Ordinance 2024-4588 ORDINANCE NO. 2024-4588
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 70-1 THEREOF, ENTITLED "STATE
MISDEMEANORS," BY ADOPTING,THROUGH SPECIFIC REFERENCE, THE
STATE LAW MISDEMEANOR OFFENSES OF ASSAULT, LOITERING OR
PROWLING, AND DISORDERLY CONDUCT ON THE PREMISES OF AN
ESTABLISHMENT, TO AFFIRMATIVELY ESTABLISH OFFENSES AGAINST
MUNICIPAL LAW FOR THE SAME ACTS THAT CONSTITUTE SUCH
OFFENSES AGAINST STATE LAW; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, on September 25, 2017, the Mayor and City Commission adopted Resolution
No. 2017-30023, which authorized the City Attorney's Office to commence the in-house
prosecution, by and through a City municipal prosecution team, of those individuals exclusively
charged with violating the City's criminal ordinances; and
WHEREAS, the Miami-Dade State Attorney's Office (the "Miami-Dade SAO") continues
to be the prosecutorial entity responsible for the prosecution of those offenders arrested for the
commission of all felony, misdemeanor, and/or County ordinance violations committed in Miami-
Dade County; and
WHEREAS, due in part to its reputation as an internationally renowned tourist destination
and the constant heavy influx of tourists and other visitors, the City continues to contend with
many criminal, quality of life offenses being committed within its jurisdictional bounds; and
WHEREAS,the commission of misdemeanor and municipal ordinance offenses adversely
impact residents' quality of life and tourists' vacation experience, and continue to generate an
inordinate number of issues and complaints from the City's residents, visitors, and business
establishments; and
WHEREAS, some of those misdemeanor offenses which most adversely affect the City's
residents, visitors, and businesses include battery, indecent exposure, criminal mischief, and
breach of the peace/disorderly conduct; and
WHEREAS, in order to acquire greater control and discretion regarding the prosecution
of those identified misdemeanor offenses occurring in the City, and to relieve the Miami-Dade
SAO of some of its prosecutorial burden, the City desires to become the entity responsible for the
prosecution of those specified State law misdemeanor offenses (excluding domestic battery
cases); and
WHEREAS, Florida caselaw has established that a municipality may enact an ordinance
which creates an offense against municipal law for the same act that constitutes an offense
against State law(see Jaramillo v. City of Homestead, 322 So.2d 496 (Fla. 1975)); and
WHEREAS, Florida law has further established that a municipality, by ordinance, may
adopt State misdemeanor statutes by specific reference or by general reference, such as that
contained in an ordinance making it unlawful to commit, within City limits, any act which is (or
shall be) recognized by the laws of the State as a misdemeanor(Id. at 498); and
WHEREAS, the City previously established, pursuant to Section 70-1 of the City Code,
that it is unlawful for any person to commit within the City any act that is (or shall be) recognized
by the laws of the State as a misdemeanor and that the commission of such acts is forbidden;
and
WHEREAS, on January 20, 2022, the Mayor and City Commission adopted Resolution
No. 2022-32020, which expanded the City's municipal prosecution program by directing that the
City shall become the primary entity responsible for the prosecution of the State law misdemeanor
offenses of battery(except domestic battery), criminal mischief, and indecent exposure; and
WHEREAS, on March 9, 2022, pursuant to Resolution No. 2022-32020, the Mayor and
City Commission adopted Ordinance No. 2022-4477, which created specific offenses against
municipal law for the same acts that constitute the State law misdemeanor offenses of battery
(non-domestic), criminal mischief and exposure of sexual organs (indecent exposure); and
WHEREAS, on October 26, 2022 the Mayor and City Commission adopted Ordinance No.
2022-4520 which created a specific offense against municipal law for the same acts that
constitutes the State law misdemeanor offense of breach of the peace/disorderly conduct; and
WHEREAS, the Mayor and City Commission hereby desire to adopt the following
amendments in order to further expand the City's municipal prosecution program by creating,
through specific reference, offenses against municipal law for the same acts that constitute the
State law misdemeanor offenses of assault, loitering or prowling, and disorderly conduct on the
premises of an establishment.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That the section of the City Code creating offenses against municipal law for
the same acts that constitute misdemeanor offenses against State law, as such Ordinance
is codified in section 70-1 of the City Code, be amended as follows and as hereinafter set
forth below:
CHAPTER 70
MISCELLANEOUS OFFENSES
ARTICLE I. IN GENERAL
* * *
2
Sec: 70-1. State misdemeanors.
(a) It shall be unlawful for any person to commit within the city any act that is or shall be
recognized by the laws of the state as a misdemeanor, and the commission of such acts is
hereby forbidden.
(b) Notwithstanding subsection (a), the following misdemeanor(s) under state law are eligible to
receive a civil violation notice, at the discretion of a law enforcement officer, provided that
such violations are not charged in conjunction with any charge that is a felony, driving under
the influence, incident involving domestic violence, or violent crime, as those terms are
defined under state law:
(1) Possession of cannabis in an amount of 20 grams or less, as set forth in F.S. §
893.13(6)(b), as such may be amended from time to time; and/or
(2) Possession of drug paraphernalia, as set forth in F.S. §§ 893.146 and 893.147(1)(b),
as such may be amended from time to time.
An individual issued a civil violation notice for a violation of subsection (b)(1) or(2) will
be subject to the fine set forth herein.
(3) Penalties and enforcement.
a. (Civil fine.]A person violating subsection (b)(1) or (2) shall receive a civil fine of
$100.00.
b. Enforcement. The Miami Beach police department shall enforce this section. This
shall not preclude other law enforcement agencies from any action to assure
compliance with this section and all applicable laws. If a police officer finds a
violation of (b)(1) or (2), the police officer will 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 magistrate 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. Rights of violators; payment of fine; right to appear; failure to pay civil fine or to
appeal; appeals from decisions of the special magistrate.
1. 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 magistrate to
appeal the notice of violation, which must be requested within ten
days of the service of the notice of violation.
2. 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 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.
3. If the named violator, after issuance of the notice of violation, fails to pay the
civil fine, or fails to timely request an administrative hearing before a special
magistrate, the special magistrate may be informed of such failure by report
3
from the police officer. The failure of the named violator to appeal the decision
of the police officer within the prescribed time period shall constitute a waiver
of the violator's right to an administrative hearing before the special
magistrate, and shall be treated as an admission of the violation, for which
fines and penalties shall be assessed accordingly.
4. 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 judgement 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. On or after the 61st day following
the recording of any such lien that remains unpaid, the city may foreclose or
otherwise execute upon the lien.
5. Any party aggrieved by a decision of a special magistrate may appeal that
decision to a court of competent jurisdiction.
6. The special magistrate 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.
7. The special magistrate shall not have discretion to alter the penalties
prescribed in subsection (3)a.
(c) It shall be unlawful for any person to commit. within the city, any act that is or shall be
recognized as a misdemeanor battery, as such offense is set forth in F.S. § 784.03.
(d) It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor criminal mischief,as such offense is set forth in F.S. §806.13.
(e) It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor exposure of sexual organs (indecent exposure), as such
offense is set forth in F.S. § 800.03.
(f) It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor breach of the peace/disorderly conduct, as such offense is
set forth in F.S. § 877.03.
ig) It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor assault, as such offense is set forth in F.S. § 784.011.
It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor loitering or prowling, as such offense is set forth in F.S.
856.021.
It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor disorderly conduct on the premises of an establishment, as
such offense is set forth in F.S. § 509.143.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
4
SECTION 3. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remaindershall 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 iD day of A:ed rcr407 , 2023.
PASSED AND ADOPTED this 3/ day of Tph[!Gr'}/ , 2023.
•
ATTEST:
v n einer, Mayor
FEB 0 6 2024
Rafael . Granado, City Clerk
(Sponsored by Mayor Steven Meiner and Co-Sponsored by Alex J. Fernandez)
Underline denotes additions Co-Sponsored by Commissioner Joseph Magazine
Strikethreugh denotes deletions r ;j;�sic
h,
- .. 14$ .
APPROVED AS TO
INCOR OAATED = FORM & LANGUAGE
•��,�.9 .a ;$! &FOR EXECUTION
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City Attorney n
o Date
Ordinances - R5 J
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Rafael A. Paz, City Attorney
DATE: January 31, 2024
2:30 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 1, ENTITLED "IN GENERAL," BY
AMENDING SECTION 70-1 THEREOF, ENTITLED "STATE
MISDEMEANORS," BY ADOPTING, THROUGH SPECIFIC REFERENCE,
THE STATE LAW MISDEMEANOR OFFENSES OF ASSAULT, LOITERING
OR PROWLING, AND DISORDERLY CONDUCT ON THE PREMISES OF
AN ESTABLISHMENT, TO AFFIRMATIVELY ESTABLISH OFFENSES
AGAINST MUNICIPAL LAW FOR THE SAME ACTS THAT CONSTITUTE
SUCH OFFENSES AGAINST STATE LAW; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION,AND AN EFFECTIVE DATE.
BACKGROUND/HISTORY
Was Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481, includes a
principal engaged in lobbying? No
If so, specify name of lobbyist(s)and principal(s): N/A
ANALYSIS
The proposed Ordinance is submitted for second reading/public hearing at the January 31, 2024 City
Commission meeting after being unanimously approved, without modification, at first reading on
December 13, 2023.
SUPPORTING SURVEY DATA
N/A
FINANCIAL INFORMATION
N/A
Is this a"Residents Right Does this item utilize G.O.
to Know" item, pursuant to Bond Funds?
City Code Section 2-14?
No No
Page 1143 of 2002
Legislative Tracking
Office of the City Attorney
Sponsor
Mayor Steven Meiner and Co-sponsored by Commissioner Alex Fernandez
ATTACHMENTS:
Description
o BIE Published 01-11-2024, Commission Memorandum, and Ordinance
Page 1144 of 2002
B Ei' 1' F-I
City of Miami Beach. 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Aline T. Hudak, City Mana.r - ,
MEETING DATE: January 31, 2024
SUBJECT: BUSINESS IMPACT ESTIMATE FOR:
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 1,
ENTITLED "IN GENERAL," BY AMENDING SECTION 70-1 THEREOF, ENTITLED "STATE
MISDEMEANORS," BY ADOPTING, THROUGH SPECIFIC REFERENCE, THE STATE LAW
MISDEMEANOR OFFENSES OF ASSAULT,LOITERING OR PROWLING,AND DISORDERLY
CONDUCT ON THE PREMISES OF AN ESTABLISHMENT,TO AFFIRMATIVELY ESTABLISH
OFFENSES AGAINST MUNICIPAL LAW FOR THE SAME ACTS THAT CONSTITUTE SUCH
OFFENSES AGAINST STATE LAW; AND PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION,AND AN EFFECTIVE DATE.
Is a Business Impact Estimate Required?
H Yes ❑ No (If no, please check one of the boxes below)
If one or more boxes are checked below, this means the City of Miami Beach has determined that
a Business Impact Estimate for the above-referenced Ordinance is not required by State law.
❑ The proposed Ordinance is required for compliance with Federal or State law or
regulation;
❑ The proposed Ordinance relates to the issuance or refinancing of debt;
❑ The proposed Ordinance relates to the adoption of budgets or budget amendments,
including revenue sources necessary to fund the budget;
❑ The proposed Ordinance is required to implement a contract or an agreement, including,
but not limited to, any Federal, State, local, or private grant or other financial assistance
accepted by the City;
❑ The proposed Ordinance is an emergency ordinance;
❑ The Ordinance relates to procurement; or
O The proposed Ordinance is enacted to implement the following:
a. Part II of Chapter 163, Florida Statutes, relating to growth policy, county and municipal
planning, and land development regulation, including zoning, development orders,
development agreements and development permits;
b. Sections 190.005 and 190.046, Florida Statutes, regarding community development
districts;
c. Section 553.73, Florida Statutes, relating to the Florida Building Code; or
d. Section 633.202, Florida Statutes, relating to the Florida Fire Prevention Code.
Page 1145 of 2002
Business Impact Estimate
Page 2
If none of the above exceptions apply, this Business Impact Estimate is hereby provided in
accordance with Section 166.041(4), Florida Statutes.
1. A summary of the proposed Ordinance and its purpose is more fully set forth in the
Commission Memorandum accompanying the Ordinance, as well as in the recitals to the
Ordinance itself, which are attached hereto. '
2. The City of Miami Beach estimates that the proposed Ordinance will have no direct economic
impact on private, for-profit businesses in the,City of Miami Beach, that the proposed Ordinance
will have no direct compliance costs that businesses may reasonably incur; that the proposed
Ordinance will not impose any new charge or fee for which businesses will be financially
responsible, and that the proposed Ordinance will not impact the City of Miami Beach's
regulatory costs and will not generate any revenue from new charges or fees..
3. Good faith estimate of the number of businesses likely to be impacted by, the proposed
Ordinance:
The City of Miami Beach estimates that no businesses are likely to be impacted by the proposed
Ordinance.
4. Additional comments: None.
•
Page 1146 of 2002
MAMBEACH
Rafael A.Paz,City Attorney
City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139.www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Steven Meiner
Members of the City Commission
FIRST READING
FROM: Rafael A. Paz, City Attorney
DATE: December 13, 2023
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 70-1 THEREOF, ENTITLED "STATE MISDEMEANORS,"
BY ADOPTING, THROUGH SPECIFIC REFERENCE, THE STATE LAW
MISDEMEANOR OFFENSES OF ASSAULT, LOITERING OR PROWLING, AND
DISORDERLY CONDUCT ON THE PREMISES OF AN ESTABLISHMENT, TO
AFFIRMATIVELY ESTABLISH OFFENSES AGAINST MUNICIPAL LAW FOR
THE SAME ACT(S) THAT CONSTITUTE SUCH OFFENSES AGAINST STATE
LAW; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION,
AND AN EFFECTIVE DATE.
The proposed Ordinance, sponsored by Mayor Steven Meiner, seeks to adopt, by specific
reference, the state law misdemeanor offenses of(1)assault;(2) loitering or prowling, and (3)
disorderly conduct on the premises of an establishment. The Ordinance would affirmatively
make the conduct underlying these crimes offenses against municipal law for the same acts that
constitute such offenses against State law, and thereby permit the City's Municipal Prosecution
Team to prosecute such criminal violations under City law. The proposed Ordinance is scheduled
for First Reading on December 13, 2023 and Second Reading in January 2024.
On September 25, 2017, the Mayor and City Commission adopted Resolution No. 2017-
30023,.which authorized the City Attorney's Office to commence the in-house prosecution, by and
through a City municipal prosecution team, of those individuals exclusively charged with violating
the City's criminal ordinances. However, the Miami-Dade State Attorney's Office (the "Miami-
Dade SAO")remained the prosecutorial entity responsible for the prosecution of persons arrested
for the commission of all felony, misdemeanor, and/or County ordinance violations committed_in
Miami-Dade County.
No doubt due in part to its reputation as an internationally renowned tourist destination
and the constant heavy influx of tourists and other visitors, the City continues to contend with
many criminal, quality of life offenses being committed within its jurisdictional bounds. The
commission of misdemeanor and municipal ordinance offenses in the City adversely impact
residents'quality of life and tourists'vacation experience, and continue to generate an inordinate
number of issues and complaints from the City's residents, visitors, and business establishments.
Page 1147 of 2002
Commission Memorandum—Amending Section 70-1 —Adopting State Law Misdemeanors of
Assault, Loitering or Prowling, and Disorderly Conduct on Premises of an Establishment
December 13, 2023
Page 2
Some of those misdemeanor offenses which most adversely affect the City's residents,
visitors, and businesses include battery, indecent exposure and criminal mischief. In order to
acquire greater control and discretion regarding the prosecution of such offenses occurring within
the City, and to relieve the Miami-Dade SAO of some of its prosecutorial burden, the City desired
to become the primary entity responsible for the prosecution of those specified State law
misdemeanor offenses (excluding domestic battery cases). Accordingly, on March 9, 2022, the
Mayor and City Commission adopted Ordinance No. 2022-4477, which created specific offenses
against municipal law for the same acts that constitute the State law misdemeanor offenses of
battery(non-domestic), criminal mischief and exposure of sexual organs (indecent exposure).
Most recently, on October 26, 2022, the Mayor and City Commission adopted Ordinance
No. 2022-4520, which created a specific offense against municipal law for the same act(s) that
constitute the State law misdemeanor offense of breach of the peace/disorderly conduct.
The proposed Ordinance would create, through specific reference, offenses against
municipal law for the same acts that constitute the State law misdemeanor offenses of assault,
loitering or prowling, and disorderly conduct on the premises of an establishment, as such
offenses are set forth in Fla. Stat. 784.011, Fla. Stat. 856.021,and Fla.Stat.509.143, respectively.
Florida caselaw has established that a municipality may enact an ordinance which creates an
offense against municipal law for the same act that constitutes an offense against State law.
Under Florida law, a municipality may, by ordinance, adopt State misdemeanor statutes by
specific reference or by general reference, such as that contained in an ordinance making it
unlawful to commit, within City limits, any act which is(or shall be) recognized by the laws of the
State as a misdemeanor.
The Florida Supreme Court has determined that Florida's loitering or prowling statute, as
set forth in Fla. Stat. 856.021, is constitutional. See State v. Ecker, 311 So. 2d 104 (Fla. 1975).
To mitigate vagueness concerns, the criminal offense of loitering requires that a person be in a
place at a time or manner that is unusual for a law-abiding citizen, and further, that circumstances
exist which warrant a justifiable and reasonable alarm or immediate concern for the safety of
• persons or property in the vicinity. Therefore, prior to effectuating any arrest for loitering, a police
officer must be able to point to specific and articulable facts which, taken together with rational
inferences therefrom, reasonably warrant a finding that a breach of the peace is imminent or
public safety is threatened.
Fla. Stat. 856.021 also provides that unless flight by the person or other circumstance
makes it impracticable, a law enforcement officer must, prior to effectuating any arrest for the
offense of loitering, afford the person an opportunity to dispel any alarm or immediate concern
which would otherwise be warranted by requesting the person to identify himself or herself and
explain his or her presence and conduct. Moreover, the loitering statute specifically states that
no person shall be convicted of an offense under the statute if the law enforcement officer did not
comply with this procedure or if it appears at trial that the explanation given by the person is true
and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
These same protections would apply if the state misdemeanor criminal offense of loitering is
specifically incorporated as a City criminal ordinance violation.
RAP/MAF/bhs
Page 1148 of 2002