The owner of two of the four package stores impacted by the reduced hours for retail alcohol sales in Miami Beach’s MXE District has filed suit against the City claiming intentional and malicious targeting of the stores. Beach Blitz, which is owned by Doron Doar, operates Ocean 9 Liquor and Ocean 11 Market. The company filed its suit on October 30, the day before the previous Commission’s final vote to restrict the hours of alcohol sales at retail establishments in the MXE to between 10 am and 8 pm. The MXE – or entertainment district – includes Ocean Drive to Washington Avenue between 5th and 15th Streets.
At the Commission meeting where the reduced hours were finalized, Doar’s attorney, Miguel Diaz de la Portilla told Commissioners they were targeting “family-owned businesses”.
“The ordinance ostensibly seeks to address an underlying crime problem. We’re here to tell you that we agree that there is a crime problem in South Beach but we don’t think South Beach’s problem is a package liquor store problem.” Rather than address crime, he said, the ordinance “discriminatorily scapegoats and singles out, again these four family-owned small businesses in South Beach. Our clients would like to be part of the solution. We’d like to help the City deal with the underlying crime problem. But this is not the way to do it.”
John Deutzman, one of the founders of the Miami Beach Cime Prevention and Awareness Group was having none of it. “I’ve been studying the crime situation on South Beach for more than a year personally and our group has been at it since July,” he told Commissioners. “And I will tell you without hesitation that the problems in Lummus Park, in that area, start when the liquor stores open and they end when they close. Almost all of our dayside problems are disorderly intox and harassment of tourists by people who are drunk out of their minds and I’m not going to mention any names but one place, in particular, willingly sells to these known drunks and alcoholics to the demise of the community and to the demise of these people. We’ve had 15 people die in our community of alcohol problems, so the notion that they’re being fine citizens and we’re ruining their fine family business is wrong.”
The suit alleges the City “peppered those stores with improper code enforcement violations, intentional police blockades restricting access to certain of those stores, and most recently an egregious forced closing of one of those stores, Plaintiff’s Ocean 9 Liquor, without due process.”
According to the filing in U.S. District Court, “The cessation of operations by Ocean 9 Liquor was accomplished by overt threat by two Miami Beach police officers and one code enforcement officer, to place the owner of the store in jail if he did not voluntarily close his store because of an alleged dispute over a several hundred dollar Business Tax Receipt (“BTR”), otherwise known as an occupational license fee.” The store was closed and remains closed.
The suit claims, “Over 15 employees are left without jobs and the City has no defense or excuse other than Ocean 9 Liquor was allegedly a few months delinquent in paying a few hundred dollar occupational license fee” which the suit states the City prevented from being paid due a violation pending a special master ruling. Once the violation was resolved, the suit claims Doar tried to renew his license but “was physically prevented from obtaining a BTR until he was threatened with jail if he did not close the store at 865 Collins Ave on Friday, October 6, 2017.”
Closing the business, the suit says amounts to “an improper taking without due process”. It seeks redress for what the suit calls “the City’s wrongful and unconstitutional closing of one of Plaintiff’s locations” and asks the Court “to declare invalid and enjoin the City’s arbitrary, capricious and unreasonable ordinances designed to bankrupt the four package stores in the MXE district.”
“Regulation of the sale of alcoholic beverages is a legitimate legislative province,” according to the claim, “so long as any such ordinance is not arbitrary or capricious and is reasonable in the context of its implementation and effect.”
The suit specifically calls out former “Mayor [Philip] Levine’s overzealous campaign” for the ballot initiative to reduce the hours of alcohol sales at outdoor entertainment establishments on Ocean Drive and his characterization of “certain businesses on South Beach that sell liquor ‘malignant tumors’” as showing “malicious intent”.
“The City apparently concluded that the consumption of open containers of alcoholic beverages in public places disturbs the quiet enjoyment of the community, causes undesirable noise, and contributes to litter, noxious odors, and the general degradation of the City,” according to the filing. “There is no direct finding that the four package stores in the MXE district are a causal link to any crime in that district. Nor is there actual support that eliminating one or such packages stores will improve the crime problem.”
Previously, the City Commission passed an ordinance to prohibit new package stores in the MXE, grandfathering in the four existing stores. Commissioners then reduced the sale hours several times before settling on the 10 am to 8 pm time period in the most recent action. The suit claims, the Commission’s actions amounted to a “systematic passage of a series of overreaching, unreasonable ordinances designed to bankrupt the four package stores by systematically reducing their legal hours of sale. In less than a year, the proposed reduction will be a reduction from a 16 hour period to a 10 hour period. Most hours being eliminated are at peak sale time.” The suit claims the result will be “a likely reduction in revenue of approximately 50%.”.
Regarding the closing of Ocean 9 Liquors, the suit alleges, “The City has intentionally, unilaterally and arbitrarily refused to renew Plaintiff’s BTR license for its store at 865 Collins Avenue, despite accepting and retaining all fees relative to same.” Because of the Commission’s earlier action to prohibit new package stores, the suit says the City has refused to renew Ocean 9’s lapsed license as its “‘new’ proposed use as a package store is a non-conforming use” meaning no longer allowed under City Code. “The trap is sprung,” the suit claims. “One store down; three to go.”
“The City intentionally prevented Plaintiff from updating his license yet now says that because Plaintiff didn’t timely update its license it is barred from future operation. Those actions are not only unlawful and in bad faith, they are unconstitutional on their face,” according to the filing.
“Clearly, the City dithered on allowing Plaintiff to renew his BTR for fiscal year 2016-2017 to get past the date necessary to spring its trap,” according to the suit.
A sign on the door at Ocean 9 says the store is “closed for inventory”.
The suit also names former Mayor Philip Levine, City Manager Jimmy Morales, Commissioners Micky Steinberg, Ricky Arriola, John Alemán, Kristen Rosen Gonzalez, former Commissioners Michael Grieco and Joy Malakoff, and City attorneys Raul Aguila and Chief Deputy City Attorney Aleksandr Boksner as individuals. A City spokeswoman says the City does not comment on pending litigation.