Following Judge’s Ruling, Miami Beach Will Not Enforce 2 am Alcohol Sales/Consumption Cutoff

Susan Askew
Susan Askew

Following Judge’s Ruling, Miami Beach Will Not Enforce 2 am Alcohol Sales/Consumption Cutoff:

Businesses with 5 am licenses will continue to operate until legal issues resolved

UPDATED to reflect comments from Mayor Dan Gelber.

After Circuit Court Judge Beatrice Butchko ruled on Tuesday that the Clevelander would be allowed to continue serving alcohol until 5 am, the City of Miami Beach said it would no longer enforce the 2 am early cutoff for any business in the South Beach Entertainment District (MXE) with a 5 am liquor license. Two weeks ago, Butchko ruled the City improperly enacted legislation for an early end to alcohol sales/consumption by using criteria for general ordinances which require a 4/7 vote rather than the 5 votes necessary for a zoning ordinance. While often called a “sales” cutoff, the law actually reads “consumption” meaning last call would need to be at 1:30.

While waiting for the written ruling and pending an appeal, a "stay" was in effect meaning the City could continue to enforce the 2 am rollback. Butchko’s official ruling dropped yesterday and the City, as indicated following a closed attorney-client session of the Commission last week, appealed immediately after. However, the judge lifted the stay allowing the Clevelander to continue serving alcohol until 5 am while the appeal is pending. Notably, the motion to lift the stay was not opposed by the City.

City Spokeswoman Melissa Berthier issued this statement: “Effective immediately, the City will NOT be enforcing the 2 a.m. alcohol sale/service/consumption prohibition as the Court has entered an injunction and vacated the Stay. As such, those alcoholic beverage establishments in the MXE (Clevelander and all of the others) with 5 a.m. Alcohol Licenses may once again sell/serve/allow patrons to consume alcoholic beverages until 5 a.m.” 

Clevelander attorney Alex Tachmes of Shutts & Bowen said the Clevelander will continue to protect its legal rights but would prefer to sit down with the City to come up with the best long-term plan. During the meeting in which the City Commission voted to appeal Butchko’s ruling, they also rejected a settlement proposal from the Clevelander that included rights for businesses in the MXE with Conditional Use Permits to remain open until 5 am with outdoor entertainment. There are four businesses that meet the outdoor entertainment criteria – the Clevelander, Mango’s, The Palace, and Ocean’s Ten. Tachmes said 55 businesses have 5 am liquor licenses.

“What needs to happen is that the Clevelander needs to get a seat at the table along with other prominent nightlife businesses,” Tachmes said. Referencing the various committees and panels on Ocean Drive, he said, “We have not been invited to serve on [those] and it’s difficult to make policy that will work well with the nightlife industry when there’s no nightlife industry representation.” He suggested “a more nuanced solution.”

Despite the City’s rejection of their settlement proposal, Tachmes said, “We’re still available to talk and we think that’s the right move. I’m confident that if we have an open dialogue with the City that progress can be made.”

“If the City chooses not to do that, we’ll have no choice but to continue litigating, but I think that’s wasteful for everyone,” Tachmes added.

Asked about the “more nuanced solution,” he responded, “I think that the overwhelming issue that is being ignored by the City is you will never get a material improvement of the situation without a dramatically increased police presence. There must be highly visible beat cops… every day, every night for a sustained period of time so the culture of lawlessness that’s there now is broken.” The Clevelander maintains “a lot of security,” he said, “but we can’t control crime on the street.”

“You can go business to business up and down the street and I’m confident every single one will tell you that there is woefully few officers on Ocean Drive and it’s just completely counterintuitive to ignore that piece and just think that you’re going to roll back liquor hours from 5 to 2 in the morning [and that the] throngs on the street smoking weed and carrying guns, that all that will go away,” Tachmes said. With an inadequate number of officers on the street, he said, not as many arrests are made and the bad behavior continues.
“It’s akin to having a little child at home,” he said. “If the child misbehaves and there’s no discipline, the kid’s going to misbehave all day… It’s not complicated. It’s human nature… I’m confident our police officers, properly staffed for a sustained period – I’m not talking just a holiday weekend but for maybe a year – there’s no question in my mind they will get positive change if they’re visible. Two officers on every corner… like New York City’s Times Square.  Everybody knows they’re there and little by little the culture changes.”

After the judge's order was released, Mayor Dan Gelber said, "This is a public safety issue plain and simple. We will seek to vindicate our residents’ rights in every available venue and to the fullest extent of the law."

Photo courtesy the Clevelander

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