AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 142 “ZONING DISTRICT REGULATIONS;” AMENDING ARTICLE 1, “IN GENERAL” TO BE ENTITLED “GENERAL TO ALL ZONING DISTRICTS;” AT SECTION 142-1 TO BE ENTITLED: “GAMBLING AND CASINOS USES ARE PROHIBITED IN THE CITY OF MIAMI BEACH;” PROHIBITING MAIN, CONDITIONAL AND ACCESSORY USES RELATING TO GAMBLING AND CASINOS; PROVIDING FOR EXEMPTIONS UNDER STATE LAW; PROVIDING FOR CODIFICATION; REPEALER; SEVERABILITY; AND AN EFFECTIVE DATE.

The Administration recommends that the City Commission adopt the Ordinance.

BACKGROUND

On May 3, 2017, at the request of Commissioner Joy Malakoff, the City Commission referred Comprehensive Plan and Land Development Regulation amendments pertaining to casino gambling to the Planning Board for consideration.

On May 12, 2017, the City Commission approved the Comprehensive Plan Amendment and Land Development Regulations Amendment at first reading. A second reading public hearing for the Comprehensive Plan amendment was set for July 26, 2017 to allow time for required state reviews.

PLANNING ANALYSIS
This legislative session, the Florida Legislature considered bills that would have allowed for the expansion of slot machines and casino gambling. One of the proposals would have allowed for one casino of a scale similar to those in Las Vegas, Nevada or Atlantic City, New Jersey in counties that have three or more pari-mutuel facilities with casinos. Miami-Dade County currently has four such facilities.

Additional proposals for the bills would have required that the additional casino be located a minimum of five miles from any existing pari-mutuel facilities (See attached map identifying five mile buffers around the existing pari-mutuel facilities). Due to the location of existing pari-mutuels, this requirement would prevent the casino from being located in the urban core of the City of Miami, but would have made the coastal municipalities as the probable location for consideration of a casino. Ultimately, the bill did not pass during the session; however, there is always the possibility of special sessions or for new bills to be introduced in future legislative sessions. It is, therefore, important that the City’s Comprehensive Plan and Land Development Regulations address casinos in the event that the State Legislature allows an expansion of gambling or casinos at some point in the future.

Under Article VIII, Section 2(b) of the Florida Constitution and the Municipal Home Rule Powers Act, municipalities “shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.” See Section 166.021(1), Florida Statutes. The City is well within its home rule powers, and its police powers, to adopt the zoning and comprehensive plan amendments contemplated herein.

It is important to note that should the Florida Legislature expressly preempt the field of gambling via a legislative act, the City’s comprehensive plan amendment and zoning ordinance prohibiting gambling could be surpassed (preempted) by the legislative action. Florida courts have consistently held that a license to offer gambling, including pari-mutuel wagering, slot machine gambling, or a card room at a pari-mutuel facility, is a privilege rather than a vested right, that requires strict supervision and regulation in the best interests of the state.

Many studies have demonstrated that casinos feed gambling addictions, which have many serous effects on those with the addiction and their families. These include loss of jobs, failed relationships and severe debt. These can lead to mental health issues, including depression, mood disorders, anti-social personality disorders, and more.

It is widely understood that large-scale casino operations can overpower non-gambling businesses, and that casinos combined with hotels tend to become isolated all-inclusive facilities. This encourages guests to remain on the premises, thus limiting their shopping and dining in other establishments within the City.

Since casinos have been permitted in Atlantic City, New Jersey in the late 1970’s, many restaurants and retail businesses along the City’s main street in its downtown, Atlantic Avenue, have shuttered. For those that have not shuttered, the quality of retail has been reduced. The design of casinos in Atlantic City is intended to keep guests indoors, so that they spend their time gambling and spending money within the casino, as opposed to seeing the City’s other attractions, such as its Boardwalk and Downtown. Additionally, between 2014 and 2016, five casinos closed in Atlantic City, indicating that the all-inclusive casinos are suffering from increased competition from other regions and lower disposable incomes among the socio-economic groups that tend to frequent casinos.

Miami Beach has a robust tourist market that supports many independent restaurants, cultural, and retail establishments throughout many different areas of the City. As a result, if a casino is allowed in Miami Beach, there is great potential for it to overpower these establishments severely limiting the number of tourists that would be walking through the City and supporting its businesses.

The City of Miami Beach has a long-standing policy against casino gambling in Florida. The City Commission has adopted the following resolutions against casinos: 2017-29846, 2014-28529, 2011-27812, 2008-26927, and 2008-26925. The proposed ordinances would formalize this policy within the Comprehensive Plan and Land Development Regulations by prohibiting Casinos and Gambling in all future land use and zoning districts within the City of Miami Beach. The proposed ordinance defines gambling as the playing or engaging in any game of cards, keno, roulette, faro, or other game of chance, at any place, by any device, whatever, for money or other thing of value; however, it provides for certain exceptions from the definition of gambling for existing common practices as follows:

1) The Lottery;
2) Penny-ante games;
3) Condominium associations, cooperatives, homeowners, associations, charitable, nonprofit or veteran organizations authorized to hold drawings by chance, drawings, or raffles;
4) Game promotion in connection with the sale of consumer products or services; and
5) Bowling tournaments.

^[1] See Sec. 550.1625(1), Florida Statutes; see also Solimena v. State, 402 So. 2d 1240, 1247 (Fla. 3d DCA 1981), rev. denied, 412 So. 2d 470 (citing State ex rel. Mason v. Rose, 165 So. 347 (Fla. 1936)); Carroll v. State, 361 So. 2d 144, 147 (Fla. 1978) (“[t]here is no constitutional right to conduct a gambling business”).

PLANNING BOARD REVIEW
On May 11, 2017, the Planning Board transmitted the subject ordinance to the City Commission with a favorable recommendation.


UPDATE
On May 12, 2017, the City Commission approved the proposed amendment to the Land Development Regulations and the Comprehensive Plan with the following addition to the “whereas” clauses:

WHEREAS, Florida Department of Transportation Level of Service Maps show that the City’s causeways and some of our principal arterials are failing or borderline failing; and

Additionally, the Mayor has suggested that the following language be added to the proposed ordinance to require a six sevenths (6/7ths) majority of the City Commission in order to approve less stringent regulations related to gambling in the future:

Any amendment to this section 142-2 (including the repealer thereof), which would create a less stringent regulation on gambling or any of the uses listed herein, shall require an affirmative vote of 6/7ths of the City Commission.

The Administration recommends that the City Commission adopt the Ordinance, inclusive of the following additional text, which has been incorporated into the Ordinance:

Any amendment to this section 142-2 (including its repeal), which would create a less stringent regulation on gambling or any of the uses listed herein, shall require an affirmative vote of 6/7ths of the City Commission.

As required by Section 5.02 of the City Code, the Administration has considered proposed legislative action by the State of Florida associated to the expansion of Gaming and Casinos which could potentially be located in the City of Miami Beach, and found that:

1. There are no Casinos located in the City of Miami Beach;

2. The City of Miami Beach enjoys a robust tourism industry, high-value residential neighborhoods, and an active and profitable commercial community;

3. The City of Miami Beach has consistently met its budgetary responsibilities, and any purported financial benefit that may arise from the expansion of Gaming and Casinos in the City of Miami Beach is not necessary or required to meet its current or future five year financial obligations.