Ordinance 2021-4403 ORDINANCE NO. 2021-4403
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE
OF THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "PUBLIC
PROPERTY," BY AMENDING ARTICLE IV, ENTITLED "USES IN PUBLIC
RIGHTS-OF-WAY," BY AMENDING DIVISION 5, ENTITLED "SIDEWALK
CAFES," BY AMENDING SUBDIVISION II, ENTITLED "PERMIT," BY
AMENDING SECTION 82-382 THEREOF, ENTITLED "APPLICATION," BY
ESTABLISHING CRITERIA TO BE UTILIZED IN THE DETERMINATION OF
WHETHER AN APPLICATION, SEEKING ISSUANCE OR RENEWAL OF A
SIDEWALK CAFÉ PERMIT, SHOULD BE APPROVED OR DENIED; AND
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
WHEREAS, the City of Miami Beach (the "City") has authorized the establishment of
sidewalk cafés in order to provide a unique environment for its residents and visitors, which
allows such individuals to relax and enjoy the consumption of food and/or beverage(s)amongst
the City's tropical and vibrant scenery; and
WHEREAS, in order to ensure that sidewalk cafés in the City are operated and maintained,
at the highest levels of quality and service, befitting an internationally renowned resort destination
like the City of Miami Beach, the permitting, operation and maintenance of sidewalk cafes on
public property are governed by the City's Sidewalk Café Ordinance,which is codified in Sections
82-366 through 82-389 of the City Code; and
WHEREAS, those business establishments seeking to operate, or continue operating,
sidewalk cafés on the City's property are subject to certain identifiable standards, criteria and
conditions; and
WHEREAS, the City Commission has previously found that the highest possible
standards, criteria and conditions governing the operation of sidewalk cafés are critical, not only
toward maintaining excellent levels of quality and service, but(among other things)to:(i)preserve
the aesthetic character of the City's right of ways by helping to diminish the proliferation of
unsightly food displays, street furniture, signage,and other visual and physical clutter; (ii) reduce
potential nuisances including, without limitation, excessively loud music, hawking from sidewalk
café operators and their employees to passing pedestrians, and overcrowding of the right of way;
and (iii)aid in the prevention of deceptive, misleading, or bait and switch tactics by sidewalk café
operators; and
WHEREAS, despite merely seeking compliance with those standards, criteria and
conditions required (and expected) of sidewalk café operators, the City continues to expend
significant resources (in terms of both staff time and monetary expenditures) struggling to gain
compliance with, and enforcement of, those regulations pertaining to sidewalk cafés; and
WHEREAS, it is imperative to remain cognizant of the fact that a sidewalk café permit is
a privilege and not a right, and the approval, issuance and continued operation of a sidewalk café
is conditional at all times; and
WHEREAS, even though the City continually grapples with all too many sidewalk café
operators that fail to abide by the standards, criteria and conditions governing sidewalk cafés, the
City has routinely and perfunctorily permitted virtually all business establishments that submit a
new application, or seek renewal thereof, to make use of its governmental property(at a rate far
below market value)for their sidewalk café operations and private gain; and
WHEREAS, as part of its periodic, continuous review of the Sidewalk Café Ordinance, the
City Administration has determined that the addition of identifiable criteria to those provisions
pertaining to the application and renewal of sidewalk café permits, as delineated in Section 82-
382 of the City Code, are necessary to more thoroughly review and evaluate both initial sidewalk
café applications and sidewalk café permit renewals; and
WHEREAS, at its September 15, 2020 meeting, the Police/Citizens Relations Committee
approved a motion that:
i.) expressed its concern regarding the alarming findings of the Sidewalk Café Index
Pilot Phase I (as presented in LTC 170-2020), which reported recurring instances
of overcharging, menu items offered with no price, and aggressive hawking; and
ii.) urged the City Commission to enhance the review process surrounding sidewalk
café permit applications(and renewals)to ensure that the routine issuance of such
permits ceases; and
iii.) request that sidewalk café permits and renewals are issued only to those business
establishments operating consistent with the City Code and all other applicable
regulations and standards of conduct; and
WHEREAS, after discussion at its meeting on December 16, 2020 meeting, the
Neighborhood and Quality of Life Committee (the "NQLC") and City Administration directed the
establishment of certain criteria, which shall be utilized in considering whether an application (or
renewal)of a sidewalk café permit should be issued; and
WHEREAS, at its January 28, 2021, the NQLC unanimously approved the Ordinance,
which sets forth identifiable criteria which shall be considered by the city manager, or designee,
prior to making the determination to approve or deny the issuance of a sidewalk café permit (or
renewal thereof); and
WHEREAS, the amendments set forth below are necessary to accomplish the objectives
identified above.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That those Sections of the City's Sidewalk Café Ordinance, as such Ordinance is
codified in Section 82-382 of the City Code, be amended as follows and as hereinafter set forth
below:
CHAPTER 82
PUBLIC PROPERTY
ARTICLE IV. USES IN PUBLIC RIGHTS-OF-WAY
2
DIVISION 5. SIDEWALK CAFES
* * *
SUBDIVISION II. Permit
* * *
Sec. 82-382.Application.
(a) A sidewalk café permit shall be effective for one year, from October 1 until September 30 of
the following year.
(b) An application for a permit to operate a sidewalk café shall include, but not be limited to, the
following:
(1) The name, address and telephone number of the applicant/permittee.
(2) The name and address of the business establishment/restaurant seeking a permit to
operate the sidewalk café (including the name and address of the restaurant).
(3) A copy of a valid city occupational license to operate the restaurant in front of which the
proposed sidewalk café will be operating. The total count of chairs to be utilized for the
restaurant must include the number of chairs used in conjunction with the sidewalk café
and the number of chairs inside the restaurant, as authorized by the license.
(4) A copy of a valid certificate of use for the restaurant in front of which the proposed
sidewalk café will be operating.
(5) Copies of current certificates of insurance in the amounts and categories required by
section 82-386 hereof.
(6) A site plan signed and sealed by a duly licensed architect or engineer which accurately
depicts the layout and dimensions of the existing sidewalk area and adjacent private
property; proposed location, size and number of tables, chairs, umbrellas, and any other
sidewalk café furniture; and location of doorways, steps, trees and/or landscaped areas,
fountains, parking meters, fire hydrants, bus shelters, directory/kiosks, public benches,
trash receptacles, and any other existing public fixtures, furnishings and/or other
obstruction(s)within the proposed sidewalk café area. The sidewalk café site plan shall
be approved by the city manager prior to the issuance of a sidewalk café permit, and the
permit shall be specifically limited to the subject area shown on the approved site plan.
--
•
(7) Photographs, drawings or manufacturer's brochures fully describing the appearance and
dimensions of all proposed tables, chairs, umbrellas, and any other sidewalk café
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furniture related to the operation of the sidewalk café.Tables, chairs, umbrellas, and any
other sidewalk café furniture shall be approved by the city manager prior to the issuance
of a sidewalk café permit.
(8) A copy of the approved sidewalk café site plan, shall be maintained on the premises of
the business establishment/restaurant with the sidewalk café permit, and shall be
available for inspection by city personnel at all times.
(9) The annual application shall be accompanied by a nonrefundable base application fee
as set forth in appendix A hereof. The nonrefundable base application fee shall not be
required for sidewalk café permit applications submitted to the city in conjunction with
the Washington Avenue Pilot Parklet Program, which program shall terminate on March
31, 2021. Additionally, the nonrefundable base application fee shall not be required for
sidewalk café permit applications submitted to the city for businesses on Washington
Avenue from 6th Street to Lincoln Road, for the period ending on September 30, 2021.
(10)Applications shall be reviewed for compliance with applicable city, state and federal laws,
and must be reviewed and approved by the city's public works department; fire
department; office of risk management; finance department; planning and zoning
department; and building department.
(11) Prior to issuance of a sidewalk café permit, the city's chief financial officer shall certify
that there are no outstanding fines, monies,fees,taxes or other charges owed to the city
by the applicant/permittee and/or the business establishment/restaurant.A sidewalk café
permit will not be issued until all outstanding debts to the city are paid in full.
(12) No sidewalk café permit shall be issued to a restaurant whose occupational license or
certificate of use is limited to take-out service and does not have inside seating.
(13)A sidewalk café permit may not be transferred and/or otherwise assigned. A new owner
and/or operator of a business establishment/restaurant with a sidewalk café permit will
be required to apply for and obtain a new permit. All applications for a sidewalk café
permit (or the renewal thereof) shall be accompanied by an affidavit certifying that no
corporate officer or owner of the applicant/permittee has a history of sidewalk café
violations which would implicate any provision identified in subsection (c)(1)c. herein.
(14)The permit covers only the public right-of-way. Tables and chairs on private property will
be governed by other applicable regulations. No outdoor seating authorized pursuant to
this division shall be used for calculating seating requirements pertaining to location of,
applications for, or issuance of, a liquor license; nor shall the outdoor seating be used as
the basis for computing required seating for restaurants, or as grounds for claiming
exemption from such requirements under the provisions of any applicable city, county,
and/or state law.
(15) Sidewalk cafés shall comply with all applicable accessibility codes including, without
limitation, the Americans with Disabilities Act (ADA), and state code provisions
addressing accessibility for building construction, as same may be amended from time
to time.
(16)A sample menu that will be used by the sidewalk café to display or disclose actual prices
for food and drink menu item(s), or display or disclose actual prices and accurate terms
and conditions for any food and drink menu special(s). The sample menu must display
or disclose the actual price for food or drink menu item(s) or food and drink menu
special(s) (and, if applicable, the accurate terms and conditions for any food and drink
menu special(s)) in a size (font)and typeface that is at least as large as the name of the
menu or food item, and such price (and, if applicable, terms and conditions) must be
displayed adjacent to the name, description, photograph, and/or image of each menu
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item or menu special, except as may be expressly authorized pursuant to the sidewalk
café menu design guidelines adopted by the city commission. All menu prices must be
displayed in numeric format. The name of the restaurant must be prominently displayed
on the menu. Each sidewalk café operator shall submit a sample menu to the city each
year, which must be expressly approved by the city manager prior to each renewal of
the operator's sidewalk café permit.
(17)An affidavit by the sidewalk café applicant that the inclusion of an automatic gratuity or
service charge, either in the price of the meal or drink or separately imposed for all items
ordered, will be disclosed on the menu and the face of the customer's bill and receipt,
and that the total combined percentage and amount of the city, county, and state taxes
will also be stated on the face of the customer's bill and receipt. The affidavit must state
that the notification to the customer of an automatic gratuity or service charge and the
statement of the total combined percentage and amount of city, county, and state taxes
are being included consistent with, and pursuant to, those requirement(s) set forth in
subsections 82-389(b)and (c).
(18) Those applicants for a sidewalk café permit (or renewal of a sidewalk café permit) on
Ocean Drive, between 5th Street and 15th Street, must submit an affidavit certifying that:
a. Every manager and every employee assigned to work in the sidewalk café permit
area has successfully completed a hospitality training program that has been
previously approved by resolution of the mayor and city commission;
b. Within one year of completing such program and each year thereafter, every manager
and every employee assigned to work in the sidewalk café permit area shall
complete an abbreviated version of the same hospitality training program; and
c. Any newly hired manager or employee assigned to work in the sidewalk café permit
area must successfully complete such a hospitality training program.
(19)A fully executed, original sidewalk café code of conduct affidavit, which shall be signed
(and duly notarized under oath by a licensed Florida notary) by an individual who is
legally authorized and empowered to contractually bind the sidewalk café permittee and
the business establishment/restaurant operating the sidewalk café. Such affidavit will
acknowledge that the sidewalk café permittee has agreed to be bound by the sidewalk
café code of conduct, as set forth in section 82-389, including the enhanced penalties
for violation of same, as set forth in subsection 82-371(b) herein.
(c) mar:Criteria to be considered for applications (or renewals)of sidewalk café permits.
it) In addition to the application requirements under Section 82-382 hereof, the following
criteria (which shall supplement, but not supersede any other provision of the city code)
shall also be considered by the city manager, or designee, in the determination as to
whether an initial application for a sidewalk café permit, or the renewal thereof, will be
approved or denied:
a. Violations of the city code issued to the applicant/permittee and/or the business
establishment/restaurant side.
b. Violations of federal, state or county law which may be attributable to the
applicant/permittee and/or the business establishment/restaurant .
c. Whether any corporate officer er=arlaeleal of an applicant/permittee in the immediately
preceding twelve (12) m nth erg iod (each, a "corporate officer ), or any person
owning. directly or indirectly, 10% or more of the applicant/permittee in the
preceding twelve (12) month period (each. an "owner") has a prior history of sidewalk
5
cafe, provioucly copied a cor orato icor or farin-eil=ef a bucinocc that woe iccuoc
sidewalk cafe violations as set forth herein includina:
(i) whether any corporate officer previously served, at any time. as a corporate
officer or owner of any applicant(s)/permittee(s) issued four (4) or more
violations of this division, in the aggregate; or
(ii) whether any owner previously served at any time, as a corporate officer or
owner of any applicant(s)/permittee(s) issued four(4)or more violations of this
division, in the aggregate: or
(iii) whether, notwithstanding (i) or (ii) above. the city manager finds that there
otherwise exists other evidence which indicates that an applicant/permittee has
concealed or attempted to conceal the true ownership interests in an
applicant/permittee. so as to avoid disclosure to the city of any person who. at
any time, previously served as a corporate officer or owner of any
applicant(s)/permittee(s) issued four (4) or more violations of this division, in
the aggregate.
d. Any favorable or unfavorable reviews pertaining to the applicant/permittee and/or
business establishment/res aurant =— _ _- —__ - _ =_
practices, which support either an approval or denial of the sidewalk café permit (or
the renewal thereof)Whirail4fialy=ifle6gie including, but not be limited to, those reviews
found on online web-based platforms, social networking sites or online review sites
such as Yelp, Google or Trip Advisor. Notwithstanding the foregoing, this criterion
shall not be utilized by the city manager,or designee, as the sole basis for the approval
or denial of a sidewalk café permit application (or the renewal thereof).
e. Any verifiable complaints pertaining to the applicant/permittee and/or the business
establishment/restaurant .
f. Any other information which the city manager, or designee, deems to be relevant,
applicable or essential to such determination.
(2) The city manager, or designee, shall provide each applicant/permittee, in writing, with the
rationale which formed the basis for the denial of a sidewalk café permit (or the renewal
thereof), pursuant to the criteria set forth in subsection (c)(1) herein.
Except as provided in subsection (c)(4) herein, no determination by the city manager, or
designee, to deny an application for a sidewalk café permit(or the renewal thereof) shall
prohibit such applicant/permittee from reapplying for a sidewalk café permit
upon at least 12 months having elapsed since the
date of any such denial.
(4) ' - _ . _-_ - -_ -. _ - : , - Any applicant/permittee who has been issued four
or more violations pursuant to this division within the preceding 12 months shall be
prohibited from applying for and obtaining a sidewalk café permit for a period of two
consecutive permit years following the permit year in which the permittee incurred its most
recent violation.
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j A determination by the city manager, or designee, regarding those criteria, as set forth
herein, shall not be subject to appeal pursuant to Section 82-369 or any other provision of
the city code.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 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 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 077 day of rn4rc,k , 2021.
PASSED AND ADOPTED this 17 day of arc lit_ , 2021.
ATTEST: 12-2 /1------,
Dan Gelber, Mayor
73/
Z
Zc.n.-1
Rafael E. Granado, City Cler
(Sponsored by Commissioner Mark Samuelian and Vice Mayor Steven Meiner)
Underline denotes additions .
Strikethreugh denotes deletions
Double underline denotes additions after First Reading
denotes deletions after First Reading
APPROVED AS TO
FORM & LANGUAGE
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Ordinances - R5 B
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
F ROM: Rafael Paz,Acting City Attorney
DATE: March 17, 2021
10:25 a.m. Second Reading Public Hearing
SUBJECT:AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA,AMENDING CHAPTER 82 OF THE CODE OF
THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "PUBLIC PROPERTY,"
BY AMENDING ARTICLE IV, ENTITLED "USES IN PUBLIC RIGHTS-OF-
WAY," BY AMENDING DIVISION 5, ENTITLED "SIDEWALK CAFES," BY
AMENDING SUBDIVISION II, ENTITLED "PERMIT," BY AMENDING
SECTION 82-382 THEREOF, ENTITLED "APPLICATION," BY
ESTABLISHING CRITERIA TO BE UTILIZED IN THE DETERMINATION OF
WHETHER AN APPLICATION, SEEKING ISSUANCE OR RENEWAL OF A
SIDEWALK CAFE PERMIT, SHOULD BE APPROVED OR DENIED; AND
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
RECOMMENDATION
The Administration recommends approval of the Ordinance on Second Reading.
BACKGROUND/HISTORY
The City of Miami Beach(the "City')has authorized the establishment of sidewalk cafés in order
to provide a unique environment for its residents and visitors, which allows such individuals to
relax and enjoy the consumption of food and/or beverage(s) amongst the City's tropical and
vibrant scenery.
In order to ensure that sidewalk cafés in the City are operated and maintained at the highest
levels of quality and service, befitting an internationally renowned resort destination like the City
of Miami Beach, the permitting, operation and maintenance of sidewalk cafes on public property
are governed by the City's Sidewalk Café Ordinance, which is codified in Sections 82-366
through 82-389 of the City Code.
Those business establishments seeking to operate, or continue operating, sidewalk cafés on
the City's property are subject to certain identifiable standards, criteria and conditions.
The City Commission has previously found that the highest possible standards, criteria and
conditions governing the operation of sidewalk cafés are critical, not only toward maintaining
excellent levels of quality and service, but (among other things) to: (i) preserve the aesthetic
Page 503 of 2284
character of the City's right-of-ways by helping to diminish the proliferation of unsightly food
displays, street furniture, signage, and other visual and physical clutter; (ii) reduce potential
nuisances including, without limitation, excessively loud music, hawking from sidewalk café
operators and their employees to passing pedestrians, and overcrowding of the right of way;
and (iii)aid in the prevention of deceptive, misleading, or bait and switch tactics by sidewalk café
operators.
Despite merely seeking compliance with those standards, criteria and conditions required (and
expected) of sidewalk café operators, the City continues to expend significant resources (in
terms of both staff time and monetary expenditures) struggling to gain compliance with, and
enforcement of,those regulations pertaining to sidewalk cafés.
It is imperative to remain cognizant of the fact that a sidewalk café permit is a privilege and not a
right, and the approval, issuance and continued operation of a sidewalk café is conditional at all
times.
Even though the City continually grapples with all too many sidewalk café operators that fail to
abide by the standards, criteria and conditions governing sidewalk cafés, the City has routinely
and perfunctorily permitted virtually all business establishments that submit a new application, or
seek renewal thereof, to make use of its governmental property (at a rate far below market
value)for their sidewalk café operations and private gain.
As part of its periodic, continuous review of the Sidewalk Café Ordinance, the City
Administration has determined that the addition of heightened, identifiable criteria to those
provisions pertaining to the application and renewal of sidewalk café permits, as delineated in
Section 82-382 of the City Code, are necessary to more thoroughly review and evaluate both
initial sidewalk café applications and sidewalk café permit renewals.
At its September 15, 2020 meeting, the Police/Citizens Relations Committee approved a
motion that:
i.) expressed its concern regarding the alarming findings of the Sidewalk Café
Index Pilot Phase I (as presented in LTC 170-2020), which reported recurring
instances of overcharging, menu items offered with no price, and aggressive
hawking; and
ii.) urged the City Commission to enhance the review process surrounding
sidewalk café permit applications (and renewals) to ensure that the routine
issuance of such permits ceases; and
iii.) request that sidewalk café permits and renewals are issued only to those
business establishments operating consistent with the City Code and all other
applicable regulations and standards of conduct.
After discussion at its meeting on December 16, 2020 meeting, the Neighborhood and Quality
of Life Committee (the "NQLC") and City Administration directed the establishment of certain
heightened criteria,to be utilized in considering whether an application (or renewal)of a sidewalk
café permit should be issued.
At its January 28, 2021, the NQLC unanimously approved the draft Ordinance, which set forth
Page 504 of 2284
identifiable criteria to be considered by the City Manager, or their designee, prior to making the
determination to approve or deny the issuance of a sidewalk café permit (or renewal
thereof). The Committee members made a motion to move the Ordinance to the full Commission for
approval.
At its February 10, 2021 meeting, the City Commission was presented with the Ordinance for
consideration, and adopted as amended. Such amendment established that, any favorable or
unfavorable reviews pertaining to the sidewalk café applicant, shall not be the sole basis for the
approval or denial of a sidewalk café permit application(or the renewal thereof).
In addition to the above, pursuant to the discussion and concerns of the City Commission,
additional amendments were made (as summarized below), and are included in the Ordinance
for second reading:
Sec. 82-382. (b)(13), adding a provision which requires that all sidewalk café applications
shall be accompanied by an affidavit certifying there is no previous history of sidewalk café
violations.
Sec. 82-382. (c)(1)c, by further clarifying the criteria regarding those corporate officers or
owners who may have previously served as a corporate officer or owner of a sidewalk café
permittee which was issued four(4)or more violations of this division.
Sec. 82-382 (c)(3), by specifying that an applicant/permittee that has been denied a
sidewalk café permit by the City Manager is not prohibited from reapplying after at least 12
months have passed since the date of such denial.
SUPPORTING SURVEY DASA
Results from the 2019 Resident Survey show that 69% of resident's perception of the City with
regards to overall quality of City services rated as very satisfied, satisfied. In order to continue
maintaining excellent standards in this area, the Administration is considering amending its
Sidewalk Cafe Ordinance.
CONCLUSION
The Administration recommends approval of the Ordinance on Second Reading.
Applicable Area
Citywide
Is this a"Residents Right Does this item utilize G.O.
to Know" item, pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Strategic Connection
Prosperity - Market and promote Miami Beach as a world class arts, culture, and quality
entertainment destination.
Legislative Tracking
Public Works
Page 505 of 2284
Sponsor
Commissioner Mark Samuelian and Commissioner Steven Meiner
ATTACHMENTS:
Description
2nd Reading Ordinance, form approved
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