44 C O N T E X T 1 3 6 : S E P T E M B E R 2 0 1 4 base the definition on other formulaic characteristics such as exterior design, signage, interior furnishings and décor, staff uniforms, menus and services.Many formula businesses are food establishments, but the term can also include petrol stations, DIY establishments, hotels and pharmacies, among others. If the intention is to limit chain outlets, there is also the question of what exactly constitutes a ‘chain’?The FBO adopted byArcata in California defines a chain restaurant as one which has various named characteristics, such as standardised menus, decor, uniforms, architecture and signs ‘which causes it to be substantially identical to more than 11 other restaurants regardless of ownership or location’.2The Arcata definition of a ‘chain’ thus means any group of 12 or more restaurants operating under the same banner regardless of ownership.The FBO adopted in Carmel-by-the-Sea in California takes a much tougher approach: it defines a formula food establishment as one which ‘adopts a name, appearance or food preparation format which causes it to be substantially identical to another restaurant regardless of ownership or location’. In Carmel, it would appear that a ‘chain’ can be very short indeed. The local authority must also decide whether it wishes to include all types of formula business, or only those of a particular type, and in practice most FBO restrictions apply to formula restaurant chains. Economic reality may mean that some kinds of formula businesses, such as pharmacies, banks and petrol filling stations, will have to be tolerated despite their impact on the traditional character and appearance of Main Streets, as otherwise there would be no outlets of these types of in the town. Thus the FBO of San Juan Bautista excludes service or community establishments, including banks, insurance brokers and estate agents from the provisions of its FBO. Similarly, while wishing to deter national formula business chains, towns adopting an FBO may also need to be careful that they do not affect successful local businesses with more than one establishment.The FBO adopted in 2006 in Portland in Maine limited formula business establishments to no more than 23, that being the number of such businesses open in the town at the time the ordinance was adopted. The owner of a local chain of sports stores threatened to close some of his stores, and another business owner cited the ordinance as a factor which had deterred her from opening a franchise deli store (which would have been part of a chain of 29 stores operating mainly in other states). In 2007 the Portland FBO was suspended, making it perhaps the shortest-lived FBO ever introduced. Most of the towns which have adopted this kind of legal mechanism are small to medium in size (San Francisco is the only major city to have adopted an FBO), and (again with the exception of San Francisco) have predominantly white populations and an average household income above the national average.The popular support for the measures may also reflect the fact that in many places where FBOs have been adopted, the residents and the local council may well have felt able to afford the luxury of protecting the local sense of place. FBOs may have a disproportionate impact on poorer residents, as one impact of formula retail controls tends to be an increase in the prices of goods in the town, as these are generally higher in non-chain establishments.3 In addition, the support of the more affluent for such ordinances reflects the fact that most ‘FBO communities’ are within easy driving distance of larger towns with the chains they wish to deter from opening. For example, the towns of Carmel-by-the-Sea and Pacific Grove in California are both within easy driving distance of the much larger town of Monterey, where there are no such restrictions. There are a few examples of a chain deciding to comply with the FBO and open an outlet without the usual formulaic trappings of the business but in most cases the FBO has deterred them from opening in those towns with an FBO. Even if an individualistic branch does open, it does not have the detrimental impact on the appearance of the downtown area which the usual signage would have. Although relatively few in number as yet, FBOs have the potential to be a useful legal mechanism for protecting not only the commercial character of a traditional main street, but also its traditional architectural and visual characteristics. References 1 For a more detailed examination of FBOs and the legal requirements for their validity see Shelbourn, C (2008) ‘Chaining the Chains: the use of formula business ordinances to protect the character of traditional commercial areas in the United States’, Journal of Planning and Environment Law, 1240–1252 2 City of Arcata Ordinance No 1333 (2002) 3 Economic impact report on intended changes to San Francisco FBO, February 2014: http:// www.bizjournals.com/ sanfrancisco/blog/2014/02/ formula-retail-economicreport.html?page=all Carolyn Shelbourn is a senior lecturer in the school of law at the University of Sheffield. San Juan Bautista Mission Church on Main Street San Juan Bautista
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