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2008-3598 OrdinanceORDINANCE NO. 2008-3598 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH AMENDING CHAPTER 142, "ZONING DISTRICTS AND REGULATIONS," OF THE CITY CODE, BY AMENDING DIVISION 2, "RS-1, RS-2, RS-3, RS-4 SINGLE-FAMILY RESIDENTIAL DISTRICTS," BY ADDING NEW SECTION 142-109 ENTITLED "COMMERCIAL USE OF SINGLE FAMILY HOMES PROHIBITED"; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, the City's land development regulations ("LDRs") restrict certain residential properties to residential and compatible accessory uses, and commercial uses on such properties are prohibited, except that the LDRs allow film and print permits, garage sales and home based businesses at such properties; and WHEREAS, the LDRs in section 114-1, define commercial uses as: "any activity where there is an exchange of goods or services for monetary gain. Such activities include but are not limited to, retail sales, offices, eating and drinking establishments, theaters and similar uses." WHEREAS, the Administration has reviewed these provisions, among others, and interpreted them to provide that activities in single family homes similar to those identified in the definition of commercial uses are prohibited by the land development regulations. These types of activities include the owner renting out his or her home for a party or event, or receiving other "monetary gain" for such use of the home. They also include the offering for sale from the home of goods, property or services by businesses that more appropriately should be engaged in these activities in commercial zoning districts; and WHEREAS, the Code Compliance Division has reported numerous instances of residential properties being used as party houses, where the house is used for a commercial enterprise for parties instead of as a single family residential use; and WHEREAS, when a single family residence is used as a party house, or other form of commercial gathering, excessive numbers of guests, vehicles and noise are generated, causing inappropriate adverse impacts on the surrounding residences and residential neighborhood; and WHEREAS, the City has a substantial interest in maintaining the aesthetics, character and tranquility of its residential neighborhoods, as well as in regulating traffic flow; this ordinance directly advances these interests; and this ordinance is narrowly tailored to serve those interests; and WHEREAS, such parties and commercial events are more appropriately held in the commercial districts of the City at venues that are designed for such numbers of persons, with the impacts resulting therefrom more appropriately mitigated; and WHEREAS, the City Commission recognizes that owners or lessees of property often hold private parties where they or someone in their household will receive gifts from attendees, and it is not the intent of this ordinance to, and this ordinance does not, prohibit such gifts when the gifts are not compensation for the commercial use of the property, and not a required admittance fee, and such parties are excluded from the definition of commercial use; and WHEREAS, the City Commission recognizes that attendees of private parties often bring food or beverages to assist in party planning or preparation, and it is not the intent of this ordinance to, and this ordinance does not, prohibit such bringing of food or beverages when they are not compensation for the commercial use of the property, and not a required admittance fee, and such parties are excluded from the definition of commercial use; and WHEREAS, the City Commission recognizes that the individual casual sale of personal property to or from visitors to the property or through the Internet does occur, and it is not the intent of this ordinance to, and this ordinance does not, prohibit such casual sales. WHEREAS, Code Compliance has also reported that houses for sale are also being used for the advertising of various commercial products, which are sometimes displayed to and visible to the public street in front of the house; and WHEREAS, the City Commission finds that open houses for the purpose of promoting the sale or lease of a single family residence to potential buyers or renters are uses that may be permitted in single family neighborhoods if regulated to minimize their adverse impacts; and WHEREAS, while residents are entitled to enjoy the use of their single family homes consistent with the applicable regulations in the single family residential districts, in order to ensure and protect the enjoyment, character and value of the single family residential neighborhoods and homes, the provisions herein are hereby adopted; and WHEREAS, this proposed ordinance seeks to codify the Administration's interpretation and to provide a structured framework for enforcement of the interpretation. NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY 2 COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: Section 1. That Section 142-109, "Commercial Use Of Single Family Homes Prohibited," of the Miami Beach City Code, is hereby created as follows: Sec. 142-109. Commercial Use Of Single Family Homes Prohibited. (a) Intent and Purpose: The land development regulations restrict residential properties to residential and compatible accessory uses. Commercial uses on residential properties are prohibited, with limited exceptions. While residents are entitled to enjoy the use of their property consistent with the applicable regulations, in order to ensure and protect the enjoyment, character and value of residential neighborhoods and buildings, the provisions herein are established. (b) Definitions: "Use of residential property" or "use of the property" in this ordinance shall mean occupancy of residential property for the purpose of holding commercial parties, events, assemblies or gatherings on the premises. (c) Regulations: (1) Accessory use of residential property shall be deemed commercial and not permitted, except as otherwise provided for in the Code, if: a. Compensation to Owner. The owner, lessee or resident receives payment or other consideration, e.g., goods, property or services, in excess of $100 per party or event for the commercial use of the property, including payment by any means, direct or indirect, including security deposits; or b. Goods, property or services offered or sold. Goods, propert r~or services are offered for sale or sold on or at the property, during use of the property; however, this subsection shall not apples All of the goods, property or services offered are donated to or for charitable, religious or political organizations or candidates for public office, that have received 501(c)(3) or other tax exempt status under the U.S. Internal Revenue Code, as amended. or in accordance with applicable election laws; or All of the proceeds from sales are directly payable and paid to charitable, religious or political organizations or candidates for public office, that have received 501(c~(3) or other tax exempt status under the U.S. Internal Revenue Code. as amended, or in accordance with applicable election laws. An organization or candidate may reimburse donors for goods or property donated; or (iii) The sale is of the property itself or personal property of the owner or resident (excluding property owned by a business), and if publicly advertised, comply with subsection (3) below. iv) Notwithstandina the restrictions in subsections (1)b(i)-(iii limited commercial use of the property by the owner or resident for the sale of goods, property or services shall be allowed under the following criteria. The event: A. Is by private invitation only, not publicly advertised; B. Creates no adverse impacts to the neighborhood; C. The activity and its impacts are contained on the property; D. Parking is limited to that available on-site, plus eleven (11) vehicles legally self-parked near the property, with no busing or valet service; and E. Frequency is no greater than one event per month; or c. Admittance fees. Use of the property by attendees requires an admittance or membership fee or a donation, excluding donations directly payable and paid by attendees to charitable, religious or political organizations or candidates for public office, that have received 501(c)(3) or other tax exempt status under the U.S. Internal Revenue Code, as amended, or in accordance with applicable election laws. Signs or Advertising. Signs or other forms of advertising in connection with goods, property or services offered in connection with commercial use of the property, including the actual goods, property (except real property and structures thereon) or services, shall not be visible from the public right-of-way. This section shall not be construed to~rohibit the display of real estate for sale or lease signs for the property. Advertising that promotes activities that violate this ordinance shall be deemed a violation of the ordinance, with such violations determined per event and not per advertisement. (3) Real Estate Open Houses. The following events are permitted: Open houses (open to the public) organized for the purpose of promoting the sale or lease of the residence where the open house is located to potential buyers or renters, or events organized by the listing agent limited to licensed real estate brokers and/or agents, subject to the following b. No charging admittance fees. c. Events described in this subsection must end by 8:00 p.m (d) Enforcement: (1) Violations of this section shall be subject to the following fines The special master may not waive or reduce fines set by this ordinance. a. If the violation is the first violation: $2,500.00; b. If the violation is the second violation within the preceding 18 months: $7,500.00; c. If the violation is the third violation within the precedincL 18 months: $12,500.00; d. If the violation is the fourth or greater violation within the preceding 18 months: $20,000.00. Fines for repeat violations shall increase regardless of location. (2) In addition to or in lieu of the foregoing, the City may close down the commercial use of the property and/or seek an injunction against activities or uses prohibited under this section. (3) Any city police officer or code compliance officer may issue notices for violations of this ordinance, with alternative enforcement as provided in section 1-14 and Chapter 30 of this Code. Violations shall be issued to the homeowner, and/or to any realtor, real estate agent, real estate broker, event planner, promoter, caterer, or any other individual or entity that facilitates or organizes the prohibited activities. In the event the record owner of the property is not present when the violation occurred, a copy of the violation shall be provided to such owner. (4) Charitable, religious or political organizations or candidates for public office shall receive one courtesy notice in lieu of the first notice of violation only, after which fines will accrue starting with the first violation as prescribed. No courtesy notice in lieu of first notice of violation shall be available if a courtesy notice in lieu of first notice of violation has already been granted in the preceding eighteen (18~ month period, regardless of location. (5) The City recognizes peoples' rights of assembly, free expression, religious freedom, and other rights provided by the state and federal constitutions. It is the intent of the City Commission that no decision under this ordinance shall constitute an illeaal violation of such rights, and this ordinance shall not be construed as such a violation. (6) The city manager or designee may adopt administrative rules and procedures to assist in the uniform enforcement of this ordinance. ~) No variances shall be granted from this section. This section does not authorize commercial activities in residential neighborhoods that are otherwise prohibited or regulated by applicable law, unless expressly provided for herein. SECTION 2. Repealer. All ordinances or parts of ordinances and all section and parts of sections in conflict herewith be and the same are hereby repealed. This ordinance does not repeal or affect the opinion of the Planning Director that prohibits the rental for less than six months of single- or multi-family residences in any district that does not expressly authorize such transient occupancy. 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 renumbered or relettered 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 13th day of February, 2008. ~ ~ ATT ST: M YOR ~~,~ ~(~~~.- Matti H. Bower CfTY CLERK Robert Parcher First Reading: January 16, 2008 Second Reading: February 13, 2008 Verified by: APPROVED AS TO FORM AND LANGUAGE ~~ & FOR EXECUTION Attorney Date ge~3: Gdmez, AICP nning Director Undersc~'e denotes new language T:WGENDA\2008\February 13\Regular\Comm Use Sngl Fam home ORD Second Reading as amended FINAL.doc 6 COMMISSION ITEM SUMMARY Condensed Title: An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach Amending Chapter 142, "Zoning Districts And Regulations," Of The City Code, By Amending Division 2, "Rs-1, Rs-2, Rs-3, Rs-4 Single-Family Residential Districts," By Adding New Section 142-109 Entitled "Commercial Use Of Single Family Homes Prohibited"; Providing For Repealer, Severability, Codification And An Effective Date, Intenaea outcome 5u Increase satisfaction with neighborhood character. Supporting Data (Surveys, Environmental Scan, Etc. Residents identified addressing noise as one of the changes that would make Miami Beach a better place to live, work, play or visit. Residents in South Beach had the second lowest percentage of all resident groups that felt that the amount of noise in their neighborhood on a typical day was the right amount (67%), but had the highest percentage (23%) of residents indicating traffic is the main reason for the noise. In addition, 67% of residents in South Beach felt that parking availability was too little or much too little. Issue: Shall the Mayor and Commission approve on second reading an ordinance that amends the existing Land Development Re ulations to re ulate commercial activities in sin le famil residential districts? Item Summar /Recommendation: SECOND READING PUBLIC HEARING The land development regulations define, in section 114-1 of the City Code, "commercial uses" as "any activity where there is an exchange of goods or services for monetary gain." Such activities include but are not limited to, retail sales, offices, eating and drinking establishments, theaters and similar uses." The regulations for single family residential zoning districts, RS-1, RS-2, RS-3 and RS-4, provide in section 142-101, "Purpose," that the districts "are designed to protect, and preserve the identity, image, environmental quality, privacy, attractive pedestrian streetscapes, and human scale and character of the single-family neighborhoods and to encourage and promote new construction that is compatible with the established neighborhood context." Section 142-102 requires that the only main permitted uses in these districts be single-family detached dwellings. Sections 142-104, "Accessory Uses" and 142-905, "Permitted accessory uses in single-family districts," only permit accessory uses to be those customarily associated with single family dwellings, listed as "decks, swimming pools, spas, ornamental features, tennis courts," and family day care facility, guest quarters and home based businesses. The Administration has reviewed these provisions, among others, and interpreted them to provide that activities in single family homes similar to those identified in the definition of commercial uses are prohibited by the land development regulations. These types of activities include the owner renting out his or her home for a party or event, or receiving other "monetary gain" for such use of the home. They also include the offering for sale from the home of goods, property or services by businesses that more appropriately should be engaged in these activities in commercial zoning districts. This proposed ordinance seeks to codify the Administration's interpretation and to provide a structured framework for enforcement of the interpretation. It is a fundamental expectation, as well as a zoning requirement, that the single family designation serve to promote and protect the nature of the residential neighborhood and typical residential use, not these types of commercial uses. It is recommended that the Ma or and Commission a rove the item on second readin . Advisory t3oard Recommendation: On May 8, 2006, the Land Use and Development Committee (LUDC) forwarded the proposed ordinance for community input. The proposed ordinance was subsequently referred to Planning Board (PB) for review at their meeting of November 28, 2006. The PB forwarded the proposed ordinance to Commission with recommended amendments. The proposed ordinance and PB recommendations were considered by LUDC on December 11, 2006, with proposed revisions made to adopt the PB recommendatoins. The LUDC forwarded the proposed ordinance to the Commission with additional changes. The ordinance was approved on first reading on January 17, 2007, and referred back to LUDC for additional review. Changes were recommended at LUDC relating to charitable events. The item was opened and continued on second readin . Financial Information: Source of # Amount Match Amount /Source Funds: 1 City staff currently monitors potential commercial uses. Additional costs to engage in research to support any investigation of a violation may occur; those costs are unknown at this time. However, it should be noted that the City incurs expenses at this time .associated with the replacement of damage to Swale and other ri ht-of-way improvements. City Clerk's Office Leg'slative Trac Hilda M. Fernandez, Asst. City Manager Sign-Offs: Department Director ~ % T:WGENDA\2008\February 13\Reg m MIAMIBEACH nt City Manager _I City Manager ngl Fam hone AGENDA ITEM I?S E >~ATE Z ° 1.x...4 ,t• m MIAMI BEACH City of Miami Beach, 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 Manage . DATE: February 13, 2008 SECOND READING PUBLIC HEARING SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH AMENDING CHAPTER 142, "ZONING DISTRICTS AND REGULATIONS," OF THE CITY CODE, BY AMENDING DIVISION 2, "RS-1, RS-2, RS-3, RS-4 SINGLE- FAMILYRESIDENTIAL DISTRICTS," BY ADDING NEW SECTION 142-109 ENTITLED "COMMERCIAL USE OF SINGLE FAMILY HOMES PROHIBITED"; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATDN AND AN EFFECTIVE DATE ADMINISTRATION RECOMMENDATION Approve the ordinance on second reading. BACKGROUND The land development regulations define, in section 114-1 of the City Code, "commercial uses" as "any activity where there is an exchange of goods or services for monetary gain. Such activities include but are not limited to, retail sales, offices, eating and drinking establishments, theaters and similar uses." The regulations for single family residential zoning districts, RS-1, RS-2, RS-3 and RS-4, provide in section 142-101, "Purpose," that the districts "are designed to protect, and preserve the identity, image, environmental quality, privacy, attractive pedestrian streetscapes, and human scale and character of the single-family neighborhoods and to encourage and promote new construction that is compatible with the established neighborhood context." Section 142-102 requires that the only main permitted uses in these districts be single-family detached dwellings. Sections 142-104, "Accessory Uses" and 142-905, "Permitted accessory uses in single-family districts," only permit accessory uses to be those customarily associated with single family dwellings, listed as "decks, swimming pools, spas, ornamental features, tennis courts," and family day care facility, guest quarters and home based kalsinesses. The Administration has reviewed these provisions, among others, and interpreted them to provide that activities in single family homes similar to those identified in the definition of commercial uses are prohibited by the land development regulations. These types of activities include the owner renting out his or her home for a party or event, or receiving other "monetary gain" for such use of the home. They also include the offering for sale from the home of goods, property or services by businesses that more appropriately should be engaged in these activities in commercial zoning districts. This proposed ordinance seeks to codify the Administration's interpretation and to provide a structured framework forenforcement of the interpretation. It is a fundamental expectation, as well as a zoning requirement, that the single family designation serve to promote and protect the nature of the residential neighborhood and typical residential use, not these types of commercial uses. RECAP -NATURE OF THE PROBLEM The attached article from BizBashFla (AttachmentA) illustrates the appeal ofthese large single family homes for this commercial uses (note: BizBash is a national web site/resource for event and meeting planners). The Page 2 of 7 Commercial Use of Single Family Home article references the use of private homes for promotional and specialevents. While events are known to occur during non-major event periods, even on weekdays, historically there has been an increased number scheduled around major event weekends, such as the last Super Bowl, the annual Winter Music Conference, Art Basel Miami Beach and the Boat Show, to name a few. As demonstrated in the attachments to the agenda item on January 16, 2008, these parties at private residences (such as the Star Island location referenced) often compete with events at popular, large nightclubsand other assembly venues in the City. Also at the time of the first reading, the administration provided, for illustrative purposes, a sampling of parties held in single family homes, including examples of events held during the Boat Show in 2005 (presented by International Yachtsman Magazine, with additional sponsors Tiffany, Mercedes, Bacardi, etc.; as well as an invitation for an event coordinated by Land Rover that had been scheduled for a private home on San Marino Island. These events (similar to others that we have identified) served exclusively to launch particular products on behalf of large commercial entities, with the homes rented for purposes of hosting the events. In addition to the prohibition of the commercial use, the size and frequency of these private, commercial parties often create a significant intrusion and undue burden on the surrounding residential neighborhoods. These impacts have been discussed at Commission and Committee meetings and include, among others, inadequate or illegal parking; increased vehicular traffic; Noise; Destruction/litter of the public right-of-way; Higher than usual pedestrian traffic; Frequency of events; and demand on Staff resources. Examples of these impacts, as well as the City's current efforts to mitigate these impacts, were included in the agenda item on first reading, which is requested to be incorporated into the record. In addition, as previously noted, the Land Use and Development Committee (LUDC) will be considering other options to address certain adverse impacts from large assembly uses of single family homes. The development of options seeks a balance that allows our residents the full enjoyment of their homes to which they are entitled, while addressing the significant impact large events have on our residential neghborhoods. RECAP -CURRENT PROCESSES The Code Compliance Division has been proactive in identifying and responding to events that appear to have a commercial intent and characteristic, and have issued violations as appropriate. Internal processes are in place and have been adjusted as needed to ensure that information is shared among City departments that are advised of events that require City support (valet approval, off duty police, etc), to determine if they meet the commercial use standard. For example, regular notification is made to all involved departments (Parking, Neighborhood Services/Code Compliance Division, TCD/Film and Special Events Division, Police, etc.) of all requests for valet permits, off-duty police, fireworks, etc., related to events at a single family home. In addition, the Code Compliance Division regularly conducts web searches to identify homes being used for commercial purposes, with efforts increased during major events periods. When clearly prohibited events have been identified, the Administration has provided notice to the homeowner, and has ensured that the event is closed down and/or has issued the appropriate violation. Violations are issued pursuant to section 114-4(1) and (3) of the Code, which refers to uses not permitted in specific districts. In addition, injunctive relief has been requested and granted with assistance from the City Attorney's office. The past year has included adjudications for homeowners who received violations for commercial use of single family homes, as well as preventing several illegal events from occurring. The determination to request that an event notbe held is done after significant due diligence by staff to ensure there is sufficient evidence of a commercial use. When sufficient evidence cannot be obtained, it has been past practice to permit an event to occur. However, it should be noted that violations can and have been issued after events when documentation supports that an illegal, commercial event has occurred. LEGISLATIVE HISTORY The item was initially referred for discussion in 2006 to the LUDC following resident complaints to the City regarding large parties held in these residential neighborhoods where it was believed that the home was rented to a third party, or payment or other consideration was otherwise given to the homeowner, for the use of their home for the event. In some instances, these events were advertised and open to the general public, often for paid admission. While some residences were believed to be used for this purpose on a regular basis, other homes were being offered for commercial or business promotional purposes, such as product launches. In addition, there were concerns raised that on some occasions the use of a private single family home for a charitable purpose (e.g. to benefit a charitable cause) was used as a mechanism to camouflage a Page 3 of 7 Commercial Use of Single Family Home commercial event, or the frequency of the charitable events at a particular home was adversely impacting residential neighborhoods. It should also be noted that concerns were also raised about real estate open houses that assumed a commercial nature with the inclusion of sponsored activities Because this is an amendment of the Land Development Regulations, the ordinance considered on January 17, 2007 was previously referred by the Commission to the Planning Board for their review and consideration. The Planning Board discussed the item during their meeting of Tuesday, November 28, 2006, and a public hearing on the matter was held. Numerous members of the public were present and spoke. The item was moved by the Planning Board for consideration by the Commission with specific recommendations; those recommendations were considered by the Commission at its meeting on January 17, 2007, and incorporated accordingly. The proposed ordinance is substantially the same as the ordinance approved by the Planning Board and/or less restrictive than the ordinance they initially considered. Following Committee review and input, on January 17, 2007, the Mayor and City Commission considered and approved on first reading a proposed amendment to the Land Development Regulations relating to the use of single family residences for commercial activities. The item elicited significant interest from members of the public. At that time, the item was referred to the LUDC for additional review prior to its consideration at second reading, including further discussion relating to parking impacts and the use of single family homes for charitable events, as well as other comments made during the first reading. Following LUDC review, the item was opened and continued on second reading in March, April, May, July and October. Due to the time elapsed between first and second reading, and to ensure that sufficient public notice was provided to all interested parties, on January 16, 2008 the Commission approved on first reading an ordinance that would amend the Land Development Regulations to prohibit the commercial use of single family homes, except for commercial uses already permitted in the code, and scheduled a second reading, public hearing. That first reading ordinance focused on the issue of commercial uses, as non-permitted uses. In order to address the impacts created not just from illegal commercial events, but also large private events at single family homes, the Commission referred a discussion on potential amendments to the parking ordinance to the LUDC; referred a discussion on short term rental of single family homes to the LUDC; and referred proposed additional amendments to the land development regulations to the Planning Board. PROPOSED ORDINANCE The proposed ordinance has been developed to further define and address the major issues surrounding the commercial use of single family homes, and is designed to focus this ordinance specifically on the issue of commercial uses of private homes, respond to concerns relating to the ordinance being overbroad and provide a framework for the City to address this concern. The City has already established criteria for certain non-residential uses of single family homes (e.g. film and print shoots, garage sales, etc.); those authorized commercial activities are not affected by the proposed ordinance As mentioned during the Commission meeting of January 16, 2008, the proposed ordinance approved on first reading on January 16, 2008 contained most of the significant components of the item approved on January 17, 2007, except additions, deletions or changes as noted below. • Section 142.109 (a) Intent and Purpose: Clarifying language is incorporatedinto the paragraph. • Section 142.109 (b) Definitions: This has been added to provide a definition for "use of residential property" and "use of property" • Section 142-109 (c) Regulations: This section has been further defined and streamlined to focus on the primary issues relating to commercial use. As stated, any payment or other consideration (to include goods, property or services) provided to the homeowner for the use of the property would constitute a commercial use. An amount of $100 has been established as a threshold. • Charitable, political and religious events: The ordinance approved on January 17, 2007 created specific requirements for the use of a home by a charitable or fundraising organization, as well as incorporating voluntary noticing of large political gatherings and political fundraising events, premised on the impact of these events on the neighborhood. Options considered and discussed prior to and during last year's first reading included limitations on the number of charitable events permitted in a calendar year, or Page 4 of 7 Commercial Use of Single Family Home establishing thresholds to determine which charitable events should be regulated (e.g. based on occupancy, on parking availability, etc.). The inclusion of language was intended to - in addition to responding to concerns regarding the frequency and impact of these typically large events -also address concerns that while it is easy to identify charitable events when they are wholly sponsored and coordinated by charitable organizations, there were occasions where commercial events included a "charitable donation" in what was believed as an attempt to legitimize an otherwise commercial activity. As you can note, the proposed ordinance does not include or recommend any restrictions or suggest noticing, as these impacts can and should be addressed as we would impacts from any other large event. However, it is important to clarify that while charitable, political and religious social events in single family homes are not considered commercial uses, any payment (or other consideration) to a homeownerforthe use of their home for the charitable, political or religious social event would constitute a commercial use. In other words, the donation of the use of a home for a charitable, political or religious event would not constitute a commercial activity; it would be a commercial activity if the home were "rented" or other compensation was provided to the homeowner for the use of their home for the aforementioned activities. Payments/donations to attend a charitable, religious or political social event must be made to the charitable, religious or political organization or candidate. The proposed ordinance narrowlyfocuses the issue on whether an event is commercial. Rental of the home for a social event transforms the home into the equivalent of a catering hall, which is notaccepted residential activity. • Section 142.109 (c) 3 -Language is included to address the issue of signage and other advertising relating to events on residential property. • Section 142.109 (c) 4 -Open Houses: The proposed ordinance continues to incorporate specific provisions for open houses. These are intended to address concerns with events that have been called open houses, but have taken on the characteristics of commercial events. As noted, open houses could not be held after 8:00 p.m.; this does not impact private showings. Language has been incorporated to ensure that meetings of realtors at listed homes were not prohibited under this ordinance. • Section 142.109 (d) Enforcement -the proposed ordinance continues to incorporate a specific fine schedule that establishes certain fines for violations. As proposed, these fines cannot be mitigated or waived by the Special Master if a violation of the ordinance is established. It should also be noted that language remains so that violations may be issued to the homeowner, realtor, caterer, event planner or anyone that facilities or organizes prohibited commercial uses of a home. The level of the first violation is intentionally reduced to account for the possibility that the homeowner was not aware of the City's regulations regarding commercial use. The proposed ordinance incorporates a fine schedule with significantly accelerated fines. This is in response to continued comments from residents regarding the necessity for a penalty schedule that would serve as a deterrent, especially when it is speculated that many of the rental rates for these commercial activities generate far more in revenue for the homeowner. As proposed, the initial fine would be $2,500, followed by a quickly increasing fine schedule of $7,500 for a second offense in a calendar year; $12,500 for a third offense in a calendar year; and $20,000 for fourth and subsequent offenses in a calendar year. This section also provided for a courtesy notice for charitable, religious or political organizations for first violations of the ordinance. During the January 16, 2008 Commission meeting, the Commission made suggested modifications to the proposed ordinance and referred the proposed ordinance to the LUDC prior to its consideration on Second Reading on February 13, 2008, including a discussion on the fine/penalty schedule being proposed. ADJUSTMENTS TO ORDINANCE SINCE FIRST READING At the direction of the Commission during the first reading of the ordinance, the item was discussed at the LUDC meeting of January 23, 2008, at which time the Committee members were presented with the proposed ordinance reflecting the modifications approved by the Commission on January 16, 2008. These modifications included: • The term "commercial" added throughout the ordinance to clarify that we are referring to commercial uses of single family homes. Page 5 of 7 Commercial Use of Single Family Home • Language clarifying the types of charitable, religious and/or political events not affected by certain provisions of this ordinance was added. Specifically, charitable, religious and/or political organizations that are recognized as tax exempt, or that follow applicable election laws, would be exempt from Section 142-109 (c) (1) (b) (i-iii). However, other sections are applicable, such as the prohibition for a charitable, religious and/political organization or candidate to pay for the use of the property. • New Section 142-109 (c) (1) (b) (iv), to address the Commission's desire to permit certain commercial uses of a de minimis nature. The intent was to ensure that the typical Tupperware or Avon party continued to be permitted, especially as these events are small in nature and generally have little to no impact on the neighborhood. In developing this language, staff has been mindful of existing provisions in our City Code relating to home-based businesses. A copy of Section 142-1411 - "Home based business office" is provided for your reference (Attachment B). As included in Section 142-109 (c) (1) (b) (iv) of the attached ordinance, the sale of goods, property or services would be permitted, as follows: o Are private, by invitation-only events, not publicly advertised o Present no adverse impact to the neighborhood, and all of the activities are completely contained on the property. This would include no pedestrian overflow, etc. o Parking for attendees is available on-site and/or legal self-parking does not exceed eleven (11) vehicles legally parked adjacent to the property, with no valet or shuttling permitted (six cars on two sides of street, less space for a driveway) o The frequency is no more than one event per month o All other provisions of the ordinance apply, including no payment/compensation forthe use of the property, and no admittance fee charged. In addition, provisions delineated in (c) (2) relating to signs and advertising, apply. o No violation of the home-based business ordinance is permitted. • Language added to Section 142-109 (c) (2) - "Signs or Advertising" to clarify that any penalties are per event, not per sign. • Anew Section 142-109 (c) (6) added to reflect that administrative rules and procedures may be adopted to assist in the uniform enforcement of thisordinance. • Adjustments to language as read into the record on January 16, 2008, such as amending subsection (c)(1)b, "are offered for sale", to insert "or sold"; amending subsection (c)(1)b (i) to change "are donated by" to "are donated to or for"; amending subsection (c)(1)b(iii) to read: "the sale is of the property itself or personal property of the owner or lessee"; and amending subsection (c)(3) to substitute "goods, property," for "products" The LUDC accepted this additional language and, further, approved the fine/penalty schedule as proposed in the ordinance submitted for first reading. As previously noted, the provision granting charitable, religious or political organizations one courtesy notice in lieu of a first violation is included in the ordinance (Section 142- 109 (d) (4)). Further recommendations on this provision are noted below. In addition, the Committee requested that staff meet with interested persons relating to their comments made at the LUDC meeting. A meeting was held on January 29, 2008 with the attorneys that presented their concerns at the Committee meeting, as well as residents from the Sunset I and II homeowners association. The meeting provided a good opportunity for staff to hear the concerns of all parties and determine if additional adjustments to the ordinance should be recommended, especially for purposes of providing clarity; the attendance of all those present was greatly appreciated. Attachment C is the document provided to staff by Attorney Alex Hecklerat the meeting, and that formed he basis of discussion for the meeting. There were nine (9) specific items detailed in the letter from Mr. Heckler. The responses to the issues, and any recommendations, are addressed below: 1) Enforceability - We do not recommend that a process be created requiring homeowners to provide the City with any documentation relating to an event. A homeowner is free to contact the City for clarification on this or any other ordinance, and we would continue to encourage that. Further, there is no evidence that the City has preuously, or would in the future, "arbitrarily" shut down an event. Page 6 of 7 Commercial Use of Single Family Home 2) Penalties -There are two specific recommendations: that the Special Master should be able to mitigate the fines; and that any appeals of the Special Master are made to the Commission. In terms of the latter, Chapter 30, the provision in the City Code relating to the Special Master, already provides relief for any appeals of a decision of the Special Master. We do not recommend that appeals be heard by the City Commission. In terms of the former, the currently proposed penalty schedule provides for a lower fine on first violation than on subsequent violations to address the issue of first-time offenders that presumably did not know of this ordinance. As the ordinance currently provides for a waiver for charitable, religious or political organizations, then the violation would have been issued for other commercial uses. Should the commission wish to consider any level of mitigation, it would be recommended that it only be permitted for the first offense, and that a re-set of the fine/penalty schedule then not occur for a period of (36) months (e.g. not permitting a mitigation of another first offense for a period of 36 months). It should be noted that the residents present did not recommend a mitigation of any fines, and indicated concerns with what they expressed was a fine schedule that was still too low. It should also be noted that the current, proposed ordinance allows for a reset of fines by calendar year. Guidance is requested from the Commission on whetherthis should be adjusted to an eighteen (18) month rolling period. 3) Open Houses -The proposed ordinance does not impact private showings, or the ability for a homeowner to host a private dinner party or social event relating to the sale of the home, but rather focuses on the standard and widely known/accepted concept of an "open house" -namely, that it is advertised as open to the public. As such, clarifying language has been added to this section of the ordinance. Resident representatives at the meeting, who are also registered realtors, expressed no concern with the Open House language, as Open Houses are traditionally concluded prior to 8:00 p.m. 4) Right of Assembly: Our legal department has approved the current language. 5) Connection to other ordinances -This is a matter relating to form; our legal department has approved the current language. 6) Record owner not subject to enforcement for valid leasehold -While this was not discussed at length, the ordinance as written references throughout the severability of responsibility. For example, 142-109 (c) (1) (a) references that compensation to the "owner, lessee or resident" for use of property is not permitted. In addition, Section (d) (3) references that violations may be issued to "any other individual or entity that facilitates or organizes the prohibited activities," which would include persons other than the homeowner. 7) Charitable gifts may be paid back -While the reimbursement by the charity to a donor is not a payment to the homeowner for the use of the property, we have added language in (142-109 (c) (1) (b) (ii) to reflect that "An organization or candidate may reimburse donors for goods or property donated." 8) Clarify the warning citation -All warnings, as well as violations, are tracked via the Code Compliance Division's database system. However, please note that we have included language to clarify that a courtesy notice in lieu of violation cannot be provided if a courtesy notice in lieu of violation has been provided in the preceding 18 months. 9) Tupperware Parties -The intention of the language added is to address the occasional multi-level marketing party. However, this language is not intended to circumvent the existing home-based business ordinance. We believe the guidelines are intended to reduce adverse impacts. The number of cars listed is consistent with ordinances in atleast five (5) other municipalities that have likewise attempted to mitigate the impact from assembly uses in residential neighborhoods. The staff was also provided a letter from attorney Richard Freeman with his observations and recommendations relating to the ordinance (Attachment D). As you will note, these comments, among others, focus mainly on adverse impacts created by commercial events in single family homes. As you are aware, the LUDC will be considering options to address adverse impacts from assembly uses independent of this ordinance. However, it is staff's continued position that the rental of a home for a commercial event, payment to attend a commercial event or the sale/display of goods at an event, are not consistent with the character of a single family residential neighborhood, regardless of theextent of adverse impacts. Lastly, in staff's review of the ordinance in preparation for second reading, and in subsequent to comments Page 7 of 7 Commercial Use of Single Family Home made by both the attorneys as well as the residents at the meeting, the following adjustments to the ordinance have also been made: • Added additional "whereas" clauses and/or provided additional language for "whereas" clauses; • The term "during the use of the propert~l' was added to Section 142-109 (c) (1) (b) for clarity; • Section 142-109 (c) (1) (b) (i-iii) and (c) (1) (c) -the term "or candidates for public office" was added to all references to exemptions applicable for "charitable, religious and political organizations." In addition, the term "or in accordance with applicable election laws" was also added to these sections for further clarification; • Language addressing the concern relating to the reimbursement of donors for goods and services has been added to 142-109 (c) (1) (b) (ii); • Language has been added to 142-109 (c) (1) (b) (iii) to clarify what may be sold by a resident, to address concerns relating to classified ad sates, etc. during a use of the property. • Clarifying language was provided for 142-109 (c) (1) (b) (iv) to ensure we have addressed the intent of this section, which is to provide for certain commercial sales when there is a de minimis impact. Again, the rental of the home or the charging of an admittance fee for this type of an event would be considered a violation of the ordinance. • Clarifying language was added to Section 142-109 (c) (2) to limit the placement of actual goods and property where they can be observed from the public rightof-way; • Language was added to 142-109 (c) (3) - "Open Houses" to clarify that we are referring to standard open house that is open to the public. In addition, 142-109 (c) (3) (c) clarified that events had to conclude by 8:00 pm • The fine and penalty schedule currently remains as presented at first reading. However, guidance is requested on two issues: whether mitigation of fines should be permitted, and whether the fines should reset in a rolling manner, and with a longer time frame o Mitigation of fines by Special Master: as previously noted, it has been the recommendation of staff that no mitigation be available, especially as the first fine is a smaller amount than subsequent fines. However, if the Commission wishes to consider mitigation, then it would be recommended that it only be allowed for the first violation, and only if the first violation did not occur within at least 36 months of a priorviolation. o The ordinance currently provides that the fine and penalty schedule resets every calendar year. When addressing the noise ordinance, there was much discussion about the calendar year re-set, with a conclusion to have the fine schedule be "rolling" every 18 months. This option is proffered for your consideration. Please note that if mitigation is considered for a first violation, we are recommending that the period be doubled to 36 months before mitigation can be considered on a first violation again. • We have included language to clarify that a courtesy notice in lieu of violation cannot be provided if a courtesy notice in lieu of violation has been provided in the preceding 18 months. • We have added language in 142-109 (e) referencing the applicability of existing laws. FISCAL IMPACT: City staff currently monitors potential commercial uses. Additional costs to engage in research to support any investigation of a violation may occur; those costs are unknown at this time. However, it should be noted that the City incurs expenses at this time associated with the replacement of damage to swale and other right-of- way improvements. CONCLUSION The intent of this proposed ordinance is to strike a balance between the rights of our residents to the enjoyment and use of their homes, while protecting the residential character of the City's residential neighborhoods. The proposed ordinance addresses the primary issues relating to the commercial use of single family homes, implements a fine schedule to serve as a deterrent to the use of single family homes for commercial purposes and clarifies certain permitted commercial and non-commercial uses. T WGENDA\2008\February 13\Regular\Comm Use Sngl Fam home MEMO 2st rdg 2 13 08.doc BiZBashFla: Ideas and Resources for Special Events and Meetings oA s ~ a ~ ,~ 8 BtZ>iash spew Park Bi~ll~i3h 1'na~Bto Search B~Bash.c~om ... .. :.: ,~;• ,,:: >.. ,~; .>:;: Search Our Resource Directory S810c1 one... t§? 5earehior kdeSS F~Iltl~l!81~iS Attachrner~t A IDEAS AND RESOURCES FQR SPECIAL EVENTS AND NEETIN6S Thursday 08AE.Db 8:40PM 1 ~1y~ ~~ Private Mansions Suggest Prestige With so many cool spaces in Florida, how does one find just the right place to impress corporate clients and guests? When it really counts, and you need more than a hotel, restaurant or even a yacht, try the current hot spot: a private mansion. Many event professionals find these spaces to be unique, stylish and clandestine. Often, these mansions are located on private islands such as La Gorce, Star, Hibiscus and Fisher Islands, or in upscale neighborhoods, adding to the grandeur of the overall event. More than ample space helps to encourage multiple themes, moveable feasts or a different d8cor or color scheme per room. And since most offer lavish pools, balconies and tertacea, the party can spill over to the outdoors. The Winter Party, one of South Florida's most visible events far the gay community, Florida RSS Feed 1 ~~ MY'~ooI. holds a private cocktaU party each year as pert of the weeklong fastivfUes. This year, a committee co~citair knew the owner of a luxurious home on Pina Tree Drive, a ritzy Ail BiZBash RSS Feed street in Mia The owner agreed to donate the home to serve as the private ®~,-~~ x'~'"""-'r t venue Ili Hu ins. ne of the event planners for Winter Parry, has been produc n ergs-sca a events in private homes for severe) years in California, relying on friends and word of mouth to secure the exclusive locations. "Often, the owners wilt want to show off their homes or art coilectiona, and they feel a sense of pride in ` knowing that they're contributing to a cause," he said. The Winter Party private cocktail party featured a pool lwy, male models in bikinis, a jazz band and art which we -llsingthe private home created a very intimate feel "sal tsa Palley o al mote She worked closely with the Winter Party committee o n u the right venue. On the same street, Villa Vecchia has been home to fashion shows for many designers Including Jean Paul GaulUer and Luca Luca. Marysol Patton of the Patton Group plans all of the fashion industry events that take place at Villa ~ lo usl lends t~o Vecchia, which a close friend-who happens to own the home-grac ~ ~ _ ~ her for the high-end brand-name a Having planned similar even s m-f-' other ;~ r _ o Brio Cavalll fashion show in aFrench-Inspired Indian Creek `~; - - , ,. mansion-Patton says she always uses private residences because of their snob ~,; , `~-. appeal. "The homes IYe used are spectacular, waterfront mansions," she explained. ~~ f ° ! ' ' " • "~ ` • "You get noticed, and It's a great way to align a cilentwith ahigh-end, elite name " ~r 'r T, t~ ~` + ~ • + Escaping the bustle of clubs, the heat of outdoor runways and the confines of in- .. store shows also affords high-profile guests comfort, anonymity and exudes a sense of style. • Pete Dtaz Productions • Designs by Sean • Parafernalia Productions • Room Service • DECO Productions • EventSource internatlonat • Unique Option LLC • Wizard Connection Inc. • conceptBAiT Inc. BECOME A MARKETING PARTNER [ittt°;REwsa • ActivlUes/ExpeHences • CateringiFood Services • DecoNDesignlFlowers • Entertainment • Event Planning S MarkeUng/MeeUng PtanninglPR • Event ProductionlAudlovlsual Services • GIfts/Premiums/Awards • Hotel AccommodaUOna • Industry Resources • InvttaUona/SignagelPrinting • PhotogrephyMdeography • Planning ToolslSoftware • Rentals/Props • SecuritylFire Servicesflnsurence • Staffing • Trade Show Services • Trenaportatlon • ~r0nUe8 Vanessa Lopez of the~~A9ee~_n_ccYY says using exclusive Villa Ferrari on Palm Island for an InternaHona! aYcFitsman magazine party allowed her to create three different areas. "One area provided an amazing nighttime view, an indoor area and one that showcased various Hosts," she said. "There was a Latin jazz band and violinists set up throughout" She adds that it was a great way for advertisers to participate; for example, a cigar company who advertises in the magazine set up a cigar-rolling station in one of the empty rooms. The International Yachtsman party, which took place during the Mlaml International Boat Show, had a dock in the back where two mega-yachts were docked and open for patrons to peruse and potenttaliy buy. By utilizing mansions, which are also often up for sale, events can do double duty as real estate open houses. But obtaining a mansion isn9 as simple as it sounds. "We do need to be somewhat discerning "said tan c reactor and partner of Majestic Properties, which lists Ville Ferrari. ach week we get offers for film and music video shoots, or to rent the space for charities and special events. We have to make sure the event matches the image of Villa eF re'~ri."- Naturally, the owner must trust the agent to rent to the right people for the right reasons. There is always risk of damage. But once scored, k is a planner's paradise. Usually unfurnished, plannere and designers have carte blanche to build from the ground up-from furniture and d9cor to sound systems and lighting. "Usually there are high-end vendors Involved," McMEnn adds. "it really behooves the sellers of the house as well as the planners to be associated with high-end names and places." -Charfla Orllz SEND THIS STORY TO A FRIEND MORE EVENT REPORTS mhtml: file://C:\Documents%20and%20Settings\mazgie\M~~i~lODocuments\MW\PHS%20Board\Rentals\... 9/14/2005 165 Palm Island, was used for the InfemaUonal Yachtman magazine Villa Ferrell was used to keep guests moving throughout the property. WUla~G4-'GY~~J 1C • JO ~...1 ~ i ur r~o ~.uiu :,via L 1 rn Yt. Scene in the Tropics ;~ .t FINALLY! The answer to everybody's ~ -~.~~~~:~ ~ ~~ question--how do you get into VMA .,. ~ ~ parties? Check this out: {. ~ ~`~``~' This weekend, starting on Thursday, ~~. ~ ~~£~~~~~; ~ adidas Originals South Beach store will be ~ .~ giving away guest list passes to the top '' .''~.~.~ celebrity parties this weekend. They're ~_:;:°~ giving out a pair of passes every half hour from Thursday to Saturday, 2pm to 7pm, ~ ~' i { in the adidas Originals store (226 8th St @ Collins). That means a lot of chances to ~r~~ ~~ ~ attend parties at Mansion, Opium Garden, - , Prive,~Star Island, and Crobar. ~ a, x.? ~ ~ ~ l' ~ ti ~ ~' Very coot, adidas, very, very cool. 1 ~ ;. . ., ~,,,, ~ ~~ ~ "~~a August 23, 2005 in VMAs ~ Permalink ~ l ~• ~ T' ~~'~ ~;;r? tf ~`~ Comments (0) ~ ~ . :f: ~.~• ~ .~ r /... ~t,,Y, ~ • ,. •~~: ~' ~, ' i` ).. ~ iT . ' ,.1 •', ~; , ;•~,. ~•• yy,,~ I,: ~~'.~ 'h ~. , ~. f, •~ ~+~5 1~ ~ 276 `i f TOTAL P.01 166 19~ ~-. .~ '' ~' a.a a~ .. _ _ _ _ _ _ - _ _ _ .~___r_-.. __ ~~ ~C ~ m .., ,, `?. (~ DE LA SIERRA, PARIS c~ PERw~`.1~IAC gallery Mykonos .Meets Miami at The 1Vltxnsion Dear Guest You are warmly invited to our beautiful Gallery. Discover an exciting and unexpected vision of the Arts. Museum quality artistic jewelry, sculpture and paintings (including exceptional portraits) Sierra's ~~'~ep'er~r-~.n.e ri~ame-- ..~~ featuring 19 extraordinary Candelabras in silver, bronze, crystal and gemstones Monday -Friday 10am - 5pm. Saturdays 12 to 4pm. or call {305) 57b-3378 for a personal appointment with me or our Fine Arts Curator Your visit to the Exhibit will allow us to present you the precious treasures we harbour... As seen in "Arquitectural Digest", "International Yachtsman' ,"Florida International Magazine', "Lincoln Road Magazine", "Florida Design' , "The Design Sourcel3ook", ' Arte aI Dfa Internacional", amongst other media, including a recent "CNN World Report" on the artist. 3740 N. E. Second Avenue, Miami, Florida 33137 Ph. 305 576-3318 f 516-3379 e-mail: artmanagerCa?alexisdelasierra.com 280 170 Ion Henri Pervilhac Dixector .• i~~antickets.com :. Fernandez, Hilda From: noisecontrol [noisecontrol@the-beach.net] Sent: Wednesday, August 24, 2005 12:24 AM To: margie Willensky; Sklar, Max; Guzman, Vivian; Mazer, James; Lorber, Richard Cc: Fernandez, Hilda Subject: commercial uses at 35 North Hibiscus .,,, Ego IWiami's Charity Pig Roast by Ego Miami Magazine Friday, August 26, 2005 ....~,...,w. Pre-sale Price: $100.00 Pre-Sales End: 5:00:00 PM-8/25/2005 Ego Miami's Charity Plg Roast Talent TBA • *Will Cali Tickets can be picked up at 420 Lincoln Road, Suite 349, Miami Beach FL, 33139 Thursday and Frlday until 5 pm. Tropical elegance on this exclusive Hibiscus Island Estate. This VIP party will celebrate Ego Magazine's Imminent expansion into LA and national markets, with all ticket sales benefiting the American Society of Young Musicians for talented young children. Dishes of succulent roasted pig and ceviche will be prepared by executive chef Douglas Rodriguez of Ola. Location: Hibiscus Island Estate Hibiscus Drive Miami Beach, FL 33139 Hours: 8:00:00 PM - 12:00:00 AM Info Lines: Capacity: 500 Ages: 21+ A $iD.ZS NON-REFUNDABLE processing fee is applied per ticket ordered. Enter the # of Pre-sale @ $100.00 per ticket: o Order Delivery Options: (Please choose one) is Willcall -Pick up tickets at event (Free) Optional: (if person picking up tickets is different than the person purchasing them} First Name of Person at Willcall Last Name of Person at Willcall 8/24/2005 281 171 JOIN US FOR AN EXTRAORDINARY AFFAIR OF THE SENSES. ENJOY AN EXCLUSIVE EVENT DESIGNED TO PUT YOU IN TOUCH WITH ALL OF YOUR SENSES. YOU~LL HAVE.THE OPPORTUNITY TO DRIVE THE LAND ROVER OF YOU$ CHOICE OFF-ROAD WHILE ACCOMPANIED BY WORLD-GLASS LAND ROVER DRIVING INSTRUCTORS. EXPLORE AND LEARN ABOUT THE DETAIL9 AND CAPABILITIES OF THESE EXTRAORDINARY VEHICLES FROM OUR TEAM OF EXPERTS. 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To RSVP, PLEASE CALL 800-399-0780 OR VISIT WWW.EXTRAORDINARYINACTION.COM BEFORE NOVEMBER 22. PASSCODE ~ LEBM ATTACHMENT B Sec. 142-1411. Home based business office. (a) Notwithstanding any provision to the contrary herein contained, offices for certain businesses, professions or occupations may be maintained within residentially zoned areas as provided herein. Any person engaged in a business, profession or occupation who chooses to conduct said business, profession or occupation from his or her personal, permanent, primary residence shall, prior to conducting such business, profession or occupation, apply for and receive an occupational license for a home based business office. Said applicant shall list his or her home address as a place of business and must, at all times, comply with the following criteria: (1) Home based business office activities shall be accessory and clearly incidental to the primary single family residence or apartment unit. (2) Home based business office activities shall occur entirely within the single family residence or apartment unit. (3) Employees, in addition to the person engaged in the business, profession or occupation of the home based business office as provided above, shall reside at the subject single family residence or apartment unit as a permanent resident; for purposes of this section, a "permanent resident" shall mean a person residing in a single family residence or apartment unit for no less than six months per calendar year. (4) No goods or services shall be dispensed, sold, distributed or provided directly from the single family residence or apartment unit, except for those transmitted by telephone, computer modem, facsimile or other similar electronic means, with the exception of one business pickup by courier per day in addition to regular U.S. Postal Service. Bulk mailing shall not be allowed. (5) The aggregate of deliveries of any kind required by, received by, or made in connection with a home based business office at a single family residence or apartment unit shall not exceed one business delivery by courier per day in addition to regular U.S. Postal Service. (6) No inventory or storage of materials, goods, products or supplies shall be permitted at the single family residence or apartment unit, except those minor supplies necessary for the operation of the home based business office. (7) No materials, goods, products or supplies shall be displayed for sale or kept as samples at the subject single family residence or apartment unit, except those which can be readily transported in a hand carried sample case. (8) No customer, client, business associate, sales person, assistant or other nonresident shall be permitted to visit the home based business office for purposes of transacting business. (9) The exterior of the single family residence or apartment unit shall not be altered in any manner to attract attention to the home based business office or the residence as a place of business. (10) No signs indicating the presence of the home based business office shall be located on or about the single family residence or apartment unit. (11) No noise, odor, smoke, hazard or other nuisance of any type shall arise from the conduct of the home based business office. (12) The operation of a home based business office shall not cause any increase in parking at the single family residence or apartment unit or vehicular traffic to and from the single family residence or apartment unit. (13) No vehicle with the name of a home based business office business shall be parked or stored on the site, except in a closed garage. (14) The conduct of a home based business office shall not result in an increase in demand on city services as compared to the average typical residence of the same size. (15) Home based business office activities may be advertised or publicized provided that the address of the single family residence or apartment unit shall not be referenced, and further provided that any advertisement or publication shall not in any manner invite, attract or draw persons to the single family residence or apartment unit in which the home based business office is located. (b) A home based business office which does not satisfy all of the above standards at all times during operation shall be prohibited and no license shall be issued to an applicant whose business operation would violate said standards. (c) All home based business offices shall be required to obtain and maintain an occupational license from the city, at an annual fee of $25.00. (d) The city, upon probable cause to believe that there is a violation of one or more of the provisions of this section, may seek permission from the code compliance special master to inspect a property in order to assist in making a finding as to whether or not there is a violation; the city shall not inspect a property without the aforedescribed permission. (e) A home based business office shall have no parking requirement in addition to the requirement for the single family residence or apartment unit. (f) Nothing contained herein shall be deemed to authorize, legalize, or otherwise permit a home based business office that is otherwise prohibited by a legally enforceable restrictive covenant, association document or other instrument or restriction on such use. (Ord. No. 98-3109, § 3(6-221.), 5-20-98) Secs. 142-1412--142-1420. Reserved. ATTACHMENT C S_H~L TATS BOWEN LLP ATTORNEYS AND COUNSELLORS AT LAW ALEXANDER P. HECKLER Member Florida Bar (954) 847-3858 Direct Telephone (954) 527-7958 Direct Facsimile January 29, 2008 VIA HAND DELIVERY Ms. Hilda Fernandez City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Re: Miami Beach "Commercial Use" Ordinance Dear Ms. Fernandez: E-MAIL ADDRESS: aheckler@shutts.com Thank you for your dedicated and deliberate efforts to include. our organization and feedback into the review process for the City's proposed "Commercial Use" ordinance. We have reviewed the most recent draft of the ordinance, and are pleased that the City addressed so many of our concerns in the current version. Specifically, we are delighted that the City has clarified that gi$s and other customary exchanges are not "commercial" transactions in and of themselves in connection with social gatherings. Likewise, we see significant improvements related to the sale of personal property, advertising and other areas of concern we expressed heretofore. The purpose of this letter is to briefly touch on our remaining areas of concern in the hopes that the final ordinance will be effective at eliminating "party houses" while at the same time affirming and protecting the customary rights and social privileges of homeowners. Thus, we address the following areas of concern: 1. Enforceability One area of concern that remains is enforceability. We have noted that you have included a provision allowing for the City Manager to create additional rules to enforce the ordinance: we believe this is a positive step. However, we believe more is needed. For example, one criticism we have expressed relates to the determination of a "private" gathering versus a "commercial" gathering. We would suggest that a homeowner should be provided the opportunity, upon request from Code enforcement (prior to or during the event), to sign. an affidavit that the event is not a "commercial use" within the meaning of the ordinance, that he or she has retained occupancy and control of the premises, and that the event is by private invitation FTLDOCS 5287397 1 200 EAST BROWARD BOULEVARD SUITE 2100 FORT LAUDERDALE, FLORIDA 33301 TELEPHONE (954) 5245505 FACSIIvIB-E [954) 5245506 WEBSTT'E: www.shutts.com MIAM[ FORT LAUDERDALE WEST PALM BEACH ORLANDO TAMPA TALL4HP.SSEE AMSTERDAM LUrvUUrv Ms. Hilda Fernandez January 29, 2008 Page 2 only. Such a provision would protect homeowners from having private gatherings arbitrarily shut down without cause. 2. Penalties An additional concern we have is that the penalties cannot be modified by a Special Master. While we understand the City's desire to be heavy-handed, the ordinance itself has not been tested and the circumstances of enforcement. are not yet clear. Particularly in light of the fact that non-commercial parties have in the past been mistaken for "commercial" uses, we would request that the ordinance include a provision for appeal, and to empower a Special Master to reduce fines based upon the circumstances. Likewise, homeowners should be allowed to make a final appeal to the City Commission to ensure due process. We do not object to making a fine non-waivable where a special magistrate finds that a homeowner charged admission fees for entrance to anon-charity event, or where a homeowner is found to have profited from throwing a party open to the general public. Likewise, we suggest that the City consider a penalty provision that would reimburse a homeowner for costs incurred if the City is found to have shut down anon-commercial party in error. The costs for hosting social gatherings are often extensive, and such a penalty would provide disincentive for code enforcement to "act first and ask questions later". 3. Open Houses As we explained in our previous correspondence, the proposed restrictions upon Open Houses are overly broad because they restrict a resident's ability to throw social gatherings to sell the home. At the very least, we would suggest that the ordinance should clarify that homeowners may have "Closed House" parties open to potential buyers by invitation after.8:00 PM. This would allow the owners of larger homes to open their doors to a concentration of potential qualified buyers without restriction and at a convenient time for the prospective purchasers. Moreover, we would suggest that the complete ban on the display of goods or services at open-houses is overly broad and should be limited to the display of goods or services visible from the right of way. 4. Right of Assembly Currently, the ordinance states that "The City recognizes peoples' rights of assembly, free expression, religious freedom, and other rights provided by the state and federal constitutions. It is the intent of the City Commission that no decision under this ordinance shall constitute an illegal violation of such rights, and this ordinance shall not be construed as such a violation." We believe this statement should instead state "this ordinance is not intended to interfere with, or abrogate those rights, and no decision under this ordinance shall be made in violation of those rights." FTLDOCS 5287397 1 SHUTI'S & BOWEN LLP MIAMI FORT LAUDERDALE WEST PALM BEACH ORLANDO TALLAHASSEE AMSTERDAM LONDON Ms. Hilda Fernandez January 29, 2008 Page 3 5. Connection to Other Ordinances Our research indicates that many other ordinances reference related ordinances within the City Code. The City may wish to reference that there are existing ordinance provisions regulating appropriate professions, noise, parking and accessory commercial uses (e. g. film permits) contained within the code. 6 Record Owner Not Subiect to Enforcement for Valid Leasehold Additionally, we believe the ordinance should recognize that there are valid leaseholds (i.e. greater than six months) which should protect a homeowner from liability under the ordinance and subject the tenant alone to enforcement proceedings. A landlord does not control the property or his tenant during a legal, long-term leasehold and should be absolved of actions taken without his or her knowledge. 7 Charitable Gifts Maybe Paid Back As discussed at the last meeting, we would request that the ordinance be clarified to allow a charity to reimburse auction donors for the value of items sold at auction or by raffle, as is often customary for charitable events. 8 Clarify the Waming~Citation While we approve of the intention behind the code provision allowing citation officers to present a warning to charities, we believe this provision may now be irrelevant in light of new additions exempting most charitable events and actions. If the City believes charities are still likely to run afoul of the ordinance, we would request that the process for issuing and tracking warnings be clarified so that it is transparent to all residents and homeowners. 9. Tupperware Parties Finally, we are grateful that the City chose to allow limited direct sales such as Tupperware Parties as acceptable accessory uses. However, we believe the restrictions on parking and timing are vague and difficult to enforce (i.e. how does a Code Enforcement officer determine whether there are 11 cars or 15 cars?). We would instead focus on adverse impacts, and state that such parties shall not have an adverse impact upon the neighborhood (i.e. violate noise or parking ordinances). FTLDOCS 5287397 1 SHVITS & BOWEN LLP MIAND FORT LAUDERDALE WEST PALM BEACH ORLANDO TALLAHASSEE AMSTERDAM LONDON Ms. Hilda Fernandez January 29, 2008 Page 4 In sum, the ordinance has made great strides, and we appreciate being included in the review process. We look forward to meeting with you soon. Sic ely, S S B WE LLP Alexander P. Heckler Partner FI'LDOCS 5287397 1 SHUTTS & BOWEN LLP MIANII FORT LAUDERDALE WESC PALM HEACH ORLANDO TALLAHASSEE AMSTERDAM LONDON ATTACHMENT D ~~ ~' ~~ ' :~ ~ e~~, 1. The City's Land Development Regulations restrict certain residential properties to residential and compatible accessory uses. Hence, the seminal question: WHAT IS A COMPATIBLE ACCESSORY USE OF A SINGLE FAMILY HOME IN A DISTRICT THAT IS ZONED RS-1, RS-2, RS-3 OR RS-4? 2. Certain "commercial uses" of single family homes in residential districts are allowed pursuant to certain permits and regulations, such as movie filmings, photography shoots, garage sales, and home-based offices; hence, the existing Code does recognize that NOT EVERY commercial activity is, or should be, prohibited in single family residential districts. 3. If the Administration wanted to prohibit all activities in single family residential neighborhoods that had "an adverse impact on the neighborhood," then private parties would be prohibited if they created an adverse impact; but that would be depriving homeowners from enjoying the use of their homes and properties. 4. Movie filmings, photo shoots and garage sales can have adverse impacts on single family neighborhood, but such "events" are transient rather than permanent events; hence, the impact is not continuous. 5. The problem with "commercial uses" in single family residential neighborhoods is the potential for "continuous, adverse impacts on the neighborhood." 6. The Fifth Whereas Clause of the proposed legislation refers to "excessive numbers of guests, vehicles and noise" from "party houses," and the "adverse impacts on the surroundi~ residences and residential neighborhood..." 7. The Sixth Whereas Clause refers to party houses, and states that "such parties should be more appropriately held in the commercial districts of the City at venues that are designed for such numbers of persons, with the impacts resulting therefrom more appropriately mitigated." 8. The Tenth Whereas Clause refers to "open houses" and states that they are permitted uses "if regulated to minimize their adverse impacts." 9. The Eleventh Whereas Clause refers to the need to "ensure and protect the enjoyment, character and value of the single family residential neighborhoods and homes...," implying that whatever materially and continuously adversely impacts the enjoyment of a single family home should be prohibited. If the objective were to prohibit any parties or events that had an adverse impact on the neighborhood, whether or not commercially-related, that would be unacceptable. 10. The clear implication is that the proposed legislation is designed to prohibit parties and events where there is a material, (perhaps continuous), adverse impact on the neighborhood of a single family zoned residential district. 11. NOT EVERY "commercial use" of a single family home in a residential neighborhood produces an "adverse impact on the surrounding neighborhood." The definition of "commercial use" connotes many kinds of activities, not all of which would necessarily have an adverse impact on the neighborhood: a. An all-night fast food, drive-thru restaurant located in an RS-1, RS-2, RS-3 or RS-4 zoned neighborhood would probably have an adverse impact on the neighborhood. b. An auto body shop would probably have an adverse impact on such a neighborhood. c. A Tow Truck Car Pound would probably have an adverse impact on such a neighborhood. d. But a retired consultant who occasionally receives clients at home would probably NOT have an adverse impact on such a neighborhood; hence, certain home-based businesses are permitted, but even the "home-based business" rules are flawed. e. A single family home rented to a reclusive lessee would probably not have an adverse impact on such a neighborhood. 12. Conversely, neighborhoods like PHS, the Sunset Islands, North Bay Road, Pinetree Drive, La Gorce Island, Allison Island and the Venetian Islands ARE regularly and continuously subjected to the adverse impacts of: a. Private Home construction and re-construction noise, and construction vehicles parked every which way, often beginning at 7 a.m. and continuing into the weekends. b. Municipal road construction and road improvement noise, and municipal vehicles parked every which way, often beginning at 7 a.m. and continuing into the weekends c. Utility vehicles performing routine maintenance, parked every which way. d. Garbage Collection Vehicles making unconscionable noise, often beginning at 7 a.m. e. Wild, private home parties that have no commercial use components, with the attendant traffic, haphazard parking and noise, continuing into the wee hours of the morning. 13. Indeed, large, disorganized private parties can. cause far greater adverse impacts on the surrounding neighborhood-in terms of parking problems; right of way problems; noise problems; and traffic problems--than an organized and regulated event that has comes within the proposed definition of a "commercial use." 14. NOT EVERY single family residential neighborhood on Miami Beach is sequestered from commercial use, and commercial activity: a. 515 Street and Cherokee Avenue b. 47th Street and Pinetree Drive c. The residential streets parallel to Arthur Godfrey Road 15. So I have the following Proposed Changes to the Proposed Ordinance: a. I would entitle this Ordinance "Adverse Impacts on Single Family Homes Residential Neighborhoods Prohibited." b. Section 142-109(a): "The land development regulations restrict residential properties to residential and compatible accessory uses. Commercial uses on residential properties are deemed incompatible accessory uses, and therefore prohibited, if they create a material, continuous, adverse impact on the surrounding neighborhood. Residents are entitled to enjoy the use of their property; however, certain guidelines need to be established to preserve the nature of residential communities: c. Section 142-109(b) Definitions: "Use of residential property" or "use of the property" in this ordinance shall mean occupancy of residential property for the purpose of holding commercial parties, events, assemblies or gatherings on the premises ("Party" or "Event"). d. Section 142-109(c) Regulations: "Accessory use of residential property shall be deemed commercial and not permitted, except as otherwise provided for in the Code, if: a. Compensation to Owner. The owner, lessee or resident receives payment or other consideration, e.g. goods, property or services, in excess of [Increase from $100 to $1,000] per Party or Event -for the use of the property, incljuding payment by any means, direct or indirect, including security deposits. b. Admittance Fees. Use of the property by attendees requires an admittance or membership fee or a donation, excluding donations directly payable and paid by attendees to charitable, religious or political organizations that have received Section 501(c)(3) or other tax exempt status under the U.S. Internal Revenue Code, as amended. "Accessory use of residential property may be deemed commercial and not permitted, except as otherwise provided for in the Code, if: c. Goods, property or services offered or sold. Goods, property or services exceeding [Increase from $100 to $1,000] are offered for sale or sold on or at the property; ... a. ... b. ... c. ... d. Notwithstanding the above restrictions...[eliminate sub-paragraphs "D" and "E." d. Enforcement: (1) Violations of this section shall be subject to the following fines. [Delete the sentence that provides for MANDATORY FINES without discretion by the Special Master]. (2) In addition to or in lieu of the foregoing, the City may [Eliminate "close down the commercial use of the property and/or] seek an injunction against activities or uses clearly prohibited under this section. (3) Any city police officer or code compliance officer may issue notices for violations of this ordinance [Eliminate "...with alternative enforcement as provided in section 1-14 and Chapter 30 of this Code] e. [Eliminate "No variances shall be granted from this section."] SECTION 2. Repealer [Eliminate]. m MIAMIBEACH 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 Hall, 1700 Convention Center Drive, Miami Beach, Florida, on Wednesday, February 13, 2008, to consider the following: 10:20 a.m. An Ordinance Amending Section 41-50 Of Chapter 41, Article V Of The Code Of The City Of Miami Beach Relating To Resort Tax; Requiring That, As Of The Effective Date Provided Therein, Resort Tax May Be Filed And Paid Online At No Charge, And Any Manual Filing And/Or Payment Transaction Will Be Assessed A $25.00 Processing Fee. Inquiries may be directed to the Finance Department at (305) 673-7466. 10:30 a.m. An Ordinance Amending Miami Beach City Code Chapter 2, Article VII, Division 2 Thereof Entitled "Officers, Employees And Agency Members," Section 2-459 "Certain Appearances Prohibited" By Establishing Post Public Service Lobbying Restrictions For Agency Members. Inquiries may be directed to the Legal Department at (305) 673-7470. 5:00 p.m. An Ordinance Amending The Land Development Regulations Of The Code Of The City Of Miami Beach, By Amending Chapter 118, "Administration And Review Procedures," Article X, "Historic Preservation", Division 3, "Issuance Of Certificate Of Appropriateness/Certificate To Dig/ Certificate Of Appropriateness For Demolition", By Amending Section 118-562 To Clarify And Update Certain Procedures And Requirements Pertaining To The Issuance Of A Certificate Of Appropriateness For Demolition. And By Amending Section 118-564 To Modify The Evaluation Criteria For A Certificate Of Appropriateness For Demolition. Inquiries may be directed to the Planning Department at (305) 673-7550. 5:01 p.m. An Ordinance Amending Chapter 142, "Zoning Districts And Regulations," Of The City Code, By Amending Division 2, "RS-1, RS-2, RS-3, RS-4 Single-Family Residential Districts," By Adding New Section 142-109 Entitled "Commercial Use Of Single Family domes Prohibited". Inquiries may be directed to the City Manager's Office at (305) 673-7010. 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. Parcher, City Clerk City of Miami Beach Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: if a person decides to appeal any decision made by the City Commission with respect 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 admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. 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