ALCOHOL HOURS OF SALE OUTDOORS-PS DISTRICTS SOUTH OF FIFTH STREET

AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 142, “ZONING DISTRICTS AND REGULATIONS,” ARTICLE II, “DISTRICT REGULATIONS,” DIVISION 18, “PS PERFORMANCE STANDARD DISTRICT,” SECTION 142-693, “PERMITTED USES,” TO AMEND PERMITTED HOURS FOR THE OUTDOOR SALE, SERVICE, AND CONSUMPTION OF ALCOHOLIC BEVERAGES AT ALCOHOLIC BEVERAGE ESTABLISHMENTS LOCATED SOUTH OF FIFTH STREET, INCLUDING ANY NECESSARY AMENDMENTS TO EXISTING EXCEPTIONS; AND PROVIDING FOR REPEALER, CODIFICATION, SEVERABILITY, AND AN EFFECTIVE DATE.

PLANNING AND LEGAL ANALYSIS
The South of Fifth neighborhood is composed of a mix of multifamily residential buildings of varying scales with commercial districts interspersed throughout. Within this neighborhood, residential uses are often immediately adjacent to commercial districts.

The City Code permits restaurant and bar uses within the PS Performance Standard zoning districts, which, absent mitigation and appropriate regulation, could be incompatible with adjacent residential uses in the South of Fifth neighborhood. Entertainment is prohibited in the South of Fifth neighborhood. Permitted uses, however, do include large restaurants, stand-alone bars, as well as outdoor food and beverage service, where alcoholic beverages are sold and consumed.  

To limit the potential impacts on residential uses, on November 9, 2016, the City adopted Ordinance No. 2016-4054, which prospectively limited the hours of operation of alcoholic beverage establishments in PS Performance Standard Districts located south of 5th Street (See map attached to this report), with certain exceptions, to 2:00 a.m. Operations in outdoor or open-air areas were required to cease no later than 12:00 a.m. each night. Previously, establishments were permitted to remain open until 5:00 a.m. The Ordinance exempted from the new indoor 2:00 a.m./outdoor 12:00 a.m. termination times any alcoholic beverage establishments with a valid BTR that was in application status or issued prior to June 28, 2016; or an establishment that had obtained approval for an alcoholic beverage establishment from a land use board, and which land use board order was active and had not expired prior to June 28, 2016.

Due to the impacts from some of the pre-existing alcoholic beverage establishments, it is now recommended that the exemption only apply to indoor portions of portions of such establishments. To this end, the proposed ordinance amends the regulations for PS Districts located south of Fifth Street, to clarify that the existing exemption from the 5:00 a.m. termination time for alcoholic beverage establishments with a BTR or land use board order issued prior to June 28, 2016 is not applicable to outdoor or open-air areas of alcoholic beverage establishments. The proposed ordinance also clarifies that the 2:00 a.m. restriction is for sale and consumption of alcoholic beverages.

Florida law grants municipalities broad authority to regulate the sale of alcoholic beverages. In the exercise of that authority, municipalities may prohibit the sale of alcohol within certain hours and/or within certain zoning districts. Specifically, Section 562.14, Florida Statutes, authorizes municipalities, by ordinance, to establish hours of sale for alcoholic beverages. Florida courts have consistently held that alcoholic beverage establishments are not entitled to “grandfather” status as to hours of sale for alcoholic beverages.1  Accordingly, the City has the authority to adopt the proposed legislation.

1. See Village of North Palm Beach v. S & H Foster’s, Inc. (Fla. 4th DCA 2012); Other Place of Miami, Inc. v. City of Hialeah Gardens (Fla. 3d DCA 1978).

PLANNING BOARD REVIEW
The Planning Board held a public hearing on May 24, 2022 and transmitted the Ordinance to the City Commission with a favorable recommendation (6-0).

SUMMARY
The subject ordinance was originally scheduled for First Reading on June 22, 2022 and was deferred to a later date. Following transmittal by the Planning Board, the sponsor has revised the termination time to 2:00 a.m. for alcohol sales in outdoor or open-air areas of alcoholic beverage establishments that were issued a BTR or land use board order prior to June 28, 2016, and which BTR or land use board approval is active and has not expired. Consistent with all other alcohol hours legislation pending before the City Commission, the ordinance has also been revised to include 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.

In light of potential conflicts with similar ordinances specific to alcohol sales in the South of Fifth neighborhood, which are also pending before the City Commission, the Administration recommends that these ordinances be discussed, and any conflicts resolved prior to adoption.