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2004-25458 ResoRESOLUTION NO. 2004-25458 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE LOCATION OF THE MIAMI BEACH CONVENTION CENTER FOR CONVENTIONS, EXPOSITIONS OR EVENTS INVOLVING ADULT MATERIALS, PURSUANT TO THE PROVISIONS OF F.S. 847.0134. WHEREAS, Consolidated Management Associates Corporation, has requested the Convention Center management approval to locate the Gay Erotica Expo at the Convention Center; and WHEREAS, vendors and exhibitors will be demonstrating and selling their products, including adult entertainment films, magazines, personal care products, leather and other clothing, and adult novelty items; and WHEREAS, a determination was made that due to the nature of the Gay Erotica Expo, it would fall under the adopted Florida Statute that prohibits the location of an adult entertainment establishment within 2,500 feet of a school, unless approved by the municipality in accordance with the process prescribed in the statute; and WHEREAS, the approval of this location would allow the Convention Center to entertain similar requests in the future as the approval under consideration is for the location and not the exposition; and WHEREAS, the Planning Board has reviewed this request on October 28, 2003 and recommended approval subject to conditions; and WHEREAS, Sec. 847.0134 F.S. states that an adult entertainment establishment that sells, rents, loans, distributes, transmits, shows, or exhibits adult materials, may not be located within 2,500 feet of the real property that comprises a public or private elementary school, middle school, or secondary school unless the county or municipality approves the location under proceedings as provided in s. 166.041(3)(c), which requires the local governing body to hold two advertised public hearings on the proposed ordinance and at least one hearing shall be held after 5 p.m.; and WHEREAS, the City Commission desires to approve the location for a probationary period of two years, and minimize the secondary effects that studies have shown will result from adult entertainment establishments, and therefore adopts certain conditions which shall govern the use of the Convention Center for adult entertainment uses, including a limit of two times per year that adult uses can be held at the Convention, which the City adopts as a time, manner and place restriction, and other limitations itemized below and attached to this Resolution as Exhibit "A". 1 of 2 NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA THAT: Section 1: The location of the Miami Beach Convention Center is hereby approved as a venue for conventions, expositions or events involving adult materials, for a period of two years from the date of this hearing, subject to the following restrictions and guidelines; a. Guidelines as delineated in Exhibit "A" attached hereto; b. No more than two (2) conventions, expositions or events involving adult materials per year shall be permitted; c. No adult or obscene materials shall be visible from any right-of-way; d. Only legal activities and materials shall be permitted; nudity or lewd behavior shall be prohibited; e. Adult events shall be held only on Hall "C", away from Miami Beach High School; f. Entrance to adult events shall only be from Convention Center Drive; g. The hours of operation for this type of event at the Convention Center shall be no earlier than 9 a.m. and no later than 2 a.m.; No one under 18 years of age shall be admitted to these types of events. This minimum age may be increased voluntarily by event lessees if they so desire. The minimum age shall be 21 years of age if alcohol is sold at the event. Section 2: This approval shall sunset after two years from the date of this hearing. Section 3: NONSEVERABILITY. It is the intention of the City Commission that all provisions of this Resolution are integral to and dependent upon all other provisions thereof, and thus if any section, subsection, clause, provision, requirement contained herein/~r Exhibit "A", of this Resolution is held invalid, the remainder shall not be severable from th~ptrtio~l~eclared invalid. /I/I PASSED AND ADOPTED THIS_ 14ch day of J'anuar~/ I?0y/ C~ITY CLERK MAYOR First Reading: December 10, 2003 Second Reading: January 14, 2004 F:~atto\HELG\Resolutions\1637 - Cony Ctr reso apprd 2nd rdg.doc APPROVED AS TO FORM AND LANGUAGE &"FOR EXECUTION City Attorney~ Date 2 of 2 Booking Requirements for Adult Entertainment Oriented Events The following Operating Requirements for Adult Entertainment Oriented Events shall be used as operating criteria with respect to conduct for any adult entertainment oriented events to occur at the Miami Beach Convention Center. The requirements will bc added to the Terms and Conditions of the Lease Agreement issued by the Miami Beach Convention Center (Operator) and executed by Lessee and allow the Lessee the opportunity to immediately cure and remedy any violations prior to the operator invoking its right to terminate the lease and close the show. The Lessee shall incorporate the Operating Requirements established herein into thc exhibitor rules and regulations issued by the event organizer and shall be known by exhibitors that any violation of the requirements shall be cause for immediate expulsion from the show. Convention Center Management shall book events only into Hall C, located in the southwest quadrant of the facility, so as to minimize proximity to the residential areas on Washington Avenue and to Miami Beach Senior High School. Operating Requirements for Adult Entertainment Oriented Events All patrons and personnel shall be prohibited from the following: The display of less than completely and opaquely covered genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areolas. 2. Sexual activities are prohibited. Sexual activities include the fondling or other erotic touching of genitals, pubic region, buttocks, anus or female breasts. Lessee shall provide at its expense a reasonable number of event security personnel as determined by the Convention Center to provide crowd control and to monitor compliance with the terms and conditions of this Agreement. Lessee shall post signs prohibiting unlawful conduct at the entrance doors of the leased exhibit space. The size, wording and placement of any and all signs to be displayed in the public lobby area are subject to the prior approval of the General Manager of the Convention Center. Lessee shall be responsible for insuring that all exhibitors, attendees, Lessee staff, and any other invitees and guests of Lessee shall comply with all applicable laws with respect to activities and materials inside the leased premises. 6. No adult or obscene materials shall be visible from any public right of way. Lessee shall cooperate fully with representatives of the Miami Beach Police Department during the event and shall make no attempt to circumvent or undermine the law enforcement efforts of any officer patrolling the area. The general public shall be permitted to bring cameras into the show as long as approved signs are posted in the exhibit area discouraging inappropriate conduct and behavior. Lessee shall inform each and every exhibitor, in writing, of the Operating Requirements for participation as an exhibitor in the event and incorporate the exact language into all exhibitor agreements. 10. Prior to setting up exhibit space at the Miami Beach Convention Center, Lessee shall have each and every exhibitor execute an acknowledgement of the Operating Requirements that was included in the exhibitor agreement issued by Lessee. A copy of exhibitor agreements shall be provided to Operator by Lessee upon request. 11. Lessee shall supervise the show and exhibitor conduct at all times and be available at all times to take any and all appropriate actions to immediately remedy any violation. 12. Should any violation of the Operating Requirements occur, Lessee shall take immediate action to eject the exhibitor's personnel or any invitee or guest of an exhibitor contributing to the violation of the Operating Requirements and shall immediately close the exhibit. 13. Failure of the Lessee to take the above-stated action or attempt to prevent any violation of the Operating Requirements shall constitute a material breach of the Lease Agreement and shall be grounds for immediate termination of this contract and closure of the show. 14. Any violation of any of the terms and conditions of this Agreement or any law by the Lessee, Lessee's agents or staff, an exhibitor, any exhibitor personnel, or any invitee or guest of an exhibitor or Lessee shall constitute a material breach of this Agreement and shall be grounds for the immediate termination of this contract and closure of show. In such event, Lessee shall not be entitled to a refund of any portion of the prepaid rental fee or any other fees for incidental services (electrical, plumbing, etc.). Lessee acknowledges and agrees that the City of Miami Beach, SMG and the Miami Beach Convention Center, its officers, agents and employees shall not be responsible or liable for any injury, damage loss or expense incurred by Lessee or its exhibitors as a result of such termination or closure of the show following a breach of contract. Lessee further waives any and all claims for damages or losses against the City of Miami Beach, SMG and the Miami Beach Convention Center, its officers, agents and employees which may arise as a result of the closure of the show following a breach of this contract, and Lessee shall indemnify and hold harmless the City of Miami Beach, SMG and the Miami Beach Convention Center from any and all such claims made by Lessee's exhibitors. F:XattoXHELGLResolutionsXAdult Event Booking Requirementsl.final.doc CITY OF MIAMI BEACH COMMISSION ITEM SUMMARY Condensed Title: IA Resolution of The Mayor and City Commission of the City of Miami Beach, Florida, approving the location of the Miami Beach Convention Center for conventions, expositions or events involving adult materials. Issue: IShould the City Commission approve the Miami Beach Convention Center as a location to hold events involving adult materials? Item Summary/Recommendation: The provisions of s. 847.0134, Florida Statutes prohibits adult entertainment establishments that display, sell, or distribute materials harmful to minors within 2,500 feet of the real property that comprises a public or private elementary school, middle school, or secondary school, however, municipalities may approve the location under proceedings as provided in s. 166.041(3)(c). The Administration recommends that the City Commission approve the resolution. Advisory Board Recommendation: The Planning Board heard this matter at a public hearing on October 28, 2003. The Board voted 5-0 (2 members absent) to recommend to the City commission approval of this request. At its December 8, 2003 meeting, the Land Use and Development Committee deferred discussion of this item to the full Commission. Financial Information: Source of Amount Account Approved Funds: 1 2 3 4 Finance Dept. Total City Clerk's Office Legislative Tracking: Mercy Lamazares/Jorge G. Gomez, Planning Department Sign-Offs: Assistant City Manager I D.,e~partment Director T:La, GENDA~2004Llan1404\Regular\1637 -Conv Ctr approval 2nd rdg 1-14-04 sum.doc ~.~-'"~City Manager AGENDA ITEM DATE To: From: Subject: COMMISSION MEMORANDUM Date: January 14, 2004 Mayor David Dermer and Members of the City Commission Jorge M. Gonzalez ~.~.~-- c~''~ City Manager Approval of the location of the Miami Beach Convention Center for Conventions, Expositions or Events Involving Adult Materials. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE LOCATION OF THE MIAMI BEACH CONVENTION CENTER FOR CONVENTIONS, EXPOSITIONS OR EVENTS INVOLVING ADULT MATERIALS, PURSUANT TO THE PROVISIONS OF F.S. 847.0134. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission adopt the resolution after the second reading public hearing. BACKGROUND The Convention Center is a venue that is located within 2,500 feet of Miami Beach Senior High School and pursuant to the provisions of s. 847.0134, Florida Statutes, which prohibits adult entertainment establishments that display, sell, or distribute materials harmful to minors within 2,500 feet of the real property that comprises a public or private elementary school, middle school, or secondary school, requires that the municipality approve the location under proceedings as provided in s. 166.041(3)(c). LINCOLN LINCOLN~,~.OAD _ . . ..... ~- '~ I ~1 I 11'1 Commission Memorandum Approval of the Miami Beach Convention Center for Conventions, Expositions or Events Involving Adult Materials. January 14, 2004 Page 2 The process specified in s. 166.041(3)(c) is the same procedure as for a zoning map change. This process requires two public hearings before the City of Miami Beach City Commission and a recommendation from the Planning Board, also under the public hearing process. STAFF ANALYSIS Consolidated Management Associates Corporation, the applicant of this request, approached the Convention Center management requesting information with regard to locating the Gay Erotic Expo at the Convention Center. The City Attorney's office was contacted and a meeting was set up with Planning staff to determine what the process would be with regard to the City Code and its Land Development Regulations. At that time a determination was made that due to the nature of the Expo, it would fall under the adopted Florida Statute that prohibits the location of an adult entertainment establishment within 2,500 feet of a school, unless approved by the municipality in accordance with the process prescribed in the statute. The Gay Erotic Expo is a consumer expo targeted to the gay and lesbian community. The Expo is proposed to be held in Hall C of the Miami Beach Convention Center at 1901 Convention Center Drive on June 5 and 6, 2004 and yearly thereafter. The hours of the event will be approximately from noon to 7 p.m. both days. Vendors and exhibitors will be demonstrating and selling their products, including adult entertainment films, magazines, personal care products, leather and other clothing, and adult novelty items. Free space will be provided to local non-profit gay and lesbian community groups and AIDS groups so that they can promote themselves to the gay and lesbian community. The event will have a ticket price of approximately $15, and no one under 21 will be admitted. The Gay Erotic Expo has been held previously at the Los Angeles Convention Center, and at Webster Hall in New York. In 2001 the Florida Legislature approved an amendment to Chapter 847, "Obscenity," which under s. 847.0134 reads: (1) Except for those establishments that are legally operating or have been granted a permit from a local government to operate as adult entertainment establishments on or before July 1, 2001, an adult entertainment establishment that sells, rents, loans, distributes, transmits, shows, or exhibits any obscene material, as described in s. 847.0133, an adult entertainment establishment that sells, rents, loans, distributes, transmits, shows, or exhibits in whole or in part, depicts nudity, sexual conduct, sexual excitement, sexual battery, sexual bestiality, or sadomasochistic abuse and that is harmful to minors, as described in s. 847.001, may not be located within 2,500 feet of the real property that comprises a public or private elementary school, middle school, or secondary school unless the county or Commission Memorandum Approval of the Miami Beach Convention Center for Conventions, Expositions or Events Involving Adult Materials. January 14, 2004 Page 3 municipality approves the location under proceedings as provided in s. ~125.66(4) for counties or s. 166.041(3)(c) for municipalities. (2) A violation of this section constitutes a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. Section 166.041(3)(c) F.S. refers to the process by which a municipality must conduct a review for a zoning map change. The approval of the Convention Center location would allow the Convention Center to entertain similar requests in the future as the approval under consideration is for the location and not the exposition. As part of the process, staff requested that legal notice be mailed to neighborhoods surrounding the Convention Center, including property owners facing Meridian Avenue, Washington Avenue, Lincoln Road and Dade Boulevard, including the Miami Dade County School Board, some of which are farther than the required radius of 375 feet. This application is the first one for review since the Florida Legislature amended Chapter 847 F.S., thus, this is a process with no prior guidelines or criteria established. As a venue that may hold these kinds of productions in the future, staff is not overly concerned with the location. As a minor concern, it should be noted that although the Convention Center is separated by Washington Avenue from a residential district to the east; by the Collins Canal and Dade Boulevard from a residential district and Miami Beach High School to the north, and the residential area west of Meridian Avenue, it is a very large venue which as part of the approval, can be requested to contain inside any adult production. It is also suggested that any adult production have an age restriction of 21-and-over only admission. PLANNING BOARD ACTION The Planning Board heard this matter at a public hearing on October 28, 2003 and voted 5-0 (two members absent) to recommend that the City Commission approve the location of the Convention Center to permit this type event, but with a limitation of no more than 2 of these events per year and that each application for this type of event come before the Planning Board for review to discuss the actual programming under the procedure set by State Statutes. In addition, the Board also recommended that the City Commission set the hours of operation for this type of event at the Convention Center to no eadier than 9 a.m. and no later than 2 a.m. LAND USE AND DEVELOPMENT COMMITTEE At its December 8, 2003 meeting, the Land Use and Development Committee deferred discussion of this item to the full Commission. Commission Memorandum Approval of the Miami Beach Convention Center for Conventions, Expositions or Events Involving Adult Materials. January 14, 2004 Page 4 CITY COMMISSION ACTION At its December 10, 2003 meeting, the Commission approved the Resolution allowing the Miami Beach Convention Center as the location to hold conventions, expositions or event involving adult materials pursuant to the provisions of Section 847.0134, F.S., subject to the following amendments: · No more than two (2) events annually. · Events to be held south to Hall "C", away from Miami Beach High School. · No explicit material shall be visible from any public right-of-way. · Only legal activities and materials (no nudity or lewd behavior). · City Commission review and approval of each event. · Entrance to event shall be only from Convention Center Drive. · Establish Guidelines: Review the Los Angeles Convention Center guidelines and add to guidelines prohibiting nudity or lewd behavior. (see attachments) In response to the Commission's directive, attached you will find the proposed "Booking Requirements for Adult Entertainment Oriented Events", which set forth the guidelines for booking procedures. Also attached are the "Operating Requirements for Adult Oriented Events" which will be incorporated into the Lease Agreement(s). It is important to note that similar to the Los Angeles guidelines, the "no nudity" provisions apply to live people, but not to pictures or video to be displayed within the event premises. CITY ATTORNEY REVIEW AND RECOMMENDATION The City Attorney has advised that City Commission review, or review by a City board, would not be sustainable unless the Commission also adopted a specific timetable for review and action, and specific review criteria. The City Attorney has also recommended that the City Commission not conduct a per event review, which inevitably would involve a review of the event's content. Alternatively, the City Attorney recommends that the Commission adopt a probationary period of two years for the use of the Convention Center for these events to allow time for a determination as to its desirability at the Convention Center, and therefore a sunset provision after two years has been added to the resolution. The City Attorney has also advised that the proposed limitation of two events per year, and other regulations added to the resolution and booking requirements for these events at the Convention Center should be upheld as a reasonable time, manner and place restrictions in order to limit the secondary effects that may arise from the presence of adult materials and content at the Convention Center, considering its proximity to nearby residential and school uses. Secondary effect studies upon which these regulations were based were found in Gerard, Local Regulation of Adult Businesses (West 2002); National Obscenity Law Center, Secondary Effects Studies; and case law on adult entertainment. The proposed minimum age restriction of 21 years for admission to the event is contrary to case law on this subject, so the minimum age has been set in the resolution at 18 years of age for admission. Individual events may voluntarily increase the minimum age to 21 years if they desire. Commission Memorandum Approval of the Miami Beach Convention Center for Conventions, Expositions or Events Involving Adult Materials. January 14, 2004 Page 5 CONCLUSION The procedure set forth in 166.041 (3)(c) F.S. refers to the process by which a municipality may approve the location under certain proceedings. This procedure requires that the City Commission hold two advertised public hearings with at least one hearing being held after 5:00 p.m. The first public hearing shall be held at least seven days after the day that the first advertisement is published. The second public hearing shall be held at least ten days after the first hearing and shall be advertised at least five days prior to the public hearing. Immediately following the public hearing at the second reading, this resolution may be adopted by an affirmative vote of five-sevenths of all members of the City Commission. The attached resolution reflects the Commission action of its December 10, 2003 meeting and incorporates the City Attorney's recommendations stated above including the sunset provision two (2) years from the date of this hearing in lieu of future City Commission review and approval of each event. JMG/CMC/JGG/ML T:~AGENDA~.004~Jan1404\Regular~1637 -Conv Cfr approval 2nd rdg 1-14-04.doc City of Miami Beach - City Clerk's Office December 10, 2003 Commission Meeting / REGULAR AGENDA I R7 - Resolutions 4:05:37 p.m. R7A Approval Of The Miami Beach Convention Center For Events Involving Adult Materials. A Resolution Approving The Miami Beach Convention Center As A Location For Conventions, Expositions Or Events Involving Adult Materials, Pursuant To The Provisions Of Section 847.0134, Florida Statutes. 3:00 p.m. Public Hearing, (Planning Department) ACTION: First of two required Public Hearings held. Resolution No. 2003-25431 adopted as amended and voided pending approval at the second Public Hearing (See Resolution 2004-25458). The Planning Board resolution was used as the base resolution. Motion made by Commissioner Steinberg; seconded by Vice-Mayor Smith. Voice vote: 7-0. Second public hearing scheduled for January 14, 2004. R. Parcher to notice. Lilia Cardillo to place on the Commission Agenda. Jorge Gomez to handle. Jorge Gomez, Planning Department Director, presented the item. Mathew Bank, producer of the event, spoke. Minnette Benson spoke. Lily Pardo spoke. David Kelsey spoke. Heather Frank (Funk) and Jessica Moore spoke. Aynee Peralta spoke. David Phelps, Gay and lesbian Foundation of South Florida, spoke. Rebecca Dawn Birch spoke. Commissioner Bower stated she is not focusing on this event, but all types of events which could be held at the Miami Beach Convention Center if this is approved. She wanted to clarify that approving this resolution will open the doors to any type of adult material in the future. Jorge Gomez, Planning Director, reviewed the Planning Board's resolution and their recommendations. Commissioner Steinberg stated that these types of shows should be shifted south away from Beach High to Hall "C" and explicit materials should not be able to be viewed from the street. Commissioner Bower requested that language be added that only legal activities and materials be allowed and guidelines be established. Commissioner Gross asked if the Convention Center Guidelines cover some of these areas. Prepared by the City Clerk's Office Date Printed: 1/30/2004 Time Printed: 8:56:50 AM Source Database: C:\Data\folio4.2\Clerk178.nfo City of Miami Beach - City Clerk's Office Doug Tober, General Manager, SMG, stated that the economic impact events are the trade shows. Part of the contract states that ali events must abide by the laws and regulations. The guidelines that the Los Angeles Convention Center has, actually prohibits nudity and any kind of lewd behavior or any kind of performance that might make a dance event more adult than it may already be. Amendments: 1. Guidelines: Review the Los Angeles Convention Center guidelines and add to guidelines no nudity or lewd behavior. 2. Convention south to Hall "C" away from Miami Beach High School. 3. No material shall be visible from any public right of way. 4. Only legal activities and materials. 5. City Commission review and approval. 6. Enter from Convention Center Drive. 7. Consideration should be given to promoter's reputation and financial resources. Gary Held, Assistant City Attorney, spoke. Vice-Mayor Smith asked whether the City Commission is being selective by having these guidelines for these types of shows but no guidelines for other shows, and how that plays out in a constitutional argument. Murray Dubbin, City Attorney, stated that there are existing guidelines being used which govern the financial capability and reputation of a promoter. He recommends that the guidelines be applicable to all events. Doug Tober, General Manager, SMG, stated that there are presently guidelines, and each user of the Center must complete a rental application that asks about their financial wherewithal and references. Handout or reference materials: 1. Notice of Ad in The Miami Herald 2. Email from Roy James to Special Master to the Attention of the City Commission dated 12/9/03 RE: Gay Expo at the Miami Beach Convention Center to be held in June 2004. 3. Los Angeles Convention Center Operating Guidelines for the Gay Erotic Expo, 9120-9122103 Prepared by the City Clerk's Office Date Printed: 1/30/2004 Time Printed: 8:56:50 AM Source Database: C:\Data\folio4.2\Clerk178.nfo