January 31, 2016
On the first warm day last spring, the double doors of Highlands United Methodist sprang open. Church bells pealed. A photographer scampered down the steps, pivoted, and raised his camera. Billowing pink taffeta dresses and sleek black tuxedos were framed in the doorway and then lined the church steps. Soon the smiling bride and handsome groom emerged amidst flying rice and raucous cheers.
My wife and I spontaneously raised our wine glasses at a sidewalk café across Magnolia Avenue to toast the newlyweds. A couple at the next table did the same. We were enjoying a Saturday brunch beneath a canopy of mature pin oaks at a sidewalk cafe in Five Points South. Pedestrians passed on the sidewalk and traffic thrummed on 20th Street. A delightful urbane experience.
As we partook of the gaiety in front of the church, I recalled the consternation in City Councilman Bill Myers’ voice twenty years before.
* * * *
“Michael, we can’t have people drinking alcohol in plain sight right across the street from a church, a Methodist church at that, for God’s sake.” He paused, perhaps aware of his unintended irony, but maybe not. “I mean, the church members just won’t stand for it. They’ll raise… er, they’ll raise Cain,” the councilman barked over the phone.
“I’m sorry,” I began, hoping an apologetic tone would soothe his anger. “But the City Council approved an outdoor dining ordinance in February. The City Attorney’s Office found that he owner’s permit application was in full compliance. I’m sorry, councilman, but …”
“I remember that ordinance, but you didn’t say you were going to let the general public drink alcohol right across from a church. No, sir. This can’t be allowed, Michael. I’m calling the Mayor.”
“Well, I’m sorry, but…” A dial tone. He was gone. I called the Mayor’s top aide to alert him and the Mayor. Then I thought about all my memos, meetings, modifications, briefings, and hearings involved in securing adoption of the Outdoor Dining Ordinance to approve sidewalk cafes.
In 1983, the initial one-page proposal to authorize outdoor dining I sent to Mayor Richard Arrington came back with a handwritten note in the margin: “OK, work with City Attorney. R. A.” A rush of satisfaction. That was about a a year before I received Councilman Myer’s irate call. In the interim, I learned several lessons about bureaucratic inertia.
It’s good strategy to put an initial draft on the table so my first step was to prepare a draft ordinance using language in the City Code that permits stores to erect awnings and project signs above the city-owned sidewalks through “revocable permits.”
In our first meeting, Assistant City Attorney Rowena Teague sat behind her desk peering out between stacks of papers and gushed “Great idea, but…” then she proceeded to run out of fingers as she counted the agencies that might be opposed and the laws that would have to be amended. I slumped on her couch as she went on and on.
“Signage will have to be approved by the Design Review Committee. Alabama Power and Alagasco will want easements to get access to their manholes in the sidewalks,” she said.
“Of course, we can include provisions for those things,” I said.
“You’ll have to talk to the Jefferson County Health Department about food service outside, and keep in mind that those people don’t work for the mayor. Also I assume restaurants will serve drinks outside so the ABC Board will get have to be involved. They’re a state agency, and…”
“All right, all right,” I interrupted. I’ve got some homework to do. I’ll draft a proposal from the mayor and ask for comments from everyone who might have concerns. We’ll go from there.”
“Great! Put it out there to all department heads. Don’t forget the Health Department. Let me know who screams the loudest. If the idea flies, I’ll review the City Code and related case law, and see what needs to be added to your draft,” said Rowena frowning as she stared at her watch.
The next day I was at Rowena’s office door with a draft memo for the Mayor’s signature. I insisted on waiting while she read it. With a fist pump, she said, “Yes! It says questions go to you.” She quickly added several names to the long distribution list, scrawled a few editorial changes with a blue pencil, and held out the draft with a perfunctory smile. I submitted a revised letter to the Mayor’s Office that afternoon.
On the same day I received my copy of the Mayor’s signed letter, I took a call from the Assistant Health Commissioner for Food Safety. After an introduction in which he cited his Master’s degree in epidemiology from Georgia State University, he asked, “Have you ever heard of salmonella, botulism, and the Black Plague? Do you know what vectors propagate these deadly diseases?”
I knew better than to argue with him. I decided to let him have his say and hoped that would mollify him. When I requested that he educate me, he exclaimed, “Flies! Flies are vectors that could spread bacteria and infectious diseases and instigate a major public health problem. Outdoor dining will exacerbate morbidity and mortality in Jefferson County.”
After I thanked him for explaining this, I called Ed LaMonte, the mayor’s top aid, and related the conversation. I concluded by saying, “If flies at sidewalk cafes are dangerous, maybe picnics in city parks should be banned.”
“Maybe we should require that every outdoor table have a flyswatter,” Ed said with a chuckle. “Seriously, Michael, I can assure you that the City Council will not be too concerned about the threat of flies.”
The Department of Streets and Sanitation wrote back to the mayor and requested funding for additional trash containers and 2.5 workers. They also warned that food waste attracts rodents and other vermin. I quickly decided to put that in my circular file—the waste basket.
I missed a call from Richard Martin, the City Finance Director. I didn’t think he was calling about sidewalk cafes because the $100 permit fee would cover any processing costs. I was wrong.
“These cafes will cost hundreds of thousands in “slip and fall” lawsuits. People will trip on the tables, get drunk and fall out of their chairs, etc, etc, and etc,” said Richard.
“Could we require the restaurants on City-owned sidewalks to carry insurance for this?” I asked.
“Sure, but the lawyers who specialize in these cases, and, of course, get most of the money, will sue the city because of our deep pockets. You tell the mayor that outdoor dining on city sidewalks will cost the city thousands of dollars every year,” said Richard.
I assured him I would make the mayor aware of the financial impact.
An attorney representing the ABC Board scheduled a meeting to discuss compliance with their regulations. He began by saying, “Licenses will not be issued to any restaurant serving beer, wine, or liquor in public view. The ABC Board’s mission is to protect children, women, and all God-fearing citizens from alcohol and the unfortunate consequences of its consumption.”
“Many family restaurants offer beer and wine, and anyone walking past a bar can glance through a window and see people drinking,” I said.
“Although it’s not often enforced, our regulations require cafe curtains on the lower half of windows to shield activities in bars and taverns from public view,” he replied.
“The mayor supports sidewalk cafes. Many other cities have found they’re popular with convention delegates and visitors, and it adds to the vitality of downtown,” I suggested.
“Our rules will require a separation of alcohol consumption from the pubic by a fence or landscape screen—at least 5’ 5” in height.
“I understand. How about a wrought iron fence with vines and flowers?”
He hesitated, and said, “Well, that would probably meet our regulations. We do want to cooperate with the mayor.”
“Thank you. I’ll be sure the Mayor will appreciate that.”
The following week, Rowena and I sat down in a small conference room at the City Attorney’s Office. The Mayor’s Office sent a note I had drafted to the City Attorney asking that he make the Outdoor Dining Ordinance a priority. A bound copy of the City Code bristled with bookmarks, and transcripts of court cases were fanned out with the corners of some pages turned down. Rowena reviewed an outline of the ordinance she had neatly written on a yellow legal pad. The outline filled several pages. Applicants would be required to submit scale drawings that showed the location of gas and electric lines, manholes, storm drains as well as screening and landscaping. Plans would have to be reviewed by seven city departments and the Design Review Committee. She agreed to impose deadlines for those responses at my request. The draft ordinance had grown from my two-page draft to 28, single-spaced pages.
After the draft was circulated again and printed in the legal ads in the Birmingham News and Post-Herald, the Mayor placed it on the agenda of the City Council. I stood just inside the door of the City Council Chambers ready to answer questions or respond to challenges, but hoping to watch silently as the ordinance was approved as an item of routine business. When the item came up on the agenda, the City Clerk read the number and a one sentence description almost as quickly as an auctioneer.
Councilman Russell Yarborough said “I saw sidewalk cafes in Europe after the war and let me tell you Birmingham ain’t Paris.”
Councilman John Katopodis said, “Let’s just say ‘Birmingham’s not yet Paree’. Michael has only been here a year. I move for approval.” Russell seconded the motion and a unanimous voice vote followed immediately. I backed into the hallway. My dad, a salesman, used to tell me as soon as you make a sale, get out.
The first applicants, Donald Kahn and his daughter Gayle, proposed a sidewalk cafe in Five Points South for a restaurant tenant. The patrons would look across Magnolia Avenue at the circular fountain featuring Frank Fleming’s whimsical sculpture and the splendid Spanish Revival facade of the Highlands United Methodist Church. Brother Bryan’s marble likeness knelt in prayer behind an open bible at the border of the cafe. The duly approved site plan called for trees to shade patrons and a wrought iron fence to enclose a dozen round tables. Parisian!
Councilman Myers’ phone call objecting to alcohol consumption came when construction was nearly completed and a “Coming Soon” sign announced the sidewalk cafe. Some members of the the church buttonholed Councilman Myers at an East Lake neighborhood meeting in his district and extracted a promise that he would put a stop to public consumption of alcohol near their church.
I had met the minister at Highland Methodist in planning meetings for Five Points South and was sure that he knew about the proposed sidewalk cafe. I called him and related the councilman’s protestations.
“I’m so sorry, Mr. Calvert. Some of our members are old-fashioned Methodists. I made sure our Board of Deacons blessed this proposal. I don’t know Councilman Myers, but I will call him and make him aware of the church’s support for the sidewalk cafe. Our church supports the overall revitalization of Five Points South. Thank you for contacting me.”
I heard nothing more from Councilman Myers.
* * * *
In 2015, thirty two years after Councilman Myers’ outburst, my wife and I watched the groom lead his bride toward a waiting limousine. The bridesmaids, ushers, and friends walked toward the parking deck. We raised our glasses again in a silent toast.
It was our practice to ask for an outdoor table on all but the hottest days of summer and the coolest days of fall at the many outdoor dining venues in Birmingham. We referred to this as “being Parisian.”
The church bells rang out to announce the noon hour. We ordered another drink and sat back to enjoy Birmingham’s first sidewalk cafe.