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2008-3591 OrdinanceORDINANCE NO.: 2008-3591 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING MIAMI BEACH CITY CODE CHAPTER 86 ENTITLED "SALES," ARTICLE III THEREOF ENTITLED "NON-PROFIT VENDING AND DISTRIBUTION" BY AMENDING SECTION 86-146 ENTITLED "HOURS OF OPERATION" SO AS TO INCREASE THE ALLOWABLE HOURS OF OPERATION, AMENDING SECTION 86-148 REGARDING PENALTIES TO ESTABLISH APPLICABLE PENALTY FOR NON-PERMIT HOLDERS AND CREATING CODE SECTIONS 86-149 AND 86-150 TO ESTABLISH PENALTIES FOR PERMIT HOLDERS; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. That Miami Beach City Code Chapter 86 entitled "Sales," Article III thereof entitled "Non-Profit Vending and Distribution" is hereby amended in part to read as follows: Sec. 86-146. Hours of Operation. a;~*,.;t,„+° a„ n a,,..t;,.t,~ t,,, „i, „a , „a° mot., o„-,;°,. ~i..., Q.nn „ Nonprofit ~, ~ ~. vending permitted pursuant to this Article is prohibited between 12:00 a.m. (midnight) and 8:00 a.m., except on Saturday and Sunday when said vending is prohibited between 2:00 a.m. and 8:00 a.m. All tables, displays, signs and inventory used in the sale and distribution of merchandise shall be removed daily from the public property no later than 30 minutes after s~rset the permitted time period has expired. Sec. 86-148. No Permit: Penalty ~ ~--~~°'~*~°„ °~~~-*~°'°. ~u~ierr~rthi~--ardl Engaging in nonprofit vending and distribution from a portable table or any other item placed upon public property for displa~~urposes without a permit shall constitute a nuisance and be punishable as provided in Code section 1-14. Sec 86-149. Permit Obtained: Penalty for Non-Compliance. ~a) Any violation of this Article by a permit holder shall result in said permit holderbein~ served with a Notice of Violation subject to the following fines and penalties: ~1) First offense: $50.00; (2) Second offense in the previous 12-month period• $100 00• ineligible for application for permit for one quarter. ~3) Third offense in the previous 12-month period: $250.00• immediate revocation of permit• ineligible for application for permit for two quarters. (bl Notwithstanding the above the Cit~may also direct the nonprofit vendor to immediately cease and desist the activity in violation of this Article. Failure to immediatel~omply with the order to cease and desist the activity in violation of this Article shall result in additional fines and may result in suspension or revocation of the permit Following suspension or revocation of a permit upon written request of the permit holder the ci mana~~er or the manager's designee shall hold a hearing within ten days after recut of such request at which time the manager or designee will hear the facts constituting the basis for the modification suspension or revocation, hear the statements for or against such action by interested persons and then make a decision affirming modif 'nn~~, or reversing the action to be taken with respect to the permit. Such decision may be announced orally at the hearing or in writing within ten days after the hearing. Appeals from a decision of the city manager or the manager's designee shall be to the appellate division of the circuit court in accordance with the rules of appellate procedure. Sec.86-150. Rights of violators• payment of fine• ri hg t to appeal; failure topay civil fine or to appeal. (a) A violator who has been served with a Notice of Violation, shall elect either to: - 1. Pay the civil fine in the manner indicated on the Notice; or 2. Request an administrative hearing before a special master, appointed as provided in section 30-36 by the city commission to appeal the decision of the code compliance officer which resulted in the issuance of the Notice of Violation. fib) The procedures for appeal shall be as set forth in Code section 102-385. (c) The special master may not waive or reduce fines set by this Article if a violation is established. (d) If the named violator after notice fails today the civil fine or timely fails to request an administrative hearing before a special master, the special master shall be informed of such failure by report from the code compliance officer. Failure of the named violator to appeal the decision of the code compliance officer within the prescribed time period shall constitute a waiver of the violator's right to administrative hearing. A waiver of the right to administrative hearing shall be treated as an admission of the violation, and penalties maybe assessed accordingly. fie) An~partYaggrieved by the decision of a special master may appeal that decision to a court of competent jurisdiction as provided in F.S. ~ 162.11. 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, sentence, clause or phrase of this ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ordinance. 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 a part of the Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or re-lettered to accomplish such intention, and the word "ordinance" maybe changed to "section," "article," or other appropriate word. SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect the 26th day of January. 2008. PASSED and ADOPTED this 16th day of January , 2008. ATTEST: X MAYbR liatti H. Bower U ~~~~~ ROBERT PARCHER CITY CLERK T:\AGENDA\2007\dec1207\Regular\Non-Profit Vending Hours of Operation Section 86-146 (3).doc APPRt7VED ~S'C~ ~4~N, & t~4hiGUAGE ~ ~R EXECI~Ta~N 3 l J ~D Ct~iy RS#ac^t-~sy COMMISSION ITEM SUMMARY Condensed Title: An Ordinance Amending Miami Beach City Code Chapter 86 Entitled "Non-Profit Vending And Distribution" By Amending Section 86-146, Entitled "Hours Of Operation" So As To Increase The Allowable Hours Of Operation, Amending Section 86-148 Regarding Penalties To Establish Applicable Penalty For Non-Permit Holders And Creating Code Sections 86-149 And 86-150 To Establish Penalties For Permit Holders; Providing For Repealer, Severability, Codification And An Effective Date. Ke mtenaea outcome su ortea: Maintain Miami Beach public areas and rights of ways, especially in business districts. Supporting Data (Surveys, Environmental Scan, etc.): 51 % of businesses in South Beach are satisfied ith the fairness and consistency of enforcement of zoning and ordinances by the City of Miami Beach overnment for businesses; and the fairness/consistency of code enforcement of zoning and ordinances is ke driver of ci overnment o en and interested in hearin business concerns. Issue• Shall the City Commission approve, on second reading, an ordinance amending Section 86-146 of the City Code to create consistency with Section 18-901-910? Item Summa SECOND READING PUBLIC HEARING The proposed amendment creates consistency between Section 86-141-148 and Section 18-901-910 as it relates to the hours of operation for both non-profit vendors and artist vending and street performers and the removal of merchandise. The amendment expands the hours for non-profit vending daily between midnight and 8:00 a.m. except on Saturday and Sunday when they are prohibited between 2:00 a.m. and 8:00 a.m. and provides forwhen all items must be removed. In addition, it is proposed that the ordinance be amended to incorporate a fine and penalty section similar to the artist vending/street perfommer ordinance. Consistent with 18-901-910, penalties for non-compliance include a fine schedule of $50 for a first offense, $100 for a second offense in t he previous 12-month period and ineligibility for application for permit for one quarter, $250 for a third offense and ineligibility for application for permit for two quarters. There will also be additional fines and suspension or revocation of the permit. The amendment also establishes an appeal process for violators, which includes paying the civil fine or requesting an administrative hearing. If the violator fails to pay the fines or request a timely hearing, the violator waives the right to a hearing and shall be treated as an admission of the violation, and penalties may be assessed accordingly. This ordinance will create uniformity for all vendors on Ocean Drive and Lincoln Road and assist with the City's compliance efforts. This ordinance was approved on first reading at the December 12, 2007, commission meeting. Please note that the non-profit vendors on Ocean Drive were again noticed regarding this amendment. -dvisory Board Recommendation: This item was discussed at the Neighborhoods /Community Affairs Committee held on November 14, 2007. Financial Information: Source of Amount Account Funds: 2 3 OBPI Total Financial Impact Summary: Since there is now a fine schedule for non-compliance, there will be a ositive fiscal im act with this ordinance throu h the issuance of civil fines. Ci Clerk's Office Le islative Trackin Vivian P. Guzman, Director, Neighborhood Services Department Sinn-Offs: ~ Department Director ~ Assistant City Manager ~ City Manager ~ nuary ~, /~ ~ ~ ~ /~ j"'` ~ AGENDA ITEM ~'' f ~/ ~ 1`~+-11~~+ DATE I - Q MIAMIBEACH City of Miami Beoch, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti H. Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: January 16, 2008 SECOND READING PUBLIC HEARING SUBJECT: AN ORDINANCE OF THE MAYOR AND .CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING MIAMI BEACH CITY CODE CHAPTER 86 ENTITLED "NON-PROFIT VENDING AND DISTRIBUTION" BY AMENDING SECTION 86-146, ENTITLED "HOURS OF OPERATION" SO AS TO INCREASE THE ALLOWABLE HOURS OF OPERATION, AMENDING SECTION 86-148 REGARDING PENALTIES TO ESTABLISH APPLICABLE PENALTY FOR NON- PERMIT HOLDERS AND CREATING CODE SECTIONS 86-149 AND 86-150 TO ESTABLISH PENALTIES FOR PERMIT HOLDERS; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION Adopt the ordinance on second reading. ANALYSIS On September 24, 1997, the City Commission approved an ordinance regulating non-profit vending on Ocean Drive and Lincoln Road. Section 86-141-175 provides a permitting process for five (5) non-profit vending/distribution areas, three (3) on the east side of Ocean Drive and two (2) on Lincoln Road, to be assigned on a quarterly basis. In developing the proposed amendment to 18-901-910 (artist vendors/street performers) approved by the City Commission on December 12, 2007, staff, in conjunction with legal, reviewed the non-profit vending ordinance (86-146) to ensure consistency between the two ordinances as it relates to the administrative rules, hours of operation, size restrictions, penalties for violations, etc. While artist vendor/street performers and non-profit vendors are not engaged in identical activities, all of these activities are constitutionally protected. As such, it is the recommendation of our staff and legal department that both these ordinances provide for similar processes, penalties and administrative rules, as may be applicable. This section does not affect the city's existing regulations regarding charitable solicitation or the city's prohibition on other commercial vending outside of an enclosed structure. The proposed ordinance was approved on first reading on December 12, 2007. Commission Memorandum January 16, 2008 Page 2 of 2 PROPOSED ORDINANCE AMENDMENT The proposed amendment creates consistency between Section 18-901-910 and Section 86-141-148, as it relates to the hours of operation for both non-profit vendors and artist vending and street performers, and the removal of merchandise. The amendment expands the hours for non-profit vending daily between midnight and 8:00 a.m. except on Saturday and Sunday when they are prohibited between 2:00 a.m. and 8:00 a.m., and specifies by when all tables, displays, signs and inventory must be removed. As you can note, this amendment significantly expands the hours of operation for non-profit vendors. The proposed amendment to the non-profit vending ordinance also incorporates fine and penalty section to make it consistent with the artist vendor/street performer ordinance that already has a specific fine and penalty schedule. The penalty section for non-compliance includes the same schedule, as follows: (1) $50 for a first offense; (2) $100 for a second offense in the previous 12-month period and ineligibility for application for permit for one quarter; and (3) $250 for a third offense and ineligibility for application for permit for two quarters. Consistent with 18-901-910, the City may also direct the non-profit vendor to immediately cease and desist. any unauthorized activity. Failure to immediately comply can result in additional fines and suspension or revocation of the permit. An appeal process for violators is also included. In addition, as you may recall on June 6, 2007, the City Commission amended 86-146 to establish an administrative rules process for non-profit vendors. These administrative rules are being developed to mirror (as applicable) the administrative rules for 18-901-910, including what is permitted for table size, etc. This proposed ordinance amendment will create uniformity for all vendors on Ocean Drive and Lincoln Road, and assist with the City's compliance efforts. FISCAL IMPACT SUMMARY The proposed fine schedule for non-compliance could result in a positive fiscal impact if fines are issued. CONCLUSION The City Administration recommends that the City Commission approve the proposed amendment to the ordinance on second reading/public hearing. JMG/HMF/vpg T: WG E N DA\2007\dec1207\Regular\Non ProfitVendorMemo.doc m MIAMLBEACH CITY OF MIAMI BEACH NOTICE OF PUBLIC HEARING NOTICE IS HEREBY given that a second reading and public hearings will be held by the Mayor and City Commission of the City of Miami Beach, Florida, in the Commission Chambers, 3rd floor, City Ha11,1700 Convention Center Drive, Miami Beach, Florida, on Wednesday, January 16, 2008, to consider the following: 10:15 a.m. An Ordinance Amending Miami Beach City Code Chapter 86 Entitled "Sales," Article III Thereof Errtitted "Non-Profrt Vending And Distribution" By Amending Section 86-146 Entitled "Hours Of Operation" So As To Increase The Allowable Hours Of Operation, Amending Section 86-148 Regarding Penalties To Establish Applicable Penalty For Non-Permit Holders And Creating Code lions 86-149 And 86-150 To Establish Penalties For Permit Holders. Inquiries may be directed to the Neighbofiood Services Department at (305) 673-7077. 5:15 p.m. An Ordinance Amending The Land Development Regulations Of The Code Of The City Of Miami Beach, By Amending Sedfon 114-1, "Definitions;" Amending Chapter 142, "Zoning Districts And Regulations," Article II, "District Regulations," Division 10, "HD Hospital District," By Adding New Section 142-455 "Special Use Regulations," Providing Criteria For Permitting Certain Hospital Accessory Uses Independent Of The Main Hospital Use And Regulations Following Demolition Of Hospital Structures; Amending Chapter 142, "Zoning Distrids And Regulations," Article II, "District Regulations," Division 10, "HD Hospital District," By Adding New Section 142-456, "Rezoning Of HD District," Providing Procedures And StandaMs For Rezoning. Inquiries may be directed to the Planning Department at (305) 673-7550. INTERESTED PARTIES are invited to appear at this meeting, or be represented by an agent, or to express their views in writing addressed to the City Commission, c/o the City Clerk, 1700 Convention Center Drive,1st Floor, City Hall, Miami Beach, Florida 33139. Copies of these ordinances are available for public inspection during normal business hours in the City Clerk's Office, 1700 Convention Center Drive,1st Floor, City Hall, and Miami Beach, Florida 33139. This meeting may be continued and under such circumstances additional legal notice would not be provided. Robert E. Percher, City Clerk City of Miami Beach Pursuant to Section 286.0105, Fla. Stet., the City hereby advises the public that: if a person decides to appeal any decision made by the City Commission with respell to any matter considered at its meeting or its hearing, such person must ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admissiar of otherwise inadmissible or irrelevant evidence; nor does tt authorke challenges or appeals not otherwise allowed by law. To request this material in accessible format, sign language interpreters, information on access for persons with disabilities, and/or any accommodation to review any document or participate in any city-sponsored proceeding, please contact (305) 604- 2489 (voice), (305)673-7218(TTY) five days in advance to initiate your request. TTY users may also call 711 (Florida Relay Service). Ad #473 ~s Z ,.