The Stewart’s Root Beer restaurant that opened in the Washington Street Mall earlier this year is suing Cape May City for forcing it to close in September.
The city revoked the restaurant’s mercantile license in the summer after three inspections found it had more seating than permitted, city officials said.
The restaurant remained open pending appeal, and City Council unanimously denied that appeal last month.The lawsuit accuses City Manager Bruce MacLeod and City Clerk Louise Cummiskey of arbitrarily and unconstitutionally denying the restaurant its right to conduct business.
The suit demands the city issue the restaurant a new mercantile license, seeks an injunction prohibiting future violations of the business’ rights, and requests compensatory damages and other relief.
MacLeod denied the allegations on Friday.
“I’m sure we’ll manage with legal counsel to deal with the lawsuit, and we suspect that the city’s decision will be upheld,” he said.
Stewart’s was convicted in Cape May City Municipal Court in August on two charges of operating without a mercantile license because it had more interior seats than permitted. The restaurant has appealed those charges to Superior Court.
The lawsuit recounts a history of conflict with MacLeod and Cummiskey, saying they seemingly singled out the restaurant and kept it from receiving the same privileges of outdoor seating and access to the building’s basement that neighboring restaurants such as The Ugly Mug and Pilot House had.
The suit also says that the restaurant received a mercantile license in May and then received a complaint in June by a code enforcement official for operating without a mercantile license.
The city alleged that the issues were with the establishment having far more seats than permitted. The city says they were only permitted to have 48, but at different points they had 113 and 88.
Afterward, Stewart’s applied to the Planning Board to increase interior seating from 48 to 92. The board’s engineer denied the application, saying it was incomplete, which the restaurant also disputes.
After council denied the restaurant’s appeal, it applied again for a mercantile license, which the suit says Cummiskey denied because the management “lacked the necessary moral character.”
“Everyone knows you were operating illegally and so did you,” the suit quotes Cummiskey as saying to Stewart’s staff in her office.
The suit was filed Tuesday. Stewart’s attorney William Kaufmann said he has not yet heard back from the court.
“As to what anyone’s motivating forces were, as to this juncture, I don’t know,” Kaufmann said when asked why MacLeod and Cummiskey would have singled out Stewart’s.
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