Ordinance 2023-4542 SOUTH OF FIFTH
ALCOHOLIC BEVERAGE ESTABLISHMENT REGULATIONS
(SPONSORED BY COMMISSIONER LAURA DOMINGUEZ)
ORDINANCE NO.1 2023-4542
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 142, "ZONING DISTRICTS
AND REGULATIONS,"ARTICLE II, "DISTRICT REGULATIONS," DIVISION 18,
"PS PERFORMANCE STANDARD DISTRICT," SECTION 142-693,
"PERMITTED USES," TO ELIMINATE EXISTING EXCEPTIONS TO THE 2:00
A.M. CLOSING TIME FOR ALCOHOLIC BEVERAGE ESTABLISHMENTS
LOCATED SOUTH OF FIFTH STREET; AND PROVIDING FOR REPEALER,
CODIFICATION, SEVERABILITY, AND AN EFFECTIVE DATE.
WHEREAS, the South of Fifth Street neighborhood is primarily residential in nature, and
area retail, recreational, and alcoholic beverage establishments primarily serve City residents and
visitors; and
WHEREAS, alcoholic beverage establishments in the South of Fifth neighborhood are in
close proximity to residential uses; and
WHEREAS, the City Code allows certain uses within the zoning districts south of Fifth
Street, which, absent mitigation, could be incompatible with adjacent residential uses; and
WHEREAS, large restaurants, stand-alone bars, outdoor food and beverage service,
entertainment establishments, and dance halls can, if not regulated, be incompatible with the
scale, character, and quality of life of adjacent residential neighborhoods; and
WHEREAS, the Mayor and City Commission desire to adopt reasonable business
regulations that are compatible with the residential character of the neighborhood; and
WHEREAS, pursuant to Section 562.14, Florida Statutes, a municipality may, by
ordinance, establish hours of sale for alcoholic beverages; and
WHEREAS, in State ex reL Floyd v. Noel, 124 Fla 852, 854 (Fla. 1936), the Florida
Supreme Court recognized that "[i]t is so well settled that no citation of authority is required to
support the statement that a municipality exercising the powers inherent in municipal corporations
may reasonably regulate the sale of intoxicating liquors and in providing such reasonable
regulations may prohibit the sale of such liquors within certain hours, and also may prohibit the
sale of liquors within certain zones"; and
WHEREAS, the Florida Supreme Court has upheld the constitutionality of Section 562.14,
Florida Statutes (See Wednesday Night, Inc. v. City of Fort Lauderdale, 272 So. 2d 502 (Fla.
1972) (recognizing the statutory authority of a municipality to "prescribe by ordinance different
hours of liquor sales from those fixed by other cities")); and
WHEREAS, Florida Courts have recognized, as a valid exercise of the police power, a
municipality's authority to change hours of sale for alcoholic beverages; municipalities have the
statutory authority under Section 562.14, Florida Statutes, to restrict the hours when alcohol may
be sold; and a municipal ordinance regulating alcohol hours of sale may be applied to a property
incorporated later into the municipality by annexation (Village of North Palm Beach v. S & H
Foster's, Inc., 80 So. 3d 433 (Fla. 4th..DCA 2012)); and
WHEREAS, the Florida Attorney General has opined that a municipality may regulate (1)
the hours of sale, (2) zoning of locations in which alcoholic beverages may be sold, and (3) the
sanitary conditions under which alcoholic beverages may be dispensed or served to the public
(Op.Att'y Gen. Fla. 059-73 (1959)); and
WHEREAS, the Florida Attorney General has opined that different hours may be provided
for in a municipal ordinance, provided there is reasonable relation to the health, safety, and morals
of the community(Op. Att'y Gen. Fla., p. 497 (1950)); and
WHEREAS, Florida courts have consistently held that alcoholic beverage establishments
are not entitled to "grandfather" status as to hours of sale for alcoholic beverages (See Village of
North Palm Beach v. S & H Foster's, Inc., 80 So. 3d 433 (Fla. 4th DCA 2012); Other Place of
Miami, Inc. v. City of Hialeah Gardens(Fla. 3d DCA 1978)); and
WHEREAS, injunctive relief is not available against the enforcement of a municipal
ordinance regulating the time at which alcoholic beverages may be sold because municipalities
have the statutory authority to set times for the sale of alcoholic beverages (Id.; Playpen S., Inc.
v. City of Oakland Park, 396 So. 2d 830 (Fla. 4th DCA 1981) (rejecting argument that alcohol
hours ordinance "[took] away a vested property right")); and
WHEREAS, Florida Courts have ruled that hours of operation are not a property right(S.
Daytona.Rests., Inc. v. City of S. Daytona, 186 So. 2d 78(Fla. 1st DCA 1966)); and
WHEREAS, on November 9, 2016, the City adopted Ordinance No. 2016-4054 which, in
pertinent part, limited the hours of operation of alcoholic beverage establishments in the South of
Fifth neighborhood, with certain exceptions, to 2:00 a.m.; and
WHEREAS, even though alcoholic beverage establishments are not vested as to alcohol
hours of sale, the City Commission elected in 2016, at its discretion,to exclude existing operators
from the indoor 2:00 a.m. termination time and outdoor 12:00 a.m. termination time; and
WHEREAS, due to the incompatibility of the sale and service of alcoholic beverages in
the South of Fifth residential neighborhood late at night, the Mayor and City Commission now
desire to eliminate certain exceptions to the termination times set forth in the City Code; and
WHEREAS, the amendments set forth below are necessary to accomplish all of the above
objectives.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA.
SECTION 1. Chapter 142, "Zoning Districts and Regulations," Article II, "District Regulations,"
Division 18, "PS Performance Standard District," at Section 142-693, "Permitted Uses," is hereby
amended as follows:
CHAPTER 142
ZONING DISTRICTS AND REGULATIONS
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ARTICLE II. — DISTRICT REGULATIONS
* * *
DIVISION 18. — PS PERFORMANCE STANDARD DISTRICT
* * *
Sec. 142-693. Permitted Uses.
* * *
(i) Additional regulations for alcoholic beverage establishments located south of 5th Street.
(1) The following additional regulations shall apply to alcoholic beverage establishments,
whether as a main use, conditional use, or accessory use, that are located south of 5th
Street:
(i) Operations shall cease no later than 2:00 a.m. Alcoholic beverages shall not be
offered for sale or consumed on-premises at alcoholic beverage establishments
between the hours of 2:00 a.m. and 8:00 a.m. each night.
(ii) Operations Notwithstanding the foregoing, alcoholic beverages shall not be offered
for sale or consumed on premises in outdoor or open air areas of an alcoholic
beverage establishment shall-seas°-later ha„between the hours of 12:00 a.m.
and 8:00 a.m. each night, except as otherwise provided herein
(iii) Alcoholic beverage establishments with sidewalk cafe permits shall only serve
alcoholic beverages at sidewalk cafes during hours when food is served, shall
cease sidewalk cafe operations no later than 12:00 a.m. (except as otherwise
provided herein), and shall not be permitted to have outdoor speakers.
(iv) Outdoor bar counters shall be prohibited.
(v) No special events permits shall be issued.
(vi) The provisions of this subsection (i)(1) shall not apply, to the extent the
requirements of this subsection are more restrictive, to an alcoholic beverage
establishment with a valid business tax receipt that is in application status or issued
prior to June 28, 2016; or an establishment that has obtained approval for an
alcoholic beverage establishment from a land use board, and which land use board
order is active and has not expired prior to June 28, 2016. In order to be eligible
for the exception in this paragraph, the establishment must also meet the following
criteria:
A. The establishment has an occupant content of less than 100 people, as
determined by the Chief Fire Marshal.
B. The establishment does not have an entertainment license nor contain a
dance hall.
C. There shall be no outdoor service or consumption past 2:00 a.m.
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A. Existing sidewalk cafes issued a sidewalk cafe permit as of June 28, 2016,
for alcoholic h ge sales aft 12:00 a m th food ser ice may continue
rv--ctrvvrrvngveMeFa�gc�a�rcer ., wisrrvv�a ,
to be renewed, but shall not serve alcoholic beverages later than 1:30 a.m.,
ad- alcoholic beverage may not he cons Amer) at sidewalk cafes after 2:00
a-�
B. Should an alcoholic beverage establishment with a sid ,alb cafe permit
r rler /A\ above be d qu a paym t obligation to the situ and/or
QT14 , , et+F�ee�f�'IT�C�TTGTIT�17i7gRifVTTC�CrfG�1��Gff fQl Ol
Feb• • al adjudications of violations section 17_5 (speciiaal—e nt
n it\ section A6_152 (noise ordinance\ or chapter 82 article IV division_5
/sidewalk cafe ordinance) that alcoholic beverage establishment shall only
be allowed to serve alcoholic beverages at its sidewalk cafe until 12•00 a m
for a 12 month period.
(vii) Determination of vested rights. The owner or operator of any alcoholic beverage
establishment which, as of February 22, 2023, has a valid business tax receipt for
hours greater than the hours permitted under subsection (i)(1)(i) or (i)(1)(ii), and
which is claiming a vested right to conduct alcohol sales for on-premises
consumption for hours greater than the hours permitted under subsection (i)(1)(i)
or (i)(1)(ii) may so operate only after applying for a determination of its vested
right(s) and having those rights confirmed by an alcohol hours special magistrate
as follows:
A. Appointment; qualifications; term. The city commission shall appoint a special
magistrate for the specific. purpose of adiudicating applications for
determinations of vested rights under this subsection (i)(1)(vii). The special
magistrate shall be an attorney in good standing with the Florida Bar, with
expertise in the areas of local government law, business licensing, vested
rights, and/or property law. The special magistrate shall serve a term of one
year. Compensation for the special magistrate shall be determined by the city
commission.
B. Filing period. Any application for a determination of vested rights must be filed
with the city manager, city attorney, and city clerk no later than March 31, 2024.
C. Standard for finding of a vested right. A vested right to conduct alcohol sales
for on-premises consumption later than the hours prescribed in this section
(i)(1)(i) or(i)(1)(ii) shall be found to exist only where:
in An active order of the Planning Board, an active order of the Board of
Adjustment, or other active development order issued by the City,
expressly authorizes the alcoholic beverage establishment to conduct
alcohol sales for on-premises consumption during specified hours;
2) In good faith reliance upon such prior order, the applicant has made a
substantial change in position or incurred extensive contractual
obligations and financial expenses; and
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It would be highly inequitable to interfere with the acquired right.
In accordance with Florida law, no right to conduct alcohol sales at certain
hours may be determined to have vested as a result of the adoption of an
ordinance by the city commission. The special magistrate shall dismiss any
application that relies solely upon a previously enacted ordinance of the city
commission.
D. Procedure. Applications for vested rights determinations shall be heard in
accordance with the procedures for hearings before the special magistrate
specified in Chapter 30 except that:
Applications for a vested rights determination shall be made in writing
and filed with the city manager, city attorney, and city clerk.
() At.a minimum, applications shall:
i_ Identify all prior orders from which the alleged vested
right arises;
ii. Include a copy of each such prior order;
iii. Specify how the adoption of this ordinance adversely
affected the alleged vested right including how the
standard in subsection (i)(1)(vii)(C) is satisfied;
iv. Specify the applicant's requested relief; and
v. Be sworn to by the applicant.
) The signature of the applicant or the applicant's attorney shall constitute
a certificate that the person signing has read the applicant's written
submissions and,to the best of their knowledge,the application is made
in good faith and not for purposes of delay. The applicant or its attorney
shall have a continuing obligation to correct any statement or
representation found to have been incurred when made or which
becomes incorrect by virtue of changed circumstances. If a claim of
taking or abrogation of vested rights is: (1) based upon facts that the
claimant or the attorney for the claimant knew or should have known
were not true; or(2)frivolous or filed solely for the purpose of delay, the
alcohol hours special magistrate shall make such findings in writing and
deny the application.
The city manager, city attorney, and city clerk shall acknowledge receipt
of an application for vested rights within three business days of receipt
of the application, and shall promptly schedule a hearing before the
special magistrate.
Effect of filing application for vested rights determination. During the
pendency of an application for a "vested rights determination, the
applicant shall comply with all requirements of this section. The filing of
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an application shall not be construed to stay enforcement of this section
against the applicant.
•
E. Appeals. An aggrieved party, including the city administration, may appeal a
final administrative order of the special magistrate to the circuit court by petition
for writ of certiorari, pursuant to the Florida Rules of Appellate Procedure.
* '*
SECTION 2. REPEALER.
All ordinances or parts of ordinances. and all section and parts of sections in conflict
herewith are hereby repealed.
SECTION 3. CODIFICATION'.
It is the intention of the City Commission, and it is hereby ordained, that the provisions of
this Ordinance shall become and be made part of the Code of the City of Miami Beach, as
amended; that the sections of this Ordinance may be re-numbered or're-lettered to accomplish
such intention; and that the word "ordinance" may.be changed to "section" or other appropriate
word.
SECTION 4. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity. -
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this 2c day 2 3.
Attest:
MAR — 2023 Dan Mayorelber
Rafael E. Granado, City Clerk APPROVED AS TO
FORM AND LANGUAGE
(Sponsored by Commissioner Laura Dominguez) &FOR EXECUTION
Underline denotes additions
— 7—).3
Strike thro,,gh denotes deletions - City Attorney Qv__
Date
First Reading: Aril 6, 2022 ` �Vic ;,-,
Second Reading: ruary 2 202 5 •
fINCORP ORATED'
Verified By:
Thomas R. Mooney, Al ,$ Cti 26�:,'
Planning Director
F:IATTO\KALN\ORDINANCES AIcoholWlcohol-South of Fifth-Repeal Exceptions(Dominguez)-Second Reading ORD AS ADOPTED.docx
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Ordinances -R5
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager
DATE: February 22, 2023
2:31 p.m. Second Reading Public Hearing
SUBJECT:SOUTH OF FIFTH ALCOHOLIC BEVERAGE ESTABLISHMENT
REGULATIONS
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 142, "ZONING
DISTRICTS AND REGULATIONS," ARTICLE II, "DISTRICT
REGULATIONS," DIVISION 18, "PS PERFORMANCE STANDARD
DISTRICT," SECTION 142-693, "PERMITTED USES," TO ELIMINATE
EXISTING EXCEPTIONS TO THE 2:00 A.M. CLOSING TIME FOR
ALCOHOLIC BEVERAGE ESTABLISHMENTS LOCATED SOUTH OF
FIFTH STREET; AND PROVIDING FOR REPEALER, CODIFICATION,
SEVERABILITY,AND AN EFFECTIVE DATE.
BACKGROUND/HISTORY
See attached memorandum.
ANALYSIS
SUPPORTING SURVEY DATA
Enhance Residents Quality of Life
FINANCIAL INFORMATION
No Fiscal Impact Expected
Applicable Area
South Beach
Is this a"Residents Right Does this item utilize G.O.
to Know" item. pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Legislative Tracking
Planning
Page 531 of 1109
Sponsor
Commissioner Laura Dominguez
ATTACHMENTS:
Description
❑ Form Approved ORD
• Map
▪ SIGNED MEMO
Page 532 of 1109
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Page 539 of 1109
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City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: The Honorable Dan Gelber an Me bers of the City Commission
FROM: Alina T. Hudak, City Mana
Rafael A. Paz, City Attome
DATE: February 22, 2023
SUBJECT: SOUTH OF FIFTH ALCOHOLIC BEVERAGE ESTABLISHMENT REGULATIONS
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, AMENDING CHAPTER 142, "ZONING DISTRICTS AND
REGULATIONS," ARTICLE II, "DISTRICT REGULATIONS," DIVISION 18, "PS
PERFORMANCE STANDARD DISTRICT," SECTION 142-693, "PERMITTED USES,"
TO ELIMINATE EXISTING EXCEPTIONS TO THE 2:00 A.M. CLOSING TIME FOR
ALCOHOLIC BEVERAGE ESTABLISHMENTS LOCATED SOUTH OF FIFTH
STREET; AND PROVIDING FOR REPEALER, CODIFICATION, SEVERABILITY,
AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the City Commission discuss the subject ordinance and
reconcile any conflicts with similar ordinances, prior to adoption at Second Reading.
HISTORY
On January 20, 2022, the City Commission discussed the proposed ordinance referral and
continued it to the February 9, 2022 meeting (Item C4 AH). The City Commission directed the
Administration to pre-notice the item for the February 22, 2022 Planning Board meeting. The late
Commissioner Mark Samuelian was the original sponsor of the proposed ordinance.
On February 9,2022,the City Commission referred the ordinance to the Planning Board for review
and recommendation (Item R9 F). The City Commission also requested that the Planning Board
provide any additional recommendations that the Board may have regarding the subject matter.
BACKGROUND
On November 9, 2016, the City Commission adopted Ordinance No. 2016-4054, amending the
hours of operation, locations, and use restrictions for alcoholic beverage establishments located
south of Fifth Street. The Ordinance, in pertinent part, provided that alcoholic beverage
establishments shall cease operations no later than 2:00 a.m. each night. The City Commission
included an applicability clause, exempting from the 2:00 a.m. termination time any alcoholic
beverage establishment with a valid business tax receipt(BTR)or land use board approval issued
prior to June 28, 2016.
Page 540 of 1109
Commission Memorandum Page 2 of 5
On November 2, 2021, pursuant to Resolution No. 2021-31824, the following ballot question was
submitted to the City's voters:
Non-Binding, Straw Ballot Question: Citywide - Changing Alcoholic Beverage
Establishments Sales/Consumption Termination Time
City law allows, subject to exceptions, the sale and consumption of alcoholic beverages at
Alcoholic Beverage Establishments throughout the City, from 8:00 a.m. until 5:00 a.m. the
following day.
Would you support changing this 5:00 a.m. termination time to 2:00 a.m. throughout the
City, with specific locations and related restrictions and exceptions, to be determined by
City Commission by Ordinance?
The ballot question was approved by 56.52% of the voters.
On January 12, 2022, a Special City Commission meeting was held to discuss the results of the
straw ballot referendum and consider different options to implement the will of the voters.
On February 9, 2022, and following a lengthy discussion, the City Commission advanced a
number of ordinances addressing alcohol hours of sale. This particular Ordinance is limited to
alcoholic beverage establishments in the South of Fifth neighborhood.
PLANNING AND LEGAL ANALYSIS
The South of Fifth neighborhood is composed of a mix of multifamily residential buildings of
varying scales with commercial districts interspersed throughout. Within this neighborhood,
residential uses are often immediately adjacent to commercial districts.
The City Code permits restaurant and bar uses within the PS Performance Standard zoning
districts,which, absent mitigation and appropriate regulation, could be incompatible with adjacent
residential uses in the South of Fifth neighborhood. Entertainment is prohibited in the South of
Fifth neighborhood, though several non-conforming establishments remain in operation.
Permitted uses, however, do include large restaurants, stand-alone bars, as well as outdoor food
and beverage service, where alcoholic beverages are sold and consumed.
As summarized above, to mitigate the impacts of late-night drinking on neighboring residential
properties, on November 9, 2016, the City adopted Ordinance No. 2016-4054, which limited the
hours of operation of alcoholic beverage establishments in PS Performance Standard Districts
located south of Fifth Street (see map attached to this report), with certain exceptions, to 2:00
a.m. Prior to the adoption of Ordinance No. 2016-4054, alcoholic beverage establishments were
permitted to remain open until 5:00 a.m.
As part of Ordinance No. 2016-4054, the City Commission, at its discretion, and as a legislative
matter, exempted from the 2:00 a.m. termination time any alcoholic beverage establishment with
a valid BTR that was in application status or issued prior to June 28, 2016; or an establishment
that obtained approval for an alcoholic beverage establishment from a land use board, and which
land use board order was active and had not expired, prior to June 28, 2016. Any such exempt
alcoholic beverage establishments are, instead, subject to the general rule in Section 6-3(a)(3) of
the City Code, which permits the sale and service of alcoholic beverages.at alcoholic beverage
establishments until 5:00 a.m. each night.
•
Page 541 of 1109
Commission Memorandum Page 3 of 5
Due to continuing, negative quality-of-life impacts of pre-existing alcoholic beverage
establishments, it is now recommended that the exemption be removed so that the sale and
service of alcohol for on-premises consumption at all alcoholic beverage establishments in the
South of Fifth neighborhood would be required to terminate by 2:00 a.m. Specifically, the
proposed Ordinance amends the regulations for PS Districts located south of Fifth Street, to
repeal the existing exemption from the 2:00 a.m. termination time for alcoholic beverage
establishments with a BTR or land use board order issued prior to May 21, 2016. The Ordinance
also clarifies that the 2:00 a.m. restriction is for sale and consumption of alcoholic beverages and
repeals other exemptions to limitations that were adopted in Ordinance No. 2016-4054.
Florida law grants municipalities broad authority to regulate the sale of alcoholic beverages.
Specifically, Section 562.14, Florida Statutes, expressly authorizes municipalities to establish
hours of sale for alcoholic beverages by ordinance:
562.14 Regulating the time for sale of alcoholic and
intoxicating beverages; prohibiting use of licensed
premises.—
(1) Except as otherwise provided by county or municipal
ordinance, no alcoholic beverages may be sold, consumed, served,
or permitted to be served or consumed in any place holding a
license under the division between the hours of midnight and 7 a.m.
of the following day. [ . . .
Under State Law, the termination time for the sale and service of alcoholic beverages for on-
premises consumption is 12:00 midnight, except as otherwise provided by local Ordinance.
The City has, within its express authority to set alcohol hours of sale that are different from State
Law, adopted a 5:00 a.m. termination time for the sale of alcoholic beverages for on-premises
consumption. This 5:00 a.m. termination time is set forth in Chapter 6 of the City Code.'
In addition to the City's express statutory authority, relevant case law supports the City
Commission's legislative discretion to modify alcohol hours of sale:
• Florida courts have determined that it is within the police power for a municipality to
change the hours of sale of alcoholic beverages, because municipalities have the statutory
authority under Section 562.14, Florida Statutes, to restrict the sale of alcohol. Village of
North Palm Beach v. S &H Foster's, Inc., 80 So. 3d 433 (Fla. 4th DCA 2012).
• In State ex rel. Floyd v. Noel, 124 Fla. 852 (Fla. 1936), the Florida Supreme Court
recognized that"[i]t is so well settled that no citation of authority is required to support the
statement that a municipality exercising the powers inherent in municipal corporations may
reasonably regulate the sale of intoxicating liquors and in providing such reasonable
regulations may prohibit the sale of such liquors within certain hours, and also may prohibit
the sale of liquors within certain zones."
1 The City Commission has also, by Ordinance, adopted exceptions to the 5:00 termination time, for
sidewalk cafes (sale must terminate at 1:30 a.m. and consumption by 2:00 a.m.), during major event
weekends and holidays (sale and service at eligible establishments may continue until 7:00 a.m., subject
to conditions), and in specified geographic areas (2:00 a.m. in the South of Fifth neighborhood, and along
Alton Road, West Avenue, and 41st Street).
Page 542 of 1109
Commission Memorandum Page 4 of 5
• The Florida Attorney General has opined that a municipality may regulate (1)the hours of
sale, (2) locations in which alcoholic beverages may be sold, and (3) the sanitary
conditions under which alcoholic beverages may be dispensed or served to the public.
Op. Att'y Gen. Fla. 59-73 (1959).
• In fact, the Florida Attorney General has opined that different hours may be provided for
different areas in a local ordinance, provided there is reasonable relation to the health,
safety, and morals of the community. Op. Att'y Gen. Fla. 50-288 (1950).
• Florida courts have consistently held that alcoholic beverage establishments are not
entitled to grandfather status as to hours of sale for alcoholic beverages:` See S & H
Foster's, Inc.; Other Place of Miami, Inc. v. City of Hialeah Gardens, 353 So. 2d 861 (Fla.
3d DCA 1978).
• Courts have denied injunctive relief against the enforcement of a municipal ordinance
regulating the time at which alcoholic beverages may be sold, because municipalities have
the statutory authority to set times for sale of alcoholic beverages. Id.; Playpen S., Inc. v.
City of Oakland Park, 396 So. 2d 830 (Fla. 4th DCA 1981).
• The vast majority of Florida courts have also ruled that hours of operation are not a
property right. S. Daytona Rests., Inc. v. City of S. Daytona, 186 So. 2d 78 (Fla. 1st DCA
1966); see also Playpen (rejecting argument that alcohol hours ordinance "[took] away a
vested property right").
Notwithstanding the City's statutory authority to regulate alcohol hours, and the substantial body
of case law that businesses are not vested as to hours, the Circuit Court enjoined the City from
enforcing two (2)separate alcohol hours ordinances in the case of Clevelander Ocean LP v. City
of Miami Beach (Fla. 11th Jud. Cir. Ct. Case No. 2021-11642-CA-01).
•
On June 21, 2021, the Circuit Court enjoined the City from enforcing Ordinance No. 2021-4413
(terminating alcohol sales and consumption at 2:00 a.m. in the MXE district for a defined period
of time). The City appealed and, on March 2, 2022, the 3rd District Court of Appeal ("3rd DCA")
declined to rule on the part of the appeal relating to the alcohol rollback,finding that the issue was
moot, since the ordinance expired on its own terms in December 2021.
On March 2, 2022, the Circuit Court entered an order enjoining the City from enforcing Ordinance
No. 2022-4472 (terminating alcohol sales and consumption at 2:00 a.m. in South Beach during
the Spring Break 2022 High Impact Period) (the"Spring Break Ordinance").
Both Ordinances expired on their own terms before a ruling on the merits by the 3rd DCA could
be obtained. However,the fundamental premise of the Circuit Court's ruling—that the Ordinances
should have been adopted as amendments to the Land Development Regulations—is not
implicated here, because this proposed Ordinance is an amendment to the Land Development
Regulations, requiring review by the Planning Board,two(2)readings and a public hearing before
the City Commission, and approval on a 5/7ths vote of the City Commission.
In addition, although Florida courts have for decades consistently held that businesses are not
vested (or "grandfathered") as to alcohol hours of service, and that municipalities have the
authority to adopt legislation changing alcohol hours(including as to existing establishments), we
anticipate that adoption of this proposed Ordinance, even on a 5/7ths vote following all of the
Page 543 of 1109
Commission Memorandum Page 5 of 5
•
procedural protections for a Land Development Regulation, will be challenged, and that the issue
of vested rights will need to be litigated. To this end, at least one (1) establishment in the South
of Fifth neighborhood has challenged prior alcohol legislation enacted by the City (namely, the
2022 Spring Break Ordinance).
It is likely that any challenge to this Ordinance, and the issue of vested rights as to alcohol hours
of service,will also be heard by the same Court that has twice rejected the City's efforts to regulate
alcohol hours, and has twice expressed an expansive view of property rights, notwithstanding the
established case law with respect to alcohol hours of sale.
•
PLANNING BOARD REVIEW •
The Planning Board held a public hearing on February 22, 2022 and transmitted the Ordinance
to the City Commission with a favorable recommendation by a vote of 7-0. The Planning Board
also recommended that existing low-impact establishments be permitted to continue to serve
alcohol until 5:00 a.m. if they comply with the following criteria:
1. The establishment has an occupant content of less than 100 people.
2. The establishment does not have an entertainment license nor contain a dance hall.
3. The establishment had a valid BTR prior to the date established in the existing regulations.
4. There shall be no outdoor alcohol service or consumption past 2:00 a.m.
5. The establishment shall be subject to any applicable future guidelines and requirements
that may be adopted for alcohol consumption beyond 2:00 a.m.
After reviewing the Planning Board's additional recommendations, the City Attorney and City
Manager recommend that the City Commission adopt the Ordinance without the carveout
recommended by the Planning Board for smaller, existing establishments. The more legally
defensible approach for a defined geographic area, such as the South of Fifth neighborhood, is
to establish uniform hours of sale.
•
UPDATE
The subject Ordinance was approved at First Reading on April 6, 2022 (R5 0). After approval at
First Reading, Commissioner Laura Dominguez became the new sponsor for the Ordinance.
Consistent with all other alcohol hours legislation pending before the City Commission, the
Ordinance has been revised to include a vested rights procedure for a dedicated special
magistrate, appointed by the City Commission, to adjudicate applications by individual
establishments claiming that they are vested as to certain hours of sale.
In light of potential conflicts with similar ordinances specific to alcohol sales in the South of Fifth
neighborhood, which are also pending before the City Commission, the Administration
recommends that these ordinances be discussed and any conflicts resolved prior to adoption.
CONCLUSION
The Administration recommends that the City Commission discuss the subject ordinance and
reconcile any conflicts with similar ordinances, prior to adoption at Second Reading.
ATH/RP/RW/NK/TRM
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