Ordinance 2022-4492 ORDINANCE NO. 2022-4492
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE
CODE OF THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "PUBLIC
PROPERTY," BY AMENDING ARTICLE IV, ENTITLED "USES IN
PUBLIC RIGHTS-OF-WAY," BY REPEALING DIVISION 5, ENTITLED
"SIDEWALK CAFES," IN ITS ENTIRETY AT THE END OF THE
CURRENT PERMITTING CYCLE SEPTEMBER 30, 2022, BY DELETING
SECTIONS 82-366 THROUGH 82-373, AND SECTIONS 82-381
THROUGH 82-391 THEREOF; AND PROVIDING REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE OF
OCTOBER 1, 2022.
WHEREAS, the City Commission created the sidewalk café program, as set forth in
Sections 82-366 to 82-391 of the City Code ("the Sidewalk Café Ordinance"), for the valid public
purpose of increasing the quality of the City's iconic brand by establishing high quality outdoor
food and beverage service on City property, and positively representing the City's brand by
providing a public space where residents and visitors can enjoy the City's world-renowned
architecture and scenic sun-drenched vistas; and
WHEREAS, it was always the intention of the Mayor and City Commission to create a
sidewalk café program (for outdoor food and beverage service and consumption on the City's
rights-of-way) that allowed discretion for the City Manager to determine which sidewalk café
operators were advancing the interests of the program and to approve, issue, renew, and revoke
permits based upon the City Manager's judgment as to that consideration; and
WHEREAS, on December 29, 2021, a Miami-Dade County Circuit Court entered a
preliminary order finding that the City's sidewalk café ordinance created a due process interest
in the renewal of a sidewalk café permit by sidewalk café operators, contrary to the express
intention of this Commission in creating the sidewalk café program, with which the City
disagrees; and
WHEREAS, Commissioner Alex J. Fernandez sponsored a resolution that was adopted
by the City Commission on January 20, 2022, directing the City Attorney's Office and the City
Administration to develop proposed options to ensure that the use of City rights-of-way for the
operation of sidewalk cafés remains at all times a discretionary, revocable privilege and not a
right, and to further ensure that public property is made available solely to responsible sidewalk
café operators who advance the public purpose of allowing sidewalk cafés, as interpreted solely
by the City; and
WHEREAS, the City Commission never intended to create a property right of any kind
in the sidewalk café permits issued to sidewalk café operators (by merely permitting them to
utilize the City's rights-of-way) that would impair or impede the City Manager's discretion to
decide which sidewalk café applicants and/or operators would best advance the program's '
public purpose and be permitted to continue operating on City property.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That those Sections of the City's Sidewalk Café Ordinance, as set forth in Division
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5, entitled "Sidewalk Cafés," and codified in Sections 82-366 through 82-373 and Sections 82-
381 through 82-391 of the City Code, are hereby repealed, effective September 30, 2022, and
shall be deleted in their entirety:
CHAPTER 82
PUBLIC PROPERTY
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ARTICLE IV. USE IN PUBLIC RIGHTS-OF-WAY
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The following words, tcrms and phrases, when used in this division, shall have the m aningo
ascribed to them in this section, except where the context ciclarly indicates a different meaning:
City manager means the city manager er the city manager's designee
a„thorized agent or employee of the city whose rl,by it is to ass„re code compliance
Expanded polystyrene food service articles means plates, bowls, cups, containers, lids,
letter, card, pamphlet, sheet, poster, sticker, banner, notice or other written, printed or painted
matter er object provided by a sidewalk cafe' or a sidewalk cafe operator
382(b)(6) hereof). Menu boards shall be no larger than six square feet; may not be internally
board shall not be a sandwich board sign (as defined herein) or a specials board (as defined
herein).
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this division
styrene or paramethylstyrene by weigh+
maintained and operated as a place where food and/or beverages are prepared and/or served
served and sold for consumption within the premises. No sidewalk café permit shall be issued to
a restaurant whose occupational license or certificate of ,,se is limited to take out service and
does not have inside seating.
Right-of-way means land in which the state, the Florida Department of Transportation,
Miami Dade County, or the city owns the fee or has an asement devoted to or required for use
as a transportation facility or street
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hereof). The sandwich board sign shall not be a menu board (as defined herein) or a specials
board (as defined herein).
vehicular access.
which is further subject to and conditioned upon compliance and adherence to the terms and
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Sidewalk cafe furniture means those nonpermanent fixtures, furnishings and equipment
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sePvise
carts, bussing stations, menus, sandwich boards, and/or menu boards.
Sidewalk afeop rae torr-means p ttee incl,sling, but not limited to, any own r
manager-Temoloyeecontraotarragentr , , ,
entity acting for, by, through or on behalf of any of the foregoing.
pathway as it relates to a sidewalk café.
Sign shall have the same meaning as provided for in section 1 411_1 hereof.
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patron for the purpose of transporting purchases or goods, including, but not limited to, food and
(1) Conforms to current ASTM D6400 standards;
(2)-1-s-oeF m and labeled-a.s7 me ting ASTM canon standard specifications by a
recognized verification entity and
e
material breaks down into carbon dioxide, water, inorganic compounds, and
biomass at a rate consistent with known compostable materials.
transaction by inducing, suggesting, or persuading a pedestrian to stop and patronize the
sidewalk cafe
vnzu"vvum-va�rr.
Street means that portion of a right of way improved, designed or ordinarily used for
Sec Q7_3Q7 Declara�n of neces�y a�rnrtte t.v� 'v�ura rr-vr��ccc
It is hereby found and declarer) that•
e
beverage-consumption,
r e operation and maintenance of sidewalk cafes on the cityls property (where
�� dev o�' "bated and allowed-)-enhann cue theme is and vi ors' a and
eFlr��nv-ci$Ftvra�ex eFIC'F�G�unv
enjoyment of the sit 's vibrant tropical and diverse (historic and other recognised
commercial and entertainment) districts/neighborhoods
(3) The city provides a unique benefit and advantage to private business
market value for the use of such space.
(1) It is imperative, however, that sidewalk cafes be operated and maintained in
aa,cccordance with the highest-leel� en�se aand g tTy-befitting the status of a
r gn' ed world class. nternational resort destination like the city `
(5) The granting of a permit for the operation of a sidewalk café on public property is a
privilege and not a right and the approval issuance and continued operation of a
y., ...... ...,. .. ..y..., ....... ...,. ..rr..,...., ....,..w...,.. ....... .._.........,.. _ram......_.. _.
sidewalke iss conditional at all times.
(6) In order to maintain the highest standards of service and quality, there exists a need
for regulations and standards for the approval, permitting, operation, and
maintenance of sidewalk cafes
(7) The establishm t of p it conditions safety standards criteria and conditions__for
�-7--r-The-cac�mr�rn�rrer�r-vim ,�.safety -� , v�r�.,
operation and maintenan,beof-sid alk cafes on the public right-of-way is also
necessary te-protect-and promote the genet`l-bealtit cyh, safety ac and wellfai e ofthe
residents and visitors of the city. "
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Sec. 8� 368. I sval-and storage fees;-dispositio operty.
furniture, the permittee shall be responciblc for the reasonable expenses incurred by the city for
aafc furniture under this division. The city, including its officers and employees, shall not be
stored pursuant to this division.
Sec Q7_4Q0 Ar peals from the decision of the ci•
ty manager
by petition for writ of certiorari
Life safety violations are defined as those conditions which, in the reasonable determination
cafe area (as approved pursuant to subsection 82 382(b)(6)). Violations shall include,
furniture found to be outside the approved site plan, but shall not be deemed to include
by a sidewalk café patron(s).
shall issue a notice of violation to the violator. The notice shall inform the violator of the
of the right to a hearing.
penalties.
(1) First violation: $500.00.
(2) Second violation within the preceding 17 months• $750 Il(1
for one weekend (Saturday and Sunday) and $1,000.00.
for the remaining portion of the permit year and $1 125n nn
(5) Failure to apply for permit: Termination of sidewalk cafe operatienc until a permit is
(6) Failure to renew permit: Suspension of sidewalk cafe operations until the permit is
renewed
(b) Enhanced pcnaltics. The following enhanced penalties arc authorized in a o the..c
monetary penalties set forth in subsection (a) herein:
cafe permit for a period of two consecuti„e permit years following the permit year in
which the permittee incurred its most recent violations
(2) For life safety violations of this division and site plan violations, the city manager shall
be authorized to issue an immediate order suspending-the sidewalk cafe permit and
,
he s� u1ssppensio�der,Theiissuanee of a no ' of violation nr .ten order-susnpendi the
site plan violation has occurred
(3) For life saf w violatio s ohs division, thhe city manage all be authorized to
commence proceedings, pursuant to section 102 381 or 102 383 hereof, to suspend or
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/A\ r violations of�ysidewalk cafe code of conduct as set forth in section 82_389 the
r^� �a�cvvcc-va�v�v , ac,r�vrm-rrr�vavlrvz vv.-��-arrc.
aa.FF st violation within the preceding 12 months• Susspension of the sidewalk cafe
permit{ fo,�r21 hours and, upon reopening, the sidewalk café shall cease all sidewalk
safe �,� atzct- ess operations midrnight each day until the nermittee submits an
operational plan which must be approved by the city manager detailing how tb
violatios\will be corrected
permit for one weekend (Saturday and Sunday) and, upon reeppeni�the-sidewalk
cafe shall cease all sidewalk café business operations at 10:00 p.m. each day until
tieermittee omits ap p tional plan .which mi be approved by the city
�lrTTfl'CCGTi O1V1VTfl'Z T[Tl-Vp 1 .w�+l+.v.vv v� �..v v.��
manager, e ng o e dtaili hw th violations\will he corrected
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c. Third violation within the preceding 12 months: Revocation of the sidewalk cafe
permit for the remaining portion of the permit year
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efforts to approve or deny a aedd—oppeerretienal plan within five business days of
submittal to the city manager(or the city manager's designee). vMv�"vvv M
(5) Reporting requirement. The city manager, or the city manager's designee, shall, on a
quarterly basis, present the city commission with a written report detailing the city'a
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and violations of sub tions 82 385Jv\ and /v\ Q7_484 The report shall include
operator and the o„tcome of each nt enforceme action
,
f f f
(a) A violator who has been se all elect r e
notice; or
the node compliance officer which resulted in the iss„ance of the notice of violation
,
which hearing must be requested within ten days of the date printed on the notice of
vielatien,
(b) The procedures for appeal shall be as set forth in sections 30 72 and 30 73 hereof.
city commission\which shall be ref„nded if the violator prevails in the appeal
(c) Failure of the named viol to to pay the civil fine or to timely reg„est an administrative
hearing before a special magistrate, shall constitute a waiver of the violator's right to
administrative hearing before the special magistrate, and shall be treated as an admission
of the violation, for which fines and penalties shall be assessed accordingly.
(d) The special magistrate shall be prohibited from hearing the merits of the notice of violation
failed to request an administrative h aring within ten days of the date printed on the notice
in this article. -
(e) Any party aggrieved by the decision of a special magistrate may appeal that decision to a
Sen Sit? 474 Recovery of unpaid fines• unpaid fines fe consfitute a lien• foreclosure_
civil fines.
(b) 0 certified copy of an order imposing a civil fine may, be recorded in the public records and
this state, including levy against the violators. real a nal property,but shall not he
the lien for the amount of the lien plus accrued interest.
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cafes• requirement disclosures en menus Mille and receipts
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development regulations, as same may be amended from time to time.
is..uance of a sidewalk cafe permit neither estalali„hes nor creates any legal rights for the
subject to the city manager's discretion which is deemed conditional at all time
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required by this division.
cafe which is operating without a valid permit
(e) The city manager may cause the immediate termination, suspension, closure, removal,
for the protection of the public health, safety, or welfare. In those instances where the city
manager determines that termination, suspension, closure, removal, relocation, and/or
therefor and the duration of time for such action
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/9 rh.7 impart p ioj The city manager may 7p uon decltion of a high impacteriedara _p 7,
as provided in section 82 1A3 of the City Code 7order-the immeddiaate suspension and
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de€ned section 82 ^^7-3 of the CityCede; pro„idea how r, tine manager shall
fir omply with the noticing r uir is s rth in suh n Q7_1A3(c) of the City
,,,��-s eq�emea��et�e�psestie,To
such periods
(f) The city manager may require the temporary removal and/or relocation of all or part of a
sidewalk café when street, sidewalk, or utility repairs, or other public construction,
pro rate the remaining permit fee for each additional day the sidewalk café (or portion
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request by the permittee, refund the remaining fee to the permittee.
pursuant to this subsection. Any and all costs incurred by the city for removal, relocation
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Sec. 82-382. Applic tion.
(a) A sidewalk cafO permit shall be effective for one year, from October 1 until September 30 of
the following year
(.19.)--An-applisatien-fer-a-perrait-te-eperate-a-sidewalk-eafe-shall-inGludebut-net-be-timited-ter the
fellowing
(2) The name and address of the business cstablishment/restaurant seeking a permit to
operate the sidewalk cafe (including the name and address of the restaurant\
proposed sidewalk cafe will be operating The total count of chairs to he „tilized for the
and the number of chairs inside the restaurant as authorized by the license
,
(.4--)—A-Gopy-ef-a-valkl-GeFtifisate-ef-use-feF414e-restaurant-ill-frent-ef-whish4he-prepeseet
d
sidewalk will be operating
(5) Copies of current certificates of insurance in the amounts and categories required by
section 82 386 hereof.
(6) A site plan signed and sealed by a duly licensed architect or engineer which accurately
property• proposed location size and number of tables chairs umbrellas and any other_
, , r r r
r r r r
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trash receptacles, and any other existing public fixtures, furnishings and/or other
permit shall-lae-spesifice*limitecl-te-the-subjest-area-shown-en4he-appreved-site-plan,
dimensions of all proposed tables, chairs, umbrellas, and any other sidewalk cafe
of a sidewalk cafe permit
the business establishment/restaurant with the sidewalk café permit, and shall be
available for inspection by city personnel at all times
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the city for businesses on Washington Avenue from 6th Street to Lincoln Road, for the
period ending on September 30, 2021.
(I0) Applications shal Teview o caw cable ci j, state and federal
9. J
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department; office of risk management; finance department; planning and zoning
department• and building department
e
(11) Prior to issuance of a sidewalk cafe permit, the city's chief financial officer shall certify
that there are no outstanding fines, monies, fees, taxes or other charges owed to the
cafe permit will not be issued until all outstanding debts to the city are paid in full
certificate of use is limited to take out service and does not have inside seating.
(13)A sidewalk café permit may not be transferred and/or otherwise assigned. A new owner
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and/or-state-law:.
limitation, the Americans with Disabilities Act (ADA), and state code provisions
1
to time.
for food and drink menl 1 item(s) or display or disclose actual prices and accurate terms
and conditions far any feed and drink menl 1 special(s) The sample menu ml 1st display
er di close the actual price for fend or drink menu ites\ or food anti drink m u
necial(s\ /ande ca e if applibl the l I accrate rm tes and conditions for any fend and drink
1
menu special(s))in a size (font)and typeface that is at lest as large as the name of the
menu or fond item and such price (and if applicable terms and conditions) must be
displayed adl theename d acr� n, photograph, ands/oor im�aagge of each menu
itemaase t1 to
'
café menu design guidelines adopted by the city commission. All menu prices must bo
year-1
the operator's sidewalk café permit.
ordered, will be disclosed on the menu and the face of the customer's bill and receipt,
and that the total combined percentage and amol lnt of the city counto and-state taxes
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subsections 82 389(b) and (c).
Ocean Drive, between 5th Street and 15th Street, must submit an affidavit certifying that:
a. Every manager and cvcry cmploycc assigned to work in the sidewalk café permit
area has succcsiully completed a hospitality training program that has been
prey o sl ,. e� �, y�, ; µ
b. Within one. ear of-eomple -su h program and each year thereafter, y
and
c. Any newly hired manager or employee assigned to work in the sidewalk cafe
permit area must successfully complete such a hospitality training program.
(and du ulv notarized u under oath by a licensed Florida notary) by an individual who is
for violation of same, as set forth in subsection 82 371(b) herein.
shall also be considered by the city manager. or designee, in the determination as to
approved or denied:
a. Violations of the City Code issued to the applicant/permittce and/or the busincs
cstablishmcnt/restaurant.
b. Violations of federal, state or county law which may be attributable to the
applicant/permittee and/or the bu usines s establishment/restaurant
c. Whether any corporate officer of an applicant/permittee in the immediately
preceding 1 7_month period (each a o°crporate officer") or anerson-owning
, , y p ,
directly or indirectly ten percent or more of the applicant/permittee in the preceding
T2month period (each an °owner°) has a prior history of sidewalk cafe violations
as set forth herein including•
1. Whether any corporate officer previously served, at any time, as a corporate
officer or owner of any applicants\/permittee(s) issu ued four or more violations
of this division, in the aggregate: or
7 Whether any owner previou usly served at any time as a corporate officer or
ewner-ef-any-applisant(s)ipenznittee(s)-issued-feur--GF-mere-vielatiens-ef-this
division, in the aggregate: or
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3. Whether, notwithstanding 1. or 2. above, the city manager finds that there
concealed or attempted to conceal the true ownership interests in an
any time, previously served as a corporate officer or owner of any
applicant(s)/permittce(s) issued four or more violations of this division, in the
aggregate.
; ewsfound on online w ed nl ��noci •iorkinr. ys odor online
review sites s soh as Yelp Goonle or Trip Advisor Not ithstanding the foregoinn
e
this criterion shall not be utilized by the city manager, or designee, as the solo
thereof).
cstablish ment/restaurant.
f. Any other information which the city managcr, or designee, deems to be relevant,
applicable er essential to such determination
(2) The city manager, or designee, shall provide ach applicant/permittee, in writing, with
renewal thereof), pursuant to the criteria set forth in subsection (c)(1) herein.
(3) Except as provided in subsection(c)(4) herein, no determination by the city manager, or
12 months having elapsed since the date of any such denial.
(1) Any applicant/permittee who has been issued four or more violations pursuant to this
division within the preceding 12 months shall be prohibited from applying for and
the permit year in which the permittee ins erred its most recent violation
7.
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herein, shall not be subject to appeal pursuant to section 82 369 or any other provision
�of�thee City Code.
Secp2pPerm+t fee; penalties fear late payment; review of fee' exception.
(a) The annual permit fee for oper-atioa of a sidewalk café shall be as set forth in appendix A
(including the area between the tables and chairs)
(1) No square footage fee as required by this section shall be required for the operation of
sidewalk cafés north of 63rd Street, through and including September 30, 2021. The
abatement ef-sidewaik-pafe-squace-feetage-feeafpF-businesses-herth-ef-63cd-Streetshall
30, 2021. Howev r a permit m Est he obtainer! and the ann gal base application fee
required by subsection 82 382(b)(9) shall be paid for the operation of sidewalk cafés
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north of 63rd Street.
(2) No square footage fee as required by this section shall be required for the operation of
sidewalk cafes-o Washington Avenue, from 5th Ctre t toil incoln Road, for the p and
ending on September 30, 2021.
(3) No square footage fee as required by this section shall be required for the operation of
as defined in section 142 584 hereof arc exempt from paying the square foot fee
identified herein.
(b) The city manager, in his reasonable discretion and judgment, may suspend or prorate the
ann„al permit fee in cases of p„blic construction or p„blic emergency sit„ations
(c) The permit fee shall be paid on or before October 1, and shall cover the time period from
October 1 through September 30 of the following calendar year (permit year). If the permit
April 1. An administrative fee, equaling two percent of the total permit fee, shall be assessed
administrative fcc shall be paid in full at the time the first installment payment is made. No
ccfc for a period beginning after the commencement date of the full permit year(October 1)
to the end of the permit year. Except as expressly provided in this division, no refund of the
permit fee shall be granted.
30 days. If the permit fee is not paid within 60 days after it is due, the permit shall terminate
have the right to remove, upon 24 hours' written and/or verbal notice to the permittee, any
pprrise-index (-CPI etweenNeatest (SDI and the date of the CRI used for the last fee
adjustment, is one and one half percent or greater.
Sew Q7_QQA Dermit�ed sidewalk cafe' frontage• requests fir expansions
is issued or, if the restaurant is an ancillary and/or secondary use to another type of businc;,,
C(oor portion t ereof) of the "primary" business establishment (within which the_resta,irant is
located) Only a restaurant whose premises are on a gro,and floor adjacent to and fronting
a loading zone fronting a restaurant as provided in s„bsection (d) below,
one side and/or the other side of the restaurant to which the permit is issued (of the business
to the city manager setting forth the reason(s)for the proposed expansion and provide a site
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plan showing the proposed expansion. All requests for expansions pursuant to this
subsection (b) shall be reviewed by the city manager on a case by case basis. In reviewing
(1) Pedestrian access.
(2) Visibility of the front of the adjacent owner's business.
(3) Obstructions.
(1) Accessibility to the adjacent owner's business by patrons.
comments (which time period shall be no less than 14 days). Said notice shall be sent,
as to the adjacent business establishment(tenant), to the name and address on file with
the city for the establishment's occupational license and, for the property owner, to the
Appralser,
provided in the notice shall be deemed waived.
to section 82 371. .
subsection (b), in the event that the adjacent business establishment and/or property owner (on
manager with notice of such intent stating the applicant's name; the property address; the name
owner which icy currently•expanding into the proposed new applicant/permittee's frontage with a
and/or licenses for operation of the business establishment and/or restaurant as.,ociatcd with the
,
,
property owner with at least seven calendar days' notice prior to the effective date of termination
,
permit and the permit fee will be adi,,sted accordingly
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this subsection-(c)-shall be reviewed by the city manager on a case by case basis. In
reviewing s„ch requests the city manager shall consider the following•
,
(2) There are special circumstances and conditions that exist, which were not self created
,
not generally applicable to other rights_of_way in the immediate area•
,
reasonable use of the area for its sidewalk cafe operations• and
,
to the other.
on which the loading zone is located is closed to traffic, provided that the loading zone is
of five days each week.All platforms, tables and chairs in the loading zone shall be removed
at the close of business each night. A permit modification will be required before use of a
be as provided in section 82 383 hereof.
•
unobstructed passage thereto
(b) Sidewalk cafés shall be located in such a manner that a distance of not less than five feet is
and established where the city manager, in his reasonable judgment and discretion,
and on a case by case basis, may approve and allow for a pedestrian path of less than five
impacted,"the city manager may apply the criteria set forth in subsections 82 384(c)(1) (/1)
herein.
feet of a bus bench and/or bus shelter. A distance of five feet shall be maintained from taxi
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furniture and/or fixtures.
feet of an alley pe an crosswa destrilk, or corner c„rb c„t
,
(e) The pedestrian path for Lincoln Road shall be a 12-foot clear path for emergency and
sidewalk cafe site map of I incoln Road
of Lincoln Road.
(g) The area covered by a sidewalk safeper-mit, and the ewalk and streeet immediately
permittee. The area of the sidewalk, curb and gutter immediately adjacent to the sidewalk
at the close of each business day. The city shall pressure wash the right of way from time to
and discretion of the city manager. In estahILhing said schedule, the city manager shall use
,
at such times as will cause the Zest disruption to sidewalk café operations.
(h) Tables, chairs, umbrellas, and any other sidewalk café furniture shall be maintained in a
at all times.
to ensure the safety, comfort, and convenience of the public.
shall be allowed in the permit area.
structure, street furniture, signagc, and/or other public fixture, or to a curb and/or public right
(1) Notwithstanding the provisions of subsection above, on the west sidewalk on Ocean
Driver between-6th-Str-eet-an€145tla-Stfeet-r-umlgr-ellas-may-lae-affi-xed-te-the-sidewalk-with
structural analysis of either the mount system or metal plate, shall be submitted to the
metal plate must be easily removable (as determined by the city) to provide a smooth
ADA compatible surface when the mount system or metal plate is removed. In the event
metal plates shall be removed and a standard concrete sidewalk shall be re installed,
subject to the review and approval of the department of public works_
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,
placed within five feet of the walls, columns, or posts of the Lapidus structures, city planters,
during non business hours.
café permittcc to store its tables, chairs and/or umbrellas off of the public right of way if, in his
reasonable judgment and discretion, the city manager determines that the sidewalk café permit
(n) one-men b shall-be-per ittder sidewalk cafe, f^every 50 feet of frontage. No food
provision in subsection (n) that pertains to the prohibition on specials board(s) in
2020.
logos and/or lettering may not exceed six inches in height.
(p) Umbrellas shall be fire retardant, pressure treated or manufactured of fire-resistant material.
less than six feet eight inches above the right of way. Two
or more umbrellas may not be clipped, zipped or otherwise fastened together in order to form
a tent like structure. Clear plastics or other materials may not be fastened, rolled or otherwise
be attached to umbrella edges in order to create an enclosure.
the west sidewalk on Ocean Drive, between 5th Street and 15th Street:
a. A maximum of three umbrellas may be zipped together;
b. Rain gutters may be installed between zipped umbrellas; and
c. Colorless and transparent roll-down tarps may be permitted to be attached to
rainfall,Within-ene-heldf-ef4he-sessatien-ef-sush-wind-andbar-rainfallr the-Fell-down
17
icrrtarp sall be r!remove from the ng„mhrella/awni system and storey) en private
��h
(q) The city manager may permit the use of planters manufactured of terra cotta or polymer
from the city manager, in case of emergency or other circumstances, as provided in this
division Maxim„m size of planters shall not exceed the following•
(1) Rectangular planters: 30 inches long, by 15 inches wide by 20 inches high.
(2) Round planters: 24 inches diameter by 21 inches high.
(3) Planters 20 inches or higher shall be on rollers or on rolling bases.
(1) The combination of planters and plant height should not exceed a table height of 31
inches.
Plants shall be properly maintained. Distressed plants shall be promptly replaced. Plant fertilizers
systems to retain seepage.
on May 1, and ending on September 30. The city manager will make electrical outlets
operable upon payment of a flat fee, which fee shall be determined, and may be adjusted
the calendar days during the summer months. City electrical outlets will be restricted to
must be UL approved for outdoor use. Extension cords are not allowed.
limited period of time.
may arise out of the permit or the permittee's activity on the public right of way.
the following reg„irements•
, ,
for bodily in ury and prop�v damage T�hht City of Miami Beach Florida m„st be
part of the policy reflecting compliance ,kith this. requirement
/ r sidewalk cafes which serve alcoh everages lig„or liability ins„rance,in the
r v wrrtvrr� c.v crugcv,�uvr�rcm'rrrcy--,rya ararrva�rrcT�
amount of $1,000,000.00 per occurrence for bodily in ury and pronerty damage The
18
City of Miami Beach Florida must be named as an additional insured on this policy
requirement.
$+:VI or better per Best's Key Rating Guide, latest edition.
material change in the coverage provided
as evidence that the requirements sct forth in this section have been met prior to
See. 82-387. Prohibited "no tablezonnes.
of Lincoln Road Mall, between Lcnox Avenue and Alton Road; said section as more
specifically definer! by the following description•
Land description:
A portion-of Lin6Aln Road lying been Alten Road and Lenox Avenue,as shown-on
5 of the Public Records of Miami Dade County, Florida, being more particularly described a,,
follows:
tt,henc�ce souttt8 ,tteg;56" west along the-seuth line of Blesl f said "Commerciall
n n " a distance of 11 20 feet• th co uth 00'51•d •SIC" st distance
��tlt�n�n vrccr-crTe'�v��aar�-vovrve�,v v�'uvr-a-vr�s�nvc-e
25.00 feet to the point of beginning; thence continue south 00'51;deg;05" east, a
distance of 50.00 feet; thence south 89'08;deg;55" west along a line 25.00 feet north
afld parall south right_of_way lin�aaiid incoln Road a tance of 190 08
Q-pcRu..el 'rtl�l.�cTrmTgr,T-vT-�vT.T�7 , TCiiTO'�O'TI�v.Gv
feet; thence north 00'51;deg;05 west, a distance of 50.00 feet; thence north
89'08; g•5.de5" east along a line 25 00 feet south and parallel with the north right-of-way
�
line of said 1 innoln Road a distance of 190 08 feet to the point of beginning
Said land situate, lying and being in the City of Miami Beach, Miami/Dade County, Florida;
containing 9,50,1 square feet, more or less.
including, without limitation, sidewalk cafe furniture, garbage receptacles, storage
containers, back of house operation, equipment or supplies, or any other similar item
and I innoln 1 ane South which section is more d particularly escribed as follows•
e
1 and description•
A portion of Euclid Avenue right of way as shown on the plat of "Second Commercial
recorded in Plat Bonk O at Page 69 both recorded in Public Records of Miami_Dade y Count
� f r
19
by the west right of way line of Euclid Avenue, Ief the northerly 30 feet.
containing 8,100 square feet, more or less.
Sec Q9_4Sl4 Llours of sale of alcoholic beverages• exceptions• enfo�cement
the hours of 2:00 a m anri &00 a•m Compliance with this section shall be a condition of
maintaining a sidewalk cafe permit
and may bc consumed at sidewalk cafes Iosated on Ocean Drive, between 5th Street and
15th Street at such additional s•time as provided in section C._3 of this rt Coe
e
> > > ,
i
i
•
371(b).
or food and drink menu special(s) (and, if applicable, the terms and conditions for any food
and drink menu special(s)) must be in a size (font) and typeface, which is at least as large
as the name of the menu item. Such prices (and, if applicable, terms and conditions) must
cafe must disclose, to the patron, the price of the unique or specially requested food or drink
any food and drink menu special(s) must bc provided to each sidewalk café patron.
corkage fee, set up fee, sharing fee or charge, or other similar charge, either in the price of
of each such gratuity, charge, and fee on the menu and on the face of the customer's bill.
20
disclos„re within the bill m„st net be smaller than 17_point font
(-0—A-sielewalli-safe414at-ineludes-a-gatuity-er-tip-as-a-Gharge-raust-separately-itemize-and-state
the actual amount of this charge on the face of the customer's bill and receipt, and such
gratuity-Or-tip-m-ustenly-be-ealeulated-base€1-GR-the-pre-tax-sale-amGunt of-the-feed-or-drinks,
A sidewalk café operator that includes a service charge, minimum charge; corkage fee, set
the actual amount of such charges on the face of the customer's bill and receipt. Service
charges, minimum charges, corkage fees, set up fees, sharing fees or charges, or other
taxes on the face of the customer's bill and receipt, and must label such taxes accurately.
(d) There shall be no live entertainment or speaker., placed in the sidewalk cafe permit area
unless expressly permitted as a special event issued by the city's events office.
plastic beverage straws, single use plastic stirrers, refrigeration apparatus or equipment, or
fire apparatus or equipment, shall be allowed on the right of way. In addition, expanded
stirrers shell not be provider) to sidewalk safe' patrons
• or single use plastic stirrer.
•
(f) Single-use carry out plastic bags shall not be allowed in the right-of-way and shall not be
provided to sidewalk cafe patrons
the restaurant/business establishment's premises in such a way that the placement of such
display(s) is/are clearly visible from the sidewalk cafe permit area and/or the public right of
wa
drink special(s) may he displayed disclosed or posted on any menu hoard nr sandwich
'board sign, p„rs„ant to s„bsectien Q7_385(n1 Fond nr drink ,men i special(s) ll sha not be
food or drink menu special(s) be displayed, disclosed or posted within the
is-r-ight-ef-way.
(i) Sidewalk café permittees on Ocean Drive, between 5th Street and 15th Street, including
21
•
,
training program Sidewalk cafe permittees shall•
(1) Maintain records on premises evidencing compliance with this subsection (i), and
(2) Submit to the city manager, on an annual basis, the affidavit specified in subsection
82 382(b)(18).
(j) Sidewalk café operators located on Ocean Drive, between 5Street and 15Street; on
Washington Avenue and Drexel Avenue, shall not:
or on the right of way within 20 feet of the outer perimeter of a sidewalk café permit
ar a, for the purpose of inducing such pedestrian to patronize any business
establishment or sidewalk cafe, or purchase any food, beverage, product, or service,
about the sidewalk cafe's food, beverages, products, or services;
communicates a desire to receive information about the sidewalk cafe's food,
beverages, products, or services; and/or
(3) Hold or display any commercial handbill(s) in such a way that impedes, hinders,
delays, or obstructs any pedestrian's(s')gait or path of travel.
(a) Definition. The term parklet shall mean a sidewalk café (as defined in this division) that is
director within the director's sole discretion, in a portion of a street.
20th Street and the waterway to 4he north Alton Road to the east and (lade Boulevard to
diviision in order to apply or he eligible for parklet permit.
parklet design guidelines, as may be adopted or amended by resolution of the city
(d) Permitted parklet area. The area of each parklet shall be limited to a maximum of two on
curb line• and any ether portion of a street as may he approver! by the public works d)ir_ector
director on a case by case basis.
22
steps, trees, and/or landscaped areas, fountains, parking meters, fire hydrants, utility
infrastructure, bus shelters, directory/kiosks, public benches, trash receptacles, and any
parklet area. The site plan shall be approved by the city manager prior to the issuance of a
installed on a raised platform flush with the adjacent sidewalL
(f) Fees.
Code.
in appendix A and shall be based on a per parking space calculation for each parklet_
limitation, the sidewalk café code of conduct (set forth in section 82 389), all enforcement
by reference in each parklet permit.
werks-director).
of the public health, safety, or welfare.
parklets ("the program") governed and administered as set forth below.
,
(a) Declaration of necessity and intent.
operated in a manner that advance the interests of the city, as defined by the city(in its
public outdoor areas, thereby enhancing the quality of life for residents and the quality
of the tourist experience for the city's visitors, and is a valid blis-iurpose;
23
that the city has determined to promote•
,
,
part) if their operation no longer advances the city's interests, as determined by the city
in its sale discretion•
,
(1) A sidewalk cafe or parklet permit issued by thc city offers thc use of the city's valuable
en which sidewalk cafes and parklets shall be allowed•
,
recognized world class international resort destination like Miami Reach•
that advance its interests (as defined in its sole discretion) and that funding recipients
agree vol„ntarily to „ndertake•
,
and advancing the tourism related goals of enhancing the experience for visitors, as
defined by the city (in its sole discretion), is a valuable public purpose, so providing
that advances the interests of the city, as defined by the city (in its sole discretion), is
an efficacious use of public resources. To that end, sidewalk cafés and parklets that
meet the unique requirements for eligibility and execute (and comply with) the city's
Row-be-fuFther-subsidized by the city by providing a payment m the i to
participants;
executed sidewalk café and parklet voluntary city subsidy program participation
application-and agreement, the terms of which shall be set forth by the city at its sole
discretion between the city and each program participant•
, ,
city in its proprietary capacity, and are net intenQed to regulate lawful restaurant
b„siness activity that is net cond„cted en city property;
parklets in a manner that does not advance the city's interests, as defined by the city
(in its sole discretion), is not desirable, is not appreciated by its residents and its visitors,
and-is-Mot a-valid-pbrlatis-pu-r-peseand
24
(11)The guidelines set forth for program participants will advance the sophisticated and
cafés and parklets, if they so choose, to participate in the program.
(b) Program participation standards.
(1) Prior to issuance of an annual sidewalk café and/or parklet permit, each eligible
,
café and/or$90.00 per square foot(based upon two standard 187 square foot spaces
parklet operator responsible for paying the standard per square foot permit fee.
parklet-epeFater,
and parklets as defined in section 82 390.
(and s„bs „ fl„ am ded if n es ry) bpi the city manager d approved by
�„Q-�+,�e�z.�R�,�e1��-�-r,e6�Sa �afl
i'cav
resol„tien of the city m comission The agreement and g„idelines shall govern each
created, or repealed at any time.
(4) The sidewalk café code of conduct as set forth in section 82 389 shall be incorporated
by reference into each program application and agreement the violation of which shall
additionally constit„te a breach of the program agreement
,
by means of an invoice credit on the c„rrent year sidewalk cafe and/or parklet permit
,
permit year.
(6) During the permit year, the city manager or designee shall notify a participant of any
If t the city manager's sole discretion the breach is c„red within that period continued
a prtp i tion magi be allowed Ifs howey r thhe program pa4icipantfa Y-cure4he
delivered-notice to a manager emand thhe return of the city's s„bsidy-funds
advanced. If repayment of the city's funds is demanded, the advanced funds credit
iss„ed to the program participant on its ann„al sidewalk cafe and/or-parklet permit
cvvunrvur�cmv,o�pcmcrce. p........
25
square footage sidewalk cafe and/or parklct permit fee for the permit year shall be
decision to terminate a program participant's agreement shall be final and at his or her
to have failed to timely pay the sidewalk cafe and/or parklet permit„ ee as
and-enfeFsement magi follow pursuanccnt te- division for failing to pay the aannual
sidewalk cafe and/or parklet permit fee
manager shall he ineligible to again participate for the next two permit years, and shalt
manager.
implicates city funds that the program applicant and/or participant voluntarily requests
agreement. At the end of each year, the city's authority to demand the return of its
jar-warn-fund-sr elemanding-retur-s-ef-pregram-fu42167and-ter-m-inating4he-pregram-fer-a
participant during the program year (or in whole before the start of the next program
year) shall be made solely at the discretion of the city manager, whose decisions
regarding the program shall be final
(9) Nothing in this section cr atcs any right to participate in the program, right to receive
city funds, right to retain advanced city funds, right to challenge or appeal any decision
related to the program or any other right (including but not limited to any property
right, due process right, or other statutory or constitutional right)related to the program.
receive the city subsidy for both the sidewalk café and the parkiet or for neither.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith 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. CODIFICATION.
26
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
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 October 1, 2022.
PASSED and ADOPTED this as day of -) f , 2022.
ATTEST:
JUN 2 3 2022 Dan Gelber
Mayor
Rafael /Gra do
City Clerk
(Sponsored by Mayor Dan Gelber, Vice-Mayor Kristen Rosen Gonzalez, Commissioner Alex
Fernandez, Commissioner David Richardson, and Commissioner Mark Samuelian)
Underline denotes additions.
Strike through denotes deletions.
Double underline denotes additions after First Reading.
Doublc strikcthrough denotes deletions after First Reading.
� 's
It1CORPtlUTED) APPROVED AS TO
:;:?! FORM &LANGUAGE
6=�,�- &FOR EXECUTION
City Attorney n Date
27
Ordinances-R5 B
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Rafael A. Paz, City Attorney
DATE: June 22, 2022
10:10 a.m. Second Reading Public Hearing
SUBJECT:AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA,AMENDING CHAPTER 82 OF THE CODE OF
THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "PUBLIC PROPERTY,"
BY AMENDING ARTICLE IV, ENTITLED "USES IN PUBLIC RIGHTS-OF-
WAY," BY REPEALING DIVISION 5, ENTITLED "SIDEWALK CAFES," IN
ITS ENTIRETY AT THE END OF THE CURRENT PERMITTING CYCLE
SEPTEMBER 30, 2022, BY DELETING SECTIONS 82-366 THROUGH 82-
373, AND SECTIONS 82-381 THROUGH 82-391 THEREOF; AND
PROVIDING REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE OF OCTOBER 1,2022.
RECOMMENDATION
Pursuant to the request of Mayor Dan Gelber, Vice-Mayor Kristen Rosen Gonzalez,
Commissioner Alex Fernandez, Commissioner David Richardson, and Commissioner Mark
Samuelian, the above-referenced Ordinance is submitted for consideration by the Mayor and
Commission at the June 22, 2022 City Commission Meeting.
SUPPORTING SURVEY DATA
n/a
FINANCIAL INFORMATION
n/a
Applicable Area
Citywide
Is this a"Residents Right Does this item utilize G.O.
to Know" item, pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Legislative Tracking
Office of the City Attorney
Page 428 of 1232
Sponsor
Mayor Gelber, Vice-Mayor Rosen Gonzalez, Commissioners Fernandez, Richardson, and
Samuelian
ATTACHMENTS:
Description
D Commission Memorandum
o Ordinance
•
Page 429 of 1232
t\AAM BEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
Second Reading
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Rafael A. Paz, City Attorney
DATE: June 22, 2022
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE
OF THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "PUBLIC
PROPERTY," BY AMENDING ARTICLE IV, ENTITLED "USES IN
PUBLIC RIGHTS-OF-WAY," BY REPEALING DIVISION 5, ENTITLED
"SIDEWALK CAFES,"IN ITS ENTIRETY AT THE END OF THE CURRENT
PERMITTING CYCLE SEPTEMBER 30, 2022, BY DELETING SECTIONS
82-366 THROUGH 82-373, AND SECTIONS 82-381 THROUGH 82-391
THEREOF; AND PROVIDING REPEALER, SEVERABILITY,
CODIFICATION, AND AN EFFECTIVE DATE OF OCTOBER 1, 2022.
The proposed Ordinance (the "Ordinance"), which is sponsored by Mayor Dan Gelber,
Vice-Mayor Kristen Rosen Gonzalez, Commissioner Alex J. Fernandez, Commissioner David
Richardson, and Commissioner Mark Samuelian,was approved by the City Commission at first
reading on May 4, 2022, and is presented, without change, on second reading today.
The City Commission created the sidewalk café program, as set forth in Sections 82-
366 to 82-391 of the City Code ("the Sidewalk Café Ordinance"), for the valid public purpose of
increasing the quality of the City's iconic brand by establishing high quality outdoor food and
beverage service on City property, and positively representing the City's brand by providing a
public space where residents and visitors can enjoy the City's world-renowned architecture and
scenic sun-drenched vistas.
It was always the intention of the Mayor and City Commission to create a sidewalk café
program (for outdoor food and beverage service and consumption on the City's rights-of-way)
that allowed discretion for the City Manager to determine which sidewalk café operators were
advancing the interests of the program and to approve, issue, renew, and revoke permits based
upon the City Manager's judgment as to that consideration.
On December 29, 2021, a Miami-Dade County Circuit Court entered a preliminary order
finding that the City's sidewalk café ordinance created a due process interest in the renewal of
a sidewalk café permit by sidewalk café operators, contrary to the express intention of this
Commission in creating the sidewalk café program, with which the City disagrees.
The Ordinance proposed to repeal the Sidewalk Café Ordinance effective at the end of
the current permit year to allow for the consideration of a new paradigm. The replacement
model, which would provide the City Manager with the ability to award concession agreements
for food and beverage services on City rights-of-way, is the subject of a companion agenda item
on the June 22, 2022, City Commission Agenda.
RAP/RFR/mm
Page 430 of 1232