The Florida Carpenters Regional Council says the city trampled on their First Amendment rights when the union protested in front of The Loews Hotel. Photo by Michael Menchero

No Freedom of Speech on Miami Beach?
Union Protestors Claim Their First Amendment Rights Were Violated, File Lawsuit Against City

By Lee Molloy

For the past two months the Florida Carpenters Regional Council (FCRC) has been protesting at the Lowes Hotel at 1601 Collins Ave. The union, which represents carpenters and related craft persons throughout Florida, is upset with the wages being paid to carpenters remodeling the hotel – wages they say are not in line with “area standards.” FCRC Director of Special Projects Terry Darling says that the area standard for a carpenter in South Florida is $29 per hour with benefits.

However, according to the union, workers on the Lowes contract are being paid considerably less than the area standard.

“Our wage surveys indicated anywhere from $12 to $14, to $16 to $17,” per hour without benefits, Darling told The Lead. The reason for the discrepancy is that “the general contractor who is performing the remodeling work has hired subcontractors who do not pay area standards,” he said.

The general contractor remodeling the Lowes Hotel is Orlando based company Tatro Construction Co, who has hired US Walls and Ceilings as subcontractors to do the drywall work.

“The labor dispute is primarily with the drywall contractor,” Darling said.

According to Darling, in many cases, a general contractor hires a subcontractor that in turn hires independent contractors to do the actual work, which means that the original contractor does not have to pay workers compensation. In some cases the workers are even paid in cash to avoid paying taxes, insurance or workers comp, which many contractors believe is a “victimless crime,” he said.

“If you’re a legitimate contractor, and pay tax burdens and workers comp you can’t compete,” Darling said. “This kind of market is driving legitimate contractors out of business.”

According to the FCRC, picketing began outside of the Loews on June 19 with just two union employees holding aloft a banner reading, “Shame on Lowes – Labor Dispute.” A week later they passed out handbills to passersby, informing them of the dispute.

Eventually, however, the protest evolved.

Some of the protesters used battery-powered megaphones to further spread their message.

Responding to complaints by representatives of the Loews Hotel, City of Miami Beach Code Compliance officers began appearing at the demonstrations almost daily because of the use of the megaphones, according to a complaint filed with the U.S. District Court, Southern District of Florida on Aug. 6. The complaint alleges that the the City of Miami Beach violated the FCRC's First Amendment right to freedom of speech and Fourteenth Amendment rights of equal protection under the law.

Citing the city noise ordinance, Code Officer Jorge Rios issued a Notice of Violation and Fine to demonstrators on July 1 referencing “a protester with Bullhorn/Megaphone” being “unreasonably, unnecessarily loud.” A first violation carries a fine of $250.

As a result, Darling says he had a teleconference meeting with Assistant City Manager Hilda Fernandez on July 7 to discuss the issue, and the following day met in person with several code officers to come to an agreement on an acceptable volume level for the megaphones. According to Darling, it was agreed that the volume would be set at no greater than “4” before 11 a.m., and no louder than “6” thereafter.

“We were trying to get some degree of consistency,” Darling said. We had “nothing in writing, but we met with the supervisors and four of the officers who would be patrolling that area, [however] they did not have a way to objectively determine what was in bounds and what’s out of bounds.”

City code seems to do little to address how loud ‘too loud’ is.

“The ordinance does not reference decibel levels,” Greg Tindle, Director of the Code Compliance Division, told The Lead. “Rather, the ordinance makes ‘unreasonably loud, excessive, unnecessary, or unusual noise’ unlawful.” 

The union claims that over the course of the following two weeks, protesters continued to use the megaphones within the limits agreed upon by the city. However, on July 26, Code Officer Ken Verala issued protesters a second citation, which carries a fine of $1,000. Verala again cited the city noise ordinance.

The citations wouldn’t stop there.

On June 30, Code Officers Emmanuel Bastos and Greg Del Favero issued a third citation, and a $2,000 fine, to the demonstrators. This time however, the protest was taking place on the Baywalk behind the hotel.

City ordinance includes an exemption that allows for “live or amplified sound projecting east of the east property line from each property from … 15th Street to 73rd Street on the east side of Collins Avenue,” the ordinance reads. Furthermore, “this exemption shall only apply to noise that is received in that area located east of the violating property and between the north and south projections of its property boundaries.”

According to the filed complaint, the protester’s megaphones were turned toward the ocean, which is east of the property and therefore, they claim, is covered by the exemption. However, they allege that the code enforcement officers told them that the exemption only applied to the property owner.

“It would seem that there is some inconsistency with the application of the exemption,” Darling said. “What’s OK for the hotel is not OK for us?”

The FCRC is appealing all three citations before the Special Master, the city officials that judge disputes between the city and businesses or residents. A date for the appeals, or their court date for the case against the city, has yet to be set.

“We feel like the Lowes hotel has engaged in unlawful activity by continuously calling the police and code compliance in an effort to shut us down and restrict our rights,” Darling said. “They have even tried to solicit other businesses in the neighborhood to do the same thing.”

In the meantime the union will continue the fight.

“We are a catalyst for change,” Darling said. “We are going to start policing all those jobs along Collins Avenue, and if we find cash payments we’re going to let people know about it.”

Neither representatives of the Lowes Hotel nor the building contractors returned messages left by The Lead.

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