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Business Impact Estimate - Additional City Criminal OffensesM IAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov TO: FROM: MEETING DATE: Mayor Dan Gelber and Members of the City Commission A lin a T. H u d a k , C ity Manag(P" O cto b e r 2 5 , 2 0 2 3 SUBJECT: BUSINESS IMPACT ESTIMATE FOR PROPOSED ORDINANCE ENTITLED: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE CODE OF THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "MISCELLANEOUS OFFENSES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 70-1 THEREOF, ENTITLED "STATE MISDEMEANORS," BY ADOPTING, THROUGH SPECIFIC REFERENCE, THE STATE LAW MISDEMEANOR OFFENSES OF ASSAULT, LOITERING OR PROWLING, AND DISORDERLY CONDUCT ON THE PREMISES OF AN ESTABLISHMENT, TO AFFIRMATIVELY ESTABLISH OFFENSES AGAINST MUNICIPAL LAW FOR THE SAME ACTS THAT CONSTITUTE SUCH OFFENSES AGAINST STATE LAW; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. This Business Impact Estimate is provided in accordance with Section 166.041 (4), Florida Statutes. 1. The summary of the proposed Ordinance and its purpose is more fully set forth in the Commission Memorandum accompanying the Ordinance, as well as in the recitals to the Ordinance itself, which are attached hereto. 2. The City of Miami Beach estimates that the proposed Ordinance will have no direct economic impact on private, for-profit businesses in the City of Miami Beach, that the proposed Ordinance will have no direct compliance costs that businesses may reasonably incur; that the proposed Ordinance will not impose any new charge or fee for which businesses will be financially responsible, and that the proposed Ordinance will not impact the City of Miami Beach's regulatory costs and will not generate any revenue from new charges or fees. 3. Good faith estimate of the number of businesses likely to be impacted by the proposed Ordinance: The City of Miami Beach estimates that no businesses are likely to be impacted by the proposed Ordinance. MIA MAI BEACH City of Miami Beach, 1700 Convention Center Drive. Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: FROM: DATE: SUBJECT: Mayor Dan Gelber Members of the City Commission y Rafael A. Paz, City Attorney September 13, 2023 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE CODE OF THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "MISCELLANEOUS OFFENSES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 70-1 THEREOF, ENTITLED "STATE MISDEMEANORS," BY ADOPTING, THROUGH SPECIFIC REFERENCE, THE STATE LAW MISDEMEANOR OFFENSES OF ASSAULT, LOITERING OR PROWLING, AND DISORDERLY CONDUCT ON THE PREMISES OF AN ESTABLISHMENT, TO AFFIRMATIVELY ESTABLISH OFFENSES AGAINST MUNICIPAL LAW FOR THE SAME ACT(S) THAT CONSTITUTE SUCH OFFENSES AGAINST STATE LAW; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. The proposed Ordinance, which is sponsored by Commissioner Steven Meiner, seeks to adopt, by specific reference, the state law misdemeanor offenses of assault, loitering or prowling, and disorderly conduct on the premises of an establishment. The proposed Ordinance would affirmatively make the conduct underlying these crimes offenses against municipal law for the same acts that constitute such offenses against State law, and thereby permit the City's Municipal Prosecution Team to prosecute such criminal violations under City law. On September 25, 2017, the Mayor and City Commission adopted Resolution No. 2017- 30023, which authorized the City Attorney's Office to commence the in-house prosecution, by and through a City municipal prosecution team, of those individuals exclusively charged with violating the City's criminal ordinances. However, the Miami-Dade State Attorney's Office (the "Miami- Dade S A O") remained the prosecutorial entity responsible for the prosecution of persons arrested for the commission of all felony, misdemeanor, and/or County ordinance violations committed in Miami-Dade County. No doubt due in part to its reputation as an internationally renowned tourist destination and the constant heavy influx of tourists and other visitors, the City continues to contend with many criminal, quality of life offenses being committed within its jurisdictional bounds. The commission of misdemeanor and municipal ordinance offenses in the City adversely impact residents' quality of life and tourists' vacation experience, and continue to generate an inordinate number of issues and complaints from the City's residents, visitors, and business establishments. C om m ission Memorandum - Amending Section 70-1 - Adopting State Law Misdemeanors of Assault, Loitering or Prowling, and Disorderly Conduct on Premises of an Establishment Septem ber 13, 2023 Page 2 Some of those misdemeanor offenses which most adversely affect the City's residents, visitors, and businesses include battery, indecent exposure and criminal mischief. In order to acquire greater control and discretion regarding the prosecution of such offenses occurring within the City, and to relieve the Miami-Dade SAO of some of its prosecutorial burden, the City desired to become the primary entity responsible for the prosecution of those specified State law misdemeanor offenses (excluding domestic battery cases). As such, on January 20, 2022, the Mayor and City Commission adopted Resolution No. 2022-32020, which expanded the City's municipal prosecution program and directed that the City become the primary entity responsible for the prosecution of the State law misdemeanor offenses of battery (except domestic battery), criminal mischief, and indecent exposure. Then, on March 9, 2022, pursuant to Resolution No. 2022-32020, the Mayor and City Commission adopted Ordinance No. 2022-4477, which created specific offenses against municipal law for the same acts that constitute the State law misdemeanor offenses of battery (non-domestic), criminal mischief and exposure of sexual organs (indecent exposure). Most recently, on October 26, 2022 the Mayor and City Commission adopted Ordinance No. 2022-4520 which created a specific offense against municipal law for the same acts that constitutes the State law misdemeanor offense of breach of the peace / disorderly conduct. The proposed Ordinance would create, through specific reference, offenses against municipal law for the same acts that constitute the State law misdemeanor offenses of assault, loitering or prowling, and disorderly conduct on the premises of an establishment, as such offenses are set forth in Fla. Stat. 784.011, Fla. Stat. 856.021, and Fla. Stat. 509.143. Florida caselaw has established that a municipality may enact an ordinance which creates an offense against municipal law for the same act that constitutes an offense against State law. Florida law has further established that a municipality may, by ordinance, adopt State misdemeanor statutes by specific reference or by general reference, such as that contained in an ordinance making it unlawful to commit, within City limits, any act which is (or shall be) recognized by the laws of the State as a misdemeanor. RAP/MAF/bhs ORDINANCE NO. _ AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE CODE OF THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "MISCELLANEOUS OFFENSES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 70-1 THEREOF, ENTITLED "STATE MISDEMEANORS," BY ADOPTING, THROUGH SPECIFIC REFERENCE, THE STATE LAW MISD EMEANOR OFFENSES OF ASSAULT, LOITERING OR PROWLING, AND DISORDERLY CONDUCT ON THE PREMISES OF AN ESTABLISHMENT, TO AFFIRMATIVELY ESTABLISH OFFENSES AGAINST MUNICIPAL LAW FOR THE SAME ACTS THAT CONSTITUTE SUCH OFFENSES AGAINST STATE LAW; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DA TE. W HEREAS, on September 25, 2017, the Mayor and City Commission adopted Resolution No. 2017-30023, which authorized the City Attorney's Office to commence the in-house prosecution, by and through a City municipal prosecution team, of those individuals exclusively charged with violating the City's criminal ordinances; and WHEREAS, the Miami-Dade State Attorney's Office (the "Miami-Dade SAO") continues to be the prosecutorial entity responsible for the prosecution of those offenders arrested for the commission of all felony, misdemeanor, and/or County ordinance violations committed in Miami- Dade County; and WHEREAS, due in part to its reputation as an internationally renowned tourist destination and the constant heavy influx of tourists and other visitors, the City continues to contend with many criminal, quality of life offenses being committed within its jurisdictional bounds; and W HEREAS, the commission of misdemeanor and municipal ordinance offenses adversely impact residents' quality of life and tourists' vacation experience, and continue to generate an inordinate number of issues and complaints from the City's residents, visitors, and business establishments; and WHEREAS, some of those misdemeanor offenses which most adversely affect the City's residents, visitors, and businesses include battery, indecent exposure, criminal mischief, and breach of the peace / disorderly conduct; and W HEREAS, in order to acquire greater control and discretion regarding the prosecution of those identified misdemeanor offenses occurring in the City, and to relieve the Miami-Dade SAO of some of its prosecutorial burden, the City desires to become the entity responsible for the prosecution of those specified State law misdemeanor offenses (excluding domestic battery cases); and WHEREAS, Florida caselaw has established that a municipality may enact an ordinance which creates an offense against municipal law for the same act that constitutes an offense against State law (see Jaramillo v. City of Homestead, 322 So.2d 496 (Fla. 1975)); and W HEREAS, Florida law has further established that a municipality, by ordinance, may adopt State misdemeanor statutes by specific reference or by general reference, such as that contained in an ordinance making it unlawful to commit, within City limits, any act which is (or shall be) recognized by the laws of the State as a misdemeanor (Id. at 498); and WHEREAS, the City previously established, pursuant to Section 70-1 of the City Code, that it is unlawful for any person to commit within the City any act that is (or shall be) recognized by the laws of the State as a misdemeanor and that the commission of such acts is forbidden; and WHEREAS, on January 20, 2022, the Mayor and City Commission adopted Resolution No. 2022-32020, which expanded the City's municipal prosecution program by directing that the City shall become the primary entity responsible for the prosecution of the State law misdemeanor offenses of battery (except domestic battery), criminal mischief, and indecent exposure; and W HEREAS, on March 9, 2022, pursuant to Resolution No. 2022-32020, the Mayor and City Commission adopted Ordinance No. 2022-4477, which created specific offenses against municipal law for the same acts that constitute the State law misdemeanor offenses of battery (non-domestic), criminal mischief and exposure of sexual organs (indecent exposure); and WHEREAS, on October 26, 2022 the Mayor and City Commission adopted Ordinance No. 2022-4520 which created a specific offense against municipal law for the same acts that constitutes the State law misdemeanor offense of breach of the peace I disorderly conduct; and WHEREAS, the Mayor and City Commission hereby desire to adopt the following amendments in order to further expand the City's municipal prosecution program by creating, through specific reference, offenses against municipal law for the same acts that constitute the State law misdemeanor offenses of assault, loitering or prowling, and disorderly conduct on the premises of an establishment. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: SECTION 1. That the section of the City Code creating offenses against municipal law for the same acts that constitute misdemeanor offenses against State law, as such Ordinance is codified in section 70-1 of the City Code, be amended as follows and as hereinafter set forth below: CHAPTER 70 MISCELLANEOUS OFFENSES i i * ARTICLE I. IN GENERAL * * * 2 Sec. 70-1. State misdemeanors. (a) It shall be unlawful for any person to commit within the city any act that is or shall be recognized by the laws of the state as a misdemeanor, and the commission of such acts is hereby forbidden. (b) Notwithstanding subsection (a), the following misdemeanor(s) under state law are eligible to receive a civil violation notice, at the discretion of a law enforcement officer, provided that such violations are not charged in conjunction with any charge that is a felony, driving under the influence, incident involving domestic violence, or violent crime, as those terms are defined under state law: (1) Possession of cannabis in an amount of 20 grams or less, as set forth in F.S. § 893.13(6)b), as such may be amended from time to time; and/or (2) Possession of drug paraphernalia, as set forth in F.S. §§ 893.146 and 893.147(1)(b), as such may be amended from time to time. An individual issued a civil violation notice for a violation of subsection (b )1) or (2) will be subject to the fine set forth herein. (3) Penalties and enforcement. a. [Civil fine.] A person violating subsection (b )(1) or (2) shall receive a civil fine of $100.00. b. Enforcement. The Miami Beach police department shall enforce this section. This shall not preclude other law enforcement agencies from any action to assure compliance with this section and all applicable laws. If a police officer finds a violation of (b)1) or (2), the police 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 magistrate 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. c. Rights of violators; payment of fine; right to appear; failure to pay civil fine or to appeal; appeals from decisions of the special magistrate. 1. 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 magistrate to appeal the notice of violation, which must be requested within ten days of the service of the notice of violation. 2. 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. 3. 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 magistrate, the special magistrate may be informed of such failure by report 3 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 magistrate, and shall be treated as an admission of the violation, for which fines and penalties shall be assessed accordingly. 4. 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 judgement 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 otherw ise execute upon the lien. 5. Any party aggrieved by a decision of a special magistrate may appeal that decision to a court of competent jurisdiction. 6. The special magistrate 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. 7. The special magistrate shall not have discretion to alter the penalties prescribed in subsection (3)a. (c) It shall be unlawful for any person to commit. within the city, any act that is or shall be recognized as a misdemeanor battery, as such offense is set forth in F.S. § 784.03. (d) It shall be unlawf ul for any person to commit, within the city, any act that is or shall be recognized as a misdemeanor criminal mischief, as such offense is set forth in F.S. § 806.13. (e) It shall be unlawf ul for any person to commit, within the city, any act that is or shall be recognized as a misdemeanor exposure of sexual organs (indecent exposure), as such offense is set forth in F.S. § 800.03. (f) It shall be unlawf ul for any person to commit, within the city, any act that is or shall be recognized as a misdemeanor breach of the peace/disorderly conduct, as such offense is set forth in F.S. § 877 .03. f9.2 It shall be unlawful for any person to commit, within the city, any act that is or shall be recognized as a misdemeanor assault, as such offense is set forth in F.S. § 784.011 . .U:U It shall be unlawful for any person to commit, within the city, any act that is or shall be recognized as a misdemeanor loitering or pro wling, as such offense is set forth in F.S. § 856.021. ill It shall be unlawf ul for any person to commit, within the city, any act that is or shall be recognized as a misdemeanor disorderly conduct on the premises of an establishment, as such offense is set forth in F.S. § 509.143. SECTION 2. REPEALER. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. 4 SECTION 3. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remaindershall 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 Miami Beach City Code. 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. SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect on the day of 2023. PASSED AND ADOPTED this day of 2 023. ATTEST: Dan Gelber, Mayor Rafael E. Granado, City Clerk (Sponsored by Commissioner Steven Meiner) Underline denotes additions Strikethrough denotes deletions APPROVED AS TO FORM & LAN GUAGE & FOR EXECUTION yo 11-23 cAe"\E " 5