An appeals judge has ruled that North End restaurant owners embroiled in an outdoor dining fight with the city could sue again over whether fees imposed by Mayor Michelle Wu were an unlawful tax, but they cannot argue discrimination.
Judge William J. Kayatta Jr. of the First U.S. Circuit Court of Appeals has affirmed a lower court’s decision to dismiss the group’s complaint that the Wu administration punished North End businesses with strict outdoor dining rules over racial and ethnic bias.
But the North End Chamber of Commerce and 21 neighborhood restaurateurs behind the lawsuit against Wu and the city may not be fully done fighting the pandemic-era restrictions.
While the federal discrimination claims are dead, the plaintiffs could refile a complaint over whether the $7,500 fee they were forced to pay in 2022 violated state law. Kayatta instructed the lower court to dismiss that specific count without prejudice, leaving the door open for a state-level challenge.
North End restaurateurs also had to pay a $480 monthly fee for each parking space used for an outdoor patio in 2022, enduring a shorter al fresco season than other city neighborhoods.
The North End was the only neighborhood that faced fees that year. Wu and other city officials cited burdens on residents’ quality of life — increased noise, trash, traffic and a loss of parking.
An attorney for the group did not immediately respond to a Herald request for comment over the weekend on whether it would file an updated complaint following Kayatta’s ruling last Thursday.
Mayor Wu’s office also did not immediately respond for a request for comment on the court’s ruling.
The legal battle stems from a 300-plus-page court filing in May 2024, in which the restaurants and business group argued the Wu administration required them to “pay steep fees” to participate in the outdoor dining program in 2022 while allowing all other restaurants in the city to do so for free.
The businesses argued that Wu knew Italian Americans “would bear the brunt of the financial burden of the participation fees, as most of North End restaurants are Italian restaurants.”
“The city’s decision to make the North End alone pay hundreds of thousands of dollars to the city to participate in a citywide remedial plan,” the businesses stated in their lawsuit, “was to promote the mayor’s political agenda of economic justice based on equity as opposed to equal treatment of similarly situated Boston businesses.”
In a decision handed down in December 2024, U.S. District Court Judge Leo Sorokin acknowledged that the businesses were “understandably upset” with the 2022 fees and an on-street ban in 2023 and 2024.
But the judge said their “unhappiness … cannot alone give rise to a cause of action against the city and unlock the doors of discovery in federal court.”
“To accomplish that,” Sorokin wrote, “plaintiffs must state a claim that the city’s policy violates the law under the standards applicable to all plaintiffs in all civil cases. This they have not done.”
In last Thursday’s appellate ruling, Kayatta ripped the group’s complaint, agreeing with Sorokin’s stance that the suit was “both repetitive and rife with irrelevant detail, unjustly burdening both the City and the courts.”
The appeals judge zeroed in on how the complaint discussed the city’s purchase of an electric street sweeper through $552,000 generated from the 2022 neighborhood fees. Kayatta also took issue with the complaint describing an “iconic” 1969 television commercial for the Prince Spaghetti Company.
“Yet not even the bloated complaint alleges or permits us,” Kayatta wrote in his ruling, “to plausibly infer that those restaurant owners treated more favorably by the City’s policies were not white or even that white people disproportionately own North End restaurants.”
“Indeed,” the judge added, “for all we know from the complaint, all or most of those said to have been treated more favorably than plaintiffs were also white.”
Dining and Cooking