Judge stops closure of South Beach sidewalk cafes in lawsuit challenging permit process
Thirteen South Beach restaurant owners who were ordered to shut down their sidewalk cafes scored a legal victory Wednesday when a Miami-Dade circuit judge ruled that a new city policy cracking down on outdoor dining permits lacks due process.
The restaurants — located on Ocean Drive, Lincoln Road and Española Way — may continue to operate their outdoor tables on the public right of way until their lawsuits against the city are settled. The city said it will appeal the order.
The business owners sued the city after their permit applications were denied under an ordinance passed by the City Commission in March that allows the city administration to consider prior code violations and negative restaurant reviews when weighing whether to accept or deny applications.
Judge William Thomas, who heard arguments from attorneys for the restaurants earlier this month, wrote in his order that retroactively penalizing restaurants for prior violations is potentially unconstitutional. He also argued that the new policy lacks due process because it gives city officials too much discretion to reject a permit while creating an “unpredictable” review process for applicants. Prior to the new law, the application process mostly consisted of submitting site plans and paying off any outstanding fees.
“You can fight City Hall,” said attorney Etan Mark, who is representing two restaurants on Lincoln Road. “Just because they are a government entity doesn’t mean they’re immune to some of our core constitutional values.”
The city’s legal team has argued in court that private business operators have no right to operate on the public right of way and that the City Commission passed the new law because it wanted the city to raise the standard of business practices on its sidewalks.
In a statement, City Manager Alina Hudak said she was disappointed in the ruling but stood by the city’s decision to reject permit applications from “problem operators.”
“Our residents and visitors expect us to protect them from sidewalk café operators who refuse to play by the rules,” Hudak said. “We stand by our assertion that it is a privilege — not a right — to operate a sidewalk café on public property in the City of Miami Beach and that not approving these problem operators for a new permit was necessary and lawful.”
City Attorney Rafael Paz said in a statement that the city would “immediately appeal” the ruling and “seek to enact alternative measures to preserve the city’s ability to do business with those sidewalk cafes that make the City a better place and stop doing business with those who do not share these same values.”
This story was originally published December 29, 2021 at 2:25 PM.
.JPG)