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By Tristram Korten
Special to BT
At the Lost & Found Saloon, a stylish and popular restaurant on NW 36th Street in Wynwood, they serve their beer and wine very carefully. This has less to do with the pride they take in the selection of microbrews and meticulously chosen vintners, and everything to do with the City of Miami.
Inside the Lost & Found you can’t order a drink without food; and not just any food. You can’t order a glass of wine with a salad, or a beer with soup. You must order a full-course meal with your drink. And you can’t be served that beverage while waiting for your meal to be prepared. It can only be served after the food has been placed on your table. No one at the restaurant likes these restrictions, but they are worried about the penalties for transgression - arrest and prosecution in criminal court for the restaurant’s owner, along with a fine.
Lost & Found’s proprietor, 43-year-old Ken Bercel, discovered this last year, when he was arrested then dragged into court for allegedly violating a city ordinance governing his beer-and-wine license. (The state issues such licenses, but cities decide how they’re used.) Bercel says an undercover Miami police officer posed as a customer and ordered a beer while reviewing a menu. (Police deny the officer pretended to order food.) When the beer arrived, the undercover officer announced he was not going to eat after all, Bercel recounts. Beer in hand, no food - voilà, crime committed.
In the year that has passed, Bercel, whose restaurant is a hip outpost of creative Southwestern cuisine and décor in a neighborhood just emerging from its warehouse-district roots, says he has been turning away thousands of dollars’ worth of business each month from people who just wanted a beer after work or wine with some lighter fare. Sometimes Bercel watches whole groups of people walk out because one of them didn’t want to order food with his beer or wine. (The Lost and Found has always adhered to this strict reading of the city ordinance, Bercel says, which is specific to his type of liquor license - a 2COP, or “consume on premises.”)
For Bercel and countless other small restaurateurs operating under the 2COP, the city ordinance’s technicalities seem illogical - is there a prescribed calorie intake to offset a beer? But for the guardians of the city, the law is a bulwark against the proliferation of rowdy, illegal bars. “This is a quality-of-life issue,” says Maj. Miguel Exposito, commander of the Miami Police Department’s code-enforcement task force, who warns that without the law, “whole strips of the city will just become bars.”
Now a case is going to court that will challenge the law itself. Lawyers Louis J. Terminello and Samuel A. Rubert are representing a Miami restaurant owner charged with serving alcohol without food. The lawyers argue that the state regulates the liquor license and grants cities the right only to regulate the hours alcohol is sold, where it can be sold, and the sanitary conditions of the establishment selling the alcohol. “Cities do not have the authority to regulate the method by which alcoholic beverages are sold,” the lawyers argue in a court motion. Hearings in the case have not yet been scheduled. Assistant City Attorney George Wysong, who is representing the city in this case, did not return repeated calls for comment.
Backing up their technical argument, Terminello hopes, is an emotional one. “If this remained a zoning-board matter, that would be one thing,” he says. “But when you arrest people and give them criminal records, that’s another. These are not criminals; these are business people trying to accommodate their patrons.” The arrests can jeopardize the legal residency of foreigners, and make obtaining business licenses more difficult in the future, he notes.
The law has been on the books for more than 40 years, but it’s only recently that the city has launched criminal enforcement. “You have to look at the history of what’s been happening in the city in the last 15 to 20 years,” Major Exposito says, detailing an upsurge in unlicensed bars in Little Havana that had illegal video-gambling machines and where women were paid to solicit marked-up drinks from customers. Drug-dealing and prostitution often followed. “Code enforcement can’t handle this,” he says. In 1998 police began making sweeps of places serving booze without food. In 2004 the city commission followed up by directing the police to create Exposito’s code-enforcement task force.
How effective these arrests are is not clear. An informal sampling of the county’s court records failed to turn up a single conviction, a point Exposito acknowledges. “The conviction rate in the beginning was a lot higher than it is now,” he says. In the past, his unit provided classroom instruction for incoming assistant state attorneys to stress the need for prosecutors to follow through. “A lot of them don’t think it’s a big deal, so they throw it out,” he says. Compounding that problem is the fact that several of the officers on the task force have retired and moved away, including one undercover officer who has 50 to 60 cases outstanding, says Exposito. As a result, all those cases will probably be dismissed.
It doesn’t help that the ordinance is so vaguely worded. Restaurants operating under the kind of license held by Ken Bercel at the Lost & Found are told that “the sale of beer and wine shall be incidental to the sale and consumption of food,” and that “at least 60 percent of total gross revenues must come from retail sale on the premises of food and nonalcoholic beverages. The required percentage must be maintained on a daily basis.” In an abundance of caution, Bercel construes “food” to mean a “full-course” meal, even though that interpretation is not explicit in the city codes. But there is no mention that the food-to-alcohol percentage must be on a per-person basis. Beer and wine, the law states, may be consumed “in conjunction with” meals. But does “in conjunction with” mean after the meal has been ordered or only after it’s been ordered and served?
The Lost & Found Saloon opened in February 2006 and immediately suffered through a nearly year-long road-improvement project that ripped up NW 36th Street, including the sidewalk in front of the restaurant. No sooner had the dust settled and the bulldozers left then, on November 9, a veteran police officer named José Ferrer, dressed in street clothes, walked in and took a seat at the counter.
According to Bercel, who was home at the time, a waitress offered Ferrer a menu, which he took. “He told her he was pleased that breakfast was served all day, he complimented the selection of food, and then he asked what beers were on draft,” Bercel recounts.
The restaurant carries a small but carefully chosen selection of beer from Maine and Oregon, including a Sea Dog Blueberry Wheat and a Rogue Hazelnut Brown Nectar. Lost & Found also offers 19 wines from California, Oregon, Argentina, Chile, New Zealand, Spain, and Italy, all of them good quality and reasonably priced. The menu reflects Bercel’s background as a chef in Broward and South Beach restaurants, and features such original creations as chipotle seared Mahi-Mahi, crabmeat-stuffed endives, and baked chicken flautas. Critics’ reviews have been good, lauding the cuisine and the “cowboy cool.”
The man sitting at the counter asked to sample a beer, Bercel says, then ordered one. “The guy had a menu, he acted like he was going to eat, he said he was hungry,” Bercel recalls. When the waitress asked if he was ready to order, the customer said he needed a minute. The waitress returned and the man put down the menu, saying he was not hungry. Then his cell phone rang. The waitress overheard him say, “It’s a go.”
(“I don’t believe that’s what happened,” Major Exposito counters. His undercover officers are instructed to go in and order a beer, he explains, not pretend they are going to eat: “We don’t try and trick them. If they tell the officer they need to order food with that beer, they are in compliance and we leave them alone.”)
After Ferrer gave the signal, a team of six Miami police officers in black T-shirts, weapons holstered on their hips, along with two uniformed officers, burst into the restaurant. According to Bercel, they stormed through the place, searching every cooler and cabinet, interrogating customers, snatching receipts off tables, even peering into one customer’s to-go box.
“It was ridiculous,” says Alex Rodriguez, a neighborhood resident who was sitting at a table with a friend. “It looked like the SWAT team was coming into the restaurant.” It was Rodriguez’s to-go box the officers inspected. “It made me feel like a criminal,” he says.
One officer set up a laptop computer on a table. This prompted an outraged customer, who was apparently familiar with arcane municipal laws, to tell police they couldn’t have more than two officers on the premises and they weren’t allowed to disrupt business, Bercel recounts. The police decided to wait outside.
The undercover officer signed an arrest warrant, and police gave Bercel a notice to appear in court.
A month later Bercel sat in the courtroom of Judge Shirlyon McWhorter. “She read my name, read the details, and said, ‘Dismissed,’” Bercel recalls. “All I had to do was stand up.”
Bercel still had to go before a code-enforcement-hearing special master to contest his $500 fine. He argued that the 60-to-40 food-to-alcohol rule does not stipulate it must be on a per-person basis, just on a daily basis. “As soon as I said that, the person representing code enforcement said, ‘You’re honor, we have to amend that,’” Bercel says. The special master still fined Bercel, but cut the amount in half to $250.
“They’ve got a flawed law on the books,” fumes Terminello. “But what makes it worse is their enforcement mechanism.”
For Bercel, the law has created confusion and left him feeling the city is not on his side in his effort to build a successful business in a forlorn part of town. “Basically, I’m sticking my neck out serving someone just a taco with their beer. I mean, what constitutes a meal?” he asks. This is not how he envisioned his restaurant. “It would be nice for someone to be able to come in and have a beer after work, or a glass of wine with their salad,” he sighs.
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