Ordinances - R5 K
|TO:||Honorable Mayor and Members of the City Commission|| |
|FROM:||Alina T. Hudak, City Manager|| |
|DATE:||April 28, 2023|
2:30 p.m. Second Reading Public Hearing
ALCOHOL HOURS OF SALE - ART DECO CULTURAL DISTRICT
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 6 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED “ALCOHOLIC BEVERAGES,” ARTICLE I, ENTITLED “IN GENERAL,” BY AMENDING SECTION 6-3 THEREOF, ENTITLED “HOURS OF SALE/VIOLATIONS,” TO AMEND THE HOURS OF SALE OF ALCOHOL FOR ON-PREMISES CONSUMPTION AT ALCOHOLIC BEVERAGE ESTABLISHMENTS; ESTABLISH A PROCEDURE TO APPLY FOR EXTENDED HOURS OF SERVICE; IDENTIFY ELIGIBLE ESTABLISHMENTS; CREATE APPLICATION REQUIREMENTS; PROVIDE FOR RENEWALS; ESTABLISH MINIMUM PERFORMANCE STANDARDS, CRITERIA, AND CONDITIONS; PROVIDE FOR PENALTIES, ENFORCEMENT, AND APPEALS; AND CREATE A REPORTING REQUIREMENT; BY CREATING SECTION 6-3.1, ENTITLED “RESPONSIBLE VENDOR QUALIFICATION,” TO ESTABLISH CRITERIA FOR AN ALCOHOLIC BEVERAGE ESTABLISHMENT TO QUALIFY AS A RESPONSIBLE VENDOR; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
|The Administration recommends that the City Commission open and continue this Ordinance to June 28, 2023.|
|On November 2, 2021, pursuant to Resolution No. 2021-31824, the following ballot question was submitted to the City’s voters:|
Non-Binding, Straw Ballot Question: Citywide - Changing Alcoholic
Beverage Establishments Sales/Consumption Termination Time
City law allows, subject to exceptions, the sale and consumption of alcoholic beverages at Alcoholic Beverage Establishments throughout the City, from 8:00 a.m. until 5:00 a.m. the following day.
Would you support changing this 5:00 a.m. termination time to 2:00 a.m. throughout the City, with specific locations and related restrictions and exceptions, to be determined by City Commission by Ordinance?
The ballot question was approved by 56.52% (7,302) of the City’s voters.
Florida law grants municipalities broad authority to regulate the sale of alcoholic beverages. Specifically, Section 562.14, Florida Statutes, expressly authorizes municipalities to establish hours of sale for alcoholic beverages by ordinance:
562.14 Regulating the time for sale of alcoholic and intoxicating beverages; prohibiting use of licensed premises.—
(1) Except as otherwise provided by county or municipal ordinance, no alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed in any place holding a license under the division between the hours of midnight and 7 a.m. of the following day. [ . . . ]
Under State Law, the termination time for the sale and service of alcoholic beverages for on-premises consumption is 12:00 midnight, except as otherwise provided by local ordinance. The City has, within its express authority to set alcohol hours of sale that are different from State Law, adopted a 5:00 a.m. termination time for the sale of alcoholic beverages for on-premises consumption. This 5:00 a.m. termination time is set forth in Chapter 6 of the City Code.1
Notwithstanding the City’s statutory authority to regulate alcohol hours, and the substantial body of case law that businesses are not vested as to hours, the Circuit Court enjoined the City from enforcing two (2) separate alcohol hours ordinances in the case of Clevelander Ocean LP v. City of Miami Beach (Fla. 11th Jud. Cir. Ct. Case No. 2021-11642-CA-01).
On June 21, 2021, the Circuit Court enjoined the City from enforcing Ordinance No. 2021-4413 (terminating alcohol sales and consumption at 2:00 a.m. in the MXE district for a defined period of time). The City appealed and, on March 2, 2022, the Third District Court of Appeals (DCA) declined to rule on the part of the appeal relating to the alcohol rollback, finding that the issue was moot, since the ordinance expired on its own terms in December 2021.
On March 2, 2022, the Circuit Court entered an order enjoining the City from enforcing Ordinance No. 2022-4472 (terminating alcohol sales and consumption at 2:00 a.m. in South Beach during the Spring Break 2022 High Impact Period).
Both ordinances expired on their own terms before a ruling on the merits by the Third DCA could be obtained.
Although Florida courts have for decades consistently held that businesses are not vested (or “grandfathered”) as to alcohol hours of service, and that municipalities have the authority to adopt legislation changing alcohol hours (including as to existing establishments), we anticipate that adoption of this proposed ordinance will be challenged, and that the issue of vested rights will need to be litigated. To this end, at least one establishment in the subject area (Clevelander Ocean LP) has challenged prior alcohol legislation enacted by the City Commission (namely, Ordinance No. 2021-4413 and Ordinance No. 2022-4472).
The attached proposed ordinance, as revised by the sponsor following First Reading, impacts the same geographic area that was subject to the rollback in Ordinance No. 2021-4413 (properties along Ocean Drive and Collins Avenue, between 5th Street on the south and 16th Street on the north). While the City Attorney’s Office believes that the City Commission has the authority to establish different hours of sale for different areas of the City, it is likely that any challenge to this ordinance will be heard by the same Court that has twice rejected the City’s efforts to regulate alcohol hours, twice expressed an expansive view of property rights, and twice scrutinized the geographic boundaries of the City’s alcohol rollbacks, notwithstanding established case law.
Accordingly, if the ordinance is challenged by an affected alcoholic beverage establishment, the litigation will likely not be resolved unless and until the Third DCA rules on the important question of whether alcohol legislation impacting specific geographic areas may be adopted as (i) a business regulation, on a 4/7ths vote, or (ii) a zoning amendment, on a 5/7ths vote following review by the Planning Board.
1. The City Commission has also, by Ordinance, adopted exceptions to the 5:00 termination time, for sidewalk cafes (sale must terminate at 1:30 a.m. and consumption by 2:00 a.m.), during major event weekends and holidays (sale and service at eligible establishments may continue until 7:00 a.m., subject to conditions), and in specified geographic areas (2:00 a.m. in the South of Fifth neighborhood, and along Alton Road, West Avenue, and 41st Street).
On January 12, 2022, a special City Commission was held to discuss hours for the sale of alcoholic beverages for consumption on premises. The Administration developed and presented draft options to the City Commission on January 12, 2022, which were predicated upon a full rollback to 2:00 a.m. for all establishments Citywide.
After a lengthy discussion at the January 12, 2022 meeting, the City Commission requested that the Administration and the City Attorney draft a First Reading ordinance, in accordance with the following general direction:
• Locate all regulations pertaining to hours for onsite consumption within Chapter 6 of the City Code.
• Further study the geographic boundaries proposed under option 4 and provide additional geographic boundaries for consideration by the City Commission.
• Further study incorporating elements of option 3 into the revised geographic boundaries.
• Include a defined application process, as well as minimum operational criteria and performance standards, for all areas where extend hours of alcohol sales would occur.
PLANNING AND LEGAL ANALYSIS
After the January 12, 2022, meeting, Mayor Gelber agreed to sponsor the revised legislation drafted in response to the direction of the City Commission. The proposed draft ordinance, which was considered at First Reading on February 9, 2022, consisted of City-wide legislation relating to hours of sale for alcoholic beverages and is consolidated within Chapter 6 of the City Code. This allowed for better consistency in the application of hours of operation for all types of alcoholic beverage establishments. Additionally, the City’s legal position is that there are no “vested rights” with regard to an operator's entitlement to hours of sale for alcoholic beverages.
The proposed ordinance created a uniform, city-wide prohibition on the sale of alcoholic beverages for consumption on premises from 2:00 a.m. to 8:00 a.m., 7 days a week. Additionally, the proposed draft legislation creates a process for extended hours of sale of alcohol (not past 5:00 a.m.) and contained two primary components:
1. The establishment of specific geographic areas of the city for which extended hours for the sale of alcohol may occur.
2. The creation of performance standards and operational criteria for all establishments seeking extended hours of alcohol sales for on premise consumption.
Pursuant to the direction of the City Commission, the Administration identified additional geographic areas for consideration. The following are the potential geographic areas that were identified in the original draft Ordinance for extended hours of alcohol sales for on premise consumption:
1. Oceanfront hotels with more than 200 rooms.
2. East Collins. Those properties located east of Collins Avenue, south of 46th Street and north of 15th Street.
3. Lower Washington Avenue. Those properties fronting Washington Avenue, between 5th Street and Lincoln Road.
4. Collins Park. Those properties located within the area bounded by 19th Street on the south, Liberty Avenue on the west, Collins Avenue on the east and 21st Street on the north.
5. Normandy Drive. Those properties fronting the south side of Normandy Drive or the north side of 71st Street, between Rue Notre Dame on the west and Rue Vendome on the east.
6. Art Deco Cultural District. Those properties bounded by 5th Street on the south, Collins Court on the west, Ocean Drive on the east and 16th Street on the north.
7. Lower Alton Road. Those properties, fronting Alton Road from 8th Street to Collins Canal.
8. Lincoln Road. Those properties fronting Lincoln Road from Washington Avenue to Collins Avenue.
The Administration previously recommended that the City Commission discuss these proposed geographic areas, as well as any additional defined geographic areas, to reach consensus.
Performance Standards and Operational Criteria
The following is a general summary of the application and performance criteria, as well as enforcement and minimum distance separation requirements, all of which would be applicable to any establishment deemed eligible to request extended hours for the sale of alcoholic beverages for consumption on premises. The draft ordinance contains more specific details.
1. For extended hours, alcoholic beverages may only be served or consumed on premises after 2:00 a.m. within fully enclosed (air-conditioned) areas of a building. No alcoholic beverages may be sold or consumed after 2:00 a.m. within any open or outdoor areas of a building including, without limitation, patios, terraces, rooftops, courtyards, or any areas of a building or property with open windows, doors, or storefronts.
2. A minimum distance separation requirement of 500 feet between establishments with an extended hours approval is proposed. This minimum distance separation would not apply to those establishments licensed to sell alcohol beverages after 2:00 a.m. that were issued a business tax receipt (BTR) prior to April 1, 2022.
3. If entertainment is proposed, soundproof glass windows and a double-door vestibule shall be required, and windows and doors must remain closed after 2:00 a.m. Notwithstanding, certain exceptions to this requirement, based upon extenuating circumstances, will be identified. This requirement shall not apply to entertainment establishments located entirely within hotels, with no direct entrance from the street.
4. Application requirements, including a sworn affidavit, signed by the applicant, acknowledging and agreeing to comply with all applicable provisions of the City Code, pertaining to extended hours requirements, have been developed. Additionally, a security plan, crowd control plan, floor plan showing all security cameras and a minimum number of security personnel or off-duty police officers that must be on premises during extended hours will be required.
5. A detailed record of compliance, pertaining to the preceding one-year period, and ensuring that there have been no violations of applicable laws and regulations, will be required.
6. All applications for extended hours will be subject to approval and renewal annually, by the City Manager or designee.
7. As a condition of applying for an extended hours approval, the applicant shall agree to provide access to areas of a property subject to extended hours approval (not including private residences or hotel rooms) for inspection by the City (including the City’s Police, Code Compliance, Building, and Fire Departments) to ensure compliance with all applicable regulations. Any refusal to provide access under this paragraph will be deemed a violation of this subsection 6-3(a)(3)(E).
8. Separate, enhanced penalties and fines for violations of any applicable provisions relating to extended hours are included.
9. Provisions for a responsible vendor qualification are proposed.
The application and operational requirements included in the original draft version of the ordinance provided a framework for effectively administering an extended hours process. More importantly, they provided tangible and measurable criteria to address public safety.
The Administration and the City Attorney’s developed the application and operational criteria in consultation with outside counsel. While this draft criterion is measurable and defensible, additional study and analysis, as well as input from stakeholders, would be beneficial. More importantly, a detailed fiscal impact analysis will still need to be performed and completed once a framework for these criteria have been approved by the City Commission. It is anticipated that the administration of this process will likely require additional staffing.
To ensure that the criteria applicable for all extended hours establishments has been well vetted, it is recommended that the City Commission discuss the proposed criteria. If there is consensus on establishing criteria, it is further recommended that the City Commission provide appropriate policy direction and continue the proposed ordinance to a future date.
The subject ordinance was approved at First Reading on February 9, 2022, with the following direction:
1. Include all the performance and geographic exemptions with requirements.
2. Collins Park boundaries to be modified as follows: Those properties are located within the area bounded by 19th Street on the south, Liberty Avenue on the west, Collins Avenue on the east, and 21st Street on the north.
3. Delete (a)(1) and remove oceanfront hotels with a minimum of 200 units and amend (b)(1) to say: East Collins - Those hotels with a minimum of 200 rooms east of Collins Avenue, south of 46th Street, and north of 15th Street.
4. Add the area of 65th to 75th Streets (Vice-Mayor Richardson’s Item 7) - Collins Avenue north - those properties fronting Collins Avenue from 65th Street 75th Street, including a capacity limit of 100 patrons.
5. Include a 2:00 a.m. with no exceptions for the 41st Street area.
6. Leave Item (7) Lincoln Road unchanged (Those properties fronting Lincoln Road from Washington Avenue to Collins Avenue). Add new subsection (8): Including properties fronting Lincoln Road from Washington Avenue to Jefferson Avenue, subject to capacity restriction.
7. Further study a potential exemption for restaurants that have a certain amount of food versus liquor.
8. Normandy Drive: Amend the geographic area, not the capacity.
9. East Collins Avenue: Oceanfront hotels will be combined with the east of Collins Avenue geographic area and consist of those hotels with a minimum of 200 rooms located east of Collins Avenue and south of 46th Street and north of 15th Street.
10. Delete subsection pertaining to Lower Washington Avenue.
11. Remove subsection (5) pertaining to the ADCD.
12. Remove subsection (6) pertaining to Lower Alton Road.
13. Provide that extended hours of approval only apply to existing establishments and not prospectively to any new establishment.
UPDATE FOR SECOND READING ON APRIL 28, 2023
At the request of the item sponsor, the following updates and modifications have been included in the draft ordinance for Second Reading:
• The ordinance has been revised so that the proposed rollback would apply only to alcoholic beverage establishments within the area bounded by 5th Street on the south, Euclid Avenue on the west, the Atlantic Ocean on the east, and 16th Street on the north. Within these boundaries, the sale or service of alcoholic beverages would be prohibited after 2:00 a.m. each night.
• Notwithstanding the above, properties along Washington Avenue, between 5th Street and 16th Street, would be eligible to apply for extended hours approval, subject to the detailed application requirements and performance standards in the attached ordinance, which were presented to the City Commission at First Reading.
Additionally, consistent with all other alcohol hours legislation pending before the City Commission, the ordinance also includes a vested rights procedure for a dedicated special magistrate, appointed by the City Commission, to adjudicate applications by individual establishments claiming that they are vested as to certain hours of sale.
SUPPORTING SURVEY DATA
|Improving and Enhancing Residents Quality of Life|
|Depending upon the extent of performance standards and operational criteria that may be adopted, a detailed fiscal impact analysis will still need to be performed and completed should a framework for these criteria be approved by the City Commission. The implementation and administration of the proposed performance standards and operational criteria will require additional staffing.|
|In view of the foregoing, the Administration recommends that the proposed ordinance be continued to a date certain of June 28, 2023. In the event that the City Commission elects to consider adoption of the ordinance, the Administration would recommend the following:|
1. The City Commission discuss the proposed ordinance and reach consensus on applicable geographic boundaries, as well as performance standards and operational criteria, prior to adopting any version of the legislation.
2. The City Commission consider the fiscal and budgetary implications of any applicable performance standards and operational criteria, prior to adopting any version of the legislation.
|Is this a "Residents Right to Know" item, pursuant to City Code Section 2-14?|| ||Does this item utilize G.O. Bond Funds?|
|Yes|| ||No|| |
Planning/Office of the City Attorney