ALCOHOL HOURS OF SALE - OUTDOORS WEST AVENUE

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, FLORIDA, ENTITLED "ALCOHOLIC BEVERAGES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 6-3 THEREOF, ENTITLED "HOURS OF SALE/VIOLATIONS," TO ADOPT UNIFORM HOURS FOR THE OUTDOOR SALE AND SERVICE OF ALCOHOLIC BEVERAGES FOR ON-PREMISES CONSUMPTION AND CONSUMPTION AT SIDEWALK CAFES AT ALCOHOLIC BEVERAGE ESTABLISHMENTS LOCATED ALONG WEST AVENUE, BETWEEN 5TH STREET AND LINCOLN ROAD (INCLUDING SIDE STREETS), AND CREATE A VESTED RIGHTS PROCEDURE; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.

Following First Reading, the Ordinance has been revised at the sponsor’s request to apply only to alcoholic beverage establishments located between Biscayne Bay on the west, the eastern boundary line of properties fronting West Avenue on the east, the 5th Street right-of-way on the south, and the Lincoln Road right-of-way on the north. Specifically, the Ordinance provides that alcoholic beverages shall not be offered for sale or on-premises consumption outdoors between the hours of 2:00 a.m. and 8:00 a.m. each night.

Applicable Law
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. 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).

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 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 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.

Notably, this Ordinance is different from any other alcohol hours legislation adopted in recent years by the City Commission, in that this amendment would only limit alcohol service outdoors, in the predominantly residential West Avenue neighborhood. If the Ordinance is adopted, alcoholic beverage establishments with an active BTR permitting alcohol service until 5:00 a.m. would continue to hold a 5:00 a.m. BTR. However, in light of the disproportionate impact of alcohol service outdoors on neighboring residents’ quality of life, both new and existing establishments would be required to terminate outdoor service at 2:00 a.m. each night.

This Ordinance, as amended, would not conflict with the alcoholic beverage regulations for this part of the City in the LDRs, which apply primarily to properties along the west side of Alton Road. Accordingly, no companion LDR amendment is required.