(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)