Three More Miami Beach Sidewalk Cafés Closed for Hawking

Ocean Drive

Susan Askew
Susan Askew

Three More Miami Beach Sidewalk Cafés Closed for Hawking:

Another 24-hour shutdown for cafés charged with violating new code of conduct

Three Miami Beach sidewalk cafés were closed Thursday for racking up two violations of the City’s anti-hawking provision that went into effect on Ocean Drive, Lincoln Road, and Española Way last October. Meanwhile, another operator got a pass after an error in the violation notice.

The businesses forced to close their sidewalk cafés for 24 hours were Española Way Cigars on Española and Il Giardino (above) and Margarita Beach on Ocean Drive. According to City Spokeswoman Melissa Berthier, a “Code Compliance undercover/plain clothes detail” flagged the violations on Thursday, February 20. 

Four other businesses were cited for their first offense including Cuba Libre (at the Fritz Hotel) on Ocean Drive. Cuba Libre was cited twice and forced to close its sidewalk café for 24 hours in October, but due to an error in the citation, this latest incident was entered as a first offense. Had it been recorded properly, it would have resulted in another 24-hour shutdown. The error occurred following a change of operating LLC for Cuba Libre. Until December, it was under Romina @ The Beach LLC before being moved into 524 Ocean LLC. 

“Code violations and escalating penalties apply to the legal entity that holds the sidewalk café permit,” Berthier said. But Chief Deputy City Attorney Aleksandr Boksner added the officers of the LLC should also have been named which would have resulted in multiple violations. Because this was the City’s error, the restaurant gets a pass on another shutdown.

“Moving forward the City anticipates that there will be no further issues regarding the charging documents for any prospective violators,” Boksner told RE:MiamiBeach.

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. Operators are 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. 

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 a $1,250 fine. Operators with more than four violations in a permit year will lose their permit for two years. At his discretion, the City Manager can force operators to suspend operations for at least 24 hours until violations of the sidewalk café ordinance are corrected. Those shutdowns have occurred before the special master hearings on appeals.

According to Berthier, there have been 25 cases of hawking violations that have gone before the Special Master to date. Five have been dismissed and the other 20 upheld. One of those dismissed was for 524 Ocean. So, if you’re keeping score at home, that means Cuba Libre is down to one violation that counts.

One restaurant that is depending on an appeal to keep it open is Margarita Beach which shut down Thursday after its second violation this fiscal year. Margarita Beach is operated by Ocean Drive Restaurant LB LLC. The ownership previously operated La Baguette which was closed down for serving alcohol to minors and deceptive business practices in 2018. The restaurant was allowed to reopen as Margarita Beach Club with a sidewalk café under a consent decree signed February 4, 2019.

Among other things, the owners represented they had terminated the restaurant’s previous general manager and hired a new one as well as replaced the previous waitstaff. In addition, they agreed that, “In the event there are two (2) or more adjudicated Sidewalk Café Permit violations within Fiscal Year 2018/2019 or Fiscal Year 2019/2020, Ocean Drive Restaurant LB LLC and Margarita Beach stipulate to the immediate revocation of their Sidewalk Café Permit which revocation shall remain in effect through September 30, 2020.” The City’s fiscal year and sidewalk café permits run from October 1 through September 30.

Senior Assistant City Attorney Mark Fishman said in an email that, “adjudicated means (at a minimum) either a notice of violation is not timely appealed or, if timely appealed (as these were), that the violations are subsequently upheld by the special master.” In a follow up email, the City indicated the appeal of the first violation will be heard at the beginning of April. In the second case, the operators have ten days from February 24 to appeal.

This is the third shutdown since the ordinance took effect. In addition to the October closings, there was another in January.


 

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