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Miami Beach tells restaurant sax player to can it. Owner says: ‘Free speech!’

Bakehouse Brasserie in South Beach is suing the city of Miami Beach after city inspectors ruled that its live saxophone played on Sundays from 11 AM through 2PM in the afternoon violates city codes. In this photo, Omar Ahcar, left, general manager for the restaurant, looks over today's menu.
Bakehouse Brasserie in South Beach is suing the city of Miami Beach after city inspectors ruled that its live saxophone played on Sundays from 11 AM through 2PM in the afternoon violates city codes. In this photo, Omar Ahcar, left, general manager for the restaurant, looks over today's menu. cmguerrero@elnuevoherald.com

It’s “Footloose” in Miami Beach.

Earlier this month, a city code inspector told a brunch-time saxophone player at a trendy restaurant in South Beach to take five.

You see, only “non-amplified piano and string instruments” are allowed to serenade diners in the Beach’s South of Fifth neighborhood, city code says. So the sax music had to stop.

Now, feeling kind of blue, the owners of Bakehouse Brasserie are suing the city in civil court, claiming the ban on brass, woodwind and percussion instruments infringes on their constitutionally protected right to free speech.

The live entertainment ban constitutes “an unreasonable restraint on protected speech or other expression protected by the First Amendment,” according to a lawsuit filed last week in Miami-Dade Circuit Court.

Yes, the same law that protects the rights of the press also safeguards the freedom of restaurant-goers to listen to smooth jazz at a reasonable volume while sipping mimosas and noshing on the quiche-of-the-day.

Constitutional law experts believe Bakehouse has a strong case on First Amendment grounds.

City code forbids “pawn shops, dance halls and entertainment establishments” as main or accessory uses south of Fifth Street. But it states that “for restaurants located ... on the south side of Fifth Street between Michigan Avenue and Alton Road, non-amplified piano and 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.”

Federal courts have recognized music, including instrumental music, as a protected form of expression. While governments generally have the right to regulate how loud music can be, they run the risk of censorship when they regulate what kind of music can be played, said Caroline Mala Corbin, a First Amendment expert who teaches at University of Miami School of Law.

So banning a sax while allowing piano likely crosses the line.

“If you’re regulating based on the content of the music, it is highly unlikely [the law] would survive in court,” Corbin said. “Had they just regulated the volume, it probably would survive.”

But there’s a problem: the restaurant at 808 First St. falls just outside of the special, piano-and-strings district between Michigan Avenue and Alton Road.

That means Bakehouse doesn’t have standing to sue, according to Frank Del Vecchio, a community activist and South of Fifth resident who’s worried about noise and crowds. He called the complaint “defective,” legally speaking.

“This is a red herring,” Del Vecchio said. “It’s a zoning issue, not a free speech issue.”

South Beach residents have complained about noise in South Florida’s liveliest late-night destination, including the ruckus from another restaurant, Bodega Taqueria and Tequila, owned by the Bakehouse team. City elected officials have also launched a campaign to quiet down rambunctious Ocean Drive.

Bakehouse attorney Ron Lowy said he had not realized the restaurant was outside the special zone before filing the suit. Even so, he plans to proceed. The citation says the restaurant violated a live entertainment ban.

“If the code prohibits all music, that’s also unconstitutional,” Lowy said.

David Hudson of the First Amendment Center at Vanderbilt University agreed the city’s regulation was troublesome.

“Noise ordinances cannot be used as cudgels to impose total and complete bans on expression,” Hudson wrote in an email. “I certainly understand limiting speech below a particular volume — to protect residents and such — and to prohibit music volume after a particular hour, but this ordinance appears susceptible to challenge.”

Bakehouse is asking a judge to order the city to back off and let the eatery resume its “Jazz Brunch” on Sunday program, the lawsuit states.

The restaurant’s owners, Keith Menin and Jared Galbut (relatives of powerful Beach developer Russell Galbut), declined to comment through a spokeswoman.

First it’s a live piano, then it’s a saxophone, then it’s the end of Western civilization.

Miami Beach Mayor Philip Levine

The piano-and-strings rule was passed with a unanimous vote of the commission in 2015, with one member absent, meeting minutes show.

Despite his “yes” vote, Miami Beach Mayor Philip Levine said he now believes the ordinance is an example of “overregulation.”

“Sometimes you pass things, and sometimes you have to reconsider,” Levine said. “I wasn’t under the impression that [the ordinance] disallowed other types of music. I thought it was more about volume.”

The rule was meant to allow music in a commercial area of the Beach’s fashionable South of Fifth neighborhood, while respecting the concerns of noise-averse neighbors, according to an agenda.

“First it’s a live piano, then it’s a saxophone, then it’s the end of Western civilization,” Levine joked. “To have low-level live music at a restaurant, I think it’s great. I don’t think we should stifle the creativity of our entrepreneurs.”

If a court should decide in the city’s favor, the mayor added, he would ask the commission to reconsider the rule.

It’s not clear if a complaint — possibly from a neighbor or competing restaurant — led to the code inspector’s visit.

Miami Beach has a history of thumbing its nose at non-classical forms of music. In 1947, the city banned hotels from playing anything but string music, according to the Miami New Times.

Put a sock in it

Bakehouse opened in November.

To celebrate the New Year, the 87-seat café hired a sax player to perform “non-amplified, acoustic music ... in its natural form and at minimal volume levels” during the brunching hours of 11 a.m. to 2 p.m, the lawsuit states.

According to court filings, the music did not disturb diners, could not be heard outside the enclosed restaurant and provided a “tasteful, chic and warm ambience.”

The event’s success led Bakehouse to plan a weekly jazz brunch on Sundays. But the very next weekend, after 90 minutes of music, a city code inspector came to the restaurant and handed management a written code violation because of the sax music.

The cease-and-desist order is not only a constitutional violation, the lawsuit says, it’s also causing “lost profits [and] diminution in value” of the restaurant.

Music, as a form of expression, is protected under the First Amendment.

Justice Anthony Kennedy in Ward v. Rock Against Racism

Business owners in other cities have tangled with local governments over noise ordinances and won.

And in an important 1989 decision, the U.S. Supreme Court held that “music, as a form of expression, is protected under the First Amendment.”

“Saying you can play one instrument and not another is no different than saying you can speak English but not Spanish,” said Lowy. “You can’t pass a law that would prohibit you from playing a saxophone or a harmonica or even whistling but allow a piano or a guitar.”

Lowy expects a court hearing this week.

Until then, he said, “don’t expect to see Kenny G.”

This story has been updated to reflect Bakehouse’s zoning.

Miami Herald staff writer Chabeli Herrera contributed to this report.

Nicholas Nehamas: 305-376-3745, @NickNehamas

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