Easing Providence restaurant owners’ fears that their outdoor tables would go unused this season, the R.I. Supreme Court has granted a stay that will allow the city to issue outdoor dining licenses right away, so long as it holds a hearing within 60 days and notifies abutters.
The stay, granted March 26, is being greeted with relief by the hospitality industry, but it may not change the long-term outlook: After years of granting the seasonal licenses without neighbors’ input, Providence is going to have to tighten its procedures.
How big a deal that is depends on whom you ask. A. Michael Marques, director of the R.I. Department of Business Regulation, said every other community in Rhode Island already notifies abutters before granting an outdoor license, and it works fine.
But Dale J. Venturini, president and CEO of the Rhode Island Hospitality and Tourism Association, said al fresco dining across the state could be negatively affected.
“This is not a Providence issue,” she said. The repercussions could be far-reaching, she said, and “our state depends on that outdoor dining.”
State law requires that before any liquor license is granted, notice of the application be published twice in a local newspaper – including once at least two weeks in advance of a hearing on the matter – and the property owners within 200 feet be notified by mail.
The law also says that if the owners “of the greater part of the land” within that 200-foot radius object to the granting of the license, it must be denied.
The law does not address what happens if, say, you add a second floor or a deck and want to serve liquor there as well. But because liquor licenses are issued for specific premises, with a floor plan attached, DBR regulations require cities and towns to hold formal hearings – as with new applications – on requests to expand or change the premises.
That’s how it’s done in Newport, said City Clerk Kathleen M. Silvia. If a bar or restaurant applies for a license and includes an outdoor area in the floor plan, it’s approved with the license from the start. If there’s a request for a new outdoor area, it’s treated like a new application, with the full notifications, and the outdoor area then becomes part of the licensed premises.
Even sidewalk cafés are treated that way, Silvia said – though because it’s public property, the city also charges restaurants a $300 fee each year.
Cranston City Clerk Maria Wall described a similar process, though there is no separate charge for use of public property. Pawtucket also treats outdoor areas as part of the licensed premises, with notifications for changes, said Deputy City Clerk Michelle Hardy.
Providence, however, always has done it differently. Instead of licensing outdoor areas with the rest of the premises, the city requires restaurant owners to apply every year for a seasonal permit and pay $135 – whether the outdoor area is on private or public property.
Richard Aitchison, license administrator for the city, said that of the 150 to 170 temporary seasonal license Providence grants per year, about 60 percent are for patios on private property, and the rest are for sidewalk tables. All are treated the same, he said.
The reason for that approach, Aitchison said, is that businesses’ outdoor uses can change, and also because “we have more control over it that way.”
The issue came to a head after a fire in 2004 at Club Monet led The Providence Journal to ask the city to rescind the club’s seasonal license on grounds that the newspaper, whose production facility abuts the club’s patio, had not been notified of the application.
When the city denied the request, the paper sought an appeal before the DBR, which sided with the Journal. The city appealed in Superior Court, which upheld DBR’s decision.
The city appealed to the R.I. Supreme Court, saying that the DBR regulations don’t make it clear that the “heightened and onerous requirements” for a new license should be applied to “a routine and heretofore ministerial process” for temporary permits.
“Only a permanent expansion” does that, the city argued in a pre-briefing statement. In an interview, Assistant City Solicitor Michael Calise said that contrary to the DBR’s contention, other cities also take a less formal approach to outdoor permits.
“If there were state law on point that was clear, he said, we wouldn’t be in court.”
Aitchison added: “It’s a mixed bag if you call the cities and towns. … Some do [the hearings] with advertisements and notices. … We always had a public hearing – it’s just that the issue came forward with no notice or advertising.”
But Marques said even one-day liquor licenses – say, for a street fair – require proper notifications, and Providence was so adamant about not having any notifications that there was never an opportunity to discuss possible compromises.
Providence also could get around the problem by handling outdoor permits the way Newport does, Marques said, but “I think Providence felt that if they made it a part of the permanent license, they’d have to give up the money that they get.”
Aitchison said that if the Supreme Court rules against the city, Providence might take that approach, allowing applicants to go through the approval process once.
Meanwhile, Providence restaurateurs may be getting the worst of both worlds.
Gianfranco Marrocco, owner of Mediterraneo, Caffe Dolce Vita and Geppetto’s on Federal Hill, said he is having to obtain, through a private contractor, radius maps for each of the restaurants, at a cost of $250 apiece, plus he expects to have to pay $350 for each ad.
As he sees it, the extra costs are just one more hit to his pocket.
“It’s one thing after another,” he said. “What else are they going to do? Put us out of business.”
Marrocco also is not too thrilled by the prospect that opposition from one property owner or group of property owners with 50.1 percent of the property within 200 feet of his restaurants could keep him from serving customers outside.
“It’s so ludicrous,” he said. “We’re [only] putting tables and chairs outside.”
And Marrocco isn’t the only business owner with that view.
State Rep. Timothy Williamson, D-West Warwick, is hearing the same sort of complaints from his constituents.
Which is why Williamson last month introduced bill H-6191, which would eliminate the requirement that an advertisement or notice be given when an applicant applies for a temporary seasonal expansion of a liquor license.
“I don’t think it’s fair to go back on all the existing licenses in the state and make them go through the hearing process all over again,” Williamson said. “The licensee … already complied with due process.”
In regard to the bill, Marques said, DBR’s position is “I don’t care.”
“We enforce the laws in the state as they are presented or modified,” he said. “We don’t take a position that it’s wrong or right. … ”
The Supreme Court will hear the case during its upcoming term starting in October, Calise said.
