Commissioners approved all of those ordinances on first reading last month but the alcohol rollback passed as a pilot program after swing vote Micky Steinberg proposed a trial period. So far, that pilot has not yet been defined though City Manager Alina Hudak wrote in a memo to Commissioners that it may be submitted in supplemental material prior to the meeting or be discussed when Commissioners meet.
There are 44 existing establishments within the Entertainment District (MXE) that would be impacted by the ordinance. They are located primarily on Collins Avenue and Ocean Drive, Hudak said.
State statute “expressly permits the City to establish hours of sale for alcoholic beverages by ordinance. Florida courts have consistently held that alcoholic beverage establishments are not entitled to ‘grandfather’ status as to hours of sale for alcoholic beverages,” Hudak’s memo states.
Despite the City’s legal team maintaining the position that no business has “vested rights” to serve alcohol until 5 am, Hudak noted a potential challenge. “These establishments allege that certain development approvals (including, but not limited to, conditional use permits) may entitle them to certain rights relating to their business operations,” she wrote.
Legal counsel for Jesta Group which owns the Clevelander cited “devastating and irretrievable consequences to the Clevelander” if the 5 am rollback passes.
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,” attorneys Kendall Coffey and Alexander Hall of Coffey Burlington wrote in a letter to then Acting City Attorney Rafael Paz.
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 Clevelander also objects to the repeal of the noise exemption as well as the potential permanent closure of Ocean Drive to vehicles which “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.
“Over the past decade, the MXE district has experienced increasing challenges associated with alcoholic beverage and entertainment uses, all of which were intended to be subordinate to the main use of residential or hotel properties in the district,” Hudak wrote in her memo. “The sale and consumption of alcoholic beverages late at night or early in the morning has disturbed neighboring residents, caused undesirable noise, and placed significant demands on the City’s Police, Fire, and Code Compliance Departments.”
“To rediscover the beauty and intent of the National Register Architectural District, and re-focus the urban planning priorities for the broader area, a ‘rollback’ of the permitted hours for the sale of alcohol for on-premises consumption is a significant first step,” she said, while also noting the legislation is “part of a multi-pronged approach” that includes business incentives, year-round programming, increased enforcement “and creating ways to balance vehicular and pedestrian mobility.”
Josh Wallack, COO of Mango’s Tropical Café, cites the 2017 referendum to roll back service hours which failed with almost 70 percent of voters opposing it. Those voters, he said, didn’t buy into “the fallacy” that an earlier closing time would fix the issues. The party is simply going to move around the corner and into residential neighborhoods, he says.
In trying to figure out how things got so out of control in the MXE, Wallack started to look at what happened over the last seven years including a policy change that eliminated jail time for possession of less than 20 grams of marijuana and another to end the program that put off-duty police officers in clubs.
In 2019, Commissioners made it illegal to smoke pot in public and reinstated the possible jail time, but Wallack said the culture change was noticeable and continues with or without the new law. Walking around Ocean Drive, he said, “I get huge blasts of pot smoke blown in my face. It’s being blown in children’s faces.”
The idea that you can walk around smoking marijuana and buy alcohol from a store has created a “street party” atmosphere where it has become “more cool to be outside” than in the clubs. "The dynamic changed,” Wallack said. Removing the street party and getting people back into the venues involves enforcement outside and off-duty cops back on the inside, he said. “What’s the point of being in the street if you can’t smoke dope anymore?”
“It’s going to take time,” he said. “It took time to get this way.”
To illustrate the impact of losing the off-duty officers in clubs, Wallack used an analogy of a high school. If you remove the teachers and administrators from the hallways, “the students take over and it’s the toughest students that can fight that run the whole show.” When off-duty officers were inside entertainment venues, he said, people were less likely to misbehave and incidents were addressed before they could escalate or spill outside, reducing the need to take on-duty officers off the street to respond.
The earlier closing time will simply send people out into other areas of the City including residential neighborhoods, Wallack said. The 2017 referendum didn’t fail “because we spent money to convince the voters,” he argued. “The voters were convinced already… everybody knew the party was going to be at Bodega or the Mondrian” when the MXE venues closed early." If the rollback passes, Wallack said, "They’re going to pour into the residential neighborhoods.”
He proposed a late-night liquor license similar to what Chicago has. To get one, operators have to have exterior safety plans, security cameras, and trained security personnel. Gelber proposed something similar last summer but it was tripped up by concerns over establishing an alcohol control board. The Mayor put the late-night liquor license back into his 12 Point Plan which he introduced last month after his frustration grew over the lack of progress.
Wallack said he understands the Mayor and Commission “want to get something done and I respect that, but let’s get the right thing done.”
“What do you think is going to happen when they close us down at 2?” he asked. “Thousands of people overtaking Washington Avenue and then drifting into Airbnb parties. Then what do you think’s going to happen on dark Ocean Drive? More drug dealing, more prostitutes,” he said answering his own question.
As to the Mayor’s proposal to provide development incentives for residential uses, he said property values make it almost impossible to do that without major increases in height. Even so, the idea of “live, work, play” still involves “play,” he said. “Dancing salsa and going to a venue that’s been safe and important and world famous for 30 years” like Mango’s is part of that.
Paul Ozaeta, President of the Miami Beach Police Fraternal Order of Police, supports the earlier cutoff saying it would reduce the opportunities for destructive behavior.
“The concept of fun currently is more of a destructive kind of fun than it was in years past,” he said. “The trend may change… but, right now, it seems to be a trend of destructive fun” that negatively impacts others. Over the past 20-30 years, he said, policing has become “more complex." Crowds have gotten “bolder” as an entire generation has grown up with the influence of social media and a more lenient society that makes allowances for bad behavior resulting in fewer consequences.
“People don’t respond to us in law enforcement like they did in the past," he said. "They’re not as apt to cooperate with us as they were in the past and that makes our job harder.”
“There’s always going to be crime at any point of the day,” Ozaeta said when asked about the argument that COVID curfews at midnight and earlier didn’t eliminate bad behavior. “By increasing the hours, you’re actually increasing the opportunity for bad incidents to occur and for a criminal element to exploit the party crowds.” Those crowds, he said, "are coming to enjoy themselves, [but] part of that enjoying is putting themselves into conditions where they are not able to take care of themselves as well” and there are those that take advantage of that.
While some say three hours isn’t a lot of time, Ozaeta said, it’s “three hours that increases the possibility of bad things happening which increases our workload. Our job is that much harder right now because of the reduced cooperation we’re getting from citizens.”
Taking a broader view of enforcement, Ozaeta said, as a society “we’ve become too dependent on law enforcement for everything as a catchall [response]” if a driver cuts you off or if your neighbor does something you don’t like, for example.
“People got the notion that calling the police is the answer to everything… and that’s not always the case,” he said. “We do come in to mediate situations but it’s beyond the scope of routine law enforcement and, yes, we’re there to maintain the peace but people think that the police are professional referees. If there’s a problem call a cop, a cop will have the answer. Unfortunately, we don’t always… and people get upset.”
With the additional alcohol service hours, Ozaeta said, there are more problems which result in more calls to police. “Those who say we can’t police our way out of everything, they’re right,” he said, urging the City to “look at other options, bad operators, businesses that are contributing to certain situations” and other City agencies that can enforce rules rather than “just calling us right away.”
Police “enforce the law and ensure public safety but we’re not the be all end all,” he said. “It’s not fair to society and not fair to us.”
“We’ve got to police the way our society is used to,” Ozaeta said. “We are not used to our police telling us how to live. We’re used to police being there to keep us safe but not to dictate how to live our lives and that’s where we’ve got to be careful on the overreliance of police and that we’re not crossing lines of things we shouldn’t get into.”
Parts of the Mayor’s 12 Point Plan on the agenda:
R5D MXE alcohol hours, second reading, public hearing, time certain 10:25 am
R5E MXE Noise exemptions, second reading, public hearing, time certain 10:30 am
R5L MXE amendments including prohibition on standalone bars, second reading, public hearing, time certain 5:01 pm