Miami Beach Commissioners will hold an executive session next week to discuss terms of a settlement proposed by the Clevelander “and/or strategy related to litigation expenditures” following a judge’s ruling earlier this week nullifying the City’s rollback of alcohol consumption in the South Beach Entertainment District from 5 am to 2 am. Eleventh Circuit Court Judge Beatrice Butchko said the measure should have been treated as a zoning ordinance which requires five votes instead of the four that Mayor Dan Gelber was able to muster in support. Gelber indicated the City will file an appeal as soon as the judge’s written order is issued. An appeal would stay the order, keeping the 2 am restrictions in place pending the outcome.
Note: The rollbacks are often referred to as sales rollbacks, but the ordinance actually reads consumption meaning last call would need to be at 1:30 and drinks finished by 2.
Last month, Gelber who is spearheading a 12 Point Plan to overhaul the Entertainment District (MXE) struck a compromise with Commissioner Micky Steinberg to roll back sales of alcohol in the MXE from 5 am to 2 am during a trial period leading up to a voter referendum in November. Steinberg was the swing vote but only if four votes were needed. Commissioners unanimously, however, signaled their intent to place a measure on the November ballot, letting voters decide. They have until their July meeting to approve language for a referendum.
Immediately after the vote, the Clevelander filed suit.
The MXE is generally located on Ocean Drive and Collins Avenues from 5th to 15th Streets.
In a letter to Acting City Attorney Rafael Paz, Clevelander attorney Kendall Coffey of Coffey Burlington emphasized the Clevelander had been trying to avoid litigation, believing that “a cooperative relationship with the City is the preferred approach” and suggested proceeding with “a more nuanced approach to the difficult issues facing Ocean Drive.”
“The guiding principles on the Ocean Drive subject should be reduction of crime, preventing City Code violations by business ‘bad actors,’ and protecting the historic businesses who have provided so much to the City in their many years in existence,” Coffey wrote.
With that in mind, his letter proposed general terms for a settlement including the reestablishment of what is known as the “Cabaret District” from 9th to 11th Streets on Ocean Drive with businesses in that area allowed to remain open until 5 am “as they have been doing for more than twenty years.” Businesses outside of that two-block area in the MXE would close at 2 am under his proposal.
“Businesses with entertainment conditional use permits in the Cabaret District would, as they have for many years, be able to continue to have outdoor entertainment and the noise ordinance would not apply eastbound in this zone,” Coffey proposed. The four businesses impacted are the Clevelander, Mango’s Tropical Café, the Palace Bar, and Ocean’s Ten. There was some dispute as to whether outdoor entertainment is allowed under the Clevelander’s Conditional Use Permit (CUP) and a later amendment. As part of this litigation, the City argued the Clevelander has a Neighborhood Impact Establishment CUP though it has operated for more than 20 years with outdoor entertainment. Judge Butchko sided with the City on this point saying the Clevelander did not have vested rights to outdoor entertainment or alcohol service until 5 am as it had claimed. She also ruled the City had the right to repeal the eastward facing noise exemption, however, agreed the Clevelander's CUP gave them the right to play music at 78 decibels which is above ambient levels on the southeastern corner of their property and urged the two sides to reconcile the music levels allowed with the eastern facing noise repeal. The title of the CUP and later approval for outdoor noise is one of the areas of confusion and contention.
The businesses in the area have argued that because Lummus Park is to the east, no residents are harmed by the noise. Gelber, however, says the noise generates crowds in the street and increases the number of incidents that require police response. Referring to the heat map of police activity, Gelber said in March, “Many of the top five locations” are in the 9th to 11th Street area where the noise exemption is in place. Opponents pointed to the ambient noise restriction in effect during the year-long state of emergency as proof noise from the venues is not the cause of the problem.
Coffey outlined some assurances in his proposed settlement letter. “With respect to such businesses, we would agree on behalf of the Clevelander to some reasonable maximum cap on eastbound music provided that it does not prevent the reasonable operation of our outdoor venues in accordance with our conditional use permits.”
One of the other points of contention in the Clevelander’s suit was the closure of Ocean Drive. Judge Butchko ruled in favor of the City on that one as well. As part of the proposed settlement terms, Coffey wrote, “Although we will drop our demand that Ocean Drive be open to vehicular traffic, the Clevelander should be allowed at all times to have a valet parking stand at a cul-de-sac at the intersection of 10th street and Ocean Drive and access to the north curb of 10th street as a valet ramp.” In addition to being an entertainment venue, the Clevelander operates as a hotel and had argued the closure made it difficult for guests being dropped off with luggage.
In the event the City proceeds with a voter referendum in November, as part of any settlement, Coffey noted, the Cabaret District would be specifically carved out from the ballot language. In the meantime, with the Cabaret District in place, the Clevelander would not object to continuation of the City’s 2 am pilot rollback.
He also suggested the following:
- Each business that chooses to stay open past 2:00 a.m. in the Cabaret District will provide two off-duty police officers or private security personnel in uniform stationed at the front of the establishment from 1:30 a.m. until closing.
- Each business in the Cabaret District will meet with the City and agree on annual programming for Lummus Park including artisanal retail, open air markets, daytime activities for children and joint programs with the Miami Design Preservation League highlighting the architectural features of the area.
- If the Clevelander is issued a written noise warning in the future and if the Clevelander chooses to appeal that written warning, a Special Master hearing on that appeal will be held within sixty (60) days of the filing of the appeal. The Clevelander written warning for noise issued earlier this year will be deemed void.
In January, the Clevelander was issued a noise warning during a time when the neighboring Palace had one of its shows taking place. The Clevelander claims the warning was for playing a song that was not on its playlist that night. According to the lawsuit, the Clevelander was “informed the warning was unappealable and not subject to any other form of challenge” which it said was a breach of its due process rights and “it now remains one violation away from having penalties imposed because the City refused to allow it to challenge an erroneous prior warning.”
Coffey said a settlement with these terms would allow the City to “achieve its goal of seeking significant change in the MXE district as all but 2 of the 21 blocks in MXE will have to stop alcohol sales at 2:00 a.m. This is a dramatic change.”
“In keeping with the City’s desire to reduce music volumes in MXE, only 4 of the 100+ businesses in MXE will be able to play outdoor music above ambient levels. Again, this is dramatic,” he wrote.
“The City’s iconic and legendary entertainment businesses, including the Clevelander, Mango’s and the Palace Bar, will be protected as they should be so that these businesses may continue to exist in the future,” Coffey wrote.
And, he suggested, “Because only 2 blocks of the 21 blocks in the MXE District will be open past 2:00 a.m., police resources after 2:00 a.m. in the MXE District will be drastically reduced and can be surgically focused on a tiny area.”
While emphasizing the desire to cooperate with the City, Coffey was clear the Clevelander will continue its fight if a settlement cannot be reached. “If the City does not want to discuss the possible settlement, we will have no choice but to continue to vigorously pursue the current litigation,” he concluded.
Photo courtesy The Clevelander
Updated June 12 at 9:15 am to reflect noise levels allowed on the southeastern corner of the Clevelander's property.