Two weeks after voting to end a pandemic provision allowing restaurants to operate outdoor dining spaces, the Falmouth Town Council Monday approved a new emergency ordinance allowing it to continue into October.

Councilors voted 6-1 to suspend regulations calling for what restaurant owners have described as a lengthy application process for outdoor dining. Owners now have until Oct. 22 to discontinue outside dining service or receive town planning board approval for permanent outdoor space.

The council voted Aug. 9 not to renew the initial emergency ordinance, primarily because the governor had lifted the state’s emergency designation. Five votes were needed for an extension, but it received only four, forcing restaurants to shut down the spaces they had created under the ordinance on Aug. 20.

Voting against the extension were Councilors Jay Trickett and Janice DeLima. Chairperson Amy Kuhn was absent.

The Northern Forecaster ran a story about the initial council vote Aug. 19. On Monday, councilors said they had received hundreds of emails about the issue.  Kuhn said she received about 160, more than she has ever received before on a single issue, in favor of extending the emergency provision.

“If we continue to vote this down, it is tone-deaf,” Councilor Ted Asherman said. “To say anything otherwise is joking ourselves. These restaurants are hurting, their business is hurting and to not help them is akin to throwing them on the streets.”

Trickett, the lone vote against the new emergency ordinance on Monday, said restaurants have had over a year to pivot their business models and apply for outdoor space, and the emergency ordinance “is illegal” and contradicts the town charter.

“What I object to is the council using the pandemic as a pretext to declaring laws by fiat and not requiring procedure required by the charter,” Trickett said. “I heard we are in a public health emergency, and it is an emergency in the sense it is serious, but unlike a year ago where restaurants only had a few days to pivot to outdoor dining or fail, it’s been 14 months. Restaurants have had an opportunity to pursue (permanent outdoor options).”

Councilor Pete Lafond, who sponsored the new emergency provision, said Trickett “is just wrong.”

“There is nothing we are doing that is inconsistent with its charter. There is nothing inconsistent with state law,” Lafond said. “The first (argument) Trickett makes is that somehow an emergency is static. That something can be an emergency once but cannot be later because time has passed, but facts (dispute) that. We had COVID previously. Now we have a delta variant that almost everyone who agrees with science agrees is much more transmissible and prevalent now.”

Proponents of the outdoor dining cited the delta variant and lack of vaccines for children under 12.

Staffing shortages make it difficult for owners to go through the Planning Board process at a time when they are “busy trying to stay alive,” said Bueno Loco co-owner Gregin Doxsee, joined by Dockside Grille employee Chris Dyer.

Councilor Hope Cahan agreed. 

“Right now we know people are having a hard time filling positions so that means those owners who normally would be able to go through this process are in an emergency situation where they are doing dishes, books, seating people, serving and even cooking,”Cahan said. “They just don’t have the capacity to come to town hall and see what they need to do.”

Councilors said that restaurants who want to keep their outdoor dining spaces should still go through the formal Planning Board process given the chance the ordinance may not pass in the future.

“I do feel frustrated that we’ve talked about the winding down of this provision and there hasn’t been follow-up from some restaurants,” Kuhn said. “I’d like to see us develop a plan to get that into line,  but as things stand right now I want to give businesses the benefit of a doubt.”

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