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HomeMy WebLinkAboutBack-Up DocumentsJuly 12, 2021 SENT VIA EMAIL Juvenal Santana Director of Public Works City of Miami 444 SW 2" d Ave. Miami, Florida 33130 Jsantanagmi ami gov.com Re: IKE Smart City, LLC Dear Mr. Santana: MARC D. SARNOFF PARTNER Shutts £t Bowen LLP 200 South Biscayne Boulevard Suite 4100 Miami, Florida 33131 DIRECT (305) 415-9072 FAX (305) 347-7715 EMAIL MSarnoff@shutts.com The purpose of this memorandum is to request that IKE Smarty City, LLC ("IKE") and its kiosks (the "Kiosks") which were approved by the City of Miami (the "City") Commission on April 23, 2020, be considered a distributor and modular newsracks, respectively, as those terms are defined in Section 54-261 of the City's Code of Ordinances (the "City Code"). As you are aware, the City and IKE entered into a contract on August 1, 2020 (the "Contract"), which provides in its "Exhibit B" that the Kiosks may display applications as determined by the Director of Public Works and Resiliency (the "Director") and IKE. As set forth herein, IKE's request that you make a determination that IKE is a distributor and the Kiosks are modular newsracks is consistent with the Contract, a fully executed copy is enclosed with this memorandum for your ready reference, and the City Code. Pursuant to City Code Section 54-262(b), the Director may initiate a modular newsrack pilot program, including appropriate standards, on a case -by -case basis provided the program is consistent with all the provision of Article VII, Chapter 54 of the City Code for newsracks and other pertinent city rules, regulations, and policies. Miami -Dade County (the "County") reads the listed six structures that afford advertising in Section 337.408, Florida Statutes, as the sole and exclusive structures allowed on County rights of way, thereby utilizing the Latin expression expressio unius est exclusio alterius or when one or more things are expressed it is to the exclusion of all others. Bear in mind we are not seeking to place any of the Kiosks in unincorporated County area. The Kiosks would be installed exclusively in the City's jurisdiction, however, on the County's right of way. As a result, we are merely seeking a County permit — we are neither procuring nor asking for rights other than those already provided by the City or the Florida Department of Transportation ("FDOT") (as Assistant County Attorney Dennis Kurbel was clear on this issue). The County will not review newsracks under its section of the code as it restricts its analysis to unincorporated County. See County Code Section 2-130.17(5) ("Public right-of-way shall mean rights -of -way in the unincorporated area of Miami -Dade County"). Equally, and more importantly, Section 337.408, Florida Statutes, vests the City with the sole authority to designate newsracks: Section "(3) Modular newsracks, including advertising thereon, may be located within the right-of-way limits of any municipal, county, or state road, except a limited access highway, provided the municipal government within whose incorporated limits such racks are installed or the county government within whose unincorporated limits such racks are installed has passed an ordinance shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH Juvenal Santana Director of Public Works City of Miami July 12, 2021 Page 2 regulating the placement of modular newsracks within the right-of-way and has authorized a qualified private supplier of modular newsracks to provide such service. The modular news rack or advertising thereon shall not exceed a height of 56 inches or a total advertising space of 56 square feet." (emphasis added). Based on the emphasized language above, the County is required to defer to the City's newsrack ordinance in this case and, as shown in the diagram attached hereto as Exhibit "A", the Kiosks comply with the above -referenced size requirements. Furthermore, as you are aware, FDOT does not designate the Kiosks as signs but as a "specific information panel," exempting it from the signage in Chapter 479, et seq. , of the Florida Statutes. City Code Section 54-262(b) provides the Director with the discretion to initiate a modular newsrack pilot program consistent with other City rules, regulations, and policies. Pursuant to the Code, the discretion shall be exercised in accordance with the maintenance and preservation of the press and the exercise of the "maximum duty to cooperate with distributors." Section 54-262 is included below for easy reference. Sec. 54-262. - Purpose and criteria. (a) The purpose of the following is to promote the public health, safety and welfare through the regulation of placement, type, appearance, servicing, and insuring of newsracks on public rights -of -way so as to: (1) Provide for pedestrian and driving safety and convenience. (2) Restrict unreasonable interference with the flow of pedestrian or vehicular traffic including ingress into or egress from any residence or place of business, or from the street to the sidewalk by persons exiting or entering parked or standing vehicles. (3) Provide for public and property safety during hurricane conditions. (4) Provide reasonable access for the use and maintenance of poles, posts, traffic signs or signals, hydrants, mailboxes and access to locations used for public transportation purposes. (5) Eliminate, relocate and/or replace newsracks which result in a visual blight. To avoid excessive space allocation for newsracks on the public rights -of -way and eliminate newsracks which unreasonably detract from the aesthetics of adjacent store window displays, landscaping and other improvements. (6) Facilitate the removal of abandoned newsracks. (7) Maintain and protect the values of surrounding properties. (8) Eliminate and avoid unnecessary exposure of the public to personal injury or property damage. (9) Treat all newspapers equally regardless of their size, content, circulation, or frequency of publication. (10) Maintain and preserve freedom of the press. (11) Cooperate to the maximum with distributors. (12) Protect the city from related lawsuits by imposing insurance and indemnification requirements on persons placing newsracks on public rights -of -way. (b) The director may initiate a modular newsrack pilot program, including appropriate standards, on a case by case basis provided the program is consistent with all of the shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH Juvenal Santana Director of Public Works City of Miami July 12, 2021 Page 3 provisions of this article for newsracks, unless otherwise noted, and other pertinent city rules, regulations and policies. City Code Sections 54-262(a)(1) through (12), inclusive, provide the criteria under which the Director determines on a case -by -case basis whether the pilot program promotes the health safety and welfare through the placement type, appearance, servicing and insuring of newracks on the public right of ways. We believe that the Kiosks meet or exceed such criteria because the Kiosks: ■ Were approved to provide a pedestrian experience (i.e., subsection (a)(1)); ■ Are being placed to restrict unreasonable interference from the flow of pedestrians or vehicular traffic from residences or businesses (i.e., subsection (a)(2)); ■ Provide for public safety by announcing evacuation routes and public service announcements during hurricane warnings (i.e., subsection (a)(3)); ■ Are specifically designed to provide access to public transportation by providing real-time information for all mass transit, ride share and bike share opportunities (i.e., subsection (a)(4)); ■ Are the definition of the removal of visual blight (i.e., subsection (a)(5)); ■ Though beauty is in the eye of the beholder, we suspect you have to be impressed with the aesthetics of the Kiosks now deployed in Wynwood and we know the business owners are more than satisfied as we have been receiving numerous requests for placements and would gladly share the letters of support we have received thus far (i.e., subsection (a)(7)); ■ Edges are unique and well-rounded eliminating unnecessary personal injury potential (i.e., subsection (a)(8)); ■ The News Application will provide a diverse amount of content from newspapers, periodicals and other sources treating all newspapers equally regardless of their size, content and circulation, or frequency of production — thereby maintaining a free press (i.e., subsections (a)(9) and (10)); and ■ Finally, as you can see in the Contract, we carry the requisite amount of insurance dictated by Risk (i.e., subsection (a)(12)). The determination that Kiosks are modular newsracks is consistent with other City rules, regulations, and policies, and will afford the maximum deployment of Kiosks in accordance with the City's overall kiosk program as well as the Contract. Please see below a brief analysis of the applicable law. Newsracks• The software update for IKE to provide a custom on -screen application with QR Codes to download newspapers or news from any source is the modern-day version of a newsrack. IKE performs the functions commonly associated with newsracks for purposes of placement to achieve a County permit on County rights of way within the City. Almost all newsrack distributors have prevailed in challenges due to the strict scrutiny standard courts must apply to governmental restrictions to the First Amendment and the press. The City requirements are found in Section 54-261, et seq. The definitions and relevant sections are as follows: Distributor means the person, individual, partnership, corporation, association, firm, company, organization or any other legal entity owning or responsible for placing and/or maintaining a newsrack in a public right-of-way. shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH Juvenal Santana Director of Public Works City of Miami July 12, 2021 Page 4 Modular newsrack means a newsrack, as defined herein below, that is designed with multiple separate enclosed compartments and/or to accommodate at any one time the display, sale and distribution of multiple distinct and separate newspapers or other publications and is subject to all of the provisions of this article as a newsrack. In accordance with Section 54-262 of the City Code, the Director may initiate a modular newsrack "pilot program" which is subject to other pertinent City rules, regulations, and policies. The kiosk program found in Chapter 54 is a newer expression of the rules, regulations, and policies for the City and the Director's determination that they can serve a dual purpose of modular newsracks to afford the County the comfort to provide a permit to IKE as a City distributor is in accordance with City rules, regulations and polices as expressed by the City Commission and signed into law on April 23, 2020, by the Mayor. We are asking for a meeting for the week of July 12' to confirm your support for our approach to procuring the County permit. Thank you, Marc D. Sarnoff MDS/mg MIADOCS 22586042 2 shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH EXHIBIT "A" KIOSK DIAGRAM FLAGSHIP w,`. ART NU56UM good aftemoo�i. er '�°' °'" �taP 9�eai rla�� en mwml I% DailyNA News n �S Daily News Appikation Daily News Application Once Opened shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH