court denies motion to stop ocean drive ballot question

Ocean Drive

Susan Askew
Susan Askew

court denies motion to stop ocean drive ballot question:

voters will decide on rollback of alcohol sale hours

The Eleventh Circuit Court has ruled against Mango’s Tropical Café and 14 other parties requesting an emergency injunction to stop Miami Beach's ballot question on rolling back hours of alcohol sales on Ocean Drive.
 
The question to voters will be if outdoor alcohol sales should stop at 2 am versus the current 5 am on the area of Ocean Drive between 5th and 15th Streets. Sales would still be permitted until 5 am at indoor establishments and those located entirely within hotels.
 
In seeking to stop the ballot question, “Plaintiffs maintain the proposed ballot is misleading and invalid … and would, if approved, violate local and State laws, including due process,” Judge Dennis Murphy wrote for the Court.
 
Citing Florida law, Murphy wrote, “The burden required to sustain a challenge to ballot language is ‘a high hurdle that must be cleared,’ and must be approached with ‘extreme caution’ with relief granted only in ‘rare instances’ … To obtain a permanent injunction, the petitioner must ‘establish a clear legal right, an inadequate remedy at law, and that irreparable harm will arise absent injunctive relief.’”
 
The Florida Constitution grants the “power of referendum”, Murphy wrote, as well as the authorization for “representative bodies to seek approval of legislative actions”. Additionally, Murphy cited the Miami Beach City Charter which gives the Commission the authorization to submit “any measure” to voters for approval.
 
“It is well settled that the City has the authority to restrict, or even ban, the sale of alcohol in order to ensure the safety of its residents pursuant to its ‘inherent police power’”, an action that can be taken without voter approval, Murphy wrote. “Consequently, the Plaintiff’s argument that the City acted undemocratically by empowering its residents to exercise their Constitutionally-reserved referendum rights to initiate a change of its alcohol sale Ordinance is contrary to law.”
 
With regard to the ballot language being misleading, the Court quoted the question which reads:
 
Changing alcoholic beverage sales/consumption termination time on Ocean Drive from 5th to 15th Streets
 
City law currently allows the sale and consumption of alcoholic beverages on private property at alcoholic beverage establishments located on Ocean Drive from 5th to 15th Streets from 8:00 am until 5:00 am the following day. Shall an ordinance be adopted changing this current 5:00 am termination time to 2:00 am, exempting from this time change those indoor portions of alcoholic beverage establishments that are completely enclosed and located entirely within hotels?
 
Murphy wrote, “The ballot clearly states the chief purpose.” In response to plaintiffs’ complaint that it did not clearly state the ballot was binding, Murphy wrote, “The ballot plainly asks the voters for an instruction or command: ‘Shall an ordinance be adopted…’”
 
Concluding his opinion, Murphy wrote, “Plaintiff’s Motion fails to demonstrate a ‘clear legal right’ to injunctive relief.”
 
In a letter to Commission, City Manager Jimmy Morales noted the decision may be appealed to the Third District Court within 30 days of the order or by November 1.
 
The election is November 7th.
 
Morales’ letter and the Court's decision can be found here.

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