee who has been issued more than 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.
(2) For life safety violations of this division, site plan violations, and violations of
subsection 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 subsection 82- 385(v), (w), or (x) has occurred.
a) For life safety violations of this division, and violations of subsection 82- 385(v), (w),
or (x), the city manager shall be authorized to commence proceedings, pursuant to
section 102 -381 of this Code, to suspend or revoke the sidewalk cafe operator's
business tax receipt. The issuance of a notice of violation pursuant to this paragraph
shall raise a rebuttable presumption that a life safety violation, or violation of
subsection 82- 385(v), (w), or (x), has occurred.
j4) Reporting requirement. The city manager, or the city manager's designee, shall, on a
quarterly basis, present the city commission with a written report detailing the city's
enforcement activities relating to life safety violations of this division, site plan
violations, and violations of subsections 82- 385(v), (w), and (x). The report shall
include statistics relating to the number of enforcement actions taken against each
sidewalk cafe operator, and the outcome of each enforcement action.
* * *
Subdivision II. Permit
* *
Sec. 82-381. Permitted areas; condition permit; city manager's right to remove sidewalk
cafes; requirement disclosures on menus, bills, and receipts.
(h) Each sidewalk cafe menu shall comply with the requirements of this subsection (h). The city
commission may adopt, by resolution, sidewalk cafe menu design guidelines consistent
with the intent and purpose of this subsection (h), in which case each sidewalk cafe menu
shall additionally comply with such guidelines. A sidewalk cafe must display or disclose, in
(1)
(j)
writing, actual prices for food and drink menu item(s), or display or disclose, in writing,
those actual prices and accurate terms and conditions for any food and drink menu
special(s). The displayed price for the food or drink menu item(s) or food and drink menu
special(s) (and, if applicable, the terms and conditions for any food and drink menu
special(s)) must be in a size (font) and typeface, which is at least as large as the name of
the menu item. Such prices (and, if applicable, terms and conditions) must be displayed
adjacent to the name, description, photograph, and /or image of each menu item or menu
special, except as may be expressly authorized pursuant to the sidewalk cafe menu design
guidelines. All menu prices must be displayed in numeric format. A sidewalk cafe may not
charge a price that is greater than the price displayed or disclosed for any food or drink
menu item(s) or food or drink menu special(s). In the event that a sidewalk, cafe patron
makes a unique or special request for a food or drink menu item not listed on the menu, the
sidewalk cafe must disclose, to the patron, the price of the unique or specially requested
food or drink menu item, prior to agreeing to prepare the food or drink menu item. A menu
that prominently displays the name of the sidewalk cafe operator; actual prices for food and
drink menu item(s) and for food and drink menu special(s); and, if applicable, accurate
terms and conditions for an food and drink menu special s } must be •rovided to each
sidewalk cafe patron.
A sidewalk cafe that automatically includes a gratuity or service charge, either; in the price
of the meal or drink or separately imposed for all items ordered, must be displayed the
actual amount of such gratuity or service charge on the menu and on the face of the
customer's bill. This disclosure serves to provide the customer notification that an automatic
gratuity or service charge is being included by the sidewalk cafe operator. The disclosure of
the gratuity or service charge within the menu must not be smaller than 14- point font, er
and the disclosure within the bill must not be smaller than 12 -point font.
A sidewalk cafe operator that includes a gratuity or tip as a charge must separately itemize
and state the actual amount of this charge on the face of the customer's bill and receipt,
and such gratuity or tip must only be calculated based on the pre -tax sale amount of the
food or drinks. A sidewalk cafe operator that includes a service charge, minimum charges,
corkage fees, set up fees, sharing fees or charges, or any other similar charges, must
itemize and separately state the actual amount of such charges on the face of the
customer's bill and receipt. Service charges, minimum charges, corkage fees, set up fees,
sharing fees or charges, or other similar charges imposed by a sidewalk cafe operator as
part of the charges for furnishing, serving, or preparing food products must be subject to
sales tax and surtax. A sidewalk cafe operator must state the total combined percentage
and amount of city, county, and state taxes on the face of the customer's bill and receipt
and must label such taxes accurately.
Sec. 82 -382. - Application.
* * *
(b) Application for a permit to operate a sidewalk cafe shall include, but not be limited to, the
following information:
(16)A sample menu that will be used by the sidewalk cafe to display or disclose actual
prices for food and drink menu item(s), or display or disclose those actual prices and
accurate terms and conditions for any food and drink menu special(s). The sample
menu must display or disclose the actual price for food or drink menu item(s) or food
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and drink menu special(s) (and, if applicable, the accurate terms and conditions for any
food and drink menu special(s)) in a size (font) and typeface that is at least as large as
the name of the menu or food item, and such price (and, if applicable, terms and
conditions) must be displayed adjacent to the name, description, photograph, and /or
image of each menu item or menu special, except as may be expressly authorized
pursuant to the sidewalk cafe menu design guidelines adopted by the city commission
pursuant to section 82- 381(h). All menu prices must be displayed in numeric format.
The name of the sidewalk cafe operator must be prominently displayed on the menu.
Each sidewalk cafe operator shall submit a sample menu to the city each year, which
must be expressly approved by the city prior to each renewal of the operator's sidewalk
cafe permit.
(17)An affidavit by the sidewalk cafe that the inclusion of an automatic gratuity or service
charge, either; in the price of the meal or drink or separately imposed for all items
ordered, will be disclosed on the menu and the face of the customer's bill and receipt,
and that the total combined percentage and amount of the city, county, and state taxes
will also be stated on the face of the customer's bill and receipt. The affidavit must state
that the notification to the customer of an automatic gratuity or service charge and the
statement of the total combined percentage and amount of city, county, and state taxes
are being included consistent with, and pursuant to, those requirement(s) set forth in
subsections 82- 381(i) and (j).
Sec. 82 -385. Minimum standards, criteria, and conditions for operation of sidewalk
cafes.
(v) A sidewalk cafe shall be prohibited from continuing its operation until such time that it
displays or discloses, in writing, actual prices for food and drink menu item(s), or displays or
discloses, in writing, these actual prices and accurate terms and conditions for any food and
drink menu special(s), consistent with those requirements set forth in Section 82- 381(h) and
82- 382(b)(16). A sidewalk cafe may not charge a price that is greater than the price
displayed or disclosed for any food or drink menu item(s)or food or drink menu special(s).
A menu that prominently displays the name of the sidewalk cafe operator; actual prices for
food and drink menu item(s) and for food and drink menu special(s); and, if applicable,
accurate terms and conditions for any food and drink menu special(s), must be provided to
each sidewalk cafe patron.
(w)
A sidewalk cafe that automatically includes a gratuity, or service charge, minimum charge,
corkage fee, set up fee, sharing fee or charge, or other similar charge, either in the price of
the meal or drink or separately imposed for all items ordered, and fails to properly notify the
customer of the automatic gratuity or service charge, is prohibited from operating on the
city's property. The notification must be consistent with those requirements set forth in
sections 82- 381(i) and 82- 382(b)(17).
(x) A sidewalk cafe that fails to separately itemize and state the actual amount of the following:
(1) Gratuities or tips;
(2) Service charges, minimum charges, corkage fees, set up fees, sharing fees or
charges, or similar charges or
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(3) The total combined percentage and amount of city, county, and state taxes, on the face
of the customer's bill and receipt,
is prohibited from operating on the city's property. The notification must be consistent with
those requirements set forth in subsections 82- 381(i) and 82- 382(b)(17).
*
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith 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.
As applicable to sidewalk cafes located in the mixed use entertainment (MXE) zoning
district, this Ordinance shall take effect on July 2, 2018. As applicable to sidewalk cafes located
in all other zoning districts in the City, this Ordinance shall take effect on January 1, 2019.
PASSED and ADOPTED this %1 day of 4Pril , 2018.
ATTEST:
41211
Rafael E. Granado
City Clerk
Underline denotes additions
Strikethrough denotes deletions
(Sponsored by Commissioner Mark Sam
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
,f
C&,r
City Attorney
F:\ATTO \KALN \ORDINANCES \Sidewalk Cafe Ordinance amendments - second reading (as amended).docx
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Date
MIAM
BEACH
Ordinances - R5 K
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J. Aguila, City Attorney
DATE: April 11, 2018
1 :45 p.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," TO AMEND THE
DISCLOSURE REQUIREMENTS FOR SIDEWALK CAFE OPERATORS, AND TO
FURTHER PROVIDE SUPPLEMENTAL PENALTY PROVISIONS FOR SPECIFIED
VIOLATIONS OF THIS DIVISION; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
ANALYSIS
Pursuant to the request of Commissioner Mark Samuelian, attached for consideration by the Mayor
and City Commission is an Ordinance amending Chapter 82, Article IV, Division 5 of the City Code
(the "Sidewalk Cafe Ordinance "), to amend the disclosure requirements for sidewalk cafe operators,
and to further provide supplemental penalty provisions for specified violations of the Sidewalk Cafe
Ordinance.
FINANCIAL INFORMATION
This Ordinance is expected to have no more than a nominal impact on the City's resources.
Legislative Tracking
Office of the City Attorney
Sponsor
Commissioner Mark Samuelian
ATTACHMENTS:
Description
o Ordinance
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