After listening to the Encinitas City Planning and Building Director Patrick Murphy make a detailed report concerning outdoor dining problems in the downtown area on April 13 I contemplated why he did so on this particular date.
During the past several years I have appeared before the council on many occasions concerning public safety and pedestrian sidewalk right of way encroachment involving the placement of tables and chairs in front of various businesses serving food and beverages in this specific corridor.
The council was made totally aware that in many places it was extremely difficult if not impossible for those pushing baby carriages or using a wheelchair to move by the diners as chairs were placed in the called for “4 foot minimum right of way” corridor to include dogs sitting or lying in that stretch.
The culmination addressing this problem was when I viewed a couple having to enter Highway 101 while pushing a baby carriage with the man holding up his hand to slow down traffic as it was futile to pass by a violating restaurant while using the sidewalk.
The council’s answer to this encroachment problem enforcement was to throw the ball to the Downtown Encinitas Merchants Association Office and its director. It actually had no legal authority to do so and I’m sure didn’t want to. When the director now relates that the business owners have been supportive to keep a wide and clearly defined pedestrian corridor in the sidewalk eatery area it simply hasn’t been so in the past.
While speaking I also brought forth the dangers concerning the placement of tables and chairs abutting the curb adjacent to parked cars.
At that time the city representative professed that those particular movable tables and chairs were illegally situated in defiance to state law without being protected by a “fixed permanent barrier” between them and the street accommodating parked cars.
The council’s past solution to this dilemma was to totally ignore the issue. This despite the fact that the city was informed that it had a sworn duty to protect the public safety and it was now documented that if a vehicle jumped the curb and incurred bodily harm on a citizen sitting at a unprotected curb dining table it was potentially liable.
Let’s now return to why all of a sudden the council appears in such a hurry to finally address the outdoor dining issue.
Councilwoman Houlihan seemingly let the “cat out of the bag” by revealing that the city cannot open itself to “another” million dollar-plus lawsuit by not confronting the right of way issue to involve aggressive enforcement.
Even before Mr. Murphy is to return with his final recommendations for a council vote to include the 5-foot public sidewalk right-of-way corridor, no permanently fixed railing barriers, no fixed tables and chairs involving their placement issue next to the dangerous curb area a couple of owners have “planted the seeds” that they should be considered exceptions to the rule.
This is obviously a prelude in attempting to challenge the law by opening a “can of worms” as to which establishments will be granted an exception for whatever explanation.
There is an adage which states “rules are made to be broken.” The seeds to this plan were certainly sowed by the proprietors of the aforementioned eateries as it was pleaded that they were somehow exempt from the proposed 5-foot right of way passage and/or the placement of tables and chairs next to the curb for various reasons.
Listening to particular council member sympathetic responses to the before-the-fact requests it became quite evident that once voted upon, one rule will most likely not fit all. This will open a path to perhaps additional lawsuits/actions as other establishments profess their exclusion.
If passed, the right-of-way path and curbside table/chair laws must be vigorously enforced everyday regarding all establishments and during all hours of operation especially on weekends by using official city representatives and not just in a now-and-then haphazard manner.
Remember that we the taxpayers are the ultimate financiers involving lawsuits.
Filed Under: Community Commentary