2016-4051 Ordinance ORDINANCE NO. 2016-4051
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, PERTAINING TO ESTABLISHING A TEMPORARY
MORATORIUM FOR A PERIOD OF 480 150 DAYS FROM THE EFFECTIVE
DATE OF THIS ORDINANCE ON THE ACCEPTANCE, REVIEW, APPROVAL
OR ISSUANCE OF ANY LAND DEVELOPMENT PERMITS AS THE TERM IS
DEFINED IN FLORIDA STATUTES SECTION 163.3164(16), BUSINESS TAX
RECEIPTS OR ANY OTHER LICENSE OR PERMIT FOR THE
ESTABLISHMENT OR OPERATION OF DISPENSING FACILITIES WITHIN
THE CITY ENGAGED IN THE ON-SITE DISTRIBUTION, SALE, DELIVERY OR
RETAIL OF LOW-THC CANNABIS, MEDICAL CANNABIS OR CANNABIS
DELIVERY DEVICES PURSUANT TO SECTIONS 381.986 AND 499.0295 OF
THE FLORIDA STATUTES, IN ORDER TO PROVIDE THE CITY WITH AN
OPPORTUNITY TO REVIEW AND ENACT REGULATIONS GOVERNING THE
ESTABLISHMENT AND OPERATION OF DISPENSING FACILITIES;
PROVIDING PENALTIES FOR VIOLATION HEREOF; PROVIDING FOR
SEVERABILITY; REPEAL OF CONFLICTING ORDINANCE PROVISIONS;
AND PROVIDING FOR AN EFFECTIVE DATE RETROACTIVE TO OCTOBER
19, 2016; FOR ZONING IN PROGRESS PURPOSES, THIS ORDINANCE
SHALL BE EFFECTIVE UPON FIRST READING OF THIS ORDINANCE.
WHEREAS, pursuant to the Compassionate Medical Cannabis Act of 2014, the Florida
Legislature authorized a very limited number of large nurseries to cultivate, process, and
dispense non-euphoric, low THC cannabis and operate dispensing organizations, as of January
1, 2015; and
WHEREAS, in 2016, the Florida Legislature amended Section 381.986 of the Florida
Statutes to include medical cannabis, revise the requirements for physicians ordering low-THC
cannabis, medical cannabis, or cannabis delivery devices, amend the requirements for the
cultivation, processing, transportation, and dispensing of low-THC cannabis or medical
cannabis, revise the Florida Department of Health's authority and responsibility and provide for
penalties; and
WHEREAS, pursuant to Section 381.986(8) of the Florida Statutes, a municipality may
determine by ordinance the criteria for the number and location of, and other permitting
requirements that do not conflict with state law for dispensing facilities of dispensing
organizations located within its municipal boundaries; and
WHEREAS, due to the historical prohibition of cannabis, the City of Miami Beach
does not currently have any land development regulations governing the use of real
property for the purpose of on- site distribution, sale, delivery or retail of low-THC
cannabis, medical cannabis or cannabis delivery devices as provided by Florida Statutes
Sections 381.986 and 499.0295; and
WHEREAS, in order to promote the effective regulation of such activities, the City
Commission wishes to preserve the status quo while researching, studying, and
analyzing the potential impact of dispensing facilities within the City's boundaries upon
adjacent uses and the surrounding areas, including its effect on traffic, congestion,
surrounding property values, demand for City services including inspections and increase
police monitoring, and other aspects of the operation of dispensing facilities impacting
the general welfare of the community; and
WHEREAS, the City Commission finds that a one hundred and fifty eighty (150 1-80)
days temporary moratorium on the issuance of business tax receipts and the acceptance,
processing and approval of any building or zoning permits for the establishment and
operation of dispensing facilities within the corporate limits of the City of Miami Beach is a
reasonable period of time; and
WHEREAS, the City Commission finds that a one hundred and fifty eighty (150 1-80)
days temporary moratorium will allow the City sufficient time to determine what zoning
districts are best-suited for this particular use, and how best to formulate land development
and licensing regulations that will appropriately govern the use of real property for the
purpose of on-site distribution, sale, delivery or retail of low-THC cannabis, medical
cannabis or cannabis delivery devices; and
WHEREAS, the City Commission finds it is in the best interest of the citizens of
the City to minimize and control the adverse effects of dispensing facilities by adopting
appropriate land development and licensing regulations; and
WHEREAS, the ordinance is being referred to the City's Planning Board.
WHEREAS, as seen in WCI Communities, Inc. v. City of Coral Springs, 885 So.2d
912(Fla. 4th DCA 2004), a court will not interfere with the legislative act of establishing a
temporary moratorium where there is a rational relationship to the City's legitimate general
welfare concern; and
WHEREAS, moreover, a court should not set aside the determination of public officers in
land use matters unless it is clear that their action has no foundation in reason, and is a mere
arbitrary or irrational exercise of power having no substantial relation to the public health, the
public morals, the public safety of the public welfare in its proper sense. Id.; and Smithfield
Concerned Citizens for Fair Zoning v. Town of Smithfield, 907 F.2d 239, 243 (1St Cir. 1990);
and
WHEREAS, the first step in ensuring a proper moratorium, is to ensure that the City's
legislative has a rational basis and legitimate governmental purpose for the imposition of a
moratorium; and
WHEREAS, the second step is for the Mayor and City Commission to establish a record
that the moratorium would further the governmental purpose of creating, finalizing, and adopting
regulations relating to medical cannabis; and
WHEREAS, it is well-settled that permissible bases for land use restrictions include
concern about the effect of the proposed use on traffic, on congestion, on surrounding property
values, on demand for City services, and on other aspects of the general welfare. WCI
Communities, Inc., 885 So.2d at 915 and Corn v. City of Lauderdale Lakes, 997 F.2d 1369,
1375 (11th Cir. 1993); and
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WHEREAS, in applying an ordinance retroactively (1) there is clear evidence of
legislative intent to apply the law retroactively, and (2) when allowed, the retroactive application
is constitutionally permissible, in that the new law does not create new obligations, impose new
penalties, or impair vested rights. Jasinski v. City of Miami, 269 F.Supp.2d 1341 (SD Fla.
2003); and
WHEREAS, for purposes of determining whether the retroactive application of a
municipal ordinance impairs a vested right under Florida law, a vested right is defined as an
immediate, fixed right of present enjoyment, Id.; and
WHEREAS, the moratorium is not the retroactive application of a tax; and
WHEREAS, the City is not interfering with a vested right obtained as a result of a final
order from a City Land Use Board, or permit already obtained under the Florida Building Code;
and
WHEREAS, the City Commission finds that imposing a temporary moratorium until
adequate regulations have been developed, considered and adopted is in the best
interest of the health, safety and general welfare of the community and the residents of
the City; and
WHEREAS, the Mayor and City Commission desire to adopt a 1501-80 day moratorium.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. Recitals. The foregoing recitals are incorporated by this reference as if fully set
forth in the text of this Ordinance. The recitals evidence the concern, motivations and reasons
for imposition of this Ordinance.
SECTION 2. Moratorium Imposed. The City of Miami Beach, Florida hereby declares a
temporary building and zoning moratorium on the establishment and operation of dispensing
facilities within the corporate limits of the City of Miami Beach. The City shall not accept,
process or approve any application for business tax receipts, building permits, land use
changes, zoning variances or permits, or any other development permits for any property,
entity, or individual concerning or related to dispensing facilities engaged in permitted uses
under Florida law, specifically Florida Statutes Sections 381.986 and 499.0295, whether as a
principal or accessory use, so long as this ordinance is in effect. No person, corporation,
partnership or other entity shall establish or operate a dispensing facility engaged in permitted
uses under Florida law, specifically Florida Statutes Sections 381.986 and 499.0295.
SECTION 3: Duration Of Moratorium. The temporary moratorium shall take effect
immediately upon adoption of this ordinance and shall terminate one hundred and fifty cighty
(150 4-80) days from the adoption of this ordinance, unless the City Commission rescinds or
extends the moratorium by a subsequent ordinance.
SECTION 4: Penalties. Every person violating any provision of the Code or any ordinance,
rule or regulation adopted or issued in pursuance thereof shall be assessed a civil penalty not to
exceed $500.00 within the discretion of the court or administrative proceeding (Special Master)
3
having jurisdiction. Each act of violation and each day upon which any such violation shall occur
shall constitute a separate offense. In addition to the penalty prescribed above, the City may
pursue other remedies such as abatement of nuisance, injunctive relief, administrative
adjudication and revocation of licenses or permits.
SECTION 5. Construction. This Ordinance is to be liberally construed to accomplish its
objectives.
SECTION 6. Severability. That if any clause, section or other part of this Ordinance shall be
held invalid or unconstitutional by any court of competent jurisdiction, the remainder of this
Ordinance shall not be affected thereby, but shall remain in full force and effect.
SECTION 7. Repealer. All ordinances or parts of ordinances and all section and parts of
sections in conflict herewith be and the same are hereby repealed.
SECTION 8. Effective Date. This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this 9 day of November, 2016.
MAYOR
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(Sponsored by: Commissioner Ricky Arriola)
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Ordinances - R5 A
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: November 9, 2016
10:00 a.m. Second Reading Public Hearing
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, PERTAINING TO ESTABLISHING A TEMPORARY
MORATORIUM FORA PERIOD OF 180 DAYS FROM THE EFFECTIVE DATE OF
THIS ORDINANCE ON THE ACCEPTANCE, REVIEW, APPROVAL OR
ISSUANCE OF ANY LAND DEVELOPMENT PERMITS AS THE TERM IS
DEFINED IN FLORIDA STATUTES SECTION 163.3164(16), BUSINESS TAX
RECEIPTS OR ANY OTHER LICENSE OR PERMIT FOR THE ESTABLISHMENT
OR OPERATION OF DISPENSING FACILITIES WITHIN THE CITY ENGAGED IN
THE ON-SITE DISTRIBUTION, SALE, DELIVERY OR RETAIL OF LOW-THC
CANNABIS, MEDICAL CANNABIS OR CANNABIS DELIVERY DEVICES
PURSUANT TO SECTIONS 381.986 AND 499.0295 OF THE FLORIDA
STATUTES, IN ORDER TO PROVIDE THE CITY WITH AN OPPORTUNITY TO
REVIEW AND ENACT REGULATIONS GOVERNING THE ESTABLISHMENT AND
OPERATION OF DISPENSING FACILITIES; PROVIDING PENALTIES FOR
VIOLATION HEREOF; PROVIDING FOR SEVERABILITY; REPEAL OF
CONFLICTING ORDINANCE PROVISIONS; AND PROVIDING FOR AN
EFFECTIVE DATE RETROACTIVE TO OCTOBER 19, 2016; FOR ZONING IN
PROGRESS PURPOSES, THIS ORDINANCE SHALL BE EFFECTIVE UPON
FIRST READING OF THIS ORDINANCE, AND NO APPLICATIONS FOR
DEMOLITION WITHIN THE DESIGNATED AREA SHALL BE ACCEPTED BY THE
CITY.
RECOMMENDATION
The Administration recommends that the City Commission adopt the Ordinance.
ANALYSIS
BACKGROUND
Pursuant to Commissioner Ricky Arriola's Ocean Drive Ten Point Plan accepted by City
Commission on September 27 2016, the City Attorney's Office drafted the attached ordinance
that would establish a temporary moratorium on the issuance of any land development permits,
business tax receipts or any other license or permit for the establishment or operation of
dispensing facilities within the city engaged in the on-site distribution, sale, delivery or retail of
low-thc cannabis, medical cannabis. The sponsor of the ordinance is Commissioner Arriola.
Page 247 of 906
ANALYSIS
The proposed temporary moratorium would apply to the establishment and operation of medical
cannabis dispensing facilities within the corporate limits of the City of Miami Beach. Under the
proposed moratorium, the City would not accept, process or approve any application for
business tax receipts, building permits, land use changes, zoning variances or permits, or any
other development permits for any property, entity, or individual concerning or related to
dispensing facilities engaged in permitted uses under Florida law. This would apply to principal
or accessory uses.
As proposed, the moratorium would remain in effect for one hundred eighty (180) days from the
effective date, unless earlier rescinded, repealed or extended by an Ordinance of the City
Commission.
CONCLUSION
The Administration recommends that the City Commission adopt the Ordinance.
Legislative Tracking
Planning
Sponsor
Commissioner RickyArriola
ATTACHMENTS:
Description
❑ Ordinance
❑ Ad
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Page 248 of 906
30N5 I NEIGHBORS I NA5M1OCTOR[R27515
41AMIIf RAI DCOII
MIAMI BEACH
CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARING
NOVEMBER 9, 2016
NOTICE IS HEREBY given that a Second Reading. Public Hearing, will be heard by the
Mayor and City Commission of the City of Miami Beach, Florida, In the Commission
Chamber. 3`° Floor. City Hall, 1700 Convention Center Drive, Miami Beach, Florida, on
November 9, 2016 at 10:00 a.m.. or as soon thereafter as the matter can be heard, to
consider the adoption of the following Ordinance:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, PERTAINING TO ESTABLISHING A TEMPORARY MORATORIUM
FOR A PERIOD OF 180 DAYS FROM THE EFFECTIVE DATE OF THIS ORDINANCE
ON THE ACCEPTANCE, REVIEW, APPROVAL OR ISSUANCE OF ANY LAND
DEVELOPMENT PERMITS AS THE TERM IS DEFINED IN FLORIDA STATUTES
SECTION 163.3164(16), BUSINESS TAX RECEIPTS OR ANY OTHER LICENSE OR
PERMIT FOR THE ESTABLISHMENT OR OPERATION OF DISPENSING FACILITIES
WITHIN THE CITY ENGAGED IN THE ON-SITE DISTRIBUTION, SALE, DELIVERY
OR RETAIL OF LOW-THC CANNABIS, MEDICAL CANNABIS OR CANNABIS
DELIVERY DEVICES PURSUANT TO SECTIONS 381.986 AND 499.0295 OF THE
FLORIDA STATUTES. IN ORDER TO PROVIDE THE CITY WITH AN OPPORTUNITY
TO REVIEW AND ENACT REGULATIONS GOVERNING THE ESTABLISHMENT AND
OPERATION OF DISPENSING FACILITIES: PROVIDING PENALTIES FOR VIOLATION
HEREOF:PROVIDING FOR SEVERABILITY:REPEAL OF CONFLICTING ORDINANCE
PROVISIONS; AND PROVIDING FOR AN EFFECTIVE DATE RETROACTIVE TO
NOVEMBER 9, 2016: FOR ZONING IN PROGRESS PURPOSES, THIS ORDINANCE
SHALL BE EFFECTIVE UPON FIRST READING OF THIS ORDINANCE, AND NO
APPLICATIONS FOR DEMOLITION WITHIN THE DESIGNATED AREA SHALL BE
ACCEPTED BY THE CITY.
This ordinance Is being heard pursuant to Section 118-164 of the City's Land Development
Code. Inquiries may be directed to the Planning Department at 305.673.7550.
INTERESTED PARTIES are Invited to appear at this meeting, or be represented by an
agent,or to express their views In writing addressed to the City Commission,c/o the City
Clerk, 1700 Convention Center Drive, 1, Floor, City Hall, Miami Beach, Florida 33139.
These Items are available for public Inspection during normal business hours In the Office
of the City Clerk, 1700 Convention Center Drive, 161 Floor, City Hall, Miami Beach.Florida
33139.This meeting,or any Item herein,may be continued;and under such circumstances,
additional legal notice need not be provided. .
Pursuant to Section 286.0105,Fla.Stat.,the City hereby advises the public that 11 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 alternate format, sign language Interpreter (five-day notice
required),Information on access for persons with disabilities,and/or any accommodation to
review any document or participate In any City-sponsored proceedings,call 305.604.2489
and select 1 for English or 2 for Spanish,then option.6;TTY users may call via 711 (Florida
Relay Service).
Rafael E.Granado, City Clerk
City of Miami Beach
Ad 1233
Page 253 of 906