[ Council Communication ]   [ Proposed Ordinance ]  

Council Communication

Title:	Discussion of adoption of a sidewalk cafe ordinance regarding use of sidewalks and public rights-of-way.
Dept:	Department of Community Development Public Works Department
Date:	March 19, 2002
Submitted By:	John McLaughlin, Director of Community Development Paula Brown, Public Works Director
Reviewed By:	Greg Scoles, City Administrator

Synopsis:	The use of city sidewalks for private purposes is essentially unregulated at this time. There is clearly a benefit to the adjacent property owners for such use. The Downtown Plan encourages outdoor dining and sidewalk cafes where appropriate. However, section 10.64 of the Ashland Municipal Code states “Except as otherwise permitted by this ordinance, no person shall use a street or public sidewalk for selling, storing, or displaying merchandise or equipment.” The main regulation taking place at this time is ensuring that there is a six-foot clear pedestrian path on the sidewalk near outdoor dining areas. This proposal is to establish an ordinance regulating the use of sidewalks and public rights-of-way for outdoor dining. On January 15, 2002, the Council directed Staff to finalize the Sidewalk Cafe ordinance and schedule it for a public hearing.
Recommendation:	Staff recommends that Council, after holding the public hearing, adopt first reading of the Sidewalk Cafe ordinance.
Fiscal Impact:	It is projected that additional staff time will be necessary to administer a sidewalk cafe ordinance. The proposed fee schedule is as follows: Application Fee: $250 Annual Permit Fee: $ 30/seat, mimimum of $100 The Parks Department charges $22/seat for outdoor dining on Calle Guanajuato. San Francisco charges $36/seat with a minimum fee of $100. Newport Beach, California charges $100 annually for areas less than 100 sq. ft. and $200 for outdoor dining areas greater than 100 sq. ft. Corvallis, Oregon charges $50 annually for a permit, or $100 if alcoholic beverages are served. After the initial application is approved, only annual renewals of the permit would be required. Should the Council concur with this fee schedule, Staff will bring back a resolution for adoption.
Background:	As stated in the Downtown Plan: “Using sidewalks for restaurant service is an old custom. They are common and popular in Europe and Latin America, and are used increasingly in the United States. Sidewalk restaurants have appeared in Seattle, Portland and Eugene in the last two years and provide good locations for a popular pastime – watching people. The restaurants require a wide sidewalk or a street dedicated solely to pedestrian travel. Ashland has several areas where limited seating can be accommodated but additional areas should be identified and exploited both on public and private lands. The best cafes are at sidewalk level in full view of passing traffic.” A policy of the Downtown Plan states: Develop a sidewalk and public space use ordinance to permit and regulate the following in the downtown area: Sidewalk seating for restaurants. Staff has reviewed the ordinances of different communities and has developed a draft ordinance encompassing the concerns raised previously.

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ORDINANCE NO. _______

AN ORDINANCE ADDING CHAPTER 6.44 TO THE ASHLAND
MUNICIPAL CODE REGULATING SIDEWALK CAFES

THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:

SECTION 1. Chapter 6.44 is added to the Ashland Municipal Code and shall read:

Chapter 6.44

SIDEWALK CAFES

Sections:
6.44.010 Purpose
6.44.020 Permit Required
6.44.030 Definitions
6.44.040 Application and Permit Fees
6.44.050 Permit Application
6.44.060 Notice Required
6.44.070 Location Rules and Review Criteria
6.44.080 Liability and Insurance
6.44.090 Forms and Conditions of Permit
6.44.100 Denial, Revocation, or Suspension of Permit
6.44.110 Penalties

6.44.010 Purpose. The purpose of this chapter is to permit and encourage sidewalk dining that is compatible with other uses of the public sidewalk. The City finds that sidewalk cafes encourage a pedestrian-oriented environment, help to create a visually attractive atmosphere and streetscape, and promote overall commerce.

6.44.020 Permit Required. Private commercial use of public sidewalks for the purpose of operating a sidewalk cafe in the City is prohibited unless a permit is obtained from the Public Works Department as provided in this chapter.

6.44.030 Definitions.

A. Abutting property owners and occupants. Any owner or occupant of property which abuts the subject sidewalk cafe site excluding public right-of-way; and any other person who has requested in writing to be provided such notice.

B. Adjacent sidewalk area. That portion of the public sidewalk between the curb line and the property line demarcated by extending the side building lines of the premises until they intersect the curb.

C. Operate a sidewalk cafe. Serving food or beverage from a restaurant to patrons seated at tables located within the adjacent sidewalk area, including, in the case of a permittee in possession of a valid license for the sale of alcohol beverages covering such sidewalk, the service of such beverages, or providing seating for patrons in the adjacent sidewalk area.

6.44.040 Application and Permit Fees. The application and permit fees shall be established by resolution of the City Council and adjusted annually by the CPI for the previous calendar year.

6.44.050 Permit Application.

A. Application for a permit to operate a sidewalk cafe shall be made at the Public Works Department on a form provided. The request for permit shall minimally contain:

1. A completed application;
2. A scale diagram of the area for sidewalk café use, with dimensions shown;
3. A certificate of insurance and endorsement form; and
4. The location and description of the tables and materials requested to be in the right-of-way.

B. Other information shall be provided as required by the Public Works Director to carry out the purpose of this chapter.

6.44.060 Notice Required. Prior to rendering a decision, the Public Works Director shall mail abutting property owners and occupants notice that an application for a sidewalk cafe has been filed. The notice shall contain the diagram submitted by the applicant, state whether or not the business is licensed to serve alcoholic beverages which may be served and consumed at the sidewalk cafe if the permit is granted, and state that all comments concerning the proposed sidewalk cafe must be received by the Public Works Department within 15 calendar days from the date of mailing the notice. The applicant shall also be required to post a copy of the public notice in a readily visible location on the frontage of the applying business establishment for 15 calendar days.

6.44.070 Location Rules and Review Criteria.

A. The Public Works Director shall review the application for its compliance with the following criteria:

1. The operation of a sidewalk cafe is limited to structures which are sited within ten feet of a public sidewalk, and which are located in one of the following zoning districts: C-1-D (Commercial Downtown), C-1 (Commercial), or E-1 (Employment).
2. The operation of a sidewalk cafe shall be located such that there is at least six feet clear and unobstructed passageway between the sidewalk cafe tables, chairs and barriers and street trees, bike racks, lamp posts, sign posts, and any other fixtures or obstructions. The Public Works Director may require more than six feet if necessary to protect the public safety. The Public Works Director may also reduce this requirement where unusual circumstances exist and where public safety would not be jeopardized.
3. The sidewalk cafe may only be located in the adjacent sidewalk area to the applicant’s business, but may extend in front of adjacent businesses with the written consent of both the property owner and the business owner, subject to review by the Public Works Director.
4. The sidewalk cafe shall be located five feet from driveways and alleys, and ten feet from intersections. These requirements may be modified by the Public Works Director where unusual circumstances exist.
5. The location of the sidewalk cafe shall be as approved by the Public Works Director.

B. The Public Works Director shall forward all applications for review by the Police Chief for any business who holds a valid liquor license, or in which alcoholic beverages are intended to be served.

1. The Police Chief upon review of the application will sign the application for concurrence with granting the permit, or;
2. Submit a memorandum of concerns to the Public Works Director for consideration.

C. The Public Works Director shall forward all applications for review by the Director of Community Development. The Director shall confirm the zoning of the request, and confirm that the proposed use is in conformance with the requirements of the Land Use Ordinance.

6.44.080 Liability and Insurance. Prior to the issuance of permit, Permittee shall:

A.  File with the City Recorder a signed statement that the permittee shall defend, indemnify and hold harmless the City, its officers and employees, from any claims for damages to property or injury to persons which may occur in connection with an activity carried on under the terms of the permit.

B.  Furnish and maintain such public liability, food products liability, liquor liability and property damages insurance as will protect permittee and City from all claims for damage to property or bodily injury, including death, which may arise from operations under the permit or in connection therewith. Such insurance shall provide coverage of not less than the amount of municipal tort liability under the Oregon Tort Claims Act. The permittee shall name the City of Ashland as an additional insured. Such insurance shall be without prejudice to coverage otherwise existing, and shall name as additional insured the City, its officers and employees, and shall further provide that the policy shall not terminate or be canceled prior to the expiration of the permit without 30 days written notice to the City.

6.44.090 Forms and Conditions of Permit.

A. Requirements for all sidewalk cafes:

1. Each permit issued shall terminate December 31st of the year in which it is issued.
2. The permit issued shall be personal to the permittee only and is not transferable in any manner.
3. The permit may be temporarily suspended by the Public Works Director if the public interest requires use of the right-of-way for a public event, construction, repair, or any other purpose.
4. The permit is specifically limited to the area approved or as modified by the Public Works Director, and will include a diagram indicating the area approved for the sidewalk cafe and the location of the tables and materials permitted to be in the right-of-way.
5. The operation of the sidewalk cafe shall be such that there is at least six feet from the outermost edge of the sidewalk cafe to the street curb, that also includes a minimum of five feet clear and unobstructed passageway between the sidewalk cafe tables, chairs and barriers and street trees, bike racks, lamp posts, sign posts, and any other fixtures or obstructions. The Public Works Director may require increased clearance distances if necessary to protect the public safety. The Public Works Director may also reduce these requirement where unusual circumstances exist and where public safety would not be jeopardized.
6. The sidewalk and all things placed there shall at all times be maintained in a clean and orderly condition. Only those things authorized by the permit and shown on the diagram may be stored in the public right-of-way when the sidewalk cafe is not in operation. Should the permittee not utilize the sidewalk as authorized for a period of 48 hours or more, all the tables and materials shall be removed therefrom.
7. The operation of a sidewalk cafe requires that trash containers be provided on site.
8. All required building modifications or parking improvements shall be completed prior to the commencement of the operation of the sidewalk cafe.
9. No signs shall be attached to any furniture, umbrellas, awnings, or other structure related to the operation of the sidewalk cafe.
10. Smoking shall not be allowed in approved sidewalk cafe areas.
11. Sidewalk cafes shall be continuously supervised by employees of the establishment.
12. Sidewalk cafes shall meet all requirements of the Jackson County Health Department.
13. Tables, chairs, and other structures associated with the sidewalk cafe shall be kept free of litter and other debris at all times.
14. Sidewalk cafes and adjoining sidewalks shall remain clear of litter, food scraps, and soiled dishes at all times. Where establishments provide take-out or self-service, an adequate number of employees must be maintained to clear sidewalk cafes on a regular basis. Sidewalk and flooring areas must be cleaned daily, including adjacent sidewalk areas.
15. The sidewalk cafe permit must be visibly displayed during business hours.
16. The City of Ashland has the right to repeal or amend this Chapter and thereby terminate or modify all sidewalk cafe operations. No permittee shall obtain any property right in the continued private commercial use of the public sidewalk.

B. Businesses which intend to serve alcoholic beverages at the sidewalk cafe must additionally meet the following requirements:

1. The business shall hold a valid Oregon Liquor Control Commission liquor license.
2. Storage of containers commonly used for dispensing alcoholic beverages to customers including but not limited to bottles, pitchers, and carafes must be kept inside the business unless an employee is stationed in the outside area at all times. No taps, kegs, coolers, or other alcoholic beverage storage devices are allowed outside on the sidewalk.
3. Sidewalk cafes where alcoholic beverages are served and consumed require supervision by employees of the license business, as required by the Oregon Liquor Control Commission liquor license.
4. All service and consumption of alcoholic beverages at sidewalk cafes shall discontinue by 11 p.m.
5. All alcoholic beverage service providers must also provide food service in the licensed area.

6.44.100 Denial, Revocation, or Suspension of Permit.

A.  The Public Works Director may deny, revoke, or suspend the permit upon finding that any provision of this chapter or condition of approval will be or has been violated.

B.  Upon denial, revocation, or suspension the Public Works Director shall give notice of such action to the applicant or permittee in writing stating the action which has been taken and the reason therefor. The action shall be effective immediately, but the applicant or permittee may make written request, within 10 calendar days after the notice is issued, for a hearing by the City Council. Upon hearing the matter, the City Council shall render a final decision concerning the permit.

6.44.110  Penalties. Any violation of this chapter shall be an infraction as defined by AMC 1.08.020. and punishable by a fine as set forth in that section. The City Administrator or designee is authorized to issue a citation to any person violating the provisions of this chapter. After two infractions, the sidewalk cafe permit shall be revoked for a period of at least one year.

The foregoing ordinance was first read by title only in accordance with Article X,

Section 2(C) of the City Charter on the ______ day of __________________, 2002,

and duly PASSED and ADOPTED this ______ day of __________________, 2002.
Barbara Christensen, City Recorder

SIGNED and APPROVED this __ day of __________ , 2002.
Alan W. DeBoer, Mayor

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