ORDINANCE NO. 2007-__
AN
ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, RELATING TO A
DOG FRIENDLY DINNING PROGRAM BY PERMITTING DOGS AT OUTDOOR PORTIONS OF CERTAIN
RESTAURANTS; MAKING FINDINGS; AMENDING THE LAND DEVELOPMENT CODE BY CREATING SECTION
7A-70, APPENDIX A, TOWN CODE OF THE TOWN OF MELBOURNE BEACH, FLORIDA;
ESTABLISHING, PURSUANT TO SECTION 509.233, FLORIDA STATUTES, A LOCAL EXEMPTION
TO CERTAIN PROVISIONS OF GENERAL LAW AND STATE AGENCY RULES RELATING TO CERTAIN
PUBLIC FOOD SERVICE ESTASBLISHMENTS KNOWN WITHIN THE TOWN AS EATING AND
DRINKING ESTABLISHMENTS IN ORDER TO PERMIT PATRONS’ DOGS AT CERTAIN DESIGNATED OUTDOOR
PORTIONS OF SUCH ESTABLISHMENTS; PROVIDING A PURPOSE, INTENT, AND DEFINITIONS; REQUIRING A PERMIT
AND SETTING FORTH APPLICATION REQUIREMENTS; SETTING FORTH GENERAL REGULATIONS;
PROVIDING FOR ENFORCEMENT AND VIOLATIONS; PROVIDING FOR EXPIRATION OF DOG
FRIENDLY DINNING PROGRAM; PROVIDING FOR SEVERABILITY AND INTERPRETATION;
PROVIDING FOR THE REPEAL OF INCONSISTENT RESOLUTIONS AND ORDINANCES; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Chapter 509, Florida Statutes, requires the
State of Florida, Division of Hotels and Restaurants (the “Division”) of the
Department of Business and Professional Regulation (the “Department”) to carry
out all laws and rules relating to the inspection and regulation of public food
service establishment known as eating and drinking establishments for the
purpose of safeguarding the public health, safety, and welfare; and
WHEREAS, section 509.013(5), Florida Statutes,
defines “public food service establishment” as “any building, vehicle, place,
or structure, or any room or division of a building, vehicle, place, or
structure, where food is prepared, served, or sold for immediate consumption on
or in the vicinity of the premises; called for or taken out by customers; or prepared
prior to being delivered to another location for consumption; and
WHEREAS, Section 509.032, Florida Statutes, requires
the Division to adopt and enforce such rules as are necessary to ensure the
protection of the public from food-borne illness in public food service
establishments; and
WHEREAS, Section 509.032(2)(d), Florida Statutes,
further requires the Division to adopt such rules in order to “provide the standards
and requirements for obtaining, storing, preparing, processing, serving, or
displaying food in eating and drinking establishments, approving public food
service establishment plans, conducting necessary eating and drinking
establishment inspections for compliance with sanitation regulations, cooperating
and coordinating with the Department of Health in epidemiological investigations,
and initiating enforcement actions, and for other such responsibilities deemed
necessary by the Division”; and
WHEREAS, pursuant to the grant of rulemaking
authority cited in section 509.032, Florida Statutes, the Division has adopted
by rule sanitation and safety requirements of public food service establishments,
including requirements relating to physical facilities, which adopts by
reference certain portions of the Food and Drug Administration Food Code (the
“Food Code”), as amended from time to time, as developed by the Food and Drug
Administration of the United States Department of Health and Human Services;
and
WHEREAS, the Food Code generally prohibits live
animals from eating and drinking establishments; and
WHEREAS, Section 509.032(7). Florida Statutes,
expressly preempts to the state regulation of public lodging establishments and
public food service establishments for compliance with the sanitation standards
adopted by the Division; and
WHEREAS, Section 509.032(7), Florida Statutes,
expressly limits the general home rule powers of local governments as it
relates to the regulation of public food service establishments; and
WHEREAS, in 2006, the Legislature adopted Chapter
2006-72, Laws of Florida, codified as Section 509.233, Florida Statutes, creating
a pilot program that authorizes local governments to adopt an ordinance establishing
a local exemption to certain provisions of general law and Division rules relating
to public food service establishments in order to permit patrons’ dogs at certain
designated outdoor portions of such establishments (the “Act”); and
WHEREAS, it is the purpose of this Ordinance to implement
the 3-year pilot program established by Section 509.223, Florida Statutes, by
permitting public food service establishments, known within the Town as eating
and drinking establishments in the Town of Melbourne Beach, subject to the
terms of this Ordinance, to become exempt from certain portions of the Food
Code, as adopted by the Division, in order to allow patrons’ dogs within
certain designated outdoor portions of their respective establishments; and
WHEREAS, recognizing that the animal subspecies Canis lupus familiaris, commonly known
as “dogs,” has, since time immemorial, demonstrated a unique capacity for
loyalty, devotion, love, friendship, compassion, and service to humankind, and
have earned the colloquial sobriquet of “Man’s Best Friend”; and
WHEREAS, the Melbourne Beach Town Commission hereby
finds and determines that this Ordinance is in the best interest of the public
health, safety’, and welfare, and is consistent with the applicable provisions
of the Town’s adopted Comprehensive Plan,
BE IT
ENACTED BY THE TOWN OF
SECTION 1.
That the Town Code of the Town of Melbourne Beach, Florida, in Appendix
A, is hereby amended by adding a Section, to be numbered 7A-70, which said
section reads as follows:
§7A-70. DOG FRIENDLY DINING PROGRAM.
(a) Purpose
and intent; Program created.
(1) The purpose and intent of this section is to implement
the pilot program established by section 509.223, Florida Statutes (2006), by
permitting certain public food service establishments, classified as eating and
drinking establishments under this code, within the Town of Melbourne Beach, Florida,
subject to the terms and contained herein, to become exempt from certain
portions of the United States Food and Drug Administration Food Code, as
amended from time to time, and as adopted by the State of Florida Division of
Hotels and Restaurants of the Department of Business and Professional
Regulation, in order to allow patrons’ dogs to be within certain designated outdoor
portions of their respective establishments.
(2) Pursuant to section 509.233(2), Florida
Statutes, there is hereby created in the Town of Melbourne Beach, Florida, a
local exemption procedure to certain provisions of the United States Food and
Drug Administration Food Code, as amended from time to time, and as adopted by
the State of Florida Division of Hotels and Restaurants of the Department of
Business and Professional Regulation, in order to allow patrons’ dogs within
certain designated outdoor portions of public food service establishments,
classified as food and drinking establishments under this code, which exemption
procedure maybe known as the “Town of Melbourne Beach Dog Friendly Dining
Program.”
(b) Definitions. As used in this section, the following terms
shall be defined as set forth herein unless the context clearly indicates or
requires a different meaning:
(1) “Division” means the Division of Hotels and Restaurants
of the State of
(2) “Dog” means an animal of the subspecies Canis lupus familiars.
(3) “Eating and drinking
establishment,” as permitted in this code, and for the limited purposes of this
section shall refer only to a “public food service establishment” as defined in
section 509.013, Florida Statutes.
(4) “Outdoor area” means an area adjacent to a eating
and drinking establishment that is predominantly or totally free of any
physical barrier on all sides and above and that is not used as a public
walkway or as an internal walkway within a retail center or similar facility.
(5) “Patron has the meaning given to “guest” as
set forth in section 509.013.
(c) Permit Required;
Submittals.
(1) In order to protect the health, safety, and
general welfare of the public, an eating and drinking establishment is
prohibited from having any dog on its premises unless it possesses a valid
permit issued in accordance with this part, or unless otherwise permitted
pursuant to Florida Statutes.
(2) Applications for a permit under this part
shall be made to the building official, on a form provided for such purpose by
the building official, and shall include, along with any other such information
deemed reasonably necessary by the building official in order to implement and
enforce the provisions of this part, the following:
(A) the name, location, and mailing address of the
subject eating and drinking establishment;
(B) the name, mailing location, and telephone
contact information of the permit applicant;
(C) a diagram and description of the outdoor area
to the designated as available to patrons’ dogs, including dimensions of the
designated area; a depiction of the number
and placement of tables, chairs, and restaurant equipment, if any; the entryways
and exits to the designated outdoor area; the boundaries of the designated area
and of any other areas of outdoor dining not available for patrons dogs; any
fences or other barriers; surrounding property lines and public rights-of-ways,
including sidewalks and common pathways; and such other information reasonably
required by the building official. The
diagram or plan shall be accurate and to scale but need not be prepared by a
licensed design professional.
(D) a description of the days of the week and
hours of operation that patrons’ dogs will be permitted in the designated
outdoor area; and
(E) all application materials shall contain the
appropriate Division-issued license number for the subject eating and drinking
establishment.
(3) The town commission may from time to time
adopt a reasonable fee by resolution, said fee to cover the cost of
processing the initial application,
permitting, inspections, renewals, and enforcement.
(d) General
Regulations..
(1) In order to protect the health, safety, and
general welfare of the public, and pursuant to section 509.233,
(A) All eating and drinking establishment employees
shall wash their hands promptly after touching, petting, or otherwise handling
any dog. Employees shall be prohibited
from touching, petting, or otherwise handling any dog while serving food or
beverages or handling tableware or before entering other parts of the eating
and drinking establishment;
(B) Patrons in a designated outdoor area shall be
advised that they should wash their hands before eating. A waterless hand
sanitizer shall he provided at all tables in the designated outdoor area;
(C) Employees and patrons shall be instructed that
they shall not allow dogs to come into contact with serving dishes, utensils,
tableware, linens, paper products, or any other items involved in food service
operations;
(D) Patrons shall keep their dogs on a leash at
all times and shall keep their dogs under reasonable control;
(E) Dogs shall not be allowed on chairs, tables,
or other furnishings;
(F) All table and chair surfaces shall be cleaned
and sanitized with an approved product between seating of patrons. Spilled food and drink shall be removed from the
floor or ground between seating of patrons;
(G) Accidents involving dog waste shall be cleaned
immediately and the area sanitized with an approved product. A kit with the materials for this purpose
shall be kept near the designated outdoor area;
(H) At least one sign reminding employees of the
applicable rules including those contained in this part, and those additional
rules and regulations, if any, included as further conditions of the permit issued
by the building official, shall be posted in a conspicuous location frequented
by employees within the eating and drinking establishment. The mandatory sign shall be not less than
eight and one-half inches in width and eleven inches in height (8 ½” x 11”) and
printed in easily legible typeface of
not less than twenty (20) point font size.
The sign provided for in this sub-paragraph (H) shall be in addition to
the signs required by sub-paragraphs (I) and (J);
(I) At least one sign reminding patrons of the
applicable rules, including those contained in this part, and those additional
rules and regulations, if any, included as further conditions of the permit issued
by the building official pursuant to this section, shall be posted in a conspicuous
location within the designated outdoor portion of the eating and drinking
establishment. The mandatory sign shall be not less than eight and one-half
inches in width and eleven inches in height (8 ½” x 11”) and printed in easily legible
typeface of not less than twenty (20) point font size. The sign provided for in this sub-paragraph
(I) shall be in addition to the signs required by sub-paragraphs (H) and (J);
(J) At all times while the designated outdoor
portion of the eating and drinking establishment is available to patrons and
their dogs, at least one sign shall be posted in a conspicuous and public
location near the entrance to the designated outdoor portion of the eating
and drinking establishment, the purpose of which shall be to place patrons on notice
that the designated outdoor portion of the eating and drinking establishment is
currently available to patrons accompanied by their dog or dogs. The mandatory sign shall he not less than
eight and one-half inches in width and eleven inches in height (8 ½” x 11”) and
printed in easily legible typeface of not less than twenty (20) point font size. The sign provided for in this sub-paragraph
(J) shall be in addition to the signs required by sub-paragraphs (H) and (I);
(K) Dogs shall not be permitted to travel through
indoor or undesignated outdoor portions of the eating and drinking
establishment, and ingress and egress to
the designated outdoor portions of the eating and drinking establishment shall not require entrance
into or passage through any indoor or undesignated outdoor portion of the eating
and drinking establishment.
(2) A
permit issued pursuant to this part shall not be transferred to a subsequent
owner upon the sale or transfer of a eating and drinking establishment, but
shall expire automatically upon such sale or transfer. The subsequent owner shall be required to
reapply for a permit pursuant to this part, if such owner wishes to continue to
accommodate patron’s dogs. Permits shall expire on June 30th of each
year.
(e) Enforcement;
Violations.
(1) In accordance with section 509.233(6), Florida
Statutes, the building official shall accept and document complaints related to
the dog friendly dining program within the town, and shall timely report to the
division all such complaints and the town’s enforcement response to such
complaint. The building official shall
also timely provide the division with a copy of all approved applications and
permits issued pursuant to this part.
(2) Any
eating and drinking establishment that fails to comply with the requirements of
this part shall be guilty of violating this section and shall be subject to any
and all enforcement proceedings consistent with the applicable provisions of
the town code and general law. Each day
a violation exists shall constitute a distinct and separate offense.
(f) Sunsetting of this section. This section shall sunset on
SECTION 2.
Severability/Interpretation Clause.
(a)
In the event that any term, provision, clause, sentence or section of
this Ordinance shall be held by a court of competent jurisdiction to be partially
or wholly unenforceable or invalid for any reason whatsoever, any such
invalidity, illegality, or unenforceability shall not affect any of the other
or remaining terms, provisions, clauses, sentences, or sections of this
Ordinance, and this Ordinance shall be read and/or applied as if the invalid,
illegal, or unenforceable term, provision, clause, sentence, or section did not
exist.
(b) In
interpreting the provisions of this Ordinance, the following rules and symbols
shall apply:
(1)
Words underlined are additions to existing text.
(2)
Words stricken through are deletions from existing text.
(3)
Asterisks (* * *) indicates a deletion from the Ordinance of text
existing in the Code of Ordinances. It
is intended that the text in the Code of Ordinance denoted by the asterisks and
not set forth in this Ordinance shall remain unchanged from the language
existing prior to adoption of this Ordinance.
SECTION
3. Ordinances and Resolutions in
Conflict. All ordinances or resolutions
or parts thereof that may be determined to be in conflict herewith, except
portions of the Comprehensive Plan, are hereby repealed.
SECTION
4. Effective Date. This Ordinance shall become effective upon
adoption.
PASSED by the Town
Commission of the Town of Melbourne Beach on first reading on the ___ day of December,
2007, and ADOPTED by the Town Commission of the Town of Melbourne Beach,
Florida, on final reading on the ___ day of January, 2007.
TOWN OF
By:____________________________
William G. Stacey, Mayor
ATTEST:
(TOWN SEAL)
_______________________
Lenore
R. Milan, CMC,
Town
Clerk