Nakash Family Companies Sue Miami Beach to Force Reopening of Ocean Drive

A group of Ocean Drive businesses controlled by the Nakash family has filed suit to force the City of Miami Beach to reopen Ocean Drive which has been closed to vehicular traffic since last May. Various LLCs which own the Hotel Edison, Hotel Breakwater, The Villa, Casa Casuarina, Hotel Victor, and Hotel Ocean along with a number of properties leased to restaurants are the Plaintiffs in the action filed with the Eleventh Circuit Court in Miami-Dade County. The Nakash family businesses include real estate and Jordache Enterprises.

The suit claims, the City “has unilaterally declared that it will permanently close Ocean Drive to automobile traffic, which closure will have a devastating impact on the hotels, restaurants and other businesses fronting Ocean Drive, including those of the Plaintiffs.”

The City closed Ocean Drive to vehicle traffic from 5th to 15th during the initial stages of the COVID pandemic to give residents the ability to get out and walk and bike on the street during the lockdown. When businesses were allowed to gradually reopen, the City launched its Restaurant Recovery Program, providing outdoor dining spaces so restaurants could open safely. 

The pandemic and closure of the street for the recovery program coincided with the City’s long-term planning process for the future of Ocean Drive which has included discussions about the complete or partial pedestrianization of the street from 5th to 15th Streets. The Restaurant Recovery Program was initially supposed to end on September 30 but was extended through the end of this year while Commissioners continued to discuss the future configuration of the street, one more action, the suit claims, that shows the closure is no longer about COVID. 

The suit notes what turned out to be a controversial reopening of one lane of traffic northbound on July 4 last year by then City Manager Jimmy Morales. Two weeks later, the City Commission directed Morales to fully close the street again. The lawsuit states, that while considering the resolution to close the street once more, “comments made by various City Commissioners made clear that the closure of Ocean Drive to automobile traffic no longer had anything to do with COVID-19.”

Ocean Drive has been a public road since 1913, according to the Court filing, when The Ocean Beach Realty Company formed by brothers J.N. Lummus and J.E. Lummus purchased property that included lots adjacent to what is now Ocean Drive and Lummus Park and dedicated “the streets, avenues, boulevards, drives and alleys” represented on the Plat, recorded with what is now Miami-Dade County, “to public use, including use by automobile traffic, which use was essential to the development of Miami Beach and sale of the lots created by the Plat.” That dedication, the Plaintiffs claim, “gave a right-of-access for automobiles to the owners and tenants of the lots abutting Ocean Drive, as well as the customers of those owners and tenants.”

“Plaintiffs’ right-of-access to Ocean Drive for automobile ingress and egress to their properties is a property right, and the City’s closure of Ocean Drive to automobile traffic constitutes unreasonable interference with or impairment of that property right,” the suit claims. In 1960, Dade County “formalized its acceptance of the dedication made in the Plat,” an action taken when the streets, drives, and alleys “were used for automobile traffic.”

“Automobiles have played a critical role in Ocean Drive’s iconography, with exotic and classic automobiles often taking center stage in postcards of Miami Beach,” the suit states.

The pedestrianization of Ocean Drive is a hotly debated topic with supporters saying it will help the transition to a more walkable area, showcasing the Art Deco architecture and keeping loud vehicles away from the outdoor dining area. Opponents say its closure has simply allowed congregation of large groups of partiers that are difficult to control.

The Nakash lawsuit places the blame for the street’s difficulties squarely on the City. “Notwithstanding Ocean Drive’s history, beauty and popularity, the City has allowed Ocean Drive to decline over time by failing to properly address congestion, crime, homelessness, pedestrian safety and other problems associated with a popular urban environment.”

“The City’s closure of Ocean Drive has had and continues to have a devastating impact on the hotels and restaurants located on Ocean Drive,” the suit claims. “Since Ocean Drive’s closure, hotel guests have been forced to drag their luggage several blocks in all types of weather, including extreme heat and heavy rain,” and resulting in negative online reviews, though two of the four reviews cited focused only on the decline of Ocean Drive.

After nearly a decade of studying a mobility plan for the area, the suit says, the City issued its Street Design Guide laying out “concepts for multi-modal, shared-space roadways designed for safe use by pedestrians, bicycles, transit vehicles and automobiles” as “intended” in the city’s Transportation Master Plan and Bicycle and Pedestrian Master Plan.

“At some point, however, the City’s vision for Ocean Drive shifted from shared space that included automobile use to exclusive use by pedestrians, bicycles and transit in the form of specialized electric vehicles, the cost of which would be borne by those that own property on Ocean Drive.”

Referring to a discussion at the June 23, 2021 City Commission meeting, the suit states Commissioners reached a consensus to move forward with “Option 3A” – presented as a “temporary plan… that would serve until the permanent plan comes on board in 2023.”

That plan would continue to provide space for pedestrians, bicycles, and outdoor dining. The only vehicles being considered under that plan are the so-called “Freebees,” an alternative mode of transportation using electric vehicles.

“According to the City Manager, the Freebee service would be at the expense of businesses on Ocean Drive and allow visitors to be dropped off at restaurants and hotels without having to open the road to private vehicles,” the suit states.

“The proposed Freebee service presents numerous logistical problems for visitors to Miami Beach, and specifically guests staying at hotels on Ocean Drive,” according to the filing. “Guests would be forced to take one mode of transportation to Miami Beach, and then transfer themselves and their luggage to a Freebee. Even if transfer were seamless, which is never the case, the transfer leaves the guests with an unfavorable first impression [of] South Beach. In peak hotel check-in and check-out times, this transfer will be delayed, with hotel guests and their luggage having to wait out in the Florida heat or rain for a Freebee. To the extent peak hotel check-in times coincide with peak dining hours for restaurants located on Ocean Drive, the transfer will be delayed that much longer.” 

“It is customary,” the suit states, “in the hotel industry for guests to be able to pull up or be pulled up to the front of a hotel in an automobile, taxi, Uber/Lyft or other motorized vehicle for check-in, which gives the guests the first impression of the hotel,” a process that also includes unloading their luggage or getting assistance with unloading their luggage. “Any hotel that cannot and does not afford its guests with these services and this first impression cannot compete with hotels that can and do.”

In addition to closing Ocean Drive to automobile traffic, the suit notes the closure of intersecting streets at 9th, 10th, 11th, 12th, 13th, and 14th Streets east of Collins Avenue, streets also dedicated to public use by the Lummus brothers. 

“Plaintiffs applaud the City’s desire to do something to address the traffic congestion and pedestrian and bicycle safety concerns related to Ocean Drive, but the City’s approach disregards the rights of the owners of property along Ocean Drive and the Intersecting Streets,” the suit says.

The suit asks the Court to enjoin the City from both temporarily and permanently closing Ocean Drive and the intersecting streets to automobile traffic.

The City did not respond to a request for comment on the lawsuit.