A Circuit Court judge said the City of Miami Beach’s 2 am alcohol consumption rollback in its South Beach Entertainment District (MXE) was enacted improperly, requiring 5 votes instead of the 4 used to pass the measure. Finding that “the City has treated alcohol sales as a zoning ordinance in the past and that it has arbitrarily, for no apparent reason or logic, treated the ordinance change for liquor sale in this case as a general code ordinance requiring a vote of only 4,” Eleventh Circuit Court Judge Beatrice Butchko ruled, “That is arbitrary… and if it’s arbitrary that’s unlawful.” (The rollbacks are often referred to as sales rollbacks, but the ordinance actually reads consumption so last call would need to be at 1:30.)
Immediately after the City Commission passed the measure, the Clevelander filed suit and asked for an injunction to force the City to stop the rollback. As soon as the hearing was over, the City indicated it would appeal the ruling. While the appeal is pending, the rollback remains in effect.
Last month, Mayor Dan Gelber, who is spearheading a 12 Point Plan to overhaul the Entertainment District, 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 4 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.
“Our residents should not be held prisoner to a business model that promotes the all-night hard partying that has generated an unsafe atmosphere in our City. We will appeal as it makes no sense, legal or otherwise, that the courts would force our residents to endure this kind of misconduct and disorder,” Gelber said after the ruling.
Josh Wallack, COO of Mango’s Tropical Café which has operated on Ocean Drive for nearly 30 years, sent his reaction to the ruling in a text. “No one is held ‘prisoner’ by a 30-year old business that operated exactly the same way for decades, when the area was thriving. No one voted for the arbitrary rollback in 2017,” he said referring to the 2017 voter referendum in which a similar rollback failed by a nearly 2 to 1 margin. “And they are going to appeal with a budget shortfall? Double down on the issues that matter and the law and voters support. No one supports this. It was an illegal action. You don’t double down on an illegal action.”
Butchko did rule in favor of the City’s temporary closure of Ocean Drive, denying the Clevelander’s attempt to reopen the street because they claimed it was a COVID measure negated by Governor Ron DeSantis’ Executive Order invalidating all local COVID actions. They also claimed the City does not have the authority to implement a permanent closure as the street is under the jurisdiction of Miami-Dade County. Because the City’s resolution indicated other reasons for its closure which were consistent with an affidavit saying the City would make a final determination after recommendations from urban planner Bernard Zyscovich and the Mayor’s Art Deco Cultural Panel which is reviewing it, Butchko did not reverse the closure.
The judge also allowed the City’s repeal of the eastward facing noise exemption that had been in place for venues between 9th and 11th on Ocean Drive, including the Clevelander, could stand. There was some debate about the Clevelander’s right to sound played at 78 decibels based on the City’s initial issuance of a Conditional Use Permit for the establishment in 2000. The decibel measurement was previously ruled unconstitutional so in recent years the City has used a “reasonable standard” for determining music that is above ambient levels. Butchko reiterated the right to 78 decibels and asked the two parties to come to an agreement through mediation about the level of sound that can come from the Clevelander’s outdoor area.
While her rollback ruling was based on the process, throughout the hearing Butchko expressed concern over the limited area included in the rollback – Ocean Drive and Collins Avenues from 5th to 15th Streets – while Washington Avenue was excluded. The Clevelander argued it would suffer reputational harm because customers and employees would simply go two blocks away where they can drink until 5 am.
“They want to blame us for the unfortunate, even tragic, events of the recent Spring Break,” Clevelander attorney Kendall Coffey of Coffey Burlington PL, said of the City. “We don’t depend on that [Spring Break crowd]. We are a serious, respected venue” focusing on Latin American, Canadian, and European tourists “that Miami Beach wants to welcome.”
“[The Clevelander's] got a buzz, but it’s got a positive buzz… the kind of buzz that is key to South Florida’s energy and, frankly, the revitalization of Miami Beach, particularly South Beach,” he told the judge.
Coffey argued the Clevelander has vested rights within its Conditional Use Permit (CUP) to outdoor entertainment and alcohol service until 5 am, but the judge sided with the City on that point saying the Clevelander’s CUP was for a Neighborhood Impact Establishment and not an Outdoor Entertainment Establishment and did not include specific language about noise or a 5 am service time. The fact that the City had allowed the venue to operate outdoor entertainment and serve alcohol until 5 am for over 20 years did not constitute “estoppel,” a reasonable reliance on the ability to continue operating as it had been, she said, citing recent case law.
Butchko did indicate she was “having trouble wrapping my mind around” the limited boundaries and the exclusion of Washington Avenue which is closer to residential neighborhoods than Ocean Drive and Collins Avenue.
City outside counsel, Jamie Cole of Weiss Serota Helfman Cole & Bierman LP, said, “Legislative bodies have broad scope to experiment. They’re allowed to try this for six months and see if it works.”
“Even if the judge thinks it’s unwise or unfair,” he said, elected officials can “draw the line and not include Washington. That is not something you can overturn.”
“But can you be purposely arbitrary?” she asked.
Cole said it was not arbitrary but designed “to balance the live, work and play concept of this District and that was always the concept of this District” which was set up with a focus on mixed uses including residential as one of its components.
“What I don’t understand, what’s different on Ocean that is different from Collins in that area, Washington in that area?” she continued. “I’m not talking about Ocean Drive during COVID. That was mayhem which isn’t usually like that. What’s different? That’s what I don’t understand. What is the difference between the Clevelander and all those other clubs on Washington? There’s shootings on Washington all the time.”
“Looking at the policy question, the City Commission had to draw a line,” Cole said. While they decided to “start here” with the MXE, he indicated Commissioners “may do something different. They may expand it.”
“But you can’t be arbitrary,” Butchko reiterated.
“Just because you draw a line doesn’t make it arbitrary,” Cole replied. “Just because you do it in one area doesn’t’ make it arbitrary. [The City] looked at crime statistics and decided this was the right thing to do.”
[The Clevelander’s attorneys] claim those statistics include crimes on Washington Avenue,” the judge pointed out.
In the end, the area of the rollback wasn’t part of her ruling as Butchko determined based on the historic treatment of alcohol regulations, the rollback was enacted improperly, requiring a 5/7 vote.
The exclusion of Washington Avenue, however, is on Wallack’s mind. “The voters are not dumb. They see keys to the city and big smiles on Washington Avenue, it’s ok there. South of Fifth, it’s ok there. But the same businesses on Ocean Drive... again... are holding people ‘prisoner,’” Wallack wrote in a text. “No, the City’s lack of planning events, programming peak weekends and endless marijuana/package store liquor fueled street parties that we all have to walk past are the problem. The arbitrary ‘this business model is now a problem’ is the problem, so says the court. The City’s action was illegal, and its inaction on things that would help it are why it’s being currently smoked by the City of Miami" in attracting new businesses.
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