Judge throws out lawsuit by North End restaurant owners over city's outdoor-patio restrictions, says mayor wasn't out to get Italians

A federal judge ruled today North End restaurant owners simply had no case against Mayor Wu for first ordering fees on North End restaurants that wanted to use city sidewalks and curbs for outdoor dining and then banning private patios on public ways in the neighborhood.

The restaurant owners said this violated their constitutional rights and was proof she was prejudiced against Italians.

But in a complete rebuke to the owners, US District Court Judge Leo Sorokin said regulating outdoor dining is a perfectly legitimate function for city government, there was no proof that Wu singled out the North End because she hates either Italians or the neighborhood, and that, in fact, by stressing the neighborhood's "uniqueness" in their lawsuit, the restaurant owners actually made the city's case that the North End required different regulations than other neighborhoods.

First, the fees and eventual termination of on-street dining do not infringe upon an express or fundamental constitutional right, such as free speech or the free exercise of religion. Second, Plaintiffs have not stated a colorable claim that they were singled out based upon their race, ethnicity, or national origin. Numerous restaurants owned by people of all races, ethnicities, and nationalities (including white Italian Americans) were able to offer on-street dining under the City's policy. Finally, Plaintiffs have not plausibly pled that the North End is similarly situated to other neighborhoods where on-street dining was permitted. The City regulated on-street dining by neighborhood, just as it regulates many other matters by neighborhood, and Plaintiffs themselves emphasize the uniqueness of the North End. In any event, Plaintiffs have also failed to plausibly allege that the different on-street-dining policies in the North End lacked a rational basis or otherwise sprung from bad faith or a desire to punish the Plaintiffs.

In 2020, as the pandemic raged, the Walsh administration created rules that let restaurants across the city apply to use sidewalks and parking spaces along the curb for outdoor dining. Even as vaccines became available and the health effects of the pandemic waned, the city continued the program. But in 2022, now under Mayor Wu, the city imposed fees on restaurants in the North End because of what they said were the small, crowded neighborhood's unique constraints involving trash collection, rodent control and the need to rent space in nearby garages for residents who could no longer park in spaces now taken up by tables and chairs. Then the city just banned the use of public ways for outdoor dining in the North End completely, even as it continued to allow the practice in other neighborhoods.

A group of four North End restaurants sued, claiming it was all part of Wu's hatred of white Italian men in particular - even though some of them were actually from Argentina and one was a woman - but their suit fell apart and they withdrew it.

Then, in January of this year, a larger group of restaurant owners and the North End Chamber of Commerce filed a new suit, this time claiming Wu's animus was directed at white Italians in general, the proof of which they said included her designating Indigenous People's Day to be held on the same day as Columbus Day and a dumb joke she made about removing snow, which is white, at a St. Patrick's Day breakfast - a place where politicians have stood up for decades and made dumb jokes.

The group charged that complaints from the North End Waterfront Neighborhood Association about quality-of-life issues, such as increased traffic congestion, should have been irrelevant because the group's leaders were all a bunch of rich people living in waterfront condos.

Sorokin began his legal argument by first saying that even aside from all the other issues, he would have dismissed the restaurant suit because it was simply far longer than allowed by federal court rules, specifically, one known as Rule 8:

"Unnecessary prolixity" fairly describes the [restaurant/chamber complaint]. It contains well over 700 numbered paragraphs spanning over 200 pages. It is neither "short" nor "plain." This is one type of prolix pleading against which Rule 8 safeguards. ...

Here, Plaintiffs summarized several meetings and communications, included photos of those meetings and of an electric sweeper, provided a "brief" history of Italians in the North End, repeated Mayor Wu's statement at the St. Patrick Day breakfast five times, quoted several seemingly random "residents," inserted multiple characterizations of "legendary" restaurants and "jaw dropping" fees, described the media's response to the on-street-dining ban, omitted virtually no detail of the entire course of events, and much more. The Court has considered whether each or even many of these assertions are necessary to advance the causes of action set forth in the [complaint]; they are not. To require the City to answer the [complaint] as presently drafted imposes an unfair and unnecessary burden - one of the harms Rule 8 seeks to prevent. It also imposes a significant burden on the Court as it attempts to sift through the allegations of the pleading. Accordingly, for this reason alone - failure to comply with Rule 8 - the Motion to Dismiss is ALLOWED.

Sorokin then got into the restaurant owners' specific issues.

No, he said, the US Constitution does not give them the right to use public streets for private profit: "Such a right is neither expressly created in the Constitution nor fairly inferred from any provision thereof." Nor do they have a "property interest" in curbside dining; and removing permission for it does not "shock the conscience."

No, he wrote, the policy does not discriminate against Italians, white or otherwise, because Italian restaurant owners outside the North End were not barred from running patios on public sidewalks:

Plaintiffs' factual allegations fail to plausibly allege a discriminatory purpose by way of a pattern of action explainable only on grounds of national origin. Plaintiffs fail to identify a pattern of conduct historically targeting the North End, Italian restaurants, or "white Italian Americans." At most, they allege shifts in policy in 2022 and 2023 affecting the North End: eliminating the fee waiver for outdoor dining, shortening the outdoor-dining season, and eventually no longer allowing on-street dining. These changes were not "unexplainable on grounds other than race [or national origin]," but rather justified, as Plaintiffs allege in their SAC, by the unique impacts of the program on the North End. The policy also applied uniformly without regard to the identity of the owner or the type of food served by the restaurant. With respect to the "degree of disproportionate racial effect," the very policy Plaintiffs allege harms "white Italian Americans" or "Italian restaurants" actually benefits several Italian restaurants (and likely restaurants owned by those of Italian descent) that enjoyed on-street dining outside the North End. This favorable treatment undermines any inference of discriminatory purpose or intent against the “class” that Plaintiffs purport to allege. ...

Plaintiffs also fail to allege legislative or administrative history that would support a claim of discriminatory intent. Plaintiffs offer no facts supporting the inference that the City imposed the challenged regulations because many restaurants in the North End serve Italian food or are owned by those of Italian heritage or white people. A joke, perhaps about white people, made by the Mayor at the St. Patrick's Day breakfast hardly suggests animus against Italian Americans. Similarly, the designation of Indigenous People's Day is not evidence of animus.

No, the judge continued, the mayor did not discriminate against the North End - and here he used the plaintiffs' own assertion, that the North End is unique, against them.

The other neighborhoods Plaintiffs cite are not similarly situated. None of those neighborhoods, to the eye of "a prudent person, looking objectively," are "roughly equivalent" "in all relevant respects" to the North End, nor have Plaintiffs pled plausibly "an extremely high degree of similarity." The North End, as characterized by Plaintiffs in their own pleading, is an exceptionally dense neighborhood, with the highest density of restaurants in the state, located adjacent to the Sumner Tunnel and the North Washington Street Bridge construction project. Plaintiffs allege that the restaurants in the North End should be compared to other restaurants in other neighborhoods of Boston. But the different treatment Plaintiffs describe and complain of concerns the neighborhood of the North End. ("The City's blanket refusal to review and approve any application for an on-street outdoor dining license for restaurants in the North End is contrary to law . . . "). The most salient comparator, then, would not be other restaurants, but other neighborhoods in Boston. ...

But even if the Court were to compare restaurant to restaurant, Plaintiffs cite certain relevant aspects, such as "width of the streets" or the "restaurants' location in residential buildings," while averring that restaurants outside the North End are similarly situated. That is not a valid application of the law. Plaintiffs cannot pick and choose the aspects that would make the restaurants similar; they must contend with all aspects relevant to the regulation, including the neighborhood in which the restaurant is located. ... This requires comparing neighborhoods, as that is a relevant aspect pertaining to the policy. Plaintiffs allege that the justification of the policy was that the "North End is different from other neighborhoods because of the unique impacts of outdoor dining on the quality of residential life." Beyond that, they have not identified any other neighborhood with similar relevant aspects pertaining to restaurant density, residential quality of life concerns, and proximity to construction projects, that would make a valid comparator. Therefore, the restaurants in the North End are not similarly situated with restaurants outside the North End.

No, he wrote, city officials did not act maliciously, and the plaintiffs really should have left a judge out of their whining about a city policy they didn't like:

Plaintiffs do not advance allegations establishing that the City bore an affirmative intent to harm them. They do state that the alleged "quality of life" justification for the different treatment was baseless (and therefore pretext masking bad faith), because the outdoor-dining program did not actually cause the issues relating to rats, rodents, traffic congestion, accessibility problems, and trash afflicting the neighborhood. Even accepting this as true (i.e., assuming that outdoor dining did not cause all of these issues), the [complaint] alleges something materially different. The statements of and decisions by the City set out in the [complainy] allege that the City concluded on-street dining exacerbated, rather than created, these problems, and that this conclusion led first to its decision to limit on-street dining and then to eliminate it altogether. While Plaintiffs may argue that the City could have addressed these concerns in other ways, that is not before the Court to decide, nor does it convert the rationale to one made in bad faith. The City’s weighing and prioritizing different considerations yielding a decision different from the one Plaintiffs might prefer is not evidence of bad faith or an attempt to harm or injure Plaintiffs. ...

Plaintiffs have alleged the Mayor decided the North End was a unique neighborhood (a point on which Plaintiffs agree), and that various aspects of this "uniqueness" caused the Mayor to first impose a fee and then eliminate on-street dining. Whether this decision was the "best policy" or the "wisest" decision is not for a court to decide.

And so, the judge concluded, the restaurant owners wound up making the city's case, not their own:

The Court need not imagine a set of facts that would provide a rational basis for the City's policies because Plaintiffs have already supplied them. To justify the fees imposed on Plaintiffs, the City considered the "unique impacts of outdoor dining on the quality of residential life," such as "trash, rodents, traffic, and parking problems." To justify the ban on on-street dining in the North End, the City cited "the North End's high density of restaurants and foot traffic, narrow streets and sidewalks, resident parking scarcity, and other related considerations." The City also pointed to the "scheduled closures of the Sumner Tunnel and continued congestion around the North Washington Street Bridge construction project." These explanations more than suffice to show that the reasons underlying the policies were rationally related to legitimate government interests. Plaintiffs do not challenge the accuracy of the concerns; that is, they do not allege that the construction projects or the rodent problem did not exist. Instead, Plaintiffs argue that they were not the real reasons the City shifted its policies. However, the law does not require the City to "prove" the legitimacy of these justifications, only that the reasons it provided rationally related to valid government interests. In addition, the City is entitled to proceed one step at a time in addressing public concerns. ... While these considerations may not be entirely absent from other neighborhoods, Plaintiffs' own allegations establish that the City has sufficiently articulated a rational basis for treating the North End differently. These reasons are neither arbitrary nor irrational.