Miami Beach Steps Up Enforcement of Sidewalk Café Code of Conduct

Susan Askew
Susan Askew

Miami Beach Steps Up Enforcement of Sidewalk Café Code of Conduct:

Action follows difficult weekend in Entertainment District and Underscores Efforts to Fix It

Updated December 4, 12:30 pm to reflect revocation of Il Giardino sidewalk café permit.

Miami Beach Mayor Dan Gelber promised a “vigorous presence of police and code officers” in the South Beach Entertainment District to deter “the kinds of excesses that have no place in our community.” Over the Thanksgiving holiday, the City delivered on that promise.

As part of a general crackdown, between November 19th and 28th, Code Enforcement Officers issued 22 Sidewalk Café Code of Conduct violations to 18 different businesses – four were issued in the first few days with the bulk (18) coming during the holiday weekend enforcement push announced in advance by Gelber. One of the violations was for an unapproved speaker in a sidewalk café, the other 21 were for hawking. Hawking, the peddling of specials and menu items, is one of the activities prohibited on Ocean Drive, Lincoln Road, and Española Way as part of the Code of Conduct implemented last year.

The November sweep resulted in one business – Il Giardino on Ocean Drive – losing its sidewalk café permit through December 31. Fourth offenses under the Code of Conduct result in loss of the lucrative permits to operate a sidewalk café on City property for the remainder of the permit year which usually runs from October 1 through September 30, 2021. Due to the coronavirus pandemic, the permit year was extended through December 31. This is the first sidewalk café permit revoked since the Code of Conduct went into effect in October 2019. [An interesting twist to our story a couple of weeks ago… Aura where this reporter had multiple encounters with hosts who were hawking is owned by Imam Duz, the owner of Il Giardino.]

Three businesses – Ole Ole on Lincoln Road and Carlyle Café and Il Bolognese on Ocean Drive – are required to shut down their sidewalk caés for two nights after racking up third offenses. Il Bolognese has one hawking violation and two speaker violations. The others have three hawking violations each within the preceding 12 months. Carlyle and Il Bolognese will have to close their sidewalk cafés Saturday and Sunday while Ole Ole's was shut down last weekend.

Five restaurants will be forced to close their sidewalk cafés for 24 hours on Friday after collecting their second violations.

One owner/operator, Stefano Fritella who has six restaurants operating on Miami Beach, has a total of 13 violations in the preceding 12 months. Seven of those citations were issued in November (of the 22 total issued for the month). Fritella is appealing all seven.

Penalties include fines ranging from $500 to $1,250 with one day closures of the outdoor cafés for a second offense within the preceding twelve months and a weekend shutdown for third offenses. With a fourth violation, a business can lose the lucrative sidewalk café permit for the remainder of the fiscal/permit year.

Through multiple blue ribbon panels, voter referenda, and legislative initiatives, Miami Beach has attempted to fix the problems plaguing the South Beach Entertainment District. Mayor Gelber has called a special meeting for Friday to discuss the latest proposals, a combination of “carrots and sticks” to change the dynamic from “anything goes” entertainment to a more family-friendly, higher-end arts and cultural center.

One of the sticks, an item on Friday’s agenda that would increase penalties for businesses that violate the Code of Conduct, including a mandatory closure of a sidewalk café at midnight each day until an operational plan for correcting the violations is approved by the City Manager. In the case of a third violation, a business would be required to close their sidewalk café at 10:00 pm each day until a plan is approved. [Update: The increased penalties passed on first reading. Second reading is scheduled for January.]

Enforcement is also a discussion item. At a recent Land Use and Sustainability Committee meeting, Commissioners Ricky Arriola and Michael Góngora said they would be reluctant to vote for additional restrictions on businesses without enforcement.

“We know there’s chronic violators,” Arriola said, “and yet they keep operating and violating our every rule, whether it’s hawking, whether it’s noise, whether it’s fraud, staying open past curfew and yet they stay open, and so until I see better enforcement, I’m not going to be favorably disposed to legislation that I don’t think is going to make much of a difference.”

The conversation about “good operators” and “bad operators” continues as the Mayor and City Commission seek to reward and attract those who follow the rules. Additional proposals before the Commission include development incentives to attract “good” hotel operators and incentives such as fee rebates for target industries that would increase the mix of uses on the street to move it away from its heavy emphasis on entertainment. 

We talked to Matias Pesce, the CEO of Vida\Estilo (V&E) Restaurant Group which operates eight restaurants in Miami Beach, and David Berg, a partner with Infinity Real Estate, about the impact of the violators and the role owner/operators and landlords play in the solution.

First, a look at the most recent violations.

The November Violations 

Lincoln Road hawking violations: Groovy’s Pizza, Kansas Bar and Grill, and Rosinella each were issued their first violations. Tapelia was cited for a second time while Ole Ole (which shares ownership with Tapelia) received its third offense requiring a weekend shutdown under the Code. Ole Ole has appealed the offense to the Special Master. As a result of the violations, Tapelia was shut down for one night and Ole Ole for two nights, both last weekend. 

Española Way hawking violations: Numero 28 Pizza was cited for the first time, while Española Cigars received its second violation. Española Cigars will be shut down for 24 hours from December 4 to December 5.

Ocean Drive violations (all for hawking with the exception of Il Bolognese):

First offenses issued to Ocean’s Ten, The Locust, and The Place. Boulevard also received a first offense but the restaurant has been operating under a consent decree to follow the Code of Conduct following four violations during the month of October 2019. The City had not responded by publication time on what the newest violation means and if the consent decree was issued "in perpetuity" or for the last permit year only.

Cuba Libre and On Ocean 7 received first and second offenses. Required 24 hour shutdown December 4 to December 5.

Caffe Milano and Jalapeno’s received second offenses. Required 24 hour shutdown December 4 to December 5.

Carlyle Café was issued its third violation which results in a weekend shutdown. Required weekend shutdown December 5 to December 7.

Il Bolognese was cited for two offenses, one for unpermitted speakers and one for hawking. Il Bolognese has appealed both offenses to the Special Master. Because both are Code of Conduct violations, they count as the second and third offense within the preceding 12 months as Il Bolognese also received a speaker violation on October 23. Required weekend shutdown December 5 to December 7.

Il Giardino received its third and fourth violations within a twelve month period, the fourth offense coming, ironically, the night before its two-day shutdown for receiving its third offense on November 19. The fourth offense was issued Friday, November 27 and the restaurant was closed on Saturday and Sunday for the prior violation. Il Giardino has appealed the third and fourth offenses to the Special Master. 

What appeals mean: If overturned, the violation is removed and the count in terms of total violations is not impacted. For example, in Il Giardino’s case, should the fourth violation be overturned, the total would remain at 3 and, therefore, Il Giardino would not lose its sidewalk café permit for the fourth violation. However, the City has enforced penalties for one-night closures for a second violation and two weekend night closures for a third violation immediately which usually occurs before a Special Master can hear an appeal. In this case, the City revoked the permit immediately.

The immediate action prior to a hearing is one of the complaints mentioned by several operators about the penalties as issued under the Code of Conduct 

Prior to the revocation, Ailene Torres of A+ Strategies provided a written response to our request for comment on the third and fourth violations issued to her client, Il Giardino, and the potential the restaurant could lose its sidewalk café permit for the remainder of the permit year. "We would like to reiterate that Il Giardino takes very seriously the requirements of the ordinance. We are proud of our professional, highly trained staff and maintain strict hiring requirements,” she wrote. “However, we would like to point out a few facts that we find troubling and should trouble any citizen of a democratic country. While we have been accused, we have been repeatedly denied an opportunity for a hearing before the penalty is levied against us. Both the lack of hearings on these issues and the speed with which the penalty is imposed violates our due process, which is everyone's Constitutional right. Everyone is presumed innocent until proven guilty after a hearing where each party can present his or her case in front of a neutral judge or special master.”
 
“To put this in terms everyone can understand, this is like being accused of a crime and sent to jail without the opportunity of going in front of a judge to either argue our case or challenge our accusers, or both,” she wrote.

Torres said Il Giardino requested the body camera video evidence for a February violation but they “still have yet to receive the footage. That is not the seven to 10 days they claim.” A request has been made for the November video footage cited in the violation, “however, the question remains, if we will receive it prior to the proposed penalty, if at all," she stated.
 
"We'd like an opportunity to address these violations in a hearing, which is the normal course,” she wrote.  

When asked if Il Giardino would pursue the due process argument in court, Torres said in a voice message, “Suing the City is never an easy decision and Il Giardino is hoping to resolve this issue amicably with the City. We have reached out to them via both Code and the City Attorney’s Office and we’re hoping to have a positive resolution to this matter, however, we do realize that we have other options available to us and nothing is off the table, but we do want to emphasize that we do see a positive resolution without elevating it to the court.”

Stefano Fritella who owns and operates On Ocean 7, The Place, Cafe Milano, Carlyle Cafe, Il Bolognese, and Kantina has appealed all seven of the violations issued to his restaurants in November regardless whether they were first or third offenses. Kantina, which was cited most recently in October, was the only one of his restaurants that did not receive a violation in November. In a text message requesting comment, Fritella indicated he was in Europe and would respond when he returned.

When we spoke with him in January about the Code of Conduct, he said, “In general, everything is fine. I think it’s okay. I have no problem with it.” Asked about violations at Caffe Milano, Kantina, and Carlyle Café and the required one-night closures imposed for the restaurants’ second violations that month, Frittella said he was just arriving back in Miami after being in Europe for the month and was not aware of the violations. He did not respond to a follow-up call seeking comment then.


The Role of Owner/Operators and Landlords

Vida \ Estilo (V&E) Restaurant Group has eight locations in Miami Beach – two on Lincoln Road and three on both Española Way and Ocean Drive. The group employs 700 people on the Beach at its Havana 1957, La Cerveceria De Barrio, Mercato Della Pescheria, and Oh! Mexico restaurants. Four more restaurant locations are planned in the coming year. The group also has restaurants in Las Vegas, Miami, and Pembroke Pines.

In the past twelve months, V&E Group’s eight restaurants have received two violations. One was a hawking violation, received by Mercato Della Pescheria on Española Way in February, and one was for an unapproved speaker at Havana 1957 at 1410 Ocean Drive in October. 

In a wide-ranging conversation with V&E CEO Matias Pesce, RE:MiamiBeach asked about the Sidewalk Café Code of Conduct. The City, he said, has to “take control and regulate what is happening… it is hawking that is a mess, really.” He noted that through checks of online rating services such as Yelp, “You can see the reputation… You can see which ones that are one stars, two stars with bad reviews, with bad reputations.”

Restaurants that hawk and offer “promotions that will not happen, people paying more than they’re supposed to pay” for misleading specials are negatively impacting all businesses as well as the City “because people don’t want to visit us with all the sales tactics” which he calls “tourist traps.”

“The Ocean Drive energy and vibe has been deteriorated because of these bad operations,” Pesce said. 

“We are investing,” he said through eight current locations and the four new ones planned in the coming year. “It’s very important [that] we protect the City, protect our business. We have to protect the community because in some way we are responsible for what is happening, a corporate responsibility that we have with the communities, not only with the people who work with us, the people who visit us. We have to create an atmosphere with good business [practices]… And this is what we’re pushing.”

Pesce added, “From me to the rest of the team, we are 100% supporting the Code Compliance” and working with the local business associations representing Lincoln Road, Española Way, and Ocean Drive. 

Landlords, he said, also play a role. “They have to protect their investments, too.” He praised his various landlords, including Terranova, Nakash Holdings, and Infinity Real Estate who have taken an “active role” in “protecting the investment of the City, the visitor, everything.”

“Other landlords, they are not taking care of [their properties] the same” and allow “bad operators” to continue violating the Code of Conduct and other standards. 

While the practices have been around for a while, a “strategy” employed by some businesses, Pesce said the impact of COVID is also a factor but, he said, “We have to separate COVID from one side and the way that the City and the businesses reacted.”

“The City was very active in providing some tools in order to compensate businesses with the restrictions we received” including curfews and reduced capacities by providing expanded outdoor dining areas. “In that way they were very flexible and pro-business,” he said.

Even so, he expects that “more than 40% of the restaurants that are closed now are closed permanently” and without another stimulus package, he believes that number could get to 50 or 55%. V&E received PPP money which it used to rehire laid off employees. 

Despite COVID, he said, “We didn’t change anything that would affect the experience of our visitors. We adapted our menu to follow the new reality, spent money on new protocols… and we assessed financially our business in order to keep our same level or core business experience, reducing any expenses to reduce the breakeven point in order to lose less money.” V&E was also able to work with its landlords to renegotiate lease payments.  

“We believe that South Beach is unique, with its combination of beaches, energy, art,” he said. “We know that the COVID is a temporary situation. Probably in the first quarter, second quarter, international guests will come back. We want to be ready.”

“In terms of business it was tremendous. We were affected a lot,” he said. “But in terms of operations, service, experience, nothing changed.” The group continues to operate by its “core values” of providing “the best service possible in order to create the best experience with the best ambience possible,” he said.

Hawking has created an atmosphere where “people don’t want to walk on Ocean Drive” with hosts who cross the street “to fish people” and in some cases “touching them, so it’s very uncomfortable,” Pesce said.

“The City and the associations, sometimes they are taking more time than we expected to solve [the problem] and little by little with COVID, probably it’s going to take one or two years to try to fix it with a strong plan,” he said. “In the end, nothing is happening and the reaction from Code Compliance is not as quick as we want and, overall, it’s affecting the entire experience on South Beach.” Note: We spoke with Pesce prior to the Thanksgiving Code Compliance sweep.

David Berg of Infinity Real Estate is one of V&E’s landlords, one of only two landlords on Española Way with properties covering the south side from Washington to Drexel and Casa Matanza on the west side of Drexel. Infinity has one property on Ocean Drive and nothing currently on Lincoln Road.

“Española Way and Ocean Drive are different animals because of the fractured ownership on Ocean Drive versus the consolidated ownership on Española Way,” Berg told RE:MiamiBeach. The two owners on Española “formed an Española Way Association and we’ve amended all of our leases to include Association guidelines – rules and regulations essentially – and [tenants are] required by lease to adhere to those rules and regulations of the Española Way Association.” As a result, Berg said, tenants can not only be fined by the City but are also subject to penalties in their leases. 

“We have our right as property owners to amend our leases and include this language in new leases so we’re self-policing… and the consolidated leadership of Española Way has followed suit together in a team-oriented manner,” Berg said.

Berg is also a member of the Board of the Ocean Drive Association which is undertaking a planning process with the City and Zyscovich, an architectural and urban design firm, to create long-term solutions. That said, he noted, “Without proper policing and Code Compliance enforcing the rules, it’s hard to create the atmosphere that I think everyone is looking forward to creating there.” 

Berg acknowledges the differences between Española Way and Ocean Drive. “Española Way has a very romantic feel to it. It has overhead street lighting… the pedestrian path was just recently redone a couple years ago by the City. Ocean Drive doesn’t have these elements that create the romantic atmosphere that Española Way does. It comes down to cleanliness, safety, and planning to create the atmosphere… then it’s programming. We need activations, different programming for the street and Lummus Park to attract the right crowds and, ultimately, deliver a better customer experience.”

In the meantime, he said, “I think the bad operators need to be handled swiftly via Code Enforcement and policing. The good operators should be successful based on reviews and customer experiences which then should result in the opportunity to expand… going into spaces vacated by bad operators.”

Ahead of Friday’s special Commission meeting, the Ocean Drive Association (ODA) sent a letter to the Mayor and Commissioners about the most recent enforcement initiatives. It states:
 
The Ocean Drive Association (ODA) is aware that the City Administration dedicated extra resources over the past holiday weekend to focus on Code of Conduct violations throughout South Beach. As you may know, the “Code of Conduct” has long been supported by the ODA and was adopted by the City as a means to change the dynamic of the destination and enhance the experience of residents and visitors. 

The ODA Board of Directors commends the enforcement efforts by the City. Bad business practices are contrary to the stated mission of the Ocean Drive Association and hurt all of us. 

We remain committed to working in collaboration with the City and the community. 

The agenda for Friday’s 9 am special Commission meeting is here

Log in information can be found here.

[Updated to clarify closures are for sidewalk cafés only.]

Photo: Shutterstock.com