How Should Noise Ordinance Be Applied to This Music Venue?

South of Fifth boasts some of South Florida's highest real estate values. But the market has been strategically created by ordinances that preserve the area's designation as a historic area with limited nightlife, according to 20-year resident and community activist Frank Del Vecchio, a retired civil rights attorney who practiced in Boston and Washington, DC. “We've got a successful, viable community that has resisted entertainment,” he said.

One of these ordinances sparked Bakehouse's lawsuit for limiting music and the type of instruments allowed for live entertainment in commercial buildings. “The code enforcement officer said, 'You can't have a saxophone. You could only have a string instrument or a piano,'” Bakehouse attorney Ronald Lowy, of Lowy and Cook in Miami, FL, said.

Lowy said that statement suggests the officer issued the citation under a city ordinance that allows only acoustic music by specific instruments at restaurants between the streets Michigan Avenue and Alton Road on southern Fifth Street.

But here's the rub: Bakehouse sits at 808 First Street — well outside that roughly two-block area — invalidating the citation that required it to immediately cease the live music and abandon plans for weekly jazz brunches, according to its attorney.

But Del Vecchio argues the restaurant falls within a district that excludes all live music, with no allowance for acoustic performances. “The violation that was written was not for noise, but for entertainment,” he said. “The attorney for the plaintiff simply misread the ordinance. In my opinion this is a case that will be dismissed by the judge because it's a legally invalid premise.”

Miami Beach Mayor Philip Levine called the dispute a case of the “tail wagging the dog,” as overzealous activists pursue tight regulations on businesses. “Why are we spending taxpayer money to defend something that doesn't even make any sense? We're not really Footloose,” he quipped, referring to the movie about a fictional town that banned rock music and dancing. “I believe there's no issue with live music inside an enclosed building where the volume is not heard outside.”

Meanwhile, Bakehouse argues the ordinance violates its constitutional right to free speech. The city has no right under the U.S. Supreme Court precedent to regulate the type of music that's played at the establishment,” Lowy said. (See, Ward v. Rock Against Racism, 491 U.S. 781 (1989).) “They have every right to regulate the loudness or the decibel level, but they have no right to say, 'You can play a piano but you can't play a harmonica, or you can play a string instrument but you can't whistle.'”

***** Samantha Joseph is a Real Estate Writer for the Daily Business Review, the Miami, FL-based ALM sibling of this newsletter in which this article also appeared.