Do busy restaurants have the right to take up public space?

By Corey Mintz - Published on August 22, 2016
restaurant patrons sitting on an outdoor patio
Corey Mintz: Privately owned public spaces are the negotiated fruits that the public gets in exchange for allowing developers variances for their project designs. (Michael Lehan/TVO)

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If there’s one thing we love more than eating on a patio, inhaling car fumes with every bite, it’s debating the use of public space. Into that arena in Toronto, enter the growing empire of La Carnita, an independent Mexican food chain with restaurant locations across the city.

The patio of its central John St. location belongs to the adjacent building in an arrangement known as a publicly accessible privately owned space. This is a common situation for Toronto, in which the city says to a prospective developer: “We’ll let you build a taller condo if you build us a park.” So when La Carnita erected a fence around the area in April, it was condemned by city Counc. Joe Cressy and chief city planner Jennifer Keesmaat.

Restaurant co-owner Andrew Richmond says he’s taking down his patio, removing the fence, the tables and umbrellas.

“By no means are we going to fight tooth and nail to keep a patio that no one wants there,” Richmond says. “The last thing I want is to have residents hate us.”

But he’s still wondering what happened.

Richmond’s building permit, liquor licence and blueprints appear unambiguous about the entire outdoor space being their patio. Cressy explains that the easement on the publicly accessible, privately owned spaces requires a higher threshold for approval, which was not granted.

Having said that, no one should have been in a position to approve a business patio in that space. Privately owned public spaces are the negotiated fruits that the public gets in exchange for allowing developers variances for their project designs. We, the people, gave up something for that parkette, and publicly accessible means that people walking by should know that this is a space for them. A fence enclosing diners eating tacos under umbrellas emblazoned with La Carnita’s logo does not communicate that, nor do signs saying that seats are for customers only — as has been reported about an uptown Aroma Café chain patio in a similar public-private space situation.

Space is a commodity that can be shared. But it cannot be given away twice, for competing uses. Why would we, as citizens, make a deal with one private business, signing away our right to limit the scale of a building, in exchange for something that could end up being used in almost-exclusive benefit to another private business?

There is likely an in-between compromise. How about no fencing? No branding? Limiting the seat number? Richmond says he’s proposed several ideas to the city.
It’s not hard to imagine that someone may have screwed up by selling the same thing twice. Toronto’s history of patios only goes back to the summer of 1963, when outdoor dining exploded as a trend in the then-hippie enclave of Yorkville, now an upscale neighbourhood of expensive sushi restaurants and Gucci storefronts.  Even back then, we were just trying to copy the café society of Europe, where pre-car cities were built and intended for more outdoor pedestrian activity.

We’re not Europe, so sharing and navigating our teensy slivers of public space is a little harder.

When planning photographs for our September wedding, my wife and I (OK, we’re not married yet, but I’m not using the f-word) chose a sensible, efficient location: the front door of our venue. Kensington Market’s grocery store, 4 Life Natural Foods (sort of like an independent Whole Foods), has a drop-down garage door in the front, covered in street art, which makes for a nice background for static, smiling shots of family in their best suits and dresses.

The problem is that we’ll need to take up a chunk of sidewalk in our busy, touristy neighbourhood, at peak hours on a Saturday. Maybe we’ll put down pylons, or park a car out front, reserving the bit of street where our photographer will need to stand.

There’s no legal or moral defence of this. The sidewalk is public property. I have no more right than a lemonade-peddling child does to monopolize it for my personal or business activities.

Every day I see wedding or magazine photo shoots on public property, I notice a generally accepted social contract of pedestrians taking a 10-step detour rather than disturb the scene. The clause in this social contract is that it’s OK for citizens to do this for one-time use, and not OK for private businesses to take advantage of it on a daily basis.

Our wedding photos will compete for space with a business next door, which also blocks the sidewalk. Since launching its churro cone earlier this summer, Pancho’s Bakery has incurred long lineups every day. Between the parked cars and the queue of customers patiently waiting for their ice cream in a cone-shaped donut, there is no space to squeeze past on the sidewalk, so pedestrians, strollers and wheelchairs take to the street.

La Carnita’s café business, Sweet Jesus, also couldn’t exist without using sidewalk space.

Allocating a small portion of its restaurant’s expensive real estate to the ice cream and coffee set-up, the majority of the ancillary business’s activity happens on public property.

“Sweet Jesus was this little thing, a concept that turned into a wildly successful thing,” Richmond says. “And now we have daily lineups.”

The restaurant has had to power wash the sidewalk and employ a person to sweep it of litter left by customers who can’t seem to find a public trash bin, plus another to maintain the line and minimize the crowd’s obstruction.

It’s been a hot summer. And many of my neighbours — who do not have balconies, patios or yards — have been spending their evenings on the sidewalk, setting up chairs in semi-circles to chat and eat ice cream. It’s a beautiful, communal sight.

It’s easy enough for me to step into the street for this or any other reason, like for the group that likes to stand in a cluster outside a restaurant after a meal, not realizing that they’re blocking the sidewalk. But not everyone has that option.

“As much as I expect, as a person with a disability,” says Ing Wong-Ward, associate director of the Centre for Independent Living in Toronto, “that I should go down a sidewalk in a manner that’s efficient but not threatening to people, I expect the same thing from non-disabled people.”

It’s easy to think of the sidewalk as a grey zone, a lawless Fury Road where anything goes. But it’s actually a pathway. It’s a resource which, if some people use up more than their share, some people can’t use at all. But Wong-Ward is not ready to cede sidewalk governance to Big Brother.

“It’s everyone’s responsibility. I don’t think it comes down to city policy, but etiquette. I don’t expect people to not line up, or be extra obsequious because I’m a wheelchair user. As long as we’re trying to understand that the sidewalk is being shared by a bunch of people with different levels of mobility, then that’s a good place to start.”

As crazy an idea as consideration for others seems, Wong-Ward is on to something. Because etiquette, though often misunderstood as a set of rules rather than one rule — the golden one — is actually more enforceable than bylaws or city policies.

Corey Mintz is a Toronto-based food writer.

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