Judge says she's inclined to toss North End outdoor-patio suit, but gives restaurant owners another chance to explain why she shouldn't

A federal judge yesterday told the owners of five North End restaurants she's inclined to dismiss their suit over a $7,500 city fee to use public sidewalks and streets for outdoor patios this summer, but that as soon as she files a written document stating that, she'll give them two weeks to tell her why the city isn't correct that they have no legal basis for the suit.

US District Court Judge Indira Talwani made her comments at a hearing yesterday on a motion by Boston attorneys to toss the suit for several reasons, among them that any possible harm was done to the restaurant corporate entities, but the owners sued as individuals, so they have no "standing" to bring a federal suit. The city also argued that even if that were not the case, the city's fee for using public land for private patios "is rationally related to its legitimate interest in defraying the costs associated with, among other things, the need for increased rodent control, street cleaning, and licensing enforcement in this unique and densely-situated area of the City, as well as lost parking for City residents."

Although Boston continued its pandemic-inspired program to let restaurants use sidewalks and streets for summertime patios, it only decided to charge a fee in the North End, citing the unique constraints of the tightly packed neighborhood.

Jorge Mendoza, owner of Vinoteca di Monica on Richmond Street, Patrick Mendoza, owner of Monica's Trattoria on Prince Street, Carla Gomes, owner of Antico Forno and Terramia Ristorante, both on Salem Street, and Christian Silvestri, owner of Rabia's Dolce Fumo on Salem Street, sued Boston in May over the fee, alleging violations of their due process and equal protection rights and their rights under the Commerce clause of the constitution. are seeking $1.5 million to make them whole.

Should they lose this suit, Jorge Mendoza and Gomes would still have a bite at the city through a separate lawsuit - brought by the same lawyer - over the legality of the city's now canceled requirement that people show proof of vaccination to gain entry to many public places, including restaurants. That suit, whose plaintiffs also include one of the leaders of the group that spent weeks screaming outside Mayor Wu's house - seeks $6 million per person in damages.

City's motion to dismiss (171k PDF).
City's memorandum in support of its motion (259k PDF).
Restaurant owner's initial opposition to city motion (1.2M PDF).