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HomeMy WebLinkAbout2011-029 Internet Cafes ORDINANCE NO. 2011-029 AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA RELATING TO INTERNET CAFES, AND SIMULATED GAMING DEVICES AND SIMILAR INDOOR ENTERTAINMENT AND AMUSEMENT ACTIVITIES; ADOPTING FINDINGS OF FACT; PROVIDING DEFINITIONS; IMPOSING A TEMPORARY MORATORIUM ON THE OPENING OF NEW BUSINESSES OR COMMERCIAL ESTABLISHMENTS WITHIN THE CITY OF OCOEE RELATED TO GAME ROOMS, ARCADES, INTERNET CAFES, SWEEPSTAKES REDEMPTION CENTERS, ESTABLISHMENTS USING SLOT MACHINES OR SLOT MACHINE -LIKE EQUIPMENT, OR OTHER SIMULATED GAMING DEVICES, AND SIMILAR INDOOR ENTERTAINMENT AND AMUSEMENT ACTIVITIES; PROVIDING A PROCEDURE FOR EXTRAORDINARY HARDSHIP; DIRECTING STAFF TO STUDY AND REPORT TO THE MAYOR ON ISSUES RELATING TO INTERNET CAFES BY A DATE CERTAIN; PROVIDING FOR PENALTIES, SEVERABILITY, CORRECTION OF SCRIVENER'S ERRORS, AND AN EFFECTIVE DATE. WHEREAS, the City of Ocoee, Florida provides municipal services to its citizens, including regulation and licensing of businesses; and WHEREAS, the appropriate regulation, licensing and permitting of businesses are vital to the public's health, safety, morals and welfare as deficient or inadequate regulations can lead to public harm; and WHEREAS, the Ocoee City Commission has learned of certain activities related to game rooms, arcades, internet cafes, sweepstakes redemption centers, establishments using slot machines or slot machine -like equipment, other simulated gaming and gambling devices and similar indoor entertainment and amusement activities within the City of Ocoee being proposed or considered, which activities would harm the City's economic and redevelopment activities and otherwise significantly and adversely affect the public health, safety, morals and welfare, since said activities may include forms of gaming or gambling which could lead to illegal activities; and WHEREAS, the Ocoee City Commission deems it necessary to the public's health, safety, morals and welfare to cause a study to be accomplished relative to the criteria for issuance of permits for game rooms, arcades, internet cafes, sweepstakes redemption centers, establishments using slot machines or slot machine -like equipment, other simulated gaming and gambling devices and similar indoor entertainment and amusement facilities, and to place a temporary moratorium on the issuance of permits for such activities; and WHEREAS, the Ocoee City Commission, after holding a public hearing, finds that it is appropriate to impose a temporary moratorium on certain activities related to game rooms, 4834 - 1043 - 5341.1 arcades, interne cafes, sweepstakes redemption centers, establishments using slot machines or slot machine -like equipment, other simulated gaming and gambling devices and similar indoor entertainment and amusement facilities. NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: Section 1. AUTHORITY. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes. Section 2. FINDINGS OF FACT. The foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a part of this Ordinance. Section 3. DEFINITIONS. For the purposes of this Ordinance, the following words, terms, and phrases, including their respective derivatives, have the following meanings: (a) Commercial establishment means any establishment, whether operated for profit or not, that exchanges goods, product, services, or property of any kind for compensation or donation, or facilitates the exchange of goods, services, or property of any kind for compensation or donation, or in the ordinary course of trade, business, or fundraising, regardless of the land use designation assigned to the location of the commercial establishment. (b) Simulated gaming devices means any electronic, computerized, mechanical, or electromechanical device that, by the use or insertion of coin, bill, token, slug, form or payment, passcode, electronic or magnetic card in conjunction with the device or other reader or system connected or networked to the device or with the aid of some physical act by the user or commercial establishment representative, the device will allow an operator to use, play or operate the device such that the device displays simulated or actual games of chance, slot machine games, spinning wheels, line ups or arrangements of objects, symbols, colors, fruit, numbers or letters, or other avatar, or any game known as or similar to keno, roulette, faro, game at cards, poker, blackjack, "Fruit Bonus," "Triple Jack," "Mystery J &B," "Fruit Paradise," "Klondike," "Magical Odds," or "Reel of Fortune," in such a way as to display, disclose or reveal whether the user is to receive or become entitled to receive payout, jackpot, or prize, which may include money, credits, tokens, or anything of value, regardless of whether such payout, jackpot, or prize is made automatically from the device or other reader or system connected or networked to the device, or manually, and such device is located and used, played or operated in or at a commercial establishment in connection with the promotion, sale or purchase of good(s), product(s) or service(s). The term "simulated gaming device" further includes, without limitation, a "slot machine" as defined by Section 849.16, Florida Statutes. "Simulated gaming device" shall not be construed so as to preclude the lawful use or possession of: (i) reverse Page 2 of 7 4834 - 1043 - 5341.1 vending machines authorized pursuant to Section 849.16(2), Florida Statutes, (ii) amusement games or machines authorized pursuant to Section 849.161, Florida Statutes, (iii) bingo, instant bingo or pull tab machines or dispensers operated in accordance with section 849.0931, Florida Statutes, (iv) a State of Florida lottery device authorized by Florida Statutes, or (v) any other device expressly authorized by and complying with the Florida Statutes and the Florida Administrative Code. "Simulated gaming device" shall not be construed to include devices not otherwise prohibited by general law that are not located in or at a commercial establishment and are used, played or operated for non - commercial purposes (i.e., not in connection with the promotion, sale or purchase of goods, products or services). (c) Persons means an individual, association, partnership, limited liability company, joint venture, not for profit corporation, corporation, or a director, executive, manager or officer of an association, partnership, limited liability company, joint venture, not for profit corporation or corporation. (d) Moratorium means the temporary moratorium established under Section 4 of this Ordinance. Section 4. TEMPORARY MORATORIUM. A. Beginning on the effective date of this Ordinance and continuing through November 30, 2012, or sooner as provided in Section 5 of this Ordinance, a moratorium is hereby imposed on (i) the opening of new commercial establishments with simulated gaming devices; (ii) the addition of simulated gaming devices in existing commercial establishments; and (iii) the expansion of existing commercial establishments with simulated gaming devices. During the moratorium, the following shall be unlawful and a violation of this Ordinance: (a) It is unlawful and a violation of this Ordinance for any person, firm, or corporation to open or caused to be opened any new commercial establishments with simulated gaming devices within the City of Ocoee. (b) It is unlawful and a violation of this Ordinance for any person, firm, or corporation to add simulated gaming devices at an existing commercial establishment within the City of Ocoee. (c) It is unlawful and a violation of this Ordinance for any person, firm, or corporation to expand or cause to be expanded any existing commercial establishments with simulated gaming devices within the City of Ocoee. For the purposes of this subsection, the terms "to expand" and "cause to be expanded" mean to "enlarge the physical size of'. B. The moratorium established by this Ordinance does not prohibit a religious or charitable organization from conducting a fund raising activity involving simulating gaming devices, provided the religious or charitable organization does not conduct the activity Page 3 of 7 4834 - 1043- 5341.1 more than twice in one calendar year, the organization provides advance written notice to the City of Ocoee Police Department of the date, time, place and nature of such activity and who will be conducting it, and the activity is not otherwise unlawful. Section 5. EXPIRATION OF THE TEMPORARY MORATORIUM. The temporary moratorium imposed by Section 4 of this Ordinance expires as of the earliest of the following occurrences: (a) November 30, 2012; or (b) The effective date of an ordinance, adopted by the City Commission, to address the operation and use of simulated gaming devices within commercial establishments in the City of Ocoee; or (c) At such time as the City Commission receives a report from City staff on issues relating to simulated gaming devices and adopts an ordinance repealing the moratorium. Section 6. STAFF REPORT. (a) This moratorium has been established for the minimum time period necessary for the City staff to analyze the effects and impacts of commercial establishments with simulated gaming devices in the City of Ocoee; analyze the criteria for additional standards needed, if any, under zoning, land use, land development and general police power regulations in connection with the issuance of development permits, or approvals for commercial establishments with simulated gaming devices within the City; analyze any new laws regarding simulated gaming devices which may be enacted by the Florida legislature; complete an analysis of public heath, safety and welfare issues that are associated with commercial establishments with simulated gaming devices; and to take recommendations to the City Commission regarding whether there is a need to enact an ordinance regulating commercial establishments with simulated gaming devices so as to promote the health, safety and general welfare of the citizens of the City. (b) City staff is directed to provide a report to the City Commission of its finding and recommendations not later than August 30, 2012. Section 7. EXEMPTIONS DUE TO EXTRAORDINARY HARDSHIP. (a) The Ocoee City Commission may, following an advertised public hearing as set forth below, authorize exemptions to the moratorium imposed by this Ordinance when it finds, based upon substantial competent evidence presented to it, that the moratorium would impose an extraordinary hardship on a landowner or the applicant if other than the landowner. Page 4 of 7 4834 - 1043- 5341.1 (b) A application for an exemption from the moratorium based upon extraordinary hardship shall be filed with the City Manager or his designee. Each application shall include a non - refundable application fee of $350.00 to cover processing and advertising costs. If the applicant is not the landowner, then the application must include the written authorization from the landowner with respect to the filing of the application. The application shall set forth the specific facts that are alleged to support the claim of extraordinary hardship, and shall include such other information as the City Manager shall prescribe as necessary for the Ocoee City Commission to be fully informed with respect to the application. (c) A public hearing on any application for an exemption from the moratorium shall be held by the Ocoee City Commission within sixty (60) days from receipt of the application. Notice of the public hearing shall be published once at least 7 days prior to the hearing in a newspaper of general circulation within the city limits of the City of Ocoee. (d) In reviewing an application for an exemption from the moratorium the Ocoee City Commission shall consider, at a minimum, the following criteria: (1) The extent to which, prior to November 10, 2011, the applicant received City of Ocoee permits or approvals for the operation of a commercial establishment with simulated gaming devices. (2) The extent to which, prior to November 10, 2011, the applicant made a substantial expenditure of money or resources in reliance upon permits or other approvals of the City of Ocoee for the operation of a commercial establishment with simulated gaming devices. (3) Whether the applicant, prior to November 10, 2011, has made contractual commitments in reliance upon permits or other approvals of the City of Ocoee for the operation of a commercial establishment with simulated gaming devices. (4) Whether the applicant, prior to November 10, 2011, has in reliance upon permits or other approvals of the City of Ocoee incurred financial obligations to a lending institution which, despite a thorough review of alternative solutions, the applicant cannot meet unless the operation of a commercial establishment with simulated gaming devices is permitted by the City. (5) Whether the moratorium will expose the applicant to substantial monetary liability to third persons; or would leave the applicant completely unable, after a thorough review of alternative solutions, Page 5 of 7 4834 - 1043 - 5341.1 to earn a reasonable investment- backed expectation on the real property that is affected by the moratorium. (e) At a minimum, the Ocoee City Commission shall consider the following non - exclusive factors under the criteria set forth in subsection (d) above: (1) The history of the property; (2) The history of the commercial, business, or any use of the property (f) At the conclusion of the public hearing and after reviewing the evidence and testimony placed before it, the Ocoee City Commission shall act upon the application either to approve, deny, or approve in part and deny in part the request made by the applicant. Section 8. PENALTIES. Unless as otherwise provided herein, violations of this Ordinance shall be punishable in accordance with Section 1 -12 of the City of Ocoee Code of Ordinance. In addition, the City may bring any other action available at law or equity to penalize or enjoin violations of this Ordinance. Section 9. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. Section 10. Effective Date. This Ordinance shall become effective ten (10) days after its passage and adoption. PASSED AND ADOPTED this .0 day of December, 2011. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA ': Or Bet Eikenberry, City Clerk ' S. Scott Vandergnft, Mayor (SEAL) Page 6 of 7 4834 - 1043- 5341.1 ADVERTISED Ct4er ay , 2011 READ FIRST TIME 1 ‘5, 2011 READ SECOND TIME AND ADOPTED Oetezn Z L , 2011 UNDER AGENDA ITEM NO. \ rl FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this 4 day of 2011. FOLEY & ARDNER LLP By: A C ag4/ 1 City Attorney Page 7 of 7 4834 - 1043 - 5341.1