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
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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
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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;
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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.
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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.
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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
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