Industry: Hospitality & Food Services

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Waterkeepers

When it comes down to the Constitution there are no holds barred.

The sidewalk cafés of Lincoln Road are a staple of the iconic pedestrian thoroughfare located within the City. The ability to offer outdoor dining on the City’s sidewalks is essential to dozens of the businesses located on or near Lincoln Road. Should these businesses be stripped of their ability to provide outdoor dining, the restaurants would go out of business effectively creating mall vacancies on Lincoln Road and over a hundred employees working for these businesses would lose their jobs. For that reason, the City’s issuance and renewal of sidewalk café permits, the licenses that allow these businesses to operate in the City, is central to their businesses.

In March 2021, the City amended its ordinance governing permits, significantly modifying the permitting process for both renewal of and initial applications for authority to operate sidewalk cafés. The new process contained a list of “criteria” that that the City Manager, or its designee “shall consider” in determining whether an initial application or renewal application for a sidewalk café permit will be approved or denied. The ordinance did not provide any specific guidelines on how the adoption of the new “criteria” would impact the decision to approve or deny an application. Put another way, under the new process, the City could target and intentionally discriminate against otherwise law abiding and legitimate businesses.

When Tapelia’s and Ole Ole’s sidewalk café permits were denied, they hired MM&H to seek emergency injunctive and declaratory relief that the process was unconstitutional, both on its face and as applied. This Court agreed and issued a temporary injunction in December 2021 preliminarily finding the new process to be unconstitutional. The City appealed that order, but withdrew the appeal after it decided to amend the ordinance rather than continue to fight on appeal.

Urgent injunctive and declaratory measures were sought due to the belief that the procedure, both in its general form and specific applications, violated the constitution. The Court concurred with this stance and granted a provisional injunction in December 2021, initially determining the newly established procedure as unconstitutional. The City chose to challenge this decision through an appeal; however, it later opted to withdraw the appeal and instead revise the ordinance, discontinuing the appellate battle.