It’s “Footloose” in Miami Beach.
Earlier this month, a city code inspector told a brunch-time saxophone player at a trendy restaurant in South Beach to take five.
You see, only “non-amplified piano and string instruments” are allowed to serenade diners in the Beach’s South of Fifth neighborhood, city code says. So the sax music had to stop.
Now, feeling kind of blue, the owners of Bakehouse Brasserie are suing the city in civil court, claiming the ban on brass, woodwind and percussion instruments infringes on their constitutionally protected right to free speech.
The ban constitutes “an unreasonable restraint on protected speech or other expression protected by the First Amendment,” according to a lawsuit filed last week in Miami-Dade Circuit Court.
Yes, the same law that protects the rights of the press also safeguards the freedom of restaurant-goers to listen to smooth jazz while sipping mimosas and noshing on the quiche-of-the-day.
Constitutional law experts believe Bakehouse has a strong case.
Federal courts have recognized music, including instrumental music, as a protected form of expression. While governments generally have the right to regulate how loud music can be, they run the risk of censorship when they regulate what kind of music can be played, said Caroline Mala Corbin, a First Amendment expert who teaches at University of Miami School of Law.
So banning a sax while allowing piano likely crosses the line.
“If you’re regulating based on the content of the music, it is highly unlikely [the law] would survive in court,” Corbin said. “Had they just regulated the volume, it probably would survive.”
David Hudson of the First Amendment Center at Vanderbilt University agreed the city’s regulation was troublesome.
“Noise ordinances cannot be used as cudgels to impose total and complete bans on expression,” Hudson wrote in an email. “I certainly understand limiting speech below a particular volume — to protect residents and such — and to prohibit music volume after a particular hour, but this ordinance appears susceptible to challenge.”
Bakehouse is asking a judge to order the city to back off and let the eatery resume its “Jazz Brunch” on Sunday program, the lawsuit states.
First it’s a live piano, then it’s a saxophone, then it’s the end of Western civilization.
Miami Beach Mayor Philip Levine.
The restaurant will have no arguments from Miami Beach Mayor Philip Levine, who called the ordinance “over-regulation.”
“First it’s a live piano, then it’s a saxophone, then it’s the end of Western civilization,” Levine joked. “To have low-level live music at a restaurant, I think it’s great. I don’t think we should stifle the creativity of our entrepreneurs.”
If a court should decide in the city’s favor, the mayor added, he would ask the commission to reconsider the rule.
South Beach residents have complained in the past about noise in the city’s liveliest late-night destination, including from revelers at another Menin-Galbut spot, Bodega Taqueria and Tequila.
It’s not clear if a complaint — possibly from a neighbor or competing restaurant — led to the code inspector’s visit, or if he simply happened to notice the saxophonist grooving as he passed by.
Put a sock in it
Bakehouse, at 808 First St., opened its doors in November three blocks east of Ocean Drive in the Beach’s fashionable South of Fifth neighborhood.
To celebrate the New Year, the 87-seat café hired a sax player to perform “non-amplified, acoustic music ... in its natural form and at minimal volume levels” during the brunching hours of 11 a.m. and 2 p.m, the lawsuit states.
According to court filings, the music did not disturb diners, could not be heard outside the enclosed restaurant and provided a “tasteful, chic and warm ambience.”
The event’s success led Bakehouse to plan a weekly jazz brunch on Sundays. But the very next weekend, after 90 minutes of music, a city code inspector came to the restaurant and told the sax player to stuff it, handing management a written code violation.
The cease-and-desist order is not only a constitutional violation, the lawsuit says, it’s also causing “lost profits [and] diminution in value” of the restaurant.
Music, as a form of expression, is protected under the First Amendment.
Justice Anthony Kennedy in Ward v. Rock Against Racism
City code states that “for restaurants located ... on the south side of Fifth Street between Michigan Avenue and Alton Road, non-amplified piano and string instruments, played at a volume that does not interfere with normal conversation, may be permitted as a conditional use within the interior of the premises.”
Business owners in other cities have tangled with local governments over noise ordinances and won.
And in an important 1989 decision, the U.S. Supreme Court held that “music, as a form of expression, is protected under the First Amendment.”
“Saying you can play one instrument and not another is no different than saying you can speak English but not Spanish,” said Bakehouse’s attorney Ron Lowy. “You can’t pass a law that would prohibit you from playing a saxophone or a harmonica or even whistling but allow a piano or a guitar.”
Lowy expects a court hearing this week.
Until then, he said, “don’t expect to see Kenny G.”
Miami Herald staff writer Chabeli Herrera contributed to this report.