HomeMy WebLinkAbout2009-5-7551112321
ORDINANCE NO. 2009-5-7551
AN ORDINANCE CREATING A PERMIT PROCEDURE FOR THE
OPERATION OF A SIDEWALK CAFE, AND ESTABLISHING VARIOUS
REGULATIONS THAT GOVERN THE OPERATION OF SIDEWALK CAFES TO
ENSURE THE PUBLIC'S CONTINUED USE OF THE CITY'S SIDEWALK RIGHT-
OF-WAYS
WHEREAS, the City Commission has determined that the operation of sidewalk
cafes in certain areas of downtown Paducah would be beneficial to the development and
economic prosperity of Paducah, and would enhance and promote the use and enjoyment of the
downtown area by members of the general public; and
WHEREAS, it is the consensus of the City Commission that the operation of a
sidewalk cafe should be subject to a permit process, and specific regulations that ensure that the
operation of sidewalk cafes will not interfere with the public's use of the City's right-of-ways.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION
OF THE CITY OF PADUCAH, KENTUCKY, AS FOLLOWS:
SECTION 1. Purpose and Intent. The purpose and intent of this chapter is to
accord restaurant operators a permit to operate a sidewalk cafe on public sidewalks that are
contiguous to their restaurant facility, provided that the operation of the sidewalk cafe does not
unreasonably interfere with or obstruct the public's use of the sidewalk. This chapter shall create
a permit procedure for the operation of a sidewalk cafe, and establish various regulations that
govern the operation of sidewalk cafes to ensure the public's continued use of the City's
sidewalk right-of-ways.
SECTION 2. Definitions. For purposes of this chapter, the following definitions
shall apply, unless the context indicates or requires a different meaning:
Administrator. The Administrator under this Chapter shall be the City Managers
designee.
Dedicated Access Area. The area within a permitted area that is exclusively
dedicated for use as a public right-of-way through a permitted area.
Licensed Operator. A restaurant operator who is issued a permit to operate a
sidewalk cafe within a permitted area.
Permitted Area. The area of a sidewalk that is licensed to a restaurant operator
for use as a sidewalk cafe.
Permitted Trade Accessories. Trade accessories, including tables, chairs,
umbrellas, and temporary service stands that are permitted for use in a permitted area.
Person. Includes a firm, association, organization, partnership, trust, company or
corporation, and an individual.
Restaurant Enterprise. A business that engages in activities commonly associated
with a restaurant business which primarily pertain to the retail sale of food and beverages,
including alcoholic beverages.
Restaurant Facility. A building that is used and occupied for the operation of a
restaurant enterprise.
Restaurant Operator. The operator of a restaurant enterprise that is conducted
within a restaurant facility, including an operator who is the owner of the restaurant facility, and
an operator who leases the restaurant facility from the owner.
Sidewalk. A public right-of-way that is used for pedestrian traffic as determined
by the Administrator.
Sidewalk Cafe. The operation of a restaurant enterprise upon and within a
permitted area. The operation of a sidewalk cafe shall be limited to the sale and service of food
and beverages, including alcoholic beverages, and the use of permitted trade accessories that are
associated with that operation.
SECTION 3. Administration and Enforcement. The Administrator shall be
responsible for the administration, oversight, and enforcement of the provisions under this
chapter.
SECTION 4. Permit Required for Operation of Sidewalk Cafe.
(A) It shall be unlawful for any person to operate a sidewalk cafe upon any
part of a sidewalk unless that person is a restaurant operator who has received a permit that has
been issued under the provisions of this Chapter.
(B) Sidewalk cafes are only permitted in a Sidewalk Cafe Zone (Attachment
A). Accordingly, permits shall only be issued for sidewalk cafes located in a Sidewalk Cafe
Zone. Sidewalk cafes shall not be permitted on 3rd or 4th Street.
SECTION 5. Application for Permit for Sidewalk Cafe.
(A) In the event a restaurant operator intends to operate a sidewalk cafe on the
sidewalk that is contiguous to the restaurant facility, the restaurant operator shall submit a
written application to the Administrator for a permit that authorizes the operation of a sidewalk
cafe within the sidewalk area. The application shall be made on a form furnished by the
Administrator. The information to be provided by the restaurant operator under the form shall
include, but not be limited to, the following:
(1) Name, home and business address, and telephone number of the restaurant
operator, and any contact person that may be designated by the operator.
(2) Name, home and business address, and telephone number of the property
owner of the restaurant facility.
(3) A description of the restaurant operator's right to use the restaurant facility
for a restaurant enterprise.
(4) A description of the nature of the restaurant enterprise that is conducted
within the restaurant facility, including a description of the types of food
and beverages that are sold in the enterprise, and the types of alcoholic
beverages that are a part thereof.
(5) A legible plat that provides a clear and accurate depiction of the following
items:
(a) The area of the sidewalk that is contiguous to the restaurant
facility, and an exact measurement of that area.
(b) The proposed location of the proposed trade accessories that will
be used in the operation of the sidewalk cafe, and the exact
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measurement of those accessories. The restaurant operator shall
also provide an itemization of the proposed trade accessories on
the face of the plat, or as an attachment to the plat. The
administrator may require that pictures be submitted of all trade
accessories.
(c) Exact location of any structures located within the sidewalk area,
including trees, poles, trash receptacles, utility boxes, etc.
(d) The proposed location and measurement of the area of the
„ sidewalk that will be dedicated for use as a public right-of-way.
(6) The name and address of the insurer, and its agent, who provides
comprehensive liability coverage for the operation of the restaurant
enterprise, and the parameters of such coverage.
(7) The name and address of the insurer, and its agent, who provides liquor
liability insurance for the sale of alcoholic beverages, and the parameters
of such coverage.
(8) A certification by the restaurant operator with respect to the following
matters:
(a) The restaurant operator has been issued and holds a valid and current
city business license certificate for the restaurant enterprise.
(b) The restaurant operator has been issued and holds valid and current
state and local permits for the sale of alcoholic beverages, if applicable.
(c) The restaurant operator has reviewed the regulations under this
Chapter, and agrees to operate the proposed sidewalk caf6 in compliance
with those regulations.
(11) The restaurant operator shall attach to the application a true and exact
copy of the city business license certificate, the comprehensive general
liability insurance and liquor liability insurance policies (including the
declaration sheets), and the state and local alcoholic beverage permits.
SECTION 6. Issuance of Permit.
(A) Upon submission of the application, the Administrator shall evaluate all
pertinent facts with respect to the proposed sidewalk cafe. In making this evaluation, the
Administrator review and evaluate the information provided in the application and the
attachments. The Administrator shall also inspect and evaluate the restaurant facility and
sidewalk area described under the application, and the businesses and uses of property that exist
in proximity of that area. The Administrator shall also inspect and evaluate all of the public
right-of-ways that are located in that area.
(B) The Administrator shall have the right to discuss the contents of the
application with the restaurant operator, and to request additional information that will assist the
Administrator in his evaluation. The restaurant operator shall cooperate with the Administrator
in this process, and provide any information or documentation that is requested by the
Administrator.
(C) The Administrator shall also have the right to discuss the proposed
sidewalk caf6 with property owners and business operators who own or conduct businesses in
proximity of the proposed sidewalk caf6. The Administrator shall also have the right to discuss
the proposed sidewalk caf6 with other city department members, including members of the
police and engineering departments.
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(D) Upon completion of the evaluation process, the Administrator shall
determine whether the issuance of a permit for the proposed sidewalk cafe complies with the
standards defined under Section 7 of this Chapter. In the event the Administrator determines
compliance, the Administrator shall issue a permit that will accord the restaurant operator a
license to use the permitted area for the operation of a sidewalk cafe. The permit shall
incorporate a plat that accurately depicts and defines the following items:
(1) The specific location and measurement of the permitted area;
(2) The specific location and measurement of the permitted trade accessories;
and
(3) The specific location and measurement of the dedicated access area.
(E) Prior to the issuance of the permit, the Administrator shall require the
restaurant operator to cause the City to be named as an additional insured under the
comprehensive general liability policy that insures the restaurant enterprise, and the liquor
liability insurance policy that insures the sale of alcoholic beverages. The Administrator shall
not issue the permit until such time that the he receives a valid certificate that evidences the
City's status as a named insured under the policies, and the City Risk Manager's acceptance of
those policies.
(F) Permits issued under this Chapter are personal to the licensed operator,
and are not assignable.
SECTION 7. Standards for Permit. The standards for the issuance of the permit,
and the continuance of that permit, are as follows:
(A) The restaurant operator has complied with all application requirements
and has cooperated in the Administrator's evaluation of the application.
(B) The proposed designated access area provides the public an adequate and
sufficient right-of-way through the permitted area, and is compliant with the requirements under '
the federal "American with Disabilities Act". In no case shall the dedicated access area be less
than five (5) feet in width.
(C) The proposed sidewalk cafe does not unreasonably or materially impair
the use of other property in proximity of the proposed sidewalk cafe, including the business
operations that are conducted thereon.
(D) The proposed sidewalk cafe will not disturb or disrupt vehicular traffic on
adjoining public streets and thoroughfares, or create any traffic congestion that could endanger
the safety of the public using those streets and public thoroughfares.
(E) The proposed trade accessories shall be constructed in a good and
workmanlike manner, and shall consist of good quality materials that are durable, fire resistant,
safe for outdoor use, and aesthetically pleasant.
(F) The operation of the proposed sidewalk cafe is adequately insured under a
comprehensive general liability policy that names the City as an additional insured. The policy
shall stipulate limits of not less than $1 Million for an accident affecting any one person, and not
less than $500,000 for property damage, and shall be acceptable to the City's Risk Manager.
(G) The sale of alcoholic beverages from the sidewalk cafe operations is
adequately insured under a liquor liability insurance policy that names the City as an additional
insured. The policy shall stipulate limits of not less the $ 1 Million per occurrence, and shall be
acceptable to the City's Risk Manager.
(H) The restaurant operator has procured and will continue to maintain all
business license certificates and permits that are required for the operation of the sidewalk cafe,
and the service and sale of alcoholic beverages.
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(I) A sidewalk cafe can be operated in a safe and secure manner within the
permitted area, and will continued be operated in such a manner.
(J) The restaurant operator (i) is financially able to operate a sidewalk cafe
within the permitted area, (ii) does not have history of being noncompliant with City ordinance
or continually delinquent in paying City taxes, and (iii) has not had a previously issued permit
revoked in the last 12 months.
SECTION 8. Denial of Permit.
(A) In the event the Administrator determines that the proposed sidewalk cafe
does not comply with the standards under Section 7, the Administrator shall provide the
restaurant operator written advice of the reasons for same. Thereafter, the restaurant operator
shall be accorded a period of thirty (30) days to correct or resolve the matters defined under the
written advice. If the restaurant operator fails to correct or resolve the matters within this period
of time, the Administrator shall issue a formal written notice of his denial of the application, and
shall mail a copy of the notice to the restaurant operator at the address set forth in the
application.
(B) The notice of denial shall set forth the following information:
(1) The specific grounds for the denial;
(2) An explanation of the applicant's right to appeal the denial, and a
description of the appeal procedure that must be followed in the event an
appeal is made.
SECTION 9. Revocation of Permit.
(A) A permit issued to the licensed operator under this Chapter is a privilege.
By reason of same, upon acceptance of the permit, each licensed operator shall have agreed to
fully comply with all of the standards and regulations under this Chapter. In the event the
licensed operator fails to comply with such standards and regulations, the City shall have the
absolute right to revoke the permit in accordance with the provisions of this section.
(B) In the event the Administrator has probable cause to believe that a licensed
operator has failed to operate the sidewalk cafe in accordance with the standards and regulations
under this Chapter, the Administrator shall provide the licensed operator written notice of such
failure, and direct the licensed operator to cure the failure, or discontinue the act or omission that
creates the failure. In the event the licensed operator fails to remedy the failure immediately
following receipt of that notice, the Administrator shall have the right to initiate revocation
proceedings against the licensed operator, and the additional right to suspend the licensed
operator's permit. Upon suspension, the licensed operator shall immediately cease and desist
from the operation of the sidewalk cafe.
(C) In the event the Administrator has grounds to revoke a licensed operator's
permit, the Administrator shall have the right and authority to initiate and prosecute a revocation
proceeding against the licensed operator in accordance with the following provisions:
(1) The Administrator shall bring written charges against the licensed
operator, and have those written charges served on the licensed operator.
The written charges shall (i) identify the name and address of the licensed
operator, and the address of the restaurant facility, (ii) provide a statement
of facts that outline the reasons for revocation of the permit, and (iii)
provide notice of the Administrator's intent to revoke the licensed
operator's permit.
(2) The licensed operator shall have the right to submit a written response to
the charges. The licensed operator shall have the right to attach any
evidence that supports his position.
(3) The Administrator shall conduct a hearing on the matter at his office or in
the City Commission Chambers within ten (10) days following date of
service. At the time of hearing, the licensed operator shall be accorded the
right to legal counsel, to present witnesses and evidence, and to confront
witnesses. The Administrator shall make a final determination on the
matter within seven (7) days of the hearing. In the event the Administrator
finds a preponderance of evidence that supports the written charges, the
Administrator shall cause a written revocation notice to be issued to the
licensed operator informing him of (i) the revocation of the permit, and (ii)
the licensed operator's right to appeal, and a brief description of the appeal
process. Thereafter, the licensed operator shall cease and desist from any
further operation of the sidewalk cafe. In the event the Administrator
finds against the charges, the Administrator shall cause a written dismissal
notice to be issued to the licensed operator that dismisses the charges.
(4) Notwithstanding the foregoing provisions, the Administrator shall have
the right to conduct an informal conference on the matter to determine
whether the matter can be resolved by mutual agreement. The parties
shall have the right to resolve the matter by mutual agreement, and have
the Administrator enter a formal disposition of the matter in accordance
with the mutual agreement.
SECTION 10. Appeal Procedure.
(A) An aggrieved licensed operator shall have the right to appeal a denial or
revocation of a permit to the City Manager. This appeal shall be taken in accordance with the
following provisions:
(1) The aggrieved licensed operator shall file a written notice of appeal with
the City Manager's Office within a period of ten (10) days following his
receipt of the Administrator's written denial or written revocation notice.
The licensed operator shall also send a copy of the notice to the
Administrator. The written notice shall state (i) the action that the
Administrator's had taken against the licensed operator, (ii) the date that
the licensed operator received the Administrator's written notice, and
(iii) the reason or reasons why the determination should be overturned. A
copy of the Administrator's written notice shall be attached to the notice
of appeal. The Administrator shall have the right to file a written response
to the notice of appeal within five (5) days following his receipt of the
notice of appeal.
(2) Upon the City Manager's receipt of the written notice of appeal, and the
Administrator's response to the notice, City Manager shall conduct a
hearing on the matter. The hearing shall be conducted before the City
Manager at his office or in the City Commission Chambers within a period
of ten (10) days following the receipt of the Administrator's response. At
the time of hearing, each party shall be accorded the right to legal counsel,
to present witnesses and evidence, and to confront witnesses. The City
Manager shall make his determination on the matter within seven (7) days
of the hearing. In the event the City Manager concurs with the action
taken by the Administrator, he shall enter a written determination
affirming such action, and send a copy of the written determination to the
licensed operator and the Administrator. In the event the City Manager
does not find for the Administrator, the City Manager shall cause a written
notice to be issued to the licensed operator and the Administrator that
dismisses the action taken by the Administrator.
(3) Notwithstanding the foregoing provisions, the City Manager shall have the
right to conduct an informal conference on the matter with the
Administrator and the licensed operator to determine whether the matter
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can be resolved by mutual agreement. The parties shall have the right to
resolve the matter by mutual agreement, and have the City Manager enter
a formal disposition of the matter in accordance with the mutual
agreement.
SECTION 11. Regulations for Operation of Sidewalk Cafe.
(A) The licensed operator shall use the permitted area, and operate the
sidewalk cafe within that area, in conformance with the following regulations:
(1) Use of Permitted Area. The permitted area shall be used only for the
operation of a sidewalk cafe, and for no other purpose. The permitted area
shall be cordoned around the circumference of the area to contain the
operation of the sidewalk cafe within the permitted area. Provided,
however, that a part of the cordoned circumference shall be kept open to
accommodate the public right-of-way over the designated access area, and
the public's use of that right-of-way. The licensed operator shall use and
occupy the permitted area in full compliance with all federal and state law,
and in compliance with all applicable city ordinances and directives issued
by the Administrator.
(2) Use of Designated Access Area. The designated access area shall be
maintained in a continual open and unobstructed manner. The dedicated
access area shall be cordoned from the remainder of the permitted area to
ensure full and open public access upon and across the designated access
area. The licensed operator shall ensure that the operation of the sidewalk
cafe shall not encroach, impede, or otherwise obstruct any part of the
designated access area. In no case shall the designated access area be less
than five (5) feet in width.
(3) Use of Permitted Trade Accessories. Permitted trade accessories may be
placed and located in the permitted area in accordance with the designated
locations that are authorized under the permit. No other objects shall be
placed within the permitted area without the prior written consent of the
Administrator. Provided, however, the licensed operator shall be
authorized to place other objects within the permitted area if those objects
are temporarily used to carry out specific tasks that are necessary to
maintain the permitted area, the designated access area, and the sidewalk
cafe operations. These tasks include maintenance, repair and restoration
activities, and like kind activities. All umbrellas shall have a height of
seven (7) feet or more from the ground, and shall be weather resistant and
secured against wind gusts. Plastic or foam drink containers must have a
business logo on the face of the container.
(4) Operation of Sidewalk Cafe. The licensed operator shall operate the
sidewalk cafe in conformance with the following regulations:
(a) The sidewalk cafe shall be operated and maintained in a reasonable
and safe manner, and in accordance with generally accepted
standards that are customarily followed by quality sidewalk cafes.
The sidewalk cafe shall at all times be operated in full compliance
with all applicable federal, state, and local laws, including all state
and local health laws.
(b) The permitted area shall be maintained in a reasonable, safe and
sanitary condition, free of any debris and unsanitary materials.
The licensed operator shall implement procedures to prevent the
breakage of glass ware. Tables within the permitted area shall be
cleared of dirty dishes, napkins, and other like materials as soon as
reasonably practicable. The permitted area shall be left in a broom
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clean and orderly condition following the close of business of each
day.
(c) All permitted trade accessories shall be maintained in a state of
good condition and repair, and in an aesthetically pleasant
condition. No branding or advertising shall be applied to the any
of the trade accessories without the Administrator's prior written
consent. No permitted trade accessory shall be locked by chain or
other apparatus to any structure or tree that is located within the
permitted area. No accessories may be secured to the sidewalk.
(d) The licensed operator shall supervise and control the permitted
area, and ensure that no nuisance, disturbance, unruly or offensive
conduct, or loud or offensive noise occurs or emanates thereon of
therefrom. Should any of these events occur on the permitted area,
the licensed operator shall take immediate action to resolve and
terminate the event.
(e) The licensed operator shall not install any lighting within the
permitted area without the prior written consent of the
Administrator. All lighting installed in the permitted area shall be
aesthetically pleasant, and conform to and be compatible with the
surrounding structures.
(f) In the event the licensed operator sells alcoholic beverages in the
permitted area, the licensed operator shall sell those alcoholic
beverages in strict accordance with all applicable state and local laws.
The licensed operator shall also comply with any directives issued by
any state or local regulatory agency that has authority and control over
the sale of alcoholic beverages. No alcoholic beverages shall be stored
or prepared in the permitted area.
(g) Smoking is prohibited within the permitted area.
SECTION 12. Hours of Operations.
(A) A sidewalk cafe may only be operated between the hours of 7 a.m. until 11
p.m.
(B) Notwithstanding these hours of operation, in the event the licensed
operator serves alcoholic beverages, the licensed operator must comply with the permitted hours
of operation as designated under state and local laws.
SECTION 13. Duration of Permit.
(A) The duration of the permit issued under this chapter shall be for a period
of one (1) year.
(B) A licensed operator may apply for a renewal permit thirty (30) days prior
to the expiration date of the then current permit. The issuance of the renewal permit shall be
subject to the same conditions as defined under Section 5 of this Chapter.
Section 14. Permit Fees.
Upon issuance of a permit, or the issuance of a renewal permit, the licensed
operator shall pay the City a permit fee of $100.00.
Section 15. Administrator's Right to Suspend Operation for Public Necessity.
(A) The Administrator shall have the right to require any licensed operator to
suspend operations of a sidewalk cafe for any of the following reasons:
(1) The occurrence of a community or special event.
(2) The occurrence of substantial and material traffic congestion in the
downtown area.
(3) The occurrence of repairs being made to the permitted area, or to any
right-of-way or public utility in close proximity of the permitted area.
(4) The occurrence of any event that creates a public emergency or creates an
endangerment to the health, safety, and welfare of the public.
(B) The Administrator shall provide the licensed operator with written notice
that defines the event, and the times that operations must be suspended. In the event
circumstances do not permit a written notice, the Administrator shall have the right to suspend'
operations upon verbal advice.
(C) All licensed operators shall comply with any notice that is issued by the
Administrator under this section. Any failure to comply with such notice shall constitute
grounds for revocation.
SECTION 16. Display of Permit.
Every licensed operator shall display the permit issued under this Chapter in a
conspicuous place as designated the Administrator.
SECTION 17. Additional Remedies for Violations.
(A) In the event any person should operate a sidewalk caf6 without a permit,
or in the event a licensed operator operates a sidewalk caf6 after the licensed operator's permit
has been suspended or revoked, such continued operation shall be deemed as an unlawful
encroachment upon a City right-of-way. In such event, the City shall have the right to abate the
encroachment by removing the trade accessories from the sidewalk area, and recover its
expenses of removing and, if applicable, storing the accessories, from the operator.
(B) The remedies provided under this chapter are not exclusive. The remedies
are in addition to, and do not supersede or preempt other remedies and proceedings that are
available under law, including those related to criminal charges, fire safety, building codes,
zoning, health, and the like. The remedies under this Chapter do not supersede or affect other
legal rights and remedies provided under state or local law. Where two or more provisions
conflict with one another, the more stringent shall apply.
SECTION 18. Injunctive Relief.
An licensed operator's failure, refusal or neglect to comply with any of the
provisions of under this Chapter may, in addition to any other remedy provided herein, be
restrained, prohibited or enjoined by an appropriate proceeding instituted in a court of competent
jurisdiction.
SECTION 19. Severability.
If any section, subsection, or clause of this chapter shall be deemed to be
unconstitutional or otherwise invalid, the validity of the remaining sections, subsections, and
clauses shall not be affected.
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SECTION 20. Effective Date. This Ordinance shall be read on two separate days
and will become effective upon summary publication pursuant to KRS Chapter 424.
ATTEST:
Tammara S. Brock, City Clerk
Introduced by the Board of Commissioners, May 12, 2009
Adopted by the Board of Commissioners, May 19, 2009
Recorded by Tammara S. Brock, City Clerk, May 19, 2009
Published by The Paducah Sun, May 26, 2009
Ord\plan\sidewalk cafes 112321
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