A Delray Beach restaurant is fighting city hall.
They say they should be allowed to use their balcony to serve their own customers.
Butch Johnson, the owner of 32 East, spent $175,000 to build the only balcony dining on Atlantic Avenue.
City Hall says they can't use it because it's technically over the city's right-of-way.
"Wouldn't you like to sit up here and sit over the Avenue and have dinner? Pretty cool, huh?" said Johnson.
City commission allowed him to build the thirty-by-ten balcony.
But then the city manager sent a letter saying 32 East can't put tables on it.
Because the last four feet dangle over the public sidewalk.
And even though Johnson already rents the space below for sidewalk dining - the city says there are no rules governing the air space above it.
They want him to pay the city the market rate for the right to use the air.
"There's nothing much we can do with it the way it stands now," said Johnson.
In fact, Johnson doesn't even disagree that he should pay city hall for the airspace.
He just wants city commissioners to make rules for balcony dining so he can use the balcony over space he already rents.
Commissioner Adam Frankel is on Johnson's side.
"The sidewalk belongs to the city. Up there? The city doesn't own the air," said Frankel.
Johnson says the city should continue its streak of making business-friendly decisions, on an avenue that has reaped the benefit.
"The city is really good with entrepreneurs, builders, restaurateurs. They have to be careful they don't set a precedent that will disturb what they've already legislated," said Johnson.
City commissioners will decide on Tuesday night.
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