128-1998 LTC
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
http:\\ci.miami-beach.fl.us
LoT.C. No. 128-1998
LETTER TO COMMISSION
August 27, 1998
TO: Mayor Neisen O. Kasdin and
Members of the City Co mission
FROM: Sergio Rodriguez
City Manager
SUBJECT: SOUTH FLORIDA BUILDING CODE / APPLICABILITY TO
SIDEWALK CAFES
In response to a complaint filed by Edward Resnick regarding the insufficient number of bathroom
fixtures at eating establishments with sidewalk seating, the City of Miami Beach's Building Official
in a letter to the Miami-Dade County Board of Rules and Appeals (BORA) dated January 28, 1998
requested an interpretation of the applicability of the South Florida Building Code (SFBC) to
sidewalk cafe seating.
The City of Miami Beach's Building Official posed the following two questions before BORA: a)
If an establishment occupies part of a public right-of-way (sidewalk) for additional seating, is it
required to provide additional bathroom fixtures in compliance with chapter 46 of the South Florida
Building Code? b) Would current establishments with permitted sidewalk seating be
"grandfathered", if the Board of Rules and Appeals rule that additional bathroom fixtures are
required?
At its meeting of February 12, 1998, BORA granted the City of Miami Beach's Building Official 120
days to revisit the issue and appear before BORA for further discussion on the issue.
The City of Miami Beach's Building Official, after revisiting this issue extensively through research
of all applicable sections of the South Florida Building Code (SFBC), concluded that the South
Florida Building Code is silent on this issue. Since there are no SFBC-mandated permit requirements
for addition of seats in the public right-of-way, he concluded that there are no grounds for
application of and regulation by the SFBC. Based on the said conclusion, the Building Official, in
a letter dated April 28, 1998 (copy attached) withdrew his request for BORA's interpretation.
At its meeting of June 11, 1998, BORA referred the matter to the South Florida Building Code
Review Subcommittee for further analysis.
At a meeting conducted by the Dade County League of Cities on August 3, 1998, at which the City's
Building Official was present, John Kurzman, the chairman of the SFBC Review Subcommittee
concurred with Mr. Resnick's interpretation regarding the applicability of the SFBC to the sidewalk
cafe. Mr. Kurzman stated that the SFBC does address the issue of sidewalk as part of the restaurant.
The terms "space or premises" used by the SFBC was interpreted by his committee to include
sidewalk when used by the establishment. Mr. Kurzman further stated that the all other applicable
codes such as Life Safety Code and other relevant sections of the SFBC would also be applicable.
The SFBC Review Subcommittee, at its meeting on August 4, 1998, recommended to the Miami-
Dade County Board of Rules and Appeals that an ordinance be created that would specifically
addresses the issue of the sidewalk cafes, and if adopted by the County Commission, it would be
included in the year 2000 amendments of the South Florida Building Code.
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CITY OF MIAMI BEACH
INTER-OFFICE MEMORANDUM
DATE:
May 19, 1998
TO:
Murray Dubbin
City Attorney
FROM:
Sergio Rodriguez
City Manager
RE:
Required Bathrooms for Sidewalk Cafes (SFBC 4613.19)
In a letter to the Miami-Dade County Board of Rules and Appeals (BORA) dated January 28,
1998, Philip Azan, the City's Building Official, requested an interpretation of the above
referenced issue (see letter attached). At its meeting of February 12, 1998, BORA granted the
Building Official 120 days to revisit the issue and appear before BORA providing them with a
verbal report before they make any interpretation.
The Building Official, after revisiting this issue extensively through research of all applicable
sections of the South Florida Building Code (SFBC), concluded that the South Florida Building
Code is silent on this issue. Since there are no SFBC-mandated permit requirements for addition of
seats in the public right-of-way, he concluded that there are no grounds for application of and
regulation by the SFBC.
Based on the conclusions set forth above, the Building Official, in a letter dated April 28, 1998,
withdrew his request for BORA's interpretation of the above matter. (See copy ofthe letter attached.)
Rebecca Henderson, an attorney representing Access Now, Inc.(Edward Resnick), in a letter dated
May 14, 1998 to Janet Gavarrete, Assistant City Manager, has formally notified the City of her
clients intention to pursue the matter which may include possible litigation (see copy of letter
attached. )
Please review this matter and advise as to the required course of action.
Thank you.
cc: Janet Gavarrete, Assistant City Manager
Philip Azan, Building Director I Official
~ Diana Grub Frieser, First Assistant City Attorney
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LAw OFFICES
REBECCA L. HENDERSON
A PROF"ESSIONAL ASSOCIATION.
12955 BISCAYNE BOULEVARO
SUITE 202
NORTH MIAMI, FLORIDA ~.J..81
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TEL (305) 891.0066 8
FAX (305) 891.1015
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May 14, 1998
Janet Gavarrete
Assistant City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
RE: Sidewalk Cafes
Dear Ms. Gavarrete:
I am in receipt of Phillip Azan's letter to Charles Danger withdrawing his request for an
interpretation of South Florida Building Code 4613.19. Please be advised that my client
will not allow this misguided maneuver to sidetrack the issue. We will be requesting that
the Board of Rules and Appeals require, on its own initiative, that the City of Miami
Beach adhere to the bathroom requirements for restaurants as set forth in the South
Florida Building Code. Should we also desire, private litigation may be commenced to
require this municipality to adhere to the building code in this regard.
If you have any questions or concerns, please feel.free to contact me.
~
Rebecca L. Henderso
RLH/ml
cc: Edward Resnick
Access Now, Inc.
CITY~ OF
MIAMI
BEACH
~
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CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
BUILDfNG DEPARTMENT
PHONE: (305) 673-7610
FAX: (305) 673.7857
April 28, 1998
Charles Danger, P.E., Secretary
Board of Rules and Appeals
140 West Flagler Street, Suite 1603
Miami, Florida 33130-1563
Re: Interpretation - Required Bathroom for Sidewalk Cafes (SFBC 4613.19)
Dear Mr. Danger:
In a letter to the Miami-Dade County Board of Rules and Appeals (BORA) dated January 28, 1998,
I requested an interpretation of the above referenced issue. At its meeting of February 12, 1998,
BORA granted me 120 days to revisit the issue before they make any interpretation.
I have revisited this issue extensively, and researched through all applicable sections of the South
Florida Building Code (SFBC) and I believe the South Florida Building Code is silent on this issue.
There are no SFBC-mandated permit requirements for addition of seats in the public right of way;
hence, in this context, there are no grounds for application of and regulation by the SFBC.
Based on the conclusions set forth above, I no longer seek an interpretation by BORA as requested
in my letter, and I hereby withdraw said request. As a result of my conclusions, and the withdrawal
of my request, there is no longer a need to appear before BORA (within the 120 days period) to
provide them with a verbal report. Accordingly, to the extent you believe appropriate, please feel free
to communicate my conclusions to the Board. Please let me know if the Board would like me to
appear at a later date to discuss this matter further and I would be happy to do so.
In the event BORA or staff find that this matter should be further explored, I suggest that the issue
may be an appropriate subject to be considered by the SFBC review committee. Once again, thank
you for the assistance provided by both you and the Board.
Please feel free to call me on this matter at 673-7000 ext. 6874.
Sincerely J
pfl:! CBO
Building Director
cc: Sergio Rodriguez, City Manager
Roy Van Wyck, Acting Assistant Director
Janet Gavarette, Assistant City Manager
Diana Grub Frieser, First Assistant City Attorney
~
· City of Miami Beach
Building Department
m
-
-
1700 Convention Center Drive
2nd Floor City Hall
Miami Beach, Florida 33139
(Offc) (305) 673-7610
(Fax) (305) 673-7857
January 28, 1998
Charles Danger, P.E., Director
140 West Flagler Street, Suite 1603
Miami, Florida 33130-1563
RE: FIXTURE COUNT ON SIDEWALK CAFES
Dear Mr. Danger:
The City of Miami Beach adopted a Sidewalk Cafe Ordinance on September 26, 1992 whereby the lease
of public right-of-way for additional seating accessory to cafes and restaurants was authorized. The
objective of the ordinance is to regulate the private use of public property and to protect the public welfare.
The authorization to use sidewalks for additional seating was implemented through a Sidewalk Cafe
permitting process handled by the City's Occupational License Section. In the Sidewalk Cafe permitting
process, there was no criteria established to compel the owners of the establishments to increase the.
number of the bathroom fixtures in accordance with their new occupant. content/number of seating (as a
result of added square footage of sidewalk leased from City).
Recently this issue of additional fixtures required for added square footage of leased sidewalk has come
to the surface, and I have been asked for an interpr,etation on this matter. Therefore, pursuant to S.F.B.C.
Section 203.4(b)(2), I am requesting an interpretation from the Board of Rules and Appeals for the
following:
1) If establishments leasing part of the public right-of-way (sidewalk) for additional seating) are they
required to provide additional bathroom fixtures in compliance with chapter 46 of the South Florida Building
Code, if they are not in compliance?
2) Also would the current establishments with permitted sidewalk seating be "grandfathered", if the Board
of Rules and Appeals rule that additional bathroom fixtures are required?
I would appreciate your expedient response to this request.
Sincerely;
Phil Azan
Building Director/Official
PNih
I '.' ti/~s/qC;
Author: PhillipAzan at C-H-PO
Date: 8/3/98 05:32 PM
Priority: Normal
TO: HarryMavrogenes
TO: SergioRodriguez (SergiolRodriguez)
CC: JanetGavarrete
Subject: SIDEWALK CAFE
---------------------------- Message Contents
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-----------------------------
I ATTENDED THE MEETING ON SIDEWALK CAFE ISSUE. PRESENT AT THE MEETING
WERE THE FOLLOWING PERSONS:
JOSE R. BACALLAO
RUSS MARCHNER
ROY VAN WYCK
CHARLES DANGER
TRAVIS WALLACE
JOHN KURZMAN
HUGO BENITZ
PHILIP AZAN
COUNTY MANAGER'S OFFICE
LEAGUE OF CITIES
DADE COUNTY CODE COMPLIANCE OFFICE
DITTO
CITY OF MIAMI
BOARD OF RULES AND APPEALS
DADE COUNTY ATTORNEY'S OFFICE
CMB BUILDING DEPT.
THIS MEETING WAS CALLED BY THE CHAIRMAN OF THE SUBCOMMITTEE MR.
KURZMAN AND MR. MARCHNER TO GATHER INPUT PRIOR TO THE SUBCOMMITTEE
MEETING ON TUESDAY AUG. 4,1998 AT 10:00 AM .
MR. KURZMAN STATED THAT MR. ED RESNICK HAD 3 AREAS OF CONCREN
REGARDING THE SIDEWALK CAFE ISSUE 1) THAT THE CORRECT TOILET FIXTURE
COUNT WAS NOT PROPERLY ENFORCED ,2) LACK OF ENFORCEMENT ON AISLE
SPACING WITHIN THE RESTAURANTS 3) NON-COMPLIANCE WITH ADA. IN
REFERENCE TO ITEM 3, THIS WAS NOT A CONCERN FOR THE CITY BUT COULD BE
PURSUED THROUGH LITIGATION IN FEDERAL COURT.
ITEM 2, MAINTAINING THE PROPER AISLE SPACING WOULD BE AN ISSUE THAT
OUR FIRE DEPT. WOULD ENFORCE, BUT ALL ACKNOWLEDGED THAT IT WAS VERY
DIFFICULT TO ACHIEVE ENFORCEMENT.
IN DISCUSSING THE FIXTURE COUNT ,MR. KURZMAN READ FROM A DOCUMENT
PREPARED BY MR. RESNICK WHICH HE SAID THAT HE AGREED WITH MR.
RESNICK'S ARGUMENT THAT THE SFBC DOES ADDRESS THE USE OF SIDEWALK AS
BEING PART OF THE RESTAURANT IF THE TERM "SPACE OR PREMISES" IS
INTERPRETED TO INCLUDE THE SIDEWALK WHEN USED BY THE ESTABLISHMENT. IT
WAS THE OPINION THAT IF THE CITY, ANY CITY, WAS LEASING SIDEWALK SPACE
THEN IT SHOULD BE THE RESPONSIBILITY OF THE CITY TO PROVIDE THE
ADDITIONAL FIXTURES.
ANOTHER SUGGESTION WAS MADE THAT BORA WOULD NOT RULE BUT DEFER TO
COUNTY COMMISSION FOR A RULING. THIS WAS NOT WELL RECEIVED OR DEFER TO
COURT FOR A RULING.
I ASKED MR. KURZMAN IF THE BOARD SHOULD RULE THAT THE SIDEWALK COUNTS
WOULD THIS BE APPLICABLE TO PLUMBING CODE ONLY OR WOULD THIS RULING
EXTEND TO INCLUDE OTHER CODES SUCH AS THE LIFE SAFETY CODE. IT WAS HIS
OPINION THAT OTHER CODES WOULD BE APPLICABLE AT WHICH POINT OTHERS
PRESENT EXPRESSED THAT THIS WOULD ADVERSELY AFFECT THE INDUSTRY SINCE
COMPLIANCE WOULD BE VERY COSTLY TO ACHIEVE.
HOWEVER, HUGO BENITEZ OFFERED THAT THE SUBCOMMITTEE COULD RECOMMEND TO
BORA THAT AN ORDINANCE BE CREATED THAT WOULD SPECIFICALLY ADDRESS THE
ISSUE OF SIDEWALK CAFES AND BE IMPLEMENTED IN THE YEAR 2000 CODE
AMENDMENT. THIS SUGGESTION WAS WELL RECEIVED BY ALL PRESENT, AND MR.
KURZMAN SAID HE WOULD OFFER THIS RESOLUTION TO THE REVIEW COMMITTEE
FOR THEIR APPROVAL.
PHIL
CITY OF MIAMI BEACH
Building Department
DATE:
August 31, 1998
TO:
Sergio Rodriguez
City Manager
FROM:
Janet Gavarrete
Assistant CitY~ager
Philip Azan ~
Building Dire
VIA:
SUBJECT:
SIDEWALK CAFES
In response to your request, the existing cafes and restaurants would not be affected until
after the Board of Rules and Appeals hearing in September.
At this hearing they are to decide if the current South Florida Building Code is applicable
to the sidewalk cafes and restaurants, or agree to refer to the Building Code Review
Committee for creation of an ordinance to specifically address the issue. When a final
decision is made then, the enforcement issues will be clarified.
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