HomeMy WebLinkAboutO-13611City of Miami
Legislation
Ordinance: 13611
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 16-00708 Final Action Date: 6/23/2016
AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER
31/ARTICLE II/SECTION 48 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS
AMENDED ("CITY CODE"), ENTITLED "LOCAL BUSINESS TAX AND
MISCELLANEOUS BUSINESS REGULATIONS/LOCAL BUSINESS TAX
("BTR")/REVOCATION; SUSPENSION", IN ORDER TO SIMPLIFY THE
REVOCATION PROCESS AND TO PROVIDE A MORE EFFICIENT AND
EFFECTIVE PROCESS FOR THE REVOCATION AND SUSPENSION OF A BTR;
FURTHER AMENDING CHAPTER 31/ARTICLE II/SECTION 49 OF THE CITY
CODE, ENTITLED "LOCAL BUSINESS TAX AND MISCELLANEOUS BUSINESS
REGULATIONS/LOCAL BUSINESS TAX ("BTR")/BTR ENFORCEMENT", TO
PROVIDE FOR A MORE EFFECTIVE AND EFFICIENT ENFORCEMENT PROCESS;
CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, Chapter 31, Article II, Section 48 of the Code of the City of Miami, as amended ("City
Code"), entitled "Local Business Tax and Miscellaneous Business Regulations/Local Business Tax
("BTR")/Revocation; Suspension", provides the mechanism by which a Business Tax Receipt ("BTR")
may be revoked or suspended; and
WHEREAS, the time increments and hearing requirements do not provide for a quick and efficient
resolution for a business deemed to have violated the requirements of maintaining a valid BTR; and
WHEREAS, it is in the best interests of the residents of the City of Miami that issues regarding
alleged violations of BTR licensure requirements are dealt with in an efficient and effective manner;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the preamble to this Ordinance are adopted by
reference and incorporated as if fully set forth in the Section.
Section 2. Chapter 31, Article II, Section 48 of the City Code is amended in the following
particulars: {1}
"CHAPTER 31
LOCAL BUSINESS TAX AND MISCELLANEOUS BUSINESS REGULATIONS
ARTICLE II. LOCAL BUSINESS TAX (BTR)
City of Miami
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File Number: 16-00708 Enactment Number: 13611
Sec. 31-48. Revocation; suspension.
(a) The city manager or designee shall deny the application for a BTR, or revoke the BTR of any
individual, partnership, or other incorporated or unincorporated business entity holding a BTR under
this article where it is determined by the city manager or designee, after a hearing, that:
(1) The BTR holder and/or owner of the property has materially misrepresented or failed to
include the information required by this article to be included in the BTR application form;
(2) The BTR holder and/or owner of the property, subsequent to being issued a BTR, has been
convicted of or has pled guilty to a violation of a law of this state, or ordinance of the county or
ordinance of the city, which violation occurred as a part of the main business activity of the BTR
holder and/or owner of the property and not merely incident thereto;
(3) The BTR holder and/or owner of the property is conducting business from premises which do
not possess a valid and current certificate of occupancy issued by the department of planning,
building and zoning;
(4) The BTR holder and/or owner of the property is conducting business from premises which do
not possess a valid and current certificate of use issued by the department of planning, building
and zoning;
(5) The BTR holder and/or owner of the property is conducting business from the proposed
premises and is not in compliance with a zoning ordinance or other city ordinance;
(6) Conduct is occurring at the complied premises, which conduct constitutes a breach of the
peace by threatening the safety and welfare of the patrons at said premises or the general public
and which conduct is recurring;
(7) The BTR holder and/or owner of the property has obtained a permit, certificate or BTR for the
complied premises, including a BTR issued pursuant to this article, by misleading and/or
deceptive information or making false statements that were relied upon by the city or an employee
operating in an official capacity in issuing the above -mentioned permit(s), certificate(s), or BTR; or
(8) The BTR holder and/or owner of the property, subsequent to being issued a BTR, has had a
permanent injunction in the form of an order and final judgment entered against said BTR holder
and/or owner of the property enjoining restraining or preventing the BTR holder and/or owner of
the property from exhibiting, showing, selling, lending, or transmitting any motion picture film(s),
book(s), magazine(s), videotape(s) or other material that has been found to be obscene, lewd,
lascivious, filthy or indecent pursuant to F.S. ch. 847, or construed, after said material(s) has
undergone an adversary judicial hearing as required by law.
(b) (1) Upon issuance of a code enforcement citation alleging a violation affecting the health and
safety of the community, Tthe city attorney Code Compliance Director shall notify in writing the city
manager or designee of any violation of the enumerated grounds for revocation of a BTR contained
in subsection (a) hereof this Ordinance. Upon said notification, the city manager or designee shall
schedule an appellate hearing for the BTR holder and/or owner of the property at I st 15 days from
but within 30 days ten (10) days of the date of such notification to the city manager or designee. The
city manager or designee shall notify in writing, at least five (5) days in advance of the appellate
hearing, the BTR holder and the city attorney's office owner of the property of the date, time and
place of said appellate hearing and the specific charges that have caused the said revocation notice
to be sent. Said revocation notice and notice of appellate hearing shall be sent to the BTR holder and
owner of the property by registered mail, return receipt requested, to the property owner's address
and the business address listed on the BTR, or said revocation notice and notice of appellate hearing
may be perfected upon any employee of said business by any city police officer, BTR inspector or
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authorized process server at the business address listed on the BTR. At said appellate hearing, the
BTR holder and/or owner of the property shall be given the opportunity to be represented by an
attorney, to make a record of the hearing by the use of a court reporter, to call witnesses, to present
documentary evidence, and to otherwise properly present his position or defense prove their appeal
as to why the BTR should not remain in a revoked status.
(2) Upon the receipt of the registered mail notice of the appellate hearing as described in Section
31-48(b)(1) of the City Code to the BTR holder (or upon perfecting notice upon any employee of
the BTR holder's business) and owner of the property, the BTR shall be considered revoked or
suspended as designated in the notice from the City Manager or designee.
(c) A revocation under this section shall extend for the BTR duration of the period, cept as
provided in section 31 27 herein, at which time a new application must be submitted. Said period of
time revocation shall begin to run from the date the revocation notice was sent order -is entered by -
hearing, the city manager or designee. shall render the determination, in writing, stating whether the
BTR shall be revoked or suspended. The decision must be based on a preponderance of the
evidence and the city manager or designee and the same is filed with the city clerk. The written
determination of the city managerdesignee shall be final, binding and conclusive. An appeal there
from may be taken to a court of competent jurisdiction.
(d) All appellate revocation hearings shall be conducted in the following manner before a special
master:
(1)The proceedings shall be as informal as is compatible with the essential requirements of the
law.
(2) The admission of evidence shall be governed by the special master city manager -Of -designee
shall not apply. Evidence is to be admitted at the discretion of the city manager -Of -designee
special master consistent with generally accepted legal principles governing the admission of
evidence in administrative proceedings.
(3) The BTR holder and/or owner of the property may be represented by counsel; the city may
be represented by the city attorney or other counsel retained at the discretion of the city
attorney.
(4) The burden of proof being on the city BTR holder and/or owner of the property, the order of
presentation of evidence shall be as follows:
a. The parties shall be entitled to present oral argument at the opening and at the closing
of the hearing.
b. The city shall present its evidence in support of the revocation of the BTR.
Gb. The BTR holder and/or owner of the property, as appellant, has the burden of proof
and shall produce such evidence as it may wish to offer in opposition to the continued
revocation of the BTR.
c. The City shall have the opportunity to present any evidence in support of maintaining the
revocation of the BTR.
d. The city BTR holder and/or owner of the property may offer rebuttal testimony.
(5) Within 15 5 (five) days of At the close of the hearing, the city manages designee special
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master shall render the determination, in writing, stating whether the BTR shall remain be
revoked or suspended or not. The decision must be based on competent substantial a -
preponderance of the evidence and otherwise consistent with principles of law.
(6) Upon rendition of the determination in any appellate revocation or suspension hearing, the
city manageresignee special master shall file the determination with the city clerk Office of
Hearing Boards and shall cause a true and correct copy of the order to be sent by registered
mail, return receipt requested,regular mail to the business address listed on the BTR or to any
such other address as the BTR holder shall designate in writing and the owner of the property.
The order may also be served upon any employee of said business by any city police officer,
BTR receipt inspector or authorized process server at the business address listed on the BTR. It
may also be handed to the BTR holder and/or owner of the property at the hearing.
{e) The BTR holder shall be placed upon notice that the BTR has been revoked or suspended when
notification of revocation or suspension signed by the city manager or designee has been sent by
registered mail, return receipt requested, to the business address listed on the BTR, or where said
notification has been served upon any employee of the said business by any city police officer, BTR
Inspector or authorized process server at the business address listed on the BTR.
(f)(e) If a BTR is revoked or suspendedrevocation or suspension is upheld under this section the city
shall be entitled to recover its reasonable attorneys' fees and any costs of the hearing such as court
reporters and transcription charges expended by the city. Revocation of the license of an adult
theater for one year under paragraph (a)(8)4is incompatible with the First Amendment because it
imposes a prior restraint on presumptively protected expre.sion. Gayety Theatres, Inc., v. City of
Miami, 719 F.2d 1559 (1983).
Sec. 31-49. BTR enforcement.
(a) Any entity who has not strictly complied with the provisions of this chapter shall be subject to the
enforcement procedures as set forth herein:
{1) If noncompliance with this chapter is found, the finance department shall notify the
noncompliant entity in writing by delivering the civil infraction notice to the violator or by leaving
the civil infraction notice at the violator's place of business with any agent or employee therein
and informing that person of its ^�ts. In the alternative the civil violation notice may be sent by
certified mail, return receipt requested, to the last listed mailing address supplied to the city's
finance department or the mailing address reflected on the county's property appraiser's website.
may be served by posting on the violator's place of business. Such notice shall be posted for at
least ten days at the business address upon which the violation -is alleged to exist. Proof of
posting shall be verified by affidavit of the agent who posted the notice. Evidence that an attempt
has beer, made to hand deliver or mail notice together with proof of posting shall be sufficient that
notice requirements have been met.
{2) A violator who has been served with a civil infraction notice shall elect either to:
violation; or
b.Request an administrative hearing before a hearing officer to appeal the determination of
the finance department which resulted in the i.suance of the civil infraction notice.
{3) An appeal for administrative hearing shall be accomplished by filing a request in writing, to set
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the hearing for review, to the hearing boards department, no later than ten days after the service
of the civil infraction. Said request may be made in writing however, the burden of proof that said
request was received by the hearing boards department shall lay with the named violator.
{A) If the named violator, after notice, fails to pay the civil penalty and correct the .isolation (within
the time specified), or falls to timely request an administrative hearing before a hearing officer,
such failure shall constitute a waiver of the violator's right to an administrative hearing before a
hearing officer. A waiver of the right to administrative hearing shall be treated as an admi.sion of
the violation and penalties may be a.se.sed accordingly.
{5) Upon receipt of a named violator's timely request for an administrative hearing, the hearing
hearing date or as soon as possible.
{6) The hearing boards department shall send a notice of hearing by certified mail to the violator's
busine.s addre.s. The notice of hearing shall include but not be limited to the following:
a. Name of the enforcement officer who ic•sued the notice;
b. Factual description of the alleged violation;
c. Date of alleged violation;
d. Section of the Code allegedly violated;
c. Placc, datc and time of hearing;
f. Right of violator to be represented by an attorney;
h. Notice that failure of violator to attend a hearing may result in civil penalty being a.se.sed
against the entity.
{7) The hearing officer shall conduct hearings on a regularly scheduled monthly basis or more
frequently upon request of the city manager or designee. No hearing shall be set sooner than 20
days from the date of service of the civil infraction.
{8) All hearings before the hearing officer shall be open to the public. All testimony shall be under
{9) The violator shall be allowed to make a record of the hearing by the use of a court reporter;
such record may be transcribed at the expense of the party requesting the transcript. The party
desiring the court reporter shall be responsible for the appearance fee.
{10) The city manager, or designee, shall provide clerical and administrative personnel to
facilitate the proper issuance of civil infraction notices, proce.sing and review of cases as may be
representative of the department which i.sued the violation.
{12) The hearing need not be conducted in accordance with formal rules of evidence. Any
relevant evidence shall be admitted if the hearing officer finds it competent and reliable,
regardless of the existence of any common law or statutory rule to the contrary.
amine opposing witncc•scs on any matter relevant to the ic•sues even though that matter was
not covered in the direct examination, to impeach any witne.s regardle.s of which party first
{14) The hearing officer shall make findings of fact based on the evidence in the record alone. In
order to make a finding upholding an enforcement officer's determination that a violation exists,
the hearing officer must find that a preponderance of the evidence indicates that the violator was
{15) The prescribed time for correction of the violation given to the named violator and contained
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in the notice of violation shall be presumed to have been a reasonable time for correction. Upon
reasonable, the hearing officer may make a redetermination as to the reasonablene.s of the time
for correction contained in the notice of violation, if the time was less than five days.
{16) If the named violator is found guilty of the violation, he/she may be held liable for the costs of
the prosecution.
{17) The fact finding determination of the hearing officer shall be limited to whether the alleged
responsible for that violation. The hearing officer shall either affirm or reverse the determination of
the enforcement officer as to the responsibility of the named violator for the correction of the city
ordinance or City Code violation. If the hearing officer reverses the determination of the
violator shall not be liable for the payment of any civil penalty. If the decision of the hearing officer
is to affirm the enforcement officer's determination of violation, then the following elements shall
be included in the decision:
a. Amount of civil penalty;
h Costs of prosecution• and
,
c. Verbal warning that failure to comply with date by which violation must be corrected will
result in an automatic referral to the hearing officer
{18) The hearing officer shall have the power to:
a. Adopt procedures for the conduct of hearings;
b. Subpoena alleged violators and witne.ses for hearings; subpoenas may be served by
c. Subpoena evidence;
rl Take testimony under oath• anal
cr-va�rrarrc`
c. Acscss and ordcr the payment of civil penalties as provided herein.
(b) Alternatively,cEnforcement may be made in accordance with City of Miami Code Chapter 2,
Article X, Code Enforcement and any other remedies as provided by law, including but not limited to,
an action in the Circuit Court.
(cb) Obstructing a revenue collections inspector in the performance of duties.
(1) Whoever opposes, obstructs, or resists the Revenue Collections Inspector or other person
authorized by the finance department, in the discharge of his or her duty, as provided in this section,
shall be guilty of a violation of this chapter, and, upon conviction thereof, shall be punished as
provided in section 1-13.
(2) Revenue collections inspectors may notify the city police department immediately when in their
judgment they feel threatened.
(d) Civil penalties a.se.sed pursuant to this article are duc and payable to the city on the last day of
the period allowed for the filing of an administrative hearing before a hearing officer, or if proper
amount of such penalty acsc sed shall constitute and is hereby imposed as a lien against the real
property where the busine.s entity is operating with equal rank and dignity of any other special
acccccment liens.
(ec) In addition to any other remedies provided by this chapter or any other city ordinance, the
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finance department shall have judicial remedies available for violations of this chapter or any other
lawful rule or regulation promulgated hereunder as enumerated below but not limited to:
(1) Institution of a civil action in a court of competent jurisdiction to establish liability and to recover
damages for any costs incurred by the city in conjunction with the abatement of any condition
prohibited by the provisions of this chapter.
(2) Institution of a civil action in a court of competent jurisdiction to seek injunctive relief to enforce
compliance with the terms of this chapter or any rule or regulation promulgated hereunder, to
enjoin and prohibit said violation or to compel the performance of actions which will result in
compliance with the terms of this chapter.
(#d) These remedies are cumulative and the use of any appropriate remedy shall not constitute an
election of remedies by the finance department. The use of one remedy shall not preclude the use of
any others.
*I1
Section 3. If any section, part of a section, paragraph, clause, phrase or word of this Ordinance is
declared invalid, the remaining provisions of this Ordinance shall not be affected.
Section 4. This Ordinance shall become effective thirty (30) days after final reading and adoption
thereof. {2}
Footnotes:
{1} Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall
be added. The remains of the provisions are now if effect and remain unchanged. Asterisks indicate
omitted and unchanged materials.
{2} This Ordinance shall become effective as specified as herein unless vetoed by the Mayor within
ten (10) days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall
become effective immediately upon override of the veto by the City Commission or upon the effective
date stated herein, whichever is later.
City of Miami
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