§ 95.10  OUTDOOR SEATING AREAS ON PUBLIC SIDEWALKS.
   (A)   Definitions. The following definitions shall apply to this section as written unless context indicates or requires different meaning:
      MEANDERING PATH. When the placement of tables, chairs or other movable object causes the pedestrian corridor to shift alignment in a horizontal manner in either direction or otherwise substantially impedes continuous unobstructed pedestrian travel.
      MEDALLION. A disc provided by the town that is affixed to the ground that identifies the limits of the approved outdoor seating area.
      OPERATOR. Any person who owns, operates, or manages a business that uses or applies to use an outdoor seating area.
      OUTDOOR SEATING AREA. A permitted seating area on a public sidewalk that is used for seating purposes by a permit holder.
      PERMIT HOLDER. Any person who holds a current permit for an outdoor seating area.
      PERMITTED BUSINESS. The business that regularly and customarily sells food or drink and is allowed to use an outdoor seating area as authorized under this section.
   (B)   Sidewalk use limited; outdoor seating area permit.
      (1)   No business may use a public sidewalk to seat its patrons without first obtaining a permit for an outdoor seating area issued by the town. No person shall place tables, chairs, or other seating on a public sidewalk in conjunction with a business without first obtaining a permit for an outdoor seating area that is issued by the town.
      (2)   A business that regularly and customarily sells food or drink may obtain a permit from the town to operate an outdoor seating area on the terms and conditions set out in this section. The permit shall specify the specific area to be used for outdoor seating, the furniture to be used within the outdoor seating area, and the proposed arrangement of the furniture.
      (3)   An outdoor seating area permit authorizes a limited use of the public sidewalk so long as that private use does not interfere with the public interest or public use of the sidewalk.
      (4)   The town may temporarily suspend a permit holder's use of an outdoor seating area for any reason and for any length of time. During periods of temporary suspension, the permit holder must remove its furnishings from the outdoor seating area and shall not use the area. Outdoor seating areas may be prohibited during special events, parades, group demonstrations, or pickets, or for any other reason deemed appropriate by the town. The town will endeavor to give permit holders reasonable advance notice before issuing a temporary suspension, including a suspension related to a special event, parade, group demonstration or picket.
      (5)   The town will endeavor to give permitted businesses a minimum of 24 hours advanced notice, using information as provided on the permit application or renewal, of any construction, repair, pressure washing, or other maintenance activity of the sidewalk to allow for the relocation of outdoor furniture.
   (C)   Sidewalk areas eligible for outdoor seating. An outdoor seating area shall meet all of the following requirements:
      (1)   The building in which the permitted business operates must share a common boundary line with a public sidewalk.
      (2)   The outdoor seating area shall not extend beyond the boundaries fronting the permitted business.
      (3)   The operation of the outdoor seating area must be related to the sale of food or drink from the permitted business.
      (4)   (a)   The outdoor seating area shall allow a minimum five-foot-wide unobstructed pedestrian corridor at all times. Wider pedestrian corridors or increased clearances may be required where warranted by pedestrian traffic or other circumstances or to comply with the North Carolina Building Code, Americans with Disabilities Act, or other laws. Furniture in an outdoor seating area may be located next to the curb (with two feet clearance) and/or adjacent to the building, so long as clearances are maintained.
         (b)   Where existing obstructions are present (such as fire hydrants, streetlight poles or other utility structures), the corridor can be measured to go around these obstructions, provided that the obstruction does not exceed one foot in diameter. For tree grates, the outdoor seating area must be located at least two feet from the outside edge of the tree grate, measured from the outer edge of the grate.
         (c)   Pursuant to G.S. § 136-27.4, any tables, chairs, or other furnishings of an outdoor seating area located within the right-of-way of any component of the state highway system must be placed at lease six feet from any travel lane. The maximum posted speed limited on the roadway adjacent to such a right-of-way is 45 miles per hour. The operator shall enter into an agreement with the town and NCDOT, as required by law.
      (5)   Outdoor seating areas must be positioned to allow a pedestrian path to continue parallel to the street without causing a meandering path.
      (6)   Where curbside abuts on-street parking, curbside tables shall be placed parallel to the street. A minimum two foot setback should be maintained from the curb edge.
      (7)   A minimum clearance of five feet must be maintained between the outdoor seating area and edge of driveways, alleys, and handicapped ramps. A minimum clearance of two feet shall be maintained between the outdoor seating area and any edge of a tree grate.
      (8)   Outdoor seating area at corners must not extend to within sight triangles at street intersections or driveway entrances.
      (9)   Clear unobstructed height of seven feet must be maintained between the sidewalk surface and overhead objects including umbrellas.
      (10)   The outdoor seating area must not block access to public amenities like street furniture, trash receptacles, and way finding or directional signs.
      (11)   The occupancy of an outdoor seating area shall not exceed the Maximum Floor Area Allowances pursuant to Table 1004.1.1 in the North Carolina Building Code.
      (12)   Above-ground town public utilities infrastructure or transportation infrastructure shall not be enclosed without written authorization of the town.
      (13)   Furniture must be portable and made of commercial grade material meant for outdoor use. The furniture located within the outdoor seating area may not exceed a dimension of 42 inches tall, 42 inches wide and 42 inches in depth. The permit holder shall keep the furniture clean, well maintained and kept in good repair. No plastic, or unfinished or pressure treated wood furniture is permitted. Furniture shall not be stacked within the outdoor seating area or against the building facade.
      (14)   Umbrellas are not allowed on tables located within ten feet of block corners. In other locations, there can be no more than two umbrellas per table.
      (15)   Lighting must not cause glare to pedestrians or vehicular traffic.
      (16)   Lighting must not be affixed to town trees or streetlights without a permit from the town.
      (17)   Outdoor seating areas must be placed in the following locations:
         (a)   For sidewalks at least 14 feet in width, the outdoor seating area may be located directly in front of the building facade, at the street edge, or in both locations.
         (b)   For sidewalks less than 14 feet but greater than ten feet in width, the outdoor seating area may be located either directly in front of the building facade or at the street edge.
         (c)   For sidewalks ten feet or less in width, the outdoor seating area shall be located directly in front of the building facade.
   (D)   Application; permit requirements.
      (1)   A person owning, operating, or managing a business that regularly and customarily serves food or drinks may apply for an outdoor seating area permit on a form approved by the town. Applications shall be submitted to and administered by the Town Planner. At a minimum, the application form shall require:
         (a)   The name, address, and telephone number of the business desiring to operate an outdoor seating area;
         (b)   The name, address and telephone number of each of the operators of the business;
         (c)   The hours of operation of the business and the proposed hours of operation of the outdoor seating area;
         (d)   A scaled drawing or site plan of architectural design standard quality (provided, however, that the Town Planner may relax this requirement and accept hand-drawn drawings and plans) showing of the proposed outdoor seating area boundary and surrounding streetscape details covering seven feet on either side of the frontage of the associated business, including but not limited to property lines, sidewalks, curb lines, lighting, trees (including tree size), tree grates, planters, street signs, bicycle parking, benches, bus stops, and fire hydrants. The drawing shall show the section of any public right of way to be used for the outdoor seating area and the section to be kept clear for pedestrian use, and depict the proposed materials and placement of tables, chairs, barriers, and other furnishings on the public right of way; and
         (e)   The furniture to be used in the outdoor seating area and its proposed arrangement.
      (2)   An applicant shall also provide:
         (a)   An application fee as provided in the Town of Franklin Fee Schedule to cover the cost of processing and investigating the application and issuing the permit.
         (b)   Evidence of a valid insurance policy, through an insurance carrier authorized or eligible to do business in the State of North Carolina for any damage to the public right of way, and for any damages for which the town (or NCDOT, if applicable) might incur liability because of property damage or personal injury arising out of the use of the public right of way for seating purposes. The minimum liability limit of the policy shall be $1,000,000. The Town of Franklin (and NCDOT, if applicable) shall be listed as an “additional insured as its interests may appear” on all certificates of insurance;
         (c)   An indemnity agreement, approved by the Town Attorney, whereby the permit holder and the permitted business agree to indemnify and hold harmless the town and its officers, agents, and employees (as well as NCDOT, its officers, agents, and employees, if applicable) from any claim arising or resulting from the operation of the outdoor seating area;
         (d)   A copy of all permits and licenses issued by the state, county or town that are necessary for the operation of the business, including health permits, ABC permits and business licenses, if no permit has been issued, the applicant shall provide a copy of the application submitted.
      (3)   No permit shall be issued until the applicant has submitted a completed application and all items required by this section.
   (E)   Permit renewals.
      (1)   A permit issued under this section shall be valid from the date of issuance and shall expire on June 30. Permits must be renewed annually by the applicant. Applications for renewal must be submitted on or before May 31. If a renewal application is not submitted by this date, a submittal shall be considered a new permit application.
      (2)   The permit renewal process shall consist of re-submission of the following:
         (a)   Application form;
         (b)   Certificate of insurance;
         (c)   Indemnity agreement;
         (d)   A copy of all permits and licenses issued by the state, county or town that are necessary for the operation of the business, including health permits, ABC permits and business licenses. If no permit has been issued, the applicant shall provide a copy of the application submitted; and
         (e)   Permit fee.
      (3)   No scaled drawing shall be required for a permit renewal unless the permit holder has rearranged or reconfigured the tables, chairs, or other furnishings used for outdoor seating purposes or otherwise revised the outdoor seating area from the previous permit year.
   (F)   Denial of application; reconsideration.
      (1)   The Town Planner shall notify the applicant in writing if it is determined that the proposed outdoor seating area does not meet the criteria established by this section. The notice shall identify which criteria were not met.
      (2)   Within 30 days of denial, the applicant may submit for reconsideration one revised plan for an outdoor seating area for the same business. The payment of a new application fee is not required.
      (3)   A revised plan that is submitted for reconsideration after the 30 day period has expired must be accompanied by a new application, including the application fee.
   (G)   Operation of outdoor seating areas.
      (1)   An outdoor seating area may be used only by the permitted business identified in the permit and only for the seating of patrons in the furniture provided by the permit holder.
      (2)   The limits of the outdoor seating area must be delineated by medallions prior to usage of the outdoor seating area. The medallions must continually remain in place while an approved outdoor seating permit is active. If a medallion is removed for any reason, the permit holder shall notify the town to have a replacement installed.
      (3)   A permit holder may place one host station, removable tables, chairs, or other items used in conjunction with seating within an outdoor seating area in the arrangement shown on the permit. No cash registers, tents, minibars or similar appurtenances shall be permitted. Furniture in an outdoor seating area shall be kept clean and in good repair.
      (4)   A permit holder may rearrange or reconfigure approved tables, chairs, and other furnishings in the permitted outdoor seating area without submitting a new application and without any fee only if:
         (a)   No prior rearrangement or reconfiguration had been submitted within the permit year.
         (b)   The permit holder within seven days of the reconfiguration provides the Town Planner with a scaled drawing or site plan as described in division (D)(1)(d) of this section of the new placement; and
         (c)   The furnishings or their new placement do not:
            1.   Extend outside of the approved area;
            2.   Constitute a danger to the health or safety of a patron or the public; or
            3.   Otherwise violate the terms of the permit.
         (d)   Notwithstanding the foregoing, the permit holder may temporarily rearrange the tables and chairs to accommodate larger groups of patrons provided all of the requirements of this ordinance are met.
      (5)   Outdoor seating areas shall be open to the air, except that seating may be located under approved umbrellas, awnings, or canopies.
      (6)   A permit holder must provide stanchions to delineate the outdoor seating area during all special events or as otherwise required by the town, or as otherwise required by applicable law or regulation.
      (7)   Stanchions, planters, pots or other portable, visible above ground barrier may be utilized to delineate the outdoor seating area at the discretion of the permit holder.
      (8)   If stanchions are utilized or otherwise required, they shall be made for commercial use; shall be movable, durable and weather resistant; shall be compliant with the standards set forth in the Americans with Disabilities Act of 1990 (as amended); shall be at least 18 inches above the sidewalk and no taller than 42 inches above the sidewalk.
      (9)   Except for the required medallions, nothing shall be permanently affixed to a sidewalk or to other public property.
      (10)   The permit holder and the permitted business shall not operate outside the area specified in the permit.
      (11)   Permit holders and operators shall keep all licenses and permits required for their business operations continuously in effect.
      (12)   Permit holders and operators shall ensure that the permitted business obeys all laws related to alcohol service and consumption. To retain an outdoor seating area permit, permit holders and operators shall ensure that no alcohol is served or consumed outside the permitted outdoor seating area.
      (13)   An outdoor seating area may be used by the permit holder only when the permitted business is open to customers.
      (14)   No outdoor seating area shall operate after 12:00 a.m. on any day of the week. Permit holders shall ensure that their outdoor seating areas are not available for use after the hours specified in this section.
      (15)   The maximum occupancy permitted in the outdoor seating area shall be posted either on the inside of a window that faces the public street adjacent to the outdoor seating area or within a weather resistant frame on the exterior of the building in a conspicuous place. The permit holder shall ensure that the number of occupants in the outdoor seating area does not exceed the posted limit at any time. A server or other person employed by the permit holder who briefly enters and exits an outdoor seating area shall not be considered an occupant for the purposes of this subsection.
      (16)   If the permit holder chooses to display signage that notifies patrons of the physical limits of the outdoor seating area for the purpose of clarifying the allowable area for consuming alcohol served by the permit holder, this signage shall either be placed on the menu or posted on the table top and shall not exceed one square foot in size.
      (17)   The permit holder shall keep the outdoor seating area and the adjacent seven feet of public space surrounding it clean of any solid waste, including, food debris, paper, cups, bottles, cans, and other garbage associated with the operation of the outdoor seating area space on a daily basis. The public right of way within and adjacent to the outdoor seating area must be washed down with water and detergent when needed and cleaned on a daily basis. Any stains from spills must be removed. The permit holder must properly dispose of all waste and trash.
      (18)   The permit holder is responsible for timely removal of snow and ice from the outdoor seating area. No ice-melt should drain into tree pits.
      (19)   The permit holder is responsible for the maintenance, upkeep, cleanliness and security of furniture and accessories used in the outdoor seating area.
   (H)   Additional requirements for N.C. DOT streets. In addition to the requirements set out in this section, when an outdoor seating area is located on a sidewalk along an N.C. Department of Transportation street or highway, applicants and permit holders shall meet all requirements established by the N.C. Department of Transportation.
   (I)   Assignment prohibited; effect of ceasing business operations.
      (1)   An outdoor seating area permit is not transferrable or assignable. The permit authorizes use of the outdoor seating area by the permit holder for the permitted business. Any change in the ownership of a business after the issuance of an outdoor seating area permit shall cause the permit to be immediately invalid and require the new owner to reapply for the permit. A change in ownership shall mean acquisition of more than 10% 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, or any change in the membership of any form of limited liability organization.
      (2)   Outdoor seating area permit holders shall notify the town when business operations cease. If business operations cease at the business for 30 calendar days or longer, the outdoor seating area permit shall automatically terminate.
   (J)   Enforcement.
      (1)   Civil penalties.
         (a)   Violations of any of the provisions of this section will result in the following civil penalties:
            1.   First offense in any 12-month period: $100.
            2.   Subsequent offense in any 12-month period: $500.
         (b)   The Town Manager or the Manager's designee may issue a notice of violation assessing civil penalties. The notice shall be issued in writing and shall set forth with reasonable specificity the basis for the civil penalty. The notice of violation shall be served by registered or certified mail, or by personal service. 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.
         (c)   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.
         (d)   If a person fails to pay any civil penalty within 30 days after the decision becomes final, the town may recover the penalty, together with all costs allowed by law, by filing a civil action in the General Court of Justice in the nature of a suit to collect a debt.
      (2)   Administrative fee. Any person who violates this article shall pay an administrative fee of $100 per violation.
      (3)   Permit suspension. If a person violates any provision contained in this section twice in any twelvemonth period, any outdoor seating area permit issued to or on behalf of that person shall be suspended for 30 days. If a person violates any provision contained in this section three or more times in any 12-month period, any outdoor seating area permit issued to or on behalf of that person shall be suspended for 12 months.
      (4)   Other remedies. In addition to civil penalties and permit suspension, a violation of this division may also be enforced through injunctive or other equitable relief, or a combination of remedies
      (5)   Appeals.
         (a)   A party aggrieved may appeal any decision under this section to the Town Manager within 15 calendar days after the contested decision. An appeal must be made in writing and shall contain the reasons supporting the appeal and any evidence that supports it. The person appealing may review the evidence that is the basis of any suspension or violation during the town's normal business hours. The Town Manager or his designee shall review the information provided and shall issue a written decision determining whether a violation has occurred.
         (b)   After receiving a determination from the Town Manager or his designee, a party aggrieved may appeal to the Town Council within 21 calendar days after the Town Manager's decision (or the decision of his designee) was mailed. The scope of the Town Council's review shall be limited to verifying the facts supporting a written decision or findings of fact made on a suspension. If the Town Council finds that the facts as found are correct, the civil penalty, administrative fee, or suspension shall not be disturbed.
(Ord. 2020-002, passed 4-13-2020)