Board rules for most T-shirt shops city sought to close _lowres

Advocate staff photo by JOHN McCUSKER -- A T-shirt shop displays its wares on Decatur Street Monday, May 12, 2014.

The city’s attempt to shut down a dozen French Quarter T-shirt shops that it said were operating illegally ended in victory for most of the business owners Monday. The Board of Zoning Adjustments overturned the citations issued to seven of the shops, finding that the city had issued them in error.

They were among 13 Bourbon, Decatur and Royal street businesses cited in September by the Department of Safety and Permits for violating a 2010 city ordinance prohibiting new T-shirt, novelty and souvenir shops in the French Quarter and establishing stricter operating rules for those already in existence.

The BZA upheld the citations issued to three of the businesses and deferred consideration of two other cases for a month. The 13th shop was cleared of wrongdoing in June.

A T-shirt shop, according to the city’s zoning ordinance, is a retail operation whose primary business activity is the sale of T-shirts or souvenirs. Souvenirs are “items, exclusive of books, magazines or maps, which serve as a token of remembrance of New Orleans and which bear the name of the city or geographic areas or streets thereof or of events associated with New Orleans including but not limited to Mardi Gras, the Sugar Bowl or the World’s Fair.”

Appeals had been pending before the BZA for several months as attorneys for the shop owners tried to obtain documents from the city’s Bureau of Revenue to support their claim that most of the businesses had operated as T-shirt and souvenir shops for decades and therefore should be considered as legal nonconforming uses exempt from the 2010 zoning change banning new T-shirt and souvenir shops.

The 2010 ordinance, sponsored by then-Councilwoman Kristin Gisleson Palmer, whose district included the French Quarter, took effect in January 2011.

The city, strongly backed by the Vieux Carre Property Owners, Residents and Associates organization, said the shops should not qualify as legal nonconforming uses because they did not properly identify themselves as T-shirt shops in their applications for licenses. Instead of listing the proper code for a souvenir or T-shirt shop on the applications, for instance, some of the businesses used the code for “general merchandise” and other categories, the city said.

That means they shouldn’t be allowed to claim they were pre-existing T-shirt shops, said Michael Martin, an attorney representing VCPORA. Martin said the shops chose those categories in a conscious attempt to “fly under the radar” so they could avoid becoming victims of a crackdown on T-shirt shops.

But attorneys representing the shop owners submitted various documents they said proved the city had known for many years that the businesses were T-shirt and souvenir shops. Justin Schmidt, an attorney for most of the shop owners, blamed the improper code designations on their operating licenses on city clerks who he said chose the category after the business owners described what they intended to do.

Schmidt said the businesses didn’t intend to hide their true purpose. One business, for instance, is called T-Shirt Alley. Another attorney, Jay Corenswet, pointed out that another shop is in a building emblazoned with a city-approved sign that reads, in part, “Mardi Gras Souvenirs.”

The board agreed with the shop owners’ arguments in most instances and voted unanimously in all but one of those seven cases.

In two of the cases where the board upheld the Safety and Permits citations, it said it could find no evidence those shops had been operating as T-shirt shops for 10 years or longer before the moratorium went into effect. In the third case, they agreed with Safety and Permits Director Jared Munster that the shop owner had misrepresented the purpose of the business by saying specifically that he would not sell souvenir items and then proceeding to do so.