Ordinance 97-3084ORDINANCE NO. 97-3084
AN ORDINANCE OF THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA
AMENDING CHAPTER 2 ENTITLED "ADMINISTRATION",
BY CREATING A NEW ARTICLE II ENTITLED "QUASI-
JUDICIAL PROCEEDINGS: ACCESS TO PUBLIC
OFFICIALS AND CONDUCT OF PROCEEDINGS"; BY
CREATING A NEW SECTION 2-33 THEREOF ENTITLED
"ACCESS TO PUBLIC OFFICIALS IN QUASI-JUDICIAL
PROCEEDINGS"; AND BY CREATING A NEW SECTION 2-
34 THEREOF ENTITLED "CONDUCT OF QUASI-JUDICIAL
PROCEEDINGS", PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE
DATE.
WHEREAS, Section 5 Article I of the State Constitution gives the people the right
peaceably to assemble, to instruct their representatives, and to petition for redress of grievances; and
WHEREAS, the public should be able to voice its opinions to local elected public officials;
and
WHEREAS, government in Florida is conducted in the sunshine pursuant to Chapter 286,
Florida Statutes; and
WHEREAS, local elected and public officials are presumed to perform their duties in a
lawful and proper manner; and
WHEREAS, quasi-judicial decision making must be based on competent, substantial
evidence of record; and
WHEREAS, the legislative policy of promoting direct access to local government officials
and the judicial policy proscribing ex -parte communications with decision makers can be balanced
and accommodated by procedures requiring disclosure on the record of ex -parte communications
with elected and public officials acting as decision makers in quasi-judicial settings; and
WHEREAS, on April 19, 1995, the Mayor and City Commission of the City of Miami
Beach adopted Resolution No. 95-21556 which approved procedures for conducting quasi-judicial
hearings, including procedures relating to ex -parte communications; and
WHEREAS, Section 286.0115, Florida Statutes was thereafter created by the State
Legislature, which statute provides that direct access to local public officials relating to pending
quasi-judicial actions shall not be deemed prejudicial to such actions provided the local government
adopts and establishes disclosure procedures as set forth therein; and
WHEREAS, on November 21, 1995, the Mayor and City Commission of the City of Miami
Beach adopted Resolution No. 95-21823 which amended City of Miami Beach Resolution No. 95-
21556 and provided for additional procedures for ex -parte communications with public officials in
accordance with Section 286.0115, Florida Statutes; and
WHEREAS, the Mayor and City Commission of the City of Miami Beach deem it advisable
and in the best interest of the citizens and residents of the City to clarify, consolidate and codify
those procedures in the City Code relating to the conducting of quasi-judicial proceedings and to ex -
parte communications in accordance with Section 285.0115, Florida Statutes in order to enable direct
access to local officials which is non -prejudicial to the quasi-judicial process.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. Creation of new Article II entitled "Quasi -Judicial Proceedings: Access to Public
Officials and Conduct of Proceedings" and Section 2-33 thereof entitled "Access to
Public Officials in Quasi -Judicial Proceedings". and Section 2-34 thereof entitled
"Conduct of Quasi -Judicial Proceedings". all of Chapter 2 of the Miami Beach City
Code.
That a new Article II entitled "Quasi -Judicial Proceedings: Access to Public Officials
and Conduct of Proceedings", embodying Code Section 2-33 thereof entitled "Access to Public
Officials in Quasi -Judicial Proceedings" and Code Section 2-34 thereof entitled "Conduct of Quasi -
Judicial Proceedings" of all Miami Beach City Code Chapter 2, entitled "Administration" are hereby
created to read as follows:
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ARTICLE II. QUASI-JUDICIAL PROCEEDINGS: ACCESS TO PUBLIC OFFICIALS
AND CONDUCT OF PROCEEDINGS.
SECTION 2-33 Access to Public Officials in Quasi -Judicial Proceedings
The following procedure is hereby established for all ex -parte communications with any local
public official who recommends or takes quasi-judicial action as a member of a City board or the
City Commission which relate to quasi-judicial actions pending before the subject official:
The subject matter of any ex -parte communication,
together with the identity of the person, group or
entity with whom the communication took place, shall
be disclosed and made a part of the record on file with
the City prior to final action on the matter.
12/ Any written ex -parte communication subject to this
procedure shall be placed in and made a permanent
part of the record on file with the City prior to final
action on the matter.
Members of the City Commission and other City
boards and commissions may conduct investigations
and site visits and may receive expert opinions
re2arding quasi-judicial action pending before them.
The existence of such investigation, site visit or expert
opinion shall be made a part of the record on file with
the City prior to final action on the matter.
Any ex -parte communication or activity regarding a
pending quasi-judicial matter and not physically made
a part of the record on file with the City and available
for public inspection prior to the public meeting on
the matter shall be orally stated and disclosed on the
record at the public meeting prior to the vote on the
matter so that persons who have contrary opinions to
those expressed in the ex -parte communication are
given a reasonable opportunity to refute or respond to
the communication.
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• Adherence to the procedures set forth herein shall
remove the presumption of prejudice arising from ex -
parte communications with local public officials.
• Public Officials are not subject to Part III of Chapter
112, Florida Statutes for not complying with the
requirements hereof.
SECTION 2-34 Conduct of Quasi -Judicial Proceedings.
A. Definitions
1. Applicant - an individual, corporation or other authorized legal entity
filing an application or an appeal which initiates a quasi-judicial
proceeding, including the City staff and the City Commission and
Boards.
2. Application - an application for a site-specific rezoning, variance,
conditional use permit. design review approval, or other request for
a quasi-judicial proceeding or appeal as authorized by the City's
Zoning Ordinance or City Code.
City Board - any duly constituted Board of the City of Miami Beach.
City Staff - an employee of the City of Miami Beach.
Matter - see "Application" above.
§6. Member - the Mayor. a City Commissioner, or a member of the
Board of Adjustment, Planning Board, Design Review Board,
Historic Preservation Board, err Flood Plain Management Board-, or
any other City Board which makes quasi-judicial decisions.
67. Ex -parte communication - any written or oral communication with
any Member which may directly or indirectly influence the
disposition of an Application, other than those made on the record
during a public hearing.
Quasi -Judicial - refers to an action or proceeding by the City
Commission or a City Board on an Application for a site specific
rezoning, variance, conditional use permit, design review approval,
or other request (other than a comprehensive plan amendment) which
has an impact on a limited number of persons or property owners, on
identifiable parties and interests, where the decision is contingent on
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a fact or facts arrived at from distinct alternatives presented at a
hearing, and where the decision can be functionally viewed as policy
application, rather than policy setting-, or as may otherwise be
defined by caselaw.
B. Legal Representation
1. Applicants - Applicants may be represented by legal counsel.
2. City Boards - the Board or City Commission shall be represented by
the City Attorney's Office.
3. Staff - .. • : . • : : staff may be
represented by outside counsel when appearing before the Board or
City Commission during an appeal of any matter or when appearing
as an Applicant-, or when otherwise appropriate.
C. Participants at Hearings
All who testify on any matter must sign in and be sworn by the presiding
officer. All persons testifying subject themselves to cross-examination. Each
person, other than the salaried members of City staff, who addresses the
Board shall provide said Board with the following information in writing on
forms to be supplied by the Clerk:
u Name:
Lbj Address:
Whether they speak for themselves, a group of persons, or a
third party; if the person says that they_represent an organization, they
shall also indicate whether the view expressed by the speaker
represents
_ :.
and
an adopted position of the organization;
Whether there is compensation by the persons or persons on
whose behalf they speak; and
isj Whether they or any member of their immediate family has
a personal financial interest in the pending matter.
Lobbyists shall register with the City Clerk in accordance with City of Miami
Beach Ordinance No. 92-2777.
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D. Conduct of 1- fearing - the order of hearing shall he as follows:
The Chair shall
announce the particular
agenda item, and open the public hearing. The Chair shall eertiduet
preside over the meeting and shall administer oaths .
shall be through the Chair,
2. The Applicant, witness, staff, and all participants asking to speak
shall be sworn excluding attorneys, unless they testify.
3. The Board shall decide any parliamentary objections and objections
to evidentiary matters with the advice of the City Attorney.
M. The Board may ask questions of any speaker- at any time during the
proceeding.
43 The staff shall present its report, offer it into evidence, and have it
made part of the record.
36. The Applicant shall present its case.
67. Participants in support of the application shall present their testimony
and any evidence.
48. Opposition shall have the right to cross-examine individual speakers;
other than attorneys who are not testifying.
After the presentation in favor of the matter, the hearing shall proceed as follows:
9. Participants in opposition to the app-1-i-e-antApplication shall present
their testimony and evidence.
10. The Applicant or any participants in support of the Application shall
have the right to cross-examine individual speakers.
11. The Board may ask questions of anv speaker.
-1411. Rebuttal by staff, if requested. Staff shall he subject to cross-
examination.
-1312. Any other member of the public may testify and present evidence,
and are subject to cross-examination.
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-1413. Rebuttal by the Applicant, if any.
1-514. The Chair closes the public hearing. The Board shall discuss the
matter and render a decision
shall be permitted).
Following the final disposition of the aApplication, all evidence
admitted at the hearing, the applieantApplication file, all staff reports,
and the adopted order promulgating the decision of the Commission
shall be maintained in a separate file constituting the record of the
aApplication. The record shall he kept in the custody of the
appropriate staff at all times during the pendency of the application.
The record will be made available to the public for inspection upon
request in accordance with the Public Records Law
All quasi-judicial hearings shall be recorded.
A court reporter may be retained and paid for by any person to-talfe
of thc proceedings. An) such retained court reporter shall identify
himself/herself to thc clerk.
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, subsection, clause or provision of this Ordinance is held invalid, the remainder
shall not be affected by such invalidity.
SECTION 4. 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 a part of the Code
of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or relettered
to accomplish such intention, and the word "ordinance" may be changed to "section", "article," or
other appropriate word.
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SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect on the 28th day of
June
PASSED and ADOPTED this 18th of June , 1997.
ATTEST:
CITY CLERK
DJFk F^ATUIVM1IF.S06CII%AMND.OR71
1st reading 5/21/97
2nd reading 6/18/97
, 1997.
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APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
_423
MURRAY H. DUBBIN
City Attorney
TO:
OFFICE OF THE CITY ATTORNEY
F L
0 R 1 D A
COMMISSION MEMORANDUM NO. 44 1 iZ -9 1
MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
FROM: MURRAY DUBBIN 4(4
CITY ATTORNEY
Telephone: (305) 673-7470
Telecopy: (305) 673-7002
DATE: JUNE 18, 1997
JOSE GARCIA-PEDROSA
CITY MANAGER
SUBJECT: CODIFICATION OF PROCEDURES RELATING TO QUASI-JUDICIAL
PROCEEDINGS AND ACCESS TO PUBLIC OFFICIALS IN QUASI-
JUDICIAL PROCEEDINGS
On April 19, 1995 Resolution No. 95-21556 was adopted which approved procedures for
conducting quasi-judicial hearings, including procedures relating to ex -parte communications.
Thereafter, additional procedures were created in Section 286.0115, Florida Statutes authorizing
direct access to local public officials relating to pending quasi-judicial actions which shall not be
deemed prejudicial to such actions provided that the local government adopts and establishes the
disclosure procedures set forth therein or by adopting an alternative procedure for disclosure. On
November 21, 1995 the City Commission adopted Resolution No. 95-21823 which amended
Resolution No. 95-21556 and re-established a public disclosure procedure for ex -parte
communications with public officials relating to pending quasi-judicial proceedings.
In order to consolidate, and codify those procedures relating to ex -parte communications and
the conducting of quasi-judicial proceedings, the Office of the City Attorney recommends that the
attached Ordinance be adopted which combines and clarifies the procedures set forth in the two
previously adopted Resolutions. Since first reading of the proposed Ordinance, minor changes have
been made, as indicated by strike through and shading, to further clarify the procedures and
definitions. As the attached Ordinance will supersede the two previously adopted Resolutions, it is
further recommended that the prior Resolutions be repealed via the companion Resolution to this
Ordinance. Agenda Item F -k
--,000 nvention Center Drive -- Fourth Floor — Miami B
Date
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