Fort Walton Beach Council agenda — 04-28-09 regular — reading text

Mike Anderson, Mayor 105 106 107 Attest: Approved for form and legal sufficiency. 108 109 110 Helen Spencer, City Clerk Toni L. Craig, City Attorney 111 112 New language is underlined; deleted language is 6tfiskGR. 113 114 Codification Instructions: Sections of this Ordinance to be codified: Section 2 115 Placement: Amends Volume II, Chapter 9. 01 as stated ATTYDRAFT 4/ 21/ 09  1- WE U10002 ATTORNEY AT LAW City, County, Local Government Law NNNN Marital & Family Law 21 April 2009 To: Mayor & Council CC: City Manager City Clerk RE: Section 9. 01. 04, Sunday Hours of Alcohol Sales Attached is information for your discussion regarding section 9. 01. 04 of the Code of Ordinances. This information includes a draft ordinance to correct an ambiguity, emails that advise about how this issue came up, portions of the Florida Administrative Code that illustrate licensing criteria and information, three licenses held for locations with the City that may be affected by any change the Council may decide to make, and a piece of case law regarding the City' s authority to regulate this matter. We will discuss all of this information at the Council meeting. If anyone has a question before then, please contact me. Thank you. PO Box 2917 105 Lewis St Ste 102 Fort Walton Beach FL 32549 PHONE: ( 850) 243 -6969 FAX: ( 850) 244 -8929 E -MAIL: tonicraig @cox. net WEB SITE: www.tonicraig. info Toni Craig From: Rose Berry [ rberry@fwb.org] Sent: Thursday, January 22, 2009 1: 40 PM To: tonicraig @cox.net Cc: Ted Litschauer Subject: FW: serving alcohol on Sundays Toni, The following is correspondence I' ve had with Mr. Phillips who' s purchased the Pirates Cove and El Villas liquor establishments. As I stated in the first e- mail we received a call reference a potential ordinance and statute violation. I' m also going to send you an e- mail that I received today from his attorney. I don' t want to presume to debate the law with him. I did ask the Beverage Department to send me their administrative order on what constitutes a full meal. Verbally they advised that nachos would not meet the criteria. I' ll e - mail that to you when I receive it. Thanks Original Message---- - From: Rose Berry Sent: Saturday, January 17, 2009 8: 02 AM To: Ryan Phillips Subject: RE: serving alcohol on Sundays Thank you Mr. Phillips. If you' ll let me know who the restaurants are that you believe are violating city ordinance, we' ll be happy to contact them also and make them aware of laws and ordinances. We always appreciate people keeping us informed of potential law violations. I do appreciate your reply and your cooperation. From: Ryan Phillips [ mailto: ryan@phillipsoil. com] Sent: Fri 1/ 16/ 2009 6: 57 PM To: Rose Berry Cc: ' El Villas'; ' Pirates Cove Liquors'; ' bruce'; gil @beverage - Law. com Subject: RE: serving alcohol on Sundays We will be opening at 11am and will be serving Nachos and Non - Alcoholic Beverages until fpm at this time. So patrons can watch the games that begin on Television at 11: 30am) My attorney has reviewed the City Ordinance regarding this particular issue of allowing Restaurants to Serve Alcoholic beverages with a FULL MEAL and we are planning to come to the City Council to discuss this discriminatory practice very soon.  As the law reads right now if a Restaurant serves an Alcoholic beverage to a Customer prior to fpm than that patron must also purchase a " FULL MEAL ". We have witnessed and recorded more than 25 restaurants in the City of Fort Walton Beach that are violating this ordinance. I would request that you enforce this as strictly with them as you intend to do with us until this ordinance can be addressed and hopefully changed to be Fair for all Tax Paying businesses in the City. Ryan From: Rose Berry [ mailto: rberry@fwb. org] Sent: Friday, January 16, 2009 4: 56 PM To: ryan@phillipsoil. com Subject: serving alcohol on Sundays Mr. Phillips, We received an anonymous call that Pirates Cove and E1 Villas were going to be selling alcoholic beverages prior to fpm on Sundays and sell nachos to cover the food requirement. If this is true I just wanted to let you know that even if you serve food it would constitute a violation since you aren' t licensed as a restaurant nor are you a private organization. Thanks for your cooperation and attention to detail, we appreciate your support. Rose Berry Captain 7 Hollywood Boulevard NE Fort Walton Beach Police Department Fort Walton Beach, Florida 32548 850) 833 - 9546 or ( 850) 833 - 9545 Fax ( 850) 833 - 9684 The information contained in this communication ( including any attachments hereto) is confidential and is intended solely for the personal and confidential use of the individual or entity to whom it is addressed. The information may also constitute a legally privileged confidential communication. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this communication in error and that any review, dissemination, copying, or unauthorized use of this information, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this communication in error, please notify us immediately by e- mail, and delete the original message. Thank you Toni Craig From: Rose Berry [ rberry@fwb. org] Sent: Thursday, January 22, 2009 1: 48 PM To: Gil Osterloh Cc: tonicraig @cox.net Subject: RE: serving alcohol on Sundays Mr. Osterloh, I am forwarding your e- mail to our City Attorney, Ms Toni Craig. She' ll be happy to discuss the ordinance and interpretation with you. Again, please thank Mr. Phillips for his cooperation; I' m sure that he wouldn' t knowingly violate applicable ordinances or statutes. Original Message---- - From: Gil Osterloh [ mailto: gil@beverage - law. com] Sent: Wednesday, January 21, 2009 6: 41 PM To: Ryan Phillips; Rose Berry Cc: El Villas; Pirates Cove Liquors; bruce Subject: Re: serving alcohol on Sundays Captain Berry, My firm represents Mr. Ryan Phillips and Variety, Inc. before the Department of Business and Professional Regulation in matters pertaining to licensing. Mr. Phillips forwarded to me your email correspondence dated January 16th informing him that E1 Villas and Pirates Cove, which hold licenses under the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation, would be in violation of the law if they sold alcoholic beverages prior to 1 pm on Sundays while utilizing the sale of nachos as a means to meet the requirement of a full meal. Your correspondence goes on to state that, even if food were to be sold at these licensed premises, they would still be in violation because they are not licensed as a restaurant or a private organization. As a violation of any law could directly impact the ability to maintain a license issued by the DBPR, Mr. Phillips asked that I review your correspondence and also review the applicable city codes regarding alcoholic beverages in Fort Walton Beach, Florida to ensure that his establishments do not violate any laws that would affect the alcoholic beverage licenses issued to them. I work with volumes of codes and ordinances from hundreds of different cities and counties across the Southeast. Occasionally, I come across an outdated code or ordinance and mistakenly refer to it instead of its most current form. With that in mind, the items I' m about to point out pertaining to Fort Walton Beach Florida' s alcoholic beverage ordinance come from Chapter 9. 01, titled Alcoholic Beverages, Sec. 9. 01. 04- Hours for Sales. If this is not the most current form of the ordinance pertaining to alcoholic beverages, then please accept my sincere apologies and I respectfully ask that you forward such to me for review. Sec. 9. 01. 04, as I have it before me, reads: No alcoholic beverages may be sold, consumed, served, or permitted to be served or permitted to be consumed in any establishment holding a license under the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation, between the hours of 4: 00 a. m. and 7: 00 a. m. on Monday through Saturday. During any other portion of these days, alcoholic beverages, regardless of the alcoholic content, may be sold, consumed, or served by licensees pursuant to this section. On Sundays, no alcoholic beverages, regardless of the alcoholic content, may be sold, consumed, or served between the hours of 4: 00 a. m. and 1: 00 p. m., except that in eating places and restaurants that regularly serve full meals, no alcoholic beverages may be sold, consumed, or served between the hours of 4: 00 a. m. and 10: 00 a. m., and any sales, consumption or serving of alcoholic beverages between 10: 01 a. m. and 1: 00 p. m. are restricted to those sold in conjunction with the purchase of a full meal. Your correspondence to Mr. Phillips indicates his establishments would be in violation of the law if he served alcoholic beverages on Sunday prior to 1 pm if he served them in conjunction with food because he is not licensed as a restaurant or a private organization. I fail to see anywhere in this ordinance where there is a definition of the word " restaurant ". Beyond that, the ordinance clearly indicates that not only restaurants may serve alcoholic beverages prior to 1 pm but also, and I quote the ordinance, " eating places ". If patrons regularly eat food at Mr. Phillips' places of business,