Ultra Music Festival - Downtown Miami - 2017

Photo by and from Greater Miami and the Beaches - www.miamiandbeaches.com

After a disastrous one year stay on Virginia Key, Ultra returning downtown

In a stunning turn of events from the unanimous 5-0 vote in 2018 that ejected Ultra from Bayfront Park in downtown Miami and forced it onto Virginia Key for a disastrous one year stay that resulted in Ultra announcing it was leaving the city of Miami, the city commission voted 3-2 to return Ultra to Bayfront Park in March of 2020.

Ultra Music Dowtown Miami - 2017

Photo by and from Billboard.com 

The highly contentious vote was made after hours of public comment and amid accusations that the city manager was not properly representing the city’s interests in the negotiations, and that commissioners were voting in favor of the move downtown as a result of campaign contributions from Ultra.

Commissioners Keon Hardemon, Willy Gort, and Manolo Reyes voted in favor. Commissioners Joe Carollo and Ken Russell, in whose District 2 Ultra takes place, voted in opposition.

Commissioner Russell bitterly complained that it was unfair that commissioners were forcing Ultra onto the voters in his district against his wishes and asked “can we move Ultra from district to district each year?”

This caused Commissioner Reyes to loudly retort “Commissioner Russell, you should have thought of that when you voted to force the soccer stadium deal on Commissioner Gort’s district” in reference to Commissioner Russell’s vote in favor of the no-bid takeover of the Melreese Golf Course to build a stadium and over one million square feet of retail space against the wishes of Commissioner Gort.

In the end, the move back to the downtown home it occupied from 2001 to 2018 would not have been possible without a controversial change in legal opinion by city attorney Victoria Mendez to reduce the voting requirement for approval of revocable licenses from 4/5 votes to 3/5 votes.

Mendez undid years of legal precedent and her own longstanding legal advice, as approvals of licenses---from the boat show to grand prix auto races---had always required 4/5 votes.

The city structures these deals as revocable licenses, rather than leases, in order to avoid the increased community participation and competitive bidding required for lease agreements under the city charter.

This is a legal fiction, as the agreements clearly constitute leases under Florida law. Examples of licenses include non-exclusive, temporary use of space such as a perfume kiosk at a mall, or a food truck at a gas station… not the exclusive use of city real estate like the boat show or Ultra which prevent the public from accessing park space for months at a time.

All previous license agreements with Ultra had been approved by a 4/5 vote. In fact, in connection with the move to Virginia Key, Mendez had explained to the commission that a 4/5 vote was “just because other types of events may want to come here, that is why we’re doing it pursuant to our Code; we’re doing a four-fifths.”

Defending against accusations that her change in legal opinion was the result of political pressure to make the return of Ultra downtown happen in the absence of four votes, Mendez at first cited the Brickell Homeowners v. City of Miami case (editor’s note: a case that was brought by the author of this opinion summary) that ended in Ultra voluntarily terminating the license for Virginia Key, for support of her position.

However, Mendez changed course after media reports showed that no such decision regarding the required vote had ever been made in my, or in any other, case.

Mendez has since told Glenna Milberg at WPLG TV Local 10, that the voting requirement was lowered because the Ultra agreement “is a revocable license agreement which would not require a procurement.”

Mendez did not explain how this is different than the previous Ultra license agreements (or the boat show or grand prix license agreements) that required a 4/5 vote.

“This change is directly contrary to the city’s precedent,” Sam Dubbin, the attorney for Downtown Neighbors Alliance (DNA), said.

It was a bitter defeat for Amal Solh Kabbani, President of DNA, after having led the neighborhood coalition to successfully eject Ultra from Bayfront Park two years ago.

DNA members dressed in white shirts emblazoned with: “Save Bayfront Park” and spoke against Ultra at the commission meeting.

“We are extremely disappointed that the majority of the commission ignored the catastrophic damages that Ultra causes residents of downtown and did not require Ultra to take the proper measures to protect against dangerous noise levels that are proven to be harmful to our health,” said Kabbani.

“When the city commission approves a festival that generates 300 times the levels of base frequency noise inside our homes allowed by New York City, then something is seriously wrong.”

Litigation by DNA is likely, as they asked a judge to invalidate the license agreement to a lease that requires competitive bidding. They will also likely sue the city on the grounds that the high volume is an illegal nuisance and a violation of residents’ rights to be free from unnecessary and excessive noise.

David Winker, ESQ

David Winker is a local attorney involved in litigation representing the Brickell Homeowner’s Association in Ultra’s move to Virginia Key, the proposed Miami Freedom Park at Melreese Golf Course, the Magic City special area project in Little Haiti, and other historic preservation and transportation related issues.