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LTC 037-2017 Bake House SB, LLC d/b/a Bake House v. CMBMAM BEACH OFFICE OF THE CITY ATTORNEY TO: FROM: Raul J. Aguila, City Attorn DATE: January 20, 2017 SUBJECT: Bake House SB, LLC d/b/a Bake House v. CMB LETTER TO COMMISSION LTC No. 037-2017 Mayor Philip Levine and Members of the City Commission The City was recently served with a lawsuit filed by Bake House SB, LLC d/b/a Bake House (see attached amended Complaint). Bake House's Complaint challenges the constitutionality, under the First Amendment, of the City's restrictions on entertainment in the zoning districts located South of Fifth Street. Because the Complaint alleges a violation of federal law (specifically, the First Amendment), the City has removed the case to federal court. Consistent with my advice regarding any pending litigation to which the City is a party, ask that you not discuss this litigation with the Plaintiff or with any third parties. Feel free to listen to your constituents, but please do not comment on the litigation until it has been resolved. As always, feel free to contact me if you have any questions. RJA/ag Enclosure F:\ATTO AGUR\CITY ATTORNEY\LTC\2017\01-20-17 Bake House.docx 1700 Convention Center Drive, Miami Beach, Florida 33139 Filing # 51235768 E -Filed 01/17/2017 11:04:33 AM IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA BAKE HOUSE SB, LLC d/b/a BAKE CIVIL JURISDICTION DIVISION HOUSE a Florida Limited Liability Company, CASE NO: 2017 -000067 -CC -24 Plaintiff, v. THE CITY OF MIAMI BEACH, a municipality, Defendant. AMENDED COMPLAINT Plaintiff, BAKEHOUSE SB, LLC d/b/a BAKE HOUSE ("Bake House"), by and through undersigned counsel, hereby sues Defendant, THE CITY OF MIAMI BEACH (the "City"), and in support thereof states as follows: JURISDICTION AND VENUE 1. This is an action seeking injunctive relief and declaratory relief pursuant to Fla. Stat. § 86.011, and challenging the constitutionality of a municipal ordinance and violation thereof, pursuant to Fla. Stat. § 34.01. 2. Venue is proper in Miami -Dade County because the events giving rise to Bake House's claims occurred in Miami -Dade County. PARTIES 3. Plaintiff, Bake House, is a Florida limited liability company, with its principal place of business located at 808 1st Street, Miami Beach, FL 33139. 4. Defendant, the City, is a municipality duly incorporated and existing under the laws of the State of Florida in Miami -Dade County. FACTUAL ALLEGATIONS COMMON TO ALL COUNTS 5. Bake House is the lessor and operator of certain commercial property located at 808 1st Street, Miami Beach, Florida ("Premises"). 6. Bake House is a charming, French themed neighborhood "brasserie," situated in the heart of the elegant "South of Fifth" neighborhood of South Beach, managed and operated by Menin Hotels, LLC d/b/a Menin Hospitality. It offers modern American fare with a French twist, in a quaint, 87 -seat Parisian -style cafe, serving pastries, coffee, juices, breakfast, brunch, and a European -style bar, open daily from 7:00 am to 5:00 pm. 7. Since opening its doors in November 2016, Bake House has become a popular brunch venue for locals and tourists alike, located less than three blocks east of Ocean Drive and one block west of Alton Road, thereby highly accessible to local foot traffic, as well as vehicles entering South Beach from the MacArthur Causeway or Alton Road. 8. Bake House is an enclosed restaurant, with indoor seating, located on the first floor of the Premises. A multi -floor private residence is located above the Bake House Premises and is occupied by the only residential tenant in the building. 9. On New Year's Day - Sunday, January 1, 2017 - Bake House hosted its premier "Jazz Brunch," featuring a single, live saxophonist to perform ambient jazz music indoors from approximately 11:00 am until 2:00 pm, while Bake House patrons were eating, drinking and talking over brunch. The music was non -amplified, acoustic music played in its natural form and at minimal volume levels, to provide light and enjoyable background music, while permitting normal conversation and restaurant activity. -2- 10. The music was not overpowering or at such a volume that it could be heard outside of the enclosed Premises, or to disturb Bake House patrons, employees or neighbors. The non -amplified music could only be heard from inside of the Premises, and the occupants of the private residence over the Premises advised that they did not hear any music from their residence during the Jazz Brunch and have no objections to said music being played. 11. Bake House's premier Jazz Brunch was a huge success, including the live saxophone music, which provided a tasteful, chic and warm ambience during brunch. 12. Bake House intended to feature its second weekly Jazz Brunch on Sunday, January 8, 2017, during the same hours as on January 1 — 11:00 am to 2:00 pm, during peak brunch hours. 13. Bake House in fact intended to launch a weekly Jazz Brunch program every Sunday, from 11:00 am to 2:00 pm, featuring live jazz music to be performed at low, ambient volumes during Sunday brunch, including music to be played both with reasonably low amplification, as well as music without amplification and in its acoustic, natural form. 14. At the Jazz Brunch on Sunday, January 8, 2017, the saxophonist began performing, without amplification, at approximately 11:00 am but was abruptly stopped at around 12:30 pm, upon the arrival of a City Compliance Officer, who issued a Code Violation to Bake House, ordering that the music cease immediately ("Violation"). A true and correct copy of the Violation is attached hereto as Exhibit A and incorporated herein by reference. 15. The Violation stated: -3- INSPECTION OF THE ABOVE PREMISES ON THIS DATE DISCLOSES YOU ARE IN VIOLATION OF SECTION 142- 693(c) OF THE CITY CODE OF MIAMI BEACH BY: ALLOWING A NON PERMITTED USE, TO WHIT: ENTERTAINMENT ESTABLISHMENTS ARE NOT PERMITTED AS A MAIN PERMITTED OR ACCESSORY USE SOUTH OF 5TH ST RE: LIVE ENTERTAINMENT.. . YOU CAN COMPLY BY: CEASING THE SAID USE IMMEDIATELY UPON RECEIPT OF THIS NOTICE. 16. Section 142-693(c) of the Code of the City of Miami Beach, in turn, provides: For purposes of this section, pawnshops and dance halls and entertainment establishments are not permitted as a main permitted or accessory use south of Fifth Street; however, in the C-PS3 and C-PS4 districts dance halls and entertainment establishments shall be permitted as an accessory use within a hotel of 250 rooms or more with access to the dance hall or entertainment establishment only from the interior lobby and not from the street. Additionally, for restaurants located in the C-PS2 district, on the south side of Fifth Street between Michigan Avenue and Alton Road, non - amplified piano or string instruments, played at a volume that does not interfere with normal conversation, may be permitted as a conditional use within the interior of the premises, in accordance with the requirements of Chapter 118, Article IV, and only during periods in which full meals are being served, and no later than 2:00 a.m. (Emphasis added) 17. The Code of the City of Miami Beach defines an "entertainment establishment" to mean "a commercial establishment with any live or recorded, amplified or nonamplified performance, (excepting television, radio and/or recorded background music, played at a volume that does not interfere with normal conversation, and indoor movie theater operations)..." Section 114-1, Code of City of Miami Beach. Section 114- 1 of the Code further defines "accessory use" to mean "a subordinate use which is incidental to and customary in connection with the main building or use and which is located on the same lot with such main building or use." 18. Thus, the first sentence of Section 142-693(c) purports to prohibit an -4- entertainment establishment of any kind, whether as a main or accessory use, for all commercial establishments south of Fifth Street in Miami Beach, such as Bake House, from playing "any live or recorded, amplified or nonamplified performance," except for "television, radio and/or recorded background music, played at a volume that does not interfere with normal conversation, and indoor movie theater operations," regardless of the objectively quantifiable volume of the sound and whether such sound can be heard outside of the structure or Premises. 19. Moreover, the last sentence of Section 142-693(c) also purports to authorize only limited forms of live music, i.e. "non -amplified piano or string instruments," for restaurants located in a certain area south of Fifth Street. 20. Section 142-693(c) is arbitrary, overly broad, unconscionable, and unlawful because it constitutes an unreasonable restraint on protected speech or other expression protected by the First Amendment to the United States Constitution, including the production of reasonable sound. Moreover, the City's cease and desist order of the Violation constitutes a prior restraint on permissible speech or other expression before it can even take place, also in violation of the First Amendment to the United States Constitution. 21. All conditions precedent to the filing of this action have been performed, waived or have already occurred. COUNT I: DECLARATORY RELIEF 22. Bake House hereby re -avers and re -asserts Paragraphs 1 through 21 as if fully set forth herein. 23. Bake House brings an action for declaratory relief under Fla. Stat. § 86.011. -5- 24. There exists a bona fide controversy between Bake House and the City regarding the constitutional rights of Bake House to play live music from inside of the Premises, at objectively reasonably sound levels, including but not limited to, the playing of non -amplified live music emanating from a single saxophonist during Bake House's Jazz Brunch program on Sundays. 25. Bake House is in doubt as to whether Section 142-693(c) of the Code of the City of Miami Beach infringes upon and violates Bake House's right of free speech and freedom of expression under the First Amendment of the United States Constitution, by prohibiting the playing of music as a means of expression, within reasonable limits, and whether the Violation constitutes an unconstitutional prior restraint, in violation of the First Amendment. Thus, there is a bona fide, actual, and present need for a declaratory judgment. 26. The City seeks to enforce Section 142-693(c) against Bake House so as to prohibit the playing of music during Bake House's Jazz Brunch program. 27. Bake House maintains that Section 142-693(c) of the Code of the City of Miami Beach Section 142-693(c) is arbitrary, overly broad, unconscionable, unlawful and prohibits constitutionally -protected speech and expression, and therefore is unconstitutional because it prohibits all live music from being played, whether amplified or non -amplified, in violation of the First Amendment of the United States Constitution. Bake House also maintains that the Violation constitutes an unlawful prior restraint on speech or other expression, before such speech or expression has even taken place. 28. Bake House seeks a declaration that (a) Section 142-693(c) of the Code of the City of Miami Beach, or portions thereof, are unconstitutional, unlawful, -6- unconscionable and/or unenforceable under the First Amendment of the United States Constitution; and (b) the enforcement of Section 142-693(c) through the Violation against Bake House and other means is likewise unconstitutional, unlawful, unconscionable and/or unenforceable and must dismissed accordingly. WHEREFORE, Plaintiff, BAKE HOUSE SB, LLC respectfully requests that this Court enter a declaratory judgment against Defendant, THE CITY OF MIAMI BEACH, (a) adjudicating the rights and obligations of Bake House under Section 142-693(c) of the Code of the City of Miami Beach; (b) declaring that Section 142-693(c), or portions thereof, are unconstitutional, unlawful, unconscionable and/or unenforceable under the First Amendment of the United States Constitution; (c) declaring that the enforcement of Section 142-693(c) through the Violation against Bake House and any other means is unconstitutional, unlawful, unconscionable and/or unenforceable; (d) declaring that the cease and desist order of the Violation is unconstitutional, unlawful, unconscionable and/or unenforceable; and (e) awarding any and all further and supplemental relief as the Court may deem necessary, just and equitable under the circumstances. COUNT II: TEMPORARY INJUNCTIVE RELIEF 29. Bake House hereby re -avers and re -asserts Paragraphs 1 through 21 as if fully set forth herein. 30. As a direct and proximate result of the City's enactment and enforcement of Section 142-693(c) of the Code of the City of Miami Beach against Bake House, Bake House is unable to continue playing the music of its choice at its Jazz Brunch program during its Sunday brunch schedule. 31. The City is therefore infringing upon and violating Bake House's right of free -7- speech and freedom of expression under the First Amendment of the United States Constitution, by prohibiting the playing of amplified live music and non -amplified live music, even within reasonable limits, including but not limited to the saxophone, as a means of expression. 32. Bake House has suffered and continues to suffer irreparable harm as well as monetary damages, including but not limited to the infringement upon and violation of Bake House's protected right of free speech under the First Amendment, as well as lost profits, diminution in value of the leasehold Premises, and the ability to reasonably operate and use the Premises as it commercially sees fit. 33. Bake House has suffered and will continue to suffer the irreparable harm if the City is not stopped from proceeding with enforcement of Section 142-693(c) of the Code of the City of Miami Beach. 34. The foreseeable consequences of the City's continued enforcement of Section 142-693(c) by restricting Bake House's freedom of speech and reasonable commercial use of the Premises cannot be repaired or remedied by money damages alone, as Section 142-693(c) will deprive Bake House from its ability to actually occupy and use the Premises as it commercially sees fit, such that Bake House has no adequate remedy at law. 35. There is a substantial likelihood of success on the merits of each and every one of the Bake House's claims filed in this action. 36. Entering the requested temporary injunction will clearly serve the public interest, as the City's enactment and enforcement of Section 142-693(c) is unconstitutional and not only affecting Bake House, but the surrounding restaurants and -8- other commercial businesses, as well. 37. The posting of a bond in order to obtain the injunctive relief sought should not be required because Bake House merely seeks to restore the status quo until such time that this Court rules on the constitutionality of Section 142-693(c) of the Code of the City of Miami Beach. 38. The City will suffer no financial or other harm whatsoever as a result of the restoration of the status quo. WHEREFORE, Plaintiff, BAKE HOUSE SB, LLC respectfully requests that this Court issue an immediate temporary injunction prohibiting Defendant, THE CITY OF MIAMI BEACH from enforcing Section 142-693(c) of the Code of the City of Miami Beach until this Court adjudicates Bake House's constitutional challenge of said Section, and providing any other relief this Court deem just and proper. COUNT III: PERMANENT INJUNCTIVE RELIEF 39. Bake House hereby re -avers and re -asserts Paragraphs 1 through 21 as if fully set forth herein. 40. As a direct and proximate result of the City's enactment and enforcement of Section 142-693(c) of the Code of the City of Miami Beach against Bake House, Bake House is unable to continue its Jazz Brunch program during its Sunday brunch schedule. 41. The City is therefore infringing upon and violating Bake House's right of free speech and freedom of expression under the First Amendment of the United States Constitution, by, among other things, prohibiting the playing of non -amplified and amplified live music as a means of expression, within reasonable limits. 42. Bake House has suffered and continues to suffer irreparable harm as well -9- as monetary damages, including but not limited to the infringement upon and violation of Bake House's protected right of free speech under the First Amendment, as well as lost profits, diminution in value of the leasehold Premises, and the ability to reasonably operate and use the Premises as it commercially sees fit. 43. Bake House has suffered and will continue to suffer the irreparable harm if the City is not stopped from proceeding with enforcement of Section 142-693(c) of the Code of the City of Miami Beach. 44. The foreseeable consequences of the City's continued enforcement of Section 142-693(c) by restricting Bake House's freedom of speech and reasonable commercial use of the Premises cannot be repaired or remedied by money damages alone, as Section 142-693(c) will deprive Bake House from its ability to actually occupy and use the Premises as it commercially sees fit, such that Bake House has no adequate remedy at law. 45. There is a substantial likelihood of success on the merits of each and every one of the Bake House's claims filed in this action. 46. Entering the requested permanent injunction will clearly serve the public interest, as the City's enactment and enforcement of Section 142-693(c) is unconstitutional and not only affecting Bake House, but the surrounding restaurant and commercial businesses, such that a permanent injunction would serve the public interest in protecting the freedom of expression of all similarly situated establishments. 47. Moreover, the City has no legitimate interest in enforcing Section 142- 693(c) of the Code of the City of Miami Beach, which constitutes an unreasonable restraint on freedom of expression, such that City will suffer no harm of any kind as a -10- result of the entry of the permanent injunction sought herein, and a remedy in equity is fully warranted. WHEREFORE, Plaintiff, BAKE HOUSE SB, LLC respectfully requests that this Court issue a permanent injunction prohibiting Defendant, THE CITY OF MIAMI BEACH from enforcing Section 142-693(c) of the Code of the City of Miami Beach from hereinafter, and providing any other relief this Court deem just and proper. DEMAND FOR JURY TRIAL Bake House hereby demands a trial by jury of all issues so triable. Dated this 17th day of January, 2017. LOWY AND COOK, P.A. 169 E. Flagler Street, Suite 700 Miami, Florida 33131 Telephone: (305) 371-5585 Facsimile: (305) 371-5563 Email: ronlowv[a�lowypa.com Email: jenelle@lowypa.com ail: assistant@>lo •a.com IL id AI NALD S. LO , ESQ. F/a �? _ g l -o orida Bar No. 501069 -11- E; HIBIT A APPEAL. PROCESS,: IF YOU ARE AGGRIEvE.p. ay Ti-t00app Ti*OPOE INSPECTOR IN.ISSUINGTHISNOTIPg.,.- O.0 6P. PE& BY SUBMITTING AN APPLICATION FOR .APPF_ALWITAIN TWENTY (20) DAYS OFREOgIPT OFTHIpINOTIO._ETOTO APPROPRIATE BOARD OR THE C5FROE105THESPECtAL. MASTER, IN ACCORDANCE WITH THE- CITY ;CODE: APPLICATIONS AND. ZONING VAIR1010E INFaittATION MAY BE OBTAINED IN THE "PLANNING ,AND 2.4:)NING DEPARTMENT IN CITY HALL AT 1700 CONVENTION CENTER DR., 2ND FLOOR, MIAMI BEACH; 1.11:39. PHONE (305) 673-7550. THE SPECIAL. MASTER IS AUTRAREP OUTSTANDING VIOLA'TIONS AND 18 .Empowenoci TO IMPOSE FINES OF UP TO. $19..OF PER, MY, TO. CONTINUE UNTIL SUCH TIME AS THE VIOLATION IS CORRECTED AND UP TO S5,000.00 •PER DAY FOR It • REPEAT VIOLATION. FAILURE.TO PAY THE IMPOSED IINFAYMM-LEAt T4 THE PLACEMENT OF LIENS Q.N. mg PERSONAL PROPERTY OF THE vo.40441/0H.toiy EVENTUALLY BE FORECLOSED OR OTHERWISE COLLECTED AS PROVIDEUBY LAW.. ----------- mmm =In" 'ADA INFORMATION. TO REQUEST THIS MATERIAL IN ACCESSIBLE FORMAT, SIGN LANGUAGE INTERPRETERS, INFORMATION ON ACCESS FOR PERSONS MTh DISABILITIESAND/OR ANY ACCOMMODATION TO. REVIEWtsttfr DOCUMENT OR PARTICIPATE IN ANY OITY-s00 gED PROCEEDING, PLEASE CONTACT 3.05-6cr4-2489 ofptii,30.34Mq4 (FAX).OR 305,673-7210 c1rn.FIVaDAY.4111- :001P INITIATE YOUR REQUEST "rtr .. -p$%0.. • ALtqpik 711 (FLORIDA RELAY SEFtVICE). FACODEISALIAFORMSMCKETTS MID VIQSForm 190-025 - Olt), Code Zoning 4o (Open Forrn).doc MIAMI BEACH •EASE If 00(0411- . • p:rry (prIVIIIAM I ppA.cH • .)).115.41.ANCE DEPARTMENT •St., Merril Seeph, FL a.3139 e5 FAx tao%673.:7012 IsIOTIO8 OFZONI.NG VIOLATION D4teliCo I ( ?..0 1235911 Vidator Eig:rffOLI-cE BLL., DA ilAKE ViblatortAddiesst 4k0.4R 1 -gr -Sr • s :INSPECTION: OF THE ABOVE PREMISES t)N THIS DATE DISCLOSESYOLt AREIN VIOLATION OF SEditki‘q3 F THEPIMODEOF MIAMI BEACH BY: 'Alio tAz 0.4 Er "I• IIA P %Tra) USe To K., rr It4T ESTAZIAS-11 hae 1421-r 1997-11\4 t rrt.-0 AS- A YkA ItN) • Pefbm ritall A- AcE-..szzickt LI.Cf rill CIF RourvalVsno$ As vErieiEDagnEt gi!) srrisz. 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