October 15, 2009|By Jacques Kelly | Jacques Kelly,jacques.kelly@baltsun.com
City inspectors in recent months have cited an Elvis statue in Canton, a restaurant's awnings in Hampden and Cafe Hon's pink flamingo as unlawfully intruding into public space, but a spokesman for Mayor Sheila Dixon said the cash-strapped city is not looking to balance its books by burdening small-business owners.
"This type of enforcement has everything to do with citizen complaints, public safety and liability issues - and nothing to do with revenue enhancement," said spokesman Scott Peterson. "We respond to inquiries and complaints of signage and other installations extending into the public right of way - as was the case with the flamingo."
When city inspectors told Cafe Hon owner Denise Whiting that she needed a permit for the large pink flamingo that hangs from the fire escape of her restaurant at 36th Street and Roland Avenue, she became just one of the most recent business owners to complain about overzealous permit enforcement. She takes issue with the city's contention that she will have to pay $800 for a permit because the bird, made out of chicken wire and a bedsheet, encroaches in the public right of way.
Patrick "Scunny" McCusker, an owner of Nacho Mama's in the 2900 block of O'Donnell St. in Canton, said he received a city citation during the summer and was required to remove a 6-foot wooden statue of Elvis that stood near his front door for many years.
"An inspector said my Elvis was impeding the public right of way," said McCusker. "I've collected 5,000 signatures to let Elvis leave the building."
McCusker moved the statue inside his restaurant rather than pay the fee.
Gino Troia, owner of Hampden's Grano Pasta Bar, said that after the city assessed him $2,866 for outdoor tables, chairs and projecting awnings, plus the annual $1,686 fee for the minor privilege permit, he decided to move his restaurant from 36th Street to nearby Chestnut Avenue in Hampden.
"Why should I pay all that money for my patrons to sit outside when people come up and throw all their trash in the outdoor cans?" he said. "I made a decision to move."
Whiting said she was surprised that she was cited for her flamingo because it has been hanging from the restaurant for about seven years. She contends that the bird is public art and she should not need a permit for it.
But city officials countered that public artwork is subject to zoning rules and enforcement. For example, the Man/Woman metallic statue at Penn Station had to be reviewed by several boards and commissions before it could be erected. And when the operators of the American Visionary Art Museum wanted to display oversize pieces outside their Key Highway location, they went before the City Council to obtain permission and paid a franchise fee.
Joe Kostow, an official of the city's Department of General Services, explained that many business owners pay minor privilege fees for signs that include ice cream cones, shoes and guns that intrude into the public right of way. "Depending on size, they pay anywhere from $100 to $1,000 annually," he said.
The city expects to collect $2 million from minor privilege permits this year, the same as last year, according to the city budget.
One exemption to the law are large exterior flowerpots that don't require a permit so long as they touch the building where they stand and don't impede a disabled person - an exemption ordered by then-Mayor Martin O'Malley as part of a beautification initiative, Kostow said.
But new or not, the recent citations have become a topic of complaint at area business owners' meetings.
"Based on the calls and complaints I've been getting, my assumption is that the city is hurting for cash," said Benn Ray, Hampden Merchants' Assocation president and owner of the Atomic Books store.
Others say they don't mind paying for the permit, which allows them to make use of public space and can help generate additional sales revenue.
"A minor privilege is something to cherish," said Alan Morstein, owner of Regi's American Bistro in Federal Hill, a business where diners often seek the outdoor tables on Light Street. "If you are compliant and do the right thing, it is not a problem."
Those familiar with the process say business owners, particularly those with outdoor dining, can become confused by the tangle of government agencies in charge of permit enforcements.
"It would serve the city well to have one-stop shopping for outdoor uses," said Arthur Perschetz, an attorney and president of the Fell's Point Residents' Assocation. "I would like to see the city publish a single document regarding what can happen outside a building."
