Revocation; suspension

(a)

The city manager or designee shall deny the application for a BTR, or revoke the BTR of any individual, partnership, or other incorporated or unincorporated business entity holding a BTR under this article where it is determined by the city manager or designee that:

(1)

The BTR holder and/or owner of the property has materially misrepresented or failed to include the information required by this article to be included in the BTR application form;

(2)

The BTR holder and/or owner of the property, subsequent to being issued a BTR, has been convicted of or has pled guilty to a violation of a law of this state, or ordinance of the county or ordinance of the city, which violation occurred as a part of the main business activity of the BTR holder and/or owner of the property and not merely incident thereto;

(3)

The BTR holder and/or owner of the property is conducting business from premises which do not possess a valid and current certificate of occupancy issued by the department of planning, building and zoning;

(4)

The BTR holder and/or owner of the property is conducting business from premises which do not possess a valid and current certificate of use issued by the department of planning, building and zoning;

(5)

The BTR holder and/or owner of the property is conducting business from the proposed premises and is not in compliance with a zoning ordinance or other city ordinance;

(6)

Conduct is occurring at the premises, which conduct constitutes a breach of the peace by threatening the safety and welfare of the patrons at said premises or the general public and which conduct is recurring;

(7)

The BTR holder and/or owner of the property has obtained a permit, certificate or BTR for the premises, including a BTR issued pursuant to this article, by misleading and/or deceptive information or making false statements that were relied upon by the city or an employee operating in an official capacity in issuing the above-mentioned permit(s), certificate(s), or BTR; or

(8)

The BTR holder and/or owner of the property, subsequent to being issued a BTR, has had a permanent injunction in the form of an order and final judgment entered against said BTR holder and/or owner of the property enjoining restraining or preventing the BTR holder and/or owner of the property from exhibiting, showing, selling, lending, or transmitting any motion picture film(s), book(s), magazine(s), videotape(s) or other material that has been found to be obscene, lewd, lascivious, filthy or indecent pursuant to F.S. ch. 847, or construed, after said material(s) has undergone an adversary judicial hearing as required by law.

(b)

(1)

Upon issuance of a code enforcement citation alleging a violation affecting the health and safety of the community, the code compliance director shall notify in writing the city manager or designee of any violation of the enumerated grounds for revocation of a BTR contained in the ordinance from which this section derives. Upon said notification, the city manager or designee shall schedule an appellate hearing for the BTR holder and/or owner of the property within ten days of the date of such notification to the city manager or designee. The city manager or designee shall notify in writing, at least five days in advance of the appellate hearing, the BTR holder and owner of the property of the date, time and place of said appellate hearing and the specific charges that have caused the said revocation notice to be sent. Said revocation notice and notice of appellate hearing shall be sent to the BTR holder and owner of the property by registered mail, return receipt requested, to the property owner's address and the business address listed on the BTR, or said revocation notice and notice of appellate hearing may be perfected upon any employee of said business by any city police officer, BTR inspector or authorized process server at the business address listed on the BTR. At said appellate hearing, the BTR holder and/or owner of the property shall be given the opportunity to be represented by an attorney, to make a record of the hearing by the use of a court reporter, to call witnesses, to present documentary evidence, and to otherwise properly prove their appeal as to why the BTR should not remain in a revoked status.

(2)

Upon the receipt of the registered mail notice of the appellate hearing as described in subsection (b)(1) to the BTR holder (or upon perfecting notice upon any employee of the BTR holder's business) and owner of the property, the BTR shall be considered revoked or suspended as designated in the notice from the city manager or designee.

(c)

A revocation under this section shall extend for the BTR duration of the period, at which time a new application must be submitted. Said revocation shall begin to run from the date the revocation notice was sent by the city manager or designee.

(d)

All appellate revocation hearings shall be conducted in the following manner before a special master:

(1)

The proceedings shall be as informal as is compatible with the essential requirements of the law.

(2)

The admission of evidence shall be governed by the special master. Evidence is to be admitted at the discretion of the special master consistent with generally accepted legal principles governing the admission of evidence in administrative proceedings.

(3)

The BTR holder and/or owner of the property may be represented by counsel; the city may be represented by the city attorney or other counsel retained at the discretion of the city attorney.

(4)

The burden of proof being on the BTR holder and/or owner of the property, the order of presentation of evidence shall be as follows:

a.

The parties shall be entitled to present oral argument at the opening and at the closing of the hearing.

b.

The BTR holder and/or owner of the property, as appellant, has the burden of proof and shall produce such evidence as it may wish to offer in opposition to the continued revocation of the BTR.

c.

The city shall have the opportunity to present any evidence in support of maintaining the revocation of the BTR.

d.

The BTR holder and/or owner of the property may offer rebuttal testimony.

(5)

At the close of the hearing, the special master shall render the determination stating whether the BTR shall remain revoked or suspended or not. The decision must be based on competent substantial evidence and otherwise consistent with principles of law.

(6)

Upon rendition of the determination in any appellate revocation or suspension hearing, the special master shall file the determination with the office of hearing boards and shall cause a true and correct copy of the order to be sent by regular mail to the business address listed on the BTR and the owner of the property. The order may also be served upon any employee of said business by any city police officer, BTR receipt inspector or authorized process server at the business address listed on the BTR. It may also be handed to the BTR holder and/or owner of the property at the hearing.

(e)

If a BTR revocation or suspension is upheld under this section the city shall be entitled to recover its reasonable attorneys' fees and any costs of the hearing such as court reporters and transcription charges expended by the city.

(Ord. No. 10303, § 1, 7-23-87; Code 1980, § 31-25; Ord. No. 12683, § 2, 5-12-05; Ord. No. 12885, § 1, 2-8-07; Ord. No. 13106, § 2, 10-8-09; Ord. No. 13611, § 2, 6-23-16; Ord. No. 13676, § 2, 4-27-17)

Note— See the editor's note to § 31-46.

Case Law reference— License revocation proceeds directly from the finding that there has been a violation of city ordinances. The intent of the ordinances, read as a whole, is easily determined to be a violation by the licensee or his/her agent. Berman v. City of Miami, 17 Fla. Supp. 72; aff'd 127 So. 2d 683.

The city may revoke a nightclub license on a more strict basis than the state can revoke a liquor license. Sawyer v. City of Miami, 172 So. 2d 481; cert. den'd 177 So. 2d 476.

Revocation of the license of an adult theater for one year under paragraph (a)(8) is incompatible with the First Amendment because it imposes a prior restraint on presumptively protected expression. Gayety Theatres, Inc., v. City of Miami, 719 F.2d 1559 (1983).