Ordinance 90-2694 ORDINANCE NO. 90-2694
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, AMENDING CHAPTER 38 OF THE MIAMI BEACH
CITY CODE ENTITLED "SOLICITATIONS" BY AMENDING SECTION
38-1 ENTITLED "DEFINITIONS" VIA THE ADDITION THERETO OF
THE FOLLOWING DEFINED TERMS: "COST OF FUNDRAISING";
"RELIGIOUS INSTITUTIONS"; AND "EDUCATIONAL INSTITUTIONS";
AMENDING SECTION 38-2 ENTITLED "SOLICITATIONS BOARD" BY
DELETING THEREFROM PROVISIONS GOVERNING MIAMI BEACH
POLICE INVESTIGATIVE ASSISTANCE; AMENDING SECTION 38-4
ENTITLED "ISSUANCE OF PERMITS; HEARING PROCEDURES" BY
ESTABLISHING A 30-DAY TIME PERIOD WITHIN WHICH APPEALS
OF PERMIT DENIALS TO THE CITY MANAGER SHALL OCCUR;
AMENDING SECTION 38-6 ENTITLED "REGISTRATION
REQUIREMENTS" BY REQUIRING APPLICANTS TO SUBMIT FINANCIAL
REPORTS; AMENDING SECTION 38-7 ENTITLED "REGISTRATION
FORMS; AND PUBLIC DISCLOSURE" BY PROVIDING THAT ALL
REGISTRATION STATEMENTS FILED WITH THE CITY OF MIAMI
BEACH SHALL BE PUBLIC RECORDS; ADDING SECTION 38-10. 1
ENTITLED "PROVISIONS CUMULATIVE", SAID SECTION MANDATING
COMPLIANCE WITH THIS CHAPTER AS WELL AS ALL OTHER VALID
AND APPLICABLE LAWS PERTAINING TO THE SOLICITATION OF
FUNDS OR RELATED ACTIVITY; AMENDING SECTION 38-12
ENTITLED "EXEMPTIONS" BY ADDING THERETO ORGANIZATIONS OR
ENTITIES WITH TAX EXEMPT STATUS UNDER SECTION 501 (c) (3)
OF THE INTERNAL REVENUE CODE, ORGANIZATIONS OR ENTITIES
WITH STATE SALES TAX EXEMPT STATUS UNDER FLORIDA STATUTE
SECTION 212 .08 (7) , BONAFIDE RELIGIOUS INSTITUTIONS AND
EDUCATIONAL INSTITUTIONS, AND BY PROVIDING THAT NON-
EXEMPT PERSONS OR ORGANIZATIONS SPENDING IN EXCESS OF 50%
OF INCOME ON COST OF FUNDRAISING MAY SOLICIT UPON THE
PROVISION OF DETAILED INFORMATION REGARDING HOW MONIES
ARE SPENT; PROVIDING FOR REPEALER; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA.
SECTION 1.
That Chapter 38 of the Miami Beach City Code governing
"Solicitations" be and the same is hereby amended to read as
follows:
Sec. 38-1. Definitions.
For the purposes of complying with this Ordinance, the following
definitions shall apply:
(a) Solicitations shall mean and include all direct person-to-
person requests for contributions for any religious, political,
associational, educational, benevolent, health-related, humane,
philanthropic, patriotic, or eleemosynary function, event,
organization or purpose, or for any charitable cause. The term
"solicitations" shall include, but is not limited to, requests for
contributions on any street or sidewalk, at any restaurant or hotel
or by means of door-to-door requests for contributions, and
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requests for contributions within, at, or adjacent to any public
event or public forum. The term "solicitation" shall also include
the request for contributions in connection with any fair, bazaar,
rummage sale, benefit or carnival. A solicitation shall be deemed
to have taken place when the request is made, whether or not the
person making the request receives any contribution.
"Solicitations" shall not include requests made by telephonic,
television, radio, mailings, posters or other similar indirect and
non-personal written or electronic communications. "Solicitations"
shall also include the sale or offer, or attempt to sell or offer,
any advertising, book, card, tag, device, magazine, membership,
merchandise subscription, flower, ticket, candy, cookie or other
item, new or used, in connection with any organization, cause or
purpose described above.
(b) Contributions shall be defined to mean donations, fees,
commissions, promises or grants of any money, property, service,
credit or financial assistance of any kind or value in connection
with any purpose described in subsection (a) above.
(c) Charitable cause shall include all religious, benevolent,
philanthropic, patriotic, eleemosynary, health, educational,
social-welfare, arts or humanities, civic or public interest
purpose, function, organization, party, activity or movement.
(d) Income shall mean the gross amount of contributions
received from the public by a person or an organization during its
fiscal year.
(e) Person shall mean any individual, school, party, church,
religious or other association, organization, trust, foundation,
group, association, partnership, corporation, society or other
entity.
(f) Professional solicitor shall mean any person who, for a
financial consideration, solicits contributions for or on behalf
of a charitable cause or organization whether such solicitation is
performed personally or through agents, servants, or employees.
A bona fide salaried officer or employee of a charitable cause or
organization maintaining a permanent establishment within the state
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shall not be deemed to be a professional solicitor. However, any
bona fide salaried officer or employee of a charitable organization
who engages in the solicitation of contributions in any manner for
more than one charitable organization shall be deemed a
professional solicitor.
(g) "Cost of Fund-raising" shall mean all expenses incurred in
soliciting contributions, including, but not limited to, cost of
goods sold or services purchased; expenses incurred for employee
salaries, printed materials; office space; telephones; and
advertising; and expenses incurred for the services performed by
or through a professional solicitor.
(h) 1. "Religious Institutions" shall mean churches,
ecclesiastical or denominational organizations, or established
physical places for worship in this state at which nonprofit
religious services and activities are regularly conducted and
carried on, and includes those bona fide religious groups which do
not maintain specific places of worship.
2 . "Religious Institutions" also includes such separate
groups or corporations which form an integral part of those
institutions described in subparagraph (h) (1) hereinabove which
are exempt from Federal Income Tax as exempt organizations under
the provisions of §501 (c) (3) of the Internal Revenue Code, and
which are not primarily supported by funds solicited outside their
own membership or congregation.
(i) "Educational Institutions" shall mean those institutions
and organizations described in Fla. Stat. §212 . 08 (7) (0) 2 .d.
Sec. 38-2 . Solicitations board.
An eleven member solicitations board is hereby created to serve
without compensation, to be composed of the city manager or his or
her designate and the city attorney or his or her designate; one
representative each from the Miami Beach Chamber of Commerce, and
the Miami Beach Jaycees (the latter two to be designated by the
city manager for a term of two years) ; and one person to be
appointed by each city commissioner, to serve until sixty days
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after the following city commission election. The board shall
choose its own chairman. The board shall receive, and maintain on
file with the city all materials submitted or collected in
connection with solicitation permits under this chapter and shall
allow inspection of all such materials by any person. The Board
shall issue or deny solicitations permits solely in accordance with
the rules of this chapter, and may conduct meetings. The board
ohal1 have thc right to obtain invc3tigativc a33i3tance from thc
Miami Beach Police Dcpartment undcr this chapter.
Sec. 38-3. Recommendations of board.
Upon receipt and review of the properly certified forms
described below or required by board rules, the solicitations board
shall promptly grant or deny a permit to solicit to the person
seeking to solicit within the City of Miami Beach. A permit may
be denied on the grounds that the person or organization filing
the necessary documents has failed to disclose the required
information, or has failed to provide an explanation for the
omission,— (as set forth in Section 38-6 (q) herein) , or has filed
a registration statement which the applicant knows to contain a
false or misleading statement.
Sec. 38-4. Issuance of permits; hearing procedures.
In the event the board denies an application for a permit, the
applicant may appeal the denial to the city manager within 30 days
after the date of said denial and after hearing, a written
statement shall be issued by the city manager stating his decision
and explaining the basis for it. No permit shall be denied except
for failure to satisfy the requirements of this chapter, or for
failure to satisfy the board' s rules adopted under section 38-13
below, or for failure to provide an explanation for any omission
on a registration statement,— (as set forth in Section 38-6 (q)
herein) , or for knowingly filing a registration statement
containing false or misleading statements.
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Sec. 38-5. Registration.
No person shall solicit or seek contributions within the City
of Miami Beach until the required registration materials have been
properly filed and a valid permit has been issued.
Sec. 38-6. Registration requirements.
To obtain a permit under this chapter, a registration statement
must be filed with the solicitations board, disclosing fully and
truthfully the information listed below. However, the
solicitations board may reduce or eliminate any of these disclosure
requirements, provided such reduction or elimination is applied
equally to all applicants.
(a) Name and address of the person seeking a permit.
(b) Names and addresses of all individuals within the City of
Miami Beach who will be soliciting or seeking contributions on
behalf of said persons.
(c) Complete and precise description of the purpose(s) for
which solicitations will be made.
(d) The type of legal entity involved, where and when such
entity was organized, and whether the organization or entity has
received tax-exempt status from the United States Internal Revenue
Services or has received state sales tax exempt status under
Florida statute section 212 . 08 (7) .
(e) Whether the person seeking the permit is related to any
business entity or organization, the nature of that relationship,
and the name of any parent or associated organizations.
(f) A precise description of the manner(s) in which
solicitations will be made or contributions sought.
(g) Whether the person has previously solicited in the City of
Miami Beach, and if se known, when.
(h) Whether the person has ever been enjoined or prohibited
from soliciting contributions in any location.
(i) A statement of how income, if any, has bccn used in the two
prior years. The dates on which the applicant intends to solicit.
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(j ) The name and addresses of all professional solicitors
involved with the applicant.
(k) The names and addresses of all officers and directors or
other persons responsible for the activities of the applicant.
(1) The names and addresses of all persons having financial
responsibility for the applicant, including those having custody
of all contributions obtained.
(m) A projected schedule of all salaries, overhead and fund-
raising costs, and an estimated percentage of the total projected
collections which the such costs of solicitation will comprise.
(n) Whether the applicant is registered as a corporation in
the State of Florida.
(o) Whether the applicant employs an accountant or accounting
firm, and if so, the names thereof.
(p) Whcthcr tThe applicant has shall attach a current financial
report for the immediate past fiscal year or period of fund-raising
activity, and if 30, a copy of said financial report, which report
shall include the following information:
A. The total amount of contributions raised.
B. The total costs and expenses incurred in raising
contributions.
C. The total amount of contributions dedicated to
the stated purpose or dispersed for the stated purpose.
(q) An explanation of the reasons, if the person registering
is unable to provide any of the foregoing information,— in items (a)
- (o) hereinabove, why such information is not available.
(r) The dates on which the applicant intends to solicit.
Sec. 38-7 . Registration forms and Public Disclosure.
(a) The solicitations board may prepare registration forms to
be answered, executed, notarized and submitted by persons seeking
to solicit or intending to seek contributions within the City of
Miami Beach. The person submitting the form, along with the chief
officer of, or other person responsible for the organization,, may
shall be required by the board to certify under oath, in notarized
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form, that all information furnished therein is true and correct.
(b) All registration statements filed with the City of Miami
Beach, whether or not a permit to solicit has been issued, shall
be a public record and shall be available for inspection by members
of the public during regular business hours. Copies may be
obtained at the fees prescribed by law for copies of City records.
Sec. 38-8. Issuance of solicitations permits.
A numbered solicitations permit may be issued, pursuant to
sections 38-3 and 38-4 above, for a period not exceeding six
months. All solicitors or persons seeking contributions on behalf
of the registrant within the city shall be issued a copy of said
permit, which shall contain the name of the registrant' s
organization and the permit number thereon, and the name and
address of the individual solicitor. Every individual solicitor
shall carry on his person at all times while soliciting a copy of
said permit, which may not be transferred to any other person or
organization, and which shall be returned to the city upon
expiration.
Sec. 38-9. Permit fee.
All persons seeking a permit under this chapter shall remit to
the city a fee of ten dollars for the permit to compensate the city
for the cost of administering this chapter, and such fee will not
be refunded if a permit is not issued.
Sec. 38-10. Enforcement of "No Solicitor,' signs.
Any home owner, business or tenant seeking to exclude solicitors
from their premises may post a clearly visible sign or notice so
stating. Persons violating such notice shall be subject to arrest
and subject to the penalties provided below, in addition to any
other civil or criminal penalties which may exist.
Sec. 38-10. 1. Provisions cumulative.
The provisions of this chapter are cumulative of any other valid
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and applicable laws, rules or regulations governing the
solicitation of funds or any activity which may be associated
therewith. Compliance with this chapter shall not be deemed to
excuse compliance with any other valid and applicable laws, rules
or regulations governing the solicitation of funds or any activity
which may be associated therewith.
Sec. 38-11. Receipts for contributions.
It shall be unlawful for any person to solicit contributions
without providing each donor or contributor a signed receipt for
any contribution exceeding ten dollars. Each receipt shall state
the name of the person receiving the contribution and the permit
number issued under section 38-8 above.
Sec. 38-12 . Exemptions.
The registration requirements of this chapter shall not apply
to (i) any organization or entity soliciting or seeking
contributions solely among its own membership; (ii) activities
conducted solely within private homes or dwellings; (iii) any
governmental organization; (iv) any person or entity properly
registered by the Secretary of State pursuant to Chapter 496, Fla.
Stat. (1981) , provided the applicant submits to the solicitations
board copies of state registration materials which disclose
substantially all the information required for disclosure under
Sec. 38-6 of this chapter; (v) any fund-raising by political
candidates or political organizations rcgi3tcrcd undcr or subjcct
to the provisions of Chaptcrs 111 of 10G, Fla. Stat. (1981) ,
Chapter 10, Art. I, Miami B ach Codc, solicited in accordance with
the election laws of Florida, or equivalent local, state or federal
campaign fund-raising laws; (vi) any organization or entity which
has received tax-exempt status from the United States Internal
Revenue Service, pursuant to §501 (c) (3) of the Internal Revenue
Code; (vii) any organization or entity with state sales tax exempt
status under Florida statute section 212 . 08 (7) ; (viii) bonafide
religious institutions; and (ix) educational institutions.
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However, no A person or organization which is not exempt from the
registration requirements of this Chapter and which represents that
its primary purpose is to provide money or services to the poor,
the needy, or other such charitable causes, or for educational or
religious purposes, shall not solicit on Miami Beach, or be granted
a permit to solicit on Miami Beach, which if it spends in excess
of fifty percent of its income on the cost of fundraising oalarics,
operating expenses and/or cost of professional solicitors, cxccpt
said fifty percent limitation shall not operate as a bar to
obtaining a permit when the applicant and/or organization
demonstrates the reasonableness of its costs of soliciting,
nonetheless, this fifty perccnt requirement shall not apply to any
of information on matters of public concern. unless said person
or organization provides to the solicitations board information
detailing how said monies are spent, with copies of receipts
concerning said expenditures (or, if no such receipts are
available, an explanation of the reasons why said receipts are not
available) . The solicitations board may require any organization
to submit an audited annual financial otatcmcnt report with such
information as may be appropriate to verify compliance with this
requirement.
Sec. 38-13. Rule-making authority.
The solicitations board is hereby empowered and delegated the
authority to adopt, with the approval of the city attorney and the
ratification of the city commission, written rules to administer
and enforce the provisions of this chapter. The solicitations
board shall adopt written rules of procedure, with the approval of
the city attorney and the ratification of the city commission, to
govern the conduct of its meetings and all hearings under section
38-4 . The board is specifically authorized to adopt rules by
majority vote, subject to the city attorney's approval and city
commission's ratification, to govern the conduct of its members,
including removal of members who fail to attend three or more
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scheduled board meetings without good cause. The solicitations
board may permit temporary solicitations without registration, or
by means of lesser registration requirements, in cases of actual
hardship, or to reasonably limit the absolute number of solicitors
engaged in solicitation activities in the city at any one time,
provided prior written rules are adopted for this purpose and
approved by the city attorney and ratified by the city commission.
Upon adoption by the board of any administrative rule, and the
approval of said rule by the city attorney, the rule shall be
brought before the Miami Beach city commission for discussion, at
which time the city commission shall approve or disapprove the rule
by majority vote; a copy of these rules shall be available for
public inspection in the city clerk' s office during normal business
hours.
Sec. 38-14. Prohibited activities.
No person subject to this chapter shall harass or seek to
intimidate any other person who has indicated a desire not to
contribute to a charitable purpose, as defined above. It shall be
illegal for any person subject to this chapter to solicit or seek
contributions by making false or misleading statements to a
prospective contributor.
Sec. 38-15. Penalties.
Any person or organization violating any of the provisions of
this chapter shall be subject to forfeiture or suspension of their
permits and may be excluded by the city manager from solicitation
activities within the city for a period not exceeding two years,
in accordance with properly promulgated rules. In addition,
violators may be arrested, charged and prosecuted with a violation
of this ordinance and, if convicted, shall be subject to the
following penalties: (i) Upon conviction for the first offense, a
fine not exceeding five hundred dollars shall be imposed; (ii) Upon
conviction for the second offense, a fine not exceeding one
thousand dollars and a sentence of imprisonment not exceeding three
10
days shall be imposed; (iii) Upon conviction for the third and
subsequent offenses, a fine not exceeding five thousand dollars and
a sentence of imprisonment not exceeding thirty days shall be
imposed.
SECTION 2 . REPEALER
All Ordinances or parts of ordinances in conflict herewith be and
the same are hereby repealed.
SECTION 3. SEVERABILITY
If any section, sentence, clause or phrase of this ordinance is
held to be invalid or unconstitutional by any court of competent
jurisdiction, then said holding shall in no way affect the validity
of the remaining portions of this ordinance.
SECTION 4. EFFECTIVE DATE
This ordinance shall take effect ten (10) days after its adoption,
on June 2, , 1990.
PASSED and ADOPTED this 23rd day of May 1.y. 047
MA •R
ATTEST:
CITY uLERK
JKO/rg/jcl
(Recommended by the Miami Beach Solicitations Board)
1st reading 5/9/90
2nd reading 5/23/90 (as amended)
FORM APPROVED
LEG k L D
By `
J 2 3_`i` s
Date
11
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7.
OFFICE OF THE CITY ATTORNEY
0/07. . -dVead ,
F L O R I D A
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*�.INCDA��()RATfD*��' P.O. BOX O
LAURENCE FEINGOLD ^, �;�h
CITY ATTORNEY *R'�Nj6�� MIAMI BEACH. FLORIDA 33'19-2032
TELEPHONE i 305)673-7470
COMMISSION MEMORANDUM ' _SS
Ci TELECOPY (305)673-7002
DATE: MAY 1, 1990
TO: Mayor Alex Daoud and
Members of the City Commission
FROM: Laurence Feingold i
City Attorney
SUBJECT: AMENDMENTS TO MIAMI BEACH CITY CODE CHAPTER 38
GOVERNING "SOLICITATIONS""
Chapter 38 of the Miami Beach City Code governing
"Solicitations" is being amended for the purposes of clarifying
certain provisions therein and ensuring conformity of said Chapter
to general constitutions guarantees concerning an individual 's or
organization's right to solicit. Specifically, the proposed
changes to Chapter 38 involve the following:
- Amendment to Section 38-1 entitled "Definitions" via the
addition thereto of the following defined terms: "cost
of fundraising", "religious institutions" , and
"educational institutions" ;
- Amendment to Section 38-2 entitled "Solicitations Board"
by deleting therefrom provisions governing Miami Beach
Police investigative assistance;
- Amendment to Section 38-4 entitled "Issuance of Permits;
Hearing Procedures" by establishing a 30-day time period
within which appeals of permit denials to the City
Manager shall occur;
- Amendment to Section 38-6 entitled "Registration
Requirements" by requiring applicants to submit financial
reports;
- Amendment to Section 38-7 entitled "Registration Forms
and Public Disclosure" by providing that all registration
statements filed with the City of Miami Beach shall be
public records;
- Amendment to Section 38-10. 1 entitled "Provisions
Cumulative" said Section mandating compliance with this
Chapter as well as all other valid and applicable laws
pertaining to the solicitation of funds or related
activity;
- Amendment to Section 38-12 entitled "Exemptions" by
adding thereto organizatons or entities with tax-emempt
status under Section 501 (c) of the Internal Revenue Code,
bonafide religious institutions and educational
institutions, and by providing that non-exempt persons
or organizations spending in excess of 50% of income on
cost of fundraising may solicit upon the provision of
detailed information regarding how monies are spent.
The attached amendments to Chapter 38 have, been reviewed by 6
the Legal Department and are thus ready for City Commission
consideration.
AGENDA ` g
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