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HomeMy WebLinkAbout Submittal-Alfredo Gonzalez-Memo regarding file 8049Submitted into the public record for item(s) SR.6, on 11-19-2020, City Clerk MEMORANDUM TO: City of Miami ("City") FROM: Genovese Joblove & Battista, P.A. BY: Alfredo L. Gonzalez, Esq. SR• RE: File ID 8049 in City of Miami Agenda for November 19, 2020 (Noise Ordinance Amendment) I. INTRODUCTION A. My name is Alfredo L. Gonzalez, I am an attorney with Genovese Joblove & Battista with offices located at 100 SE 2nd Street, Suite 4400, Miami, FL 33131. B. It is my pleasure to be here representing Ball and Chain a Restaurant and Lounge located at 1513 SW 8 h Street, Miami, FL 33135. C. My client is specifically affected by the Noise Ordinance under consideration as agenda Item 8049. D. We would like to request additional time to address the Commission on these issues either now or at the discussion of the Ordinance when it comes up for public hearing. 11. DISCUSSION A. We object to the passage of this Ordinance for the following reasons: 1. Due Process/Legal Protection. The Ordinance under consideration is an arbitrary and capricious use of the police power and violative of my clients' equal protection rights under the United States and Florida Constitution. The City is passing an Ordinance that after taking into account exceptions and vesting will apply only to my clients existing use of the property. Further the Ordinance is unconstitutionally, vague and overly broad. 2. Equitable Estoppel. City is equitably estopped to apply this Ordinance to our property since City has in bad faith and in violation of clear obligations under the Miami 21 City Code Section 7.1.2.4 failed to award our clients a Warrant applied for in October, 2019. The issuance of such Warrant would have grandfathered and vested our client with the right to play music at the restaurant on their property now not allowed under this Ordinance. See, Coral Springs Street Systems, Inc. v. City of Sunrise, 371 F. 3d 1320 (2004). 80401 SAmAal- AI�Ao qwz-alez- h i� � 4q ��q U Y .Q �. lfl Vil N v Z ? In essence the City delayed the process of issuing the Warrant long enough to pass U the Noise Ordinance that prohibited such use. This action was taken c � o notwithstanding the obligation of the City under the Miami 21 City Code Section 0 o N 7.1.2.4 to issue a Warrant decision letter within 21 calendar days of receiving a CD -0 °..,' completed application. We never received such letter or were advised that the :LjF o � application was incomplete. ` o v�i We filed in October 2019 and over one year later we cannot get the City to do something that the City's Code provides 21 days to achieve. This is simply bad faith. I want to introduce into the record a letter sent by our zoning counsel to the City attorney dated November 15, 2020 outlining the history of the Warrant application and attached hereto as Exhibit "A." 3. Master Plan and Zoning. The area were the property is located is a tourist and entertainment center which will be negatively impacted by this Ordinance. The area will be in a complete disadvantage as to other entertainment centers in the City. The property is master planned under the City Comprehensive Master Plan (Master Plan) as restricted commercial which promotes intensive commercial use, including entertainment facilities. Restricting outdoor music in this area is in conflict with the land use category and thus inconsistent with the City Master Plan. Further the property is zoned T6-8-0 under Miami 21 zoning code. This Urban Core zoning allows intensive commercial and residential uses. The properties directly impacted by our use are zoned as T5-0, Urban Core where entertainment establishments are allowed as of right. The Noise Ordinance is inconsistent with the zoning applicable to the property. 4. Taking. The Ordinance inordinately burdens our clients' property and will expose the City to a claim under Florida's Bert J. Harris Act (Florida Statute 70.001). We hereby request that the Ordinance not be passed or alternatively that our property be vested under the filed Warrant with the City. _ v �✓zG'�lSs S74-d3L2S, nv�jG,'c /7a�1 �l ,Va v1> c U i � � N 0- Ln N N 41 � CU a .+ O 0) O 4' O L -O O N Ln ` O 305-913-0356 V ALERIE.HABER(i_�GRAY-ROBINSON.COM November 15, 2020 VIA E-MAIL Victoria Mendez City Attorney, City of Miami Office of the City Attorney 444 SW 2nd Avenue, Suite 952 Miami, Florida 33130 Dear Ms. Mendez: 333 S.E. 2ND AVENUE SUITE 3200 MIAMI, FLORIDA 33131 TEL 305-416-6880 FAx 305-416-6887 gray-robinson.com BOLA RATON FORT LAUDERDALE FORT MYERS GAINF.'SVILLE JACKSONVILLL• KFY WEST LAKF.LAND MELBoURNE MIAMI NAPLES OBLANDO IALLAHASSFE TAMPA WASHINGTON, DC WEST FAIM BEACH Due to the lack of a response from the City regarding the warrant application for The Mad Room LLC d/b/a Ball and Chain ("Applicant'), located at 1513 SW 8U' Street, Miami, FL (the "Property"), I am writing the instant correspondence to address the efforts Applicant has made with respect to its outdoor dining warrant (the "Dining Warrant'), with the hopes that this detailed timeline will stress the urgent nature of my repeated requests that the Dining Warrant Decision Letter be issued As I mentioned in prior correspondence to the City, the letter of intent, warrant notification letter, and draft warrant decision letter in connection with the Dining Warrant are rife with mention of the alcohol service establishment expansion to cover the outdoor (see highlighted provisions below), so the use of the outdoor areas for alcohol service was understood by the parties all along, yet was only raised by the City more than one year after the Dining Warrant Application was submitted. A history of the Dining Warrant application is as follows: October 15, Applicant filed a warrant application (PZ-19-4801) for outdoor dining, 2019 specifically referencing the alcohol use in its letter of intent as follows: "Applicant will operate a tavern/bar and food service establishment with outdoor dining, with alcohol beverage sales through FL Division of Alcohol Beverages and Tobacco license #BEV2307635." A noise attenuation plan is also included in the letter of intent. As of October 15, 2019, the City was on notice that the outdoor dining warrant contemplated alcohol sales and consumption in the area covered by the outdoor dining warrant, yet the City did not raise the need to a separate alcohol warrant application until one year later. GRAYROBINSON PROFESSIONAL ASSOc1AnON VIA E-MAIL Victoria Mendez November 15, 2020 Page 2 Submitted into the public record for item(s) SR.6, on 11-19-2020, City Clerk Moreover, the plans submitted with the outdoor dining warrant clearly indicate an "outdoor bar" with a c-shaped bar rea. These plans were reviewed by all necessary departments, and Applicant never received any comments regarding outdoor alcohol sales, service or consumption. Specifically, the plans were reviewed by various City disciplines, notably: • Jacqueline Ellis on 10/17/20, 10/15/20, 10/7/20, 9/3/20, 9/2/2020, 1/8/20 • Joseph Ruiz on 6/4/20, 10/5/20, 10/9/20, 10/14/20 • Julia Cerrato on 6/29/20 In total, plans and documents relating to this application were viewed 545 times by City representatives from the time of application to the date of this correspondence, yet the first mention of the necessity of a separate warrant for alcohol was not identified until 1 year after application. On this day, invitations to view the application were sent out by E-Plan to relevant reviewers, including, Jacqueline Ellis, Francisco Garcia, Tamara Frost, Rafael Rodriguez, Joseph Ruiz, Kemar Brown, Nov. 1, Applicant uploaded the required plans to E-Plan in connection with the outdoor 2019 dining warrant. January 6, Applicant uploaded revised plans to E-Plan. 2020 January 7, Applicant was notified via Eplan that the Application bad successfully passed 2020 prescreen. This notification informed Applicant that "Based on the nature of your application (scope of work) required disciplines have been identified and will review concurrently." Indeed, no such disciplines identified any issues relating to the alcohol use. March 22, Applicant uploaded revised plans to Eplan in response to City comments 2020 & regarding same. April 2, 2020 May 23, City reviewer Maria Adeyafa added a comment to Applicant through EPlan 2020 requesting that Applicant "Provide current operating 4COP alcohol license which GRAYRoBiNSON NROFESSIONAL ASSOCIATION VIA E-MAIL Victoria Mendez November 15, 2020 Page 3 Submitted into the public record for item(s) SR.6, on 11-19-2020, City Clerk would be used for the establishment," and Applicant promptly provided a copy of same. This would have been an opportunity for the City to raise the alcohol warrant issue, but it was not raised until nearly 6 months later. July 23, Applicant paid a Planning Fee in the amount of 4,843.00 in connection with the 2020 Wan -ant application (transaction ID 2020205001-170-1), and uploaded revised plans in response to City comments re: same. August 17, Applicant uploaded a revised Ietter of intent, in response to City comments re: 2020 same. Again, this letter of intent clearly indicates the alcohol use_ August 20, The City provided Applicant with the Warrant Notification Letters, which 2020 included reference in the "Detailed description of proposal" section drafted by City staff that "The Applicant's proposed use will be an Alcohol Service Establishment (bar) with an Outdoor Dining Area, located with a total square footage is 4,843." August 26, Applicant provided proof of certified mailing of the Warrant Notification Letters. 2020 October 1, City reviewer Maria Adeyefa indicated by email to me that she would send the 2020 draft Warrant Decision Letter to me by Monday (10/4/20). I also spoke with Ms. Adeyefa by telephone, wherein she indicated that the letter was ready to go, and that it was only awaiting signature by Jacqueline Ellis, who had been on vacation. Having received no letter, I followed up with Maria on 10/7/20, and again on 10/8/20. October 9, City issued Draft Warrant Decision Letter to Applicant, which included the 2020 following references recognizing the use of the space for sales and consumption of alcohol beverages: • P 1: "Request ... Warrant pursuant to ART 6 Sec 6.3.2.1 ... to allow outdoor dining for a tavern bar and food service establishment with a 4COP quota license. • P2: #5: "The proposed outdoor dining will be incidental to the existing tavern/bar and food service establishment, in which the applicant will amend the CU to reflect the added uses." #7" Applicant has submitted the necessary information, which is attached to this file, and is considered an official record on file with the Planning De artment. This information attached demonstrates CRAYRosuvsoN PROFESSIONAL ASSOCIATION VIA E-MAIL Victoria Mendez November 15, 2020 Page 4 Submitted into the public record for item(s) SR.6, on 1119-2020. City Clerk compliance with the guidelines and criteria required for this type of permit, as specified in Miami 21 Code. 0 "#12: Pursuant to Art 7, sec. 7.1.2.4 of Miami 21 the application has been reviewed and found sufficient. • Conditions: • #2: warrant for outdoor dining has been approved to operate in assn with tavern/bar and FSE with 4COP quota..." • #5: 4COP alc license should apply to the tavern/bar, FSE & outdoor dining use within the tenant space. Additional expansion or modification to be approved layout by current or future tenants requires new warrant." (emphasis added). October 12, 1 provided minor feedback on the Warrant Decision Letter to the City via e-mail, 2020 asking for the removal of condition #4 which improperly referenced the establishments as a "restaurant' under 4-1 of the City Code. October 15, Applicant opened its establishment to the public, and was visited by City Code 2020 Enforcement and cited for excessive noise, which applicant had performed a decibel reading of and found to be at ambient, conversational levels. The City of Miami, through Zoning Director Joseph Ruiz, provided Applicant with a copy of a Complaint for Injunctive relief alleging that Applicant does not have the authority to use the outdoor seating area and "pineapple" bandshell in the back patio of the Property, and demanding that Applicant cease use of such area, which Applicant promptly complied with.' October 19, This was the date whereon the City of Miami Planning Director was required to 2020 issue a Warrant Decision Letter, per Section 7.1.2.4 of Miami 21: "Where there is no referral to the Coordinated Review Committee, the Planning Director shall issue an intended decision within twenty-one (21) calendar days of a determination that the application is complete. The applicant shall have seven (7) calendar days from receipt of the notice of the intended decision to request a conference with the Planning Director to discuss revisions or additional information regarding the application. Within ten (10) calendar days of the conference, or if no conference is requested, the Planning Director shall issue 'As you know, I am not involved in any current or proposed litigation (if any) against the City of Miami, and have indicated to my client that I can only act in an administrative capacity in assisting with the warrant application(s). I received a copy of this Complaint from my client, but have not been involved in any pre -litigation efforts or involved in any ongoing litigation. 1 have been forthright about my limited scope with the you as well, so I hope you understand that this correspondence is merely a cordial attempt to spell out my efforts so you can hopefully understand the urgency and timeliness of the warrant issue. GRAYROBINSON PROFESSIONAL ASSOCIATION VIA E-MAIL Victoria Mendez November 15, 2020 Page 5 Submitted into the public record for item(s) SR.6, on 11-19-2020. City Clerk written findings and determinations regarding the applicable criteria set forth in this section and any other applicable regulations." (emphasis added). To date, I have not receive_ d such Final Warrant Decision Letter, despite repeated requests for same. October 19, The undersigned participated in a video conference with the City Attorney, 2020 Zoning, Planning, Fire, and Building Departments, where it was raised for the first time that a separate alcohol warrant was required based on the City's review of the previously -approved Class II permit covering the Property. This was raised more than one year after the Dining Warrant application was submitted. At this meeting, I again requested that the Final Warrant Decision Letter be issued in compliance with the timing requirements set forth in Section 7.1.2.4 of Miami 21. October 27, I participated in a follow-up video conference with the City departments listed 2020 above, and, despite promises that a determination on the Outdoor Dining Warrant and process forward for the alcohol warrant would be made, no such clarification was offered to Applicant. I followed that meeting up with a detailed a -mail to Mr. Garcia, with you and Ms. Dooley in carbon copy, outlining all instances where the Dining Warrant referenced alcohol sales and consumption, submitting that no further submission should be required for an alcohol warrant. At the end of that email, I reiterated that "We want to ensure that the dining warrant is approved before 2nd reading of the outdoor music ordinance, given we submitted this application over a year ago and just within the past few weeks are being alerted that separate action is needed on the alcohol warrant." October 29, I participated in a video call with Assistant City Attorney Rachel Dooley, and 2020 Jordan Shaw, litigation counsel to Applicant. I again did not receive clarification on when a determination would be made on the Dining Warrant, despite my urgings that the time had well passed for such a determination. Ms. Dooley promised to push Mr. Garcia for a clear path forward for Applicant. On this same day, Ms. Dooley followed up with Mr. Garcia asking for feedback on my October 27ffi e-mail. Mr. Garcia responded that: "I am copying my colleagues Jeremy Calleros Gauger, Joe Ruiz, Jacqueline Ellis and Maria Adeyefa, who are conducting the necessary research in order to chart a path forward toward compliance for the subject establishment. We will be meeting GRAYROWNSON PROFESSIONAL ASSOCIATION VIA E-MAIL Victoria Mendez November 15, 2020 Page 6 Submitted into the public record for item(s) SR.6, on 11-19-2020, City Clerk again internally very soon to memorialize our findings and subsequently share them with the applicants." October 29, I participated in another video conference with the multiple City departments, and 2020 still received no clarification as to path forward on the Dining Warrant, although Mr. Garcia indicated that he was going to require that Applicant submit an alcohol service establishment warrant application to modify the previously -approved Class H permit covering the Property, but did not specify how the Outdoor Dining warrant would be treated, and whether a Final Warrant Decision Letter was forthcoming. October 30, Ms. Dooley followed up again with the Planning Department regarding my 2020 October 27t' e-mail. November I sent a follow-up email to the City Attorney, Planning & Zoning Departments 2, 2020 asking for confirmation that I would receive a response on the Final Warrant Decision Letter. You responded indicating that: "I will only comment on the discreet issue on whether a warrant application is needed for the expansion of the alcohol service establishment, in addition to your outdoor dining warrant application (even though you allude to alcohol service in your outdoor dining application). My review of the code provisions indicate that you do need two applications. Simply alluding to a warrant for an outdoor alcohol service establishment is not enough." This was not supported by any legal citation, and no clarification was provided regarding the Dining Warrant. November I responded to your email as follows: 3, 2020 "By that logic, the outdoor dining warrant need not reference outdoor alcohol entitlements since those are covered in the alcohol service establishment warrant. Can you please indicate when the outdoor dining warrant will be issued? As we discussed, a condition can be included in the outdoor dining warrant indicating that outdoor alcohol consumption will be as approved by separate warrant. This is done frequently with respect to other contingent approvals on warrants like obtaining a CU. It is imperative that we receive a decision on the outdoor dining warrant today. The draft letter has already been prepared and with the addition of one condition that "alcohol consumption in the exterior ofthe premises shall be subject to approval of an extension of the previously -approved Class II ermit for an alcohol service establishment" this is ready to issue. The re uired GRAYRoniNsoN PROFESSIONAL ASSOCIATION VIA E-MAIL Victoria Mendez November 15, 2020 Page 7 Submitted into the public record for item(s) SR.6, on 11-19-2020. City Clerk timing set forth Miami 21 for issuance of a decision letter on the outdoor dining warrant has long passed." (emphasis added). November Another video conference between Applicant's representatives and various City 4, 2020 departments was held, wherein I again repeatedly pleaded for an answer from the City on the Outdoor Dining issue, stressing the time sensitive nature of the request. Mr. Garcia indicated that due to his departure from the City, Mr. Jeremy Gauger would be reviewing the associated issues. November Per the City's request and recommendation, and due to the City's delay in making 13, 2020 a formal determination on the outdoor dining warrant, Applicant submitted an alcohol service establishment warrant application ((PZ-20-9331) to modify the existing Class II permit issued for the Property to reflect alcohol sales and consumption in the exterior of the premises. The undersigned followed the application up with an e-mail to you indicating that the application had been filed, and asking for confirmation that "the outdoor dining warrant letter will be issued immediately to allow for the sale of food and non-alcoholic beverages in the outdoor dining area as set forth in PZ19-4801, and to allow for the sale, service and consumption of alcohol beverages once the instant modification to the Class II permit is approved by the City." That evening, I received a telephone call from Interim Planning Director Jeremy Gauger indicating that he had provided feedback to you on the warrants on November 9°i, and understood that you would be communicating those findings to me, but learned on Nov. 13 that he was to provide the updates to me. He apologized for the delay, and e-mailed me his reports analyzing the warrant issues. In those reports, there is again no mention of when we can expect to receive the Outdoor Dining Warrant Final Decision Letter. As of the date of this correspondence, I have not received clear guidance on when the Dining Warrant Final Decision Letter will be issued, and as is evidenced by the above timeline, the City has not complied with the timelines required by Miami 21 for issuance of same. Thus, by way of this correspondence, I respectfully request that such letter be issued on or before close of business on Monday, November 16, 2020. My client's rights to utilize the Property are beine severely compromised by the City's delay. Thanks again for your time on this matter, and please do not hesitate to call me any time to discuss. I can be reached at 305-298-8734 (cell) or 305-913-0356 (office) whenever if convenient for you. GRAYROBINSON PROFESSIONAL ASSOCIATION VIA E-MAIL Victoria Mendez November 15, 2020 Page 8 Sincerely, Valerie Haber CC: Jeremy Gauger; Bill Fuller; Ben Bush; Zack Bush (via e-mail). Submitted into the public record for item(s) SR.6, on 11-19-2020. City Clerk U Y ZEBERSKY PAYNE 110 Tower 110SE6thStreet Q cn L U Z F Suite 2150 v +� ZEBERSKY PAYNE SHAW LEWENZ Fort Lauderdale, FL 33301 C �`�'— 45 V Tel: 954.989.6333 Fax:954.989.7781 www.zplip.com +� — L o -0 O N +- -p E November 19, 2020 N o VIA EMAIL Mayor Francis Suarez Commissioner Alex Diaz de la Portilla City of Miami City of Miami 3500 Pan American Dr. 3500 Pan American Dr. Miami, Florida 33133 Miami, Florida 33133 fsuarezna miami ov.com adiazdelaportillaAmiamiaov.com Commissioner Ken Russell Commissioner Joe Carollo City of Miami City of Miami 3500 Pan American Dr. 3500 Pan American Dr. Miami, Florida 33133 Miami, Florida 33133 krussellAmiamigov.com jcarolloAmiami ov.com Commissioner Manolo Reyes Commissioner Jeffrey Watson City of Miami City of Miami 3500 Pan American Dr. 3500 Pan American Dr. Miami, Florida 33133 Miami, Florida 33133 mreyesna,miami.gov.com khardemon(&miamijzov.com City Manager Arthur Noriega City Attorney Victoria Mendez City of Miami Assistant City Attorney Barnaby Min 3500 Pan American Dr. City of Miami Miami, Florida 33133 3500 Pan American Dr. anoriema@miamijzov.com Miami, Florida 33133 vmendez(a, amigov.com Re: Public Comment on S.R. 6, Proposed Ordinance 8049 Dear Ms. Mendez, Mr. Min, the City Commissioners, and Mr. Mayor: I am writing on behalf of Mad Room, LLC, d/b/a Ball & Chain. It is my understanding that the City received 8 hours and 52 minutes of public comment on S.R. 6, which you assert represents over 300 public comments. I have reviewed the video of the City Commission meeting, as well as Ms. Mendez's on -the -record position that she has consulted with the State Attorney General, whom Ms. Mendez claims, without evidence, has taken the position that public comment can simply be read into the record once, since it is a similar script. ZF11www.zpllp.com Submitted into the public record for item(s) SR.6, on 11-19-2020. City Clerk First of all, there is zero doubt that the City could not stop all 300+ individuals from speaking if these individuals had risked their health to publicly appear at the City Commission meeting. Nor is there any evidence that City officials actually listened to the nearly 9 hours of public comment, particularly given the extremely limited timeframe city officials had in which to do so. While some comments may have been similar, a substantial number contained particularized grievances, not capable of being quickly summarized as Ms. Mendez disingenuously asserts. Further, the City is requiring each individual to state their name and their address, yet the City Commission will not hear the sheer magnitude of the public comments or feel the full weight of all of the public comments if it simply refused to play all 8 hours and 52 minutes of public comment for the public. Further, while you may be confident that your actions satisfy your requirement to have open meetings and take public comment under Florida law, there can be zero doubt that refusing to accept public comment in the manner violates the First Amendment protections incorporated to States and municipalities by the Fourteenth Amendment as recognized in Gitlow v. People of the State of New York, 268 U.S. 652 (1925). This action also violates the City's own Citizens' Bill of Rights as enumerated in the City Charter. More specifically, it violates Section (A)(3) by interfering with the rights of freedom of speech. As you undoubtedly know, pursuant to Section (C) of the Citizens' Bill of Rights, "[a]ny public official, or employee who is found by the court to have willfully violated this section shall forthwith forfeit his or her office or employment." This would not only include Ms. Mendez and Mr. Min but also your clients that sit on the City Commission and choose to allow this action to move forward without objection. Although the Mayor is a non -voting member of the City Commission, he is by City Charter the presiding member of the City Commission. His failure to address this matter would also implicate him in a violation of the City's Charter, and specifically a willful violation of the Citizens' Bill of Rights. Many of you are members of the Florida Bar. You know full well that precluding public comment in this manner violates the First Amendment. Your decision to read a purported "summary" of nearly 9 hours of public comment made by hundreds of impacted City residents, many with specific and particularized grievances that cannot simply be a captured in a "summary," does not constitute a reasonable time, place and manner restriction. Additionally, if S.R. 6 is enacted and Ball & Chain is not grandfathered in, my client reserves the right to challenge the enactment as violative of the First Amendment, the Fifth Amendment, the Fourteenth Amendment, the Citizens' Bill of Rights incorporated in the City Charter, as well as the letter and spirit of Florida law requiring open meetings and public comment. To the members of the Bar: We are putting you on notice as members of the Florida Bar that you are legally and ethically bound to ensure that the rights of Miami residents are not blatantly violated. To all of you: We are putting you on notice that your failure to evaluate the legal legitimacy of Ms. Mendez's and Mr. Min's position (which clearly violates Federal, State and local law) also runs afoul of established law. If you continue to push this issue without observing the lawful requirements, it will only reinforce my client's position that they were Submitted into the public record for item(s) SR.6, ZFIIwww.xpllp.com on 11-19-2020, City Clerk being targeted and that this legislation was pushed through without sunshine and public input, and for sole purposes of political retaliation. Govern yourself accordingly. Thank you. Respectfully, jordanA. Shaw Jordan A. Shaw, Esq. Cc: Ashley Moody (via email)