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HomeMy WebLinkAboutO-2021-012 Creating Sec. 13-11 Virtual Public MeetingsORDINANCE NO. 2021-012 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AMENDING CHAPTER 13, ENTITLED "HEALTH AND SANITATION," TO CREATE SECTION 13-11, ENTITLED "VIRTUAL PUBLIC MEETINGS" AUTHORIZING THE CITY MANAGER TO MAKE PROVISIONS FOR PUBLIC MEETINGS BY USE OF COMMUNICATION MEDIA TECHNOLOGY AND FOR ATTENDANCE BY USE OF SUCH TECHNOLOGY BY ELECTED AND APPOINTED OFFICIALS DURING PERIODS WHEN THE CITY MANAGER DETERMINES AND DECLARES A LOCAL PUBLIC HEALTH EMERGENCY OR OTHER CIRCUMSTANCES IN WHICH THE CITY COMMISSION DETERMINES IT IS NECESSARY TO PROTECT THE HEALTH AND SAFETY OF CITY OFFICIALS, CITY STAFF, AND THE PUBLIC FOR THE DURATION OF THE DECLARED PUBLIC EMERGENCY; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Dania Beach deems it to be in the best interest of the citizens and residents of the City, to make provisions for public meetings by use of communication media technology and for attendance by use of such technology by elected and appointed officials during periods when the City Manager determines and declares a local public health emergency or other circumstances in which the City Commission determines necessary to protect the health and safety of City Officials, City staff, and the public; and WHEREAS, in adopting this Ordinance, the City Commission of the City of Dania Beach (the "City Commission") intends to protect the public health and safety by making provisions for the occurrence of and attendance at public meetings by use of communication media technology ("CMT") during local public health emergencies, as determined by the City Manager; and WHEREAS, Florida law, including Article 1, Section 24 (b) Florida Constitution, and Florida Statutes Sections 286.011 and 166.041, requires that meetings of elected and appointed officials ("Bodies"), for the conduct of public business, must be held following procedures (notice, access of meetings, opportunity to be heard, the taking of minutes, etc.) that ensure that the public is able to participate in and be aware of the decision making process (the "Sunshine Law"); and WHEREAS, Previously, when asked whether a public body complies with the Sunshine Law when one or more members of the Body wish to participate in a meeting electronically from a remote location, the Florida Attorney General ("AG") has opined that a quorum of the Body must be physically present in order to allow a member, who due to "extraordinary circumstances" is unable to physically attend the meeting, to appear and participate electronically; and WHEREAS, the City Commission finds there may be circumstances in which it would be s a clear and present danger in holding a public "in person" meeting for those attending and those who come in contact with those attending a meeting; and WHEREAS, the technology exists to conduct public meetings using technology in which the City can comply with the provisions of the Sunshine Law while preserving human life; and WHEREAS, the City Commission also possesses broad home rule powers that authorize it to protect the public health, safety, and welfare, declare emergencies, and protect its citizens; and WHEREAS, there is no statute, Charter provision, or ordinance that defines "present" as physically within the walls of the City Hall Chambers. Webster's Dictionary defines "in attendance" among other things as a meaning of "present". Article 3, Section 4 of the City Charter provides: "The majority of the members of the Commission of the City of Dania Beach shall constitute a quorum"; and WHEREAS, the City Charter does not require that a quorum be physically present; and WHEREAS, the Charter does not prohibit attendance at the meeting of City Commissioners by electronic media and the City Commission finds that its attendance requirement for the purpose of establishing a quorum, participating and voting can be satisfied by physical or CMT attendance. This same rule of attendance applies to City Board or Committee meetings and quasi-judicial hearings; and WHEREAS, there is no intrinsic error to use telephone and computer attendance to achieve a quorum. Consequently, the "preemption" of phone attendance, if it exists, must be expressly set forth in the Florida Constitution or general or special law, and not vaguely and ambiguously implied; and WHEREAS, the City Commission finds that no preemption exists in state law; and WHEREAS, the City Commission finds that it is in the best interests of the City Commission, Boards, Committees, City personnel, and citizens and residents of the City to authorize the City Manager to provide for the City Commission and members of the various Boards and Committees to be able to attend meetings electronically during a declared public 2 ORDINANCE #2021-012 health emergency, pursuant to the City's Charter, Chapter 252, Florida States, and the City's home rule authority, including that set forth in Article VIII, Section 2(b), Florida Constitution, and Section 166.021, Florida Statutes; BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. The foregoing whereas clauses are ratified and confirmed as being true and correct and is made a part of this Ordinance. Section 2. The Mayor and City Commission amend the City's Code of Ordinances, Chapter 13, entitled "Health and Sanitation," to create section 13-11, entitled "Virtual Public Meetings," as follows: CHAPTER13 HEALTH AND SANITATION . Virtual Public Meetings. 13-11. Re�� (a) Legislative Findings, Purpose, and Intent. In adopting this Ordinance, the City Commission of the City of Dania Beach (the "City Commission") intends to protect the public health and safety by making provisions for the occurrence of and attendance at public meetings by use of communication media technology ("CMT") during local public health emergencies, as determined by the City Manager. The City Commission finds: I . Florida law, including Article 1, Section 24 (b) Florida Constitution, and Florida Statutes Sections 286.011 and 166.041, requires that meetings of elected and appointed officials ("Bodies"), for the conduct of public business, must be held following procedures (notice, access of meetings, opportunity to be heard, the taking of minutes, etc.) that ensure that the public is able to participate in and be aware of the decision making process (the "Sunshine Law"). 2. Previously, when asked whether a public body complies with the Sunshine Law when one or more members of the Body wish to participate in a meeting electronically from a remote location, the Florida Attorney General ("AG") has opined that a quorum of the Body must be physically present in order to allow a member, who due to "extraordinary circumstances" is unable to physically attend the meeting, to appear and participate electronically. 3. On March 19, 2020, the AG issued an AGO 2020-03, which provides that "unless and until legislatively or judicially determined otherwise, if a quorum is required to conduct official business, local government bodies may only conduct meetings by teleconferencing or other technological means if either a statute perinits a quorum to be present by means other than 3 ORDINANCE #2021-012 in -person, or the in -person requirement for constituting a quorum is lawfully suspended by the Governor during the state of emergency." 4. Chapter 252, Florida Statutes, among other things, confers upon the City Commission the emergency powers provided for in Chapter 252 in order to protect the public peace, health, and safety; and to preserve the lives and property of the people of the state; and to "make, amend, and rescind such orders and rules as are necessary for emergency management purposes and to supplement the carrying out of the provisions of ss. 252.31-252.90, but which are not inconsistent with any orders or rules adopted by the division or by any state agency exercising a power delegated to it by the Governor or the division." Section 252.46(l), Florida Statutes. 5. The City Commission finds there may be situations where it would be a clear and present danger in holding a public "in person" meeting for those attending and those who come in contact with those attending. 6. The technology exists to conduct public meetings using technology in which the City can comply with the provisions of the Sunshine Law while preserving human life. 7. The City Commission also possesses broad home rule powers that authorize it to protect the public health, safety, and welfare, declare emergencies, and protect its citizens. 8. There is no statute, Charter provision, or ordinance that defines "present" as physically within the walls of the City Hall Chambers. Webster's Dictionary defines "in attendance" among other things as a meaning of "present". Article 3, Section 4 of the City Charter provides: "The majority of the members of the Commission of the City of Dania Beach shall constitute a quorum. The affirmative vote of three (3) members of the City Commissioners shall be necessary to enact any ordinance or adopt any resolutions; provided that two-thirds of the membership of the City Commission is required to enact an emergency ordinance. On final passage, the vote of each member of the city commission shall be entered on the official record of the meeting." 9. The City Charter does not require that a quorum be physically present. 10. The Charter does not prohibit attendance at the meeting of City Commissioners by electronic media and the City Commission finds that its attendance requirement for the purpose of establishing a quorum, participating and voting can be satisfied by physical or CMT attendance. This same rule of attendance applies to City Board or Committee meetings and quasi-judicial hearings. 11. There is no intrinsic error to use telephone and computer attendance to achieve a quorum. Consequently, the "preemption" of phone attendance, if it exists, must be expressly set forth in the Florida Constitution or general or special law, and not vaguely and ambiguously implied. Thus, the City Commission finds that no preemption exists in state law. 12. The City Commission finds that it is in the best interests of the City Commission, Boards, Committees, City personnel, and citizens and residents of the City to authorize the City Manager to provide for the City Commission and members of the various Boards and Committees to be able to attend meetings electronically during a declared public health emergency, pursuant to the City's Charter, Chapter 252, Florida States, and the City's home rule authority, including that set forth in Article VIII, Section 2(b), Florida Constitution, and Section 166.021, Florida Statutes. (b) Declaration of Emergency. 4 ORDINANCE #2021-012 Pursuant to its home rule powers, Chapter 252, Florida Statutes, and based upon the Legislative Findings set forth in the above -stated legislative findings, the City Commission of the City of Dania Beach may in the future find and declare that a public health emergency exists requiring immediate action by the City Commission. By virtue of the threat to public health and safety and by virtue of the threat to the City's financial health and home rule powers, it is necessary for the City to implement this ordinance and to utilize the below virtual meaning procedures. (c) Limited Authorization for Public Meetings without Physical Presence. The City Manager is authorized, pursuant to the home rule authority of the City Commission, Chapter 252, Florida Statues, and based upon the Legislative Findings set forth in the above - stated recitals, during a declared public health emergency to: a) arrange for the City Commission, Boards, and Committees to meet and the public to participate electronically; b) promulgate rules of procedure that will ensure compliance with the Sunshine Law; and c) provide technology and administrative support as necessary to fulfill these objectives. Such a meeting may only be conducted without the physical presence of a quorum of the City Commissioners, Boards, and Committees, if an emergency is declared based upon an infectious disease, and only so long as (1) the meeting is properly noticed, (2) minutes are taken, and (3) the public is permitted to attend via technology such as teleconferencing or web -based conferencing. Section 3. That if any section, clause, sentence or phrase of this Ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this Ordinance. Section 4. That all ordinances or parts of ordinances in conflict with the provisions of this Ordinance are repealed. Section 5. That this Ordinance shall take effect immediately at the time of passage and adoption. PASSED on first reading on January 26, 2021. PASSED and ADOPTED on second reading on February 9, 202 1. 5 ORDINANCE #2021-012 ATTEST: D THOMAS SCHNEIDER, CMC TAMARA JAMES CITY CLERK MAYOR APPROVED AST( IF RM AND CORRECTNESS: :7� THOMAS J-ANSORO CITY ATTOR* 6 ORDINANCE #2021-012 CITY OF DANIA BEACH, FLORIDA OFFICE OF THE CITY MANAGER UPDATED RULES FOR COMMUNICATION MEDIA TECHNOLOGY On March 10, 2020, the City Commission adopted Resolution No. 2020-030, providing certain powers to the City Manager during the declared State of Emergency due to Covid- 19. Thereafter, on October 27, 2020, the City Commission adopted Emergency Ordinance No. 2020-017, which provides for virtual quorum procedures when there is a pandernic, such as the one which is currently existing. On January 12, 2021, the City Commission then adopted anew Emergency Ordinance, Ordinance 2021-006, to extend the virtual quorum procedures due to the pandemic. The authority of the City Manager, under Emergency Ordinance 2021-006, is to adopt rules for use of communications media technology for public meetings during a health emergency. Below is the City Manager's Order Adopting the Rules. ORDER ADOPTING RULES FOR USE OF COMMUNICATIONS MEDIA TECHNOLOGY FOR PUBLIC MEETINGS DURING HEALTH EMERGENCY Section 1. Declaration Supplemented. In accordance with the City Charter and Chapter 252, Florida Statutes, as well as the City Emergency Ordinance 2021-006, 1 am authorizing the following Rules to be observed relating to holding meetings through communications media technology, due to the current COVID- 19 pandemic, which Rules are effective within the City of Dania Beach, Florida ("City") as provided below. Section 2. Findings. a. The City is authorized to hold public meetings through the use of communications media technology, subject to the adoption of rules pursuant to Section 120.45(5)(b)(2), Florida Statutes. Also attached are the Rules of Procedures for "Quasi -Judicial Proceedings", which are incorporated by this reference as Exhibit "A". Section 3. Rules of Procedure for Public Meetings Utilizing Communications Media Technology. a. Prior to the commencement of any City public meeting, the City shall post notice of the meeting in a manner consistent with Section 286.011, Florida Statutes, which Section is known as the" Florida Sunshine Law". The notice shall also include instructions on how to access the public meeting either via telephone, video conference, or other communications media technology utilized by the City. b. As used in this Order, "communications media technology" means the electronic transmission of printed matter, audio, full -motion video, freeze-frame video, compressed video, and digital video by any method available. c. If a public meeting provides for the opportunity for public comment, the notice shall also include instructions to inform members of the public how they may speak, submit comments or ask questions to be read or addressed at the public meeting. d. The City Clerk shall ensure that the public meeting complies with all requirements of Section 286.011, Florida Statutes -(for example, the preparation of minutes, etc.). e. The City Clerk shall include the following message in the notice: IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT, PERSONS NEEDING ASSISTANCE TO PARTICIPATE IN ANY OF THESE PROCEEDINGS SHOULD CONTACT THE CITY CLERKS OFFICE, 100 W. DANIA BEACH BOULEVARD, DANIA BEACH, FL 33004, (954) 924-6800 EXTENSION 3624, AT LEAST 48 HOURS PRIOR TO THE MEETING. Section 4. Effective Date. This Order is enacted and to be used upon a declaration of a health emergency and may be further supplemented from time to time in accordance with the City Charter. This document shall be posted and distributed by the City Clerk. Executed on January _, 2021. Ana M. Garcia, ICMA-CM, City Manager Approved as to Form and Correctness Thomas J. Ansbro, City Attorney Filed with the City Clerk on January 2021, at 5:00 P.M. Thomas Schneider, CMC, City Clerk City of Dania Beach, Florida Virtual City Commission Meetings Quasi -Judicial Proceedings Any member of the public wishing to make verbal comment during a meeting must pre -register to do so with the City Clerk's office using the form found on the Citys website. This pre -registration applies to the public, and extends to the applicant and applicant's team. Once the registration has been processed, the registrant will receive instructions for participating in the meeting. Members of the public who attend the meeting by telephone will have their line muted at all times, except when acknowledged by the Mayor to speak on a particular agenda item, and only one individual will be permitted to speak at a time. If either the applicant or a member of the public seeks to introduce documents into the record, that must be done at least five (5) days prior to the virtual public meeting, so that the City can upload the information. The City Clerk shall provide the Mayor and City Commission with the submittals prior to the hearing. All documents should be sent to the following email addresses: tschneider0daniabeachfI.grov and claeoie0daniabeachfi.gov. In the "Subject" line of the email please address the email as "documents to be included for public hearing" and list the public hearing applicant name and property address. On the date and at the time of the Virtual meeting, the City Attorney shall read the title of the quasi-judicial public hearing item when the Agenda item is ready to be presented. The City Attorney shall ask the City Commission to disclose any prior "ex parte" communications with any party that occurred prior to the meeting. Thereafter, the City Attorney will virtually swear in all staff persons speaking about an application as well as the applicant, applicant's team, and any persons in the public who intend to appear by telephone, email, or "live" during the virtual feed of the video presentation during the virtual City Commission meeting. The City Attorney will ask staff and applicant (including applicant's team) to raise their right hands to be sworn in. The City Attorney will then administer an oath. The City Attorney will ask each person to confirm audibly for the record that each speaker took the oath (all persons will identify themselves by name). Thereafter, City staff will provide a presentation of the staff report and the Department recommendations, if any. Any power point presentations or documents shown or produced during the hearing shall be treated as evidence which the City Commission may consider in determining whether or not to approve the application. The applicant will then be provided the opportunity to make a presentation. Legal counsel for the applicant may make a presentation or assist with the applicant's presentation. Then members of the public, during the public hearing portion of the agenda item hearing, may speak to the application and may cross-examine witnesses (including City staff, the applicant, and applicant's team). During the Public Comments/Public Hearing portion of the meeting the City Attorney will individually swear in public speakers, who will acknowledge having taken the oath, and state their names for the record. Video of the virtual meeting will be streamed on the City's website at www.daniabeachfl.gov the City's YouTube channel, and Dania Beach Comcast Channel 78. Additionally, a dedicated telephone line will be available so that any individual may listen to the meeting via telephone and may participate during the public comments portion of the hearing. If public comments were received in advance, they will be acknowledged by the City Clerk by mention of the names of those who submitted comments. Once the public hearing is closed the Mayor and City Commission shall deliberate on the public hearing quasi-judicial item. A virtual quorum shall be required to take action on the application. Roll call vote of the City Commission shall be required.