2011-3742 OrdinanceORDINANCE NO. 2011 -3742
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING THE LAND
DEVELOPMENT REGULATIONS OF THE CITY CODE BY AMENDING
CHAPTER 118, "ADMINISTRATIVE AND REVIEW PROCEDURES,"
ARTICLE II, "BOARDS," DIVISION 5 "BOARD OF ADJUSTMENT,"
SECTION 118 -137, "STAY OF WORK AND PROCEEDINGS ON
APPEAL," CLARIFYING AND AMENDING THE STAY PROVISIONS
APPLICABLE TO MATTERS ON APPEAL TO THE BOARD OF
ADJUSTMENT; PROVIDING FOR REPEALER; CODIFICATION;
SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS, the land development regulations provide for appeals to the Board
of Adjustment of administrative orders, requirements, decisions or determinations made
by an administrative official; and
WHEREAS, City Code section 118 -137 provides for a stay of all work on the
premises and all proceedings in furtherance of the action appealed, upon the filing of
such appeal; and
WHEREAS, it has been determined that Development Review Board Hearing
applications can proceed to hearing before the board to which application was made as
long as the approval does not vest, meaning it cannot be used to obtain the issuance of
a building permit, until the appeal to the Board of Adjustment is resolved; and
WHEREAS, the amendments set forth below are necessary to accomplish the
above objectives.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
Section 1 . Chapter 118, "Administrative And Review Procedures," Article II, "Boards,"
Division 5, "Board Of Adjustment," Section 118 -137, "Stay Of Work And Proceedings On
Appeal," is hereby amended as follows:
Sec. 118 -137. - Stay of work and proceedings on appeal.
An appeal to the board of adjustment stays all work on the premises and all
proceedings in furtherance of the action appealed from unless one of the exceptions in
subsection (2) applies.
(2) Exceptions:
(a) The official from whom the appeal was taken shall certify to the board of
adjustment that, by reason of facts stated in the certificate, a stay would
cause imminent peril to life or property. In such a case, proceedings or
work shall not be stayed except by a restraining order, which may be
granted by the board of adjustment or by a court of Fes eFd competent
jurisdiction, upon application, UpeR with notice to the officer from whom
the appeal is taken and for 4i4e good cause shown. or
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If the appeal arises from an application for Development Review Board
Hearing or other approval requiring a hearing before a land use board,
the hearing before the board to which application was made may
proceed, provided any approval does not vest. The final order shall
contain appropriate conditions to stay its effectiveness until the final
resolution of all administrative and court proceedings. No building
permit, or certificate of occupancy, or Business Tax Receipt, dependent
upon such hearing approval, shall be issued until the final resolution of all
administrative and court proceedings as certified by the City Attorney.
The applicant for such land use board hearing shall hold the City
harmless and agree to indemnify the City from any liability or loss
resulting from such proceedings. Notice of the final resolution of
administrative and court proceedings shall be provided as required for
notice of hearings under these land development regulations.
Notwithstanding the foregoing, an appeal to the board of adjustment or court, or
other challenge to an administrative official's decision, shall neither stay the issuance of
any building permit, full building permit or phased building permit nor stay the running of
the required time period set by board order or these land development regulations to
obtain a full building permit or phased building permit.
SECTION 3. Repealer.
All ordinances or parts of ordinances and all sections and parts of sections in conflict
herewith be and the same are hereby repealed.
SECTION 4 . 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 5 . Severability.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 6. Applicability.
It is the intention of the City Commission that this ordinance apply to all pending appeals
to the Board of Adjustment as of the date its adoption, as well as prospectively.
SECTION 7. Effective Date.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this 1 9th day of October , 2011.
i
ATTEST:
.,'""� vim
First Reading:
Second Reading:
Verified by:
Richard G. Lorber, AICP
Acting Planning Director
FORM AND LANGUAGE
& FOR EXECUTION
y Attorney Date
Underscore denotes new language.
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COMMISSION ITEM SUMMARY
Condensed Title:
An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach, Amending Chapter
118 clarifying and amending the stay provisions applicable to matters on appeal to the Board of
Adjustment.
Key Intended Outcome Supported:
Regulatory.
Supporting Data (Surveys, Environmental Scan, etc.):
N/A
Issue:
Should the City Commission amend the stay provisions applicable to matters on appeal to the Board
of Adjustment to allow an application to proceed, provided any approval does not vest until the appeal
is resolved, and the applicant holds the City harmless and agrees to indemnify the City from any
liability or loss resulting from such proceedings?
Item Summary /Recommendation:
Second Reading Public Hearing
The administrative appeal provisions of the Code have the effect of putting all land use board hearings
on hold until the appeal can be ruled on by the Board of Adjustment. While the appeal provision is
generally used only in cases where serious concerns about a planning interpretation or other
administrative determinations are involved, there are also appeals filed on matters of administrative
details, or matters that can be resolved by the board to which application was made. These types of
appeals do not justify staying the proceedings before a development review Board. While the appeal
procedure is important to protect the rights of property owners and residents surrounding proposed
developments, the stay provision is not always the correct outcome pending resolution of an appeal.
The proposed ordinance would permit an application to proceed to a hearing before a land use board
where the application is made provided that the approval does not vest until the appeal is resolved
and the application holds the City harmless from any liability or loss resulting from such proceedings.
The Administration recommends that the City Commission open and continue the public hearing on
the proposed ordinance to its December 14, 2011 meeting.
Navisory Boar a Kecommenaation:
At its May 24, 2011 meeting, the Planning Board, by a vote of 6 -1 recommended that the City
Commission adopt the proposed ordinance.
Financia Information:
Source of Amount Account
Funds:
2
3
OBPI Total
Financial Impact Summary:
In accordance with Charter section 5.02, which requires that the "City of Miami Beach shall consider
the long -term economic impact (at least 5 years) of proposed legislative actions," this shall confirm
that the City Administration evaluated the long -term economic impact (at least 5 years) of this
proposed legislative action, and cannot readily determine any potential measurable impact on the
City's budget as a result of the approval of the proposed ordinance.
City Clerk's Office Legislative Tracking:
Mercy Lamazares or Richard Lorber
Sign - Offs:
,J?epartmel Director A�sistant City nager City Manager
t: \agenda\2011 \10 -19- 11\2011 - stay of work an ocqoings o appeal sutn.do x
MIAMIBEACH AGENDA ITEM S
� DATE 10 C //
ID MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the Ci y Commission
FROM: Jorge M. Gonzalez, City Manager.,
DATE: October 19, 2011
Second Reading Public Hearing
SUBJECT: STAY OF WORK AND PROCEEDINGS ON APPEAL
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT
REGULATIONS OF THE CITY CODE BY AMENDING CHAPTER 118,
"ADMINISTRATIVE AND REVIEW PROCEDURES," ARTICLE II,
"BOARDS," DIVISION 5, "BOARD OF ADJUSTMENT," SECTION 118 -137,
"STAY OF WORK AND PROCEEDINGS ON APPEAL," CLARIFYING AND
AMENDING THE STAY PROVISIONS APPLICABLE TO MATTERS ON
APPEAL TO THE BOARD OF ADJUSTMENT; PROVIDING FOR
REPEALER; CODIFICATION; SEVERABILITY AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the City Commission open and continue the public
hearing on the proposed ordinance to the December 14, 2011 meeting.
BACKGROUND
A discussion relative to the stay of proceedings of City Code Section 118 -136 and
Section 118 -137, resulting from appeals of administrative decisions to the Board of
Adjustment was referred to the Land Use and Development Committee and the Planning
Board by the City Commission on February 9, 2011, at the request of Commissioners
Tobin, Libbin and G6ngora.
The reason referenced for this referral was because multiple appeals from administrative
determinations have been made to the Board of Adjustment in the last few months
resulting in applications not proceeding to hearing before the Design Review Board and
Planning Board, pursuant to Section 118 -137.
ANALYSIS
Section 118 -136 gives the Board of Adjustment the power and duty to hear and decide
appeals when it is alleged that there is error in any order, requirement, decision, or
determination made by an administrative official in the enforcement of the land
development regulations (with some exceptions). The Board may, upon hearing the
appeal, reverse or affirm, wholly or partly, the order, requirement, decision, or
City Commission Memorandum
Stay of work and proceedings on appeal
October 14, 2011 Page 2
determination, and to that end shall have all the powers of the officer from whom the
appeal is taken. As with all matters before the BOA, it takes five votes (out of seven
members) to rule on an appeal. Section 118 -137 states that an appeal to the BOA "stays
all work on the premises and all proceedings in furtherance of the action appealed from."
There is an exception for matters of life safety.
The administrative appeal provisions of the Code are an important part of providing citizen
oversight and protection. However, these provisions do also result in putting all land use
board hearings on hold until the appeal can be ruled on by the Board of Adjustment. While
the appeal provision is generally used only in cases where serious concerns about a
planning interpretation or other administrative determinations are involved, there are also
appeals filed on matters of administrative minutiae, or matters that can be resolved by the
board to which application was made. These types of appeals, while permitted, may not
have the importance or impact to affected parties that would justify staying the proceedings
before a development review Board. While the appeal procedure is important to protect the
rights of property owners and residents surrounding proposed developments, the stay
provision may not always be the best method of addressing these matters pending resolution
of an appeal.
The proposed ordinance before the Commission would permit an application to proceed to a
hearing before a land use board where the application is made provided that the approval
does not vest until the appeal is resolved and the application holds the City harmless from
any liability or loss resulting from such proceedings.
Note that there are two other proposals that are related to, but independent of this proposed
ordinance, which were separately discussed at the Land Use and Development Committee
and City Commission meetings, and were also referred to the Planning Board. One is a
proposal that would amend the jurisdiction and procedure of land use boards concerning
appeals. This proposal would clarify and amend the jurisdiction of each respective board
over appeals of administrative orders, requirements, decisions or determinations and the
procedures that would arise from an application made to those respective boards. The
second proposal would clarify and amend the definitions applicable to and procedures for
obtaining an administrative determination from the planning director, and require that these
determinations be published. These matters have been reviewed by the Planning Board and
are scheduled for review by the Land Use and Development Committee at its October 26,
2011 meeting.
CITY COMMISSION ACTION
The City Commission at the July 13, 2011 meeting approved the ordinance on First Reading.
The item was scheduled for Second Reading for October 19, 2011 in order to permit two
companion ordinances on similar subjects to be heard together.
PLANNING BOARD
At its May 24, 2011 meeting, the Planning Board, by a vote of 6 -1 recommended that the
City Commission adopt the proposed ordinance (Stolar opposed).
FISCAL IMPACT
In accordance with Charter section 5.02, which requires that the "City of Miami Beach
shall consider the long -term economic impact (at least 5 years) of proposed legislative
City Commission Memorandum
Stay of work and proceedings on appeal
October 14, 2011 Page 3
actions," this shall confirm that the City Administration evaluated the long -term economic
impact (at least 5 years) of this proposed legislative action, and cannot readily determine
any potential measurable impact on the City's budget as a result of the approval of the
proposed ordinance.
CONCLUSION
The proposed ordinance was approved on first reading by the Commission at its July 13,
2011 meeting. The item was scheduled for second reading in October to permit two
companion ordinances on similar subjects, Board Jurisdiction and Administrative
Determinations, to be heard by the Planning Board and the Land Use and Development
Committee. Those items have been reviewed by the Planning Board and are scheduled
to be discussed by the Land Use and Development Committee later this month, at its
October 26, 2011 meeting (the items had only been discussed previously at the
Committee of the Whole). Therefore, the Administration recommends that the City
Commission open and continue the public hearing on the proposed ordinance to the
December 14, 2011 meeting, in order to permit the companion ordinances to be
reviewed by the LUDC.
If the Commission chooses to go forward with the public hearing today, note that the
item has received proper noticed as detailed below.
When a request to amend the land development regulations does not change the
actual list of permitted, conditional or prohibited uses in a zoning category, the
proposed ordinance may be read by title or in full on at least two separate days
and shall, at least ten days prior to adoption, be noticed once in a newspaper of
general circulation in the city. The notice shall state the date, time and place of the
meeting; the title or titles of proposed ordinances; and the place or places within
the city where such proposed ordinances may be inspected by the public. The
notice shall also advise that interested parties may appear at the meeting and be
heard with respect to the proposed ordinance.
Immediately following the public hearing at the second reading, the City
Commission may adopt the ordinance. An affirmative vote of five - sevenths of all
members of the City Commission shall be necessary in order to enact any
amendment to these land development regulations.
JMG /JGG /RGL /ML
tAagenda\2011 \10 -19- 11\2011 -stay of work and proceedings on appeal memo.docx
Afteraction February 9, 2011 City of Miami Beach
C2 - Competitive Bid Reports
C2A Request For Approval To Issue A Request For Proposals (RFP) For Investigative And Adjusting
Services For Selected Tort Liability Claims And Workers' Compensation Claims.
(Human Resources /Risk Management)
ACTION: Request authorized. Gus Lopez to issue the RFP. Ramiro Inguanzo to handle.
C2B Request For Approval To Issue A Request For Proposals (RFP) For Auctioneer Services Of City
Surplus Items, On An "As Needed" Basis.
(Procurement)
ACTION: Request authorized. Gus Lopez to issue the RFP and to handle.
C4 - Commission Committee Assignments
C4A Referral To The Finance And Citywide Projects Committee A Discussion Regarding Whether Or Not
To Exercise Renewal Options In The Management Agreement With Global Spectrum For The
Management Of The Miami Beach Convention Center, Colony Theater And Byron Carlyle Theater.
(Tourism & Cultural Development)
ACTION: Referred. Patricia Walker to place on the committee agenda. Max Sklar to handle.
C413 Referral To The Finance And Citywide Projects Committee - Discussion Regarding Granting The
Miami Beach Garden Conservancy The Right To Receive Naming Gifts As Part Of The Garden
Renovation.
(Requested by Commissioner Jerry Libbin)
ACTION: Referred. Patricia Walker to place on the committee agenda. Anna Parekh to handle.
C4C Referral To The Land Use And Development Committee To Discuss Parking Requirements And How
We Can Incentivize For Good Hotel Development.
(Requested by Commissioner Jonah Wolfson)
ACTION: Referred. Richard Lorber to place on the committee agenda. Richard Lorber to handle.
(D 4D Referral To The Land Use And Development Committee Discussion Regarding Stay Of Proceedings
Of City Code Section 118 -136 And Section 118 -137, Resulting From Appeals Of Administrative
Decisions To The Board Of Adjustment.
(Requested by Commissioners Edward L. Tobin, Jerry Libbin & Vice -Mayor Michael Gbngora)
ACTION: Amended via corrections: Item referred to the Land Use and Development
Committee and to the Planning Board at the request of Commissioner Tobin. Richard Lorber to
place on the committee agendas and to handle.
Prepared by the City Clerk's Office Page No. 7 of 31
M: \$CMB \C ITYC LE R\AFTERACT\ 2011 \ Afteractions \20110209\aa02092011.doc
m MIAMI BEACH
OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM
TO: Jorge M. Gonzalez, City Manager
FROM: Ed Tobin, Commissioner
DATE: January 31, 2011
SUBJECT: Agenda item for February 9th Commission Meeting — Referral of item for Discussion
to Land Use and Development Committee
Please place on the February 9", 2011 City Commission meeting agenda a referral to the Land
Use and Development Committee to discuss the effect of stay of proceedings resulting from
appeals of administrative decisions to the Board of Adjustment, under City Code Section 118 -
137, relating to applications before other land use boards.
Should you have any questions, please contact Yanette Bravo at ext. 6274.
Agenda Item G yD
We an aomnWad b po"w &v*& i puWic service and sa* b of who #w, work and p* in
i D ab p [
29
m MIAMI BEACH
OFFICE OF THE MAYOR AND COMMISSION 2 j F`n -- ° j I OEMORANDUM
TO: Jorge Gonzalez, City Mana§dt
FROM: .terry Libbin, Commissioner
DATE: February 2, 2011
SUBJECT: Consent agenda item for the February 9, 2011 Commission meeting; a referral to
the Land Use and Development Committee to discuss the automatic stay provisions of City Code
Section 118-137.
Please place on the February 9, 2011 Commission meeting a referral to the Land Use and
Development Committee to discuss the automatic stay provisions of City Code Section 1 18-137.
"This section provides for a stay of all proceedings in furtherance of the action appealed from,
while an appeal to the Board of Adjustment of a related administrative decision is being
reviewed. The use of this stay provision has recently been brought to our attention that
justifies its being reviewed by the City Commission."
Please contact my office at ext. 7106 if you have any questions.
JL/er
Vk'( ( N(' f'. Y(N111lk:d hi I.V(Nk1 fkl .,;YLC'111 771 FAI&W S('Ia1C(: (Ifki 301.;iy 11 f .1P 04KI I)%:. VI-VX; (Nid LAn N.: Ma v'11f(1, +1 h(y) I.r51. r.i tY►llil.'.1. /?'j
30
m MIAMI BEACH
OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM
TO: Jorge Gonzalez, City Manages
FROM: Michael Gbngora, vice Mayor
DATE: February 1, 2011
suma: Referral Item for February 9 Commission Meeting
Please place on the February 9 Commission meeting consent agenda a referral
to the Land Use Committee for a discussion on automatic stays pursuant to Code
Section 118 -136 and Section 118 -137. If you have any questions please feel free
to contact my aide Diana Fontani at ext 6087.
MG/df
31
NE THURSDAY, OCTOBER 6, 2011 1 13NE
. ........ _ ..
m MIAMIBEACH
CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARINGS
NOTICE IS HEREBY given that second readings and public hearings will be held by the Mayor and City Commission of the`6�rFy
of Miami Beach, Florida, in the Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida,
on WEDNESDAY, OCTOBER 19thT ", 2011, to consider the following:
10:15 a.m. .
s
Amendments To The Roofing Material Ordinance
Ordinance Amending The Land Development Regulations Of The Code Of The City Of Miami Beach, By Amending Chapter 142,
"Zoning Districts And Regulations ", Article IV, "Supplementary District Regulations ", Section 142 -875 "Roof Replacements" To
ModifyAnd Expand The-Requirements For Roofing Materials In All Districts.
Inquiries may be directed to the Planning Department at (305) 673 -7550.
X0:20 aim.
Stay Of Work And Proceedings On Appeal:
Ordinance Amending The Land Development Regulations Of The City Code By Amending Chapter 118, "Administrative And
Review Procedures," Article 11, "Boards," Division 5, "Board Of Adjustment," Section 118 -137, "Stay Of Work And Proceedings On
Appeal," Clarifying And Amending The Stay Provisions Applicable To Matters On Appeal To The Board Of Adjustment.
Inquiries may be directed to the Planning Department at (305) 673 -7550.
10:25 a.m.
Ordinance Amending Chapter 10 Of The Miami Beach City Code Entitled "Animals," By Amending Section 10 -11, Entitled "Running
At Large Prohibited" By Extending The Pilot Program Off -Leash Area For Dogs In South Pointe Park Until January 1, 2012 And By
Adding Two (2) Hours In The Evening From 5:00 p.m. To 7 :00 p.m. On Monday Through Friday; Providing For An Off -Leash Area
On The Par 3 Golf Course From Sunrise To 9:00 A.M. Daily And From 5 p .m To 7:00 p.m On Monday Through Friday Until
Construction Commences On The Par 3 Golf Course
Inquiries may be directed to the Parks and Recreation Department at (305) 673 -7730.
10:30 a.m.
Minimum Unit Size And Parking Requirements For Affordable Housing Protects_
An Ordinance Amending The Code Of The City Of Miami Beach, By Amending Chapter 130 "Off- Street Parking," Section 130 -32
"Off- Street Parking Requirements For Parking District No. 1," And Section 130 -33 "Off- Street Parking Requirements For Parking
Districts Nos. 2, 3, And 4," By Adding Parking Requirements For Housing For Low And /Or Moderate Income Non-Elderly Persons;
Chapter 142 "Zoning Districts And Regulations," By Amending Article IV. "Supplementary District Regulations," By Amending
Division 6. "Housing For Low And /Or Moderate Income Elderly Persons," By Including Non - Elderly Persons In The Regulations;
Amending. Section -142 -1181, "Purpose," Section 142 -1182 "Definitions," Section 142- 1183, "Unit Size "' And Section 142 -1184
"Mandatory Criteria;" Amendirig`Division 3. "Residential Multifamily Districts," Subdivision II. "RM -1 Residential Multifamil.y Low
Intensity" Subdivision IV "RM -2 Residential Multifamily, :Medium Intensity," Subdivision V. "RM -3 Residential Multifgmily, High
Intensity," Division 4.. CD -1 Commercial, Low Intensity District," Division 5. "CD -2 Commercial, Medium Intensity District," Division
6. "CD -3 Commercial, -High .Intensity- District," And Division 18. `PS Performance Standard District," By Including References To
Division 6. "Housing For Low And /Or Moderate Income Non- Elderly And Elderly Persons."
Inqulnes may be directed to the Planning Department at (305) 673 -7550.
10:35 a.m.
Recycling Ordinance:
An Ordinance Amending Chapter 90 Of The Miami Beach City Code, Entitled "Solid Waste," By Amending The Definitions In Article
1, Entitled "in General," By Amending Section •90 -2, Entitled "Definitions'; By Amending Article II, Entitled "Administration" By
Amending The Penalties For Solid Waste Violations And To Provide Provisions And Penalties Relative To Recycling For Multifamily
Residences And Commercial Establishments; By'Creating Article V, To Be Entitled "Citywide Recycling Program For Multifamily
Residences And Commercial Establishments," To Provide Provisions For Recycling Requirements And Enforcement, A Public
Education Program, A Warning Period, An Enforcement Date, Collector Liability, A "Red Tag" Noticing System, Penalties, And
Special Master Appeal Procedures. -
Inquiries may be directed to the Public Works Department at (305) 673 -7616.
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.
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)
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