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Ordinance 2024-4638 • ORDINANCE NO. 2024-4638 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING SUBPART A, ENTITLED "GENERAL ORDINANCES" OF THE CODE OF MIAMI BEACH, CHAPTER 18, ENTITLED . "BUSINESSES," ARTICLE XV, ENTITLED "STREET PERFORMERS AND • ART VENDORS," BY AMENDING SECTION 18-906 THEREOF, ENTITLED "REGULATIONS, PROCEDURES, AND PROHIBITIONS," TO REGULATE SOUND LEVELS PRODUCED BY ANY PERSON IN CLOSE PROXIMITY TO OUTDOOR DINING SEATING, AND PROVIDING FOR REPEALER, • SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. WHEREAS, the City has determined that outdoor dining in various areas within the City operated by restaurant businesses. willing to operate their outdoor dining operations strictly in a manner that advances the interests of the City, as defined by the ' • City, is desirable, and provides additional dining options for the enjoyment of public and private outdoor areas, thereby enhancing the quality of life for residents and the quality of the visitor experience for the City's tourists, and is a valid,public purpose; and WHEREAS, outdoor dining in certain designated areas of the city provide a • unique environment and .ambiance, and an aesthetically pleasing experience for relaxation and food and/or beverage consumption that enhances the sophisticated and mature brand that the City has determined to promote; and WHEREAS, :it is imperative, however, that outdoor dining patrons receive a . dining experience at the highest levels of ambiance, service, and quality, befitting the status of a recognized world class,international resort destination like Miami Beach; ' and WHEREAS, the City strictly regulates the outdoor dining experience of patrons by requiring an Outdoor Dining Concession Agreement for outdoor dining establishments operating on the public right-of-way, maintaining land use rules and permitting regulations for outdoor dining operations on private property or. on City-owned property leased to private parties; and : WHEREAS, one aspect of the outdoor dining experience that the City strictly regulates is sound and noise produced at or near outdoor dining establishments. For instance, Outdoor.Dining Concessionaires operating on the public right-of-way are contractually prohibited from having any outdoor speakers and from providing any outdoor entertainment. Similarly, many establishments -providing outdoor dining on private property or on City-owned property leased to private parties may not have outdoor speakers or provide live entertainment; and . WHEREAS, loud, raucous, and unreasonably loud sound produced by street performers and others in the vicinity of outdoor dining establishments interferes with . normal conversation by patrons at these establishments, diminishes their dining experience, and interferes with the valid public purposes of the City's outdoor dining programs; and • WHEREAS, the use of speakers and other sound amplification devices by street :performers and others on the public right-or.-way has exponentially increased the sound produced.and the negative secondary effects of street performers and other speakers. . on the dining experience of outdoor dining patrons; and WHEREAS, the City has attempted to ameliorate the a negative secondary effects of loud noise produced by street,performers and others in close proximity to outdoor dining establishments without utilizing regulations aimed specifically at enhancing the outdoor dining experience and without.prohibiting amplified sound in close proximity to 'outdoor dining operations, but these efforts have proven ineffective because street performers and others producing loud noise, particularly using speakers and other . • sound amplification devices, typically turn down their volume when approached by a code compliance officer, but turn the volume backup to unacceptable levels as ;soon as the code compliance officer leaves the area; and WHEREAS, in order to maintain the highest standards benefitting outdoor dining • patrons, there exists a need for additional regulations and standards for sound produced by street performers and others in close proximity. to outdoor dining establishments, particularly sound produced using a speaker or other sound amplification device; and WHEREAS, sound produced by street performers and others on the_public right- of-way that is louder than that appropriate in close proximity to patrons dining outdoors, including amplified sound, is allowed in many other areas of the City (though always subject to the City's general noise ordinance; land use ordinances, and applicable land . ' ' use permits), so ample adequate alternative locations are available to those who may not produce loud sound that interferes with the normal conversation of outdoor dining patrons; and' WHEREAS, this Ordinance regulates all persons .producing ,sound . in close proximity to outdoor dining patrons and/or that interferes with the normal conversation of outdoor dining patrons, regardless of the identity of the speaker, the:content of the . , sound, and/or viewpoint of the person .regulated. Though street performers utilizing speakers or other sound amplification devices are, in the City's experience, the primary source, of interference with normal -conversation by outdoor dining patrons; the regulations created in this Ordinance govern all speakers, regardless of their identity; content of their speech, or the viewpoint they may espouse. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: . SECTION 1. That Sections 18-906 of the City Code shall be created as follows, and as hereinafter set forth below: SUBPART A GENERAL ORDINANCES * CHAPTER 18 BUSINESSES * * * ARTICLE XV • STREET PERFORMERS AND ART VENDORS 4. * * Sec. 18-906. - Regulations, procedures, and prohibitions. • Street performances (and other activities regulated here) and artist vending shall be conducted in accordance with the following rules and requirements: * * * (3) All artist vendors and all street performers(and other activities regulated here), whether or not in a permitted artist vending or street performer zone, shall comply with the following: * * * p•. No person on the public right-of-way or other public property shall create any amplified or unamplified sound that interferes with normal conversation at any outdoor dining establishment located on private property, the public right-of- way or other public property. For purposes of this subsection, the use of a speaker, amplifier, megaphone or any other device on the public right-of-way or other public property intended to increase the sound produced by a person or by equipment in the possession or control of a person on the public right-of- way or other public property within 100 feet of the nearest perimeter edge of any outdoor dining establishment shall be presumed to interfere with normal conversation and is hereby prohibited. • * * * SECTION 3 2. REPEALER. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 4 3. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. • SECTION 6 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 6 5, EFFECTIVE DATE. This Ordinance shall take effect on the 3 day of AlUif , 2024. PASSED AND ADOPTED this ay day of Tal' , 2024. ATTEST:4-71V • Steven Meiner, Mayor JUL 302024 Rafael E. Granado, City Clerk UNCOlitRATEDI ! (Sponsored by Commissioner Laura Dominguez) .. Co-Sponsored by Commissioner Alex J.Fernandez � E.1 • • Underline denotes additions at First Reading Striketh-reegh denotes deletions at First Reading • Double Underline denotes additions at Second Reading denotes deletions at Second Reading ' • APPROVED AS TO FORM &LANGUAGE &FOR EXECUTIO(I City Attorney Date Ordinances R5 P MIAMI BE . H COMMISSION MEMORANDUM " TO: Honorable Mayor and Members of the City Commission . FROM: City Attorney Ricardo J. Dopico DATE: . July 24, 2024 TITLE: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING SUBPART A, ENTITLED . "GENERAL ORDINANCES" OF THE CODE OF MIAMI BEACH, CHAPTER .18, ENTITLED "BUSINESSES," ARTICLE XV, ENTITLED "STREET PERFORMERS AND ART- VENDORS," BY AMENDING. SECTION 1.8-906 THEREOF, ENTITLED "REGULATIONS, PROCEDURES, AND PROHIBITIONS," TO REGULATE SOUND LEVELS PRODUCED BY ANY PERSON IN CLOSE PROXIMITY TO OUTDOOR DINING SEATING, AND PROVIDING' FOR REPEALER,: SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. . • ANALYSIS The proposed Ordinance, which is sponsored by Commissioner Laura Dominguez, is presented to the Mayor and City Commission for their consideration on Second Reading. Between First and Second Reading, the proposed Ordinance was amended to clarify that it only. governs sound produced on the public right-of-way or other public property, as follows: p No person on the public right-of-way or other public property shall create any amplified or unamplified sound that interferes with normal conversation at any outdoor dining establishment located on private property, the public right-of-way or other public property. For purposes of this subsection, the use of a speaker, . amplifier, megaphone or any other device on the public riaht-of-wavor other public property intended to increase the sOund produced by a person or by equipment in . the possession or control of a person on the public:right-of-way or other public property within. 100' feet of the nearest perimeter edge of any outdoor dining establishment shall be presumed to interfere with normal conversation and is hereby prohibited. Also, the legislative record for this item was appended to the agenda item for Second Reading. The legislative record includes a study by an acoustical sound expert,who reviewed the proposed Ordinance, interviewed various community stakeholders regarding their experiences with loud sounds in close proximity to outdoor dining establishments, viewed code compliance officers' .body work camera footage of responses to noise complaints near outdoor dining establishments, and:based upon his study, determined that the proposed Ordinance achieved important and legitimate governmental interests in a narrowly tailored fashion. :FISCAL IMPACT STATEMENT . N/A Does this Ordinance require a Business Impact Estimate? Yes (FOR ORDINANCES ONLY) The Business Impact Estimate (BIE)was published on . See BIE at: https://www.miamibeachfl.gov/city-hall/city-clerk/meetinq-notices/ Applicable Area . Citywide Is this a "Residents Right to Know" item, Is this item related to a G.O. Bond pursuant to City Code Section 2-1.7? Project? No No Was this Agenda Item initially requested by a lobbyist which, as defined in Code.Sec. 2-481, includes a principal engaged in lobbying? No If so, specify the name of lobbyist(s) and principal(s): Department City Attorney Sponsor(s) Commissioner Laura Dominguez Co-sponsor(s) Commissioner Alex J. Fernandez Arpeggio 1947 Aspen Drive, NE ARPEGGIO Atlanta,Georgia 30345 ACOUSTICS AUDIOVISUAL TECHNOLOGY (404)417-0100 Acoustic Assessment Concerning Section 18-906 of the Code of Miami Beach "Street Performers and Art Vendors" July 17,2024 Regulating community noise can be a challenging task.This is due, in part,to the complex nature of sound propagation but also to the practical realities of enforcement. In order to be effective,a noise ordinance needs to have sufficient objectivity such that there is little or no question of what constitutes a violation. Due to complexities of the matter,the City of Miami Beach has requested that I express my opinion,as an acoustical consultant,on the proposed amendment to Section 18- 906 of the Code of Miami Beach specifically concerning"Street Performers and Art Vendors."The salient portion of the proposed amendment is as follows: • No person shall create any amplified or unamplified sound that interferes with normal conversation at any outdoor dining establishment located on private property,the public right-of-way or other public property.For purposes of this subsection,the use of a speaker, amplifier, megaphone or any other device intended to increase the sound produced by a person or by equipment in the possession or control of a person within 100 feet of the nearest perimeter edge of any outdoor dining establishment shall be presumed to interfere with normal conversation and is hereby prohibited. In assessing the efficacy of the language, I watched 18 videos of code compliance body camera footage totaling nearly three hours. Within these videos, a street performer was generally approached by an officer and asked for their permit to determine their right to perform at the location.Then,a judgment was made by the officer as to whether the sound level was excessive. If so, the performer was asked to reduce their volume. In certain instances, the performers were cited or asked to vacate the location. In addition to watching the body camera footage, I also had conversations with five stakeholders. Their names and their general commentary are presented below: • Commissioner Laura Dominguez (sponsor of legislation): Commissioner Dominguez discussed first being informed by others of the issue then experiencing it herself when she had difficulty having a conversation with a dining partner while a street performer was active across Lincoln Road from their location. She related that a code compliance officer showed up and the performer turned down their volume only to turn it back up when the officer vacated. City of Miami Beach Arpeggio • Thomas Curitore (Assistant Director of Code Compliance): Mr. Curitore discussed the challenges of enforcement given the tendency for performers to turn down their volume when approached by officers, only for them to turn the volume up again after the officers leave. He likened it to a "cat and mouse"game. • Karen Rivo (G.O. Bond Oversight Committee Chair): Ms. Rivo indicated that she had experienced one or more situations when she could not converse at a sidewalk café on Lincoln Road due to the sound created by amplified performers. • Robert Selsam (Miami Beach United Director): Mr.Selsam discussed experiences sitting at a café on Lincoln Road and not being able to hear a conversation due to one or two people playing amplified music on the other side of the mall. He also mentioned the proliferation of people leaving South Pointe Park or the beach with loudspeakers on wheels or on bikes playing music at a volume that interferes with conversations at outdoor dining venues. • John Caprio (West Avenue Neighborhood Association): Mr. Caprio indicated that Lincoln Road is the main problem area for music but that there are also preachers on Ocean Drive and, in both cases,their amplification results in interference of conversations. Insofar as the intent of the amendment is to preserve and promote pleasant outdoor dining experiences, which includes the ability to engage in normal conversation with fellow diners, it is my opinion that this amendment is appropriate and would prove beneficial in mitigating increasing sound levels. Given its objectivity and lack of a subjective component, it would be effective yet not overly restrictive. It also avoids the common occurrence of performers merely turning down the volume of their amplifiers when officers leave. In addition to the aforementioned, I feel that a 100-foot demarcation is appropriate. Average sound levels for normal speech at a distance of 3' (e.g., across a dining table) are typically in the range of 55 to 58 dBA and those for raised speech at a distance of 3' are typically in the range of 62 to 65 dBA. If one were to assume that the sound level produced near(i.e., 3'from) a speaker, amplifier, megaphone, or similar device is 85 dBA (which, as a point of reference, is the OSHA action level for workplace noise exposure and is approximately the level of a heavy truck passing by at 50'),the corresponding sound level at a distance of 100'would be approximately 55 dBA,or approximately the same level as normal speech and slightly below that of raised speech. Thus, while production of such sound would potentially be audible at a table 100' from the source, it would be at or slightly below the level of conversation and would likely not be deemed to be interfering. Sincerely, (1 a. c.9 Jesse J. Ehnert, INCE Bd. Cert. Arpeggio --------- -- -- ---------------- - ---------------- -------- ----- ----------- ------ ---------- 21Page Ordinances -R5 P MIAMI BEACH • COMMISSION MEMORANDUM TO; Honorable Mayor and Members of the City Commission FROM: City Attorney Ricardo J. Dopico DATE: July 24, 2024 2:20 p.m. Second Reading Public Hearing TITLE: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING SUBPART A, ENTITLED "GENERAL ORDINANCES" OF THE CODE OF MIAMI BEACH, CHAPTER 18, ENTITLED "BUSINESSES," ARTICLE XV, ENTITLED "STREET PERFORMERS AND ART VENDORS," BY AMENDING SECTION 18-906 THEREOF, ENTITLED "REGULATIONS, PROCEDURES, AND PROHIBITIONS,"TO REGULATE SOUND LEVELS PRODUCED BY ANY PERSON IN CLOSE PROXIMITY TO OUTDOOR DINING SEATING, AND PROVIDING FOR REPEALER, SEVERABILITY, , CODIFICATION, AND AN EFFECTIVE DATE. ANALYSIS The proposed Ordinance, which is sponsored by Vice-Mayor Laura Dominguez, is presented to the Mayor and City Commission for their consideration on First Reading. The City has determined that outdoor dining in various areas within the City operated by restaurant businesses willing to operate their outdoor dining operations strictly in a manner that advances the interests of the City, as defined by the City, is desirable, and provides additional dining options for the enjoyment of public and private outdoor areas,thereby enhancing the quality of life for residents and the quality of the visitor experience for the City's tourists, and is a valid public purpose. Outdoor dining in certain designated areas of the city provide a unique environment and ambiance, and an aesthetically pleasing experience for relaxation and food and/or beverage consumption that enhances the sophisticated and mature brand that the City has determined to promote. It is imperative, however, that outdoor dining patrons receive a dining experience at the highest levels of ambiance, service, and quality, befitting the status of a recognized world class, international resort destination like Miami Beach. The City strictly regulates the outdoor dining experience of patrons by requiring an Outdoor Dining Concession Agreement for outdoor dining establishments operating on the public right-of-way, maintaining land use rules and permitting regulations for outdoor dining operations on private property or on City-owned property leased to private parties. One aspect of the outdoor dining experience that the City strictly regulates is sound and noise produced at or near outdoor dining establishments. For instance,Outdoor Dining Concessionaires operating on the public right-of-way are contractually prohibited from having any outdoor speakers and from providing any outdoor entertainment. Similarly, many establishments providing outdoor dining on private property or on City-owned property leased to private parties may not have outdoor speakers or provide live entertainment. Loud, raucous, and unreasonably loud sound produced by street performers and others in the vicinity of outdoor dining establishments interferes with normal conversation by patrons at these Page 1017 of 1750 establishments, diminishes their dining experience, and interferes with the valid public purposes of the City's outdoor dining programs.The use of speakers and other sound amplification devices by street performers and others on the public right-or-way has exponentially increased the sound produced and the negative secondary effects of street performers and other speakers on the dining experience of outdoor dining patrons. The City has attempted to ameliorate the negative secondary effects of loud noise produced by street performers and others in close proximity to outdoor dining establishments without utilizing regulations aimed specifically at enhancing the outdoor dining experience and without prohibiting amplified sound in close proximity to outdoor dining operations, but these efforts have proven ineffective because street performers and others producing loud noise, particularly using speakers and other sound amplification devices, typically turn down their volume when approached by a code compliance officer, but turn the volume back up to unacceptable levels as soon as the code compliance officer leaves the area. In order to maintain the highest standards benefitting outdoor dining patrons, there exists a need for additional regulations and standards for sound produced by street performers and others in close proximity to outdoor dining establishments, particularly sound produced using a speaker or other sound amplification device. Sound produced by street performers and others on the public right-of-way that is louder than that appropriate in close proximity to patrons dining outdoors, including amplified sound, is allowed in many other areas of the City (though always subject to the City's general noise ordinance, land use ordinances, and applicable land use permits), so ample adequate alternative locations are available to those who may not produce loud sound that interferes wit the normal conversation of outdoor dining patrons. This proposed Ordinance regulates all persons producing sound in close proximity to outdoor dining patrons and/or that interferes with the normal conversation of outdoor dining patrons, regardless of the identity of the speaker, the content of the sound, and/or viewpoint of the person regulated. Though street performers utilizing speakers or other sound amplification devices are, in the City's experience, the primary source of interference with normal conversation by outdoor dining patrons, the regulations created in this Ordinance govern all speakers, regardless of their identity, content of their speech, or the viewpoint they may espouse. FISCAL IMPACT STATEMENT N/A Does this Ordinance require a Business impact Estimate? Yes (FOR ORDINANCES ONLY) The Business Impact Estimate (BIE)was published on 7/5/2024. See BIE at: https://www.miamibeachfl.gov/city-hall/city-clerk/meeting-notices/ Applicable Area Citywide Is this a "Residents Right to Know" item, Is this item related to a G.O. Bond pursuant to City Code Section 2-17? Project? Page 1018 of 1750 No No Was this Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481, includes a principal engaged in lobbying? No If so, specify the name of lobbyist(s) and principal(s): Department City Attorney Sponsor(s) Commissioner Laura Dominguez Co-sponsors) Commissioner Alex Fernandez Page 1019 of 1750