Ocean Drive Sidewalk Café Permits Now Dependent on Code of Conduct

Susan Askew
Susan Askew

Ocean Drive Sidewalk Café Permits Now Dependent on Code of Conduct:

Operators must agree to no solicitation, among other rules

Sidewalk café operators on Ocean Drive will now be required to sign a Code of Conduct which includes prohibitions on soliciting passersby verbally or with handbills unless a pedestrian asks for information about the café’s offerings first. The practice known as “hawking” has been upheld as free speech in recent court rulings, however, because sidewalk cafés are on public right of ways, the City of Miami Beach can control activities there through the sidewalk café permitting process. Commissioners this week approved the ordinance on second reading. It will take effect in time for permit renewals on October 1.
The permits, good for one year, will now be conditional on operators acknowledging the Code of Conduct and agreeing to be bound by it. While the Code of Conduct is citywide, the no solicitation provision is specific to Ocean Drive though Commissioners will discuss expanding it to Lincoln Road and Española Way later this month.
The Code of Conduct incorporates previous conditions on permit holders including the requirement to display and fully disclose the actual prices for food and drink menu items, specials and gratuities; no live entertainment or speakers unless permitted as a special event by the City; and the newly initiated prohibition of specials boards. This ordinance went a step further, adding the no solicitation provision within 20 feet of the outer perimeter of the sidewalk café permit area from 5th to 15th Streets on Ocean Drive.
Enhanced penalties include authorization for the city manager to suspend the sidewalk café permit and operation for at least 24 hours or “until the city manager finds that the violation(s) have been corrected and withdraws the suspension order.” The city manager could also suspend or revoke the sidewalk café operator’s business tax receipt (BTR or business license).
While hawking has been upheld as free speech, the City maintains that sidewalk café permits are a privilege, not a right and that it can control what happens on City-owned property via conditions in the sidewalk café permits.
In establishing a record in case of a legal challenge, the City took testimony and affidavits from residents and business owners at a recent Neighborhoods Committee meeting as to the harmful impact of hawking on the City, its residents and tourists. 
In one affidavit, Miami Beach CFO John Woodruff stated, “the City subsidizes the cost of operating a sidewalk café on City property by offering participants in the sidewalk café program space at a substantially reduced rate under the current market rate for space.” According to Woodruff, the permit rate for sidewalk café space is $25 per square foot while the market rate is $120 per square foot based on past real estate sales closings and the price for the only retail space that is currently for lease on Ocean Drive.
Woodruff’s declaration goes on to state, “In exchange for accepting this subsidy and participate in the sidewalk café program, sidewalk café operators must agree to a Sidewalk Café Code of Conduct…”
Legislation sponsor, Mayor Dan Gelber, said, “It’s a different approach… I am heartened by the fact that there really has been very little pushback from anybody on Ocean Drive. In fact, I think they sort of like it because part of the problem has been when there’s no floor, it’s a race to the bottom and if you elevate the floor everybody’s on the same level of merchandising their product whether it be food or merchandise or anything so it’s good thing.”
Commissioners discussed expanding the no solicitation provision to Lincoln Road and Española Way after Commissioner Joy Malakoff said she had received calls from tenants and property owners on Española Way about wanting to prohibit the hawking there. 
Commissioner Michael Góngora said the sidewalk cafés are “a very important part of Miami Beach’s success. People love Ocean Drive and Lincoln Road and Española Way and other areas because they want to be outdoors but we’ve gotta make sure that they’re good operators.”
“I think that as a result of this and other issues, I really feel like Ocean Drive has improved quite a bit,” Góngora said, but added that he was surprised to find hawking and “the big drinks that everyone complains about on Ocean Drive” on Lincoln Road. “It seems like maybe the bad behavior moved because we were focused on Ocean Drive.”
Commissioners hope to take up an amendment to the Sidewalk Café ordinance at their meeting on September 25 to expand the no solicitation provision. In the meantime, a notice that the amendment is coming will be sent to all operators on Española Way and Lincoln Road.
Ceci Velasco, Executive Director of the Ocean Drive Association, said the association includes a Code of Conduct as part of membership, but there is “no way to enforce that, nothing we can do to them punitively but we’re very happy that the City is embracing this.”
She noted, however, that all sidewalk café operators need to be held to the higher standard of not being allowed to hawk.  “Our customer base will go somewhere else,” Velasco said. “They’ll be able to offer these specials in the different areas – Española Way and Lincoln Road – verbally because they can still hawk. We can’t do that now so there is an inequity that’s going to happen.”
“We are very happy to hold ourselves at a higher standard,” she said. “We think that everybody in the City should be held at that standard.” 
Mickey Marrero, attorney for the Clay Hotel on Española Way, said, “In a rare case of self-regulation” his clients “want to impose [the no solicitation provision] on themselves. They think it would improve the experience on Española Way.” 
“We have two property owners that own the entire stretch from Washington to Drexel [on Española Way] and both of those two property owners are absolutely in favor of expanding this to Española Way as soon as possible… They do feel that the experience for their customers and their clients would be much better improved with that commercial solicitation prohibited.”
“I think this is going to be the end of hawking on Miami Beach and I think it’s a good thing,” Gelber said. “I think we’ve all been very troubled by it.”
Commissioners voted unanimously to approve it.
Details on the ordinance here.

UPDATE: Commissioners voted on first reading to include a Code of Conduct for sidewalk café operators on Lincoln Road and Española Way. Second and final reading is scheduled for October 16, 2019.
Photo: City of Miami Beach

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