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Bake House SB, LLC v. City of Miami Beach

United States District Court, S.D. Florida, Miami Division

June 20, 2017

BAKE HOUSE SB, LLC d/b/a BAKE HOUSE, Plaintiff,
v.
THE CITY OF MIAMI BEACH Defendant.

          ORDER GRANTING MOTIONS TO INTERVENE

          JONATHAN GOODMAN UNITED STATES MAGISTRATE JUDGE.

         The alternative rock group R.E.M. is known for its sometimes inscrutable and enigmatic lyrics, especially for its early songs. In fact, frontman Michael Stipe provided the following explanation of the group's fuzzy lyrics in a 1');">1994 published interview: “I hate to break it to them, but . . . it's just utter nonsense; it's sounds, and it doesn't make sense sometimes, and it doesn't have to.”[1');">1" name="FN1');">1" id= "FN1');">1">1');">1] But some of the lyrics to the band's 1');">1994 song “Let Me In” were actually remarkably simple and far from indecipherable: “Heyyyyyy, let me in, yeah yeah yeah/Heyyyyyy, let me in. Let me in.”[2]

         The concept of being let in is at the heart of the motions to intervene before the Undersigned. Under Federal Rule of Civil Procedure 24, four proposed intervenors want to join this lawsuit, which concerns a City of Miami Beach ordinance that prohibits, among other things, entertainment establishments and the loud playing of music in a Miami Beach neighborhood.

         Plaintiff Bake House SB, LLC (“Bake House”) owns and operates what it calls “a charming, French themed neighborhood ‘brasserie, ' situated in the heart of the elegant ‘South of Fifth' neighborhood of South Beach[.]” [ECF No. 1');">1-1');">1 ¶ 6]. It describes itself as a “popular brunch venue for locals and tourists alike[.]”[ECF No. 1');">1-1');">1 ¶ 7]. Bake House contends that the City's effort to enforce the ordinance by prohibiting its jazz brunches is unconstitutional, arguing that the law violates its right to play music, which is a means of free speech and expression protected by the U.S. Constitution. [ECF No. 1');">1-1');">1].

         The City of Miami Beach (the “City”) is the Defendant, and the proposed intervenors are residents, property owners, developers and condominium associations in the Fifth Street neighborhood of Miami Beach. [ECF Nos. 1');">12; 20');">20]. The proposed intervenors are seeking to preserve the ordinance and protect it from Bake House's legal attack. [ECF Nos. 1');">12; 20');">20]. They say they want to protect their quiet enjoyment of the residential neighborhood and their property values, which they maintain would be harmed if Bake House were to prevail. [ECF Nos. 1');">12; 20');">20]. Bake House objects to their proposed intervention, under both mandatory intervention and permissive, discretionary intervention. [ECF No. 1');">19].

         For the reasons outlined in greater detail below, the Undersigned grants the intervention motions. In other words, I will be invoking the words to the song, “Come On In, ” by country music singer and songwriter Brad Paisley (featuring Buck Owens): “Come on in, come on in / It's so good to see you again / It don't matter where you been / Welcome stranger, come on in.”[3]

         As explained in this Order, the Undersigned concludes that the proposed intervenors do not have grounds to intervene as of right under Rule 24(a)(2) because the City adequately represents their interests. However, the Undersigned also concludes that the proposed intervenors should be permitted to permissively intervene under subsection (b)(1');">1)(B).

         Before discussing the factual background, applicable legal principles and legal analysis, the Undersigned will quickly note that this ruling is in the form of an order, rather than a report and recommendations. Although there have been a few contrary published opinions, federal district courts across the country typically treat an intervention motion as a non-case-dispositive motion, which permits a magistrate judge to enter an order (as opposed to a report and recommendations), which is then reviewable under the clearly erroneous or contrary-to-law standard. See, e.g., WFK & Assocs., LLC v. Tangipahoa Par., No. CIV.A.06-6684, 20');">2007 WL 1');">1537633, at *1');">1 (E.D. La. May 23, 20');">2007); U.S. v. Brooks, 1');">163 F.R.D. 601');">1');">1');">163 F.R.D. 601');">1, 603 (D. Or. 1');">1995).

         Factual Background & Procedural History

         Frank DelVecchio; 301');">1 Ocean Drive Condominium Association, Inc. (“301');">1 Ocean”); 321');">1 Ocean Drive Condominium Association, Inc. (“321');">1 Ocean”); and the Continuum on South Beach Master Association, Inc. (“Continuum”) (collectively, “Intervenors”) are the proposed intervenors. Although the Intervenors filed two separate motions [ECF Nos. 1');">12; 20');">20], they are represented by the same attorney. Moreover, Continuum adopted the motion its co-Intervenors filed. [ECF No. 20');">20, 1');">1');">p. 1');">1].

         Bake House filed its lawsuit to invalidate Section 1');">142');">42-693(c) of the City of Miami Beach Code, in Miami-Dade Circuit Court, and the City removed the case to federal court. [ECF No. 1');">1]. Section 1');">142');">42-693(c), among other things, prohibits “entertainment establishments” in the South of Fifth neighborhood of the City, and limits the playing of music and certain live instruments in certain restaurants on certain streets. [ECF No. 1');">1-1');">1, p. 6]. The purpose of the ordinance, the Intervenors maintain, is to protect the predominantly residential character of the area, to maintain property values and preserve the residents' quality of life. [ECF No. 1');">12, p. 2].

         Bake House says it wants to exercise its “free speech” rights to have a musician play the saxophone in its restaurant, and it explicitly asks the Court to prevent the City from enforcing the zoning prohibition in its entirety. [ECF Nos. 1');">1-1');">1; 1');">19]. Intervenors express skepticism about Bake House's “constitutional” attack on the City's duly enacted land-use regulations, flagging Bake House's principals' knowledge of the City's zoning laws; Bake House's explicit acknowledgement during the permitting process that “entertainment, ” as the City Code defined it, was prohibited; and the principals' ownership of several other restaurants located in areas of the City where the zoning allows entertainment until 5:00 a.m. [ECF No. 1');">12, pp. 7-1');">12].

         On January 8, 20');">201');">17, in response to a complaint by one of the Intervenors, the City's Code Enforcement Department issued citation ZV20');">201');">17-00674, stating that Plaintiff was violating Section 1');">142');">42.693(c) by playing saxophone music during a Sunday brunch at the Bake House restaurant located at 808 First Street. [ECF No. 1');">1-1');">1, pp. 5-6, 1');">16]. The citation states:

INSPECTION OF THE ABOVE PREMISES ON THIS DATE DISCLOSES YOU ARE IN VIOLATION OF SECTION 1');">142');">42-693(C) OF THE CITY CODE OF MIAMI BEACH BY: ALLOWING A NON-PERMITTED USE, TO WIT: ENTERTAINMENT ESTABLISHMENTS ARE NOT PERMITTED AS A MAIN PERMITTED OR ACCESSORY USE SOUTH OF 5TH STREET: RE LIVE ENTERTAINMENT.
YOU CAN COMPLY BY: CEASING THE SAID USE IMMEDIATELY UPON RECEIPT OF THIS NOTICE.

[ECF No. 1');">1-1');">1, 1');">1');">p. 1');">16].

         Plaintiff filed its amended complaint in state court on January 1');">17, 20');">201');">17, attaching the citation, and alleging that Section 1');">142');">42-693(c) is an unconstitutional infringement on free speech. [ECF No. 1');">1-1');">1, ¶¶ 20');">20, 25, 27, 28, 31');">1, 32, 34, 36, 41');">1, 42');">42, and 47]. The City removed the case to Federal Court on January 1');">18, 20');">201');">17. [ECF No. 1');">1].[4]

         Intervenors 301');">1 Ocean, 321');">1 Ocean and Continuum are the associations of owners of the units in the residential condominiums located at 301');">1 Ocean Drive, 321');">1 Ocean Drive and 50 and 1');">100 South Pointe Drive, within the South of Fifth Street neighborhood in Miami Beach that is the subject of this lawsuit. [ECF Nos. 1');">12, pp. 2-6; 20');">20, p1');">1');">p. 1');">1-2]. Intervenor Frank DelVecchio, with his wife Marian, purchased a condominium at 301');">1 Ocean Drive, Miami Beach, Florida, on September 6, 1');">1996, and they have continuously resided there since then. [ECF No. 1');">12, pp. 2-3]. In a declaration, Mr. DelVecchio represents that he and his wife invested in a residence in the South of Fifth neighborhood because the zoning ...


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