Open container ordinance back on the table

In January, City Manager Roger Hernstadt presented the city council with a draft of an open container ordinance for discussion, but before words were exchanged, the draft was quickly pulled from the agenda.

City Attorney John Herin reminded the council that since incorporation, the city been very hesitant to adopt ordinances that criminalize specific behaviors. Councilman Mike Cinque, who’s often openly opposed to government regulation, continued his argument against the ordinance, sighting unintended consequences in a community that relied heavily on the tourism industry.

[pullquote]“I’ve personally gotten a couple of different drafts, and I’d like to know where we stand with this,” said Mayor Ginger Snead, who asked for the item to be raised for discussion in the staff workshop Tuesday morning prior to the meeting. “I believe we need to adopt a full, supportable open container ordinance or not have one at all.”[/pullquote]

Hernstadt clarified that the main difference between the two drafts had been restricting the consumption of alcohol 100 feet from the point of sale to 500 feet (excluding parks and beaches) with the exemption of public right of ways.

“Most of the council have told me they’ve read those drafts and provided email and verbal comments to me,” Hernstadt said. “We just want to put together an ordinance with a compilation of your thoughts. What I’m not clear on is whether or not this council is comfortable with the 500-foot limit or another limit with the majority’s support.”

Herin encouraged that the current ambiguous language in the ordinance would leave too much room for open interpretation.

“The more specific an ordinance can be – particularly an ordinance that you’re seeking to enforce criminally – then it has to withstand the override and adequate notice requirements,” Herin offered. “Anyone who reads the ordinance, either a violator or an enforcer, know clearly what the ordinance prohibits and what it allows. Frankly, I don’t know that such an ordinance would be able to stand judicial scrutiny.”

He further clarified that in studying other municipalities like Key West, those areas that had open container ordinances were clearly defined with little ambiguous language – “an all or nothing proposition.”

Worthington supported Snead’s motion to move forward with creating an ordinance to address the issue but lamented signing an interlocal agreement with the state attorney’s office and contracting with the public defender’s office to defend the citations in court.

“I certainly don’t want to see any open containers at our beaches or parks without permission from the city,” Worthington said.

Cinque questioned the possibility of an exemption for open container in the right of way 300 feet from where a homeowner may resides, and Herin responded that the enforcing agent would have what the court’s call unbridled discretion. In other words, the ambiguous language would leave too much room for enforcement and for a law to hold up in the courtroom.

“You’d have to go out and mark every residential property what 300 feet is,” Herin said.

“What we’re doing with this ordinance is not what it’s intended to do anyway,” Cinque responded. “This is the Florida Keys, and when people come down on vacation, they want to come out, walk in the street with a beer and talk to their neighbors. I have a problem with it; criminalizing something like that will come back to haunt us.”

“It’s purely a policy decision,” Herin said.

Councilman Rich Keating said he was in favor of moving forward with the ordinance, because with a lack of any ordinance, there is currently no mechanism for halting negative behaviors.

Worthington motioned to direct staff to bring an ordinance back to the March 8 meeting with support from Snead and Keating while Cinque and Vice Mayor Dick Ramsay dissented.

In other business:

• Pete Chapman reported to the council on behalf of the Community Image Advisory Board on their progress from an online survey seeking the community’s input and willingness to contribute financially to beautification projects.

He clarified the question on the questionnaire proposing a tax increase of .10 mils to generated approximately $192,500 per year to fund beautification projects.

“If there’s not a willingness to spend the money, then there’s not a willingness to beautify the city,” Chapman responded to opponents of the minimal tax increase. “I’m young and a business owner and have some years ahead of me. I’d like to see a line item in the budget with a long-term plan for the city’s beautification.”

Ramsay commended the CIAB for their diligent and persistent efforts to acquire permits to begin planting trees in the US 1 median and in front of the airport, separated into phases 1 and two respectively.

“I think since we’re getting these trees now, I would like to see a session on a Saturday morning when everyone’s not working to get together and discuss a long-range place since, as you mentioned, right now, we don’t have one,” Ramsay suggested with support from the council.

Daniel Samess, CEO of the Greater Marathon Chamber of Commerce, reported that from the online survey, 194 respondents expressed a strong effort in creating a better-looking Marathon. The major sticking point, as with any new project, Samess said, is who will fund the project.

“I, as well as anyone, would like to see some more landscaping come into this town,” said realtor Karen Farley-Wilkinson. “But states are going broke, and we’re not going to get any additional money coming down from the state or federal government. There are a lot of people losing their homes because they can’t pay their taxes. I believe we need to check our priority list.”

Chapman clarified as a property, home and small business owner, he certainly did not want to see any additional taxes. The question was posed as a possible tax on the survey to gauge residents’ commitment level.

“We wanted to be as up front as possible,” Chapman clarified.

The council, after lengthy discussion and a proposal to approve Phase 1 of the planting and reject Phase 2, approved both contracts to begin work as early as next month.

• The council rejected an offer by FDOT to install battery backup systems on the city’s traffic signals despite a current lawsuit against the city. In a recent power outage, according to Herin, a very serious accident occurred at the intersection of Sombrero Beach Road and U.S. 1 and the city is now named as a defendant in the case.

Cinque argued that spending the proposed $80,000 to outfit Marathon traffic signals with battery-powered backup systems was still no guarantee that they would work.

“All it would take would be a good attorney and someone with deep pockets to come after us,” he defended.

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