‘Line in the sand’

If it weren’t for the planter boxes, the current fight over a pirate flag at Burgers & Vine might never have happened.

“I put in 100 hours on those planter boxes,” said Codi Binkley on Thursday, clarifying his position on why he and Carlo Cavallo, co-owners of the newly opened burger joint at 400 First St. E., are determined to leave the Jolly Roger up.

For the restaurateurs, the half-barrel planters – which Binkley built himself – became emblematic of the difficulties the two faced in getting their business open.

After installing them, they were told they needed approval from the Design Review and Historic Preservation Commission, which they obtained.

“I put them back up,” Binkley said. “A week later, I get a letter from the city.” Now they needed architectural plans drawn up, featuring the planter boxes, to be submitted for a building permit.

The process cost thousands of dollars, according to Binkley, but they did it and put the planters back up. Then came another letter.

“After two permits that we got – design review and building permits – now we needed a third permit, the encroachment permit,” Cavallo said. This one would take four months to a year to get approved, they were told.

“So we took (the planters) down,” Cavallo continued. “And then we opened up. … And then I get a call from the city, maybe three or four days after we opened.”

This time it was Wendy Atkins, associate planner for the city’s Planning Department, calling about the pirate flag. “We received a complaint back when the sign was first displayed,” Atkins said this week. “So we contacted the business owner and let them know what the sign requirements were with regard to a temporary display.”

According to the city’s sign ordinance, some signs can be approved administratively, some by the design review commission, and some are exempt. Grand opening signs can be put up without a permit for a limited time – and the Jolly Roger, Atkins said, falls under that category.

“That’s what Planning Director David Goodison and I have considered this to be, is a grand opening sign,” Atkins explained. City code allows such signs to stay up for 15 days, after which they must be taken down absent a permit from the city.

But for the restaurant owners, frustration with the permitting process had boiled over. They resolved to keep the flag right where it is.

“At this point, it’s line-in-the-sand time,” Cavallo said. Both say they’ve had enough, and are leaving up the Jolly Roger on principle. They also say several other Plaza business owners are backing them up.

The business partners also noted the emotional reasons behind the flag going up in the first place: “My childhood best friend died six weeks ago,” Cavallo said.

To make him feel better, Binkley “put the flag up to make me laugh. And it’s not easy to get up on that roof and put that flag up. And I think that’s one reason why it stayed.”

Originally, he added, “The flag was never meant to stay up for a long time.”

Binkley said he wishes the city’s permitting process were clearer from the beginning, and Cavallo agrees.

“Nothing is streamlined with these people, and they change things on the fly,” he said, adding, “Everyone is complaining.”

Others, however, are complaining about the flag itself, according to several city officials. Kelso Barnett, a member of the design review commission, said the issue even came up during a Feb. 25 meeting.

“It wasn’t an agenda item,” he said. However, “at that point, quite a few people complained to me: How did this happen?”

Goodison confirmed that, “Typically, enforcement actions, especially with regard to signs, are complaint-driven.” (He said there are exceptions in cases of “gross violations of the sign ordinance.”)

Barnett believes the Burgers & Vine owners are picking the wrong fight, and worries that it may backfire, resulting in more regulatory difficulty for everyone.

“The city bends over backwards to help small business,” he said, adding that Burgers & Vine is “everything locals want on the Plaza.”

And yet, he said, Binkley and Cavallo “mismanaged the opening” of their restaurant – and should not be blaming the city for their missteps.

Unlike Grandma Linda’s Ice Cream – another Plaza business, which recently won a design dispute over its pink door – Binkley and Cavallo “didn’t go through a process at all,” Barnett said.

“But even so, we’ll evaluate this like we evaluate any issue, with the consideration that this is one of Sonoma’s most historic corners, not a tree house.”

That’s only if the Jolly Roger issue comes before the commission. Prior to that, the city or the business could back down – or the fight could escalate.

“The city, if they’re smart, they’ll just let it go. It’ll just die down, and we’ll probably take down the flag,” Cavallo said.

Barnett said much the same thing, in reverse.

“I just wish he didn’t press this,” he said of Binkley.

“He seems disappointed and frustrated with all the regulations on small business. And I fear that if he presses this he’s going to make it worse.”

According to Goodison, many of the Plaza’s existing flags – such as four highly visible ones hanging from the Swiss Hotel – are grandfathered in because they predate the city’s sign ordinance, which was added in 2000 and amended in 2011 and 2013.

“The Swiss Hotel has been in operation for almost 100 years now,” he said. “And they’ve been flying those flags for a long time.”

Meanwhile, certain flags are essentially exempt from the code.

“We wouldn’t regard an American flag, for example, as just a decorative object. And if they were flying an American flag of that size at that location, we really wouldn’t have anything to say about it,” Goodison said.

Symbols can be ambiguous, and so are laws regulating them. A 2003 ruling by a three-judge panel of California’s Ninth Circuit Court of Appeals declared that “viewpoint neutrality” was required for flags in government-owned spaces – meaning that Caltrans, for example, could remove flags from highway overpasses.

Just last month, the same court ruled that a South Bay high school could ban American flag T-shirts as they were being worn during Cinco de Mayo, potentially sparking confrontations or even violence between Latino and non-Latino students.

Cities are often left to their own devices when it comes to regulating signs, flags, banners and the like. And Sonoma’s Plaza is something of a special case.

The site of Burgers & Vine – a historic structure that once housed the Old Sonoma Creamery – sits directly across Spain Street from the Mission.

“People who don’t understand Sonoma just roll their eyes” when they see stories like this, Barnett said.

As for Cavallo, he now plans to add a pirate-themed burger to the menu, featuring Jamaican jerk rub, Scotch bonnet peppers, rum demi-glace and an ale-soaked cheddar.

UPDATE: This story originally included misleading information about a sign at that location. The photo and paragraph have since been removed from the online version of this story.