A discrimination lawsuit filed by a group of restaurateurs in Boston’s North End against the city for banning outdoor dining in the neighborhood was dismissed Friday.
In his ruling, Judge Leo Sorokin wrote that Mayor Michelle Wu’s decision to impose a fee for street food licenses in the North End during the pandemic and later end the practice altogether “falls squarely within” state and federal laws.
Despite the claims of the restaurant owners that the politics discriminated against them because of their Italian heritageSorokin ruled that there was no demonstrable correlation between the plaintiffs’ politics and ethnicities.
“Plaintiffs are understandably upset with the City’s policy of permitting street food in other neighborhoods while prohibiting it in the North End … and believe that the City could reasonably and safely authorize street food,” he wrote “Plaintiffs’ unhappiness, however, cannot by itself give rise to a cause of action against the City.”
In 2020 and 2021, during the height of the COVID-19 pandemic, then-Gov. Charlie Baker issued executive orders allowing municipalities to allow restaurants to set up outdoor dining patios on public streets. In Boston at the time, restaurants in all neighborhoods could participate in the program.
However, in 2022, after Wu took office, the program continued, but North End participants had to pay an “impact fee” of $7,500, as well as a monthly fee of $480 for each spot ‘parking lot that occupied their yards. This was intended to reduce negative effects on the neighborhood, where narrow streets and sidewalks, limited parking, increased rodent activity and other challenges were exacerbated by outdoor dining.
According to court documents, the North End has the highest concentration of restaurants per capita in the state.
The outdoor dining season was also shortened to five months in the North End, compared to eight or nine months in other neighborhoods.
The city’s actions prompted an immediate backlash from neighborhood restaurant owners. However, following the conclusion of the 2022 outdoor dining season, the North End/Waterfront Residents Association lobbied against allowing outdoor dining in future years.
In 2023, outdoor street food was not allowed in the North End.
In January 2024, a a group of 21 North End restaurateurs filed suit against the city in federal court, alleging discrimination. In their complaint, they claimed they are being singled out by the fees and subsequent ban, preventing them from gaining the same competitive advantage as restaurants in other areas of Boston.
In his decision to dismiss the case, Sorokin wrote that he was doing so primarily because the plaintiffs’ complaint was incredibly long and extensive, contrary to court rules. However, he still went into each of their claims, saying they were demonstrably without merit.
In particular, he wrote that the U.S. Constitution does not grant residents the right “to use public streets for private profit as an extension of their restaurants.” But, going further, he said that nothing in the city’s policy was discriminatory on the basis of race, ethnicity or national origin, either explicitly or implicitly.
In fact, he wrote, the restaurant owners themselves acknowledged in court documents that the North End is uniquely different from other neighborhoods, providing a completely reasonable motivation for the city to regulate the neighborhood differently.
“The very policy that plaintiffs allege harms ‘white Italian-Americans’ or ‘Italian restaurants’ actually benefits several Italian restaurants (and likely Italian-owned restaurants) who enjoyed street dining outside the North End “, he wrote.
“What the plaintiffs have alleged is a regulation of restaurants, in a particular neighborhood, that serve primarily Italian food, and that are predominantly owned by people of Italian descent,” he continued, citing legal precedent that disproportionate impacts by themselves do not constitute discrimination.