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Long Live The Pastrami That's As Good As Katz's Deli

Mon Sep 19, 2016 by on Florida Law News

The following Sun Sentinel  article  is republished with approval including excerpts from Roy Oppenheim, Oppenheim Law. 

arbitration, pastrami, food fight

Nothing is Better Than a Good Food Fight and a Legal Fight: Oppenheim Law Keeps the Pastrami Alive at Smoke BBQ  in Ft. Lauderdale

While Smoke BBQ Fort Lauderdale was attracting big crowds after Michael Mayo, dining critic raved about its smoked pastrami sandwich last month, co-owner Scott Kennedy was sleeping overnight in the restaurant because of a percolating business dispute that threatened to suddenly shutter the eatery.

The pastrami drama landed in a Broward courtroom this week, as Kennedy told a judge how he was awakened early on a Sunday morning and had to ward off a locksmith sent to change the locks by a feuding partner, Wijai “Song” Ketsuwan, who wanted Kennedy and co-owner Steve Chin out on Aug. 27.

“There’s a panic that sets in,” Kennedy said Wednesday in sworn testimony. “We’re profitable. We have employees. The idea of shutting the restaurant down was ludicrous.”

On Aug. 26, the day before Kennedy thwarted the lock-changing attempt, Smoke BBQ Fort Lauderdale had its highest grossing day since opening last December. There was a sudden 50-percent increase in sales that Kennedy attributed to a story I wrote that week proclaiming Smoke’s pastrami sandwich as good as famed Katz’s Deli in New York.

Michael Mayo, Sun Sentinel

Michael Mayo, Sun Sentinel

At this week’s emergency hearing, Broward Circuit Judge Marina Garcia Wood ordered the feuding parties into mediation by Sept. 24, and ordered restaurant operations to continue without interference until the case is resolved. Lawyers for both sides now say they are hopeful for a resolution that will keep the business operating in the same location, 3351 NE 32nd St. — and keep the pastrami sandwiches coming.

“This whole thing has been very stressful,” says Kennedy, who slept in the restaurant five straight nights at the peak of the uncertainty.

“There’s nothing worse than a food fight,” says Roy Oppenheim, an attorney for Kennedy and Chin.

It all began when Kennedy and Chin, who also own Smoke BBQ in Delray Beach (which doesn’t offer pastrami), made partnership and management agreements with Ketsuwan to bring Smoke BBQ to the vacant space on NE 32nd Street.

Pastrami

Ketsuwan, a restaurateur who owns Sushi Song and other ventures, controls the lease for the Smoke BBQ property and also holds a beer/wine license for the business, near Galt Ocean Mile.

Instead of paying rent, Kennedy and Chin agreed to pay Ketsuwan 20 percent of the restaurant’s net profits. Kennedy testified that Ketsuwan wasn’t happy with his share in the early months after the restaurant opened, and things soured after that. Ketsuwan didn’t appear at this week’s hearing to give his version of events, and his lawyers said he was unavailable to comment because he’s busy with a new restaurant about to open on South Beach.

In June, the parties met to hash out a reworked deal that would entail a long-term lease instead of profit-sharing. But in early August, Kennedy and Chin balked at the proposed lease because of a demand for an upfront payment of $25,000. Then, on Aug. 12, Ketsuwan’s attorney emailed Kennedy saying Ketsuwan was no longer interested in a lease and he wanted them off the property by Aug. 27.

I had no idea any of this was happening when I ate my first pastrami sandwich at Smoke on Aug. 9 — I went in anonymously and unsolicited. I returned on Aug. 18 to do a formal interview and paid to sample another sandwich.

My pastrami praise was published online Aug. 23. That evening, Kennedy and Chin’s company filed a lawsuit against Ketsuwan’s. I didn’t learn of the lawsuit until early September when I was contacted by Ketsuwan’s law firm. Kennedy and Chin also had filed a motion for emergency injunctive relief after the lock-changing attempt.

Kennedy says he’s trying to protect the growing business and the $75,000 worth of equipment and improvements that he and Chin have put into the restaurant.

The ongoing legal drama is enough to give Kennedy — and pastrami lovers — indigestion.

Kennedy says temporarily shutting or moving the business would disrupt Smoke’s momentum, and his lawyers hope Ketsuwan will agree to accept a lease and dissolve the partnership.

“I think this can get resolved,” Judge Garcia Wood said at the hearing. Addressing Ketsuwan’s attorneys, she added: “If your client wants to get out [of the partnership], let him get out. But you’re not going to shut this business down.”

mmayo@southflorida.com, 954-356-4508. Follow his food adventures on Instagram: @mikemayoeat

 

Tags: Arbitration, defense attorney, pastrami, property rights, South Florida Law Blog, trials