Ordinance 2019-4294 ORDINANCE NO. 2019-4294
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING PORTIONS OF THE
CITY'S SIDEWALK CAFE ORDINANCE, AS CODIFIED IN SECTIONS
82-366 THROUGH 82-388 OF THE CITY CODE; SUCH AMENDMENTS
PROVIDING, IN PART, FOR THE CREATION OF A NEW SECTION, 82-
389, ENTITLED "SIDEWALK CAFE CODE OF CONDUCT," WHICH
SECTION CONTAINS CERTAIN TERMS AND CONDITIONS FOR
COMPLIANCE WITH A SIDEWALK CAFÉ PERMIT THAT WOULD BE
SUBJECT TO ENHANCED PENALTIES FOR VIOLATION, (WHICH
PENALTIES ARE SET FORTH IN SECTION 82-371(b)); FURTHER
AMENDING THE SIDEWALK CAFÉ PERMIT APPLICATION
REQUIREMENTS BY REQUIRING PERMITTEES TO EXECUTE AN
AFFIDAVIT EVIDENCING RECEIPT OF THE CODE OF CONDUCT,
AND PERMITTEES' AGREEMENT TO BE BOUND BY SAME; AND
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND
AN EFFECTIVE DATE.
WHEREAS, the City of Miami Beach permits the operation of sidewalk cafés on
designated areas of its public property and right of ways, finding that such amenities provide a
unique experience and environment for the City's residents and visitors to relax and enjoy the
consumption of food and/or beverage(s) in the City's unique, vibrant, tropical atmosphere; and
WHEREAS, however, in order to ensure that sidewalk cafés in the City are operated and
maintained at the highest levels of quality and service, befitting an internationally renowned,
world class resort destination like the City of Miami Beach, the permitting, operation, and
maintenance of sidewalk cafes on public property are governed by the City's Sidewalk Café
Ordinance, which is codified in Sections 82-366 through 82-389 of the City Code; and
WHEREAS, the City's Sidewalk Café Ordinance is periodically reviewed and updated to
ensure that the City's sidewalk cafés continue to operate at the highest possible standards
(again, commensurate with those standards expected by residents and visitors to a world class
destination like Miami Beach); and
WHEREAS, the City Administration undergoes an annual review of applications for
sidewalk café permits (including renewals thereof) and, in its sole discretion, determines
whether such applications shall be approved for a sidewalk café permit to be issued; and
WHEREAS, if approved, sidewalk café permits are issued annually for a one year
period, from October 1st to September 30th; and
WHEREAS, a sidewalk café permit is a privilege and not a right, and the approval,
issuance and continued operation of a permitted sidewalk café is conditional at all times; and
WHEREAS, because the City has found that aesthetically pleasing and properly
operated and maintained sidewalk cafés can serve to enhance and complement residents and
visitors' experience and enjoyment of the City's historic (and other recognized commercial and
entertainment) districts/neighborhoods, the City's sidewalk café permit fees (that is, the fee
charged to private business establishments/restaurants-for the privilege of operating and
maintaining a sidewalk café on the City's public right of ways) have always been at a rate
substantially less than fair market value for such space; and
WHEREAS, the City Commission has also found that the highest possible standards,
criteria, and conditions pertaining to the operation of sidewalk cafés are critical, not only toward
maintaining excellent levels of quality and service, but (among other things) to: (i) preserve the
aesthetic character of the City's right of ways by helping to diminish the proliferation of unsightly
food displays, street furniture, signage and other visual and physical clutter; (ii) reduce potential
nuisances including, without limitation, excessively loud music; hawking from
restaurant/sidewalk café operators and their employees to passing pedestrians and
overcrowding of the right of way; and (iii) aid in the prevention of deceptive, misleading, or bait
and switch tactics by sidewalk café operators;
WHEREAS, as part of its periodic, continous review of the Sidewalk Café Ordinance
and, specifically, in continuing to find new and innovative ways to maintain the level of
excellence that the City expects from sidewalk cafes on public property, the Mayor and City
Commission desire to adopt and implement a Sidewalk Café Code of Conduct, which shall
govern various critical aspects of those permitted sidewalk café operations in the City, and,
accordingly, provide enhanced penalties for violation of such provisions; and
WHEREAS, every sidewalk café permit applicant will be legally required to execute and
remit to the City a Sidewalk Café Code of Conduct Affidavit with its application, as a condition
precedent to the City's undertaking the review and (if approved) the issuance of any sidewalk
café permit.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That those Sections of the City's Sidewalk Café Ordinance, as such Ordinance is
codified in Sections 82-366 through 82-389 of the City Code, be amended as follows and as
hereinafter set forth below:
CHAPTER 82
PUBLIC PROPERTY
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ARTICLE IV. USES IN PUBLIC RIGHTS-OF-WAY
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•
DIVISION 5. SIDEWALK CAFES
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SUBDIVISION I. Generally
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Sec. 82-366. Definitions.
The following words, terms and phrases, when used in this division, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a different
meaning:
City manager means the city manager or the city manager's designee.
Commercial handbill means any handbill intended proposin. a commercial transaction
including to promotinq,e a advertisinae any food, beverage, product, or service sold or provided
by a sidewalk café or a sidewalk café operator.
Code compliance officer means the code compliance officers, fire inspectors, or any other
authorized agent or employee of the city whose duty it is to assure code compliance.
Expanded polystyrene means blown polystyrene and expanded and extruded foams that
are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any
number of techniques including, but not limited to, fusion of polymer spheres (expandable bead
foam), injection molding, foam molding, and extrusion-blown molding (extruded foam
polystyrene).
Expanded polystyrene food service articles means plates, bowls, cups, containers, lids,
trays, coolers, ice chests, and all similar articles that consist of expanded polystyrene.
Handbill means any menu, coupon, flyer, paper, document, dodger, circular, folder, booklet,
letter, card, pamphlet, sheet, poster, sticker, banner, notice or other written, printed or painted
matter or object provided by a sidewalk café or a sidewalk café operator.
Menu board means a board allowing for the posting of a restaurant's complete menu, and
fabricated in such a manner so as not to constitute a form of general advertising or
establishment identification. The location, size, design, materials, and color of the menu board
shall be approved by the city managerand shown on the sidewalk cafe site plan (as hereinafter
defined in Section 82-382(b)(6) hereof). Menu boards shall be no larger than six square feet;
may not be internally illuminated; and the top of the board shall not exceed five feet, six inches
from grade. The menu board shall not be a sandwich board sign (as defined herein) or a
specials board (as defined herein).
Permittee means the recipient of a sidewalk cafe permit, which shall at all times be subject
to and conditioned upon permittee's compliance and adherence to under the terms and
provisions of this division.
Polystyrene means a thermoplastic polymer or copolymer comprised of at least 80 percent
styrene or paramethylstyrene by weight.
Restaurant for purposes of this division only, means a food service establishment that is
maintained and operated as a place where food and/or beverages are prepared and/or served
and sold for consumption within the premises, or a business establishment which has, as an
ancillary or secondary use, a part thereof where food and/or beverages are prepared and/or
served and sold for consumption within the premises. No sidewalk cafe permit shall be issued to
a restaurant whose occupational license or certificate of use is limited to take-out service and
does not have inside seating.
Right-of-way means land in which the sState, the stateFlorida dDepartment of
tTransportation, the Miami-Dade sCounty, or the city owns the fee or has an easement devoted
to or required for use as a transportation facility or street.
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Sandwich board sign means a freestanding, A-frame structure located on a sidewalk OF
street which may be affixed in position or is collapsible and which contains a sign (as defined in
sSection 114-1 hereof). The sandwich board sign shall not be a menu board (as defined herein)
or a specials board (as defined herein).
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, a sidewalk shall mean a right-of-way as
defined in this section, but shall only refer to that area between the property line and the
centerline of the right-of-way, exclusive of landscaped areas and a 12-foot-wide clear path for
emergency and maintenance vehicular access.
Sidewalk cafe means a use, approved and permitted by the City pursuant to this division,
which is further subject to and conditioned upon compliance and adherence to the terms and
provisions of this division. Sidewalk cafes shall be located on a sidewalk or right-of-way; which
ismust be associated with a restaurant and isare primarily characterized by tables and chairs;
(which may be shaded by awnings, canopies or umbrellas4 andbut may also include such other
sidewalk cafe furniture, (as hereinafter defined, and as permitted and/or approved pursuant to
this divisionl. The sidewalk café area in which the sidewalk café is permitted to operate is at all
times owned by the City in its proprietary capacity, and is permitted to the sidewalk café
permittee for the purpose of advancing the City's legitimate governmental interest, as set forth in
this division including, without limitation, Section 82-367 herein. The sidewalk café permit area
shall not be considered a public right of way, a public forum, or a limited public forum, for
purposes of First Amendment analysis.
Sidewalk cafe furniture means those nonpermanent fixtures, furnishings and equipment
associated with the operation of a sidewalk cafe and approved pursuant to this division
including, without limitation, tables, chairs, umbrellas, planters, heaters, fans, rolling service
stations, service carts, bussing stations, and menus, sandwich boards, and/or special:menu
boards.
Sidewalk café operator means any permittee including, but not limited to, any owner,
manager, employee, contractor, agent, officer, director, representative, or any other individual or
entity acting for, by, through or on behalf of any of the foregoing.
Sidewalk cafe site map means a city-approved map detailing the location of the pedestrian
pathway as it relates to a sidewalk cafe.
Sign shall have the same meaning as provided for in sSection 114-1 hereof.
Single-use carry out plastic bag means a bag provided by a sidewalk cafe permittee to a
sidewalk cafe patron; for the purpose of transporting purchases or goods, including, but not
limited to, food and beverages, which is made predominantly of plastic derived from petroleum
or a biologically-based source. A single-use carry out plastic bag does not include a
compostable carry out bag that:
(1) Conforms to current ASTM D6400 standards;
(2) Is certified and labeled as meeting ASTM D6400 standard specifications .by a
recognized verification entity; and
(3) mels capable of undergoing biological decomposition in a compost site such that
the material breaks down into carbon dioxide, water, inorganic compounds, and
biomass at a rate consistent with known compostable materials.
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Solicit means any direct person-to-person verbal communication designed proposing a
commercial transaction by inducing, suggesting, or persuading to induce a pedestrian on--tie
- - . ^• - " e- - -- to stop and patronize the sidewalk café.
Specials board means a board allowing for the posting of a restaurant's daily food and/or
drink specials.
Street means that portion of a right-of-way improved, designed or ordinarily used for
vehicular traffic and/or parking.
Sec. 82-367. Declaration of necessity and intent.
It is hereby found and declared that:
(1) -- - - ' __ ____ _ __ ___ __ - _ _ -•--- (sSidewalk cafes) in certain
designated areas of the city to provide a unique environment, ambiance, and
aesthetically pleasing experience for relaxation and food and/or beverage
consumption.
The operation and maintenance of sidewalk cafes on the City's property (where
designated and allowed) enhance the residents and visitors' experience and enjoyment
of the City's vibrant, tropical and diverse (historic and other recognized commercial and
entertainment) districts/neighborhoods.
(3) The City provides a unique benefit and advantage to private business
establishments/restaurants by permitting the use of the City's property for sidewalk café
operations, at a permit fee rate that has always been substantially below fair market
value for the use of such space.
traffic. It is imperative, however, that sidewalk cafes be operated and maintained in
accordance with the highest levels of service and quality, befitting the status of a
recognized world class, international resort destination like the City of Miami Beach.
(5) The granting of a permit for the operation of a sidewalk café on public property is a
privilege and not a right, and the approval, issuance and continued operation of a
sidewalk café is conditional at all times.
In order to maintain the highest standards of service and quality, There is a need for
there exists a need for regulations and standards for the approval, permitting,
existence and operation,of and maintenance of sidewalk cafes to-facilitate-and-ensure
a safe environment in these ar as.
al The establishment of permit conditions and--and, safety standards, fof criteria, and
conditions for operation and maintenance of sidewalk cafes on the public right of way is
also necessary to protect and promote the general health, safety and welfare of the
residents and visitors of the eCity.
Sec. 82-368. Removal and storage fees; disposition of property.
If, pursuant to this division, the city removes, relocates, and/or stores any sidewalk cafe
furniture, the permittee shall be responsible for the reasonable expenses incurred by the city for
the removal, relocation, and/or storage of all such sidewalk cafe furniture. The city manager
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shall promulgate and review, as needed, regulations regarding the storage and disposition of
sidewalk cafe furniture under this division. The city, and including its officers and employees,
shall not be responsible for any damage to, or loss of, any sidewalk cafe furniture; removed,
relocated and/or stored pursuant to this division.
Sec. 82-369. Appeals from the decision of the city manager.
Appeals from decisions of the city manager made pursuant to this division shall be to the
special master in accordance with the procedures set forth in &Sections 30-72 and 30-73 hereof.
Appeals from the decisions of the special master shall be to a court of competent jurisdiction by
petition for writ of certiorari.
Sec. 82-370. Notice of violation.
(a) Life safety violations and/or sidewalk cafe site plan 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
Violations shall include, without limitation, 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 a site plan by a sidewalk cafe patron(s).
(b) If a code compliance officer finds a violation of this division, such code compliance officer
shall issue a notice of violation to the violator. The notice shall inform the violator of the
nature of the violation, amount of fine for which 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.
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.
(5) 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.
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(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
applisarifipermittee incurred the aforestated violations.
(2) For life safety violations of this division and; site plan violations,
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; or site plan violation, OF
violation of subsection 82 385(v), (w), or (x), has occurred.
(3) For life safety violations of this division, and violations of subscction 82 385(v), (w), or
(x), the city manager shall be authorized to commence proceedings, pursuant to
sSection 102-381 or 102-383 of this Code hereof, 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; OF
violation of subsections 82-389 5(v), (w), or (x), has occurred.
(4) For violations of the Sidewalk Café Code of Conduct, as set forth in Section 82-389,
the city manager shall be authorized to issue an immediate order suspending the
sidewalk café 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 city manager shall also
be authorized to commence proceedings, pursuant to Section 102-381 or 102-383
hereof, to suspend or revoke the sidewalk café operator's business tax receipt. The
issuance of a notice of violation pursuant to this paragraph, or an order suspending the
sidewalk café permit, shall raise a rebuttable presumption that a violation of the
Sidewalk Café Code of Conduct has occurred.
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 cubsSections 82 385(v), (w), and (x) 82-389. 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.
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 subsSection 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.
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(b) The procedures for appeal shall be as set forth in sSections 30-72 and 30-73 hereof.
Applications for hearings must be accompanied by a fee jas approved by a resolution of the
city commission).which shall be refunded if the 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, shall constitute a waiver of the violator's right to
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) 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 date printed on the notice of
violation. The special master shall not have discretion to alter the penalties prescribed in
this article.
fpj 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.
Secs. 82-374-82-380. Reserved.
SUBDIVISION II. Permit
Sec. 82-381. Permitted areas; conditional 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 approval, issuance and continued operation of a sidewalk cafe permit is
subject 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.
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(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. In those 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.
X1)1=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 notice 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 an clic emergency situation as
referenced in subsection (e) hereof 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.
-- --- -- - - --- -- -
- -- - -- --- -- - - --- -- - -
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charge a price that is greater than the price displayed or disclosed for any food or drink
sidewalk cafe must-disclose, to the patron, the price of the unique or specially requested
- - -- - --- -- - - - - -- -
and state the actual amount of this charge on the face of the customer's bill and receipt,
such taxes accurately.
Sec. 82-382. Application.
(a) A sidewalk cafe permit shall be effective for one year, from October 1 until September 30 of
the following year.
(b) An Application for a permit to operate a sidewalk cafe shall include, but not be limited to,
the following infer-mation:
(1) The name, address and telephone number of the applicant/permittee.
(2) The name and address of the business establishment/restaurant seeking a permit to
operate the sidewalk cafe (including the name and address of the restaurant).
(3) A copy of a valid city occupational license to operate the restaurant in front of which the
proposed sidewalk cafe will be operating. The total count of chairs to be utilized for the
restaurant must include the number of chairs used in conjunction with the sidewalk
cafe and the number of chairs inside the restaurant, as authorized by the license.
(4) A copy of a valid certificate of use for the restaurant in front of which the proposed
sidewalk cafe will be operating.
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(5) Copies of current certificates of insurance in the amounts and categories required by
sSection 82-386 hereof.
(6) A site plan signed and sealed by a duly licensed architect or engineer which accurately
depicts the layout and dimensions of the existing sidewalk area and adjacent private
property; proposed location, size and number of tables, chairs, umbrellas, and any
other sidewalk cafe furniture; and location of doorways, steps, trees and/or landscaped
areas, fountains, parking meters, fire hydrants, bus shelters, directory/kiosks, public
benches, trash receptacles, and any other existing public fixtures, furnishings and/or
other obstruction(s); within the proposed sidewalk cafe area. The sidewalk cafe site
plan shall be approved by the city manager prior to the issuance of a sidewalk cafe
permit, and the permit shall be specifically limited to the subject area shown on the
approved site plan.
(i) Notwithstanding the site plan requirement in subsection (b)(6), and only as
applicable to the operation of sidewalk cafes located in the area north of 63rd
Street and south of the city limits on 87th Terrace, through and including
September 30, 2020, a sidewalk cafe; having no more than two tables and eight
chairs, may satisfy the requirement of subsection (b)(6) by applying for and
obtaining a site plan designed by the public works department for a fee of$250.00.
A sidewalk cafe permit applicant may only be eligible to apply for a site plan
pursuant to this subsection (b)(6)(i) if the operation of the proposed sidewalk cafe
will result in no net increase to the applicant's total number of restaurant seats.
The provisions of this subsection 82-382(b)(6)(i) shall stand automatically repealed
on September 30, 2020.
(7) Photographs, drawings or manufacturer's brochures fully describing the appearance
and dimensions of all proposed tables, chairs, umbrellas, and any other sidewalk cafe
furniture related to the operation of the sidewalk cafe. Tables, chairs, umbrellas, and
any and all other sidewalk cafe furniture shall be approved by the city manager prior to
the issuance of a sidewalk cafe permit.
(8) A copy of the approved sidewalk cafe site plan, shall be maintained on the perfaittee4
premises of the business establishment/restaurant with the sidewalk café permit, and
shall be available for inspection by city personnel at all times.
(9) The annual application shall be accompanied by a non-refundable base application fee
as set forth in appendix A hereof. However
tThe non-refundable base application fee shall not be required for sidewalk cafe
permit applications submitted to the city in conjunction with the Washington
Avenue Pilot Parklet Program, which program shall terminate on March 31, 2019.
fiq Additionally, the non-refundable base application fee shall not be required for
sidewalk cafe permit applications submitted to the city for businesses on
Washington Avenue from 6th Street to Lincoln Road, for the period ending on
September 30, 2019.
(10)Applications shall be reviewed for compliance with applicable city, state and federal
laws, and must be reviewed and approved by the city's public works department; fire
department; office of risk management; finance department; planning and zoning
department; and building department.
(11)Prior to issuance of a sidewalk cafe permit, the city's chief financial officer shall certify
that there are no outstanding fines, monies, fees, taxes or other charges owed to the
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city by the applicant/permittee and/or the business establishment/restaurant. A
sidewalk cafe permit will not be issued until all outstanding debts to the city are paid in
full.
(12)No sidewalk cafe permit shall be issued to a restaurant whose occupational license or
certificate of use is limited to take-out service and does not have inside seating.
(13)A sidewalk cafe permit may not be transferred and/or otherwise assigned. A new
owner and/or operator of a restaurant and/or business establishment business
establishment/restaurant with a sidewalk cafe permit will be required to apply for and
obtain a new permit.
(14)The permit covers only the public right-of-way. Tables and chairs on private property
will be governed by other applicable regulations. No outdoor seating authorized
pursuant to this division shall be used for calculating seating requirements pertaining to
location of, applications for, or issuance of, a liquor license; nor shall the outdoor
seating be used as the basis for computing required seating for restaurants, or as
grounds for claiming exemption from such requirements under the provisions of any
applicable city, sCounty, and/or sState law.
(15)Sidewalk cafes shall comply with all applicable accessibility codes including, without
limitation, the Americans with Disabilities Act (ADA), and sState code provisions
addressing accessibility for building construction, as same may be amended from time
to time.
(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 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
and drink menu special(s) (and, 4if 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—safe—operator restaurant 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 manager
prior to each renewal of the operator's sidewalk cafe permit.
(17)An affidavit by the sidewalk café applicant 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, sCounty, and
sState 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,
sCounty, and sState taxes are being included consistent with, and pursuant to, those
requirement(s) set forth in sub:Sections 82-3�a cl-(j) 82-389(b) and (c).
- - --- - e- 0 - - -- • Those applicants for a sidewalk café permit
12
(or renewal of a sidewalk café permit) on Ocean Drive, between 5th Street and 15th
Street, must submit an affidavit '• _ _ •- _ __ e . -_ _ . -- - __ - certifying that:
(i) Every manager and every employee assigned to work in the sidewalk cafe permit
area has successfully completed a hospitality training program that has been
previously approved by resolution of the mayor and city commission;
(ii) Within one year of completing such program and each year thereafter, every
manager and every employee assigned to work in the sidewalk cafe permit area
shall complete an abbreviated version of the same hospitality training program;
and
(iii) Any newly hired manager or employee assigned to work in the sidewalk cafe
permit area must successfully complete such a hospitality training program.
(19)A fully executed, original Sidewalk Café Code of Conduct Affidavit, which shall be
signed (and duly notarized under oath by a licensed Florida notary) by an individual
who is legally authorized and empowered to contractually bind the sidewalk café
permittee and the business establishment/restaurant operating the sidewalk café.
Such Affidavit will acknowledge that the sidewalk café permittee has agreed to be
bound by the Sidewalk Café Code of Conduct, as set forth in Section 82-389, including
the enhanced penalties for violation of same, as set forth in Section 82-371(b) herein.
(c) Renewals. As provided in cubsSection 82-371(b), 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 the following two consecutive permit
years.
Sec. 82-383. Permit fee; penalties for late payment; review of fee; exception.
(a) The annual permit fee for operation of a sidewalk cafe shall be as set forth in appendix A
hereof, and shall be based on a per square foot calculation of permitted sidewalk area
(including the area between the tables and chairs).
(1) - - - - - • - -- e.. - - - - - - - - - - - - -, iNo square footage
fee as required by this section shall be required for the operation of sidewalk cafes
north of 63rd Street, through and including September 30, 2019. The abatement of
sidewalk cafe square footage fees for businesses north of 63rd Street shall be the
subject of a budget analysis and review by the city administration by September 30,
2019. However, a permit must be obtained and the annual base application fee
required by subsection 82-382(b)(9) shall be paid for the operation of sidewalk cafes
north of 63rd Street.
(2) No square footage fee as required by this section shall be required for the operation of
sidewalk cafes in conjunction with the Washington Avenue Pilot Parklet Program,
which program shall terminate on March 31, 2019. Additionally, no square footage fee
as required by this section shall be required for the operation of sidewalk cafes on
Washington Avenue, from 5th Street to Lincoln Road, for the period ending on
September 30, 2019.
(3) No square footage fee as required by this section shall be required for the operation of
Ssidewalk cafes that contain up to 30 seats within the Collins Park Arts District
Overlay, as defined in sSection 142-584 hereof - - - -• - - . -- - -- - -- - -
fee identified herein.
13
(b) The city manager, in his reasonable discretion and judgment, may suspend or prorate the
annual permit fee in cases of public construction or public emergency situations.
(c) 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 (permit year). No permit
shall be issued for any portion of a year, but any person/entity operating a sidewalk cafe for
a period beginning after the commencement date of the full permit year (October 1) may
obtain a permit for the remaining portion of that permit year upon payment of a pro-rated
portion of the permit fee calculated from the first day of the month of issuance of the permit
to the end of the permit year. Except as expressly provided in this division, no refund of the
permit fee shall be granted.
(d) Late payments for permit fees shall accrue at the rate of ten percent per annum for the first
30 days. If the permit fee is not paid within 60 days after it is due, the permit shall terminate
automatically. Any continued operation of a sidewalk cafe after termination of a permit shall
be construed as operating a sidewalk cafe without a valid permit, and the city manager shall
have the right to remove, upon 24 hours' written and/or verbal notice to the permittee, any
and all sidewalk cafe furniture used in connection with the sidewalk cafe.
(e) The City Commission may A review of the annual permit fee .all be required whenever the
change in the Consumer Price Index (CPI), between the latest CPI and the date of the CPI
used for the last fee adjustment, is one and one-half percent or greater.
Sec. 82-384. Permitted sidewalk cafe frontage; requests for expansions.
(a) Sidewalk cafes are restricted to the sidewalk frontage of the restaurant to which the permit
is issued or, if the restaurant is an ancillary and/or secondary use to another type of
business establishment, the sidewalk cafe shall be restricted to the sidewalk frontage of the
building (or portion thereof) of the "primary" business establishment (within which the
restaurant is located). Only a restaurant whose premises are on a ground floor adjacent to
and fronting the sidewalk may be issued a sidewalk cafe permit. Sidewalks cafes-may be
extended into a loading zone fronting a restaurant as provided in subsection (d) below.
(b) An applicant for a sidewalk cafe permit may be permitted, upon prior written request by the
permittee to the city manager, to extend by a maximum total of 50 feet in the right-of-way
on one side and/or the other side of the restaurant to which the permit is issued (of the
business establishment where the restaurant is located); the permittee shall make written
application to the city manager setting forth the reason(s) for the proposed expansion and
provide a site plan showing the proposed expansion. All requests for expansions pursuant
to this subsection (b) shall be reviewed by the city manager on a case by case basis. In
reviewing such requests, the city manager, in making his determination to approve or deny,
shall consider the following:
(1) Pedestrian access.
(2) Visibility of the front of the adjacent owner's business.
(3) Obstructions.
(4) Accessibility to the adjacent owner's business by patrons.
(5) The city manager, shall solicit input from businesses and property owners on the same
block including, without limitation, the immediately adjacent (i.e., next door) business
and property owners.
(6) The city manager shall provide written notice to the adjacent business establishment
(tenant) and property owner on to whose frontage the sidewalk cafe proposes to
14
expand. The notification shall include the following information: the name and address
of the permittee/business establishment requesting the expansion; the approximate
location and size of the area requested; and the name and address of the city official
and/or employee to forward comments to, and the time period within which to forward
said comments (which time period shall be no less than 14 days). Said notice shall be
sent, as to the adjacent business establishment (tenant), to the name and address on
file with the city for the establishment's occupational license and, for the property
owner, to the name and address identified in the records of the Miami-Dade County
Property Tax Appraiser's Officer. Any objections not submitted and received by the city
within the date provided in the notice shall be deemed waived.
(7) The city manager may also consider any history of violations and/or warnings pursuant
to sSection 82-371.
In the event of approval by the city manager to expand a sidewalk cafe pursuant to this
subsection (b), the additional square footage will be computed into the new permit fee.
Notwithstanding the city manager's approval of a sidewalk cafe expansion pursuant to this
subsection (b), in the event that the adjacent business establishment and/or property owner (on
to which a sidewalk cafe has expanded) subsequently elects to apply for a sidewalk cafe permit
to operate a cafe in front of its premises, that new applicant/permittee shall provide the city
manager with notice of such intent stating the applicant's name; the property address; the name
of the business establishment and/or the restaurant (of which the cafe is a part of); and the
anticipated opening date. The city will provide the business establishment (tenant) and property
owner which is currently expanding into the proposed new applicant/permittee's frontage with a
courtesy copy of the notice. Following receipt of said written notice by the city, and provided that
the new applicant/permittee obtains a sidewalk cafe permit, as well as any other required
permits and/or licenses for operation of the business establishment and/or restaurant
associated with the proposed new sidewalk cafe, ,then the city manager's prior consent for
expansion shall terminate, and the city shall provide written notice to the adjacent sidewalk cafe
permittee advising it of such termination, and providing a termination date therefore. The city's
notice shall provide the adjacent property owner with at least seven calendar days',notice prior
to the effective date of termination of the expansion. Upon the termination date of the city's
consent to expansion, the sidewalk cafe permit and the permit fee will be adjusted accordingly.
(c) In the case of sidewalk cafes on Lincoln Road, an expansion of a sidewalk cafe across the
centerline of Lincoln Road Mall may also be permitted. The permittee shall make written
application to the city manager setting forth the reason for the proposed expansion and
provide a site plan showing the proposed expansion. Requests for expansions pursuant to
this subsection (c) shall be reviewed by the city manager on a case by case basis. In
reviewing such requests, the city manager shall consider the following:
(1) The applicant/permittee would otherwise be significantly deprived of the use of the
right-of-way for which the sidewalk cafe permit is sought;
(2) There are special circumstances and conditions that exist, which were not self-created
by the applicant/permittee, and are peculiar to that portion of the right-of-way, and are
not generally applicable to other rights-of-way in the immediate area;
(3) The granting of the expansion is the minimum that will allow the applicant/permittee's
reasonable use of the area for its sidewalk cafe operations; and
15
(4) The granting of the expansion will not significantly impair the ability of pedestrians on
that particular portion of Lincoln Road Mall to walk comfortably from one side of the
mall to the other.
In the event of approval by the city manager to expand a sidewalk cafe pursuant to this
subsection (c), the additional square footage will be computed into the new permit fee.
(d) Loading zones in front of a ground floor restaurant use with sidewalk frontage and a
sidewalk cafe permit may be used as part of an expanded sidewalk cafe permit area when
the street on which the loading zone is located is closed to traffic, provided that the loading
zone is within a street area that is regularly closed to traffic during certain days or hours, a
minimum of five days each week. All platforms, tables and chairs in the loading zone shall
be removed at the close of business each night. A permit modification will be required
before use of a loading zone may commence, subject to suspension or revocation at the
discretion of the public works director. The fee for the temporary expanded sidewalk cafe
permit area shall be as provided in sSection 82-383 hereof,of the-G Cede.
Sec. 82-385. Minimum standards, criteria, and conditions for operation of sidewalk cafes.
(a) The permittee shall take any and all actions to assure that its use of the public right-of-way
in no way interferes with e- - - -- -- ••- -- - , e pedestrians utilizing the right-
of-way and in no way limits their free, unobstructed passage thereto.
(b) Sidewalk cafes shall be located in such a manner that a distance of not less than five feet is
maintained at all times as a clear and unobstructed five-foot pedestrian path around public
amenities and areas such as, by way of example, fountains, landscaped areas (excluding
city planters), and seating/shade structures. A five-foot pedestrian path shall also be
required and established where the city manager, in his reasonable judgment and
discretion, determines that the operation of a sidewalk cafe inhibits pedestrian access to an
adjacent business establishment or adversely affects the visibility of an adjacent storefront.
Notwithstanding the preceding, the city manager, in his reasonable judgment and
discretion, and on a case-by-case basis, may approve and allow for a pedestrian path of
less than five feet where an applicant/permittee's sidewalk cafe operation would be
significantly impacted. In considering such cases, and in determining whether an
applicant/permittee is "significantly impacted," the city manager may apply the criteria set
forth in eubsSections 82-384(c)(1)—(4) herein. k - - - ---- - -- - - - - --
required and established where the city manager, in his reasonable judgment and
(c) No tables, chairs, umbrellas, or other sidewalk cafe furniture shall be permitted within ten
feet of a bus bench and/or bus shelter. A distance of five feet shall be maintained from taxi
stands, fire hydrants, bike racks, directory signage/kiosks, and/or other similar public street
furniture and/or fixtures.
(d) No tables, chairs, umbrellas or other sidewalk cafe furniture shall be permitted within five
feet of an alley, pedestrian crosswalk, or corner curb cut.
(e) The pedestrian path for Lincoln Road shall be a 12-foot clear path for emergency and
maintenance vehicles. The exact location of the path on each block shall be determined by
the city manager, in his reasonable judgment and discretion, and shall be incorporated into
the sidewalk cafe site map of Lincoln Road.
(f) 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
16.
of the tables and chairs by the public; or, (in the case of Lincoln Road),which would have
the effect of obstructing the pedestrian path or public access between the north and south
sides of Lincoln Road.
(g) The area covered by a sidewalk cafe permit, and the sidewalk and street immediately
adjacent to it, shall be maintained in a clean, neat and orderly appearance at all times by
the permittee. The area of the sidewalk, curb and gutter immediately adjacent to the
sidewalk cafe shall be cleared of all debris during hours of operation, and again at the close
of each business day, or as may otherwise be determined by the city manager. The
permittee shall be responsible for pressure cleaning the floor surface on which the sidewalk
cafe is located at the close of each business day. The city shall pressure wash the right-of-
way from time to time in accordance with such schedule as shall be established in the
reasonable judgment and discretion of the city manager. In establishing said schedule, the
city manager shall use reasonable efforts to assure that the city's pressure cleaning of the
public right-of-way occurs at such times as will cause the least disruption to sidewalk cafe
operations.
(h) Tables, chairs, umbrellas, and any other sidewalk cafe furniture shall be maintained in a
clean, attractive, and orderly appearance, and shall be maintained and kept in good repair
at all times.
(i) All sidewalk cafe furniture shall be of high quality, design, materials, and workmanship so
as to ensure the safety,comfort, and convenience of the public.
(j) Only the sidewalk cafe furniture specifically shown on the approved sidewalk cafe site plan
shall be allowed in the permit area.
(k) (1-) All tables, chairs, umbrellas, and any other sidewalk cafe furniture shall be readily
removable, and shall not be physically attached, chained, or in any other manner affixed to
any public structure, street furniture, signage, and/or other public fixture, or to a curb and/or
public right-of-way.
(1) )Notwithstanding the provisions of subsection (k)(1-)above, on the west sidewalk on
Ocean Drive, between 5th Street and 15th Street, umbrellas may be affixed to the
sidewalk with an in-ground mount system that is flush with the sidewalk or with a bolted
metal plate not to exceed nine inches by nine inches in size. A detailed engineering
design, and a structural analysis of either the mount system or metal plate, shall be
submitted to the department of public works for review and approval. If permitted, such
mount system or metal plate must be easily removable (as determined by the city) to
provide a smooth ADA-compatible surface when the mount system or metal plate is
removed. In the event that a oaf sidewalk cafe is no longer a permitted use, the
umbrellas and entire mount system or metal plates shall be removed and a standard
concrete sidewalk shall be re-installed, subject to the review and approval of the
department of public works.
(I) The stacking or piling up of chairs shall be prohibited on the right-of-way.
Notwithstandinq subsection (I), Oon Lincoln Road Mall, tables, chairs and closed-up
umbrellas may only remain on the right-of-way (within the permit area) as long as they
are placed in an orderly manner. Notwithstanding the foregoing eOn Lincoln Road
Mall tables, chairs and closed-up umbrellas may remain on the right-of-way as long as
80 percent of the restaurants on Lincoln Road Mall are open for lunch beginning at
11:00 a.m. The city will make this determination on two separate times during each
permit year. The first determination shall be made on October 1, with the second
determination being made on April 1 of each year. The phrase "open for lunch" shall
17
be defined by the serving of meals to patrons during the lunch hour. If the city
determines that less than 80 percent of the restaurants on Lincoln Road Mall are open
for lunch on either October 1 or April 1 of a permit year, then the following regulation
shall apply to all restaurants on Lincoln Road Mall.
fElAny and all other sidewalk cafe furniture including,without limitation, rolling service
stations, service carts, and bussing stations, may only be maintained in the permit
area during hours of operation, provided however, that planters that cannot be readily
removed may remain within the permit area subject to the provisions of subsection (s)
hereof. On Lincoln Road Mall, rolling service stations, service carts, and bussing
stations shall not be permitted to be placed within five feet of the walls, columns, or
posts of the Lapidus structures, city planters, or in front of other storefronts and/or
business establishments.
Notwithstanding anything contained in this subsection (I), the city manager may require a
permittee to store its tables, chairs and/or umbrellas off of the right-of-way if, in his reasonable
judgment and discretion, the city manager determines that the sidewalk café permit area and
immediately adjacent public right-of-way are not being adequately maintained in accordance
with this division.
(m) No storage of dishes, silverware, or other similar sidewalk cafe equipment shall be allowed
in the permit area, or in any other portion of the public right-of-way, or outside the structural •
confines of the building in which the restaurant is located, during non-business hours.
permitted as a special event issued by the city's specified pedal-events office. Conditions
events officc, and these may vary during the year.
(en)One menu board shall be permitted, per sidewalk cafe, for every 50 feet of frontage. No
food or drink special(s) may be displayed, disclosed, or posted on any menu board or
sandwich board sign. Specials board(s) are prohibited in all sidewalk café permit areas and
any other portion of the public rights-of-way.
(1) Exception. As applicable only to those sidewalk cafés located north of 631d Street, the
provision in subsection (en) that pertains to the prohibition on Specials board(s) in
sidewalk café permit areas and public rights-of-way shall not take effect until July 27,
2020.
(p) No food preparation, food storage, expanded polystyrene food service articles, single-use
plastic beverage straws, single-use plastic stirrers, refrigeration apparatus or equipment, or
fire apparatus or equipment, shall be allowed on the right of way. In addition, expanded
stirrers shall not be provided to sidewalk cafe patrons.
(1)ffiException. The provisions in subsection (p) that pertain to single use plastic beverage
single use plastic stirrer.
(q(2) - --- - - - - e- e- •- • -- - -- -- - •- •- - - . No advertising signs or other
commercial signage shall be permitted on the public right-of-
18
way except that the restaurant name and/or its logo may be permitted on umbrellas but
such logos and/or lettering may not exceed six inches in height.
(fp) {}Umbrellas shall be fire-retardant, pressure-treated or manufactured of fire-resistant
material. No portion of an umbrella shall be less than six feet eight inches above the right-
of-way. Two or more umbrellas may not be clipped, zipped or otherwise fastened together
in order to form a tent-like structure. Clear plastics or other materials may not be fastened,
rolled or otherwise be attached to umbrella edges in order to create an enclosure.
{ Notwithstanding the provisions of subsection (r)(1)1p), and subject to planning
department review and approval, the following provisions shall apply to sidewalk cafes
located on the west sidewalk on Ocean Drive,. between 5th Street and 15th Street:
a. A maximum of three umbrellas may be zipped together;
b. Rain gutters may be installed between zipped umbrellas; and
c. Colorless and transparent roll-down tarps may be permitted to be attached to
umbrellas, provided that the tarps are only utilized during periods of strong wind or
rainfall. Within one hour of the cessation of such wind and/or rainfall, the roll-down
tarp shall be removed from the umbrella/awning system and stored on private
property.
(eg) The city manager may permit the use of planters manufactured of terra-cotta or polymer
materials, with the number and size to be reviewed at time of application. Placement of
planters within sidewalk cafe areas shall be five feet apart or greater. It shall be the
permittee's responsibility to immediately remove planters, upon written and/or verbal notice
from the city manager, in case of emergency or other circumstances., as provided in this
division. Maximum size of planters shall not exceed the following:
(1) Rectangular planters: 30 inches long, by 15 inches wide by 20 inches high.
(2) Round planters: 24 inches diameter by 24 inches high.
(3) Planters 20 inches or higher shall be on rollers or on rolling bases.
(4) The combination of planters and plant height should not exceed a table height of 34
inches.
Plants shall be properly maintained. Distressed plants shall be promptly replaced. Plant
fertilizers which contain material that can stain the sidewalks shall not be allowed. Water
drainage from any plants onto the sidewalk shall not be allowed. Potted plants shall have
saucers or other suitable systems to retain seepage.
(tr) Permittees may make written request to the city manager to use city electricity for powering
floor fans during the summer months. Summer months are defined as the period beginning
on May 1, and ending on September 30. The city manager will make electrical outlets
operable upon payment of a flat fee, which fee shall be determined, and may be adjusted
from time to time, in the reasonable judgment and discretion of the city manager, for each
of the calendar days during the summer months. City electrical outlets will be restricted to
powering floor fans only. Using the electrical outlets for powering lights, menu board
lighting, and any other electrical device is strictly prohibited. Permittees violating this
restriction will have the electrical boxes deactivated and forfeit any monies paid for
electrical use. Fans must be UL approved for outdoor use. Extension cords are not allowed.
(us) No permit shall be granted on Lincoln Road in an area designated in the sidewalk cafe site
map as restricted for special and cultural events; provided however, that the city manager
19
may approve temporary use of such area(s), on a case by case basis, and only for a
defined, limited period of time.
(v) A sidewalk cafe shall be prehilaited-fremsentinuing—its operation until such time that it
menu special{s), consistent with those requirements set forth in section 82 381(h) and 82
- - -- - --- -- - - - - -- -
corkage fee, set up fee, sharing fee or charge, or other similar charge, either in the price of
city's property. The notification must be consistent with those requirements set forth in
sections 82 381(i) and 82 382(b)(17).
{1) Gratuities or tips;
{2) Service charges, minimum charges, corkage fees, set up fees, sharing fees or
charges, or similar charges; or
of the customer's bill and receipt;
those requirements set forth in subsections 82381(i) and 82 382(b)(17).
(y) As applicable to sSidewalk cafe permittees on Ocean Drive between 5th Street and 15th
such program and each year thereafter, every manager and every employee assigned to
82 382(b)(18).
Sec. 82-386. Indemnification and insurance.
(a) 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 the permit or the permittee's activity on the public right-of-way.
20
(b) The permittee agrees to meet and maintain for the entire permit period, at its own expense,
the following requirements:
(1) Commercial general liability insurance, in the amount of $1,000,000.00 per occurrence
for bodily injury and property damage. The sity City of Miami Beach, Florida, must be
named as an additional insured on this policy, and an endorsement must be issued as
part of the policy reflecting compliance with this requirement.
(2) For sidewalk cafes which serve alcoholic beverages, liquor liability insurance, in the
amount of $1,000,000.00 per occurrence for bodily injury and property damage. The
sity City of Miami Beach, Florida, must be named as an additional insured on this
policy, and an endorsement must be issued as part of the policy reflecting compliance
with this requirement.
(3) Workers' compensation and employers' liability as required by the sState of Florida.
(c) All policies must be issued by companies authorized to do business in the state and rated
B+:VI or better per Best's Key Rating Guide, latest edition.
(d) The city must receive 30 days' written notice prior to any cancellation, non-renewal or
material change in the coverage provided.
(e) The permittee must provide and have approved by the city an original certificate of
insurance as evidence that the requirements set forth in this section have been met prior to
commencing operations.
(f) Failure to comply with these requirements at any time shall be deemed to be operating
shall cause an immediate suspension or revocation of the permit.
Sec. 82-387. Prohibited "no table" zones.
(a) There shall be no sidewalk cafes permitted and/or placed within a section of the 1100 block
of Lincoln Road. Mall, between Lenox Avenue and Alton Road; said section as more
specifically defined by the following description:
Land description:
A portion of Lincoln Road lying between Alton Road and Lenox Avenue, as shown on
"Commercial Subdivision," according to the plat thereof, as recorded in Plat Book 6, at
Page 5 of the Public Records of Miami-Dade County, Florida, being more particularly
described as follows:
Commence at the southwest corner of Lot 6, Block 39 of said "Commercial
Subdivision;" thence south 89'08;deg;55" west along the south line of Block 39 of
said "Commercial Subdivision," a distance of 11.20 feet; thence south
00'51;deg;05" east, a distance of 25.00 feet to the point of beginning; thence
continue south 00'51;deg;05" east, a distance of 50.00 feet; thence south
89'08;deg;55" west along a line 25.00 feet north and parallel with the south right-
of-way line of said Lincoln Road, a distance of 190.08 feet; thence north
00'S1;deg;05 west, a distance of 50.00 feet; thence north 89'08;deg;55" east along
a line 25.00 feet south and parallel with the north right-of-way line of said Lincoln
Road, a distance of 190.08 feet to the point of beginning.
Said land situate, lying and being in the City of Miami Beach, Miami/Dade County,
Florida; containing 9,504 square feet; more or less.
21
(b) There shall be no personalty {property} or equipment relating to the operation of a
restaurant, including, without limitation, sidewalk cafe furniture, garbage receptacles,
storage containers, back-of-house operation, equipment or supplies, or any other similar
item permitted and/or placed within the improved section of Euclid Avenue, between Lincoln
Road and Lincoln Lane South, which section is more particularly described as follows:
Land description:
A portion of Euclid Avenue right-of-way as shown on the plat of "Second Commercial
Subdivision of the Alton Beach Realty Company", according to the plat thereof, as
recorded in Book 6, at Page 33, and the plat of "Lincoln Subdivision" according to the
plat thereof, as recorded in Plat Book 9, at Page 69, both recorded in Public Records of
Miami-Dade County, Florida; bounded on the north by the extension of the south right-
of-way line of Lincoln Road; bounded on the south by the extension of the north right-
of-way line of Lincoln Lane South; bounded on the east by the east right-of-way line of
Euclid Avenue and bounded on the west by the west right-of-way line of Euclid
Avenue, less the northerly 30 feet.
Said land situate, lying and being the City of Miami Beach, Miami-Dade County,
Florida; containing 8,400 square feet, more or less.
Sec. 82-388. Hours of sale of alcoholic beverages; exceptions; enforcement.
(a) Alcoholic beverages shall not be offered for sale or consumption at sidewalk cafes between
the hours of 1:30 a.m. and 8:00 a.m., and shall not be consumed at sidewalk cafes between
the hours of 2:00 a.m. and 8:00 a.m. Compliance with this section shall be a condition of
maintaining a sidewalk cafe permit.
(b) Notwithstanding subsection (a), alcoholic beverages may be offered for sale or
consumption and may be consumed at sidewalk cafes located on Ocean Drive, between
5th Street and 15th Street, at such additional times as provided in &Section 6-3 of this
Code.
(c) A violation of this section shall be enforced and penalties shall be imposed in accordance
with &Section 6-3(8) of this Code.
Secs. 82-389. Sidewalk Café Code of Conduct
Sidewalk café permittees must comply with those requirements set forth below in the
Sidewalk Café Code of Conduct, which is supplemental to, and in addition to, all other
standards, criteria and conditions herein regulating sidewalk cafes, and is not intended to
amend, repeal or replace any other provision of Chapter 82, Article IV, Division 5. A
sidewalk café operator that fails to comply with any provision(s) of the Sidewalk Café Code
of Conduct, as set forth herein, may be prohibited from operating pursuant to those
enhanced penalties identified within subsection 82-371(b).
La A sidewalk cafe must display or disclose, in writing, actual prices for food and drink
menu item(s), and 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
22
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.
021 A sidewalk cafe that automatically includes a gratuity, 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, must display the actual
amount of each such gratuity, charge, and fee on the menu and on the face of the
customer's bill. This disclosure serves to provide the customer notification that an
automatic gratuity, charge, and/or fee is being included by the sidewalk cafe operator.
The disclosure of each gratuity, charge, and fee 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.
Lgl A sidewalk cafe 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 dafe 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.
d There shall be no live entertainment or speakers placed in the sidewalk café permit area
unless expressly permitted as a special event issued by the city's events office.
ke No food preparation, food storage, expanded polystyrene food service articles, single-
use plastic beverage straws, single-use plastic stirrers, refrigeration apparatus or
equipment, or fire apparatus or equipment, shall be allowed on the right-of-way. In
addition, expanded polystyrene food service articles, single-use plastic beverage straws,
and single-use plastic stirrers shall not be provided to sidewalk cafe patrons.
23
(1) #Exception. The provisions in this subsection shall not restrict a sidewalk cafe
operator from providing a beverage with, or offering the use of, a single-use plastic
beverage straw or single-use plastic stirrer to an individual with a disability or
medical condition that impairs the consumption of beverages without a single-use
plastic beverage straw or single-use plastic stirrer.
kf Single-use carry out plastic bags shall not be allowed in the right-of-way and shall not be
provided to sidewalk café patrons.
L No food display(s) shall be permitted on the public right-of-way, nor shall any food and/or
beverage display(s) be maintained within the restaurant/business establishment's
premises in such a way that the placement of such display(s) is/are clearly visible from
the sidewalk café permit area and/or the public right-of-way.
211 Except as provided in Subsection 82-385(n)(1), specials board(s) shall be prohibited in
all sidewalk café permit areas and any other portion of the public right-of-way, and no
food or drink special(s) may be displayed. disclosed. or posted on any menu board or
sandwich board sign. pursuant to Section 82-385(n). Nor shall any food or drink
specials) be displayed. disclosed or posted within the restaurant/business
establishment's premises in such a way that the placement of such display. disclosure.
or posting is clearly visible from the sidewalk café permit area and/or the public right-of-
way.
As applicable-to sSidewalk café permittees on Ocean Drive, between 5th Street and
15th Street, including every manager and every employee assigned to work in the
sidewalk cafe permit area, must successfully complete a hospitality training program that
has been previously approved by resolution of the mayor and city commission. Within
one year of completing such program, and each year thereafter, every manager and
every employee assigned to work in the sidewalk cafe permit area shall complete an
abbreviated version of the same hospitality training program. Sidewalk cafe permittees
shall:
in Maintain records on premises evidencing compliance with this subsection ge, and
21 Submit to the city manager, on an annual basis, the affidavit specified in suboSection
82-382(b)(18).
ki4Sidewalk café operators located on Ocean Drive, between 5th Street and 15th Street,
shall not:
01 Solicit any pedestrian(s) located on the sidewalk abutting the sidewalk café permit
area, or on the right of way within twenty (20) feet of the outer perimeter of the
sidewalk café permit area, for the purpose of inducing such pedestrian to patronize
any business establishment or sidewalk café, or purchase any food, beverage, o€
product, or service, unless the pedestrian first affirmatively communicates a desire to
receive information about the sidewalk cafe's food, beverages, products, or services;
24
,(21 Distribute any commercial handbill(s) to any pedestrian(s) located on the sidewalk
abutting the sidewalk café permit area, or on the right of way within twenty (20) feet
of the outer perimeter of the sidewalk café permit area, unless the pedestrian first
affirmatively communicates a desire to receive information about the sidewalk café's
food, beverages, products, or services; and/or
al Hold or display any commercial handbill(s) in such a way that impedes, hinders,
delays, or obstructs any pedestrian's(e) gait or path of travel.
Secs. 82-390—82-410. Reserved.
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 o11 day of SPPr-m 6 "( , 2019.
PASSED AND ADOPTED this /1 day of Sei Pvnb 2019.
,/,,,1"1° Ft',
ATTEST.
Rif
Dan Gelber, Mayor
14 119
Rafael E. Granado, ity Clerk
J
Underline denotes additions
Str-ikeflafetigla.denotes deletions
Double underline denotes additions after First Reading
denotes deletions after First Reading
,,,:,;\r,----,-..,,,--::>,. APPROVED AS TO
(Sponsored by Mayor Dan Gelber) v.1` - FORM & LANGUAGE
c V:,•..• • � ,\ & 0 XE UTION
, ...' V .• 0 \
tL((CI
r . City Attorney Date
:INCORP ORATED:
25
s
4 �� ••.........•••ACJ .
'hi 26 .
Ordinances- R5 D
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: September 11, 2019
10:20 a.m. Second Reading Public Hearing
SUBJECT:AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING PORTIONS OF THE CITY'S
SIDEWALK CAFE ORDINANCE, AS CODIFIED IN SECTIONS 82-366
THROUGH 82-388 OF THE CITY CODE; SUCH AMENDMENTS
PROVIDING, IN PART, FOR THE CREATION OF A NEW SECTION, 82-389,
ENTITLED "SIDEWALK CAFÉ CODE OF CONDUCT," WHICH SECTION
CONTAINS CERTAIN TERMS AND CONDITIONS FOR COMPLIANCE
WITH A SIDEWALK CAFE PERMIT THAT WOULD BE SUBJECT TO
ENHANCED PENALTIES FOR VIOLATION, (WHICH PENALTIES ARE SET
FORTH IN SECTION 82-371(B)); FURTHER AMENDING THE SIDEWALK
CAFE PERMIT APPLICATION REQUIREMENTS BY REQUIRING
PERMITTEES TO EXECUTE AN AFFIDAVIT EVIDENCING RECEIPT OF
THE CODE OF CONDUCT, AND PERMITTEES' AGREEMENT TO BE
BOUND BY SAME; AND PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION,AND AN EFFECTIVE DATE.
CONCLUSION
The Administration recommends, upon second reading and public hearing, the adoption of the
ordinance by the City Commission.
Legislative Tracking
Office of the City Manager
Sponsor
Mayor Dan Gelber
ATTACHMENTS:
Description
❑ 2nd Reading Memo
❑ 2nd Reading Reso
❑ Code Of Conduct Affidavit
❑ Below Market Declaration •
Page 534 of 2228
D 7.23.19 Commission Meeting
Page 535 of 2228
. . . _
, 4
MIAMI BEACH
City of Miami Beach, '700 Convention Center Drive, Miami Beach,Florida 33'39,www,m'omibeochiigov
COMMISSION MEMORANDUM
TO: Mayor Dan Gelber
Members of the City Commission Second Reading
Jimmy L. Morales, City Manager
FROM: Raul J. Aguila, City Attorney pig,t( Cg
,
DATE: September 11, 2019
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING PORTIONS OF THE
CITY'S SIDEWALK CAFE ORDINANCE, AS CODIFIED IN SECTIONS
82-366 THROUGH 82-388 OF THE CITY CODE; SUCH AMENDMENTS
PROVIDING, IN PART, FOR THE CREATION OF A NEW SECTION, 82-
389, ENTITLED "SIDEWALK CAFE CODE OF CONDUCT," WHICH
SECTION CONTAINS CERTAIN TERMS AND CONDITIONS FOR
COMPLIANCE WITH A SIDEWALK CAFE PERMIT THAT WOULD BE
SUBJECT TO ENHANCED PENALTIES FOR VIOLATION, (WHICH
PENALTIES ARE SET FORTH IN SECTION 82-371(b)); FURTHER
AMENDING THE SIDEWALK CAFE PERMIT APPLICATION
REQUIREMENTS BY REQUIRING PERMITTEES TO EXECUTE AN
AFFIDAVIT EVIDENCING RECEIPT OF THE CODE OF CONDUCT, AND
PERMITTEES' AGREEMENT TO BE BOUND BY SAME; AND
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND
AN EFFECTIVE DATE.
On July 17, 2019, the City Commission adopted the above-referenced Ordinance (the
"Ordinance"), which is sponsored by Mayor Dan Gelber, at first reading.
The Ordinance, which proposes certain amendments to the City's sidewalk café
ordinance, as codified in Sections 82-366 through 82-388 of the City Code, includes the
creation of a Sidewalk Café Code of Conduct(as set forth in Section 82-389)which shall
govern those sidewalk cafés operating within the City and ensure that the purposes of the
City's sidewalk café program are advanced, and not diminished, by each sidewalk café
operator.
Additionally, the Ordinance mandates that all applicants for a sidewalk café permit shall
be required to execute an affidavit acknowledging receipt of the Sidewalk Café Code of
Conduct, and agreement to be bound by same, with any violation(s) of the Code of
Page 536 of 2228
Conduct subject to those enhanced penalties set forth in Section 82-371(b) of the City
Code.
Since first reading, the only significant modification to the Ordinance has been the
inclusion of the prohibition on specials boards, as provided in subsection 82-385(n), to
the Sidewalk Café Code of Conduct, as delineated in subsection 82-389(h).
Moreover, in conjunction with its adoption at first reading, the Ordinance was
concomitantly referred to the Neighborhoods and Community Affairs Committee, with
direction that the Committee review the Ordinance and the Sidewalk Café Code of
Conduct between first and second readings.
The Neighborhoods and Community Affairs Committee (the "NCAC.") heard the item at
its July 23, 2019 meeting and, at that time, were provided an abundance of objective
evidence supporting the enactment of the Ordinance. The evidentiary record provided to
the NCAC included, among other record evidence, the following data and information:
(i) Sworn testimony from five (5) Ocean Drive stakeholders;
(ii) Written declarations from various sidewalk cafe stakeholders;
(iii) Investigative reports regarding a "secret shopper" program conducted in July
2019;
(iv) Surveys completed and remitted to the City by Ocean Drive sidewalk café
operators; and
(v) A plethora of online reviews concerning diners' experience(s) after patronizing
various sidewalk cafés in the City.
Upon conclusion of the presentation of the evidentiary record, the NCAC identified the
compelling need to address the fraudulent behavior, solicitation and deceptive business
practices which have plagued sidewalk cafés in the City, in order to restore the unique
dining experience which allows the City's residents and visitors to relax and enjoy the
consumption of food and/or beverage(s) at sidewalk cafés amongst the City's vibrant,
tropical scenery. The NCAC also determined that such unacceptable and substandard
conduct by sidewalk café operators must be strictly regulated, as set forth and specified
within the Sidewalk Café Code of Conduct, to curtail the negative impact that such
behavior has had upon the City, its reputation, and its residents and visitors, and to keep
the City's sidewalks free of visual and physical clutter, and open to, and for the use of,
the public.
As such, the Neighborhoods and Community Affairs Committee unanimously determined
that the Ordinance should proceed forward with a favorable recommendation for review
and approval by the Mayor and City Commission. Accordingly, the Ordinance has been
placed on the September 11, 2019 City Commission meeting agenda, and is
accompanied by this Commission Memorandum, a transcript of the evidentiary record as
presented at the July 23, 2019 NCAC meeting, and the Declaration of John Woodruff,
Chief Financial Officer for the City, which establishes that the City provides the valuable
subsidy of a rate substantially below market value to those sidewalk cafés operating on
Page 537 of 2228
City property pursuant to the City's sidewalk café program.
Therefore, upon consideration at second reading/public hearing, the City Administration
and I recommend that the Mayor and City Commission adopt the Ordinance on second
and final reading.
Page 538 of 2228
•
SIDEWALK CAFÉ CODE OF CONDUCT AFFIDAVIT—OCEAN DRIVE
State of FLORIDA
County of
Before me this day personally appeared who, being duly
affiant
sworn, does hereby state under oath and under penalty of perjury that the following facts are
true:
1. The applicant acknowledges receipt of, and agrees to be bound by, the Sidewalk Café
Code of Conduct, as set forth in Section 82-389 of the City of Miami Beach Code of Laws
and Ordinances. The applicant also acknowledges and agrees that any violation(s) of the
Sidewalk Café Code of Conduct shall be subject to those enhanced penalties for any
violation(s)of same, as specified in Section 82-371(b)of the City Code.
2. The applicant hereby certifies as follows:
(i) Every manager and every employee assigned to work in the sidewalk cafe permit
area has successfully completed a hospitality training program that has been
previously approved by Resolution of the Mayor and City Commission; and
(ii) Within one (1) year of completing such program and each year thereafter, every
manager and every employee assigned to work in the sidewalk cafe permit area
shall complete an abbreviated version of the same hospitality training program; and
(iii) Any newly hired manager or employee assigned to work in the sidewalk cafe permit
area must successfully complete such a hospitality training program.
The applicant shall maintain records on premises evidencing compliance with this
paragraph(2), and shall submit a newly executed copy of this Affidavit to the City Manager,
or his designee, on an annual basis.
signature of affiant
Sworn to (or affirmed) and subscribed before me this day of , 20 , by
who ❑ is personally known to me or C produced a
as identification.
notary public signature
notary public printed name
Page 564 of 2228
•
SIDEWALK CAFÉ CODE OF CONDUCT AFFIDAVIT
State of FLORIDA
County of
Before me this day personally appeared who, being duly
affiant
sworn, does hereby state under oath and under penalty of perjury that the following facts are
true:
1. The applicant acknowledges receipt of, and agrees to be bound by, the Sidewalk Café
Code of Conduct, as set forth in Section 82-389 of the City of Miami Beach Code of Laws
and Ordinances. The applicant also acknowledges and agrees that any violation(s) of the
Sidewalk Café Code of Conduct shall be subject to those enhanced penalties for any
violation(s) of same, as specified in Section 82-371(b) of the City Code.
2. The applicant hereby certifies that the applicant shall submit a newly executed copy of this
Affidavit to the City Manager, or his designee, on an annual basis.
signature of affiant
Sworn to (or affirmed) and subscribed before me this day of , 20 , by
who is personally known to me or : produced a
as identification.
notary public signature
notary public printed name
Page 565 of 2228
DECLARATION OF JOHN WOODRUFF
1. My name is John Woodruff. I am the Chief Financial Officer for the City of
Miami Beach.
2. The City has established a sidewalk café program in which the City subsidizes the
cost of operating a sidewalk café on City property by offering participants in the sidewalk café
program space at a substantially reduced rate under the current market rate for space. The City's
sidewalk café program permit rate for space on the City's property is S25 per square foot.
3. The market rate for storefront space on Ocean Drive is currently$120 per square
foot. This calculation is based on past closings and the price for the only retail space currently for
lease on Ocean Drive between 5th and 15th streets. The price per square foot of the currently
listed property is $120 per square foot.
3. Market rate for space on the City's property outside of a brick and mortar building
would be similar to the rate for the adjacent indoor storefront space
4. The City of Miami Beach provides a subsidy of a below-market rate for sidewalk
cafes who participate in the City's sidewalk café program. The City enacted the sidewalk café
program in order to provide a unique experience and environment for the City's residents and
visitors to relax and enjoy the consumption of food and/or beverage(s)in the City's unique,
vibrant, tropical atmosphere. In exchange for accepting this subsidy and participate in the
sidewalk café program, sidewalk cafe operators must agree to a Sidewalk Cafe Code of Conduct
that ensures that the purposes of the program are advanced by each sidewalk café operator and
that no sidewalk café operator actually diminishes the positive impact of the City's subsidy by
using it in such a fashion as to diminish the aesthetic appearance of the City and the pleasant
experience for residents and tourists that the program seeks to advance.
Page 566 of 2228
5. The City Commission has also found that the highest possible standards, criteria,
and conditions pertaining to the operation of sidewalk cafes participating in the sidewalk cafe
program are critical to the achievement of the City's interests in subsidizing the sidewalk cafe
program to: (i) preserve the aesthetic character of the City's right of ways by helping to diminish
the proliferation of unsightly food displays, street furniture, signage and other visual and
physical clutter; (ii) reduce potential nuisances including, without limitation, excessively loud
music; hawking from restaurant/sidewalk cafe operators and their employees to passing
pedestrians and overcrowding of the right of way; and(iii) aid in the prevention of deceptive,
misleading, or bait and switch tactics by sidewalk cafe operators.
I verify under penalty of perjury that the foregoing is true and correct.
Executed on August 6, 2019.
.1
h oodru
Page 567 of 2228
Page 1
NEIGHBORHOOD/COMMUNITY AFFAIRS
COMMITTEE MEETING
Transcript of Meeting held before the
Miami Beach Commissioners at City Hall,
\Commission Chambers, 3rd Floor, 1700
Convention Center Drive, Miami Beach, Florida,
at or about 10:15 a.m. , on July 23, 2019,
reported by MARIA ISABEL SALUM, Registered
Professional Reporter and Notary Public in and
for the State of Florida.
PRESENT:
COMMISSIONER MICKY STEINBERG
COMMISSIONER MICHAEL GONGORA
COMMISSIONER JOY MALAKOFF
COMMISSIONER ERIC CARPENTER
COMMISSIONER MARK SAMUELIAN
COMMISSIONER ALEKSANDR BOSKNER
ROBERT F. ROSENWALD, JR. , ESQ
CITY OF MIAMI BEACH LEGAL DEPARTMENT
National Reporting Service
(305) 373-7295
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Page 2
1 MR. ROSENWALD: Good afternoon,
2 Commissioners, Robert Rosenwald, first
3 assistant city attorney with the City of
4 Miami Beach City Attorney' s Office.
5 This is a fact finding hearing to
6 consider whether objective evidence
7 towards the enactment of the proposed
8 sidewalk cafe code of conduct, including
9 restrictions that sidewalk cafes not
10 solicit pedestrians from 15th Street on
11 Ocean Drive.
12 The city manager has entered an
13 extensive written evidentiary record into
14 the agenda for today and he expressly
15 incorporates that record into the
16 legislative record for these items .
17 The written record includes
18 declarations from multiple stakeholders,
19 sworn under oath, a plethora of owner use
20 for Ocean Drive sidewalk cafes
21 specifically relevant to soliciting •
22 pedestrians and the various scams and bad
23 service that follow at establishments
24 that solicit in this manner, reports of a
25 secret software investigation that was
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Page 3
1 conducted this month by the city
2 manager' s office demonstrating the
3 negative impact of sidewalk cafes
4 solicitors on Ocean Drive, and the
5 results of a survey of Ocean Drive
6 sidewalk cafes demonstrating that
7 sidewalk cafe operators feel that they
8 all must solicit pedestrians because if
9 anyone does it, they all must do it in
10 order to remain competitive.
11 Many said that if their neighbors
12 were restricted from soliciting, they
13 would not need to do it either. It' s
14 either all or nothing for them.
15 And you will hear the testimony of
16 five Ocean Drive stakeholders today.
17 Commissioners shall be free to ask them
18 questions or to ask me questions, and
19 after the witnesses have testified, each
20 commissioner will have the opportunity to
21 speak and ask questions on this item.
22 I want to introduce you to our court
23 reporter who' s here today. She will be
24 taking a transcription of all of the
25 testimony.
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1 So, witnesses, before you speak,
2 please state your name, state your
3 address and spell your name for her, and
4 she may stop you and ask you if you're
5 speaking too fast to slow down, so do
6 that for her if she asks .
7 Now, the court reporter will be
8 swearing in the witnesses who will be
9 testifying here today. So our five
10 witnesses, can you please stand up and
11 the court reporter will swear you in.
12 THE REPORTER: Do you solemnly swear
13 or affirm that the testimony you're about
14 to give will be the truth, the whole
15 truth and nothing but the truth?
16 (All witnesses answered in the
17 affirmative. )
18 THE REPORTER: Thank you.
19 MR. ROSENWALD: Your first witness
20 on this item will be John Deutzman.
21 MR. DEUTZMAN: Good morning,
22 everybody. My name is John Deutzman.
23 I 'm a member of the Mayor' s Panel on
24 Ocean Drive Safety, Security and
25 Infrastructure.
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1 Essentially what's been going on for
2 years on Ocean Drive is a bait and switch
3 scam. Two parts . One is the bait. The
4 bait is luring people into their
5 establishments with signs advertising
6 bargains that may or may not be bargains,
7 usually not bargains, and verbal hawking
8 or barking to lure them in. That's the
9 bait. We cut the bait by eliminating the
10 signs.
11 The other thing we need to cut is
12 the verbal inducements into the business,
13 which are generally false and lead to
14 fraud.
15 Personally I have observed people
16 being physically chased down the sidewalk
17 and solicited. I have seen crowds of
18 people around menus, blocking,
19 obstructing the sidewalk as they're being
20 made all these various outstanding
21 offers, verbally. I have heard them
22 saying, "Free drinks, free shots" to me.
23 I have heard one guy -- the super star I
24 heard was, "Hey, if you don' t like the
25 food or the service, it' s on me, it' s all
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1 ' free. Come on in here. If you don' t
2 like it, I ' ll pay for it. " That was one
3 of the better ones .
4 So I have observed this personally.
5 I would never, in my time here, ever
6 advise that anybody, any resident or
7 friend or person that I care about go to
8 Ocean Drive to eat randomly because of
9 this bait and switch scam that is
10 prevalent. It' s a business model. They
11 know what they're doing.
12 I 'm the bad guy for bringing this up
13 and so is everybody else, and they think
14 it' s outrageous that we would be
15 concerned about their fraud scheme. So
16 that' s one thing.
17 The other thing I want to bring up
18 is that I have observed our police
19 department is called frequently to bill
20 skips and bill disputes and they wind up
21 being many times that the customers
22 aren' t the bad guys . The businesses are
23 the bad guys. And one I remember
24 distinctly recently was a couple who was
25 disputing the bill and cops had to come.
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1 It was a heated dispute. Basically they
2 paid the bill and afterwards, I talked to
3 these people, and they are credible
4 people, and they said, well, "I ordered
5 the two for one special, " and they were
6 charged full price. Why were they
7 charged full price? Because one of them,
8 one of the couple, ordered a drink
9 without alcohol, so they were charged
10 more because she ordered a drink without
11 alcohol, which actually cost the business
12 more.
13 So these types of confusing schemes
14 repeat over and over and over again in
15 different forms.
16 One other thing, which we did put on
17 our website a year and a half ago, on the
18 Crime Prevention Group, I should say, a
19 gentleman came, a tourist, in an
20 establishment for these $9. 95 specials
21 and he wound up with a $320 bill . And he
22 was furious, ranting and raving, cursing,
23 going crazy. The manager, "I'm going to
24 call the police, " and him, "Blah, blah,
25 blah, blah. " And creating a huge scene,
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Page 8
1 bad impression for our tourists`. The
2 stuff is outrageous. The city cannot be
3 in bed with fraudsters, with tricksters
4 and with a carnival circus out there. It
5 has to stop. It has to stop at all
6 costs. Whether we have to arrest
7 everybody on Ocean Drive to do it,
8 whether we have to sue everybody on Ocean
9 Drive to do it, it has to end and it has
10 to end now.
11 Thank you.
12 THE REPORTER: Can you spell your
13 name, please?
14 MR. DEUTZMAN: Yes, I 'm sorry.
15 John Deutzman, D-E-U-T-Z-M-A-N.
16 THE REPORTER: Thank you.
17 COMMISSIONER GONGORA: Thank you.
18 That was riveting.
19 MR. DEUTZMAN: Thank you, sir.
20 MR. ROSENWALD: Our next witness
21 will be Jo Manning.
•
22 MS. MANNING: Jo Manning, 1460 Ocean
23 Drive.
24 I can't top John. That' s
25 impossible. I am in complete agreement
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Page 9
1 with everything he says.
2 What I am so upset about is that I
3 really can't walk down my street. I live
4 on Ocean Drive and yet, I hesitate to
5 walk down my street on the west side,
6 which is where I live, because we are
7 attacked. We' re attacked by hawkers .
8 You're attacked by these signs . You are
9 pushed and shoved and, you know, I feel
10 for the young people who are out there
11 hawking, nobody has talked about this,
12 and I want to say something -- I have
13 heard and I have some pretty good sources
14 on the street -- that these kids will be
15 fired if they don' t do this . It' s hard
16 for young kids to get jobs and they do
17 this. It's too bad, but that is
18 something to consider.
19 People who lease these restaurants
20 are really bad actors. They are bad to
21 the street. They are bad for the city.
22 They are bad for residents.
23 And John says he was going to be the
24 bad guy, so I'm going to be the bad girl,
25 even though I said I would be the good
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1 girl, but something has got to be done
2 and the subcommittee I'm on with John,
3 the Ocean Drive Subcommittee has made
4 substantive moves in this direction to
5 stop this.
6 As it is in branding, commissioners,
7 mayor, legal department, consider the
8 kind of brand you're setting out to the
9 world. This is not a good brand. This
10 is crooked. It' s wrong and it demeans us
11 all. It brings down the street. It
12 brings down the city.
13 And one anecdote. Years ago, I was
14 at Starbucks across the street from where
15 I live and I started talking to a young
16 man behind me, and he started telling me
17 this was the first time he had been on
18 Ocean Drive. He was here with his
19 girlfriend and they were staying in a
20 hotel in the drive. And he said, "I will
21 never come here again. " And I said
22 "why?" He said, "because I'm getting
23 fleeced every night. " Turned out, he was
24 a minor executive at Facebook and he made
25 sure that everybody at Facebook knew •
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1 about this .
2 Thank you.
3 THE REPORTER: Can you spell your
4 name, please?
5 MS. MANNING: First name is J-O, and
6 the last name is M-A-N-N-I-N-G.
7 THE REPORTER: Thank you.
8 COMMISSIONER STEINBERG: When you
9 come up, state your name and spell it for
10 her in the beginning.
11 Thank you.
12 MR. ROSENWALD: Our next witness is
13 Mike Palma.
14 MR. PALMA: Good morning. It is
15 Michael Palma, and the last name is
16 P-A-L-M-A.
17 I 'm at 1020 Ocean Drive with Jesta
18 Hotel Group. I 'm executive vice
19 president. We own the Clevelander and
20 the Stiles Hotel and the Essex Hotel.
21 I think I' ll talk about when we have
22 good girl and bad guy, I'm going to talk
23 from the business perspective. This is
24 not a new situation for Ocean Drive.
25 We've been battling this for years.
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1 In 2010, when we came out of our
2 construction, I personally created a code
3 of conduct within the association to try
4 to get voluntary membership. We got
5 some -- we made some headway, but
6 unfortunately there were always certain
7 operators that pushed the envelope and
8 did anything to survive and we lost
9 control .
10 Once the solicitation was taken off
11 the table due to the injunction, it has
12 become an absolute disaster to call it
13 something nice.
14 Bottom line, we have hotel guests
15 weekly, daily, they complain, both at the
16 Essex and Clevelander, that they can't
17 walk the street for reasons that you have
18 already heard. It has become a street
19 that it' s impossible to do regular
20 business. Our cafe is down about 35
21 percent, because I don' t allow us to hawk
22 and I don' t allow us to treat people that
23 way. We don' t do the free stuff, the two
24 for one, the discounted programming.
25 So it' s also hurting the regular
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1 businesses that are trying to survive.
2 And, in essence, it' s created a consumer
3 who is coming to the drive with one thing
4 in mind, "What can you do for me?" In
5 fact, yesterday, we had a consumer again,
6 as always, go to the host and say, "Hey,
7 what can you do for us today? What are
8 you going to give us for free?" So they
9 are basically being taught that Ocean
10 Drive is a discounted area to come and it
11 brings that demographics that most is
12 discounted, and everybody else is
13 suffering as a result.
14 And. as Jo and John say, the brand is
15 ultimately the one that suffers the most.
16 And with a huge investment that we have,
17 multi-millions on the property that we
18 own, it' s just not sustainable. We need
19 to turn this around. I 'm so ecstatic
20 that the commission is finally figuring
21 out a way with the help of the mayor and
22 pushing all you guys to get aggressive on
23 this behavior and what' s happening,
24 because it is truly devastating in Ocean
25 Drive. Okay?
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1 And I speak on behalf of many good
2 operators as well. Many members on board
3 who both are in favor of this, and we are
4 not going to sit here and be held
5 hostage.
6 I'm going to end by a quick note. '
7 Mario Courtney, who was on the chair
8 before I took over, we sent him out to
9 all the members about the shopper program
10 and to get them ready and engaged and he
11 wrote back -- and I won't name the
12 cafe -- he said, "Hey, two weeks ago a
13 friend, a couple from New Delhi stayed at
14 one of our hotels, decided to walk at
15 Ocean Drive and stopped at a certain cafe
16 for two cocktails and an appetizer. They
17 were shocked to receive a bill for $350 ,
18 which they paid, but said they would
19 never return to Ocean Drive. "
20 This is an example of people who get
21 abused but do not complain to staff or
22 management. They simply pay and never
23 return, and then tell all their friends .
24 So that is enough right there.
25 That happens every day. We don' t
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1 hear about it, we don' t know about it, we
2 only see it on the decline of the street,
3 on the sales, on the people that are
4 coming. Okay?
5 Thank you so much for what you guys
6 are doing. I appreciate it and on behalf
7 of the association, we support it 100
8 percent.
9 MR. ROSENWALD: Our next witness is
10 Amy Mehu, Ocean Drive manager.
11 MS. MEHU: Amy Mehu, City Manager' s
12 Office, City of Miami Beach. It' s A-M-Y,
13 M-E-H-U.
14 For the past four years, I have been
15 working with the city administration with
16 Ocean Drive businesses as the Ocean Drive
17 manager.
18 In the past four years, we have gone
19 through several iterations of the Ocean •
20 Drive' s panel or task force and I have
21 heard personally the many complaints that
22 come through from the residents and from
23 our tourists telling us how bad their
24 experience on Ocean Drive was, walking
25 along Ocean Drive, feeling like they're
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1 accosted by the managers or the staff
2 alongside the sidewalk cafe area.
3 We even received e-mails . I
4 personally receive e-mails, phone calls,
5 requests, letting us know, not for any
6 action, but just as a heads-up that they
7 have been harassed by somebody, bait and
8 switch, into coming into the cafe and
9 told they are being offered one thing and
10 being sold another thing. And we're
11 constantly having to battle the
12 perception that Ocean Drive businesses
13 are up to no good.
14 I have personally gone out to Ocean
15 Drive in my role here in the city and I
16 have seen where the staff will stop
17 hawking when I 'm walking through. And
18 then when I go out there for my personal
19 time, they will continue to hawk. So
20 they are aware of their behavior and they
21 are choosing to stop it when they see
22 staff or when they see code compliance,
23 and not because there is a particular
24 rule, they are just aware that their
25 behavior is obnoxious and it' s not
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1 becoming of our area.
2 And that' s pretty much all of that.
3 MR. ROSENWALD: Can you talk just
4 for a second about how relatively narrow
5 the sidewalks on Ocean Drive are which
6 negatively multiply the effects of
7 hawking?
8 MS. MENU: So right now we have a
9 five foot pedestrian path that needs to
10 be maintained by the sideway cafe areas.
11 Because of the size of the sidewalk
12 cafes, we are only down to five feet of
13 pedestrian path. It' s not even five
14 plus. And what happens is, it's a single
15 file line comfortably or two people
16 walking side by side and the only way
17 they have is along that sidewalk and with
18 people standing outside the cafe
19 footprint, hawking and being intrusive to
20 your personal space, it becomes a bit
21 uncomfortable, very uncomfortable for
22 people walking along the sidewalk, and
23 they are having to detour going into
24 either the parked cars or into traffic to
25 get around people who are hawking them in
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1 the sidewalk cafe area.
2 And frequently, I'm getting
3 complaints for meetings that have nothing
4 to do with Ocean Drive businesses being
5 told, "I can' t even walk down Ocean
6 Drive. " They are going through the park
7 just to avoid walking down Ocean Drive
8 and being accosted by the service.
9 MR. ROSENWALD: And your final
10 witness today is Manny Villar from the
11 code compliance office.
12 MR. VILLAR: Good morning. Manny
13 Villar with the code compliance
14 department. I 'm here to speak about
15 several factors that affect the code
16 compliance department in regards to this
17 issue. The code compliance department
18 has witnessed an increase in the amount
19 of solicitation by these -- by the
20 various business establishments ever
21 since the injunction was implemented back
22 in 2015. We have seen a significant
23 increase in this type of activity on
24 Ocean Drive and other areas of our city,
25 key areas.
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1 I want to talk a little bit about '
2 the resources it takes to enforce this
3 type of activity, because it' s very
4 difficult, obviously. When they see the
5 code officers approaching the area, they
6 stop the activity, they behave and they
7 wait until either we move on or -- you
8 know, so it's very challenging and I 've
9 had to implement several other methods of
10 enforcement, such as undercover
11 operations and other tactics to deal with
12 this type of activity, which has been an
13 increase of use and resources for our
14 department.
15 I want to talk about the fact that
16 if we separate the aggressive hawking or
17 solicitation from another type of
18 solicitation, it becomes very difficult
19 and challenging because it makes us
20 subjective and, obviously, when officers
21 are trying to enforce or investigate
22 these type of activities, once they are
23 aware that code enforcement is onto them
24 or inspecting the business operation,
25 they are going to change their tactics
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1 and make it very difficult for us to
2 enforce this type of activity.
3 We've also noticed that it kind --
4 this activity becomes a competition
5 between businesses. If you have -- and
6 they also work in teams. So in the past,
7 when we have been working on these type
8 of issues and there are several members
9 of a sidewalk cafe conducting this type
10 of activity, aggressive solicitations or
11 hawking, it triggers other cafes to feel
12 that they need to compete with them to
13 attract the business and that -- you
14 know, usually there' s a chain of events
15 and it kind of moves down the street and
16 before you know it, it' s much more
17 prevalent and they are hawking or
18 soliciting much more aggressively.
19 I also want to mention that several
20 of our key stakeholders have mentioned
21 that hawking has a detrimental and
22 adverse effect on the visitor experience,
23 which obviously we're very concerned
24 about and for that issue, we need to be
25 very careful on how we proceed on this
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1 matter.
2 MR. ROSENWALD: Thank you.
3 THE REPORTER: How do you spell your
4 last name?
5 MR. VILLAR: My last name is
6 V-I-L-L-A-R --
7 THE REPORTER: Thank you.
8 MR. VILLAR: -- from the code
9 compliance department.
10 MR. ROSENWALD: Commissioners,
11 before I open it up for your own comments
12 and questions, there' s just a couple of
13 more points.
14 We considered as part of this code
15 of conduct the option of having a limited
16 number of permits or a lottery for a
17 limited number of permits in order to cut
18 down on the number of restaurants that
19 were soliciting pedestrians as they went
20 by, in an attempt to lessen the problem
21 and thereby meet our interests, and we
22 elected not to go in that -- down that
23 road for a number of reasons. The first
24 was that we conducted a survey of all of
25 the Ocean Drive sidewalk cafes and every
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1 one of the sidewalk cafes that answered
2 the survey when they were asked the
3 question, "If there was a permit, would
4 you want it, " they all said, "Yes, we
5 would all need to have it, because in
6 order to remain competitive, if one
7 person is allowed to do it, we all have
8 to be able to do it. And, in fact, if
9 our neighbor has one person outside, we
10 need to have two people outside and if
11 the neighbor has two people, we need to
12 have three. " And we got responses to as
13 many as four to five solicitors ,at any
, 14 one time will be soliciting if we would
15 issue a permit or a lottery.
16 Also, that scheme wasn' t something
17 that we recommended because it was not
18 consistent with the direction of your
19 image for Ocean Drive that while we
20 allowed lotteries and permits for
21 things -- fully protected first amendment
22 speech like sidewalk -- I 'm sorry, like
23 street performers and artist vendors,
24 where we want to encourage community
25 involvement and where visitors like to
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1 see some of that, the hawking by the
2 sidewalk cafes is not enjoyed by anyone.
3 It's inconsistent with the direction that
4 we have gotten and it is not fully
5 protected first amendment speech. It is
6 less protected commercial speech.
7 We also conducted a sidewalk cafe
8 secret shopper program over the course of
9 July. We hired investigators to go in
10 and measure the amount of the effect of
11 soliciting on Ocean Drive and to connect
12 whether there was a connection to the
13 scams in the bait and switch that we have
14 heard talked about. And even with
15 advance warning that we were coming, as
16 you heard today, the results of the
17 secret shopper program were pretty
18 conclusive. The hawking was extensive.
19 It was pervasive. It was annoying. Our
20 investigators observed pedestrians trying
21 to steer around the people who were
22 soliciting them, trying to run away from
23 them and having the solicitors follow
24 them down the street, in some cases
25 yelling things at them. We observed --
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1 our investigators observed some
2 restaurants with up to five solicitors at
3 any one time lined up along the sidewalk,
4 which you heard is very narrow, so you
5 really can't avoid them in that case.
6 And as a result, our investigators also
7 suffered various scams. One of the scams
8 was that the tip was added onto the bill,
9 but it wasn't -- when the part to sign
10 came, that wasn' t noted and an additional
11 tip was asked for.
12 Another one of our investigators
13 ' found that he was offered a 30 percent
14 discount to go into the store, but when
15 they got into the sidewalk cafe, when
16 they got that bill, the 30 percent
17 discount did not appear anywhere on the
18 bill .
19 Those incidents that I'm talking
20 about in summary are fully documented in
21 the evidentiary record and the reports
22 show that have been loaded into the
23 agenda on Lotus, for which you all have
24 reviewed for today.
25 At this point, I will just open it
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1 up to give your own thoughts and
2 observations about this problem. You can
3 ask me any questions if you want. You
4 can ask any of the witnesses any
5 questions that you want.
6 I ' ll just turn it over to
7 Commissioner Steinberg to take over.
8 COMMISSIONER STEINBERG: Thank you.
9 Commissioners, who would like to go
10 first?
11 COMMISSIONER GONGORA: Thank you,
12 first of all, for that very thorough
13 presentation, thank you and to the many
14 witnesses that came here today to provide
15 your testimony as to this very serious
16 problem.
17 One of the things that I liked was ,
18 aside from the testimony, was that the
19 city really went the extra mile here to
20 actually engage an investigator that
21 corroborated independently what we all
22 know and provided this excellent report
23 to us, which was very helpful.
24 I can tell you personally this has
25 been one of my big issues over the years.
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1 I understand, you know, as an attorney,
2 people's rights of free speech and all of
3 that, but there' s a point when that right
4 impedes on my ability to peacefully enjoy
5 the sidewalk and more importantly on the
6 mind of our residents and visitors'
7 ability to enjoy a peaceful experience.
8 If you look at other cities with
9 upscale kind of classy sidewalk cafes,
10 there' s no people screaming or grabbing
11 you on the street and trying to solicit
12 you for two for one specials.
13 I notice that there were many
14 witnesses who provided affidavits and
15 testimony live today, that similarly have
16 been physically touched. As I've walked
17 by, I have menus shoved in my face. I
18 have people call me over. And it really
19 is an unpleasant experience, and it needs
20 to stop.
21 So I 'm glad to see that this is here
22 today and I 'm going to be fully
23 supporting it.
24 COMMISSIONER STEINBERG: Very well
25 said, Commissioner Gongora.
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1 Commissioner Samuelian?
2 COMNIISSIONER SAMUELIAN: Thank you,
3 Madam Chair.
4 I want to thank all those who have
5 testified. I want to particularly give a
6 shout to Jo Manning on the day before her
7 birthday to come with us to do this, so
8 thanks for doing that.
9 I just briefly want to touch on my
10 personal experience with this issue, the
11 impact that it' s having on the city and
12 the range of policy and other approaches
13 that we have taken.
14 When I was elected in November 2017,
15 my first official meeting with the city
16 manager and city attorney, I broached
17 this topic, because I viewed this as one
18 of the most critical issues that the city
19 had to address, these deceptive practices
20 on public property.
21 I personally have experienced this
22 kind of bad behavior. For example --
23 and, in fact, my declaration is included.
24 I was told that I would be receiving a 25
25 percent discount at this operator at
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1 Ocean Drive, but then at the end of the
2 meal, while the discount was provided, I
3 was added a 20 percent service charge
4 that I was not aware of. So I really was
5 not receiving the discount that was put
6 to me.
7 I hear from our community members, I
8 hear them say, we don't want to go there,
9 because of the aesthetics, they can' t
10 walk and enjoy the environment. I hear
11 it online in preparation for a recent
12 ordinance. I just spent a little time on
13 TripAdvisor and Yelp and I saw the
14 horrible things people were saying and it
15 really has a detrimental impact.
16 I think a lot of people have
17 testified about that impact. I would
18 just touch on a couple. One, people are
19 not coming back. Residents can' t enjoy
20 their streets. we have a situation where
21 good business operators are challenged.
22 And the image of the city is both a
23 negative image and financial, because
24 it' s impacting our bottom line to the
25 tunes of millions of dollars .
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1 We have tried so much. We have
2 passed ordinances related to menus. We
3 have passed statements of policy. We are
4 trying so many different things. We are
5 now looking at funding mystery shoppers
6 to address this. We are looking at
7 electronic means so when the poor
8 customer doesn't have the ability to
9 complain that they can communicate via
10 electronic means . We are trying
11 everything, but that still is not enough.
12 We need,this code of conduct for the good
13 of our residents, visitors and good
14 businesses.
15 COMMISSIONER STEINBERG: Thank you,
16 Commissioner. Very well said.
17 Ms . Malakoff?
18 COMMISSIONER NALAKOFF: This item,
19 the code of conduct, and what's happening
20 on Ocean Drive is critical to the City of
21 Miami Beach. The reason it' s so critical
22 is that it's not part of the City of
23 Miami Beach' s brand. It' s not the image.
24 It is not the image we want to tell the
25 world, because we are not that type of a
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1 city with a honky-tonk beautiful street.
2 The street is beautiful . The Art Deco
3 District is beautiful. It' s known
4 internationally.
5 And yet, when I walk down Ocean
6 Drive,. I am solicited. I find hawking.
7 I find my path is so blocked, even though
8 there' s supposed to be a five foot, you
9 know, available pathway, that the mostly
10 ladies that are out there with their
11 menus and so forth, block part of that
12 path.
13 In fact, the last couple of times
14 I 've gone to Ocean Drive, I 've walked on
15 the other side of the street to avoid
16 that. It's just terrible.
17 I can' t tell you of any really
18 specific people who -- of my friends who
19 have been there and have seen the bait
20 and switch happen to them, because my
21 friends who live -- residents who live in
22 Miami Beach, long time residents, who
23 used to go to the cafe restaurants, they
24 used to be on Ocean Drive, a lovely place
25 to go for a quiet dinner, et cetera,
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1 those kind of restaurants, they hardly
2 exist anymore on Ocean Drive . My friends
3 no longer go to Ocean Drive restaurants.
4 They go to Lincoln Road. They go to
5 Sunset Harbor. They go to other parts of
6 the beach, but because of the hawking,
7 because of the solicitation, they find
8 that they are completely uncomfortable,
9 as I do. I do not feel comfortable going
10 there.
11 I am very concerned, particularly
12 about the reviews on social media, the
13 comments on social media and how they
14 affect all of our tourists , all of our
15 visitors, including those from France,
16 from Japan, from India, from China. I
17 mean, social media is everywhere. It' s
18 not just the United States . It' s not
19 just the folks coming in from the
20 northeast.
21 And I think that we need to be very,
22 very strict on this code of conduct. We
23 need to stop the bait and switch. We
24 need to stop the specials . We need to
25 stop the unusual tips that are being
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1 added to the checks. And I think that we
2 need Ocean Drive so residents can again
3 enjoy the ambiance and enjoy the art deco
4 architecture, and not be bothered by
5 hawkers and solicitation.
6 As far as issuing permits, to me
7 that' s just out of the question, because
8 everybody will want a.permit. It' s very
9 competitive. If one restaurant or cafe
10 has somebody soliciting with menus
11 saying, "We have two for one specials,"
12 the restaurants on both sides will want
13 to do the same.
14 Permits will not work because every
15 sidewalk cafe will want it. It just
16 shouldn't be. The sidewalk should be
17 open to the public, period.
18 COMMISSIONER MALAKOFF: Thank you.
19 COMMISSIONER STEINBERG: Yeah, I
20 think you get the sense from the dais, I
21 think we are all at our wit' s end. We
22 know that there is absolutely a negative
23 experience and it's impacting everybody
24 on Ocean Drive. We know that there are
25 issues with bait and switch. We know
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1 that there are issues with fraudulent
2 tips and we know that the aggressive
3 hawking has caused serious issues .
4 I personally witnessed a family
5 walking with little children and the
6 aggressive hawking actually scared the
7 child. So I mean, this is unacceptable.
8 I think you have a sentiment up here that
9 we need to move forward and with that,
10 anybody else have anything they would
11 like to add, because I think we are going
12 to move this forward to a favorable
13 recommendation.
14 MR. ROSENWALD: Just a few more
15 points. Very quickly. That
16 aggressive -- aggressive solicitation was
17 also considered and the fact of the
18 matter is that the code of compliance has
19 a very difficult, if not impossible, time
20 enforcing that. It' s hard to tell when
21 they are being aggressive, unless they
22 stand right there. They have actually
23 had to do undercover operations in order
24 to try and bust these places doing
25 aggressive solicitation, and that means
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pulling people from other districts of
2 code compliance officers who have other
3 things to do in order to try and enforce
4 this. And they found, even with that
5 extra effort, that it was ineffective,
6 and so we also did not recommend just
7 prohibiting aggressive solicitation.
8 COMMISSIONER MALAKOFF: Any
9 solicitation.
10 COMMISSIONER STEINBERG: I will tell
11 you, I find all hawking is aggressive.
12 COMMISSIONER GONGORA: Just to make
13 a thorough motion rather than moving it.
14 Based upon the evidence presented through
15 the live testimony, the affidavits
16 attached, the investigator's report, the
17 experiences of the commissioners on this
18 spot and the legal argument presented, we
19 find there's a compelling need in our
20 city to stop this aggressive hawking,
21 that a lottery system would not work, it
22 would be impossible to enforce and,
23 therefore, our city needs this code of
24 conduct to move forward.
25 COMMISSIONER STEINBERG: Do I hear a
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1 second to this motion?
2 COMMISSIONER MALAKOFF: Second.
3 COMMISSIONER STEINBERG: Seconded
4 it. All in favor?
5 (All members answered "aye" . )
6 COMMISSIONER STEINBERG: Counsel,
7 you have a favorable recommendation from
8 the Commission.
9 MR. ROSENWALD: Thank you so much
10 for your time.
11 I would be remiss if I didn' t thank
12 our intern, Bethany Blakeman, who is with
13 us here today who did a lot of work on
14 this project. She' s a UM law student,
15 going into, I believe, her second year of
16 law school, and she did a great job and I
17 want to thank her.
18 MR. DEUTZMAN: What the
19 investigators uncovered there, one
20 example, the 30 percent they added,
21 that' s fraud, you go to jail for that.
22 Somebody has to go to jail.
23 COMMISSIONER STEINBERG: Thank you
24 all for coming in and for testifying. We
25 appreciate it.
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1 With that, meeting adjourned.
2 (Thereupon, the meeting was
3 concluded at 10: 50 a.m. )
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