[Palmetto bug, if you prefer something more subtle.]
No matter what the City throws at it, it just won’t die.
Hawking, the peddling of specials and menu items, often aggressive, was once the purview of Ocean Drive but it has expanded in recent years to Lincoln Road and Española Way. It used to be an annoying joke as the cosmetic shops on Lincoln Road – “Where are you from?” – worked to lure you in to buy expensive packages of goods. The City tried to stop it then, but a court ruled it free speech and the peddlers became untouchable.
As restaurant hawking (and other “bad behavior”) proliferated along with complaints, the City came up with a solution, a Code of Conduct that ties the lucrative sidewalk café permits to following a set of rules, including a prohibition on hawking. Sidewalk café permits, the City determined, are “a privilege, not a right” and, therefore can be regulated through the permit process. It went into effect at the beginning of October last year on Ocean Drive and was expanded to Lincoln Road and Espanola Way a couple weeks later.
“I think this is going to be the end of hawking on Miami Beach,” Mayor Dan Gelber said at the time.
Well, not exactly.
I spend a lot of time on Lincoln Road feeding my Fitbit. And I get hawked… a lot. I’ve taken to being a bit, shall we say, “cheeky” with some of the hawkers, asking, “You know you’re not allowed to do that, right?” Usually I get sheepish smiles or shrugs as the host or hostess waits to see if I’m an undercover Code Compliance officer ready to bust them. I just keep walking.
Then this happened: On October 15, while passing Aura (the old Books and Books Café), one of the hosts starts with the 2 for 1 specials.
[I know. We all miss the old Books and Books Café... heck, we all miss Books and Books, period. But I digress.]
I tried, I really did, to keep walking… but I couldn’t help myself. I turned around and did my usual “You know you’re not allowed to do that, right?”
Very quickly I learned there was nothing sheepish about this guy.
“Tell you what’s on the menu?”
“Yes,” I replied.
He then tore his mask off and, coming at me, yelled, “That’s illegal? WRONG, HONEY!”
[Well, actually, honey… it is.]
The Code states sidewalk café operators “shall not solicit any pedestrian(s) located on the sidewalk abutting the sidewalk café permit area, or on the right of way within twenty (20) feet of the outer perimeter of the sidewalk café permit area, for the purpose of inducing such pedestrian to patronize any business establishment or sidewalk café, or purchase any food, beverage, product or service, unless the pedestrian first affirmatively communicates a desire to receive information about the sidewalk café’s food, beverages, products, or services.”
[For the record, I was in my own little world listening to a podcast when I was walking by. I didn't look like someone who “communicates a desire to receive information…”]
The Code also requires training so employees know what they can and cannot do under the Code of Conduct.
[I’m guessing this guy missed the meeting…]
Fortunately, the screaming host was pulled away by another employee. I posted the experience on my personal Facebook page and, in no time, it had racked up 85 comments. The subject generates strong feelings.
Figuring it was time for a follow up on how enforcement of the City ordinance was coming along, I sent a request for data on violations but, in full transparency, also pointed my contact at the City to my Facebook post.
A couple days later, I was walking past Aura again. Different guy, same M.O.
[Are you kidding me? Story’s just writing itself…]
I laughed. “You guys haven’t learned, have you? You're not allowed to do that."
“Huh?” he asked.
I kept walking. In fairness, the hostess at Taverna also approached the guy behind me as I was walking past so Aura wasn’t the only one hawking on that day.
[Taverna (photo above), makes another appearance later in our story…]
The dataFrom Oct 1, 2019 through October 15, 2020, the date of my experience, there were 48 violations for hawking, five of which were overturned by the Special Master. Fourteen of the violations resulted in shutdowns of at least one night.
More than half of those violations (26) were issued in the first month after the new law went into effect. One restaurant alone received four in the first month, though one of the violations was vacated. Following the flurry, Boulevard on Ocean Drive entered into a consent decree with the City essentially promising to behave. They have not had a violation since.
After that first month, the numbers slowed considerably. Asked why, City spokeswoman Melissa Berthier said it was “a combination of contributing factors” including continued outreach by the City and Ocean Drive Association to further educate businesses on the Code of Conduct, staff and ownership training, and the word getting out about enforcement. “Based on [bodycam] footage and direct observations,” she said, “behavior was much improved.”
Then COVID forced months-long shutdowns. The first citation after reopenings was issued in June to Lincoln Road’s Ole Ole which was forced to close for a night since that was its second violation within 12 months. Another citation was issued in September to Tapelia, also on Lincoln Road.
[Remember these two. They also make another appearance later…]
Then, over a two-day period last month from October 22nd to 23rd, there were seven violations issued resulting in three shutdowns. One of the shutdowns was Taverna which, having been cited a third time, had to close for two weekend nights. Taverna was also shut down for one night in December following its second violation.
The latest citations followed a Commission Land Use and Sustainability Committee meeting during which new restrictions for Ocean Drive were discussed. Committee members expressed frustration with enforcement of laws currently on the books. Commissioner Ricky Arriola said. “We know there’s chronic violators… and yet they keep operating and violating our every rule, whether it’s hawking, whether it’s noise, whether it’s fraud, staying open past curfew and yet they stay open, and so until I see better enforcement I’m not going to be favorably disposed to legislation that I don’t think is going to make much of a difference.”
When asked if there was a push on enforcement and if the comments at the Land Use Committee meeting had any impact on that, Berthier said in an email, “Yes and Yes. Your feedback on getting hawked at Aura on LR immediately prompted the Assistant Director of Code to take a walk on LR; while he wasn’t hawked there, he was hawked at other establishments. Additionally, as more businesses reopen we’re seeing our caseload shift from COVID-related complaints to more traditional code complaints.”
Was there an effort to go lighter during the recovery period when restaurants were reopening? Berthier responded, “Yes.” The first priority, she said, was getting businesses reopened and operating in a safe manner. “A three-prong approach consisting of Education/Outreach, Inspection/Guidance, and Monitoring/Enforcement was undertaken early on,” she wrote in an email.
“However, the code of conduct has never been waived nor have we been lenient on enforcement,” she emphasized. “It’s just a matter of logistics and staffing. Code Compliance has experienced a 140% workload increase since the start of the pandemic and we have many competing/shifting priorities.”
Penalties for violating the code of conduct are $500 for the first violation; $750 for a second violation within the preceding 12 months though the City Manager may also issue an immediate order suspending a sidewalk café permit for at least 24 hours, the clause that has been used throughout the past year. 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.
The rolling twelve months made a difference for two restaurants. Kantina and Carlyle Café, both on Ocean Drive, were cited on October 13, 2019 and again on January 4, 2020. Violations issued on October 22, 2020 would have been the third for each of them if the timing had been ten days earlier. Instead, the first violation rolled off, making the citation on the 22nd another second violation.
If Mayor Gelber has his way, those penalties will get a lot stricter. He’s proposed a new ordinance coming before the City Commission this week that would, upon a second violation of the Code of Conduct within the preceding 12 months, require the violator to stop all sidewalk café business operations at midnight each day until the City Manager approves an operation plan detailing how the operator will correct the violations. In addition to hawking, the Code of Conduct prohibits 2-for-1 specials signs and requires gratuities to be separately itemized, among other things.
back to where we startedAs I was finishing up this story last night, the Fitbit was nagging me, so I headed out for Lincoln Road walking west to east. Just as I was thinking how nice and quiet things were, I got to the 600 block where the hostess from Ole Ole Steakhouse started the menu hawking routine.
Turning around at Washington and heading back, the host at Tapelia in the 500-block tried to push their menu.
[Wait. The umbrella at Ole Ole also had the Tapelia logo on it. Note to self: Check on ownership.*]
And then, Aura.
The same guy who hawked me a few days after the “WRONG, HONEY” incident, approaches with the sales pitch. This time, exasperated, my thoughts just come tumbling out…
“Really, dude? We’ve already had this conversation. You’re not allowed to do that!”
Hawking as we know it... still not dead on Miami Beach.
*Ole Ole and Tapelia, while owned by different LLCs, share the same registered agent and managing member.