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ARTICLE V. SELLING, ENTERTAINING AND DINING 5
Notes
| 5 | Editor's note(s)— Ord. No. 3024, adopted May 27, 2003, deleted Art. V, §§ 16-141 through 16-161, in its entirety and enacted similar provisions for a new Art. V as set out herein. Former Art. V pertained to selling, entertaining and dining. A history of former Art. V can be found in the Code Comparative Table. Cross reference(s)— Licenses, permits and business regulations, ch. 9 . State law reference(s)— Pedestrians soliciting rides, employment, business or funds upon highways or streets, G.S. 20-175. |
DIVISION 1. GENERALLY
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Applicant means any person or entity that has applied for an outdoor dining area permit.
Audible performance means any performance, including but not limited to, music, dance, mimes, magicians, clowns, jugglers and/or theatrical presentations which involve or require the production of sound as an essential element of the performance.
Biltmore Village Historic District means the overlay zoning district designated by that name in Appendix 7-E of this Code, described therein and outlined on the official zoning map of the city.
Central Business District means the general use zoning district defined by that name in chapter 7 of this Code and outlined on the official zoning map of the city.
High impact area means an area identified in Appendix H of the City Code within which only one audible performance may take place within 120 feet of a location marked on the sidewalk at any single time.
Merchandise includes, but is not limited to, plants, flowers, wearing apparel, jewelry, ornaments, art work, household or office supplies, food or beverages of any kind, whether or not for immediate consumption, or other goods or wares.
Office and business uses correspond to the use tables found in Chapter 7, Article VIII of the Unified Development Ordinance.
Outdoor dining area means the space permitted for outdoor dining on public sidewalks and streets for the purpose of consuming food or beverage by patrons of an adjacent permitted business and/or by the general public.
Outdoor dining means the use of public sidewalks and streets for the purpose of consuming food or beverage by patrons of an adjacent, permitted business and/or for use by the general public outside of business hours.
Outdoor dining guide or Guide means the guidelines, standards and rules adopted by the city manager that contain the requirements that must be met to obtain and maintain an outdoor dining area permit.
Outdoor merchandise area means an area in front of or adjacent to a retail business where merchandise is located on a public sidewalk for the purpose of displaying, exhibiting, selling or offering for sale merchandise.
Performance means, but is not limited to, engaging in acting, acrobatics, dancing, juggling, magic, pantomime, playing musical instruments, puppetry, and/or recitation on any city sidewalk.
Permittee means any person or entity issued a permit by the city to operate an outdoor dining area adjacent to a public sidewalk or street maintained by the city or the North Carolina Department of Transportation.
Permanently affixed means any element of privately owned property that is attached, bolted or connected in any other way to any public sidewalk, street or other element of the public right-of-way.
Pushcart means a wheeled cart which may be moved by one person without the assistance of a motor and which is designed and used for displaying, keeping or storing any food, beverages or other articles for sale by a vendor.
Sidewalk means all that area legally open to public use as a pedestrian public way between the curb line and the public right-of-way boundary along the abutting property.
Sidewalk dining means any outdoor dining elements authorized by the city to be placed on public sidewalks for outdoor dining purposes to be used by patrons of a contiguous and adjacent permitted business, and/or for use by the general public outside of business hours.
Streetery means a structure authorized by the city to be placed on a public street within marked/striped on-street parking spaces for outdoor dining purposes to be used by patrons of an adjacent, permitted business to that area of the street, and/or for use by the general public outside of business hours.
(Ord. No. 3024, 5-27-03; Ord. No. 3266, § 1(a), 7-26-05; Ord. No. 4530, § 1, 10-25-16; Ord. No. 5047, § 1a, 10-24-23)
Cross reference(s)—Definitions and rules of construction generally, § 1-2.
(a) Except as a permit may be issued pursuant to this article V for locations within the Central Business District, the Biltmore Village Historic District, or other zoning districts where office and business uses are a permitted use, it shall be unlawful for any person to sell, offer for sale, exhibit or demonstrate any goods, wares, merchandise, mechanical devices, animals or any article of any kind whatsoever, by whatever name called, upon any public street, sidewalk, square, avenue or alley within the corporate limits of the city.
(b) Violation of this section shall be a misdemeanor and shall be punishable as provided in N.C. Gen. Stat. § 14-4.
(Ord. No. 3024, 5-27-03; Ord. No. 3266, § 1(b), 7-26-05; Ord. No. 4910, § 2, 11-9-21)
(a) None of the requirements of this article for permits or encroachment agreements shall apply to the sale of food and other products from pushcarts, outdoor dining areas, or outdoor merchandise areas which are otherwise allowed under the community events and festivals permit set forth in section 16-97.
(b) Permits issues for pushcarts and outdoor merchandise area under the provisions of this article shall be temporarily suspended at locations designated for the community events and festivals permitted under section 16-97 of this Code. Permit holders may, however, apply to continue their operation during the community event or festival pursuant to the procedures set up by the community event or festival permit holder. Community events and festivals will be posted on the city's website. Permits issued for outdoor dining areas shall not be temporarily suspended in areas designated for a community event or festival.
(Ord. No. 3024, 5-27-03; Ord. No. 4052, § 1a, 1-24-12)
All pushcarts and their operators shall meet the following requirements:
(1) The pushcart shall not be motorized or propelled in any manner other than the walking motion of the person operating the pushcart, with the exception that persons with disabilities may use a motorized system to propel the pushcart. No motorized assistance shall be used to locate the pushcart on the sidewalk or public place, with the exception that persons with disabilities may use motorized assistance.
(2) The pushcart shall be covered with an appropriate material to prevent exposure of the food or food product to wind, dust, insects and the elements and shall meet any such other regulations as may be required by the county health department or any other applicable regulatory agency. The pushcart operator shall display, in plain view, all required permits as set forth by federal, state, and local laws and shall provide a copy of health department and other regulatory agency permits and/or licenses to the city prior to the issuance of a permit by the city for the pushcart. The pushcart operator shall continuously maintain the required approvals, permits and/or licenses and provide evidence to the city of the continuous maintenance of them.
(3) The pushcart shall have attached to it a proper container for the collection of waste and trash. The pushcart operator shall be responsible for the proper disposal of waste and trash associated with the pushcart operation. No grease, waste, trash or other debris from the pushcart operation shall be deposited on or released onto city property, which includes the streets, sidewalk or other public place nor into the gutter or storm drainage system. The pushcart operator shall keep the immediate area in a 5 ft. radius from the center of the pushcart clean of garbage, trash, paper, cups, cans or litter associated with the pushcart operation. Unless otherwise permitted by the city, a pushcart operator shall not locate a container for the collection of waste and trash on the streets, sidewalks or public places nor use city trash receptacles, city street cans or other city waste disposal containers for the disposal of waste and trash associated with the pushcart operation.
(4) The pushcart shall not have attached to it any bell, siren, horn, loudspeaker or any similar device to attract the attention of possible customers, nor shall the permit holder use any such device to attract attention.
(5) Signs attached to the pushcart shall comply with the requirements of article XIII of chapter 7 of this Code.
(6) The pushcart shall be set up only in the location set forth in the operator's permit issued by the city, and shall not impede, endanger or interfere with pedestrian or vehicular traffic.
(7) The pushcart shall be set up so that a minimum of six feet of passage for pedestrians or the minimum required by the Asheville Standard Specifications and Details Manual, whichever is more restrictive, shall be provided at all times.
(8) The pushcart shall not be stored, parked or left overnight on any street or sidewalk or in any parking space of the city.
(9) The pushcart shall operate only at times between the hours of 7:00 a.m. and 2:00 a.m.
(10) No item related to the operation of the pushcart shall be placed on the street, sidewalk, public place or anywhere other than in or on the pushcart.
(11) Pushcart operators shall not consume nor be under the influence of alcohol or controlled substance while operating the pushcart.
(12) The dimensions of the pushcart shall be no greater than the following:
a. 4 feet 6 inches in height as measured from the ground to the highest point of the pushcart; and
b. 24 square feet as measured in length and width (the overall footprint), excluding any trailer hitch; and
c. 5 feet for the height of any umbrella affixed to the pushcart, as measured from the base of the umbrella to the highest point of the umbrella. No freestanding umbrella or canopy shall be used.
The city reserves the right to require smaller dimensions based upon such factors as, but not limited to, pedestrian and vehicular safety and adequate sight distances.
(13) The pushcart permit holder or her/his designee shall be in attendance at the pushcart at all times, except in case of an emergency.
(14) The pushcart operator shall comply with all federal, state and local laws when operating the pushcart.
(15) Design of pushcarts which are to be permitted for located in the Biltmore Village Historic District area must be approved by the historic resources commission prior to a permit being issued for their use in the Biltmore Village Historic District. Design of pushcarts which are to be permitted for the Central Business District must be approved by the city's planning and development director or her/his designee, using the city's downtown design review guidelines, prior to a permit being issued for their use in the Central Business District. The applicant must provide a photograph, drawing or sketch of the design of the pushcart as part of the application for a permit.
(16) Any pushcart with a valid permit as of May 15, 2003, that complies with Ordinance No. 2595(1)(b); Section 16-144 (13) passed June 22, 1999, or in operation before the passage of said ordinance, will be allowed to continue operation subject to the remaining provisions of this Code section. This exception shall be in effect until the time that the operator or his successors can no longer maintain the cart in a fashion acceptable to the Health Department or in a fashion that precludes its ready removal in the event of an emergency situation.
(17) Applications for a pushcart are required to comply with subsection 16-156(b), Encroachments.
(Ord. No. 3024, 5-27-03; Ord. No. 4052, §§ 1b, c, 1-24-12; Ord. No. 4152, § 2a, 1-8-13)
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