Food Fight

Miami Beach tweaked its sidewalk café ordinance, and some restaurant owners fear they may be put out of business

By Ben Torter

The new ordinance bans these tacky food displays, but there are other provisions that have restaurateurs fearing for their bottom line. Photo by Julia Carfagno

Tacky, cheap and food court are words that hip city dwellers might ordinarily associate with some long-forgotten suburban mall of their childhood nightmares, but last week these adjectives were used to describe Lincoln Road and Ocean Drive.

The barbed words flew from the tongues of various residents, restaurant owners and community leaders at Miami Beach City Hall during the second reading of a controversial new sidewalk café ordinance that bans the prominent food displays in front of Ocean Drive and Lincoln Road restaurants as of Dec. 22.

Yet, some restaurateurs said other rules in the pages-long ordinance are difficult to understand. In fact, they believe the dramatic fight against food displays was a smoke screen to help slip through another aspect of the ordinance — one that terminates old café permits for new restaurants and could affect their bottom lines.

“The only explanation that I can find for what happened is that the administration wanted to divert attention from some of the provisions they had added, such as termination of sidewalk café permits upon sale,” said David Kelsey, president of the South Beach Hotel and Restaurant Association.

The portion of the ordinance Kelsey referred to states that “a sidewalk café permit may not be transferred and/or otherwise assigned” and that “a new owner and/or operator” of a business with a sidewalk café “will be required to apply for and obtain a new permit.”

Kelsey and others tried unsuccessfully to get that subsection deleted from the ordinance. He believes it could lower the resale value of restaurants by requiring them to meet a state building code that counts outdoor seats in determining how many toilets an establishment needs.

Although that code has been effective since March 2002, it didn’t apply to pre-existing sidewalk cafés unless they applied for major design changes. Kelsey argued that most of the restaurants don’t have room to add more toilets, so they’d have to remove outdoor seating — their bread and butter.

Public Works Director Fred Beckmann said that if a sidewalk café is sold in the future, the city will enforce the current plumbing code only if the new owner wants to add seating.

“There is no change to what is currently required of a new owner and/or operator,” Beckmann said in an e-mail. “No additional plumbing fixtures are required if there’s no change in the level of occupancy … and there is no space reconfiguration, renovation or alteration. However, if the occupancy level is changed or the space is reconfigured, renovated or altered, the sidewalk café restaurant may be required to install additional plumbing fixtures to comply with the new building code.”

Kelsey is still suspicious.

“If they think it means the same thing, then what is the objection to taking it out?” he asked. “The word ‘terminate’ triggers the plumbing code.”

Some restaurant owners also stressed that the uncertainty about whether new owners will be given the same number of seats hurts the resale values of their establishments. Allowing permits to be transferred, they argue, would help maintain values.

City Manager Jorge Gonzalez, though, said the ground on which sidewalk cafés are set up isn’t owned by the restaurants.

“The sidewalk café belongs to the city,” Gonzalez said. “We’ve managed up until now to be able to be accommodating to all of those businesses that exist today, and I don’t expect any reason why we would not continue to be that way, but there are no rights that transfer for sale. They don’t exist, and they’re not going to exist.”

At a time when Lincoln Road and Ocean Drive were crime-ridden areas desperate for redevelopment, restaurants were permitted to set up tables and chairs on city-owned sidewalks. These sidewalk cafés helped fuel the renaissance of Miami Beach and have become an integral part of the South Beach scene. The city currently leases portions of the enclosed Lincoln Road or sidewalks of Ocean Drive to restaurants for $15 per square foot per year.

But critics say the success has reached a tipping point. They say the sprawl of tables and chairs and busing stations impede pedestrian flow on Ocean Drive and Lincoln Road, and block Art Deco buildings, fountains and streetscape features designed by such world-renowned local architects as Morris Lapidus.

“Someone who’s not coming to eat might want to throw a penny in the fountain,” Gonzalez said.

How to legislate a balance has been the topic of at least a dozen official city meetings during the past couple of years. Last week, the commission was bombarded with testimony urging it to pass the ordinance to more tightly regulate the sidewalk cafés.

“You don’t need thousands of people to tell you, it’s a food court. You can’t get by,” said Robert Wennett, the developer of 1111 Lincoln Road and a member of a committee that advises on the character of the Cultural Arts Neighborhood District Overlay, which includes Lincoln Road.

Bill Farkas, the executive director of the Miami Design Preservation League, complained to the commission about “cheerleaders” who try to pull people into the restaurants and sidewalk cafés that employ them. Their presence, along with the ever-growing expanse of tables and chairs on public property, makes it difficult for people to walk. “There’s no room to walk down the sidewalk on the western side [of Ocean Drive],” Farkas said.

Ellen Marchman, founder of the public relations firm Get Ink, suggested the cafés are beginning to tarnish Miami Beach’s image. “We used to be really glamorous,” she said.

Preservationist and former Beach Commissioner Nancy Leibman provided some comic relief when she presented each commissioner with a yellow rubber chicken, symbolic of food displays, and reminiscent of the infamous rubber chicken passed between her and former Mayor David Dermer.

“Get rid of the live rubber chickens,” Liebman told commissioners.

Kelsey said he and his group of restaurants were blindsided at last week’s commission meeting. The first reading of the sidewalk café ordinance was Oct. 17. At that time, commissioners agreed to leave the use of food displays up to individual restaurant owners. After the November election, the makeup of the commission changed to include new commissioners Ed Tobin, Jonah Wolfson and Deede Wiethorn in place of Simon Cruz, Michael Gongora and David Dermer. Kelsey wanted the item to be heard again in January to give the new commissioners two readings.

“It may come back with a protest from the restaurants who have food displays,” Kelsey said.

Many restaurateurs believe the “food art” helps sell food, especially to tourists who don’t speak English or Spanish and can point to what they’d like.

But not all the restaurants are upset that food displays have been banned.

Graziano Sbroggio, who owns popular Lincoln Road spots like Spris, Tiramesu, Le Bon, Segafredo and the Van Dyke Café, doesn’t use food displays. Neither does Mark Soyka, founder of Van Dyke Café and sole owner of News Café on Ocean Drive.

“Food displays are, in my opinion, not very attractive,” said Soyka, one of the city’s sidewalk café pioneers in the 1980s. “The food doesn’t look fresh, the food doesn’t look right.”

Though food displays have captured much of the focus of the sidewalk café ordinance debate, they are only one aspect. Some other highlights include:

• Restaurants and bars will have to store tables and chairs indoors overnight, unless they’re set up again by 11 a.m.

• The city will no longer give them 24-hour warning notices for site plan or life safety violations. Maximum fines increased from $500 to $1,000, and repeat offenders can now have their sidewalk café permits suspended or revoked.

• The city manager is required to solicit input from neighbors of restaurants that want to expand their outdoor seating.

• Permit fees for restaurants with new sidewalk cafés are now prorated for the first year.

Still, the commission did not include all of the proposals in the ordinance, including a controversial item that would have limited outdoor seating to 50 percent of the area of each block, and potential rules regulating how to safely store gas cylinders used for outdoor heaters. The commission referred the latter item to the Neighborhood Affairs Committee for further discussion.

Though the cylinders have been used in Miami Beach for at least 20 years, the fire department recently determined that they have been stored in an unsafe manner. But at the urging of restaurant industry members, who said the heaters are necessary in cold winter months, the fire department agreed not to write violations while a solution is being worked out.

Mangoes Tropical Café owner David Wallack summed up the sentiment of restaurant owners when he told commissioners, “If you don’t have heaters, you’re empty, period.”

Comments? E-mail ben@miamisunpost.com