ALCOHOL HOURS OF SALE - 2:00 A.M. CITYWIDE 

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 AND SERVICE OF ALCOHOLIC BEVERAGES FOR ON-PREMISES CONSUMPTION AT ALCOHOLIC BEVERAGE ESTABLISHMENTS, AND ESTABLISH A PROCEDURE FOR DETERMINATIONS OF VESTED RIGHTS; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.

At the request of Commissioner Mark Samuelian, the attached Ordinance has been placed on the April 6, 2022 City Commission meeting agenda for First Reading. The Ordinance amends the hours of sale for alcoholic beverage establishments set forth in Chapter 6 of the City Code. Specifically, the Ordinance:

  (i)   adopts a Citywide 2:00 a.m. termination time for the sale and service of alcoholic beverages for on-premises consumption; and

  (ii) creates 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 alcohol hours of sale.

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.

In addition to the City’s express statutory authority, relevant case law supports the City Commission’s legislative discretion to modify alcohol hours of sale:

• Florida courts have determined that it is within the police power for a municipality to change the hours of sale of alcoholic beverages, because municipalities have the statutory authority under Section 562.14, Florida Statutes, to restrict the sale of alcohol. Village of North Palm Beach v. S & H Foster’s, Inc., 80 So. 3d 433 (Fla. 4th DCA 2012).

• In State ex rel. Floyd v. Noel, 124 Fla. 852 (Fla. 1936), the Florida Supreme Court recognized that “[i]t is so well settled that no citation of authority is required to support the statement that a municipality exercising the powers inherent in municipal corporations may reasonably regulate the sale of intoxicating liquors and in providing such reasonable regulations may prohibit the sale of such liquors within certain hours, and also may prohibit the sale of liquors within certain zones.”

• The Florida Attorney General has opined that a municipality may regulate (1) the hours of sale, (2) locations in which alcoholic beverages may be sold, and (3) the sanitary conditions under which alcoholic beverages may be dispensed or served to the public. Op. Att’y Gen. Fla. 59-73 (1959).

• In fact, the Florida Attorney General has opined that different hours may be provided for different areas in a local ordinance, provided there is reasonable relation to the health, safety, and morals of the community. Op. Att’y Gen. Fla. 50-288 (1950).

• Florida courts have consistently held that alcoholic beverage establishments are not entitled to grandfather status as to hours of sale for alcoholic beverages. See S & H Foster’s, Inc.; Other Place of Miami, Inc. v. City of Hialeah Gardens, 353 So. 2d 861 (Fla. 3d DCA 1978).

• Courts have denied injunctive relief against the enforcement of a municipal ordinance regulating the time at which alcoholic beverages may be sold, because municipalities have the statutory authority to set times for sale of alcoholic beverages. Id.; Playpen S., Inc. v. City of Oakland Park, 396 So. 2d 830 (Fla. 4th DCA 1981).

• The vast majority of Florida courts have also ruled that hours of operation are not a property right. S. Daytona Rests., Inc. v. City of S. Daytona, 186 So. 2d 78 (Fla. 1st DCA 1966).

Notwithstanding the City’s statutory authority to regulate alcohol hours, the Circuit Court has enjoined the City from enforcing two 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). 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. 

In order to address potential challenges by alcoholic beverage establishments, the City Attorney’s Office has incorporated a procedure to adjudicate claims by individual establishments that they are vested as to specific hours of sale. A summary of the procedure is as follows:

• Appointment, qualifications, and term. The Ordinance authorizes the City Commission to appoint a dedicated Special Magistrate for the specific purpose of adjudicating applications for a determination of vested rights as to alcohol hours of sale. The Ordinance establishes minimum qualifications and provides for a term of one (1) year.

•  Claims must be filed within 1 year of adoption of the Ordinance.

• An applicant would need to satisfy the following criteria in order to substantiate its eligibility for a determination of vested rights:

(a) An active order of the Planning Board, an active order of the Board of Adjustment, or other active development order issued by the City, expressly authorizes the alcoholic beverage establishment to conduct alcohol sales for on-premises consumption during specified hours;

(b) In good faith reliance upon such prior order, the applicant has made a substantial change in position or incurred extensive contractual obligations and financial expenses; and

(c) It would be highly inequitable to interfere with the acquired right.

In accordance with Florida law, no right to conduct alcohol sales at certain hours may be determined to have vested as a result of the adoption of an ordinance by the City Commission. The Special Magistrate shall therefore be required to dismiss any application that relies solely upon a previously enacted ordinance of the City Commission.

• Appeals. An aggrieved party, including the City Administration, may appeal a decision of the Special Magistrate to the Circuit Court by Petition for Writ of Certiorari. Any appeal of a decision of the Special Magistrate shall be based on the record before the Special Magistrate.