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Item P12 J �� BOARD OF COUNTY COMMISSIONERS County of Monroe � ��r�i �r � s�� Mayor Heather Carruthers,District 3 The Florida.Keys Mayor Pro Tem Michelle Coldiron,District 2 Craig Cates,District 1 David Rice,District 4 Sylvia J.Murphy,District 5 County Commission Meeting July 15, 2020 Agenda Item Summary #7132 ADD ON DAB' OF MEETING: Will be Public Hearing P-12 BULK ITEM: No DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger(305) 292-3470 1:30 P.M. PUBLIC HEARING AGENDA ITEM WORDING: A public hearing to consider adoption of an emergency, temporary ordinance mandating that all bars and restaurants close from 11 p.m. to 5 a.m. effective July 26, 2020 through August 9, 2020. ITEM BACKGROUND: At the Board's July 8, 2020 budget meeting, the Board discussed whether to request that the Florida Fish & Wildlife Commission and Governor DeSantis cancel lobster mini-season as a protective measure against an influx of persons from outside of the County, given an alarming increase in the number of infections from COVID-19. As an alternative to requesting the cancelation of mini-season at this late date, the Board discussed closing the bars and restaurants from 11 pm to 5 am every night as a means of reducing the opportunity for spreading the virus. The Board determined that with the State's closure of stand-alone bars, patrons who used to congregate at bars have moved to restaurants, which have remained open. At the conclusion of the discussion, the Board directed the County Attorney to prepare an ordinance closing bars and restaurants from 11 pm to 5 am during the days surrounding lobster mini-season. FWC has set July 29th and 30th as lobster mini-season for 2020. The Board also discussed keeping that closure in place surrounding the opening of the regular lobster season on August 6, 2020. As drafted, the proposed ordinance would take effect at 11 p.m. on Sunday July 26, 2020, the beginning of the week before lobster mini-season and to sunset two weeks later at 11 p.m. on Sunday August 9, 2020, at the end of the weekend after the regular season opens. The dates were chosen to account for the anticipated early arrival of tourists for mini-season, some of whom stay over until the weekend after the regular season opens. Under F.S. 125.66(3), the BOCC "at any regular or special meeting may enact or amend any ordinance with a waiver of the notice requirements of subsection (2) by a four-fifths vote of the membership of such board, declaring that an emergency exists and that the immediate enactment of said ordinance is necessary." In order for this ordinance to pass, at least 4 commissioners must vote for it. As drafted, the proposed ordinance would have several enforcement options: Type of When Enforceable Enforcing Adjudicated by Maximum Enforcement A encies Penalty Quasi- Knowing & Sheriff County Court Up to Criminal intention violation in City police depts. Judge 60 days in jail& presence of LEO State LEO $500 fine Civil Citation Violation in Code Compliance County Court Up to presence of LEO or (County& cities) Judge $500 fine code compliance Sheriff City police depts. State LEO Notice of Upon discovery of a County&cities' County&cities' $1000 Pt offense Violation violation code compliance Code Compliance $5000 2nd offense departments Special Magistrates Injunctive Upon discovery of a State Attorney Circuit Court Judge Injunction Relief violation County Attorney violators can be Cities' Attorneys held in contempt of Court—up to 6 months in jail Private Right Upon discover of a Any person Circuit Court Judge Injunction of Action— violation violators can be injunctive held in contempt relief of Court—up to 6 months in jail PREVIOUS RELEVANT BOCC ACTION: 7/8/20 directed County Attorney to draft ordinance. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATION: Approval DOCUMENTATION: Draft ordinance closing bars and restaurants at night during lobster season FINANCIAL IMPACT: Effective Date: July 26, 2020 Expiration Date: August 9, 2020 Total Dollar Value of Contract: n/a Total Cost to County: n/a Current Year Portion: n/a Budgeted: n/a Source of Funds: n/a CPI: n/a Indirect Costs: n/a Estimated Ongoing Costs Not Included in above dollar amounts: n/a Revenue Producing: If yes, amount: Grant: County Match: Insurance Required: Additional Details: n/a REVIEWED BY: Bob Shillinger Completed 07/11/2020 7:41 PM Bob Shillinger Completed 07/11/2020 7:41 PM Kathy Peters Completed 07/13/2020 12:39 PM Board of County Commissioners Pending 07/15/2020 9:00 AM ORDINANCE NO. -2020 AN UNCODIFIED EMERGENCY ORDINANCE BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA TO MANDATE THAT ALL BARS, RESTAURANTS, AND FOOD SERVICE ESTABLISHMENTS CLOSE FROM 11 P.M. UNTIL 5 A.M. EACH DAY STARTING AT 11 P.M. ON SUNDAY, JULY 26, 2020 AND ENDING AT 11 P.M. ON SUNDAY, AUGUST 9, 2020; ESTABLISHING A MINIMUM COUNTY-WIDE REQUIREMENT, EXCEPT TO THE EXTENT OF A MUNICIPAL ORDINANCE IN CONFLICT; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR TRANSMITTAL TO THE SECRETARY OF STATE AND PROVIDING FOR AN EFFECTIVE AND SUNSET DATE. WHEREAS,the Board of County Commissioners of Monroe County, Florida(hereinafter "Board") finds that COVID-19 presents a danger to the health, safety, and welfare of the public; and WHEREAS, the Centers for Disease Control (CDC) advises that COVID-19 spreads mainly from person to person through respiratory droplets produced when an infected person coughs, sneezes, or talks; these droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs; and studies and evidence on infection control report that these droplets usually travel around 6 feet(about two arms lengths); and WHEREAS, the CDC advises that a significant portion of individuals with coronavirus lack symptoms ("asymptomatic") and that even those who eventually develop symptoms ("pre- symptomatic") can transmit the virus to others before showing symptoms. This means that the virus can spread between people interacting in close proximity—for example, speaking, coughing, or sneezing—even if those people are not exhibiting symptoms; and WHEREAS, despite several protective measures taken by the State and the County, the infection rates have grown worse; and WHEREAS, state and local officials from Miami-Dade, Broward and Palm Beach Counties have recognized that these three counties have seen the gravest infection rates of the State; and WHEREAS, Miami-Dade County is immediately adjacent to Monroe County and Broward County is located between Miami-Dade and Palm Beach counties; and WHEREAS, according to representatives of the Monroe County Tourist Development Council, much of the summer tourism market in the Keys stems from residents of Miami-Dade, Broward, and Palm Beach counties; and Page 1 of 6 WHEREAS, current research has shown that a leading means of spreading the virus is by passage of aerosol particles exhaled by infected persons; and WHEREAS, the CDC, state and local health officials, as well as Monroe County, have adopted recommendations and requirements to limit opportunities for spread through such measures as limiting crowd size, facial covering rules and recommendations, closing bars and limiting restaurant service; and limiting other activities where people come into contact with other people with whom they have not quarantined; and WHEREAS,the Florida Fish&Wildlife Commission(FWC)has established a 2-day sport season for recreational harvest of spiny lobster; and WHEREAS,this 2-day mini season precedes the opening of commercial lobster season so as to reduce conflicts between recreational and commercial fishermen competing for lobsters if there was but one opening day of lobster season; and WHEREAS, in 2020, the lobster mini-season falls on July 29th and 30th and the regular lobster season begins on August 6, 2020; and WHEREAS, FWC has advised that, by far, Monroe County is the county most impacted by mini-season in terms of the number of people participating in the season; and WHEREAS, experience has demonstrated that the annual mini-lobster season attracts a large number of visitors to Monroe County; and WHEREAS, while the actual act of harvesting lobster involves scuba diving, free diving, snorkeling and bully netting are activities that do not directly facilitate the spread of the virus, many of the people doing the harvesting will engage in social activities in off-hours that risk the community spread of the virus, including the patronizing of local restaurants and bars; and WHEREAS, experience has demonstrated that many recreational lobster fishermen also flock to the Keys at the opening of the regular lobster season in early August; and WHEREAS, on June 26, 2020, the Florida Department of Business and Professional Regulation (DBPR) issued Emergency Order 2020-09, which closed bars for all but carry out service, as amended on July 1, 2020; and WHEREAS, DBPR premised that Order on the statement that bars serve as venues for spread of the virus because people tend not to engage in social distancing and tend to mix with people with whom they have not been quarantining; and WHEREAS, the local effect of DBPR's order is that people who used to gather at bars have shifted to restaurants as the preferred spot for late night congregating without engaging in social distancing; and Page 2 of 6 WHEREAS,the Board finds it is in the best interest of the public health,safety and welfare of the residents and workers of, and visitors to, the Florida Keys to prohibit bars and restaurants from operating during the hours of 11 P.M.until 5 A.M. during the period beginning at 11:00 P.M. on July 26,2020,the Sunday before mini-season, and concluding at 11:00 P.M. on August 9,2020, the Sunday after the opening of the regular lobster season; and WHEREAS, the Board finds that the inconvenience of an ordinance requiring the late night closures of bars and restaurants during this two-week period is minimal compared to the risk to the health, safety, and welfare of the community were no such rule imposed and is preferable to requesting the FWC cancel or reschedule mini-lobster season; and WHEREAS, the Board finds implementation of this ordinance is necessary for the preservation of the health, safety, and welfare of the community; and WHEREAS, several other state and local jurisdictions across the country have mandated curfews for restaurants and bars in their response to COVID-19; and WHEREAS, Section 1(f) of Article VIII of the Florida Constitution vests the Board with the authority to enact ordinances having countywide effect that are not inconsistent with state law, provided that such ordinance shall not be effective within a municipality that has adopted an ordinance in conflict with the County ordinance, to the extent of such conflict; and WHEREAS,the State of Florida has not preempted local governments from regulating in the field of minimum health requirements with respect to COVID-19; and WHEREAS, adopting regulations via ordinance allows for enforcement through a variety of mechanisms including a quasi-criminal offense under F.S. 125.69(1); civil and administrative remedies under Chapter 162, Florida Statutes; and enforcement actions for injunctive and other relief in Circuit Court; and WHEREAS, the Florida Legislature has declared that "[s]afeguarding the life and property of its citizens is an innate responsibility of the governing body of each political subdivision of the state" such as Monroe County and its five municipalities; F.S. 252.38; and WHEREAS, F.S. 252.38(3)(a)(5) gives the County the power and authority to waive the procedures and formalities otherwise required of the political subdivision by law in order to take whatever prudent action is necessary to ensure the health, safety, and welfare of the community; and WHEREAS, F.S. 125.66(3)permits the Board to waive the notice requirement and adopt an ordinance by 4/5th vote in emergency circumstances; Page 3 of 6 NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: SECTION 1. Findings. The above recitals are adopted by the Board as legislative findings. The Board further finds that an emergency exists that necessitates dispensing with the notice requirements in F.S. 125.66. SECTION 2. Definitions. The following definitions shall apply in this ordinance. (1) A food service establishment is defined to have the same definition as provided for in F.S. 500.03(1)(r) and/or F.S. 509.013(5)(a), Florida Statutes, (2020), and to include mobile food vendors such as food trucks and carts. (2) A bar is defined as any vendor licensed by the Department of Business and Professional Regulations (DBPR) to sell alcoholic beverages for consumption on premises. (3) An operator shall mean any individual or entity that owns a bar and/or food service establishment, or controls the operation of the business, even if only for a period of time, regardless of the formal title or role held by that individual. SECTION 3. Mandatory requirements. (1) During the period when this ordinance is in effect, a bar and/or food service establishment shall close to the public during the hours of 11:00 P.M. and 5:00 A.M. the following morning. (2) This prohibition does not prevent a bar or food service establishment from having employees on premises during the hours when closed under this ordinance to engage in food preparation, restocking supplies, cleaning the establishment, or maintaining security. (3) The operator of the bar and/or food service establishment shall ensure that every individual in that bar and/or food service establishment complies with this ordinance. SECTION 4. Penalties and Enforcement. This ordinance may be enforced in the following manner: (1) Quasi-Criminal Offense. a. Any state, county, or municipal law enforcement officer may arrest or issue a notice to appear for any knowing and intentional violations committed in his or her presence or through procurement of an arrest warrant. Violations shall be prosecuted by the State Attorney of the 16th Judicial Circuit. Page 4 of 6 b. A person found in violation may be punished by up to 60 days in the County jail and/or a fine of up to $500. Each day a violation of this ordinance occurs is considered a separate offense. (2) Civil Citation. a. A county or municipal code compliance or state, county, or municipal law enforcement officer may, upon observation of a violation by a person, issue a notice to appear or civil citation to appear in County Court. b. Any person or business establishment prosecuted under this subsection and found in violation of this ordinance may be punished by a fine of up to $500.00. Each day a violation of this ordinance occurs is considered a separate offense. (3) Administrative Notice of Violation a. A county or municipal code compliance officer may, upon discovery of a violation, issue a notice of violation and notice to appear before the code compliance board or special magistrate of that officer's jurisdiction. b. Any person or business establishment found in violation of this ordinance may be fined pursuant to part I of chapter 162,Florida Statutes. Each day a violation of this ordinance occurs is considered a separate offense. (4) Injunctive relief. a. The State Attorney of the 16th Judicial Circuit and/or the County Attorney may file an action for injunctive relief in Circuit Court seeking to enjoin violations that occur throughout the County, except for violations that occur in a municipality that has adopted an ordinance in conflict with this ordinance. b. The City or Village Attorney for a municipality may file an action for injunctive relief in Circuit Court seeking to enjoin violations that occur with that municipality. (5) Private Right of Action. Any natural person may seek injunctive relief in the Circuit Court for the 16th Judicial Circuit to enforce violations of this section against a violator. Attorney's fees and costs incurred in an action to enforce this ordinance may be awarded to the substantially prevailing party at the discretion of the court. Page 5 of 6 SECTION 5. Severability. If any section, subsection, sentence, clause, or provision of this ordinance is held by a court of competent jurisdiction to be invalid,the remainder of this ordinance shall not be affected by such invalidity. SECTION 6. Applicability and Conflict. This ordinance is intended to have countywide application except within a municipality which has adopted an ordinance in conflict this this ordinance pursuant to Article VIII, Section 1 of the Florida Constitution. All County ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. SECTION 7. Effective Date. This Ordinance shall take immediate effect upon adoption and filing with the Department of State and shall become enforceable at 11:00 P.M. on Sunday, July 26, 2020. SECTION 8. Sunset Date. This ordinance shall sunset at 11:00 P.M. on Sunday,August 9,2020. SECTION 9. Codification. Due to the temporary nature of this ordinance, the Board directs the Clerk to send the ordinance to the Municipal Code Corporation for publication on its website but with instructions not to codify the ordinance within the Monroe County Code. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 15th day of July 2020. Mayor Heather Carruthers Mayor Pro Tem Michelle Coldiron Commissioner Craig Cates Commissioner David Rice Commissioner Sylvia Murphy (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: KEVIN MADOK, Clerk OF MONROE COUNTY, FLORIDA By: By: As Deputy Clerk Mayor Heather Carruthers Page 6 of 6