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(')
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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.