The men behind the bid to bring McDonald's burgers to Bermuda are set to challenge the Crown over an act banning fast food restaurants with a foreign flavour.

Governor Thorold Masefield signed the Prohibited Restaurants Act into law on Monday.

And yesterday the burger bit back when Grape Bay Ltd announced -- as predicted in Wednesday's edition of The Royal Gazette -- that they would challenge the law in Supreme Court.

United Bermuda Party MP Maxwell Burgess, who, with ex-Premier and former MP Sir John Swan is behind the bid to open a McDonald's, insisted that the legal move was not about burgers and fries -- but a Constitutional issue.

He said: "No Parliament, anywhere in the world, should be allowed to deny any citizen of his property.

"I would fight for every Bermudian's right to protect and have and hold their property.'' Mr. Burgess was speaking at the offices of legal firm Smith, Barnard and Diel, lawyers for Grape Bay Ltd, only days after the Governor officially made the anti-McDonald's act law.

He denied that the legal challenge would cause further splits in the UBP -- racked for almost two years by splits over the McDonald's issue.

Mr. Burgess said: "The bill is not a Government bill and to that end I don't see any reason why it should divide the United Bermuda Party.

"Lets just say some of our party are for the bill and some are against it.'' Lawyer Mark Diel, reading from a prepared statement, said he had been formally instructed to apply to the Supreme Court to seek a ruling on whether the Act applies to Grape Bay Ltd and, if it does, whether the Act is in breach of any of the provisions of the Constitution.

Mr Diel said: "This application is not something that Grape Bay Ltd has decided to do on the spur of the moment -- it has taken up weeks of legal research.

"This issue is not about hamburgers or french fries, neither is it about politics or personalities. It simply concerns the fundamental Constitutional rights that every person in Bermuda is entitled to.'' Mr. Diel added: "The Act completely prohibits any Bermudian restaurant from doing anything which in any way reasonably suggests a relationship with a foreign restaurant or group of restaurants.

"Prohibition of this kind undermines the Constitutional rights that any person has to the protection of his or her property, to associate with whom he or she wishes and to express his or herself in the manner that he or she wishes.'' Mr. Diel said it was Grape Bay Ltd's contention was that its contracts with McDonald's and others constitute property as a matter of law.

He added that the situation was not the same as Government's Constitutional right to deprive people of property by compulsory purchase for planning reasons.

Grape Bay prepares to challenge ban Mr. Diel explained: "We are not dealing with property in the sense of real estate, we are dealing with property in terms of contracts, which come under a separate part of the Constitution.'' And he said: "The Act deprives Grape Bay Ltd of the benefit of these contracts. The effect of the Act therefore it to deprive Grape Bay Ltd of its property. The Act is accordingly for this reason unconstitutional.

"It is also unconstitutional to prevent anyone from associating freely with others or freely expressing him or herself, unless there is valid justification for doing so. These justifications are set out in the Constitution. None of them apply in this situation.

"The Act without such justification prevents Grape Bay Ltd from associating freely with a foreign group of restaurants, namely McDonald's restaurants.

"The Act also prevents Grape Bay Ltd from expressing that association by any means, in particular by means of advertising. The Act is according for these reasons also unconstitutional.'' Mr. Diel declined to reveal who else Grape Bay Ltd has contracts with in connection with the fast food franchise issue.

But it is understood that Grape Bay's award of the food concession at Bermuda International Airport will not form part of the case because the award was conditional on the outcome of the vote in the House of Assembly.

The Act passed the House of Assembly last year after rebel MP Ann Cartwright DeCouto and four Government colleagues were joined by the PLP to force the bill through. It was later blocked by Senate -- but the Upper House can only delay legislation for a year and the Act passed through the House again in June, which meant it went to the Governor for his signature, despite Senate again voting against it.

Mrs. Cartwright DeCouto is off the Island and not available for comment -- but fellow UBP rebel Trevor Moniz said yesterday the legal challenge was "interesting.'' He added: "Their assertions are interesting and I would be interested to see what happens.'' Mr. Moniz said a similar legal challenge was mounted several years ago by fishermen angered by the fishpot ban, who claimed they had been deprived of property -- and they lost.

He added: "The track record isn't a particularly good one with cases of that kind in Bermuda. But without having seen Grape Bay Ltd's pleadings, I couldn't really speak to all the details.'' Mr. Moniz said he could not say whether Mrs. Cartwright DeCouto would want to be represented at any court hearings -- but that there was a mechanism for people not directly involved in a case to make representations.

But he added: "I'm not saying whether that's intended or appropriate in this case -- but it does happen.'' The papers are expected to be served on Attorney General Elliott Mottley after the Act appears in the official gazette.

Finance Minister Grant Gibbons -- whose Ministry granted permission for Grape Bay Ltd to operate a McDonald's in February last year -- said last night: "It's a matter for the courts at this point and I'm not prepared to comment any further.'' Mr. Diel said he expected part of the application to be dealt with "fairly quickly'', but he declined to speculate on whether the application would be contested by the Attorney General's Chambers or not or when the case might come to court.

Mr. Mottley is off the Island and Acting AG George Griffiths did not return a call from The Royal Gazette yesterday.

Transport Minister Wayne Furbert -- whose Ministry awarded a major food concession to Grape Bay Ltd as part of the Airport modernisation programme -- said last night he would be seeking legal advice once the Act is officially gazetted.

It was anticipated that Grape Bay Ltd would trade as McDonald's -- but the Prohibited Restaurants Bill going through Parliament put the plans on hold.

Mr. Furbert said: "What we would hope to do is send Grape Bay a letter informing them that, as they are aware, the Governor has signed the bill and give them a time frame on whether they want to take up their options -- these options include other sub-tenancies -- and they still have the right to put a restaurant-type organisation down there.'' GOVERNMENT GVT COURT CTS