Ordinance 2019-4267 ORDINANCE NO. 2019-4267
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," BY AMENDING ARTICLE IV, ENTITLED "USES IN
PUBLIC RIGHTS-OF-WAY," BY AMENDING DIVISION 5, ENTITLED
"SIDEWALK CAFES," BY AMENDING SUBDIVISION II, ENTITLED
"PERMIT," BY AMENDING SECTION 82-381 THEREOF, ENTITLED
"PERMITTED AREAS; CONDITION PERMIT; CITY MANAGER'S RIGHT
TO REMOVE SIDEWALK CAFES; REQUIREMENT DISCLOSURES ON
MENUS, BILLS, AND RECEIPTS," BY CLARIFYING A SIDEWALK
CAFE'S STATUS UPON THE CITY'S PROPERTY,AND ESTABLISHING
THE CITY MANAGER'S AUTHORITY TO TERMINATE OR SUSPEND
SIDEWALK CAFE OPERATIONS; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, sidewalk cafes have been established throughout the City of Miami Beach
in order to provide a unique environment for relaxation and food and/or beverage consumption;
and
WHEREAS, the approval, issuance and continued operation of a sidewalk cafe permit is
recognized by the City to be a privilege that is conditional at all times, which neither establishes
nor creates any legal rights upon the permittee; and
WHEREAS, the operation of a sidewalk cafe is subject to certain identifiable
requirements, permit conditions and other safety standards that must be satisfied by the
permittee, which will facilitate and ensure a safe environment for residents and visitors at
sidewalk cafes; and
WHEREAS, the City Manager must have authority to regulate the hours, manner and
circumstances under which these sidewalk cafes are permitted to operate upon the City's
property; and
WHEREAS, sidewalk cafes encourage additional pedestrian traffic to these areas, which
may cause the congregation of numerous individuals at these locations, and may disturb the quiet
enjoyment of the community, cause undesirable noise, result in physical disputes amongst
patrons and passers-by, and generally contribute to litter, noxious odors, and the degradation of
the City brand; and
WHEREAS, the City Manager must have the authority to impose immediate conditions,
which may include the termination, suspension, closure, removal, relocation and/or storage of all
or part of a sidewalk cafe operation(s), for those circumstances in which the City Manager
determines it reasonably necessary for the protection of the public health, safety, and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. That Section 82-381 of Subdivision II, of Division 5, of Article IV, of Chapter 82 of
the Code of the City of Miami Beach is hereby amended as follows:
CHAPTER 82
PUBLIC PROPERTY
* * *
ARTICLE IV. USES IN PUBLIC RIGHTS-OF-WAY
DIVISION 5. SIDEWALK CAFES
* * *
Sec. 82-381. Permitted areas; condition permit; city manager's right to remove sidewalk
cafes; requirement disclosures on menus, bills, and receipts.
(a) Sidewalk cafes shall only be located where permitted by the city's zoning ordinance and land
development regulations, as same may be amended from time to time.
(b) The operation of a sidewalk cafe is considered to be a privilege, and not a right, and the
issuance of a sidewalk cafe permit neither establishes nor creates any legal rights for the
permittee. The approvalLand-issuance and continued operation of a sidewalk cafe permit is
subiect to the city manager's discretion, which is deemed conditional at all times.
(c) It shall be unlawful for any person to operate a sidewalk cafe without a valid permit as required
by this division.
(d) The city manager shall have the right to immediately remove, after 24-hours written and/or
verbal notice to the permittee, any sidewalk cafe furniture used in connection with a
sidewalk café which is operating without a valid permit.
(e) The city manager may cause the immediate termination, suspension, closure, removal,
relocation, and/or storage of all or part of a sidewalk cafe operation and/or sidewalk cafe
furniture in those circumstances where the city manager determines it
reasonably necessary for the protection of the public health, safety, or welfare. or for public
safety consideration .— _--' _ • ___ _ •- ___ _ -_ _ -- ._ _
instances where the city manager determines that termination, suspension, closure, removal,
relocation, and/or storage of all or part of a sidewalk cafe is necessary, pursuant to this
subsection, the city manager shall provide prompt, written notice to the Mayor and City
Commission setting forth the sidewalk cafe location, the action(s) taken pursuant to this
subsection and the reason(s) therefor, and the duration of time for such action.
L. High Impact Periods. The city manager may, upon declaration of a high impact period, as
provided in Section 82-443 of the City Code, order the immediate suspension and closure
of all or part of sidewalk cafe operation(s) (including, without limitation, the removal of all
or any sidewalk cafe furniture) within a High Impact Zone, as such area is defined in
Section 82-443 of the City Code; provided however, that the manager shall first comply
with the noticing requirements set forth in Section 82-443(c) of the City Code, and such
measures shall only be instituted by the manager for a maximum period of 72 consecutive
hours without the further approval of the City Commission to extend such periods.
(f) The city manager may require the temporary removal and/or relocation of all or part of a
sidewalk cafe when street, sidewalk, or utility repairs, or other public construction,
necessitates such action. If such temporary removal exceeds 15 days, the city manager shall
pro-rate the remaining permit fee for each additional day the sidewalk cafe(or portion thereof)
is removed and apply a credit toward the following year's permit fee or, upon written request
by the permittee, refund the remaining fee to the permittee.
(g) Upon written and/or verbal notification by the city manager of a hurricane or other major
weather event, or the issuance of a hurricane warning by Miami-Dade County, whichever
occurs first, the permittee shall, within no more than four hours of same, remove and place
indoors all tables, chairs and any other sidewalk cafe furniture located on the right-of-way.
The notification by the city manager of a hurricane or other major weather event, or the
issuance of a hurricane warning, shall constitute a public emergency situation as referenced.
in this division. The city manager may remove, relocate, and/or store any sidewalk cafe
furniture found on the right-of-way that has otherwise not been removed by the permittee
pursuant to this subsection. Any and all costs incurred by the city for removal, relocation
and/or storage of sidewalk cafe furniture shall be the responsibility of the permittee. Sidewalk
cafes will not re-open for business following a hurricane or other major weather event until
notified by the city manager. Violation of this subsection (g) shall result in the issuance of an
immediate $1,000.00 fine, and/or suspension, for up to 30 days, of the sidewalk cafe permit.
(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 writing,
actual prices for food and drink menu item(s), or display or disclose, in writing, 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 any food and drink
menu special(s) must be provided to each sidewalk cafe patron.
(i) 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 display 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, and the disclosure
within the bill must not be smaller than 12-point font.
(j) 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 charge, corkage
fee, set up fee, sharing fee or charge, or any other similar charge, 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.
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 1 day of # 171 , 2019.
ATTEST:
Dan Gelber, Mayor
Ckhei
Rafael E. Grana o, City Clerk
Underline denotes additions
Str+l ugh denotes deletions
Double underline denotes additions made after First Reading
denotes deletions made after First Reading
APPROVED AS TO
(Sponsored by Mayor Dan Gelber) •'i " FORM&LANGUAGE
•••• ��JOI B &FOR EXECUTION •
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Ordinances - R5 J
MiAMI BEA H
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J.Aguila, City Attorney
DATE: May 8, 2019
1:33 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," BY
AMENDING ARTICLE IV, ENTITLED "USES IN PUBLIC RIGHTS-OF-WAY,"
BY AMENDING DIVISION 5, ENTITLED "SIDEWALK CAFES," BY
AMENDING SUBDIVISION II, ENTITLED "PERMIT," BY AMENDING
SECTION 82-381 THEREOF, ENTITLED "PERMITTED AREAS; CONDITION
PERMIT; CITY MANAGER'S RIGHT TO REMOVE SIDEWALK CAFES;
REQUIREMENT DISCLOSURES ON MENUS, BILLS, AND RECEIPTS," BY
CLARIFYING A SIDEWALK CAFE'S STATUS UPON THE CITY'S
PROPERTY, AND ESTABLISHING THE CITY MANAGER'S AUTHORITY TO
TERMINATE OR SUSPEND SIDEWALK CAFE OPERATIONS; AND
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
RECOMMENDATION
Pursuant to the request of Mayor Dan Gelber, the above-referenced Ordinance is submitted for
second reading for consideration by the City Commission at the May 8, 2019 Commission
meeting.
Legislative Tracking
Office of the City Attorney
Sponsor
Mayor Dan Gelber
ATTACHMENTS:
Description
❑ Commission Memo Re Amending Sec 82-381 Establish CM's Authority-Terminate Sidewalk
Cafes
o Ordinance Amending Sec 82-381 to Establish CM's Authority-Terminate Sidewalk Cafes
Page 443 of 1102
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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 ATTORNEI((Pk-t, Or•r--
DATE: MAY 8, 2019
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," BY
AMENDING ARTICLE IV, ENTITLED "USES IN PUBLIC RIGHTS-OF-
WAY," BY AMENDING DIVISION 5, ENTITLED "SIDEWALK CAFES," BY
AMENDING SUBDIVISION II, ENTITLED "PERMIT," BY AMENDING
SECTION 82-381 THEREOF, ENTITLED "PERMITTED AREAS;
CONDITION PERMIT; CITY MANAGER'S RIGHT TO REMOVE
SIDEWALK CAFES; REQUIREMENT DISCLOSURES ON MENUS, BILLS,
AND RECEIPTS," BY CLARIFYING A SIDEWALK CAFE'S STATUS
UPON THE CITY'S PROPERTY, AND ESTABLISHING THE CITY
MANAGER'S AUTHORITY TO TERMINATE OR SUSPEND SIDEWALK
CAFE OPERATIONS; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
The Administration has requested those remedial amendments to Section 82-381 of the City
Code, which proposed amendment(s) to the Ordinance, are being sponsored by Mayor Dan
Gelber. The proposed amendment to the Ordinance was heard on first reading at the April 10,
2019 City Commission meeting, and was passed with minimal modifications to those proposed
amendment(s) to the Ordinance.
These proposed amendment(s) to Section 82-381 of the City Code seek to unmistakably
delineate the legal status of a sidewalk café's operation upon the City's public property, and to
further identify the City Managers authority to terminate or suspend the operations of a sidewalk
cafe, provided such administrative action is reasonably necessary to protect the public health,
safety, or welfare.
Specifically, and in response to the Mayor and City Commission's discussion on those proposed
amendment(s) to the Ordinance at first reading, the following changes have been made:
1. The City Manager will be required to issue a prompt, written notification to the Mayor and
City Commission, once he has determined that there exist those circumstances, in which
it is reasonably necessary for the City Manager to immediately terminate, suspend, close,
remove, or relocate a sidewalk cafe operation.
Page 444 of 1102
Commission Memorandum
May 8, 2019 Page 2 of 2
2. Additionally, Subsection 82-381(e) has been further amended to establish a provision that
delineates the express circumstances under which the City Manager is authorized to
initiate the immediate suspension and closure of a sidewalk cafe operation based upon
the declaration of a High Impact Period pursuant to Section 82-443 of the City Code.
The City Manager will be required to comply with the noticing requirements of Section 82-
443, and any such immediate suspension or closure of a sidewalk cafe that is directly
located within a High Impact Zone would be limited to a maximum period of 72 consecutive
hours.
The inclusion of this new provision within Section 82-381(e) will serve to minimize the
adverse impacts from the City Manager's declaration of a High Impact Period, and will
require the City Commission to authorize any extension of the suspension or closure
period for those sidewalk cafes located within a High Impact Zone beyond the initial 72
• hour period.
The second reading of the Ordinance is scheduled for the May 8, 2019 City Commission Meeting.
The Administration supports the amendment(s) to Section 82-381 of the City Code, and further
supports the creation of the new limitations for those sidewalk café operators located within a
High Impact Zone, which is consistent with the provisions set forth in Section 82-443 of the City
Code.
RA/AB/sp
Page 445 of 1102