After more than a year of battling with the city, District Judge James Wilson will hear arguments next month over whether the owners of Mom and Pops Diner get to keep their gazebo.
City officials want the 12 by 12 foot structure removed from McFadden Square because the owner never got the encroachment permit required by city ordinance allowing the structure.
Owner Doug Cramer says that ordinance was passed after the gazebo was installed — with the permission of then-City Manager Nick Marano. He and his lawyer Mark Forsberg argue the ordinance is unconstitutionally vague.
Cramer installed the gazebo in August 2016. The ordinance city officials are using to try to force him to remove it wasn’t passed until June 1, 2017
Forsberg argued in court filings the ordinance is so vague it “authorizes or encourages seriously discriminatory enforcement.”
“In essence, through its own machinations, the city made it a crime to have a gazebo after it gave permission to place the gazebo, conduct made more egregious by the fact that the ordinance simply does not criminalize the existence of a gazebo nor prohibit that use,” he wrote.
Forsberg said the city can’t apply the ordinance retroactively.
Deputy District Attorney Iris Yowell, however, said Marano told Cramer when he asked to put the structure up it might just be temporary if the ordinance being drafted prohibited a gazebo there.
She also argued it’s not retroactive enforcement, “because the violation is in continuing to offer outdoor dining on city property without obtaining the encroachment permit.”
She said that permit is necessary for a business to use city-owned property and McFadden Square is city property.
The basis for the constitutional challenge is Carson City cited Cramer under a misdemeanor offense that carries a criminal penalty of up to six months in jail and a $1,000 fine.
The arguments will be presented to Wilson at a July 25 hearing.
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