Carson City District Court rules diner must tear down gazebo on McFadden Plaza
Doug Cramer, the owner of Carson City Mom and Pop’s Diner, has been fighting with the city for two years to keep his gazebo which provides shade for his outdoor patio seating in McFadden’s Plaza.
The Carson City Justice Court originally ruled earlier this year that because Cramer did not have the specific permit needed for the gazebo, and because the gazebo is in the public’s right-of-way, he would need to take it down.
Cramer appealed the decision. Carson City District Court Judge James Wilson upheld the ruling of the Justice Court.
According to the judgement, Cramer was in violation of a municipal code which states: “An outdoor dining area...is prohibited in the downtown mixed-use district...without an encroachment permit issued.”
“(This code) puts a reasonable person on notice than an outdoor dining area is prohibited in the downtown mixed-use area without an encroachment permit and therefore is not vague on its face,” the judgement states.
The “vagueness” argument cited by Cramer is generally only used in criminal arguments, and in the situation of the Mom and Pop’s Diner, no crime was committed.
Cramer also contended there is no specific prohibition against gazebos therefore the code is vague. However, the judgement ruled that the gazebo falls under an “outdoor dining area” and therefore is within the limits of the code.
The judgement also states that “the record does not support a conclusion that Carson City has given Cramer permanent permission for his dining area or gazebo.”
An attempt was made to reach Cramer for comment at his businesses as well as through a message on his voicemail but so far he has not responded for comment.
Cramer had attempted to argue that the the city at first gave him permission to put up the gazebo before they changed their minds, and that the municipal code was vague and shouldn’t apply.
Judge Wilson stated that regardless of what may have occurred previously, the municipal code is very clear that without an encroachment permit, Cramer has no right to place a permanent fixture within the public’s right-of-way, which, in this case, is McFadden Plaza, located at 223 West Third Street.
Cramer will need to remove the gazebo immediately now that the District Court has issued its judgement.