Cantinetta Luca owner tells Carmel City Council talk trash or head to court.

Like a persistent piece of litter sticking to the bottom of Carmel’s shoe, a decision last month to nix restaurant Cantinetta Luca’s trash enclosure permit just won’t go away.

The council voted 3-1 on Feb. 7 against the permit, with Mayor Steve Dallas and Councilmember Carolyn Hardy leading the way.

The decision stunned business owners and residents, in part because the restaurant’s owner, David Fink, said he was told by city officials 12 years ago that he had proper approval of an encroachment permit for the enclosure, which juts out by 110-square-feet into a public space known as Piccadilly Park.

But the decision to not award a new permit was stunning for two other reasons, as laid out by Fink in a February letter from his attorney Jason Retterer.

Fink said he could not get a fair hearing from the council because, one, both Dallas and Hardy had already publicly declared their issues with the permit when they protested the Carmel Planning Commission’s approval of Fink’s plan to build a condo on top of his restaurant.

And two, Fink claimed that Dallas threatened to make sure Fink would never get another project approved in Carmel. 

Nevertheless, on Feb. 7, Hardy and Dallas pushed through a motion to deny the permit for the trash enclosure, claiming it was a policy issue, based on a ruling by the Planning Department that the original permit was never actually secured.

Councilmember Bobby Richards voted against denying the permit, the sole vote that would've allowed Fink to keep his trash enclosure. Councilmember Carrie Theis wavered, finally voting with Dallas and Hardy to deny the permit. (Councilmember Jan Reimers recused herself.)

Fink was given until April 7 to removed the enclosure and figure out where to stash his restaurant’s trash inside.

The day after the vote Fink said he was ready to fight the matter in court, but on Wednesday, March 21, he took a more conciliatory tone in a new letter to Dallas and the City Council from Retterer, his attorney.

Retterer writes that Fink is ready to negotiate with the council to create a smaller enclosure.

The offer comes with a big stick, however. Should the council not agree to negotiations, Fink will ask a court to rule on the city’s decision.

Retterer writes a court will be on Fink’s side, because the enclosure has existed without problems for 12 years.

Carmel officials claim that the original permit was issued in error by an employee, but Retterer argues case law protects landowners from cities revoking permits after the fact based on errors.

Fink’s lawyer also reasserted the claim that Fink could not get a fair hearing.

“Any objective observer with knowledge of the events leading up to the Council’s decision could reasonably predict that Mayor Dallas and Councilmember Hardy would vote to deny the encroachment permit,” Retterer writes.

Even if a court sided with the city on its claim the permit was never properly awarded, “at a minimum” it would set aside the council’s decision based on Dallas’ participation in the vote, Retterer's letter continues.

He argues that at the very least, the council should set aside its decision until a third-party investigator can look into Dallas’ comments about denying all of Fink's future projects, reportedly made to another Carmel restaurateur, Rich Pepe.

Dallas did not respond to a request for comment.

As for a new independent investigation, the city already signaled it wasn’t interested in investigating past claims about Dallas threatening anyone.

City Attorney Glen Mozingo made it very clear at the March 7 special meeting/press conference about the investigation into sexual harassment allegations against Dallas—at which Mozingo said there was no sexual harassment and the council reprimanded Dallas—that there would be no further investigations into any complaints made to the investigator that the mayor threatened people with political retribution.

When asked where anyone with complaints should go, Mozingo replied with just two words: “Their lawyer."