R5Q-Amend Ch 70 Alcoholic Beverages Containers At Sidewalk Cafes -Grieco-t915.2015
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OFFICE OF THE CITY ATTORNEY
RAUL I. AGUILA, CITY ATTORNEY COMMISSION MEMORANDUM
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From:
Mayor Philip Levine
Members of the City Commission
Date: June 10, 2015
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Subject: AN ORDINANCE OF THE MAYOR AND Clry COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE CODE OF THE
CITY OF MIAM! BEACH, ENTITLED "MISCELLANEOUS OFFENSES," ARTICLEll, ENTITLED "PUBLIC PLACES," DIVISION 3, ENTITLED "ALCOHOLIC
BEVERAGES," By AMENDTNG SECTTON 70-87 THEREOF TO (1) GLARTFY
THAT THE CONSUMPTION, SERVICE, SALE, OR POSSESSION OF OPEN
CONTAINERS OF ALCOHOLIC BEVERAGES AT SIDEWALK CAFES IS ONLY
PERMITTED DURING THE HOURS SET FORTH IN CHAPTER 6 OF THE GITY
coDE, (2) CLARIFY THAT ALCOHOLTC BEVERAGE ESTABLTSHMENTS SHALL
NOT ALLOW ANY PERSON TO TAKE FROM THE PREMISES ANY OPENED
ALCOHOLIC BEVERAGE CONTAINER OR ANY OPEN OR UNSEALED
coNTAtNER OF ALCOHOLTC BEVERAGES, AND (3) AMEND THE
ENFORCEMENT AND PENALry PROVISIONS; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
lntroduction
Pursuant to the request of Commissioner Michael Grieco, the attached Ordinance is submitted
for consideration by the Mayor and City Commission. The Ordinance amends Section 70-87 ot
the City Code to increase (1) the criminal penalties against persons who consume, serve, sell,
or possess an open container of any alcoholic beverage on or in any public place; (2) the civil
fines against owners or operators of package stores or foodstores selling alcoholic beverages
who fail to post a warning sign regarding the City's open container regulations; and (3) the civil
fines against alcoholic beverage establishments that allow any person to take from the licensed
premises any opened beer, wine, liquor, or any other alcoholic beverage container, or any
glass, metal, plastic, or other open or unsealed container of beer, wine, liquor, or any other
alcoholic beverage.
Section 70-87 of the City Code
Section 70-87 is comprised of three major provisions. The first provision, Subsection (aX1),
makes it unlawful for any person to consume, serve, sell, or possess an open container of any
Asenda ltem RS(l:
Date 6-lO-li511
Amendments to Open Container Ordinance
June 10,2015
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alcoholic beverage on or in any public place within the city, except in those areas designated
and approved for such use by the City Manager or the City Commission, including but not
limited to sidewalk cafes, public property leased from the City by a private entity and licensed by
the City for such use, and areas temporarily designated for such use by the City by the issuance
of a valid special event permit.
Subsection (a)(2) requires that owners or operators of package stores and foodstores that sell
alcoholic beverages prominently post, on the outside of each entrance and on the inside of the
main customer exit of each package store or foodstore that sells alcoholic beverages, a sign
with contrasting letters at least one-half inch tall, stating the following:
IT IS UNLAWFUL FOR ANY PERSON TO CONSUME, SELL,
SERVE, OR POSSESS AN OPEN CONTAINER OF ANY
ALCOHOLIC BEVERAGE ON/IN ANY PUBLIC PLACE, ALLEY,
STREET, SIDEWALK, PARK, BEACH, OR OTHER SUCH PLACE
WITHIN THE CITY OF MIAMI BEACH UNLESS DESIGNATED
FOR SUCH PURPOSE BY THE CITY. VIOLATORS ARE
SUBJECT TO CRIMINAL PROSECUTION.
Subsection (aX3) states that it shall be unlaMul for any owner, operator, agent, or employee of
any alcoholic beverage establishment to knowingly allow any person to take from the licensed
premises any opened beer, wine, liquor, or other alcoholic beverage container, or to knowingly
allow any person to take from the licensed premises any glass, metal, plastic, or other open or
unsealed container of beer, wine, liquor, or any other alcoholic beverage.
Proposed Amendment
The attached Ordinance amends Subsection (aX1) to clarify that the consumption, service, sale,
or possession of open containers of alcoholic beverages at sidewalk cafes is only permitted
during the hours set forth in Chapter 6 of the City Code, entitled "Alcoholic Beverages."
The Ordinance amends Subsection (a)(3) to clarify that alcoholic beverage establishments shall
not allow any person to take from the premises any opened beer, wine, liquor, or any other
alcoholic beverage container, or any glass, metal, plastic, or other open or unsealed container
of beer, wine, liquor, or any other alcoholic beverage. The effect of this particular amendment is
that an alcoholic beverage establishment may be issued a notice of violation for violating
Subsection (aX3) whether or not the alcoholic beverage establishment knowingly allowed a
person to take from the premises an opened alcoholic beverage container.
The Ordinance also increases the penalties for violations of Section 70-87. First, the Ordinance
increases the criminal penalties for violations of subsection (aX1), from a fine not to exceed
$50.00 or imprisonment not to exceed 10 days, to a fine not to exceed $250.00 or imprisonment
not to exceed 30 days, or both, for a first violation. The Ordinance increases the penalties for
any subsequent violation from a fine not to exceed $300.00 or imprisonment not to exceed 30
days, to a fine not to exceed $500.00 or imprisonment not to exceed 60 days. Subsection (aX1)
shall be enforced by the Police Department.
Second, the Ordinance increases the civil penalties for violations of subsection (aX2) and (a)(3)
from a per diem fine of up to $250.00 or $500.00 for repeat violations. The Ordinance increases
the penalties to a civil fine of $1,000.00 for a first violation within a 12-month period; $2,000.00
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Amendments to Open Container Ordinance
June 10,2015
Page 3
for a second violation within a 12-month period; $3,000.00 for a third violation within a 12-month
period; and $5,000.00 for a fourth or subsequent violation within a 12-month period. Upon a
finding by the special master that four (4) or more violations have occurred within a 12-month
period, the special master shall suspend or revoke the violator's certificate of use, business tax
receipt, or certificate of occupancy.
A citation under Section 6-3 may be appealed to the City's Special Master within 10 days of
service of the notice of violation. The failure of a named violator to appeal a violation shall
constitute a waiver of the violator's right to appeal, and shall be treated as an admission of the
violation. The special master shall not hear the merits of a notice of violation or consider the
timeliness of a request for appeal if a violator fails to request a hearing within ten days of the
service of the notice of violation. Additionally, the special master shall not be authorized to alter
the penalties prescribed in Subsection (c)(1) or (c)(2).
RA/Nl(sc
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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, ENTITLED..MISCELLANEOUS OFFENSES," ARTICLE II, ENTITLED "PUBLIC
PLACES," DIVISION 3, ENTITLED "ALCOHOLIC BEVERAGES," BY
AMENDTNG SECTTON 70-87 THEREOF TO (r) CLARTFY THAT THE
CONSUMPTION, SERVICE, SALE, OR POSSESSION OF OPEN
CONTAINERS OF ALCOHOLIC BEVERAGES AT SIDEWALK CAFES
!S ONLY PERMITTED DURING THE HOURS SET FORTH IN
CHAPTER 6 OF THE CITY CODE, (21 CLARTFY THAT ALCOHOLIC
BEVERAGE ESTABLISHMENTS SHALL NOT ALLOW ANY PERSON
TO TAKE FROM THE PREMISES ANY OPENED ALCOHOLIG
BEVERAGE CONTAINER OR ANY OPEN OR UNSEALED
coNTAtNER OF ALCOHOLTC BEVERAGES, AND (3) AMEND THE
ENFORCEMENT AND PENALry PROVISIONS; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE
DATE.
WHEREAS, the unauthorized consumption, service, sale, and possession of open
containers of alcoholic beverages in public places within the City disturbs the quiet enjoyment of
the community, causes undesirable noise, and contributes to litter, noxious odors, and the
general degradation of the City of Miami Beach (the "City"); and
WHEREAS, Section 70-87 of the City Code prohibits the consumption, service, sale,
and possession of open containers of alcoholic beverages on or in public places within the City,
except in those areas as designated and approved for such use by the City Manager or the City
Commission; requires that the owner or operator of any package store or foodstore selling
alcoholic beverages prominently post a warning sign regarding the City's open container
regulations; and provides that it shall be unlawful for any owner, operator, agent, or employee of
any alcoholic beverage establishment to knowingly allow any person to take from the licensed
premises any opened beer, wine, liquor, or other alcoholic beverage container, or any glass,
metal, plastic, or other open or unsealed container of beer, wine, liquor, or any other alcoholic
beverage; and
WHEREAS, it is in the best interest of the City, and it serves the health, safety, and
welfare of the City's residents and visitors, to increase (1) the criminal penalties against persons
who consume, serve, sell, or possess an open container of any alcoholic beverage on or in any
public place; (2) the civil fines against owners or operators of package stores or foodstores
selling alcoholic beverages who fail to post a warning sign regarding the City's open container
regulations; and (3) the civil fines against alcoholic beverage establishments that allow any
person to take from the premises any opened beer, wine, liquor, or any other alcoholic beverage
container, or any glass, metal, plastic, or other open or unsealed container of beer, wine, liquor,
or any other alcoholic beverage; and
WHEREAS, enforcement of this Ordinance by the City's Police Department and Code
Compliance Department will protect the health, safety, welfare, and quality of life of the
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residents and visitors of the City of Miami Beach; and
WHEREAS, the amendments set forth below are necessary to accomplish the above
objectives.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That Division 3 of Article ll of Chapter 70 of the Code of the City Miami Beach is
hereby amended as follows:
GHAPTER 70
MISGELLANEOUS OFFENSES
ARncL; n. - PUBLTc puces
DIVISION 3. ALCOHOLIC BEVERAGES
Sec. 70-87. Consumption, serice, *," ""0 po""""",on of open containers of alcoholic
beverages on or in public places; warning signs required.
(a) Violations.
(1) lt shall be unlawful for any person to consume, serve, sell, or possess an open
container of any alcoholic beverage on or in any public place within the city except in
these areas as designated and apBreved fer sueh use by the eity manager er the eity
the followinq areas:
a. Sidewalk sidewalk cafes having a valid city sidewalk cafe permit -_dudnq 'lhe-hours
at which alcoholic beveraoes mav be consumed at sidewalk cafes pursuant to
chapter 6 of this Code:
b. Publi€ public property leased from the city by a private entity and licensed by the
city for such use-.; engl
c. A#ees areas temporarily designated for such use by the city by the issuance of a
valid special event permit.
(2) The owner or operator of any package store or foodstore selling alcoholic beverages
shall prominently post, on the outside of each entrance and on the inside of the main
customer exit of each package store or foodstore selling alcoholic beverages, a sign
with contrasting letters at least one-half inch tall, stating the following:
IT IS UNLAWFUL FOR ANY PERSON TO CONSUME, SELL, SERVE, OR
POSSESS AN OPEN CONTAINER OF ANY ALCOHOLIC BEVERAGE ON/IN
ANY PUBLIC PLACE, ALLEY, STREET, SIDEWALK, PARK, BEACH, OR OTHER
SUCH PLACE WITHIN THE CITY OF MIAMI BEACH UNLESS DESIGNATED
FOR SUCH PURPOSE BY THE CITY. VIOLATORS ARE SUBJECT TO
CRIMINAL PROSECUTION.
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Failure to post this sign shall be deemed a violation of this section. This sign shall be
exempt from permit requirements of Chapter 138 of this Code.
(3) lt shall be unlawful for any alcoholic
beverage establishment
to knewingty allow any person to take from the
li€ensed premises any opened beer, wine, liquorr or anv other alcoholic beverage
container, or to knewingJy allow any person to take from the lieensed premises any
glass, metal, plastic, or other open or unsealed container of beer, wine, liquor, or any
other alcoholic beverage erenymi;.*ure{hereef.
(b) Penalties for violations of subsection (a)(1).
(1) Any person convicted of a violation of subsection (a)(1) of this sectlon shall
be punished by imposition of a fine not to exceed $5OSO $250.00 or by imprisonment
not to exceed 4e 30 days, or both, for a first offense. Upon any subsequent conviction
for violation of subsection (a)(1) of this section, such person shall be punished by
imposition of a fine not to exceed $30e€e $500.00, or by imprisonment not to exceed
3g 60 days, or both.
vielatiens as previded in ehapter 30 ef this Cede, Any eede inspeeter whe has
vielatien te the eperater and/er ewner; as previded in ehapter 30 ef this Cede; requiring
@
(c) Penalties for violations of subsections (a)(2) and (a)(3).
1. The followinq penalties shall be imposed for a violation of subsections (aX2) and
(aX3):
j. The penaltv for the first violation bv a person or entitv within a 12-month
period shall be a civil fine of $ 1.000.00:
ii. The penaltv for the second violation bv a person or entitv within a 12-
month period shall be a clvil fine of $ 2.000.00:
iii. The penaltv for the third violation bv a person or entitv within a 12-month
period shall be a civil fine of $ 3.000.00:
iv. The penaltv for the fourth or subsequent violation bv a person or entitv
within a 12-month period shall be a civil fine of $ 5.000.00.
2. Enhanced penaltv. The followino enhanced penaltv shall be imposed, in addition
to anv mandatorv fines set forth in subsection (cX1) above. for violations of
subsections (aX2) or (aX3):
L Upon a findinq bv the special master that four (4) or more violations bv a
person or entitv have occurred within a 12-month period. the special
master shall suspend or revoke the certificate of use. business tax receipt,
or certificate of occupancv of the violator.
3
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3. Enforcement. The code compliance department shall enforce subsections (aX2)
and (aX3). This shall not preclude other law enforcement aqencies or reoulatorv
bodies from anv action to assure compliance with this section and all applicable
laws. lf a code compliance officer (which, as defined in section 70-66. includes a
police officer) finds a violation of this section, the code compliance officer shall
issue a notice of violation in the manner prescribed in chapter 30 of this Code. 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 pavinq the fine, that the
violation mav be appealed bv requestino an administrative hearino before a
special master within ten (10) davs after service of the notice of violation, and that
the failure to appeal the violation within ten (10) davs of service shall constitute an
admission of the violation and a waiver of the riqht to a hearinq.
4. Riqhts of violators: pavment of fine: rioht to appear: failure to pav civil fine or to
appeal; appeals from decisions of the special master.
j" A violator who has been served with a notice of violation must elect to
either
A. pav the civil fine in the manner indicated on the notice of
violation: or
B. request an administrative hearino before a special master
to appeal the notice of violation. which must be requested
within ten (10) davs of the service of the notice of violation.
ii. The procedures for appeal bv administrative hearino of the notice of
violation shall be as set forth in sections 30-72 and 30-73 of this Code.
Applications for hearinos must be accompanied bv a fee as approved bv a
resolution of the citv commission, which shall be refunded if the named
violator prevails in the appeal.
iii. lf the named violator. after issuance of the notice of violation. fails to pav
the civil fine, or fails to timelv request an administrative hearino before a
special master, the special master mav be informed of such failure bv
report from the officer. The failure of the named violator to appeal the
decision of the officer within the prescribed time period shall constitute a
waiver of the violator's rioht to an administrative hearinq before the special
master, and shall be treated as an admission of the violation. for which
fines and penalties shall be assessed accordinolv.
iv. A certified copv of an order imposino a fine mav be recorded in the public
records, and thereafter shall constitute a lien upon anv real or personal
propertv owned bv the violator. which mav be enforced in the same
manner as a court iudqment bv the sheriffs of this state, includinq lew
aqainst the violator's real or personal propertv, but shall not be deemed to
be a court iudoment except for enforcement purposes. On or after the
sixtv-first (61st) dav followinq the recordino of anv such lien that remains
unpaid. the Citv mav foreclose or otherwise execute upon the lien.
517
v. Anv partv aqqrieved bv a decision of a special master mav appeal that
decision to a court of competent iurisdiction.
vi. The special master shall be prohibited from hearino the merits of the notice
of violation or considerino the timeliness of a request for an administrative
hearinq if the violator has failed to request an administrative hearinq within
ten (10) davs of the service of the notice of violation.
vii. The special master shall not have discretion to alter the penalties
prescribed in subsection (cX1) or (cX2).
$ECTTON 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION 3. SEVERABILITY.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall 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
Code of the City of Miami Beach, Florida. 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 shalltake effect on the day of 2015.
PASSED AND ADOPTED this _ day of 2015.
ATTEST:
Philip Levine, Mayor
Rafael E. Granado, City Clerk
(Sponsored by Commissioner Michael Grieco)
Underline denotes additions
S+it<e+nreush den otes deletions
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(2015).docx
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