Bursting on the sidewalk

The old habit of ordering a coffee at the bar just to be allowed to empty one's bladder could soon be a thing of the past - at least in Barcelona. If a new ordinance on sidewalk cafés prospers, establishments that make the most money from the private use of a public space will have to do more toward the common good by letting anyone use their restrooms, whether the users are customers or not.

The initiative promises to be controversial, and the owners of bars, restaurants and entertainment venues are already incensed by the idea.

The complete ban on smoking indoors has led to a wealth of new sidewalk cafés. A total of 4,228 licenses have been granted by the city for such terrace bars this year, compared with 2,337 in 2010. This exponential increase in outdoor tables and chairs is especially noticeable in the city center, in the districts of Ciutat Vella and Eixample. Areas that once had four tables and 16 chairs have doubled those figures, while establishments that had no outdoor area have managed to squeeze in a few tables and chairs so that their customers can smoke.

As a result, public sidewalks, avenues and squares that belong to everyone have been invaded by outdoor furniture, often making walking in a straight line difficult. Despite the invasion, city officials have not been fining bars and restaurants, which are already struggling to overcome the economic crisis and a smoking ban that saw their client base fall.

If I let everyone who asked use the bathroom, I'd have a procession here"

Venue owners argue that they are already paying an annual fee for their sidewalk café, which, depending on the location, can cost anywhere between 249 and 1,500 euros. "If you are paying a levy to lease the space for an economic activity, it seems unreasonable for them to impose further conditions," argues Emilio Gallego, secretary general of the Spanish hotel and catering federation, Feher.

So far, Barcelona's idea of forcing sidewalk cafés to let any passerby use the restrooms is unique in Spain. "And it could set a negative precedent for the entire sector," warns Gallego.

The small "Customers only" sign hanging in many toilets is only relatively useful. The truth is, it depends on the personality of the establishment manager and on the area where the bar or restaurant is located.

"I let in anyone who asks me nicely, and doesn't look like they are going to be a problem," says the owner of a bar on Paseo de Sant Joan, which is located very near to a bus station. But owners of venues in the tourist-heavy center see things differently.

"If I said yes to everyone who asked me to use the bathroom, I'd have a procession here. And who is going to pay for the extra cost of water use, the cleaning, and other issues like security?" asks Enric Gomà, who owns two restaurants in the neighborhoods of Gótico and El Raval - which see millions of tourists pass through each year - and who is also the president of the Association of Barcelona Bars, Restaurants and Entertainment Venues.

"Either we charge something for the use of the restroom or we use a key - which many bars do - or else we should get something in exchange," he suggests. That something in exchange, say some voices in the sector, should be a half-hour extension to closing times for sidewalk cafés.

"Other cities have more coin-operated restrooms in squares and stations, which cost a euro or 50 cents," adds another venue owner in the city center. In Barcelona, pay toilets are practically symbolic - the old public restrooms disappeared years ago- and they are only set up for major street events or fiestas. The sector does not think it fair that the owner of an establishment should pay for a service that the municipality is not offering. And owners point to a further problem: in compliance with city ordinances, the number of restrooms and the space they must take up depends on the square meters of the bar or restaurant in question.

"If we made them strictly open to anyone, customer or not, then they might prove insufficient," said one restaurant owner in La Rambla de Barcelona.

Legally, the concepts at play are "right of admission" and "public establishment," which both sides use depending on their point of view. "Just because they are premises with public attendance, you cannot conclude that anyone can just walk in; that's what the right of admission is there for," says Gomà. There is currently no rule forcing establishment owners to allow free access to their restrooms.

"Neither existing local ordinances broach this issue, nor does the 2009 Public Spectacles and Recreational Activities Law nor the August 2010 decree on these same activities," explains José Luis Aguilar, a lawyer specializing in urban affairs.

Right of admission is defined by the Catalan government as the establishment owner's ability to determine the conditions of access, though with certain limits: admission cannot be denied for arbitrary or discriminatory reasons, and reasons for denial must be set forth via a sign. This, said the lawyer, is no obstacle to owners preventing non-customers from using their toilets.

"Following through on the theory that these establishments are open to the public, the next step is for the restrooms of small stores to also be open to the general public," suggests Antonio Romero, the owner of a sidewalk café.

The city of Barcelona says that the process has just got underway and that there is still time to negotiate and reach an agreement with one of the most dynamic sectors in the city. But it calls on the "joint responsibility" of sidewalk cafés to make up for the concession of public land for their own benefit. From a municipal point of view, that joint responsibility goes beyond the annual fee for having a sidewalk café - a maximum of 1,560 euros for four tables with 16 chairs - because they feel that the profits they make, especially those in the historical center, justify an extra dose of generosity when it comes to restroom use.

"The city has opted for facilitating more economic activity in public spaces and that is why we ask for extra cooperation and joint responsibility," says Sonia Recasens, third deputy mayor of Barcelona. Although she understands the call for municipal pay toilets on the street, these also have a maintenance cost and they are a further obstacle in the middle of overcrowded cities. Besides, they generate unpleasant smells. In any case, the city has vowed to sit down for talks with the sector first.

"We will not do this with the entire sector against us," says Recasens. "We must find some common ground."