AGENDA MEMORANDUM

                                                             

 

MEETING DATE:   March 14, 2011

 

FROM:                       Bill Wiley, AICP, Community Development Director

 

SUBJECT:                  Ordinance for proposed amendments to Chapter 5 Alcoholic Beverages of the Leesburg Code of Ordinances

 

 

Staff Recommendation: 

Staff requests the City Commission review and approve the proposed revisions for Chapter 5  Alcoholic Beverages of the Leesburg Code of Ordinances.

 

Analysis:

Since the enactment and implementation of Chapter 5 Alcoholic Beverages of the City of Leesburg Code of Ordinances, staff including but not limited to law enforcement has had the opportunity to implement the alcohol requirements dealing with local businesses whom sell and/or serve alcohol along with sales of alcohol during a special event, temporary use or a temporary extension of premises.  Based on this experience, the following amendments are recommended to further enhance the intent of the alcohol beverages ordinance. Furthermore, the proposed revisions allow for additional continuity with Chapter 26 Special Events Ordinance and Chapter 25-290 Temporary Uses of the City of Leesburg Code of Ordinances.  These amendments will more clearly define the requirements of the ordinance for city staff, law enforcement, local bars/restaurants operators, vendors and the citizens of Leesburg.  The following is a summary of the proposed changes:

                          

1.   Proposed amendments to Section 5-15 (a)(2). Definitions: 

 

2.   Proposed amendment to Section 5.0. Conformity with State Law

 

3.   Proposed amendment to Section 5-2. Beverages containing more than three and two tenths percent alcohol by weight; areas where sales permitted.

 

4.   Proposed amendment to Section 5.3. Setbacks.

 

5.   Proposed amendment to Section 5-6. Consumption of and open containers prohibited public property; exceptions.

 

6.   Propose the addition of Section 5-6.1. Sales and Consumption Restricted to licenses restaurant, bar, club, bottle club or business establishment on private property, exceptions.

·         Creates an entirely new section regarding the sales and consumption of alcohol on private property.

·         Allows for better continuity with Chapter 25-290 Temporary Uses Ordinance

 

7.   Propose the addition of Section 5-11a. Fighting Competitions and events prohibited.

 

Fiscal Impact:

There is no anticipated fiscal impact for the City of Leesburg at this time.

 

Submission Date and Time:    3/25/11 3:21 PM____

 

Department: Community  Development

Prepared by:  Mike Miller, Planner/Bill Wiley, AICP                   

Attachments:         Yes__X_   No ______

Advertised:   ____Not Required ______                     

Dates:   __________________________                     

Attorney Review :       Yes_X_  No ____

                                                

_________________________________           

Revised 6/10/04

 

Reviewed by: Dept. Head __BW_____

 

Finance  Dept. __________________                                     

                              

Deputy C.M. ___________________                                                                         

Submitted by:

City Manager ___________________

 

Account No. _________________

 

Project No. ___________________

 

WF No. ______________________

 

Budget  ______________________

 

Available _____________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ORDINANCE NO. _____  

   

AN ORDINANCE OF THE CITY OF LEESBURG, FLORIDA, AMENDING CHAPTER 5 ALCOHOLIC BEVERAGES OF THE CODE OF ORDINANCES BY ADDING SECTIONS 5-0 CONFORMITY WITH STATE LAW AND 5-11a FIGHTING COMPETITIONS AND EVENTS PROHIBITED AND AMENDING SECTIONS 5.0 THROUGH 5-6.2; REPEALING CONFLICTING ORDINANCES; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE.

 

            BE IT ENACTED BY THE PEOPLE OF THE CITY OF LEESBURG, FLORIDA:

SECTION I.

The following sections of the Code of Ordinances of the City of Leesburg, Florida Chapter 5 are hereby amended as followed:

 

Chapter 5  ALCOHOLIC BEVERAGES*

__________

*Cross references:  Administration, Ch. 2; licenses and business regulations, § 14-1 et seq.; offenses, § 15-1 et seq.; streets, sidewalks and other public places, § 18-1 et seq.; traffic, § 21-1 et seq.; vehicles for hire, § 24-1 et seq.; zoning, § 25-1 et seq. 

State law references:  Taxation of alcoholic beverages prohibited, F.S. § 561.342(13); regulation of hours of sale and location permitted, F.S. §§ 562.14(1), 562.45(2); sale of malt beverages for off-premises consumption not subject to municipal zoning, F.S. § 563.02(1)(a); sales to habitual drunkards, F.S. § 562.50. 

__________

 

Sec. 5-0. Conformity with State Law.

The provisions of this Chapter shall be construed according to and in conformity with the acts of the legislature of the State of Florida concerning alcoholic beverages, commonly referred to and referred to herein as the Beverage Law, consisting of Florida Statutes chapters 561, 562, 563, 564 and 565 as amended.


Sec. 5-1.  Definitions.

As used in this chapter, the terms listed below shall have the meanings shown:

Intoxicating beverages  shall mean all liquors, wines, beers and other beverages containing more than three and two-tenths (3.2) percent of alcohol by weight. 

Sale  or any variation thereof (i.e. sold, selling, etc.) shall, in addition to the ordinary meaning of the term, include the giving away or other provision, by any establishment holding an occupational license (regardless of the business category for which the license was issued), to its patrons, of intoxicating beverages, without payment of money or other consideration. 

Special event shall have the same meaning as that provided in Chapter 26 of this Code. 

Fire marshal is defined as a member of a fire department or part of a building department or a separate department approved by the city. Fire marshals' duties vary but usually include fire code enforcement, building and fire-code-related inspections and/or investigating fires for origin and cause. Fire marshals may be sworn law-enforcement officers, properly licensed building personal or certified fire inspectors.

(Code 1953, § 5-1; Ord. No. 03-95, § I, 10-13-03; Ord. No. 08-97, § 1, 11-10-08)

Cross references:  Definitions and rules of construction generally, § 1-2. 

State law references:  Definitions, F.S. § 561.01. 


Sec. 5-2.  Beverages containing more than three and two-tenths percent alcohol by weight; areas where sale permitted.

(a)   In order to preserve the public peace and safety of the citizens of the city, all beverages containing more than three and two-tenths (3.2) percent of alcohol by weight in the city shall be sold only within any area zoned Commercial "C-1," Commercial "C-2," Commercial "C-3," Central Business District "CBD," or Industrial "M-1."

(b)   Hotels shall be excepted from the provisions of this section. The term "hotel" in construing this section shall mean any establishment generally accepted as a hotel and having forty (40) rooms or more for accommodation of guests. Nationally organized fraternal orders or lodges shall be excepted from the provisions of this section. 

(c)   Any licensed and established business for the sale of intoxicating liquors containing more than three and two-tenths (3.2) percent of alcohol by weight in the city which were licensed by the city on December 15, 1945, shall be excepted from the terms of this section.

(Code 1953, §§ 5-2, 5-3; Ord. No. 08-97, § 1, 11-10-08)


Sec. 5-3.  Setbacks.

(a)   No person or commercial establishment required to maintain a vendor license classification of 4COP issued by the Florida Division of Alcoholic Beverage and Tobacco shall establish or operate within five hundred (500) feet of a child day care center, public park or playground, hospital, church or school, approved by the city, or any other governmental body with land use jurisdiction over the facility.  

(b)   (a)  No person or commercial establishment required to maintain a vendor license issued by the Florida Division of Alcoholic Beverage and Tobacco establishment which that sells or serves alcoholic beverages for consumption on the premises, which has or is required to have an occupational license business tax registration to operate, shall be located or operate within five hundred (500) feet of a child day care center, public park or playground, hospital, church or school, approved by the city or any other governmental body with land use jurisdiction over the facility, or within five hundred (500) feet of any other establishment approved by the city or any other governmental body with land use jurisdiction over the facility, which sells or serves alcoholic beverages for consumption on the premises, or within three hundred (300) feet of any property zoned for residential uses.

(c) (b) The method of measuring the distance from a child day care center, public park, playground hospital, church, school or a property zoned for residential uses to the place of business where alcoholic beverages are to be offered for sale shall be measured from any property line of the day care center, public park, playground, hospital, church, school or a property zoned for residential uses to the property line of the subject property where alcoholic beverages are to be offered for sale. 

If the proposed alcoholic establishment is located within a commercial shopping center, the method of measurement shall be from the nearest exterior wall of the proposed alcoholic establishment to the property line of the child day care center, public park, playground hospital, church, school or a property zoned for residential uses

(d)  (c)  The restrictions of subsection (a) shall not be construed or held to affect the rights of any existing established licensee or his successors or assigns with respect to the location of any existing established licensee. The city respects any existing established licensee or their successor in the location of any existing established licensee, as having the right of renewal thereof, if such applicant is in all other respects qualified

(c)  (d)   The setbacks contained in this section shall not apply within the Central Business District as defined in section 25-4 of this Code, or to any establishment holding an occupational license as a restaurant, and otherwise duly licensed as such under any requirements of state or local law, which derives at least fifty-one (51) percent of its gross revenues from the sale of food and non- alcoholic beverages, and which does not sell or serve alcoholic beverages after the hours for serving food have elapsed. This section would not apply to restaurants outside the CBD where musical entertainment is provided.

(Code 1953, § 5-11; Ord. No. 91-33, § 1, 10-14-91; Ord. No. 91-43, § 1, 12-9-91; Ord. No. 03-114, § I, 12-8-03)

State law references:  Authority of cities to regulate the location of establishments dealing in alcoholic beverages, F.S. § 562.45(2). 

 

Sec. 5-4.  Restriction of sale in bottle clubs.

(a)   It shall be unlawful for any bottle club or its employees, managers or owners to sell, give, serve or permit to be served or consumed intoxicating liquors, wines or beers within such bottle club between the hours of 2:00 a.m. and 7:00 a.m. of each Tuesday through Saturday, inclusive, or between the hours of 12:00 midnight Saturday and 7:00 a.m. of each Monday, within the corporate limits of the city. It shall also be unlawful for any person to consume any alcoholic beverages in any bottle club during the hours prohibited by this section. The presence of any drink or beverage which has been poured from its original container shall be prima facie evidence of a violation of this section.

(b)   "Bottle club" as used in this section is defined as any place of business where persons are allowed to bring intoxicating liquors, wines or beers for consumption on the premises, but on which they are not sold, and where such persons are charged admission, entrance fees, membership fees or on which premises nonalcoholic goods are sold.

(c)   Any person violating this section shall, upon conviction, be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment not to exceed sixty (60) days.

(Code 1953, § 5-17.5)


Sec. 5-5.  Hours of sale.

It shall be unlawful for any licensee to sell, give, serve or permit to be served, intoxicating liquors, wines or beers between the hours of 2:00 a.m. and 7:00 a.m. each Monday through Saturday and between the hours of 2:00 a.m. and 12:00 noon on Sunday, within the corporate limits of the city. It shall also be unlawful for any person to consume any alcoholic beverages during the hours prohibited by this section. The presence of any drink or beverage which has been poured from its original container shall be prima facie evidence of a violation of this section.

(Code 1953, § 5-18; Ord. No. 84-10, § I, 4-9-84)

State law references:  Regulation of hours of sale, F.S. §§ 562.14, 562.45(2). 


Sec. 5-6.  Consumption of and open containers prohibited on public property; exceptions.

(a)   It shall be unlawful for any person to consume, or to possess an open container of, any alcoholic beverage, including but not limited to beer and wine, upon any of the following properties used by the city: parks, beaches, athletic or sports facilities, playgrounds, properties, streets, alleys, or sidewalks; provided, that this section shall not apply to any property leased from the city on a short or long term basis, by private organizations or parties, civic clubs and the like. This provision shall not apply for those businesses with an approved sidewalk café agreement ratified by the City Commission or within the area designated for the an approved special event, where any group or individual has obtained a special event permit and has been authorized in the permit to sell or have sold alcoholic beverages.

(b)   It shall not be a violation of subsection (a) for a person to engage in the activity prohibited by subsection (a) if the activity meets one (1) of the following conditions:

(1)   The activity is a part of, and in an area designated for a special event. The consumption of alcoholic beverages upon a public street or other public area may be permitted as a part of that event, subject to the conditions imposed by this section and the permit.

(2)   The vendor/permittee of alcoholic beverages is duly licensed as such under the laws of Florida and has been granted a temporary permit, pursuant to this section, permitting such consumption to occur in a specified area as a part of a special event; however, in no event shall any permit be granted for consumption of alcoholic beverages within Rogers Park located on 9th Street.

(3)        The following conditions shall be met by the vendor/permittee:   

(i)   The area authorized for the sale of alcohol shall be directly adjacent to the main business premises of the vendor/permittee where alcohol is sold in the normal course of business.

(ii)   A site plan shall be submitted delineating the area where the vendor/permittee proposes to sell or dispense alcohol, and that area shall be enclosed by a perimeter, such as a fence or tent, with a single point of ingress and egress, to control access to and from the area. A second point of ingress and egress may be permitted if the issue of appropriate access is a matter of the protection of the general peace, property, life or limb as determined by the fire marshal or law enforcement.  The area shall also be included within the premises described in the beverage license issued to the vendor/permittee by the state as an area within which the vendor/permittee is permitted by the state to serve alcohol. The fire marshal will assign a maximum capacity to the area and the vendor/permittee shall enforce this maximum capacity and shall not allow it to be occupied at any time by more persons than the assigned maximum capacity.

(iii)   The access point(s) into and out of the serving area shall be marked with signs informing patrons that alcoholic beverages are not to be taken past the perimeter of the area shown on the site plan, and the vendor/permittee shall staff the entrance with such personnel as are necessary to enforce this condition.

(iv)   Alcohol shall be served only in plastic cups or plastic bottles, not in cans or in glass bottles, glasses or other glass containers.

(v)   The vendor/permittee shall provide such additional rest room facilities (e.g. portable potties) as are sufficient to comply with the requirements of subsection Sec. 5.6 (c) below. The permittee shall also provide sufficient trash receptacles to serve the patrons of the permittee so as to prevent the littering of cups, napkins and other debris.

(vi)   The permittee shall obtain all necessary building permits and other licenses and approvals for any tent or other structure erected to facilitate use of the area covered by the permit. Under no circumstances shall any concrete or asphalt on public property be punctured or otherwise damaged by the placement or removal of any tent or other structure, and if such damage occurs the permittee shall be liable for the full cost of repairs. The permittee shall comply with all applicable laws, rules and regulations in the operation of its business within the permitted area. The vendor/permittee shall obtain all necessary building permits and other licenses and approvals for any tent or other structure erected to facilitate use of the area covered by the permit. Under no circumstances shall any concrete or asphalt ground surface on public property or an easement be punctured or otherwise damaged by the placement or removal of any tent or other structure unless the vendor/permittee first has the appropriate qualified party perform an inspection for the purpose of locating, water, wastewater, electrical and gas lines and if such damage occurs the vendor/permittee shall be liable for the full cost of repairs. If a permit is issued and there are breaches to any public asphalt or concrete surface, the vendor/permittee is fully responsible for any expenses associated with repairing the damages.  The vendor/permittee shall comply with all applicable laws, rules and regulations in the operation of its business within the permitted area.

 (c)   Any individual or organization may submit a written request special event application to the city manager or designee requesting a temporary permit special event permit granting an exception to subsection (a) for a special event or occasion in a specifically defined area on public property. The request must be submitted a minimum of sixty (60) one hundred (120) days prior to the beginning of the proposed event. The request special event application must contain a detailed description of the special event proposed to be conducted. The city manager or his/her designee will coordinate review of the request by the police department and such other departments as the city manager shall designate. The city reserves the right to disapprove any such request and in doing so, may take the following into consideration: (1) whether any department determines the event to be inconsistent with the public interest or to have any adverse effect on the public safety, health, or welfare; (2) whether the event is compatible with the adjacent and surrounding land uses; (3) whether the hours of operation of the event would create a nuisance to residential areas nearby; (4) whether inspection by the building official, police chief or designee, fire chief or designee, or other authorized public official, determines that the site is insufficient to accommodate the anticipated number of attendees; (5) whether there is adequate parking available to accommodate the anticipated number of attendees; (6) whether an authorized public safety official determines that the site of the event does not meet requirements established for similar assemblies, established by law.  For additional requirements regarding special events on public property, see Chapter 26 – Special Events in the Leesburg Code of Ordinances. A permit may be issued if each of the following conditions is observed:

(1)   The individual or organization maintains compliance with all applicable laws and regulations relating to the sale of or dispensing of alcoholic beverages.

(2)   The individual or organization has executed an agreement with the city at least thirty (30) days in advance of the event, which agreement shall contain, but shall not be limited to, the following provisions:

(i)   The designated event date and the hours, and the dates and hours during which alcoholic beverages will be sold or consumed. The city shall retain, in its sole discretion, the right to approve or disapprove such dates and hours.

(ii)   A plan for enforcing, restricting or controlling access to the special event area which must be approved by the city manager or designee, and any other governmental agency which may have jurisdiction.

(iii)   A plan for police protection and crowd and traffic control. The plan and the personnel necessary to implement the plan shall be approved by the chief of police and all resources necessary to implement the plan shall be furnished at the expense of the individual or organization. In the discretion of the chief of police, officers of the police department may be required to be in attendance at the event. The costs for provision of city police personnel at events required to have such services under this Chapter shall be the current regular prevailing hourly rates pursuant to collective bargaining agreements, personnel rules and regulations and procedures, and other established city employee pay schedules. Costs for operating specialized equipment (i.e. golf carts, all terrain vehicle's, boats, etc.) required for the provision of public safety services for the special event, as determined by the city police and fire departments, shall be the responsibility of the applicants, promoters, and sponsors.

(iv)   Sanitary facilities, in the form of portable toilets, shall be provided by applicants, promoters, or sponsors of special events to supplement the available facilities at any given venue in light of the projected number of attendees and participants, based upon the health department's portable restroom requirements for special events standards, existing health laws and sanitation, and plumbing codes and standards (reference § 64E-6.0101 FAC as it may be changed, modified or amended).

(v)   The applicant shall pay the city via immediately available funds by cashier's check, certified check, wire transfer or money order, within ten (10) business days after conditional approval, fifty (50) percent of the total costs for the city personnel, materials and services required by this chapter. The balance due shall be paid to the city in the same manner, by no later than the conclusion of the special event. A posting of an adequate security bond or other security in an amount approved by the recreation and parks department, public works department, and the city manager to ensure that litter generated by the event will be collected, and that the event area will be cleaned upon conclusion of the event and to pay the cost to repair any damages to city property arising out of the event. If the applicant is unable to obtain the bond or irrevocable letter of credit required by this chapter, then the applicant must pay in advance in immediately available funds by cashier's check, wire transfer, certified check or money order, within ten (10) business days after conditional approval, the total costs for city personnel, materials and services required by this chapter.

(vi)  The individual or organization shall indemnify and hold the city, its officials, and employees harmless from any claim.

(vii)   Production of proof of insurance as follows:

a.   The event organizer must possess or obtain comprehensive general liability insurance to protect the city against loss from liability imposed by law for damages on account of bodily injury and property damage arising from the event. Such insurance shall contain a waiver of subrogation in favor of the city and shall name the City of Leesburg, its officers, employees, and agents and, as required, any other public entity involved in the event, as additional insured. Insurance coverage must be maintained for the duration of the event. Notice of cancellation shall be provided immediately to the city.

b.   Comprehensive general liability insurance coverage shall be required and shall be in a combined single limit of at least one million dollars ($1,000,000.00). The city reserves the right to change or modify this requirement as deemed necessary or appropriate by the city's risk manager.

c.   If the event is of a demonstrated high or low risk category, according to recognized insurance and risk management standards, the city manager or designee may authorize a greater or lesser amount of coverage than required by this section or may require a particular type of insurance coverage different from that specified in this section.

d.   The insurance required by this section shall encompass all liability insurance requirements imposed for other permits required under other sections of this Code and is to be provided for the benefit of the city and not as a duty, express or implied, to provide insurance protection for spectators or participants.

e.   Proof of the event organizer's required insurance(s) shall be provided in the form of a certificate of insurance, and shall be filed with the city manager or designee at least sixty (60) calendar days before the event, unless the city manager or designee for good cause modifies the filing requirements.

(viii)   The city reserves the right to immediately revoke the temporary permit and to suspend or terminate the event or any portion of it if any of the elements of the agreement are violated, or if deemed necessary for the protection of the general peace, property, life or limb. In such case, all fees and charges shall be non-refundable.

(d)   The discretion granted to the city manager or designee under this section, to grant exceptions, require the presence of police officers at a function, or terminate any permit issued under subsection (b), may be exercised for any purpose or in any manner which is lawful under the Constitution or laws of the United States or the state, but shall not be exercised in an arbitrary or capricious manner. Such discretion shall be exercised with regard to the protection of life, limb and property, and the preservation of the public safety, health and welfare, according to the judgment of the city manager or designee based on the facts and circumstances of each case.

(Code 1953, § 18-32, (a)--(e); Ord. No. 98-05, §§ I--V, 1-12-98; Ord. No. 04-09, § I, 3-8-04; Ord. No. 05-34, § I, 4-11-05; Ord. No. 08-97, § 1, 11-10-08)

 

Sec. 5-6.1 Sales and Consumption Restricted to a licensed restaurant, bar, club, bottle club or business establishment on private property; Exceptions

(a) It shall be unlawful for any vendor/permittee or for any agent, servant or employee of any such vendor/permittee to permit the consumption of any alcoholic beverages in or upon any area outside of the building, room or area mentioned in the vendor’s state issued alcohol license certificate as the address thereof, when any part of such private property is adjacent to the building or premises in which the business licensed under such section is operated, and when such private property is owned, rented, leased, regulated, controlled or provided, directly or indirectly, by such licensed vendor or by any agent, servant or employee of such licensed vendor.

(b)  It shall not be a violation of subsection (a) for a person to engage in the activity prohibited by subsection (a) if the activity meets the following conditions:

The vendor/permittee obtains a a temporary use permit from the City, an extension of premises approved by the City and the State of Florida; or the vendor/permittee obtains approval from the City through a Planned Unit Development (PUD), Small Planned Unit Development (SPUD) or a Conditional Use Permit (CUP) and their conditions thereof and the State of Florida permanently includes the outside area as part of the vendor’s state issued alcohol license. 

(c)  The following conditions shall be met by the vendor/permittee:

(1)   The area authorized for the sale of alcohol shall be directly adjacent to the main business premises of the vendor/permittee where alcohol is sold in the normal course of business.

(2)   A site plan shall be submitted delineating the area where the vendor/permittee proposes to sell or dispense alcohol, and that area shall be enclosed by a perimeter, such as a fence or tent, with a single point of ingress and egress, to control access to and from the area. A second point of ingress and egress may be permitted if the issue of appropriate access is a matter of the protection of the general peace, property, life or limb as determined by the fire marshal or law enforcement.  The area shall also be included within the premises described in the beverage license issued to the vendor/permittee by the state as an area within which the permittee is permitted by the state to serve alcohol. The fire marshal will assign a maximum capacity to the area and the vendor/permittee shall enforce this maximum capacity and shall not allow it to be occupied at any time by more persons than the assigned maximum capacity.

(3)   The access point(s) into and out of the serving area shall be marked with signs informing patrons that alcoholic beverages are not to be taken past the perimeter of the area shown on the site plan, and the vendor/permittee permittee shall staff the entrance with such personnel as are necessary to enforce this condition.

(4)   Alcohol shall be served only in plastic cups or plastic bottles, not in cans or in glass bottles, glasses or other glass containers.

(5)   The vendor/permittee shall provide such additional rest room facilities (e.g. portable potties) as are sufficient to comply with the requirements of subsection (e)(2)(iv) below. The vendor/permittee shall also provide sufficient trash receptacles to serve the patrons of the vendor/permittee so as to prevent the littering of cups, napkins and other debris.

(6)   The vendor/permittee shall obtain all necessary building permits and other licenses and approvals for any tent or other structure erected to facilitate use of the area covered by the permit. Under no circumstances shall any concrete or asphalt ground surface on private property be punctured or otherwise damaged by the placement or removal of any tent or other structure unless the vendor/permitee first has the appropriate qualified party perform an inspection for the purpose of locating, water, wastewater, electrical and gas lines and if such damage occurs the vendor/permittee shall be liable for the full cost of repairs. If a permit is issued and there are breaches to any private property owner’s asphalt or concrete surface, the vendor/permittee is fully responsible for any expenses associated with repairing the damages. The vendor/permittee shall comply with all applicable laws, rules and regulations in the operation of its business within the permitted area.

(d)   Any individual or organization may submit a written request to the city manager or designee requesting a temporary use permit granting an exception to subsection (a) for a temporary event or occasion in a specifically defined area. Per the discretion of the City Manager or his/her designee and the regulations set forth in Chapter 25-290 of the Leesburg Code of Ordinances, if the event qualifies as a temporary use, the request must be submitted a minimum of sixty (60) days prior to the beginning of the proposed event. The request must contain a detailed description of the event proposed to be conducted. The city manager or his/her designee will coordinate review of the request by the police department and such other departments as the city manager shall designate. The city reserves the right to disapprove any such request and in doing so, may take the following into consideration:

(1) whether any department determines the event to be inconsistent with the public interest or to have any adverse effect on the public safety, health, or welfare;

(2) whether the event is compatible with the adjacent and surrounding land uses;

(3) whether the hours of operation of the event would create a nuisance to residential areas nearby;

(4) whether inspection by the building official, police chief or designee, fire chief or designee, or other authorized public official, determines that the site is insufficient to accommodate the anticipated number of attendees;

(5) whether there is adequate parking available to accommodate the anticipated number of attendees;

(6) whether an authorized public safety official determines that the site of the event does not meet requirements established for similar assemblies, established by law.

e)    A permit may be issued if each of the following conditions is observed:

(1)   The individual or organization maintains compliance with all applicable laws and regulations relating to the sale of or dispensing of alcoholic beverages and shall agree to, but shall not be limited to, the following provisions:

(i)   The designated event date and the hours, and the dates and hours during which alcoholic beverages will be sold or consumed. The city shall retain, in its sole discretion, the right to approve or disapprove such dates and hours.

(ii)   A plan for enforcing, restricting or controlling access to the temporary use area which must be approved by the city manager or designee, and any other governmental agency which may have jurisdiction.

(iii)  A plan for police protection and crowd and traffic control. The plan and the personnel necessary to implement the plan shall be approved by the chief of police and all resources necessary to implement the plan shall be furnished at the expense of the individual or organization. In the discretion of the chief of police, officers of the police department may be required to be in attendance at the event. The costs for provision of city police personnel at events required to have such services under this Chapter shall be the current regular prevailing hourly rates pursuant to collective bargaining agreements, personnel rules and regulations and procedures, and other established city employee pay schedules. Costs for operating specialized equipment (i.e. golf carts, all terrain vehicle's, boats, etc.) required for the provision of public safety services for the special event, as determined by the city police and fire departments, shall be the responsibility of the applicants, promoters, and sponsors.

(iv)   Sanitary facilities, in the form of portable toilets, shall be provided by applicants, promoters, or sponsors of special events to supplement the available facilities at any given venue in light of the projected number of attendees and participants, based upon the health department's portable restroom requirements for special events standards, existing health laws and sanitation, and plumbing codes and standards (reference § 64E-6.0101 FAC as it may be changed, modified or amended).

(v) The vendor/permittee applying for an outdoor temporary use permit during a major special event (i.e. Leesburg Bikefest or Leesburg Mardi Gras) within an approved major special event venue area must adhere to Sec. 26-23.1 Cost recovery for the event organizer

(vi)   The individual or organization shall indemnify and hold the city, its officials, and employees harmless from any claim.

(vii)   The city reserves the right to immediately revoke the temporary permit, and to suspend or terminate the event or any portion of it if any of the elements of the agreement are violated, or if deemed necessary for the protection of the general peace, property, life or limb. In such case, all fees and charges shall be non-refundable.

(f)   The discretion granted to the city manager or his/her designee under this section, to grant exceptions, require the presence of police officers at a function, or terminate any permit issued under subsection (b), may be exercised for any purpose or in any manner which is lawful under the Constitution or laws of the United States or the state, but shall not be exercised in an arbitrary or capricious manner. Such discretion shall be exercised with regard to the protection of life, limb and property, and the preservation of the public safety, health and welfare, according to the judgment of the city manager or designee based on the facts and circumstances of each case


Sec. 5-6.1. 5-6.2 Consumption of or possession of alcohol in open containers near store selling alcoholic beverages.

(a)   Definitions.  The following definitions shall apply for purposes of this section. 

(1)   Alcoholic beverage  shall, for the purposes of this section only, mean any beverage containing more than one (1) percent of alcohol by volume. 

(2)   Food store selling alcoholic beverages  shall mean any food or convenience store which has a license for package sales of alcoholic beverages from the Florida Division of Beverages and Tobacco in the classification of 1-APS, 2-APS, or PS. 

(3)   Open container means any bottle, can, cup, glass, or other receptacle containing any alcoholic beverage which is open, which has been opened, which has its seal broken, or which has had its contents partially removed. 

(4)   Operator  shall mean any person physically present at a store defined in subsection (a)(2), (a)(6) or (a)(8) of this section who is managing said store or is otherwise in charge of its operation. 

(5)   Owner  shall mean any person holding an occupational license for a store defined in subsection (a)(2), (a)(6) or (a)(8) of this section. 

(6)   Package store  shall mean any store primarily engaged in the business of selling alcoholic beverages which has a license for package sales from the Florida Division of Beverages and Tobacco in the classification of 1-APS, or 2-APS, or any other  PS licenses

(7)   Person  shall mean any individual, firm, partnership, joint venture, syndicate or other group or combination acting as a unit association, corporation, or other legal entity and shall include the plural as well as the singular. 

(8)   Bar  shall mean any business primarily engaged in the sale of alcoholic beverages for consumption on premises, holding a license for such purpose from the Florida Division of Alcoholic Beverages and Tobacco, in the classification of 1-COP, 2-COP, or any other COP licenses that excludes SRX

(9)   Restaurant  shall, for the purposes of this section only, mean any business holding a license for the sale of alcoholic beverages, issued by the Florida Division of Alcoholic Beverages and Tobacco, in the sub-classification of SRX. 

(10)   Club  shall mean any private club of other facility or business holding a license from the Florida Division of Alcoholic Beverages and Tobacco, for the sale of alcoholic beverages, as a private club under the provisions of Section 7A-3.019 of the Florida Administrative Code, as amended from time to time, or any successor section of such code. 

(b)    Public nuisance, unlawful acts.   

(1)   It is a public nuisance and shall be unlawful and in violation of this section for any person to consume any alcoholic beverages outside of but within one hundred (100) feet of any club, restaurant, bar, package store, or food store selling alcoholic beverages.

(2)   It is a public nuisance and shall be unlawful and in violation of this section for any person to possess an open container of alcoholic beverages while stopping, standing, or remaining outside of but within one hundred (100) feet of any club, restaurant, bar, package store, or food store selling alcoholic beverages.

(3)   The owner or operator of any club, restaurant, bar, package store, or other establishment selling alcoholic beverages shall prominently post, on the outside of each entrance and on the inside of the main customer exit of each bar, package store, or other establishment selling alcoholic beverages and duly licensed for on premises consumption, a legible sign with contrasting letters, stating the following:

IT IS UNLAWFUL FOR ANY PERSON TO CONSUME, OR POSSESS, IN ANY OPEN CONTAINER, ANY ALCOHOLIC BEVERAGE OUTSIDE OF BUT WITHIN 100 FEET OF ANY PART OF THIS STORE, INCLUDING PARKING LOTS. VIOLATORS ARE SUBJECT TO ARREST AND PROSECUTION.

(4)   The owner or operator of any package store, or other establishment selling alcoholic beverages shall prominently post, on the outside of each entrance and on the inside of the main customer exit of each package store or other establishment selling alcoholic beverages and not duly licensed for on premises consumption, a legible sign with contrasting letters, stating the following:

IT IS UNLAWFUL FOR ANY PERSON TO CONSUME, OR POSSESS, IN ANY OPEN CONTAINER, ANY ALCOHOLIC BEVERAGE IN THIS STORE OR WITHIN 100 FEET OF ANY PART OF THIS STORE, INCLUDING PARKING LOTS. VIOLATORS ARE SUBJECT TO ARREST AND PROSECUTION.

(c)   Area of applicability and exceptions.  For the purpose of this section the area within one hundred (100) feet of a club, restaurant, bar, package store, or other establishment selling alcoholic beverages, shall be the area within a one hundred (100) foot radius of any part of such business, but shall not include any property lawfully used for a private residence or any area where possession or consumption of alcoholic beverages is specifically permitted by any lawful license or permit. 

(d)   Penalties.  A violation of this section shall constitute a second degree misdemeanor and shall be punishable in accordance with the Florida Statutes 562.45 prescribing punishment for a second degree misdemeanor as of the date of the infraction. 

(Ord. No. 92-34, § 1, 11-9-92; Ord. No. 92-36, § 1, 12-14-92)

Editor's note:  Ord. No. 92-34, § 1, adopted Nov. 9, 1992, amended Ch. 5 by the addition of provisions which have been designated at the discretion of the editor as § 5-6.1. 


Sec. 5-7.  Nudity prohibited in establishment selling alcoholic beverages; finding of fact; authority; purpose and enforcement.

(a)   The city commission of the city finds that there is presently an increasing trend toward nude and seminude acts, exhibitions and entertainment, and toward the utilization of nude and seminude female employees engaged in other service-oriented aspects of and by the commercial establishments subject hereto.

(b)   The city commission finds that the competitive commercial exploitation of such nudity is adverse to the public's interest in the quality of life, tone of commerce, and total community environment in the city.

(c)   The city commission finds that there is a direct relationship between the concurrent consumption of alcoholic beverages and the nude and seminude activities mentioned and, prohibited in this section, and more fully described in this section and an increase in criminal activities, moral degradation and disturbances of the peace and good order of the community, and further finds that the concurrency of these activities is hazardous to the health and safety of those persons in attendance, and tends to depreciate the value of adjoining property and harm the economic welfare of the community as a whole.

(d)   The city commission finds that in order to preserve the public peace and good order, and to safeguard the health, safety and welfare of the community and the citizens thereof, it is necessary and advisable to regulate and restrict the conduct of owners, operators, agents, employees, and patrons of the commercial establishments subject to this section.

(e)   Sections 5-7 through 5-14 are enacted under the Home Rule Power of the City of Leesburg, Florida, in the interest of the public health, peace, safety, morals and general welfare of the citizens and inhabitants of the City of Leesburg, and under the authority of the city to regulate the sale and consumption of alcoholic beverages under the Twenty-First Amendment to the Constitution of the United States. Such sections 5-7 through 5-14, shall be effective in the city.

(Code 1953, § 5-23)


Sec. 5-8.  Unlawful display.

(a)   It shall be unlawful for any person maintaining, owning or operating a commercial establishment located within the city at which alcoholic beverages, beer or wine are offered for sale for consumption on the premises or which is operated as a bottle club as defined in section 5-4(b), to suffer or permit any person to engage in the following on the premises of that commercial establishment:

(1)   The actual or simulated displaying of the genitals, vulva, pubic area, buttocks or anus;

(2)   The actual or simulated displaying by a female of the area of the human breast at or below the areola. The areola is the colored ring around the nipple.

(b)   It shall be unlawful for any person, while on the premises of a commercial establishment located within the City of Leesburg, Florida, at which alcoholic beverages, beer or wine are offered for sale for consumption on the premises or which is operated as a bottle club as defined in section 5-4(b), to engage in the following:

(1)   The actual or simulated displaying of the genitals, vulva, pubic area, buttocks or anus;

(2)   The actual or simulated displaying by a female of that area of the human breast at or below the areola. The areola is the colored ring around the nipple.

(Code 1953, §§ 5-24, 5-25; Ord. No. 91-33, § 2, 10-14-91)


Sec. 5-9.  Entertainers and employees prohibited from "lap dancing."

(a)   It shall be unlawful for any entertainer or performer or employee, while on the premises of a commercial establishment located within the city, at which alcoholic beverages, beer or wine are offered for sale for consumption on the premises, or which is operated as a bottle club as defined in section 5-4(b), where a striptease act, topless act, or burlesque performance is conducted or engaged in, to sit at or otherwise occupy any seat in such place, when the same is then occupied by any patron, spectator or other person therein, or to in any other manner engage in what is commonly known as "lap dancing."

(b)   It shall be unlawful for any person maintaining, owning or operating any such establishment described in this section to suffer or permit any entertainer or performer or employee to sit at or otherwise occupy any seat in any establishment described in this section, when the same is then occupied by any patron, spectator or other person therein, or in any other manner is used to engage in what is commonly known as "lap dancing."

(Code 1953, § 5-26; Ord. No. 91-33, § 3, 10-14-91)


Sec. 5-10.  Unlawful construction and use of partitioned areas for private performances.

It shall be unlawful for any person maintaining, owning, or operating a commercial establishment located within the city, at which alcoholic beverages, beer or wine are offered for sale for consumption on the premises or which is operated as a bottle club as defined in section 5-4(b), to suffer or permit the construction, maintenance or continued use of areas partitioned or screened from public view that are designed to be occupied or are commonly occupied together by patrons and employees of the commercial establishment for sexual contact or private dancing performances.

(Code 1953, § 5-27; Ord. No. 91-33, § 4, 10-14-91)


Sec. 5-11.  Presence in partitioned areas unlawful.

It shall be unlawful for any person, while on the premises of a commercial establishment located within the city at which alcoholic beverages, beer or wine are offered for sale for consumption on the premises or which is operated as a bottle club as defined in section 5-4(b), to use or to be present in areas partitioned or screened from public view that are designed to be occupied or are commonly occupied together by patrons and employees of the commercial establishment for sexual contact or private dancing performances.

(Code 1953, § 5-28; Ord. No. 91-33, § 5, 10-14-91)

 

Sec. 5-11a. Fighting Competitions and events prohibited

Except as specifically provided in this section, no person shall cause, and no person maintaining, managing, owning or operating an establishment dealing in alcoholic beverages shall suffer or permit, the conduct of boxing, kickboxing, wrestling (whether or not held in special media such as Jello or oil), or similar forms of fighting competitions and events within any establishment dealing in alcoholic beverages. The scope of this prohibition shall include professional and amateur competitions and events, as well as the live simulation of such competitions or events. The scope of this prohibition shall not include any competition or event held at an arena or theater having a seating capacity of 200 or more seats. In addition, any venue utilizing temporary bleachers or other temporary seating may be exempted from this prohibition upon the written approval of the City Manager or his designee; provided, however, that before issuing the written approval, the City building official shall cause an inspection to be performed to ensure that all applicable Code requirements are met, including but not limited to occupancy load, fire and zoning requirements. If the building official denies a request for an exemption, the building official shall notify the party seeking the exemption in writing. In such instance, the party seeking exemption may appeal the decision to the city manager by filing a written request with the city manager no later than 30 days after the date of the building official’s decision on appeal shall be final.


Sec. 5-12.  Presumption that establishment sells alcoholic beverages for on-premise consumption.

Any commercial establishment licensed by the state for sale of alcoholic beverages, beer or wine for consumption on the premises is presumed to be a commercial establishment at which alcoholic beverages, beer or wine are offered for sale or sold for consumption on the premises.

(Code 1953, § 5-29)


Sec. 5-13.  Proof of alcoholic content of beverage.

(a)   In all actions, civil or criminal, for violation of sections 5-8 through 5-11, proof that the beverage was an alcoholic beverage, beer or wine may be made by any person who, by experience in the past in the handling or use of alcoholic beverages, beer or wine, or who by taste, smell or the drinking of such liquids has knowledge of the presence of the alcoholic content thereof or the intoxicating effect thereof, may testify as to their opinion whether such beverage is an alcoholic beverage, beer or wine.

(b)   The presence of alcoholic content of any beverage, beer or wine may be shown by hydrometer or gravity test made in or away from the presence of the fact finder by any person who has knowledge of the use of the instrument, but in production of such evidence is optional.

(Code 1953, § 5-30)


Sec. 5-14.  Violations, penalty.

Any person who violates sections 5-8 through 5-11 shall be prosecuted and punished in accordance with general law. The city may bring suit to restrain, enjoin or otherwise prevent the violation of such sections in the circuit court of the county.

(Code 1953, § 5-31; Ord. No. 80-11, § 10, 5-27-80)


Sec. 5-15.  Vendors of alcoholic beverages required to place sign on premises warning of dangers of consumption.

(a)   Definitions.  For the purposes of this section, the following terms shall be defined and applied as follows: 

(1)   Alcoholic beverage  means and includes alcohol, liquor, wine and beer. 

(2)   Vendor  means any person who owns or operates a business establishment such as a bar or restaurant, which sells at retail any alcoholic beverage for on-premises consumption; and any person who owns or operates a liquor store, or any other business establishment which has retail sales of alcoholic beverages. 

(b)   Sign required warning of the dangers of consuming alcoholic beverages.  All vendors of alcoholic beverages shall have posted in a conspicuous place in their premises, a sign which is clearly visible and readable to all persons entering the premises which shall read as follows: 

 

TABLE INSET:

 

     

"WARNING   

   

ALCOHOL IN BEER,   

   

WINE & LIQUOR   

   

CAN CAUSE   

   

* INTOXICATION  * ADDICTION  * BIRTH DEFECTS   

REDUCE YOUR RISKS:

DO NOT DRINK BEFORE DRIVING OR OPERATING MACHINERY.


DO NOT MIX ALCOHOL WITH OTHER DRUGS (IT CAN BE FATAL).
DO NOT DRINK DURING PREGNANCY."

(c)   Penalty for violation.  Violation of this section shall be punishable by a fine of not more than five hundred dollars ($500.00) or by imprisonment for not more than sixty (60) days or both. 

(Ord. No. 86-30, §§ I--III, 8-25-86)

Editor's note:  Ord. No. 86-30, §§ I--III, adopted Aug. 25, 1986, did not specifically amend this Code and at the discretion of the editor these provisions have been codified herein as § 5-15. 

 

SECTION II.

If any portion of this ordinance is declared invalid or unenforceable, then to the extent it is possible to do so without destroying the overall intent and effect of this ordinance, the portion deemed invalid or unenforceable shall be severed herefrom and the remainder of this ordinance shall continue in full force and effect as if it were enacted without including the portion found to be invalid or unenforceable.

 

SECTION III.

All ordinances or parts of ordinances which are in conflict with this ordinance are hereby repealed, to the extent necessary to alleviate the conflict, but shall continue in effect insofar as they are not in conflict herewith, unless repeal of the conflicting portion destroys the overall intent and effect of any of the conflicting ordinances, in which case those ordinances so affected shall be hereby repealed in their entirety.

 

SECTION IV.

This ordinance shall become effective upon its passage and adoption according to law.

 

PASSED AND ADOPTED at the regular meeting of the City Commission of the City of Leesburg, Florida, held on the                    day of                                    , 2011.

 

 

THE CITY OF LEESBURG, FLORIDA

 

BY:                                                                 

Mayor

 

Attest:                                                                        

City Clerk

 

 

 

Note: In the following amendments highlighted strike throughs are deletions and under lines are additions