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(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)
(a) Artistic performances on city sidewalks are a vital and welcome part of Asheville's unique character and culture.
(b) Street performances are distinguished from panhandling activities by the commercial nature of the performer's actions which provide the benefit of a live performance of artistic value in exchange for gratuities given in appreciation of the performance.
(c) Persons have a right to perform on city sidewalks, but those performances can cause adverse impacts to the community in the form of gathering crowds attracted to the entertainment offered in locations where there is insufficient room for crowds; blocked sidewalks; blocked ingress and egress of buildings; the risk of disrupting nearby motor vehicle traffic; and/or disturbance of the quiet enjoyment of residents and businesses.
(d) Such adverse impacts can be mitigated or alleviated through minimally intrusive regulation of the time, place, and/or manner in which such performances may occur. Such regulation ensures the ability of street performers to perform in public spaces and promotes harmony among street performers, local businesses, permitted event sponsors, and residents and visitors by balancing the interests of performing artists with the public's safety.
(e) General requirements. Unless prohibited elsewhere in this code, performers of sidewalk entertainment may utilize sidewalks for performances subject to the following conditions:
(1) Performances must not violate the prohibitions on disturbing, annoying and unnecessary noise as set forth in article IV of chapter 10 of the city Code.
(3) Performances must not obstruct, or cause to be obstructed, pedestrian or vehicular traffic, including but not limited to, not obstructing or causing to be obstructed sidewalks, doorways or other access areas. Performances must provide a minimum of six feet for pedestrian passageway. Performances must cease if persons are stopped and observing a performance from a street.
(4) No performer may sell, display or exhibit any tangible good, on any sidewalk, in exchange for a fixed price or donation.
(5) Performances must only take place between the hours of 10:00 a.m. and 10:00 p.m.
(6) Performers of sidewalk entertainment must not consume, or be under the influence of, alcoholic beverages or other controlled substances.
(7) The following limitations on sidewalk space used for performances must be observed at all times:
a. Generally: Performances must not take place any closer than 40 feet from another performance.
b. Within high impact areas: Only one audible performance may take place on a sidewalk at any single time within 120 feet of a location marked on the sidewalk and identified in Appendix H of the city Code. Non-audible performances within such areas must not take place any closer than 40 feet from another performance.
(8) Performances must not take place at locations designated for a community event or festival, unless permitted to play at the community event or festival by the event or festival coordinator, pursuant to section 16-97 of the city Code.
(9) Performances must comply with all applicable federal, state and local laws.
(10) Performances involving the use of knives, swords, torches, axes, saws (except non-powered saws used solely as musical instruments), fire or other potentially dangerous objects or that involve acrobatics, tumbling, or other inherently dangerous activities are prohibited.
(f) 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. 4530, § 2, 10-25-16; Ord. No. 4910, § 2, 11-9-21)
(a) Permit required. Except as may be provided elsewhere within City Code, no person may use a public sidewalk or street as an outdoor dining area, nor place thereon any platform, tables, chairs, furniture, seating materials or other similar items, unless issued an outdoor dining area permit in conformance with this section, and the outdoor dining guide, as may be amended.
(b) Eligibility; application review. Any person or entity that operates a legally established business or organization that is adjacent to a city-maintained sidewalk or street may apply to the city for temporary use of a portion of the sidewalk or street as an outdoor dining area in accordance with this section and the Guide. The application, and applicable fees, shall be submitted to the city, along with any supporting documentation, which will then be reviewed by the city manager or designee for compliance with this section and the Guide.
(c) Agreement; permit.
(1) An outdoor dining area permit is a revocable license issued to an eligible permittee to use a portion of a public sidewalk or street for temporary purposes as set out herein and does not convey an interest in property, public sidewalks, streets or related infrastructure. Consistent with N.C.G.S. sec. 1-45, the issuance of a permit does not assign ownership or property rights to the permittee. The city manager or designee is authorized to execute an agreement approving a permit for an outdoor dining area, and issue, suspend or revoke such permit for the same based upon any or all of the following factors:
(a) The accuracy and completeness of the application and supporting materials, and the extent to which they comply with the requirements of this section and the Guide.
(b) A violation of this section, or failure to comply with requirements of the Guide, any outdoor dining area agreements, applicable laws and regulations.
(c) Safety and logistical issues relating to hours of operation, traffic flow, parking, and other aspects of operation.
(d) Such other information the city manager or designee reasonably believes may or may not be in the public interest, public safety, and general welfare.
(2) Once approved, the permit shall be made available for inspection upon request, and shall state on its face, at minimum, the following:
(a) The legal name, address, phone number, and email address of the permittee and its authorized representative.
(b) The approved outdoor dining area location, approved hours of operation, and permit commencement and expiration dates.
(c) Any additional information the city manager or designee deems necessary.
(d) Denial of application; reconsideration. If an application is denied, the city shall notify the applicant electronically using the e-mail address provided by the applicant stating the reasons for denial. Within 30 days of such notice, the applicant may submit a revised application with supplemental information for reconsideration. The payment of a new application fee is not required if the revised application and material are submitted within 30 days from receipt of the notice of denial.
(e) Operation and use. A permittee of an outdoor dining area shall:
(1) Comply with this section, the Guide, all rules, regulations, and laws, State and federal, including but not limited to, those related to alcohol service and consumption, and ensure that no alcohol is served or consumed outside the permitted outdoor dining area except as otherwise allowed by law.
(2) Not place any items within the outdoor dining area unless they comply with this section and the Guide.
(3) Use the outdoor dining area only for the seating of its patrons and/or the general public in accordance with the restrictions of the permit and Guide.
(4) Ensure that no items are permanently affixed to the street, sidewalk, trees, public or private property. Such items are not allowed as part of an outdoor dining area permit; an encroachment agreement must be obtained in order to permanently affix items to public property.
(5) Not operate outside the area designated in the permit.
(6) Remove snow, ice, litter and other debris from the outdoor dining area and adjacent sidewalk in a timely manner.
(7) Ensure that any outdoor dining area structures and furniture are in good working order, kept clean, well-maintained, made of commercial grade materials, are suitable and safe for commercial and/or public use and otherwise follow the standards specified in the Guide.
(8) Ensure that the outdoor dining area provides for adequate access in compliance with the American Disabilities Act, with adequate access determined at the city’s sole discretion.
(9) Ensure that any and all permittee patrons using the outdoor dining area act in an orderly, safe, and non-disruptive manner so as to not pose a safety risk to traffic or pedestrians; and if such conduct occurs, permittee shall have an affirmative duty to immediately address such conduct and notify applicable authorities.
(10) The applicant shall provide and maintain a certificate of insurance for comprehensive general liability and products and completed operations coverage in a minimum amount of $1,000,000.00 per occurrence and in the aggregate, provided that those certificates may be furnished as evidence of such coverage purchased for the applicant's principal place of business for serving food, food products and/or beverages, so long as such certificates meet the minimum acceptable requirements established in this section and shall further agree to indemnify the city against any damages related to the use.
(f) Design standards exception.
1) Notwithstanding the provisions of this section and the Guide, the city manager or designee may waive compliance with the design standards stated within this section and the Guide for permit approval if the city manager or designee finds that:
(a) Design standards exception
(b) The applicant has submitted a completed outdoor dining area application with supporting materials but is unable to comply with the design standards due to conditions that are peculiar to the sidewalk, street, or property, and not from those that are common to the neighborhood or the general public; the permittee can substantially comply with the design standards in this section and the Guide and the issuance of a permit is consistent with the spirit, purpose and intent of this section and the Guide, such that public safety is adequately protected; and such waiver does not violate State or federal laws or regulations or any other provisions of the City Code.
(2) The city manager or designee may require conditions associated with the requested waiver.
(g) Exemptions.
(1) Except for design standards stated within the Guide, the city shall be exempt from compliance with the application, permit, indemnification and insurance requirements of this section and the Guide as they may relate to use of outdoor dining areas for city sponsored or co-sponsored parklets, outdoor events, races, festivals, or concerts.
(h) Additional requirements for NC Department of Transportation streets.
(1) An applicant for outdoor dining on a NC Department of Transportation street shall meet all requirements of NC Department of Transportation.
(i) Duration and fees.
(1) Each outdoor dining area permit shall state the hours and days of operation consistent with this section and the Guide. No application shall be accepted for review unless accompanied with an application fee payable to the “City of Asheville” in accordance with the City of Asheville Fee Schedule to cover the cost of processing and investigating the application and supporting materials. If an application or supporting materials are revised within 30 days of initial submission, then an additional application fee shall not be required. If a substantial amount of information is required to be submitted for review after the 30-day period, then an additional application fee may be assessed. Permits are issued on an annual basis concurrent with the calendar year. Once issued, a permit shall be valid from the date of issuance through the subsequent December 30.
(2) A permittee may apply to renew its permit as provided for herein and the Guide.
(j) Notices of violation.
(1) The city manager or designees may issue a notice of violation assessing civil penalties for the violation of any provision of this section or the Guide. The notice shall be issued in writing and shall set forth with reasonable specificity the basis for the violation and civil penalty. The notice shall be served by registered or certified mail, by personal service using the address listed, or by email using the email address listed on the permit. When service is made by registered or certified mail, a copy of the notice may also be sent by first class mail. Service shall be deemed sufficient if the first-class mail is not returned by the Post Office within ten days after the mailing. Refusal to accept the notice shall not relieve the violator of the obligation to pay the penalty.
(2) The notice of violation shall contain a time period by which the violation must be corrected. From and after the date specified in the notice, each subsequent day that the violation continues in existence shall constitute a separate and distinct offense subject to additional civil penalties.
(k) Enforcement; violations; penalties; suspension.
(1) Except as may be provided otherwise herein, non-compliance with this section or the Guide shall be considered a violation and may subject the outdoor dining area permittee to penalties and the permit suspension and/or revocation. Violations of any of the provisions of this section or the Guide shall result in the following civil penalties:
(a) First offense in any 12-month period: $250.00.
(b) Subsequent offenses in any 12-month period: $500.00.
(2) If a violation of this section or the Guide occurs twice in any 12-month period, any outdoor dining area permit shall be suspended for 30 days. If a violation occurs three or more times in any 12-month period, then the outdoor dining area permit shall be suspended for 12 months.
(3) If the any civil penalty assessed herein is not paid within 30 days after the penalty decision becomes final, as provided herein, the city may recover the penalty, together with all costs allowed herein and by law, by filing a civil action in the General Court of Justice in the nature of a suit to collect a debt.
(l) Other remedies.
(1) In addition to civil penalties, permit suspension and revocation, a violation of this section or the Guide may also be enforced through injunctive or other equitable relief, or a combination of remedies up to and including the removal of all outdoor dining, seating and associated structures/elements.
(m) Appeals.
(1) A permittee aggrieved under this section may appeal any decision to the city manager within 30 calendar days after the permittee is notified in writing of a violation. An appeal must be made in writing and shall contain the reasons supporting the appeal and any evidence that may support. The person appealing may review the evidence that is the basis of any suspension, revocation, or violation during the city's normal business hours. The city manager or designee shall review the information provided and shall issue a written decision within 30 calendar days determining whether a violation has occurred.
(2) After receiving a determination from the city manager or designee, the party aggrieved may appeal to the city council within 30 calendar days after the decision of the city manager or designee was deposited in the U.S. mail addressed to the party aggrieved at the address on file. The scope of the city council's review shall be limited to whether competent evidence supports the written decision of the city manager or designee. If the city council finds that competent evidence supports the decision, then the civil penalty, administrative fee, suspension or revocation shall not be disturbed.
(n) Assignment prohibited; effect of ceasing business operations.
(1) An outdoor dining area permit is not transferable or assignable and is specific to the permittee’s business or organization as shown on the permit. Any change in the ownership of the permittee’s business or organization after permit issuance shall cause the permit to be immediately invalid and require the subsequent owner to apply for a new permit. A change in ownership shall mean acquisition of more than ten percent of the stock in a publicly traded corporation; any change in the ownership of shares in a privately held corporation; sale of all or part of a sole proprietorship; any change in the membership of any form of limited liability organization; or any substantial change to the permittee’s business entity as reflected with the North Carolina Secretary of State’s Office.
(2) The permittee shall notify the city when its business operations cease or there has been a change in ownership as provided herein. If the permittee’s business operations cease, or the outdoor dining area is not used for the permitted purpose for 30 calendar days or longer except during the months between December and March, then the permit shall automatically terminate and all materials such as platforms, furniture and like items shall be removed from the outdoor dining area. If permittee fails to cause such items to be so removed, then the city may remove the items as provided herein.
(o) Removal; discontinuance; costs.
(1) Should the city manager or designee find that:
(a) any and all materials in the outdoor dining area, including but not limited to structures and furniture, should be removed due to violations of this section or the non-compliance with the Guide, then the permittee shall remove such items as directed by the city; should the materials not be removed within 30 calendar days, then the city may remove the items, repair and restore the sidewalk or street to their pre-permit conditions; permittee shall be responsible for any and all costs related to the removal, storage, repair, of the materials; such costs shall be a lien upon permittee’s property, collectible in the same manner that taxes are collected, or by civil action; or
(b) for planned maintenance and repair activities of the city, the permit holder shall remove all obstructions from the needed area within 48 hours of being notified by the city of the need for removal; or
(c) circumstances warrant the immediate removal of any and all materials in the outdoor seating area such as the platform, furniture, and related items due to exigent reasons of public safety or general welfare, then such items shall be immediately removed by the permittee at the direction of the city; if such items are not timely removed as directed, then the city may remove and dispose of such items at no expense or liability to the city.
(Ord. No. 3024, 5-27-03; Ord. No. 4052, § 1d, 1-24-12; Ord. No. 5047, § 1b, 10-24-23)
Permit holders for outdoor merchandise areas and their employees shall meet the following requirements:
(1) A permit and encroachment agreement pursuant to the provisions of article III of chapter 16 of this Code shall be required for outdoor merchandise areas.
(2) Outdoor merchandise areas shall be located only in the area designated by the city and indicated in the encroachment agreement or on the permit, specifically excluding roadways. Merchandise and the fixtures or devices on which it is displayed shall be located so that they do not impede, endanger or interfere with pedestrian or vehicular traffic.
(3) Merchandise and the fixtures or devices on which it is displayed shall be located so that a minimum of six feet of passage for pedestrian traffic, or the minimum required for pedestrian passage by the Asheville Standard Specifications and Details Manual, the North Carolina State Building Code or the Americans with Disabilities Act, whichever requirement is more restrictive, shall be provided at all times.
(4) No fixtures or devices on which outdoor merchandise is displayed shall be attached to the sidewalk or other public area without the permission of the city in the encroachment agreement.
(5) Outdoor merchandise areas will be permitted only adjacent to the building or structure in which the retail business is located. Outdoor merchandise areas shall not be permitted next to the curb of the street or sidewalk or in the middle of the sidewalk or in roadways.
(6) Merchandise and the fixtures or devices on which the merchandise is displayed must not block regulatory signs, crosswalks or intersections and shall be sufficiently lit during times of low light in order to provide for safe pedestrian passage alongside the outdoor merchandise area.
(7) All merchandise located within an outdoor merchandise area shall be placed so that the outdoor merchandise and the fixtures or devices on which the merchandise is displayed are stable and not easily tipped and do not include sharp edges, protrusions, or other features which may be hazardous to the public.
(8) All displays of merchandise within the outdoor merchandise area must meet a minimum height of 28 inches tall or of sufficient size or height so that safe pedestrian traffic is not impeded or must comply with the requirements of the Americans with Disabilities Act, whichever requirement is more restrictive.
(9) All merchandise and the fixtures or devices on which the merchandise is displayed shall be moved inside the building or structure wherein the retail business is located during hours the retail business is not operated and during inclement weather, including, but not limited to, heavy rain, wind, ice or snow.
(10) All merchandise and the fixture, or devices on which the merchandise is displayed must be secured so that it may not be dislodged during windy or stormy weather prior to being moved inside the building or structure wherein the retail business is located.
(11) In the event of a declared emergency or in a situation where exigent circumstances arise, a permit holder shall remove all articles from the sidewalk when directed to do so by any law enforcement officer, fire official or emergency medical personnel.
(12) The permit holder for the outdoor merchandise area shall be responsible for the maintenance, upkeep and security of the fixtures or devices on which the merchandise is displayed and the city shall not be responsible for the same.
(13) The permit holder for the outdoor merchandise area shall be responsible for keeping the outdoor merchandise area clean of garbage, trash, paper, cups, cans or litter associated with the operation of the outdoor merchandise area.
(14) The permit holder for the outdoor merchandise area shall not have on the premises 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.
(15) Signs attached to the outdoor merchandise area shall comply with the requirements of article XIII of chapter 7 of this Code.
(16) Outdoor merchandise areas shall not contain any live animals.
(17) Design of the outdoor merchandise areas to be located within the Biltmore Village Historic District must be approved by the Historic Resources Commission prior to a permit being issued.
(Ord. No. 3024, 5-27-03; Ord. No. 4052, § 1e, 1-24-12)
Secs. 16-148—16-155. Reserved.
(a) Upon successfully completing an application and upon meeting all of the requirements in this chapter and the City Code, the city manager or her/his designee shall issue permits or execute encroachment agreements to allow outdoor dining areas, outdoor merchandise areas, or pushcarts only within the Central Business District and within the Biltmore Village Historic District or other zoning districts where office and business uses are a permitted use.
(b) A separate permit or encroachment agreement shall be required for each outdoor dining area, outdoor merchandise area, or pushcart.
(c) Pushcart vendors requesting relocation to a new site must complete a new application and pay a new application permit fee for the new location.
(Ord. No. 3024, 5-27-03; Ord. No. 3266, § 1(c), 7-26-05)
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