Loading...
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. PA:h~ M:\$CMB\ TEMP\L TC5. WPD 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 Alhd : CMB\TEMP\ACCESSI.WPD LAw OFFICES REBECCA L. HENDERSON A PROF"ESSIONAL ASSOCIATION. 12955 BISCAYNE BOULEVARO SUITE 202 NORTH MIAMI, FLORIDA ~.J..81 Jdf-!11Y/ TEL (305) 891.0066 8 FAX (305) 891.1015 . : . /"."', 1"\,. rrj 4: 45 I"; ,....: ',' , , . '-';~ F/ (' :::" "'- 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 ~ ~ 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 gM~ ~> ----------------------------- 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. PA:ih