AGENDA MEMORANDUM

 

 

Meeting Date:           January 28, 2008

 

From:                          Edward F. Smyth, Jr., Deputy City Manager

 

Subject:                      Ordinance Amending Chapter 5 – Alcoholic Beverages, Leesburg Code of Ordinance

 

 

Staff Recommendation:

Staff recommends adopting the ordinance to amend Chapter 5 – Alcoholic Beverages, of the Code of Ordinance.

Analysis:

During the research to create a stand-alone Special Events Ordinance, a number of anomalies were discovered in this ordinance related to the sale of alcoholic beverages in the downtown area.  These anomalies were noted for the City Attorney’s review, in conjunction with his review of the Special Events ordinance.

There were a number of code references where the section had been repealed or renumbered in the past, and these references had not been removed from this section.  In addition to these references, the City Attorney noted a number of provisions in this ordinance that were either unconstitutional, or would not withstand a legal challenge to the provision in court.  Finally, the requirements for insurance coverage were no longer sufficient to protect the City from losses that could occur as a result of approving a group or individual to sell or have sold alcoholic beverages on City property or in rights-of-way.

This chapter has added language that is parallel to the language contained in the Special Events ordinance related to safety and security of the alcohol venues, and requirements for sanitary facilities that comply with those of the Health Department sections of the Florida Administrative Code.

Options:

1.  Approve the amendment;

2.  Such alternative action as the Commission may deem appropriate

 


Fiscal Impact

There is no negative fiscal impact to adopting these amendments to this ordinance.

Submission Date and Time:    3/6/2008 11:53 AM____

 

Department: ______________________

Prepared by:  ______________________                     

Attachments:         Yes____   No ______

Advertised:   ____Not Required ______                     

Dates:   __________________________                     

Attorney Review :       Yes___  No ____

                                                

_________________________________           

Revised 6/10/04

 

Reviewed by: Dept. Head ________

 

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 SECTIONS 5-1, 5-2, AND 5-6, OF CHAPTER 5, ALCOHOLIC BEVERAGES, OF THE CODE OF ORDINANCES OF THE CITY OF LEESBURG, FLORIDA; PROVIDING A DEFINITION FOR SPECIAL EVENTS; ADDING THE CENTRAL BUSINESS DISTRICT TO THE ZONES IN WHICH CERTAIN ALCOHOLIC BEVERAGES MAY BE SOLD; PERMITTING THE SALE OF ALCOHOLIC BEVERAGES BY THOSE WHO RECEIVE SPECIAL EVENTS PERMITS; PROVIDING FOR REQUIREMENTS FOR THOSE WHO RECEIVE SPECIAL EVENTS PERMITS; PROVIDING INSURANCE REQUIREMENTS; PROVIDING FOR CONFLICTS; PROVIDING A SAVINGS CLAUSE; PROVIDING AN EFFECTIVE DATE.

 

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

 

SECTION 1.

 

Sections 5-1, 5-2, and 5-6 of Chapter 5, Alcoholic Beverages, of the Code of Ordinances of the City of Leesburg, Florida, is hereby amended in its entirety to read as set forth below:

 

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 the Code of Ordinances.

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.

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 within the area designated for the 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 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 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 permittee where alcohol is sold in the normal course of business. 

(ii)     A site plan shall be submitted delineating the area where the permittee proposes to sell or dispense alcohol upon public property, 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. The area shall also be included within the premises described in the beverage license issued to the 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 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 into 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 permittee shall staff the entrance with such personnel as are necessary to enforce this condition.

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

(v)   The permittee shall provide such additional rest room facilities (e.g. portable potties) as are sufficient to comply with the requirements of paragraph (c)(2)(iv) 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.

(c)   Any individual or organization may submit a written request to the City Manager or designee requesting a temporary permit granting an exception to subsection (a) for a special event or occasion in a specifically defined area. 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 special event proposed to be conducted. The City Manager or 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. 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 of Leesburg 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 City of Leesburg 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 consultation with the City of Leesburg Community Development department as to the total number of facilities necessary to comply with the Lake County Health Department’s Portable Restroom Requirements for Special Events Standards, existing health laws and sanitation, and plumbing codes and standards; provided that there shall be at least one portable restroom for each 250 persons expected to be in attendance. (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 percent (50%) 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).

(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.

SECTION 2.

 

All ordinances or part 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 ordinance, in which case those ordinances so affected shall be hereby repealed in their entirety. All portions of Chapter 5 not specifically amended by this Ordinance shall continue in effect as they existed on the date this Ordinance was enacted.

 

SECTION 3.

 

If any portion of this Ordinance is declared invalid or unenforceable, and to the extent that 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 the ordinance shall continue in full force and effect as if it were enacted without including the portion found to be invalid or unenforceable.

 


SECTION 4.

 

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 ______________, 2008. 

 

THE CITY OF LEESBURG

 

 

By: __________________________

            Mayor

 

ATTEST:

 

_______________________________

City Clerk