Miami Beach Commission Advances Legislation for Early End to Alcohol Sales in South Beach Entertainment District

Susan Askew
Susan Askew

Miami Beach Commission Advances Legislation for Early End to Alcohol Sales in South Beach Entertainment District:

Repeal of Noise Exemption Also Moves Forward

Miami Beach Commissioners gave preliminary approval to Mayor Dan Gelber’s proposal to move last call for alcohol served at bars, restaurants, and clubs in the South Beach Entertainment District from 5 am to 2, though it wasn’t exactly the victory he hoped for. With three votes lined up in favor and three against, Commissioner Micky Steinberg in the swing vote role proposed a compromise – a pilot program rather than a permanent rollback. Gelber acquiesced in order to advance the legislation from first to second reading where it could be modified or rejected.

Commissioners also approved on first reading another key piece of Gelber’s 12 Point Plan to change the dynamic in the Entertainment District away from what he calls an "anything goes" atmosphere – repeal of the noise exemption from 9th to 11th Street on Ocean Drive. They also passed a resolution directing the City Administration to explore ways to further strengthen the sidewalk café permit process. Gelber wants the Commission to consider banning large drinks and hookahs citywide, among other ideas.

After three years of trying different policy changes – cracking down on promoted parties, implementing a sidewalk café Code of Conduct that includes a prohibition on hawking and deceptive menus, regulating scooters, increasing enforcement, and other measures – Gelber said the City needs to take a different approach. 

“We tried everything to manage and I think we just have to accept the fact that we just cannot manage this area in any way that makes sense,” he told Commissioners. “We’ve just got to walk away from it… We don’t need an Entertainment District anymore.” He’s proposing a 12 Point Plan to create an atmosphere where a live-work-play dynamic can thrive. “An area that has residents in it, an area that has businesses and shops, restaurants and even some entertainment, but not solely an entertainment district… It’s almost entirely entertainment [now]," he said.

Introducing the earlier last call legislation, Gelber said he knows the issue is “obviously pretty controversial,” but he said the time for incrementally addressing the problems in the Entertainment District has long passed. Though opponents argue the problems continued while the City was under earlier COVID curfews proving the issue is not late-night/early morning alcohol sales, Gelber said an earlier last call is more conducive to transforming the district into one focused more on live-work-play. “If you want to live in that area… you don’t want 40 or 50 nightclubs around you, abutting you or in front of you,” he said. “This isn’t simply a magnet for bad behavior, it’s also an absolute impediment to creating the live-work environment we want.” 

The MXE (Mixed Use Entertainment) District is located generally in the area from 5th to 16th Streets on Ocean Drive and Collins Avenues.

Planning Director Tom Mooney said, over the years, the live-work-play balance in the area has been disrupted. “The play portion has begun to dominate the live-work portion and it has created an impediment to that balance.” The 2 am rollback is only one part of the overall strategy to gain “better control of the play and get back to that balance,” he said. 

“It would allow for a rebranding of businesses that rely on 5 am drinking to become establishments that better serve a true live-work-play type of atmosphere and environment,” Mooney said. 

As he has on several previous occasions, Miami Beach Police Chief Rick Clements presented statistics showing calls for service in the Entertainment District increased in 2020 and 2021 and in a “heavier concentration.”

“Over 80 percent of quality of life violations” occurred in the Entertainment District (which is being rebranded as the Art Deco Cultural District) with “dramatic increases” in the early morning hours. “You can make an inference that alcohol had something to do with that because that is the time a lot of the bars are closing,” Clements told Commissioners. 

He said he agreed the hours should be rolled back, saying he’s “never seen it so bad” as it’s gotten in recent months. 

Acting City Attorney Rafael Paz said Florida law permits the City to regulate hours and locations of alcohol sales with “no grandfather status or vesting as to hours of sale for alcoholic beverages.” The City Attorney’s Office does not agree with the position of some establishments that they have vested rights through the Conditional Use Permits (CUPs) issued by the Planning Board allowing sales until 5 am. He advised Commissioners the City has been “placed on notice of a [legal] challenge” based on one such permit.

Commissioner Ricky Arriola said ending alcohol sales early is not the answer, citing the 8 pm, 10 pm, and midnight COVID curfews that were in place for a year and lifted only on April 12. “And yet the behavior that we all abhor has continued,” he said. “I think that we are pursuing the wrong approach to do this.”

He also noted the referendum nearly four years ago in which voters “overwhelming rejected” a 2 am rollback

The “robust nightlife” here “feeds into the ecosystem” that is part of the Miami Beach brand, Arriola said. “We’ve got world class restaurants and great shopping, great beaches, great hotels… some of the best nightclubs in the world have been in Miami Beach, are in Miami Beach. There’s a reason we get Art Basel and the Super Bowl.”

“If you start chopping off parts of the ecosystem, you kill the whole organism,” he said. The solution is “better policing of bad businesses through Code Enforcement, law enforcement, revocation of [business licenses] and to reward good businesses that can comply with standards we put forward.” 

“The behavior that we want to see stopped has been occurring in an atmosphere when we have the most restrictive curfews, the most restrictive alcohol cutoffs that we’ve had in our history,” Arriola argued. “Our focus needs to be on trying to promote and attract better clubs and bars and close down the ones that cannot lawfully operate.”

Commissioner Michael Góngora said he’s heard concerns from resident groups that an early closing in the Entertainment District will cause the problems to spill over into other areas of the City. “I don’t think this ordinance is comprehensive enough. I think it’s one of those baby steps that you’re saying you don’t want to do,” he said to Gelber. “I think if we’re going to have a talk about hours, then we need to have a more comprehensive talk citywide.”

Góngora said the ordinance as proposed also raised questions for him about differences between open air and indoor alcohol establishments. “I would like to see an ordinance that deals with outdoor establishments versus fully enclosed establishments because, in my mind, there’s a difference. If you’re a fully enclosed establishment that’s controlling your problem crowd, whatever it is you want to call it, I think that’s different from something that operates open air.”

Góngora, who asked the City Administration for answers to 18 questions including a review of closing times around the State, said he thought it was “kind of unusual to roll back in the City of Miami Beach when we see what’s happening around the rest of the State” where closing times range from 3 to 4 am.

“It does concern me that less than four years ago our voters rejected this question,” he said. “I do think things have changed and our voters want us to change. I do think we need to deliver a safer city, in particular this area. We can’t have a repeat of we saw. I appreciate this idea but as a blanket closure at 2 am, I can’t support it today."

Steinberg said she is “generally not in favor of a rollback” but said she was “willing to entertain a reasonable compromise” for a pilot period “to help move the needle and get real time data that is not tied to a curfew or pandemic.”

“During this interim period, we should work on legislation that actually changes the atmosphere as well,” she said. “How are we bringing art and culture to this area? How are we looking at the zoning?” To get to the vision of a transformed area, she asked, “How do we incentivize a different business model?”

Commissioner Mark Samuelian said, “I realize this is a controversial play,” acknowledging “some strong voices on both sides.” Referencing the 2017 referendum, he said, “I do think we’re in quite a different place. I think the environment has changed materially enough” that he didn’t think a vote today would have the same result.

The perception of the City as a party town is another issue for Samuelian. “I don’t think 5 am sends the right message,” he said. “Do I think it’s a silver bullet? Absolutely not [but] when we say we’re a 5 am town, that really says something. I don’t think we want to be saying that at this point.” There can still be “great entertainment and nightlife,” but the community has so much more to offer, he said.

Samuelian also made the case for potentially expanding the area for the earlier last call. “My understanding is that there’s some 40-odd establishments in the MXE that are open until 5 but data provided by our Finance Department [show there’s] 60 to Dade Boulevard that can stay open.”

“Many residents have raised a very, very legitimate question – Is the problem going to spill over [and] how would that be addressed? What do we do about that?” Samuelian asked. “The miss is to get this area better but we moved the problem elsewhere.”

Commissioner Steven Meiner said, “It’s hard to know what the right mix is but we have to try. It’s not working.” With regard to the voter referendum, he said he “generally would be adverse to making a change [but] to me the world has changed and Miami Beach has changed tremendously in the last four years. I’d be shocked if that vote was close right now… The sentiment has changed.”

“This is a pivotal moment for our city and our brand,” Meiner added. “People are going to vote with their feet, some have already, if we don’t turn it around… We’re going to continue to lose good residents. It’s going to hurt our brand and have a ripple effect.” Addressing the spillover concerns, he said, “To not take any action because there are unintended consequences, we can address those but, to me, not doing anything is not the right approach to that.”

Commissioner David Richardson who has been a staunch supporter of the 5 am time said he’d like to “have a comprehensive workshop” in which “experts on both side of the issue make independent presentations.”

Citing the problems experienced despite the COVID curfews, Richardson said, “The biggest public safety mistake that we have made… is closing Ocean Drive to vehicular traffic without a plan. I’m not opposed to closing the street if we have a plan.” Instead, he said, the City closed the street and “created nothing but an open-air arena allowing people to gather” with alcohol they carried in. 

He echoed concerns about the potential spillover into residential neighborhoods. “I’m certainly willing to have a conversation as part of a comprehensive dialogue,” Richardson said. “We do need to make change, but I don’t think this change is going to fix the problem.”

Gelber said there is no ambiguity for him on the issue. “The data points are abundantly clear” about the policing challenges “later at night than at other times.”

He continued his emphasis on changing the dynamic to attract more residents. “You will not get residents to live in an area that has 40 or 60 bars open until 5am… If you want live-work-play on Ocean and Collins, you must get rid of the 5 am [closing]. Period. You just have to get rid of it. Period. Because it will never happen… those are incompatible uses,” he said.

The debate over the cost-benefits of the area is “a nice intellectual debate to have,” Gelber said, “[but] you can’t pay me for what I’m seeing. There is just no amount of money that is worth what we’re seeing… the images that go out… or the number of incidents that happen from this area.”

“If you want [a live-work-play] area, this is the only option you have,” Gelber said.

With Arriola, Richardson, and Góngora lined up opposed and Samuelian and Meiner voting with him, Gelber said, “Steinberg, you are the fourth vote on this… You will get your pilot even if I don’t think it’s a good idea” but he urged her to consider her position before second reading in May. “Remember, we’re trying to inspire investors to come in and create residences.” Uncertainty over closing times reverting to 5 am might make attracting investment harder, he told her, but “If it’s the only way to get this passed, I will be enthusiastically in support.” 

“I think we’ve reached… a true tipping point within the community,” Gelber said. “We have to seriously decide what we want this community to be. If you want this area to be a live-work-play area, this is the route you have to take.”

With regard to potential spillover issues, Gelber said he is putting together a proposal to address Washington Avenue, noting “Washington is another story. It is a business district. It is a business street” versus the mixed-use area he’d like to see for Ocean and Collins. He plans to circulate his thoughts to the Commission “in the next week or two.”

Responding to Steinberg’s questions about what the City will do to increase arts and culture programming, Gelber said he will be asking for $1 million in funding for cultural activations.

He asked Steinberg to work with the City Administration to come up with parameters for the pilot program prior to second reading at the May Commission meeting. He made one final attempt to persuade the “no” votes. “You either want to be an Entertainment District or a live-work-play district. All the experts told us we can’t have both,” he said. 

Final tally was 4-3 for a 2 am closing time as a pilot with Gelber, Meiner, Samuelian, and Steinberg in favor. Arriola, Góngora, and Richardson opposed.

Second reading will be in May. In the meantime, business owners and associations have lined up against the ordinance.

The Ocean Drive Association said in a letter to the Mayor and Commissioners that it opposes a “blanket 2 am closure” recommending instead applying the late nightclub Conditional Use Permit process to non-hotel liquor licenses; allowing hotels to provide alcohol service beyond 2 am “subject to violations and code of conduct enforcement so long as security is provided and all spaces serving liquor are indoors; and permitting smaller operations with records of good behavior to continue to operate inside after 2 am.

The Greater Miami and the Beaches Hotel Association (GMBHA) also wrote a letter in opposition. “During the past year a midnight curfew did not prevent public safety challenges, most of which have occurred well before the curfew. Changing last call to 2am would not directly improve public safety, but it would hurt local businesses, our workforce, and our lifestyle brand.”

“When Miami Beach residents voted on this issue four years ago, they recognized the importance of Miami Beach's unique nightlife brand and voted by a two-to-one margin to keep last call at 5am. Then as now, we believe that needed improvements can and should be achieved without changing last call to 2am,” wrote GMBHA President and CEO Wendy Kallergis. 
Photo courtesy the Clevelander

The entity that Acting City Attorney Rafael Paz was referring to when he said the City had been put on notice regarding the early last call – and other aspects of the 12 Point Plan – is the Jesta Group which owns the Clevelander. In a letter to Paz, attorneys Kendall Coffey and Alexander Hall of Coffey Burlington, noted the Clevelander’s history in Miami Beach since 1938, becoming “a nationally renowned landmark and tourist attraction.”

“Through the years, the Clevelander has been a proud and valued part of the City of Miami Beach (the “City”) community and has sought to maintain outstanding relations with the City and its leadership,” the letter states. “It appears, though, that the City is choosing a different path with devastating and irretrievable consequences to the Clevelander.”

The Clevelander asserts it has vested rights in its CUP, rights conveyed by a “land use order [that] are usually given in perpetuity and remain in place as long as the recipient of the order complies with its terms,” the attorneys write.

Citing the 5 am last call permitted under its CUP, the attorneys state, a change to 2 am “would be financially disastrous for the Clevelander. It would deprive it of three peak hours of revenue a day, twenty-one hours a week, and approximately four days a month,” the letter states. “Further, and even more damaging, this proposed regulation would irreparably harm the Clevelander’s business as potential guests of the Clevelander – in view of the earlier closing – would instead take their business a few blocks farther north or south to visit establishments that are open until 5:00 a.m. By favoring establishments North of 15th Street and South of 5th Street, the City’s proposed regulation would award a huge windfall to other businesses at a direct and substantial cost to the Clevelander.”

“The restrictive measures taken by the City, as well as the new proposed twelve-point plan” including legislation to repeal the noise exemption between 9th and 11th Streets where the Clevelander is located as well as the potential permanent closure of Ocean Drive to vehicles, “pose an existential threat to the Clevelander, putting at risk tens of millions of dollars of funding already invested by the owner and threatening major and permanent decreases in revenues and property value,” the letter states. “The Clevelander has a long history of being not only a landmark, but a positive force in the Miami Beach community. But no property owner should stand by to endure an inexorable destruction of the many decades of its property’s iconic stature and success and we strongly urge the city to reconsider its unfortunate course of action.”

Jesta Group paid $75 million for the Clevelander in 2018, according to attorney Alex Tachmes of Shutts & Bowen. [An earlier version of this story included an incorrect sale price.]

Changing the Dynamic

While the last call legislation got the most attention, Commissioners also passed on first reading an ordinance with several provisions designed to change the character of the Entertainment District including a prohibition on stand-alone bars meaning bars would need to be an accessory use to a restaurant, though there would be an exception for interior hotel lobby bars; limiting commercial rooftop use to restaurants only, though rooftops would still be able to be used for residential, office, or hotel guest amenities; and allowing artisanal retail and experiential retail as accessory uses. 

A requirement that all indoor entertainment undergo a Conditional Use Permit (CUP) review was dropped from the ordinance. Currently, venues with less than 200-person occupancy limits do not require a CUP from the Planning Board. The CUP process allows the Planning Board to include specific conditions within a CUP and call an applicant back for periodic reviews with the authority to suspend or revoke a CUP for repeat violations. 

Commissioner Góngora said the Land Use Committee did not recommend the provision given its potentially onerous impact. “This could be a poetry reading for 10 people at The Betsy Hotel and they now need to go through the very onerous and expensive process of getting a CUP and we were looking for ways to not put those kinds of onerous burdens on those types of businesses.”

“There’s nothing wrong with indoor entertainment,” Commissioner Arriola said. “In fact, well done it’s an enhancement and adds to the quality of life for our residents and our tourists. Putting the onus for a CUP process on smaller establishments means they won’t have any indoor entertainment and the whole area will be dulled and our city will suffer, so I can’t support that.”

Commissioner Meiner said he supported the direction of the ordinance. “Our changes will potentially hurt some good business operators. There’s some bad business operators and there’s some good business operators that could potentially be hurt, but ultimately we’ve got to look at what is in the best interest of our city. I would actually argue, if done correctly, the long-term economic benefits will so far outweigh the changes that it will be a boon for everybody and not only our residents but also the businesses there because the model may change slightly but it will be an absolute, magnificent [area], as I say, the French Riviera of Miami Beach.” 

Urbanist and author Richard Florida, a Miami Beach resident for most of the year, said he endorsed the Mayor’s 12 Point Plan by highlighting what he considers the most important aspect of it – creating a live-work-play district. “Right now, we have a play district and it’s rough play that’s overwhelming and making it impossible to create a work-live district.”

Florida, who said he and his wife used to enjoy Ocean Drive but haven’t been there in three years, told Commissioners, “There was a time when Ocean Drive was an asset, a phrase that was central to our brand. The most important luxury brand magazine in the world is named Ocean Drive magazine. Now, Ocean Drive and that part of our community has become a bad joke on Saturday Night Live and in the major media.”

The idea that “the Entertainment District is a transient district that will somehow disappear after Spring Break, I think, is over,” Florida said. “These problems have been getting worse and worse and worse every year.”

“When you have a glut of cheap hotel rooms combined with a glut of short-term rentals, what you get is low prices and a race to the bottom,” he said. “It makes no sense to use the building stock of our most valuable neighborhood for hotels, short-term rentals, bars, vape shops, and all those nuisance uses.”

“We urbanists have a name for what’s happening in this area. We call it overtourism. Overtourism is what happens when play and tourism overtake everything else. It’s plagued cities like Rome, like Venice, like Barcelona and Paris,” Florida continued. “Left to its own devices it will destroy places. It will destroy our image and brand. The Mayor’s plan gets to the crux of this problem. We need an earlier last call. We need better noise control. We need a heightened Code of Conduct [for sidewalk café operators]. We need stricter regulations on these nuisance toys like slingshots, jet skis, and scooters. We need pedestrianization [of Ocean Drive] and we need this transformation into a live-work-play community.” 

“We’ve become an epicenter of the innovation and knowledge economy,” Florida said. “Miami, Miami Beach, and Austin are where the creative class, a term I coined, are heading. More than half our residents are members of the creative class which matches Silicon Valley or Boston or DC, but I’ll tell you what, for all the New Yorkers that are coming here, more and more of my friends are getting ready to leave and they’re voting with their feet.” 

If the Entertainment District continues on its current course, he warned, Miami Beach could lose Art Basel and other major events including its important convention business. “What we need is proactive placemaking” that could include open air markets with food trucks, a farmers’ market, outdoor health and wellness activities and arts and culture activities on Ocean Drive and in Lummus Park, he said.

“The Entertainment District is terribly misnamed,” Florida said. “It’s not an Entertainment District. It’s our downtown. Wrap your head around this. It’s our downtown. It’s our hub of the knowledge economy. Downtowns are not just party places. Sure, they have restaurants and bars [but] they’re not just tourist traps. They are multi-functional, mixed-used places.”

The people who are now moving here from places like New York, San Francisco, Los Angeles, and Toronto, he said, “not only want to live here, they want to work here and, you know what? They don’t want to cross the causeway. They want to walk or bike or ride their Vespa to work. Those cheap hotels and short-term rentals and retail uses would be far better used as office and co-working spaces for this knowledge workforce.” 

Arriola who has championed incentives for office space said, “We have to create legislation to attract a type of investment that this city desperately needs to clean up this area once and for all. We’re really good at banning things… and it’s not working. We’ve got to come up with a better plan.”

Commissioners voted unanimously to approve the changes for the MXE without the CUP requirement for indoor entertainment venues with less than 200 people. Second reading is May 12.

Parking Reduction for Residential Use

One of the incentive ordinances sponsored by Arriola was also approved. It would remove the parking requirement for new residential construction in the MXE. To take advantage of the incentive, developers would need to provide a 30-year covenant that units would not be used for short-term rentals (rentals of less than six months and a day).

“This will create incentives for investment,” Arriola said, “helping restore or renovate historic buildings and bring much needed investment to buildings that, frankly, need it.”

Arriola said parking spaces cost around $40,000 to develop, a cost that is passed on to end users. By removing the requirement, the residential units could be more affordable. In addition, as the City seeks to promote alternatives to vehicle use, creating opportunities for people to live close to where they work will promote more walking and biking, he said. And, by providing incentives to convert hotels back into apartments, “we might get rid of some of these low budget hotels [and] create a much better environment in the MXE,” Arriola suggested.

Second reading is May 12.

Noise exemption repeal passes first reading

While City Code prohibits “unreasonably loud, excessive, unnecessary or unusual noise,” an exemption has existed for amplified sound projecting eastward from properties located from 9th to 11th Street on Ocean Drive. Commissioners approved Gelber’s ordinance to repeal that exemption on first reading. Second reading will be May 12.

Businesses that would be affected include Mango’s, the Clevelander, The Palace, and Ocean’s Ten.

“If you want this to be a live-work-play area, you can’t have noise,” Gelber said. “That’s inconsistent with a live-work-play area.”

Arriola was the lone no vote on this one. “Once again, there is this obsession with this government on prohibitions, restrictions, clampdowns… They sound good but they don’t make a bit of difference.” Instead, “we should focus on how to replace the bad operators," he said.

Michael Pego of Shutts & Bowen representing the Clevelander said, “There’s no way that businesses that have an outdoor entertainment model will ever be able to survive with noise restrictions.”

Resident Ken Koppel, one of the founders of the SOBE Safe group, asked, “Why should there be this exemption to begin with? I can’t think of a single valid reason.” The noise contributes to the “anything goes environment,” he said. “If we want to have a live-work-play environment, it won’t coexist with this kind of noise and, in fact, its incompatible with civil behavior on our streets.”

The Commission votes, Koppel said, “are basically telling residents on which side Commissioners are lining up and residents will be listening to this carefully.”

Ocean Drive pedestrianization timeline

Gelber also sponsored another item which was approved directing the City Administration to put some dates and milestones on paper for spending the General Obligation money for Ocean Drive ($20 million) and Lummus Park ($4.7 million). 

“The ideas that have been floating around are really exciting,” he said, including making “this promenade even more extraordinary and iconic.”

Photo at top:

Updated April 24 at 7:15 pm to correct purchase price of the Clevelander.

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