“No hawking” rules extended to Lincoln Road and Española Way Cafés

Susan Askew
Susan Askew

“No hawking” rules extended to Lincoln Road and Española Way Cafés:

Six Ocean Drive sidewalk cafés to shut down for 24 hours for violations

Miami Beach City Commissioners on Wednesday imposed a code of conduct for Lincoln Road and Española Way sidewalk café operators that includes a “no hawking” provision. The same code of conduct has been in effect on Ocean Drive since late September but enforcement began in earnest on October 1 to coincide with the sidewalk café permit renewal date. City Manager Jimmy Morales reported to Commissioners that 24 violations have been issued since then and six businesses which have received at least two violations each will be forced to close their sidewalk cafés for 24 hours beginning at 8 am Thursday. They are Down and Dirty Tacos and Tequila Bar, The Fritz, Boulevard Restaurant, Jalapeño Mexican Kitchen, News Café, and Oceans Ten. [We obtained the list of closures from the City, however, after publication an alert reader pointed out that Down and Dirty Tacos is now Wild 'N Out Sports Bar and Arcade.]
While hawking has been ruled free speech, the City has taken the position that having a sidewalk café permit to operate on the City’s right of way is a privilege not a right and therefore operators can be required to abide by certain rules and regulations in order to hold a sidewalk café permit. The new regulations for Lincoln Road and Española Way will take effect in ten days. 
In a letter to Commissioners earlier this week, Morales said that City staff used the period between September 21 and 30, “to perform, as a courtesy, education and outreach,” which included “communications with the Ocean Drive Association (ODA), email blasts to sidewalk café permit holders, and one on one communications with managers and owners whenever possible.” An FAQ was “provided to ODA to provide additional clarity.” Morales noted that code compliance officers were also trained on the new ordinance and best enforcement methods.
Code compliance officers had to “modify their strategy,” according to Morales. “Officers dressed in a uniform are identifiable and solicitations tend to cease when officers are visible. As such, Code Compliance has altered their approach and undercover work commenced so that violators could be identified and cited.”
With the passage of the expanded ordinance, Mayor Dan Gelber said “This ought to be the death of hawking” on Ocean Drive, Lincoln Road, and Española Way.
Commissioner Mark Samuelian who was a member of the most recent Mayor's Panel on Ocean Drive appointed by Gelber said of the violation notices, “I am pleased that the Administration is focused on making sure enforcement is a top priority and I’m also delighted to hear that we have strong consensus on the Commission for zero tolerance and some of the actions and discussions coming out of [Wednesday’s meeting] showed that we are going to take strong measures to ensure that that code of conduct is done right.”
Two business owners who will have to shut down their sidewalk cafés Thursday say they support the rules against aggressive hawking but that the enforcement has gone too far. 
Anthony Arrighi-Gonzales whose family owns Oceans Ten and manages News Café told RE:MiamiBeach this summer he supported the Commission’s efforts to get rid of the 2-for-1 specials signs and to make the Ocean Drive experience better. Both News Café and Oceans Ten will be shut down Thursday for multiple violations of the code of conduct.

Arrighi-Gonzales on Wednesday said he supports the new code of conduct and has noticed an improvement on the street. “The outcome of this was amazing and I commend the City for having done this… for having taken actions about the hawking. I absolutely agree with them… absolutely not following [someone] because that is stalking and it is wrong, shoving a menu in someone’s face against their will is absolutely wrong, and false advertisement is a crime. So, I’m all for those laws being enforced.”
But, he said, “We went from one extreme to another extreme… they’re going too far. We don’t know what we can say, what we can’t… the staff is even afraid to say hello.” He questions why staff can’t “politely” say “good evening” and ask if someone “would like to join us for dinner?”
His staff is afraid any conversation “will be misinterpreted and they will lose their job,” he said, a consequence he makes quite clear will happen. 
Arrighi-Gonzales claims there have been no explanations of the offenses, just fines. He also took exception to the forced shutdown on the second offense which he said should be a fine as outlined in the ordinance though a code compliance officer explained it was at the discretion of the city manager (which it is). He has appealed the ruling to the special master but his penalty – the forced shutdown – will be imposed before his hearing. “As far as my knowledge of the law, we’re all innocent until proven guilty,” he said. “We’re found guilty before having a hearing. I am not sure that it’s very Constitutional.” The new ordinance outlines the penalties for violations and does give the city manager the authority to order an immediate suspension of permits.
Zafer Acik owns the café at The Fritz and Jalapeño Mexican Kitchen. Both are on the list for sidewalk café closures Thursday. Acik said he, too, agrees the hawking has been an issue but he says he defines the egregious behavior as “physically touching them, physically following them” and banning that is “100% okay but what it is right now, we are not allowed to talk at all unless [patrons] come to us and talk to us.” In a meeting with his employees he said he told them, “Do not talk at all” even if people say hello to them.
Acik said the sidewalk café operators’ rights and his employees’ rights of free speech are being violated. He also took exception to the penalty before a hearing. “We have a due process right. I just appealed all my violations and we’ve been punished without having a hearing.”
He does admit his staff was trying to bring people into Jalapeño’s but he said they were 20 feet away from the outer perimeter of the café which is what is laid out in the ordinance with regard to the limits on hawking  “We were in compliance with the regulations and this is the thing I will explain at the special master hearing,” he said. “I’m okay with… banning the aggressive soliciting, it actually works for all of us… but telling people don’t talk, it’s too much.”
Samuelian said he went out to Ocean Drive after the law went into effect and after hearing concerns from the community that hawking was still going on. “I would describe it as significantly better than it used to be and a lot of the hawking had gone away, however, it wasn’t perfect.” Recognizing that “we needed to continue to push,” Samuelian asked for a discussion regarding enforcement at Wednesday’s meeting and said he will continue to keep the issue in front of the Commission. “I will continue to force zero tolerance,” he said.
John Deutzman, co-founder of the Miami Beach Crime Prevention and Awareness Group and also a member of the Mayor’s Panel on Ocean Drive, said he also observed hawking after the law went into effect. While driving the street in his car, he said, “I saw people physically following people down the sidewalk at a couple of the locations [that are closing Thursday].”
“If you offer decent food, decent service, and a decent experience you don’t need to wrangle people in to your business,” Deutzman said. “Only on Miami Beach have I ever experienced this.”
“The goal of the Mayor’s panel was to make Ocean Drive a better experience for residents and guests,” he said. “You’d be hard pressed to find one resident out of 91,000 residents who will say ‘Hey, dear, let’s go down to Ocean Drive and that’s kind of pitiful that residents don’t want to go there because of this nonsense.”
“I don’t think that these guys thought that the City was going to enforce this seriously and I think they’re surprised,” Deutzman said.
With regard to the operators’ complaints that their employees are afraid to speak, Samuelian said he hadn’t heard that. “I guess what I would say is we’ve had such a problem for so many years that it’s impacted our visitors, our residents, and our community that it makes sense that we’ve gotta right the ship. So, in my view, if we’re being a little extra strict that’s appropriate, all within the boundaries of the ordinance and the rules we’ve put in place.”
“The challenges we have on Ocean Drive are multi-faceted and they’ve been going on for years so when you have a big complex problem like that, it doesn’t change overnight,” he said. “I’m very pleased with what the Commission has done on the sidewalk café code of conduct.”
The code of conduct also prohibits 2-for-1 specials signs and requires gratuities to be separately itemized, among other things. In his letter to Commissioners, Morales noted, that businesses are required to sign affidavits saying they will comply with the code, however, they also may withdraw their sidewalk café applications “should they not wish to comply with the provisions and enhanced penalties.” Most of the restaurants on Ocean Drive, however, have little indoor space and they make the bulk of their revenue from the sidewalk cafés. There are 47 outdoor cafés on Ocean Drive.
Penalties for violating the code of conduct are $500 for the first violation; $750 for a second violation within the preceding 12 months; a third violation within 12 months includes the suspension of the sidewalk café permit for one weekend (Saturday and Sunday) and a $1,000 fine. The fourth violation in a year results in the revocation of the sidewalk café permit for the remaining portion of the permit year and $1,250. Operators with more than four violations in a permit year will lose their permit for two years. The section that applies to Thursday’s shutdown indicates the city manager may issue an immediate order suspending a sidewalk café permit for at least 24 hours.
The ordinance adding Lincoln Road and Española Way to the areas required to abide by a Code of Conduct is here.

The Ocean Drive ordinance with details on the penalties can be found here.

UPDATED April 28, 2021: The restaurant at 524 Ocean Drive (The Fritz Hotel) is owned by 524 Ocean LLC with a d/b/a name that showed up as Cuba Libre in the City of Miami Beach's licensing system and attached to violation notices. Because another restaurant holds that trademark, the d/b/a name is being changed and it will no longer appear in our articles in reference to the restaurant at 524 Ocean Drive.

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