OCTOBER 20, 2020 | 1:01PM | LINK TO ARTICLE
This past Friday, a judge’s ruling in a lawsuit filed by a Miami Gardens strip club essentially struck down Miami-Dade County’s COVID-19 curfew — and, in the process, allowed area restaurants and bars to remain open past midnight.
Three days later, an appeals court judge slammed on the brakes, at least for the time being.
On Friday, Miami-Dade Circuit Judge Beatrice Butchko issued an injunction allowing Tootsie’s Cabaret to conduct business until its regular 6 a.m. closing time. Butchko ruled that the curfew conflicts with Phase Three of Florida Gov. Ron DeSantis’ statewide reopening plan prohibiting municipalities from restricting the reopening of businesses and requiring that businesses “must be allowed to operate at least at 50 percent capacity, regardless of local rule.”
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Concluded Butchko: “The curfew orders…prohibit Tootsies from operating; they prohibit employees and contractors from working; and they reduce capacity to zero for the entire time subject to the curfew.
Butchko’s ruling further barred the county from enforcing Mayor Carlos A. Giménez’s order mandating that restaurants and bars must close at curfew.
Miami-Dade County immediately appealed the ruling to the Third District Court of Appeals.
Late yesterday afternoon, the appellate court put Butchko’s injunction on hold, and Giménez issued a statement that made it clear he intends to enforce the current midnight curfew.
“This means, that, pending the appeals court deciding on the matter, the curfew remains in effect and is enforceable,” Giménez said, adding that he would consult with the county’s medical experts as well as those at the White House as the legal matter moves forward.
Marbet Lewis of Spiritus Law, a Coral Gables legal firm specializing in restaurant, nightlife, and alcohol-regulation law, says the battle to break the county’s curfew is rooted not in people’s right to party, but rather in their right to earn a living.
“The complaint was presented that the people who work at Tootsie’s have the right to work,” Lewis says, explaining that the nature of Tootsie’s business requires that it operate past midnight in order to stay afloat.
“It’s down to the essential function of working,” she elaborates. “For Tootsie’s, a midnight curfew prevents you from sustaining your business. Even though they open earlier in the day, it’s probably a light crowd. Financially, they would be able to prove by receipts and card transactions that the majority of business occurs after midnight.”
The attorney says she’s advising all her clients to be cautious when planning their hours of operation, owing to the shifting nature of the pandemic and the government’s response.
“We’ve seen the county open, and we’ve seen that taken away. Our COVID-19 numbers are gradually going up. If there’s a change, the county must weigh that.”
In Lewis’ view, Giménez’s temporary triumph notwithstanding, the county is unlikely to be able to maintain its midnight curfew.
“Once you open Pandora’s box and you allow people to engage in activities, it’s going to be that much harder to impose restrictions,” she says.
Lewis says the best option is to keep mask-wearing and social-distancing mandates in place and give businesses the flexibility to guide themselves.
“And that’s what [we have been],” she argues. “We’re seeing a lot of voluntary restrictions.”
Jessica Francos, vice president of operations for Jesta Hotels & Resorts, parent company of the Clevelander on South Beach, tells New Times that the Ocean Drive sports bar, known for late-night parties, had planned on keeping its bar open until 2 a.m. beginning this weekend, with a 1:30 a.m. last call. With the injunction stayed, she says, the bar will close at midnight.
“We regrouped and started to figure out how to operate while protecting our employees and guests,” Francos says, adding that the Clevelander will adhere to any curfews imposed by the county and the City of Miami Beach.
Francos says the venue will allow guests to sit and drink at the bar, but the VIP areas, pools, and rooftop will remain closed. The dance floor has given way to additional seating area. Even the entertainment has been toned down.
“The DJs will be playing Top 40 and lounge music. People can still dance — in their chairs or right by their seats,” Francos says.
Managers and security staff will be on hand to enforce mask-wearing and social-distancing requirements while entering and exiting and during trips to the restroom.
The Clevelander executive says consumers have pivoted from wanting a night of debauchery to craving a safe time among friends.
“I think our guests now want to go out outdoors in a safe environment. I think now, happiness is safety.”
Like Francos, Dan Binkiewicz is cautiously optimistic about keeping his bars open later. The owner of Blackbird Ordinary, Sweet Liberty, Mama Tried, and the Bar is trying to figure out what’s best for each establishment.
“We’re having a meeting tomorrow to go over everything,” he told New Times on Monday.
He initially planned to keep the Bar in Coral Gables open until 2 a.m. as of this weekend. Sweet Liberty will remain closed for the time being. Binkiewicz envisions the South Beach bar, known for its craft cocktails and extensive event lineup, reopening sometime in November.
Jessica Francos insists that the only way to get back to the good old days of pool parties and body-painted models is to exercise caution.
“We want customers to be responsible and enjoy our establishment,” Francos says. “We’ll get back to letting loose one day.”
After a few wild weekend nights, Tootsie’s late-night future now hangs in the balance. The Miami Gardens cabaret declined New Times‘ request for comment.
Meanwhile, the reins continue to slacken at scores of area establishments, and Miami-Dade County continues to rack up new COVID-19 cases.