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Ordinance 2019-4264 ORDINANCE NO., 2019-4264 AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 82-1 THEREOF, ENTITLED "CONDUCTING BUSINESS ON STREETS, PARKS, OR OTHER PUBLIC PROPERTY; ENFORCEMENT; PENALTIES; UNPAID FINES TO CONSTITUTE LIENS," BY PROVIDING FOR CRIMINAL PENALTY PROVISIONS IN LIEU OF CIVIL PENALTIES FOR VIOLATIONS OF THIS SECTION AND, PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. WHEREAS, currently, penalty provisions of Chapter 82, Article I, Section 82-1 impose civil penalties for conducting unauthorized business on any public street, avenue or alley, or any park, beach, structure, building, or other property or place owned, maintained, or operated by the City of Miami Beach for public use; and WHEREAS, persons continue to engage in prohibited conduct on City's property in spite of existing civil penalties; and WHEREAS, it is deemed in the best interest of the City that violations of the aforementioned section shall be classified as misdemeanor offenses and enforced by the City of Miami Beach Police Department in order to deter such behavior. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: SECTION 1. That Section 82-1 of Article I of Chapter 82 of the Code of the City of Miami Beach is hereby amended as follows: CHAPTER 82 PUBLIC PROPERTY * * * ARTICLE I. IN GENERAL Section 82-1. Conducting business on streets, parks or other public property; enforcement; penalties; unpaid fines to constitute liens. (a) It shall be unlawful for any person, while in or on any public street, avenue or alley, or any park, beach, structure, building or other property or place owned, maintained or operated by the city for public use, to sell, rent or offer for sale or rent to the publics any canticle,. merchandise, product, goods, or service of any nature whatsoever, other than newspapers of general circulation duly entered in the United States Postal Service. 1 (b) It shall be unlawful for any commercial business operator, establishment, entity, organization or company that sells or rents merchandise, products, goods or services, or engages in any service that sells or rents merchandise, products, egoods or services, Lincluding, without limitation, those commercial operators that transport passengersl, from conducting any portion of the commercial transaction, activity or operation at any park, boat ramp, beach, structure, building or other property or place owned, maintained or operated by the city. A commercial transaction, activity or operation will be deemed to have occurred if any direct, indirect, or incidental portion of the commercial transaction, activity or operation takes place at, or uses, a park, boat ramp (including, without limitation, the Barry Kutun boat ramp located in Maurice Gibb Memorial Park), beach, structure, building or other property or place owned, maintained or operated by the city (c) Exemptions. This section shall not apply to: (1) Employees of the city acting for, and on behalf of, the city, as specifically authorized by the city manager; or (2) Persons authorized to render service to the public in any place set forth in subsection (a) and (b); by the city manager, provided the rendered service is a commercial outdoor fee based activity that has minimal impact to the city's public property; or (3) A commercial business operator, establishment, entity, organization or company is authorized to render service to the public pursuant to a eoncoccion written agreement with the city (4) Persons participating in any art show or exhibit held on all city properties under the specific authorization of the city commission, and who are exhibiting paintings or objects of art produced or created by such persons. (5) Persons providing personal training exercise services, or providing lessons in sports related activities in a city park, provided the rendered service(s) takes place at a park that is specifically designed, used, or otherwise intended by the city to provide a broad range of recreational facilities and uses and, further, the service(s) being rendered has/have minimal impact upon the public's use and enjoyment of the park. (d) Penalties and enforcement. (1) Any violation of subsections (a) and (b) of Section 82-1 shall be punished in accordance with Section 1-14 of the Code of the City of Miami Beach. 4)0.Any violations of this section subsection (c) shall be subject to the following fines: a. If the violation is the first offense, a person or business shall receive a civil fine of $250.00; b. If the violation is the second violation within the preceding six months, a person or business shall receive a civil fine of$500.00; c. If the violation is the third violation within the preceding six months, a person or business shall receive a civil fine of$1,000.00; and d. If the violation is the fourth or subsequent violation within the preceding six months, a person or business shall receive a civil fine of$2,000.00. 2 (2)L31 Enforcement. Lgl The Miami Beach Police Department, the code compliance department, or the parks and recreation department shall enforce this section subsection (c). This shall not preclude other law enforcement agencies from any action to assure compliance with this section and all applicable laws. If a violation of this section is observed, the enforcement officer will be authorized to issue a notice of violation. 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 days after service of the notice of violation, and that the failure to appeal the violation within ten days of service shall constitute an admission of the violation and a waiver of the right to a hearing. all The Miami Beach Police Department shall enforce the provisions of subsections (a) and (b). This shall not preclude other law enforcement agencies or regulatory bodies from any action to assure compliance with this section, and all applicable laws. 93(4) Rights of violators; payment of fine; right to appear; failure to pay civil fine or to appeal; appeals from decisions of the special master. a. A violator who has been served with a notice of violation must elect to either: i. Pay the civil fine in the manner indicated on the notice of violation; or ii. Request an administrative hearing before a special master to appeal the notice of violation, which must be requested within ten days of the service of the notice of violation. b. The procedures for appeal by administrative hearing of the notice of violation shall be as set forth in sections 30-72 and 30-73 of this Code. 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. If the named violator, after issuance of the notice of violation, fails to pay the civil fine, or fails to timely request an administrative hearing before a special master, the special master may be informed of such failure by report from the police officer. The failure of the named violator to appeal the decision of the police officer within the prescribed time period shall constitute a waiver of the violator's right to an administrative hearing before the special master, and shall be treated as an admission of the violation, for which fines and penalties shall be assessed accordingly. d. A certified copy of an order imposing a fine may be recorded in the public records, and thereafter shall constitute a lien upon any real or personal property owned by the violator, which 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. On or after the 61st day following the recording of any such lien that remains unpaid, the city may foreclose or otherwise execute upon the lien. e. Any party aggrieved by a decision of a special master may appeal that decision to a court of competent jurisdiction. 3 f. 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 days of the service of the notice of violation. g. The special master shall not have discretion to alter the penalties prescribed in subsection (d)(1)0. 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 Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered or re-lettered 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 __ day of MG , 2019. PASSED AND ADOPTED this day of Mgs , 2019. ATTEST: /r, /11 Dan Gelber, Mayor Rafael E. Granado, City Clerk Sponsored by Commissioner Mark Samuelian Underline denotes additions Strike through denotes deletions Double underline denotes additions made after First Reading 1 deletions made after First Reading APPROVED AS TO FORM&LANGUAGE FO\ ..... � &FOR EXECUTION 100 y 1 NCORP ORATED �ayatomelr Dato 4')= 4 cv 'lib CH �411... Ordinances- R5 G MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Raul J.Aguila, City Attorney DATE: May 8, 2019 1:30 p.m. Second Reading Public Hearing SUBJECT:AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 82-1 THEREOF, ENTITLED "CONDUCTING BUSINESS ON STREETS, PARKS, OR OTHER PUBLIC PROPERTY; ENFORCEMENT; PENALTIES; UNPAID FINES TO CONSTITUTE LIENS," BY PROVIDING FOR CRIMINAL PENALTY PROVISIONS IN LIEU OF CIVIL PENALTIES FOR VIOLATIONS OF THIS SECTION AND, PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION,AND AN EFFECTIVE DATE. RECOMMENDATION Pursuant to the request of Commissioner Mark Samuelian, the above-referenced Ordinance is submitted for Second reading for consideration by the Mayor and City Commission at the May 8, 2019 Commission meeting. Legislative Tracking Office of the City Attorney Sponsor Commissioner Mark Samuelian ATTACHMENTS: Description Commission Memo Re Sec 82-1, Criminal Penalty Provisions- Unauthorized Business on Public Property. o Ordinance Re Ch. 82, Criminal Penalty Provisions- Unauthorized Business on Public Property Page 426 of 1102 MIAI\A1 B OFFICE OF THE CITY ATTORNEY RAUL AGUILA, CITY ATTORNEY COMMISSION MEMORANDUM TO: MAYOR DAN GELBER MEMBERS OF THE CITY COMMISSION SECOND READING JIMMY L. MORALES, CITY MANAGER FROM: RAUL J. AGUILA, CITY ATTORNEY j*�, ar DATE: MAY 8, 2019 vv SUBJECT: AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 82-1 THEREOF, ENTITLED "CONDUCTING BUSINESS ON STREETS, PARKS, OR OTHER PUBLIC PROPERTY; ENFORCEMENT; PENALTIES; UNPAID FINES TO CONSTITUTE LIENS," BY PROVIDING FOR CRIMINAL PENALTY PROVISIONS IN LIEU OF CIVIL PENALTIES FOR VIOLATIONS OF THIS SECTION AND, PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. Commissioner Samuelian has sponsored the amendment(s) to Section 82-1 of the City Code, which was initially heard by the Mayor and City Commission on first reading at the April 10, 2019 City Commission meeting, and that was subsequently passed with limited modifications to the proposed amendment(s) to the Ordinance. In response to the discussion that occurred at the April 10, 2019 City Commission meeting, the proposed Ordinance, which establishes criminal penalties for those individuals conducting business on the City's public property, has been subsequently clarified in certain respects, as well as narrowed in others, in order to unmistakably address those concerns expressed by the City Commission at the first reading. Specifically, the proposed amendments to those provisions of the Ordinance, which have either now been modified, deleted, or otherwise altered for second reading, are as follows: 1. The prescribed unlawful activity set forth in Section 82-1(a) was definitively clarified to firmly establish those categories of conduct which are prohibited on public property. The terms "article, commodity or service" has been stricken-through, and have been replaced with the terms "merchandise, product, goods, or service." 2. In Section 82-1(b), the prohibition on engaging in any service that sells or rents merchandise, products or goods was modified to include a prohibition on engaging in any service that sells Page 427 of 1102 Commission Memorandum May 8, 2019 Page2of2 or rents merchandise, products, goods or services. Additionally, the Subsection was further modified to include the phrase "without limitation," which is required to enhance the express prohibition that presently exists for those commercial operators that utilize the City's property in furtherance of their business of transporting passengers. 3. Section 82-1(c)(3) was clarified by striking-through the words "concession agreement approved by the city commission," and subsequently replaced with the phrase "written agreement with the city" to undoubtedly articulate the various mechanisms (e.g., concession agreements, management agreements, lease agreements, etc.) under which the City may authorize an individual or entity to conduct its business operation(s) upon the City's public property. 4. Section 82-1(c)(5) is a new exemption, which has been established in order to address those circumstances in which a person(s) is providing personal training exercise services or providing lessons in sports related activities in a city park. This exemption would not subject those individual(s) to the criminal penalties set forth in the proposed amendment to the Ordinance, provided the services being rendered only have a minimal impact upon the public's use and enjoyment of the park. Furthermore, the inclusion of this additional exemption should alleviate the concerns identified at the City Commission meeting, and also will harmonize the proposed amendment(s) to the Ordinance, with the already-existing exemption that is delineated within Section 82-1(c)(2) and Section 82-96 of the City Code. 5. The "Enforcement" subsection, within the Section entitled "Penalties and Enforcement," has been renumbered from 82-1(d)(2) to 82-1(d)(3) in order to accurately reflect the enumerated provisions of subsection 82-1(d). 6. Section 82-1(d)(3)g has been renumbered to 82-1(d)(4)g, and provides the special master no discretion to alter any of the monetary penalties set forth in Section 82-1(d)(2). The second reading of the Ordinance is scheduled for the May 8, 2019 City Commission Meeting. The Administration supports criminalizing those violation(s) committed pursuant to Section 82-1 of the City Code, and further supports the creation of the new exemption for personal training exercise services or lessons in sports related activities, which is consistent with the commercial outdoor fee based activity permit set forth in Section 82-96 of the City Code. RA/AB/sp Page 428 of 1102