Since our last installment, when Vinny Mirabile tried to have me arrested for supposed "harassment" and "trespassing" for, variously, sending him an email with a few questions and standing on the sidewalk near his store, there have been two notable developments: the City Code was amended as a result of our reporting and Vinnie "hired" a lawyer to plead his case to City officials.
Before getting into that, by way of a backgrounder on the City Code as it pertains to outdoor cafes/dining, we want to share a recent communication from City Hall.
Lisa Davis, the Business Ambassador for the City of New Rochelle, sent out a newsletter this spring to business owners (which would include Vinny Mirabile), detailing the requirements to "provide outdoor seating for their customers or to beautify their storefront by putting out planters or benches".
She writes, "The City requires permits for anything placed on the public sidewalk so we can ensure the safety of pedestrians and customers".
For a Sidewalk café seating area on public property), select the Department of Public Works application at http://www.newrochelleny.com/725/Frequently-Used-Forms-and-Applications. Select Street Opening as the type of permit. After submitting the online application you are required to provide copies of your liability insurance naming the City of New Rochelle as a certificate holder, workmen’s compensation insurance plus a sketch of your storefront including dimensions and placement of items to be placed outside. Fees are determined by the size of the space and quantity of seats. You will be notified by the Department of Public Works when the permit is available for pickup. Details are in Chapter 267 of the Code of the City of New Rochelle regarding sidewalk cafes.
EDITOR'S NOTE: The requirements information is drawn from the Public Works Permit which incorrectly states applicants need provide proof of workmen’s compensation insurance. Also, fees WERE determined by the size of the space until 2014 but that changed to quantity of seats after 2014.
If you want outdoor dining on your own property, whether it is on a backyard patio or in front of the building on private property, you require a permit from the Bureau of Buildings. Visit http://www.newrochelleny.com/725/Frequently-Used-Forms-and-Applications and select Building Permit to continue. Depending on your location, outdoor dining may require a special permit from the Zoning Board. See Chapter 267 plus section 331-95 of the New Rochelle City Code for more details.
The City has a new ordinance requiring permits for sidewalk planters and furnishings. All planters, benches, bike racks or other decorations placed on the sidewalk require a permit through Department of Public Works and approved by the Municipal Arts Commission. Visit section 270-25 for more details.
Section 270-25 Sidewalk Planters and Furnishings was added to the City Code on March 28, 2017 by Ordinance Number 58-2017, largely in response to a dispute involving planters installed by Jim Killoran in front of the Habitat for Humanity of Westchester Re-Store located at 659 Main Street.
During a legal review by the City, spurred by our reporting on Cousins Cigars, the City concluded that in order to avoid any confusion with Section 267, the law on Sidewalk Cafes, language in City Code Section 270-25 (the new Planter law) needed to be changed to refer back to a Definition in Section 270-2 for the term "Furnishing Zone", and that as this definition included a reference to "seating furniture, extended outdoor dining areas or similar items" which conflicted with Section 267 that too needed to be amended.
Accordingly, last week, the New Rochelle City Council amended the City Code. On July 18, 2017, the New Rochelle City Council voted to unanimously approve Resolution 151 which makes two amendments to the City Code.
First, to refine the definition of the term "Furnishing Zone" described in Section 270-2 by removing the phrase "seating furniture, extended outdoor dining areas or similar items".
FURNISHING ZONE (before)
The Furnishing Zone establishes an area for the placement of parking fee meters, street signage, streetlighting, bike racks, refuse receptacles, street trees and bioretention areas, planters, transit stop waiting and enclosure areas, seating furniture, extended outdoor dining areas or similar items.
FURNISHING ZONE (after)
The Furnishing Zone establishes an area for the placement of parking fee meters, street signage, streetlighting, bike racks, refuse receptacles, street trees and bioretention areas, planters, transit stop waiting and enclosure areas.
Second, to replace the term "street furnishing" in Section 270-25 with the defined term "furnishing zone" with explicit reference to Section 270-2.
BEFORE: "Any private party wishing to place a planter or street furnishing upon a public sidewalk shall submit an application to the Department of Public Works containing the information requested thereon."
AFTER: "Any private party wishing to place a planter or other furnishing zone items upon a public sidewalk shall submit an application to the Department of Public Works containing the information requested thereon."
With all of this in mind, we are now in a position to best consider Vinny's "legal arguments" put forth to justify his opinion as to why his table and chairs setup in front of Cousin's Cigar & Hookah Lounge is legally permissible in New Rochelle.
Vinny initially contended that his business was not covered by the Sidewalk Cafe Permit law because the area in front of his store is "private property" and so he could do whatever he wanted in that area.
We are unaware of any basis in fact for his claim that the area in front of his store is private property. A review of old maps and building department records by Talk of the Sound does not indicate any privately owned area in front of 245 Main Street. Vinny has yet to produce a land survey that shows what he claims and if he had one he would have presented it by now. There is just a public sidewalk, to which Vinny has no more claim than anyone else which is to say none. You can even stand on it and take photographs.
Even if his claim were true, he would appear to be arguing that his store, and any area associated with it, is "private" and so would not be subject to ANY law at ANY level of government -- an independent nation operating under its own laws.
King Vinny, ruler of VinnyLand!
By this ludicrous argument, Vinny could expand his "cafe" to include a stripper pole and hire exotic dancers to perform, set up a tattoo parlor, even sell drugs and alcohol to 10-year olds so long as all of this took place in the area where he has set up tables and chairs in front of his store.
Needless to say, the City did not accept this argument. And so ends the reign of Vinny the Great.
Even if he had set up his "cafe" on private property, it would not mean he was not required to obtain a permit only that he would have needed a different kind of permit -- a Building Permit (and possibly Zoning Board approval) instead of a Sidewalk Cafe Permit.
Undeterred, Vinny next argued that because he was NOT a restaurant he was exempt from the Sidewalk Cafe law because that law only applies to restaurants. That is a bit convoluted, even for Vinny. The City Code states, somewhat inelegantly, that only restaurants are eligible to obtain a Sidewalk Cafe Permit in New Rochelle. Cousins is not EXEMPT from the law it is INELIGIBLE for a permit under the law. The word "cafe" in the term "Sidewalk Cafe Permit" ought to be the tip-off.
At his meeting at City Hall on Wednesday, Vinny's lawyer reversed course, arguing that Cousins Cigar & Hookah Lounge IS a restaurant. This latest twist is predicated on the dubious claim that because Cousins serves microwave popcorn and sells packages of cookies it is a restaurant.
By this logic every gas station mini-mart, drug store and deli is a "restaurant" -- clearly not the intent of City Council.
Not surprisingly, the City was not buying this argument either.
Vinny's lawyer told City officials that Vinny would comply with the law but would immediately apply for a Sidewalk Cafe Permit. The table and chairs were not outside in front of Cousins at 5 p.m. the following day and this has remained the case ever since according to several sources (if you see otherwise let us know). The good news is that Vinny has now effectively admitted that his table and chairs set up was illegal all along and so that he has violated the law every year since 2008. It is worth noting that this covers the period between 2008 and 2011 when he was an active-duty Detective in the New Rochelle Police Department.
The City made clear to Vinny and his lawyer that a Sidewalk Cafe Permit application from Cousins would be unwelcome. Expect Vinny's application will be rejected, setting up a possible Article 78 lawsuit in New York State Supreme Court.
Such a lawsuit would appear to an exercise in futility because even in the highly unlikely event that Vinny were to prevail in court, the City Council could (and almost certainly would) immediately amend the Code, possibly to exclude businesses that sell tobacco products.