Loading...
LTC 047-2017 Bake House SB, LLC d/b/a Bake House v. CMBtvijAM.i BEACH OFFICE OF THE CITY ATTORNEY LTC No. 047-2017 LETTER TO COMMISSION TO: Mayor Philip Levine Members of the City Commission FROM: Raul J. Aguila, City Attor� QfS(') '' DATE: January 27, 2017 SUBJECT: Bake House SB, LLC d/b/a Bake House v. CMB The City was recently sued by the owners of the Bake House restaurant, which is located in the South of Fifth (SoFi) district of the City, after the business was cited for violating Section 142-693(c) of the Miami Beach City Code. This ordinance in the City's zoning regulations prohibits entertainment establishments south of Fifth Street. Bake House was cited for allowing a saxophonist to perform inside the restaurant at brunch on a recent Sunday. Bake House has sued, alleging the prohibition on entertainment in the SoFi neighborhood violates the First Amendment. The City Attorney's Office will vigorously defend the constitutionality of the City's ordinance. The suit was filed in State court but we have removed the lawsuit, which was filed in Miami -Dade County Court, to federal court and are at this time formulating, preparing, and executing our strategy to defeat this lawsuit in the federal court. During the pendency of the litigation, the Bake House restaurant has offered to waive its potential claim for damages and litigation costs, including attorney's fees if it prevails, in exchange for the agreement of the City to allow the Bake House restaurant (and no one else) to have a single unamplified saxophone performer play at a level that does not interfere with normal conversation (ambient level) during brunch (from 11 AM to 2 PM on Sundays), during the pendency of this lawsuit. Following advice from the City Commission in a private attorney-client session authorized under Fla. Stat. §286.011(8), I have agreed to this proposal by the Bake House restaurant because it allows our office to vigorously defend the City's ordinance without subjecting the City's taxpayers to the risk of monetary loss in the form of damages and attorney's fees (in the unlikely event that a court decides the case in the Plaintiff's favor). We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant. tropical, historic community. Letter to Commission — Bake House SB, LLC d/b/a Bake House v. CMB January 27, 2017 Page 2 To be clear, we believe the City's ordinance to be constitutional and defensible, and we will defend the ordinance's prohibition of entertainment establishments in the City's South of Fifth district. We expect to prevail in court and for the City to be free to enforce its ordinance as a result of our defense. RR/RJA/mmm Enclosure F:\ATTO\AGUR\CITY ATTORNEY\LTC\2017\01-27-17 Bake House 2.docx We are committed to providing excellent public service and safety to all who live, work. and play in our vibrant, tropical, historic community.