Ordinance 2019-4310 ORDINANCE NO. 2019-4310
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
70 OF THE CODE OF THE CITY OF MIAMI BEACH, FLORIDA,
ENTITLED "MISCELLANEOUS OFFENSES," BY AMENDING
ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING
SECTION 70-7, ENTITLED "RESERVED," BY CREATING
DEFINITIONS AND THOSE REGULATIONS WHICH SHALL
PROHIBIT THE SMOKING OF CANNABIS, MARIJUANA, OR
HEMP ON PUBLIC PROPERTY; ESTABLISHING SIGNAGE
REQUIREMENTS; PROVIDING PENALTIES AND
ENFORCEMENT FOR VIOLATION; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
WHEREAS, the City of Miami Beach is a world-famous tourist destination which attracts
numerous visitors annually, including families, groups and individual travelers, seeking to enjoy
the City's vast cultural, retail, dining and recreational offerings; and
WHEREAS, providing a positive experience for both residents and visitors to the City is of
paramount importance, and is vital to the City's economy and tourism industry; and
WHEREAS, the public usage of illegal substances will negatively impact the City's
residents and visitors, and regrettably serve to tarnish the City's image; and
WHEREAS, cannabis and marijuana are both illegal substances, which may not be
smoked in public, under Federal and State law; and
WHEREAS, cannabis, marijuana and hemp may be derived from the same plant,
Cannabis Sativa, and hemp has a nearly identical odor and appearance as marijuana and
cannabis, making all these substances virtually indistinguishable from one another; and
WHEREAS, the burning of these plants and their components creates smoke which, in
addition to any smoke exhaled by a user, produces secondhand cannabis, marijuana and hemp
smoke; and
WHEREAS, secondhand smoke from these substances contains many of the same
known carcinogens and toxins, such as ammonia arsenic, hydrogen cyanide and formaldehyde,
which are found in secondhand tobacco smoke; and
WHEREAS, the smoke from these substances also has a distinctive and pungent odor,
which is not appropriate or pleasing to many people, including children and families; and
WHEREAS, the Mayor and City Commission finds that it is in the best interest of its
residents, businesses and visitors to adopt these regulations to protect the public health, safety,
and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That Section 70-7 of the City Code shall be created as follows, and as hereinafter
set forth below:
CHAPTER 70
MISCELLANEOUS OFFENSES
ARTICLE I. IN GENERAL
* * *
Sec. 70-7. Reserved Smoking cannabis, marijuana or hemp on public property prohibited;
warning signs required; enforcement; penalties.
(a) Definitions. For purposes of this section, the following definitions shall apply:
(1) Cannabis or marijuana means all parts of any plant of the genus Cannabis, whether
growing or not; the seeds thereof; the resin extracted from any part of the plant; and
every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its
seeds or resin, including low-THC cannabis.
(2) Hemp means the plant Cannabis sativa L. and any part of that plant, including the seeds
thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of
isomers thereof, whether growing or not, that has a total delta-9-tetrahydrocannabinol
concentration that does not exceed 0.3 percent on a dry-weight basis.
(3) Public property means any public right-of-way, including any public street, avenue, road,
alley or sidewalk in the city, or any pedestrian mall, park, playground, school, beach,
seawall, beach access, golf course, marina, parking garage, walkway, boardwalk, beach
walk, or other facility or public place which is owned, operated, leased or managed by
the city.
(4) Smoking or smoke means inhaling, exhaling, burning, carrying, igniting or possessing a
lighted cannabis, marijuana or hemp product.
(b) Prohibitions.
(1) It shall be unlawful for any person to smoke any cannabis, marijuana or hemp product
on public property.
(2) The owner or operator of any store or business establishment selling any smokable
cannabis, marijuana or hemp product(s) shall prominently post a sign, with contrasting
letters at least one-half inch tall, in a conspicuous location within such store or business
establishment, stating the following:
IT IS UNLAWFUL FOR ANY PERSON TO SMOKE ANY CANNABIS, MARIJUANA OR
HEMP PRODUCT ON PUBLIC PROPERTY INCLUDING, BUT NOT LIMITED TO, ANY
STREET, ROAD, ALLEY, SIDEWALK, PARK, BEACH, PLAYGROUND OR OTHER
SUCH PLACE WITHIN THE CITY OF MIAMI BEACH. VIOLATORS ARE SUBJECT TO
CRIMINAL PROSECUTION.
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Failure to post this sign shall be deemed a violation of this section. This sign shall be
exempt from permit requirements of Chapter 138 of this Code.
(c) Penalties and enforcement.
(1) A violation of subsection (b)(1) herein, shall be punished in accordance with Section 1-
14 of the City Code.
(2) A violation of subsection (b)(2) herein, shall be subject to the following fines:
a. If the violation is the first offense, a person or business shall receive a civil fine of
$1,000.00;
b. If the violation is the second offense within a 12-month period, a person or business
shall receive a civil fine of $2,000.00;
c. If the violation is the third offense within a 12-month period, a person or business
shall receive a civil fine of $3,000.00;
d. If the violation is the fourth offense within a 12-month period, a person or business
shall receive a civil fine of$5,000.00.
(3) Enforcement.
a. The Miami Beach Police Department shall enforce the provisions of subsection
(b)(1). This shall not preclude other law enforcement agencies or regulatory bodies
from any action to assure compliance with this section, and all applicable laws.
b. The Miami Beach Police Department or the Code Compliance Department shall
enforce the provisions of subsection (b)(2). This shall not preclude other law
enforcement agencies or regulatory bodies from any action to assure compliance
with this section, and all applicable laws. If a violation of subsection (b)(2) is found,
the enforcement officer shall be authorized to issue a notice of violation. The notice
shall inform the violator of the nature of the violation, amount of fine for which the
violator is liable, instructions and due date for paying the fine, that the violation may
be appealed by requesting an administrative hearing before a special master within
ten days after service of the notice of violation, and that the failure to appeal the
violation within ten days of service shall constitute an admission of the violation and
a waiver of the right to a hearing.
c. The cit mans•er or desi•nee shall be authorized to cons•icuousl_'lace such
skins in public places, as deemed necessar .
(4) Rights of violators; payment of fine; right to appear; failure to pay civil fine or to appeal;
appeals from decisions of the special master.
a. A violator who has been served with a notice of violation must elect to either:
i. pay the civil fine in the manner indicated on the notice of violation; or
ii. request an administrative hearing before a special master to appeal the notice
of violation, which must be requested within ten days of the service of the notice
of violation.
b. The procedures for appeal by administrative hearing of the notice of violation shall
be as set forth in sections 30-72 and 30-73 of this Code. Applications for hearings
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must be accompanied by a fee as approved by a resolution of the city commission,
which shall be refunded if the named violator prevails in the appeal.
c. The failure 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 an administrative
hearing before the special master, and shall be treated as an admission of the
violation, for which fines and penalties shall be assessed accordingly.
d. A certified copy of an order imposing a fine may be recorded in the public records,
and thereafter shall constitute a lien upon any real or personal property owned by
the violator, which may be enforced in the same manner as a court judgment by the
sheriffs of this state, including levy against the violator's real or personal property,
but shall not be deemed to be a court judgment except for enforcement purposes.
Three months after the recording of any such lien which remains unpaid, the City
may foreclose or otherwise execute upon the lien, for the amount of the lien plus
accrued interest.
e. The special master shall be prohibited from hearing the merits of the notice of
violation or considering the timeliness of a request for an administrative hearing if
the violator has failed to request an administrative hearing within ten days of the
service of the notice of violation.
f. The special master shall not have discretion to alter the penalties prescribed in
subsection (c)(2).
q. Any party aggrieved by a decision of a special master may appeal that decision to
a court of competent jurisdiction.
Secs. 70-8 — 70-40. 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.
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SECTION 5. EFFECTIVE DATE. L
This Ordinance shall take effect on the o3�/ day of rc4.�Jer , 2019.
PASSED AND ADOPTED this /G day of DCfaher , 2019.
ATTEST: -
Dan Gel. , ' ayor
y APPROVED AS TO
Rafael . Granado, City Clerk FORM & LANGUAGE
& FOR EXECUTION
Underline denotes additions
Strikethrough denotes deletions (0 1 7 if ?
Double underline denotes additions after First Reading City Attorney' Da F.
Deublo ctrikotbrough denotes deletions after First Reading
(Sponsored by Mayor Dan Gelber, Co-sponsored by Commissioner Ricky Arriola)
f
If CORP ORATED:
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Ordinances - R5 N
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J.Aguila, City Attorney
DATE: October 16, 2019
1:50 p.m. Second Reading Public Hearing
SUBJECT:AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA,AMENDING CHAPTER 70 OF THE CODE OF
THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "MISCELLANEOUS
OFFENSES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY
AMENDING SECTION 70-7, ENTITLED "RESERVED," BY CREATING
DEFINITIONS AND THOSE REGULATIONS WHICH SHALL PROHIBIT
THE SMOKING OF CANNABIS, MARIJUANA, OR HEMP ON PUBLIC
PROPERTY; ESTABLISHING SIGNAGE REQUIREMENTS; PROVIDING
PENAL TIES AND ENFORCEMENT FOR VIOLATION; AND PROVIDING
FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE
DATE.
RECOMMENDATION
Please see Memorandum attached.
Applicable Area
Not Applicable
Is this a Resident Right to Does this item utilize G.O.
Know item? Bond Funds?
No No
Legislative Tracking
Office of the City Attorney
Sponsor
Mayor Dan Gelber and Co-sponsored by Vice-Mayor Arriola
ATTACHMENTS:
Description
D Memorandum
a Ordinance
Page 1615 of 2557
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33'39,www.miamioeachi.gov
COMMISSION MEMORANDUM
Second Reading
TO: Honorable Mayor and Members of the Ci Commission
FROM: Raul J. Aguila, City Attorney ,Q n
DATE: October 16, 2019
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE
CODE OF THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED
"MISCELLANEOUS OFFENSES," BY AMENDING ARTICLE I,
ENTITLED "IN GENERAL," BY AMENDING SECTION 70-7, ENTITLED
"RESERVED," BY CREATING DEFINITIONS AND THOSE
REGULATIONS WHICH SHALL PROHIBIT THE SMOKING OF
CANNABIS, MARIJUANA OR HEMP ON PUBLIC PROPERTY;
ESTABLISHING SIGNAGE REQUIREMENTS; PROVIDING PENALTIES
AND ENFORCEMENT FOR VIOLATION; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE
DATE.
On September 11, 2019, the City Commission adopted the above-referenced Ordinance
(the "Ordinance"), which is sponsored by Mayor Dan Gelber, at first reading.
The Ordinance would prohibit the smoking of cannabis, mariivana or hemp on public
property, and further establish signage requirements for those retail businesses offering
such substance(s) for sale in a smokable form.
It is important to recognize that the City possesses wide-ranging latitude to regulate the
smoking of cannabis, marijuana and hemp as municipaiities in Florida are given broad
authority to enact ordinances under their municipal home rule powers. Art. VIII, § 2(b),
Fla. Const.; § 166.021(1) & (4), Fla. Stat. (2011). Under such powers, a municipality
may legislate (concurrently with the Legislature) on any subject which has not been
expressly preempted to the State. Wyche v. State, 619 So. 2d 231, 237-38 (Fla. 1993);
§166.021(3)(c).
Any violation(s) of the Ordinance by those persons observed by a police officer to be
smoking such substance(s) on public property (which is defined as any public right-of-
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way, including any public street, avenue, road, alley or sidewalk in the city, or any
pedestrian mall, park, playground, school, beach, seawall, beach access, golf course,
marina, parking garage, walkway, boardwalk, beach walk, or other facility or public
place which is owned, operated, leased or managed by the City) would subject such
person(s) to a fine not exceeding $500.00 or by imprisonment for a term not exceeding
60 days, or by both fine and imprisonment.
As previously identified herein, the Ordinance would also require business owners
selling cannabis, marijuana or hemp in a smokable form to prominently post a sign
within such store or business establishment stating the following:
IT IS UNLAWFUL FOR ANY PERSON TO SMOKE ANY CANNABIS,
MARIJUANA OR HEMP PRODUCT ON PUBLIC PROPERTY
INCLUDING, BUT NOT LIMITED TO, ANY STREET, ROAD, ALLEY,
SIDEWALK, PARK, BEACH, PLAYGROUND OR OTHER SUCH PLACE
WITHIN THE CITY OF MIAMI BEACH. VIOLATORS ARE SUBJECT TO
CRIMINAL PROSECUTION.
Under the Ordinance, any business owner(s) charged with violating the notice provision
of the Ordinance would be subject to civil fines ranging from $1 ,000 - $5,000, and such
provision shall be enforced by Miami Beach Code Compliance Department.
The Ordinance remains primarily unchanged from first reading, although subsection 70-
7(c)(3)c has been created to specifically authorize the City Manager, or designee, to
conspicuously place those signs (as specified above) in public places, as the City
Manager deems necessary.
Additionally, the City Administration will be implementing an educational outreach
program to apprise the public of the prohibition surrounding the smoking of cannabis,
marijuana or hemp on public property, and the signage requirement for business
owners, as set forth in the Ordinance.
Tile Ordinance has been submitted for second reading/public hearing at the October 16,
2019 meeting of the City Commission.
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