Ordinance 2019-4264 ORDINANCE NO., 2019-4264
AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF
THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED "PUBLIC
PROPERTY," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL,"
BY AMENDING SECTION 82-1 THEREOF, ENTITLED "CONDUCTING
BUSINESS ON STREETS, PARKS, OR OTHER PUBLIC PROPERTY;
ENFORCEMENT; PENALTIES; UNPAID FINES TO CONSTITUTE
LIENS," BY PROVIDING FOR CRIMINAL PENALTY PROVISIONS IN
LIEU OF CIVIL PENALTIES FOR VIOLATIONS OF THIS SECTION
AND, PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION,
AND AN EFFECTIVE DATE.
WHEREAS, currently, penalty provisions of Chapter 82, Article I, Section 82-1 impose
civil penalties for conducting unauthorized business on any public street, avenue or alley, or any
park, beach, structure, building, or other property or place owned, maintained, or operated by
the City of Miami Beach for public use; and
WHEREAS, persons continue to engage in prohibited conduct on City's property in spite
of existing civil penalties; and
WHEREAS, it is deemed in the best interest of the City that violations of the
aforementioned section shall be classified as misdemeanor offenses and enforced by the City of
Miami Beach Police Department in order to deter such behavior.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That Section 82-1 of Article I of Chapter 82 of the Code of the City of Miami Beach
is hereby amended as follows:
CHAPTER 82
PUBLIC PROPERTY
* * *
ARTICLE I. IN GENERAL
Section 82-1. Conducting business on streets, parks or other public property;
enforcement; penalties; unpaid fines to constitute liens.
(a) It shall be unlawful for any person, while in or on any public street, avenue or alley, or any
park, beach, structure, building or other property or place owned, maintained or operated by
the city for public use, to sell, rent or offer for sale or rent to the publics any canticle,.
merchandise, product, goods, or service of any nature whatsoever,
other than newspapers of general circulation duly entered in the United States Postal
Service.
1
(b) It shall be unlawful for any commercial business operator, establishment, entity,
organization or company that sells or rents merchandise, products, goods or services, or
engages in any service that sells or rents merchandise, products, egoods or services,
Lincluding, without limitation, those commercial operators that transport passengersl, from
conducting any portion of the commercial transaction, activity or operation at any park, boat
ramp, beach, structure, building or other property or place owned, maintained or operated
by the city. A commercial transaction, activity or operation will be deemed to have occurred
if any direct, indirect, or incidental portion of the commercial transaction, activity or
operation takes place at, or uses, a park, boat ramp (including, without limitation, the
Barry Kutun boat ramp located in Maurice Gibb Memorial Park), beach, structure, building
or other property or place owned, maintained or operated by the city
(c) Exemptions. This section shall not apply to:
(1) Employees of the city acting for, and on behalf of, the city, as specifically authorized by
the city manager; or
(2) Persons authorized to render service to the public in any place set forth in subsection
(a) and (b); by the city manager, provided the rendered service is a commercial
outdoor fee based activity that has minimal impact to the city's public property; or
(3) A commercial business operator, establishment, entity, organization or company is
authorized to render service to the public pursuant to a eoncoccion written agreement
with the city
(4) Persons participating in any art show or exhibit held on all city properties under the
specific authorization of the city commission, and who are exhibiting paintings or
objects of art produced or created by such persons.
(5) Persons providing personal training exercise services, or providing lessons in sports
related activities in a city park, provided the rendered service(s) takes place at a park
that is specifically designed, used, or otherwise intended by the city to provide a broad
range of recreational facilities and uses and, further, the service(s) being rendered
has/have minimal impact upon the public's use and enjoyment of the park.
(d) Penalties and enforcement.
(1) Any violation of subsections (a) and (b) of Section 82-1 shall be punished in accordance
with Section 1-14 of the Code of the City of Miami Beach.
4)0.Any violations of this section subsection (c) shall be subject to the following fines:
a. If the violation is the first offense, a person or business shall receive a civil fine of
$250.00;
b. If the violation is the second violation within the preceding six months, a person or
business shall receive a civil fine of$500.00;
c. If the violation is the third violation within the preceding six months, a person or
business shall receive a civil fine of$1,000.00; and
d. If the violation is the fourth or subsequent violation within the preceding six
months, a person or business shall receive a civil fine of$2,000.00.
2
(2)L31 Enforcement.
Lgl The Miami Beach Police Department, the code compliance department, or the
parks and recreation department shall enforce this section subsection (c). This
shall not preclude other law enforcement agencies from any action to assure
compliance with this section and all applicable laws. If a violation of this section is
observed, the enforcement officer will be authorized to issue a notice of violation.
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 days after service of the notice of violation, and that the failure to
appeal the violation within ten days of service shall constitute an admission of the
violation and a waiver of the right to a hearing.
all The Miami Beach Police Department shall enforce the provisions of subsections (a)
and (b). This shall not preclude other law enforcement agencies or regulatory
bodies from any action to assure compliance with this section, and all applicable
laws.
93(4) Rights of violators; payment of fine; right to appear; failure to pay civil fine or to
appeal; appeals from decisions of the special master.
a. A violator who has been served with a notice of violation must
elect to either:
i. Pay the civil fine in the manner indicated on the notice of violation; or
ii. Request an administrative hearing before a special master to appeal the
notice of violation, which must be requested within ten days of the service of
the notice of violation.
b. 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.
c. 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 police
officer. The failure of the named violator to appeal the decision of the police 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.
d. 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 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 61st day following the recording of any such lien that
remains unpaid, the city may foreclose or otherwise execute upon the lien.
e. Any party aggrieved by a decision of a special master may appeal that decision to
a court of competent jurisdiction.
3
f. 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 days of the
service of the notice of violation.
g. The special master shall not have discretion to alter the penalties prescribed in
subsection (d)(1)0.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith 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 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 5. EFFECTIVE DATE.
This Ordinance shall take effect on the __ day of MG , 2019.
PASSED AND ADOPTED this day of Mgs , 2019.
ATTEST:
/r, /11 Dan Gelber, Mayor
Rafael E. Granado, City Clerk
Sponsored by Commissioner Mark Samuelian
Underline denotes additions
Strike through denotes deletions
Double underline denotes additions made after First Reading
1 deletions made after First Reading APPROVED AS TO
FORM&LANGUAGE
FO\ ..... � &FOR EXECUTION
100
y 1 NCORP ORATED �ayatomelr Dato
4')= 4
cv
'lib CH
�411...
Ordinances- R5 G
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J.Aguila, City Attorney
DATE: May 8, 2019
1:30 p.m. Second Reading Public Hearing
SUBJECT:AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE
CODE OF THE CITY OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY,"
BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING
SECTION 82-1 THEREOF, ENTITLED "CONDUCTING BUSINESS ON
STREETS, PARKS, OR OTHER PUBLIC PROPERTY; ENFORCEMENT;
PENALTIES; UNPAID FINES TO CONSTITUTE LIENS," BY PROVIDING
FOR CRIMINAL PENALTY PROVISIONS IN LIEU OF CIVIL PENALTIES
FOR VIOLATIONS OF THIS SECTION AND, PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION,AND AN EFFECTIVE DATE.
RECOMMENDATION
Pursuant to the request of Commissioner Mark Samuelian, the above-referenced Ordinance is
submitted for Second reading for consideration by the Mayor and City Commission at the May
8, 2019 Commission meeting.
Legislative Tracking
Office of the City Attorney
Sponsor
Commissioner Mark Samuelian
ATTACHMENTS:
Description
Commission Memo Re Sec 82-1, Criminal Penalty Provisions- Unauthorized Business on Public
Property.
o Ordinance Re Ch. 82, Criminal Penalty Provisions- Unauthorized Business on Public Property
Page 426 of 1102
MIAI\A1 B
OFFICE OF THE CITY ATTORNEY
RAUL AGUILA, CITY ATTORNEY COMMISSION MEMORANDUM
TO: MAYOR DAN GELBER
MEMBERS OF THE CITY COMMISSION SECOND READING
JIMMY L. MORALES, CITY MANAGER
FROM: RAUL J. AGUILA, CITY ATTORNEY j*�, ar
DATE: MAY 8, 2019 vv
SUBJECT: AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED
"PUBLIC PROPERTY," BY AMENDING ARTICLE I, ENTITLED "IN
GENERAL," BY AMENDING SECTION 82-1 THEREOF, ENTITLED
"CONDUCTING BUSINESS ON STREETS, PARKS, OR OTHER
PUBLIC PROPERTY; ENFORCEMENT; PENALTIES; UNPAID
FINES TO CONSTITUTE LIENS," BY PROVIDING FOR CRIMINAL
PENALTY PROVISIONS IN LIEU OF CIVIL PENALTIES FOR
VIOLATIONS OF THIS SECTION AND, PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
Commissioner Samuelian has sponsored the amendment(s) to Section 82-1 of the City Code,
which was initially heard by the Mayor and City Commission on first reading at the April 10, 2019
City Commission meeting, and that was subsequently passed with limited modifications to the
proposed amendment(s) to the Ordinance.
In response to the discussion that occurred at the April 10, 2019 City Commission meeting, the
proposed Ordinance, which establishes criminal penalties for those individuals conducting
business on the City's public property, has been subsequently clarified in certain respects, as well
as narrowed in others, in order to unmistakably address those concerns expressed by the City
Commission at the first reading.
Specifically, the proposed amendments to those provisions of the Ordinance, which have either
now been modified, deleted, or otherwise altered for second reading, are as follows:
1. The prescribed unlawful activity set forth in Section 82-1(a) was definitively clarified to firmly
establish those categories of conduct which are prohibited on public property. The terms
"article, commodity or service" has been stricken-through, and have been replaced with the
terms "merchandise, product, goods, or service."
2. In Section 82-1(b), the prohibition on engaging in any service that sells or rents merchandise,
products or goods was modified to include a prohibition on engaging in any service that sells
Page 427 of 1102
Commission Memorandum
May 8, 2019 Page2of2
or rents merchandise, products, goods or services. Additionally, the Subsection was further
modified to include the phrase "without limitation," which is required to enhance the express
prohibition that presently exists for those commercial operators that utilize the City's property
in furtherance of their business of transporting passengers.
3. Section 82-1(c)(3) was clarified by striking-through the words "concession agreement
approved by the city commission," and subsequently replaced with the phrase "written
agreement with the city" to undoubtedly articulate the various mechanisms (e.g., concession
agreements, management agreements, lease agreements, etc.) under which the City may
authorize an individual or entity to conduct its business operation(s) upon the City's public
property.
4. Section 82-1(c)(5) is a new exemption, which has been established in order to address those
circumstances in which a person(s) is providing personal training exercise services or
providing lessons in sports related activities in a city park. This exemption would not subject
those individual(s) to the criminal penalties set forth in the proposed amendment to the
Ordinance, provided the services being rendered only have a minimal impact upon the public's
use and enjoyment of the park. Furthermore, the inclusion of this additional exemption should
alleviate the concerns identified at the City Commission meeting, and also will harmonize the
proposed amendment(s) to the Ordinance, with the already-existing exemption that is
delineated within Section 82-1(c)(2) and Section 82-96 of the City Code.
5. The "Enforcement" subsection, within the Section entitled "Penalties and Enforcement," has
been renumbered from 82-1(d)(2) to 82-1(d)(3) in order to accurately reflect the enumerated
provisions of subsection 82-1(d).
6. Section 82-1(d)(3)g has been renumbered to 82-1(d)(4)g, and provides the special master no
discretion to alter any of the monetary penalties set forth in Section 82-1(d)(2).
The second reading of the Ordinance is scheduled for the May 8, 2019 City Commission Meeting.
The Administration supports criminalizing those violation(s) committed pursuant to Section 82-1
of the City Code, and further supports the creation of the new exemption for personal training
exercise services or lessons in sports related activities, which is consistent with the commercial
outdoor fee based activity permit set forth in Section 82-96 of the City Code.
RA/AB/sp
Page 428 of 1102