Miami wants to quiet late-night music for some, ignores public comment in the process
Miami has restricted outdoor music between 10 p.m. and 8 a.m. at restaurants that border residences — a change to the noise ordinance that threatened to have far-reaching consequences for the Magic City’s nightlife scene before commissioners pared down the impacted area.
The vote attracted so much public interest that 366 people submitted recorded public comments, a process that has become common during the COVID-19 pandemic. The commissioners chose not to listen to nearly nine hours of comments from people mobilized by Ball & Chain, the popular Little Havana bar and restaurant that has been entrenched in its own battle against City Hall and Commissioner Joe Carollo over code violations and a recent controversial shutdown.
Officials justified the decision by saying all of the comments were “pretty much exactly the same,” because people read off a script. A partial review of the audio, obtained by the Miami Herald through a public records request, shows some speakers did not stick to a strict script. Some spoke more broadly about supporting outdoor music in Miami and the Ball & Chain’s cultural value.
If you’d like to listen to the full audio file with every comment, the Herald has posted all 8 hours and 52 minutes on YouTube at this address: https://youtu.be/F8yImFR_iG0.
At Thursday’s commission meeting, Carollo sponsored the revision to the noise ordinance, which cut back one hour of time for outdoor music for some businesses. The change would have applied to establishments citywide before his colleagues chipped away at its reach. Carollo sold the measure as a way to protect Miami’s neighborhoods that happen to be right next to businesses “trying to sell the club life” in Miami.
“The bottom line is these people need the music because the music goes with the alcohol, and that’s what they’re selling,” Carollo said. “They’re not selling the ambiance of a good dinner, that you could take your wife, you could take your girlfriend, you could take whomever. They’re selling the club life. And this is why they object to this so much.”
During a discussion before commissioners unanimously approved the change, they agreed to exempt businesses in downtown, Wynwood, the area covered by the OMNI Community Redevelopment Agency and Coconut Grove. Other specific situations, and businesses that already had permission from the city to have outdoor dining are grandfathered in.
The change made with several exemptions raises question of how enforceable the law will be, layered on top of a noise ordinance that does not require decibel measurements. Under city law, a noise violation can be issued “where the noise or music is plainly audible at a distance of 100 feet from the building, structure, vehicle or premises in which or from which it is produced.”
As of Friday morning, it was unclear which businesses in which neighborhoods lost the ability to play music outside in patios behind their establishments between 10 and 11 p.m. When asked if businesses in his district would be impacted, Commissioner Ken Russell said “none that I’m aware of” after pushing to carve out multiple areas in District 2 from the tightened noise ordinance. He voted against the measure on first reading.
Three of Michael Beltran’s Coconut Grove restaurants were spared from the ordinance after Russell asked for a last-minute exemption for the Grove’s business district. Two of Beltran’s restaurants, Ariete and Nave, are attached to a condo building, and outside music must be turned off by 11 p.m. But the focus on Little Havana, where he was raised, struck him as targeted.
“I grew up in Little Havana; I get it. It’s a neighborhood first and a destination second. However, there needs to be a balance,” he said. “This year above all other times we need to find an avenue to work together so we can all succeed.”
One establishment that will be directly impacted has made its opposition loud and clear: Ball & Chain.
More fuel for the feud
The measure added additional pressure to the businesses along sections of Southwest Eighth Street, many of which back up to areas zoned for multi-family homes along Southwest Seventh Street. The music ordinance fuels more tension to an enduring feud between Carollo and Ball & Chain, whose co-owner Bill Fuller has sued Carollo for harassment.
“It will substantially hurt our business just as it was intended to do,” Ball & Chain co-owner Zack Bush wrote the Herald in an email. “The targeting, spot zoning, and harassment has not yet ended. All districts were carved out so as to not harm anyone, but Ball & Chain … We are not certain this ordinance is even legal, and our team will explore all options.”
The owners added the new law to a list of grievances against the city and Carollo, whom they’ve sued over the commissioner’s history of seeking violations on their properties and pointing out problems to city officials. The proprietors claim the commissioner holds a political vendetta against them for supporting Carollo’s opponent in the 2018 municipal election.
Carollo has denied any wrongdoing and pointed to a list of problems, from a lack of fire sprinklers to selling alcohol without a license, while casting the owners as willful scofflaws and making vague and unconfirmed claims that city bureaucrats must have turned a blind eye to problems in the past.
“Make no mistakes about it, Commissioner Carollo slandered Ball & Chain and our ownership yesterday while speaking in his capacity as a public official,” Bush said. “There is no grand conspiracy as Carollo suggested. There is no bribery or payoffs, which Carollo also intimated.”
Bush also said Ball & Chain has long had an alcohol license for its interior — they simply did not know they needed to fill out additional paperwork to serve alcohol outside, an issue they corrected as soon as the city pointed it out to them.
Opposition to the measure extended beyond Ball & Chain.
“While we certainly appreciate that quality of life is critical, we don’t want personal vendettas to manifest into laws that make the city worse,” said Albert Berdellans, vice president of marketing and communications at Mana Group. He said Moishe Mana’s team would need to review its large real estate portfolio to understand if there are any impacted properties.
David Rodriguez had just built a beer garden behind his popular Calle Ocho craft beer bar, Union Beer Store, to make for a safer environment for his visitors. He plays music through a portable speaker and had been hoping to one day host live music acts. That idea is over now.
“They want to murder Eighth Street,” he said. “What a shame. I don’t understand why they’re trying to do that.”
Unheard public comment
One thing that wasn’t loud and clear: the public testimony of 366 people who left voicemails and submitted videos arguing against the ordinance and supporting Ball & Chain.
Commissioners did not hear eight hours and 52 minutes of public comments on the noise ordinance change because officials said they were all based on a script, which was read into the record by the deputy city attorney.
“They’re all pretty much exactly the same public comment,” City Attorney Victoria Méndez told commissioners in Thursday’s meeting. “It’s a script that was read. So we will read that to you so you do not have to listen to the eight hours and 52 minutes since it is all the same topic and the same script.”
Not all comments were the same. A Herald review of portions of the audio found that people discussed the same themes and lodged their opposition — as is the case when any large number of people speak to the commission on a single issue — but multiple people chose to use their own words to express opposition.
Wendy Hernandez, a resident in the Roads, spoke of being a Little Havana landowner, appreciating the business as a patron and some of her professional oncology industry group’s experience with the bar.
“My international organization had an event there. Not related to me — I didn’t bring them there. They picked Ball & Chain because it was such a representative flavor of what the city of Miami is and what it holds and the fun and the charisma and the character of what Miami is,” Hernandez said in her voicemail. “They decided to showcase Miami in that way when Miami was selected as the convention site. ... I think it’s an icon, I can’t for the life of me understand why we would want to do this.”
Kelly Griffin, who lives in Silver Bluff, defended Ball & Chain but spoke more broadly about the value of outdoor music in Miami’s nightlife.
“The city of Miami deserves to have specific districts dedicated to entertainment where outdoor music is able to be played,” he said. “And that’s it. I’m hoping to continue to go out to venues. It is a part of the culture of Miami, and restricting outdoor music would totally degrade entertainment and cause [hardship] on various employees.”
Celia Pulles, a Kendall resident, specifically asked commissioners to grandfather Ball & Chain under the previous rules, an argument in the scripted comments. But she put it in her own, more brief and descriptive words.
“Please allow them to be grandfathered in to be able to have music just flow through the streets as they have generated a significant amount of business to all the other businesses as a result,” Pulles said.
Before commissioners began their discussion, Deputy City Attorney Barnaby Min read a transcript of what most people said in their comments:
“I am speaking today on proposed ordinance number 8049, second reading number six. That will restrict the hours of outdoor music in the city of Miami. I am a fan of Ball and Chain. I am against any new law that would further restrict or reduce the amount of music on their patio. Ball and Chain is culturally important to Miami and Little Havana, and as a lover of Ball and Chain, I want to be able to dance outside in our beautiful city. I want to be able to listen to and enjoy music every night.
“The city is unfairly withholding the outdoor dining warrant that Ball and Chain applied for more than one year ago, and the city has purposely rendered a decision here as it is legally required to do by code, as per Miami 21. You will hear that businesses with existing warrants are exempted, yet Ball and Chain’s warrant is being held up until this ordinance passes.
“If the city moves forward in grandfathering in existing businesses, then Ball and Chain must be grandfathered in because they applied for this license more than one year ago and because anything else would be grossly unfair, if not illegal. There has been live nighttime music on the patio of Ball and Chain since 1935. Please, please don’t stop it today. I urge the commission not to stop the music and vote against ordinance number 8049 second reading number six and I also urge the commission to let all of the 125 families that depend on Ball and Chain for their livelihood and health insurance to immediately allow the reopening of Ball and Chain. Thank you for your time.”
No legal opinion from attorney general
Méndez told commissioners her office had contacted Florida Attorney General Ashley Moody’s office to discuss the public comment issue. Later, when the Miami Herald requested correspondence between the city and attorney general, Assistant City Attorney J. Gigi Soliman said her office had obtained a “verbal opinion” from Moody’s office.
“As the City Attorney’s Office called the AG Office and conveyed the facts of the situation via telephone, the AG Office provided a verbal opinion. Time was of the essence,” Soliman wrote.
Moody’s office confirmed on Friday it never issued an opinion, written or verbal, formal or informal, to the city. Pat Gleason, Moody’s special counsel for open governments, said she discussed the matter with one of Miami’s assistant city attorneys.
“My comments are neither a formal nor informal opinion,” she said, adding that there is a specific process for seeking opinions from the attorney general. “Nor could I provide legal advice. But I’m perfectly willing to talk with you about it.”
Gleason described an informal conversation on how the city could reasonably accommodate such a large amount of recorded public comments in a meeting where other business was on the agenda.
Hours of public comment are not unusual on controversial items before the Miami City Commission or other government bodies. Elected officials in Miami and throughout Miami-Dade County have heard hours of testimony in the past, including multiple speakers who make the same point using the same words.
During a marathon meeting in July 2018, people opposing the redevelopment of Melreese golf course into a $1 billion commercial and soccer stadium complex gave testimony for hours. Zoning hearings on hot-button topics can easily span hours and push votes into the middle of the night.
Miami commissioners themselves have embarked on long speeches, lines of questioning of city administrators or private citizens who seek zoning changes or other actions from the commission. Under city law, commissioners have to vote to work past 10 p.m., something they’ve done multiple times in the past. City attorneys cited this law while they justified not playing the public comments Thursday.
The city attorney’s office also cited a state law that allows one person to represent a larger group of people who have the same stance to speak past the usual two minutes allotted per person. When that happens, the commission chairman typically discusses that arrangement during the meeting with the designated representative.
That conversation never happened. In-person public comment was allowed Thursday, but just a small number of people attended. City Hall is a small building, and the city is experiencing a spike in coronavirus cases.
