2017-4101 Ordinance CHAPTER 6—ALCOHOLIC BEVERAGES
ORDINANCE NO. 2017-4101
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 6 OF THE
CODE OF THE CITY OF MIAMI BEACH, ENTITLED "ALCOHOLIC
BEVERAGES," ARTICLE I, ENTITLED "IN GENERAL," SECTION 6-3
THEREOF, ENTITLED "HOURS OF SALE," TO PROHIBIT PACKAGE
LIQUOR SALES BEFORE 8:00 A.M. EACH DAY AT RETAIL STORES
(INCLUDING PACKAGE, GROCERY, CONVENIENCE, AND ANY
OTHER RETAIL STORES, AS WELL AS GASOLINE
STATIONS/SERVICE STATIONS) AND ALCOHOLIC BEVERAGE
ESTABLISHMENTS AND, AS APPLICABLE TO THE MXE MIXED USE
ENTERTAINMENT DISTRICT, TO AUTHORIZE PACKAGE LIQUOR
SALES AT SUCH ESTABLISHMENTS BETWEEN THE HOURS OF
10:00 A.M. AND 10:00 P.M. ONLY; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, the City of Miami Beach ("City") regulates the location, size, hours of
operation, and minimum patron age for uses that permit the sale and consumption of alcoholic
beverages in Chapter 6 of the City Code, entitled "Alcoholic Beverages"; and
WHEREAS, on November 9, 2016, the Mayor and City Commission adopted Ordinance
No. 2016-4058, which prohibited package liquor sales at retail stores (including package,
grocery, convenience, and any other retail stores, as well as gasoline stations/service stations)
and alcoholic beverage establishments before 10:00 a.m. (instead of 8:00 a.m.) each day; and
WHEREAS, since the enactment of Ordinance No. 2016-4058, the Mayor and City
Commission have determined that it is in the best interest of the City, and it serves the health,
safety, and welfare of the City's residents and visitors, to prohibit package liquor sales at retail
stores (including package, grocery, convenience, and any other retail stores, as well as gasoline
service/filling stations) and alcoholic beverage establishments before 8:00 a.m. (instead of
10:00 a.m.) each day; and
WHEREAS, notwithstanding the above, the Mayor and City Commission desire to
restrict package liquor sales in the MXE district from the hours of 10:00 a.m. until 10:00 p.m.
only; and
WHEREAS, this Ordinance strikes a balance between (i) the public safety concerns
associated with the sale of alcoholic beverages, on the one hand, and (ii) the convenience of
the City's residents and visitors who desire to purchase alcoholic beverages, as well as the
economic vitality of the City's retail stores, on the other hand; and
WHEREAS, State law expressly grants the City the authority to establish its own
regulations for the time for sale of alcoholic or intoxicating beverages; and
WHEREAS, pursuant to Section 562.14, Florida Statutes, a municipality may, by
ordinance, establish hours of sale for alcoholic beverages; and
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WHEREAS, Florida courts have rejected equal protection and due process challenges to
Section 562.14, Florida Statutes (See Wednesday Night, Inc. v. City of Fort Lauderdale (Fla.
1973)); and
WHEREAS, Florida Courts have determined that it is within the police power and
authority for a municipality to change the hours of regulation of alcoholic beverages, because
municipalities have the statutory authority under Section 562.14, Florida Statutes, to restrict the
sale of alcohol; additionally, a municipal ordinance regulating the hours of sale of alcoholic
beverages may be applied to a property incorporated later into the municipality by annexation.
Village of North Palm Beach v. S & H Foster's, Inc., 80 So. 3d 433 (Fla. 4th DCA 2012); and
WHEREAS, in State ex rel. Floyd v. Noel (Fla. 1936), the Florida Supreme Court
recognized that "[i]t is so well settled that no citation of authority is required to support the
statement that a municipality exercising the powers inherent in municipal corporations may
reasonably regulate the sale of intoxicating liquors and in providing such reasonable regulations
may prohibit the sale of such liquors within certain hours, and also may prohibit the sale of
liquors within certain zones"; and
WHEREAS, the Florida Attorney General has opined that a municipality may regulate (1)
the hours of sale, (2) zoning of locations in which alcoholic beverages may be sold, and (3) the
sanitary conditions under which alcoholic beverages may be dispensed or served to the public.
Florida AGO 059-73 (1959); and
WHEREAS, in fact, the Florida Attorney General has opined that different hours may be
provided for in a municipal ordinance, provided there is reasonable relation to the health, safety,
and morals of the community. Op. Att'y Gen. Fla., p. 497 (1950); and
WHEREAS, Florida courts have consistently held that alcoholic beverage
establishments are not entitled to grandfather status as to hours of sale for alcoholic beverages
(See Village of North Palm Beach v. S & H Foster's, Inc. (Fla. 4th DCA 2012); Other Place of
Miami, Inc. v. City of Hialeah Gardens (Fla. 3d DCA 1978)); and
WHEREAS, injunctive relief is not available against the enforcement of a municipal
ordinance regulating the time at which alcoholic beverages may be sold, because municipalities
have the statutory authority to set times for sale of alcoholic beverages. Id.; Playpen S., Inc. v.
City of Oakland Park, 396 So. 2d 830 (Fla. 4th DCA 1981); and
WHEREAS, Florida Courts have ruled that hours of operation are not a property right. S.
Daytona Rests., Inc. v. City of S. Daytona, 186 So. 2d 78 (Fla. 1st DCA 1966); and
WHEREAS, the amendments set forth below are necessary to accomplish the objectives
identified above.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. That Section 6-3, entitled "Hours of Sale," of Article I, of Chapter 6, of the City
Code of the City of Miami Beach is hereby amended as follows:
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CHAPTER 6
ALCOHOLIC BEVERAGES
ARTICLE I. In General
Sec. 6-3. Hours of sale/violations.
(a) The hours of sale of alcoholic beverages, whether as a permitted main or accessory use,
shall require a State License, and shall be according to the following schedule:
(1) Retail stores for package sales only—Off-premises consumption. Vendors may make
sales of alcohol only for off-premises consumption between the hours of 10:00 a.m.
8:00 a.m. and midnight.
A. Notwithstanding subsection (a)(1), vendors located in the MXE mixed use
entertainment district may make sales of alcohol only for off-premises
consumption between the hours of 10:00 a.m. and 10:00 p.m.
(2) Retail stores, including grocery, convenience stores, and gasoline service/filling
stations. Retail stores, including grocery, convenience stores, and gasoline
service/filling stations, which primarily offer for sale products other than alcoholic
beverages may only make sales of beer and wine only for off-premises consumption
between the hours of 10:00 a.m. 8:00 a.m. and midnight.
A. Notwithstanding subsection (a)(2), retail stores, including grocery, convenience
stores, and gasoline service/filling stations, that are located in the MXE mixed
use entertainment district, and which primarily offer for sale products other than
alcoholic beverages may only make sales of beer and wine only between the
hours of 10:00 a.m. and 10:00 p.m.
(3) Alcoholic beverage establishments. All alcoholic beverage establishments with state
licensure—On-premises consumption only, may make sales of alcohol between the
hours of 8:00 a.m. and 5:00 a.m.
(a) Restaurants not operating as dance halls or entertainment establishments.
Restaurants with full kitchen facilities, serving full meals, licensed as alcoholic
beverage establishments, but not operating as dance halls or entertainment
establishments, may remain open 24 hours a day; however, alcoholic beverages
may not be offered for sale or on-premises consumption between the hours of 5:00
a.m. and 8:00 a.m.
(b) Restaurants also operating as dance halls or entertainment establishments.
Restaurants with full kitchen facilities, serving full meals, licensed as alcoholic
beverage establishments, and also operating as dance halls, or entertainment
establishments, may remain open 24 hours a day; however, alcoholic beverages
may not be offered for sale or on-premises consumption between the hours of 5:00
a.m. and 8:00 a.m., and dancing and entertainment shall not be conducted
between the hours of 5:00 a.m. and 10:00 a.m.
(c) Other alcoholic beverage establishments. Other alcoholic beverage
establishments, not containing restaurants with full kitchen facilities, shall close at
5:00 a.m. and remain closed. No patron or other persons, other than those
employed by the vendor may remain on the premises between the hours of 5:00
a.m. and 8:00 a.m.
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(d) Sidewalk cafes. Notwithstanding the provisions of subsections (3)(a) through (c),
alcoholic beverages shall not be offered for sale or consumption at sidewalk cafes,
as defined in section 82-366 of this Code and as otherwise permitted by the City in
accordance with chapter 82, article IV, division 5, subdivision II of this Code (as
may be amended from time to time), between the hours of 1:30 a.m. and 8:00
a.m., and shall not be consumed at sidewalk cafes between the hours of 2:00 a.m.
and 8:00 a.m. No variances may be granted from the provisions of this section 6-
3(3)(d) as to the hours of sale or consumption of alcoholic beverages at sidewalk
cafes.
Note: For purposes of this section, full kitchen facilities shall mean having commercial
grade burners, ovens, and refrigeration units of sufficient size and quantity to
accommodate the occupancy content of the establishment. Full kitchen facilities must
contain grease trap interceptors, and meet all applicable city, county, and state codes.
(4) Off-premises package sales by alcoholic beverage establishments. Off-premises
package sales associated with alcoholic beverage establishments other than retail
stores shall be permitted between the hours of 10:00 a.m. 8:00 a.m. and midnight.
A. Notwithstanding subsection (a)(4), off-premises package sales associated with
alcoholic beverage establishments, other than retail stores, that are located in the
MXE mixed use entertainment district shall be permitted only between the hours
of 10:00 a.m. and 10:00 p.m.
(5) Private clubs. Consideration of a request for a private club conditional use permit,
including the hours of operation, shall be pursuant to the conditional use Procedures
and Review Guidelines as listed in section 118-191, et seq. A private club, either as a
permitted main or accessory use, shall only offer alcoholic beverages for sale or on-
premises consumption if the private club, in accordance with section 6-2(a), secures a
license for the distribution or sale of any alcoholic beverages from the division of
alcoholic beverages and tobacco of the department of business and professional
regulation of the state. Private clubs licensed as alcoholic beverage establishments,
either as permitted main or accessory uses, shall; only offer alcoholic beverages for
sale or on-premises consumption between the hours of 8:00 a.m. and 5:00 a.m., on
any day of the week, provided that service is made only to members and guests of
members pursuant to Florida Statutes. However, any private club permitted to remain
open after 2:00 a.m. shall purchase an extra-hours license and must provide for
security in its premises by hiring private security guards or off-duty police officers
between the hours of 2:00 a.m. and 5:00 a.m. each day.
Private clubs securing a license from the state division of alcoholic beverages and
tobacco by complying with the requirements of F.S. § 561.20 for racquetball, tennis, or
golf course facilities may admit members at any time for use of such facilities, but may
not serve alcoholic beverages after 2:00 a.m. each day unless such private club is the
holder of an extra-hours license and complies with the above requirements.
(6) Alcoholic beverage establishments set forth in subsections (3) and (5) permitted to
remain open to serve alcoholic beverages for on-premises consumption until 5:00 a.m.
may continue to serve alcoholic beverages for on-premises consumption and, if the
alcoholic beverage establishment is located on Ocean Drive between 5th Street and
15th Street, for consumption at the establishment's sidewalk cafe (i) until 7:00 a.m. on
January 1 (New Year's Day) or, if January 1 is on a Sunday, until 7:00 a.m. on Monday
if the day that is observed as a national holiday for New Year's Day is on Monday, and
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(ii) until 7:00 a.m. during certain major event days or weekends as may be designated
by the city commission or as may be designated by the city manager following approval
by the city commission, under the following conditions:
(a) The police department and the code compliance department of the city must be
notified by a letter, received no later than 15 business days prior to either: (a)
January 1, or (b) the day on which alcohol sales are to be extended, stating that
the alcoholic beverage establishment intends to serve alcoholic beverages for on-
premises consumption and, if the alcoholic beverage establishment is located on
Ocean Drive between 5th Street and 15th Street, for consumption at the
establishment's sidewalk cafe until 7:00 a.m.;
(b) If deemed reasonably necessary by the police chief, or the police chiefs designee,
off-duty police officers must be provided at the alcoholic beverage establishment
until 7:00 a.m.;
(c) There are no pending City Code violations against the alcoholic beverage
establishment;
(d) No delinquent or past due monies are owed to the city;
(e) Outdoor entertainment or open-air entertainment is not allowed;
(f) No violation of the city's noise ordinance shall be permitted;
(g) No violation of the approved fire code occupancy load shall be permitted;
(h) All required city permits and licenses are current;
(i) The State License is current; and
(j) Any other conditions required by the city manager in order to protect the public
health, safety, or welfare.
(7) Alcoholic beverage establishments set forth in subsections (3) and (5) permitted to
remain open to serve alcoholic beverages for on-premises consumption until 5:00 a.m.
may continue to serve alcoholic beverages until 6:00 a.m. on the first day of daylight
savings time in the spring.
(8) The city manager may suspend the provisions of subsection (6) at any time to protect
the public health, safety, or welfare.
(9) Penalties and enforcement.
(a) The following penalties shall be imposed for a violation of this section:
i. The penalty for the first violation by a person or entity within a 12-month
period shall be a civil fine of$1,000.00;
ii. The penalty for the second violation by a person or entity within a 12-month
period shall be a civil fine of$5,000.00;
iii. The penalty for the third violation by a person or entity within a 12-month
period shall be a civil fine of$10,000.00;
iv. Upon a finding by the special master that four (4) or more violations by a
person or entity have occurred within a 12-month period, the city may initiate
proceedings to revoke the certificate of use, business tax receipt, or certificate
of occupancy of the violator.
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v. A sidewalk cafe permittee that has been issued four (4) or more violations
pursuant to this section or section 82-388 within a permit year shall be
prohibited from applying for and obtaining a sidewalk cafe permit for a period
of two (2) permit years following the permit year in which the sidewalk cafe
permittee incurred the violations.
(b) Enhanced penalty. The following enhanced penalty shall be imposed, in addition to
any mandatory fines set forth in subsection (9)(a) above, for violations of this
section:
i. The sale of alcoholic beverages in violation of this section must be
immediately terminated, upon confirmation by the code compliance
department that a violation has occurred.
(c) Enforcement. The code compliance department shall enforce this section. This
shall not preclude other law enforcement agencies or regulatory bodies from any
action to assure compliance with this section and all applicable laws. If a code
compliance officer (which, as defined in section 70-66, includes a police officer)
finds a violation of this section, the code compliance officer shall issue a notice of
violation in the manner prescribed in chapter 30 of this Code. The notice shall
inform the violator of the nature of the violation, amount of fine for which the
violator is liable, instructions and due date for paying the fine, that the violation
may be appealed by requesting an administrative hearing before a special master
within ten (10) days after service of the notice of violation, and that the failure to
appeal the violation within ten (10) days of service shall constitute an admission of
the violation and a waiver of the right to a hearing.
(d) Rights of violators; payment of fine; right to appear; failure to pay civil fine or to
appeal; appeals from decisions of the special master.
i. A violator who has been served with a notice of violation must elect to either:
A. Pay the civil fine in the manner indicated on the notice of violation; or
B. Request an administrative hearing before a special master to appeal the
notice of violation, which must be requested within ten (10) days of the
service of the notice of violation.
ii. The procedures for appeal by administrative hearing of the notice of violation
shall be as set forth in sections 30-72 and 30-73 of this Code. Applications for
hearings must be accompanied by a fee as approved by a resolution of the
city commission, which shall be refunded if the named violator prevails in the
appeal.
iii. If the named violator, after issuance of the notice of violation, fails to pay the
civil fine, or fails to timely request an administrative hearing before a special
master, the special master may be informed of such failure by report from the
officer. The failure of the named violator to appeal the decision of the officer
within the prescribed time period shall constitute a waiver of the violator's right
to an administrative hearing before the special master, and shall be treated as
an admission of the violation. for which fines and penalties shall be assessed
accordingly.
iv. A certified copy of an order imposing a fine may be recorded in the public
records, and thereafter shall constitute a lien upon any real or personal
property owned by the violator, which may be enforced in the same manner as
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a court judgment by the sheriffs of this state, including levy against the
violator's real or personal property, but shall not be deemed to be a court
judgment except for enforcement purposes. On or after the sixty-first (61st)
day following the recording of any such lien that remains unpaid, the City may
foreclose or otherwise execute upon the lien.
v. Any party aggrieved by a decision of a special master may appeal that
decision to a court of competent jurisdiction.
vi. The special master shall be prohibited from hearing the merits of the notice of
violation or considering the timeliness of a request for an administrative
hearing if the violator has failed to request an administrative hearing within ten
(10) days of the service of the notice of violation.
vii. The special master shall not have discretion to alter the penalties prescribed
in subsection (9)(a) or (9)(b).
SECTION 2. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this Ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered or
re-lettered to accomplish such intention, and, the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
SECTION 3. REPEALER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
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 7 day of TNh P 20
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Ordinances - R5 G
MIAMI BH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J. Aguila, City Attorney
DATE: June 7, 2017
10:15 a.m. Second Reading Public Hearing
SUBJECT:ALCOHOLIC BEVERAGES:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 6 OF THE CODE OF
THE CITY OF MIAMI BEACH, ENTITLED "ALCOHOLIC BEVERAGES,"
ARTICLE I, ENTITLED "IN GENERAL," SECTION 6-3 THEREOF,
ENTITLED "HOURS OF SALE," TO PROHIBIT PACKAGE LIQUOR SALES
BEFORE 8:00 A.M. EACH DAY AT RETAIL STORES (INCLUDING
PACKAGE, GROCERY, CONVENIENCE, AND ANY OTHER RETAIL
STORES, AS WELL AS GASOLINE STATIONS/SERVICE STATIONS) AND
ALCOHOLIC BEVERAGE ESTABLISHMENTS AND, AS APPLICABLE TO
THE MXE MIXED USE ENTERTAINMENT DISTRICT, TO AUTHORIZE
PACKAGE LIQUOR SALES AT SUCH ESTABLISHMENTS BETWEEN THE
HOURS OF 10:00 A.M. AND 10:00 P.M. ONLY; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION,AND AN EFFECTIVE DATE.
ANALYSIS
The attached Ordinance, sponsored by Commissioner Joy Malakoff and Commissioner Ricky
Arriola, is hereby submitted for consideration by the Mayor and City Commission.
On November 9, 2016, the Mayor and City Commission adopted Ordinance No. 2016-4058,
which prohibited package liquor sales at retail stores (including package, grocery, convenience,
and any other retail stores, as well as gasoline stations/service stations) and alcoholic beverage
establishments before 10:00 a.m. (instead of 8:00 a.m.) each day.
On March 1, 2017, the City Commission reviewed a prior version of this Ordinance, which
proposed to prohibit package liquor sales before 9:00 a.m. However, following a discussion on
the item, the City Commission directed staff to revise the proposed Ordinance to prohibit
package liquor sales before 8:00 a.m. This revision required a new first reading.
On April 26, 2017, the Mayor and City Commission reviewed the revised draft, and directed the
City Attorney's Office to prepare a revised draft Ordinance that further restricted the hours of
package liquor sales in the MXE district.
The attached Ordinance amends City Code Section 6-3 to prohibit package liquor sales Citywide
Page 946 of 1414
before 8:00 a.m. (instead of 10:00 a.m.) each day at retail stores (including package, grocery,
convenience, and any other retail stores, as well as gasoline stations/service stations) and alcoholic
beverage establishments. Notwithstanding the above, the attached Ordinance restricts package
liquor sales in the MXE district between the hours of 10:00 a.m. and 10:00 p.m. only.
Legislative Tracking
Office of the City Attorney
Sponsor
Commissioners Joy Malakoff and RickyArriola
ATTACHMENTS:
Description
o Ordinance
Page 947 of 1414