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Miami Beach to Ban Hookah and Cocktails Larger Than 22 Ounces at Sidewalk Cafes, Will Also Crack Down on “Hawking” and Hidden Fees

Miami Beach may have a new look coming. A judge has ruled in favor of a city lawsuit allowing Miami Beach to establish a new program that will give the city leverage over some restaurants it has had issues with on Ocean Drive, Lincoln Road, and Española Way.

Miami-Dade Circuit Judge Alan Fine denied businesses’ requests to halt the Oct. 1 implementation of a contract-based program for sidewalk cafes, which replaced a permit-based plan that another judge struck down late last year.

Under the new system, City Manager Alina Hudak would have the power to end Miami Beach’s two-year contracts with sidewalk cafe operators without cause.

“It’s an important ruling because it establishes our right to control our public spaces,” Miami Beach Mayor Dan Gelber said in a statement. “This will allow us to establish minimum standards that make clear to our businesses and visitors that this is not an ‘anything goes’ city.”

The businesses are seeking an emergency stay of the judge’s order while they work to appeal the decision.

“We respectfully disagree with Judge Fine’s ruling, but we hope Judge Fine and/or the appellate court will stay and prevent the city of Miami Beach from closing our clients down and eliminating dozens if not hundreds of jobs, so that they can exercise their constitutionally protected right to appeal,” said Phillip Hudson, an attorney for several of the businesses.

Last November, the city rejected 13 applications from South Beach restaurant owners requesting renewal of their one-year sidewalk cafe permits, which allowed businesses to set up outdoor tables on the public right-of-way. But Miami-Dade Circuit Judge William Thomas argued a month later that a city ordinance establishing the permit renewal rules gave officials too much discretion and also created an “unpredictable” review process. On Sept. 22, Judge Fine upheld the new, contract-based approach, ruling the city has a right to control the management of its own property.

“Key to this conclusion is the fact that the real property at issue is exclusively owned by the City, the City has a continuing interest in what happens on its property, nothing that has happened created any vested property rights in any of the Plaintiffs, and all prior ordinances made clear that the grant of a permit was conditional,” Fine wrote.

The judge also ruled that the contract process doesn’t improperly force business owners to accept unfavorable terms, as they have alleged it does. He cited the “numerous” businesses that have received modifications to the city’s form contract language. As of this week, Miami Beach entered into concession agreements with over 150 sidewalk cafes.

However, fewer have failed to reach agreements with the city. The lawsuit includes a group of South Beach businesses whose sidewalk cafe permits had been rejected, including Ole Ole, Española Cigar Bar, Voodoo, Jalapeño, 524 Ocean, Ocean’s Ten, 7 Spices, and D’vine Hookah.

The standard agreement language, which was modified over the summer in response to feedback from several business owners, includes restrictions on “hawking” to attract customers, bans on cocktails larger than 22 ounces, and transparency requirements for restaurants that seek additional tips on top of automatically-included amounts. The contracts also ban the smoking of any “vapor-generating devices,” including hookah.

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