(a) Generally. It shall be unlawful to sell, offer for sale, vend, operate, maintain or serve any item from a sidewalk café without a valid permit.
(1) Application for a sidewalk café permit shall be made in writing to the director of planning and development.
(2) Permits for sidewalk cafés shall only be available under the terms of this article. The encroachment committee shall have no authority to grant permits for sidewalk cafés for any reason except as prescribed and approved hereunder by the director of planning and development or the city council.
(3) All sidewalk cafés and attendant facilities shall be inspected by the health department and the department of planning and development prior to the issuance of a sidewalk café permit.
(4) Sidewalk cafés shall be permitted only when such are abutting and contiguous to a restaurant in which food preparation, sanitation and related services for the sidewalk café shall be performed.
(5) Acceptance of a sidewalk café permit is an express acknowledgment and consent to the terms and restrictions set by this article and the regulatory authority. The grant and usage of such permit is a privilege, not a right, subject to reasonable restrictions as set out herein or as may be promulgated by the regulatory authority.
(6) As an express condition of the acceptance of a permit hereunder, recipient agrees to police for trash and debris an area extending 15 feet in each direction from the outermost portion or boundary of the sidewalk café.
(b) Insurance and indemnification.
(1) No permit shall be issued to an applicant unless verification of insurance is confirmed by a representative from the risk management division of finance. The applicant shall have filed in the city secretary’s office a certificate of insurance documenting that the applicant has secured the required insurance and agrees to keep such in force during the term of the permit a policy providing comprehensive general liability insurance in the minimum amount of $500,000 combined single limit (CSL) per occurrence for all coverages required; and the policy shall have a minimum annual aggregate of coverage to the $1,000,000 limits. Such policy shall provide that it cannot be canceled or amended without at least 30 days’ notice in writing to the director of planning and development. In addition to bodily injury and property damage coverage, such insurance policy shall include personal injury liability coverage and product liability coverage. Liquor liability insurance in the minimum amount of $500,000 is required if the applicant offers alcoholic beverages for sale. A garage policy is required if the applicant provides or offers parking facilities and/or valet service; such policy shall include garage liability coverage in the minimum amount of $500,000 combined single limit (CSL) and garagekeepers legal liability coverage according to the total value of vehicles comprising the average overall exposure to loss by perils covered by a combination of K-1, K-2 and K-3 on a Texas policy.
(2) As an express condition of the acceptance of such permit, the permit holder thereby agrees to indemnify and save harmless the city, its officers, agents, servants and employees from and against any and all claims or suits for property damage or any loss and/or bodily or personal injury, including death, to any and all persons, of whatsoever kind or character, whether real or asserted, arising out of or in connection with, directly or indirectly, a sidewalk café, its officers, agents, employees or servants; and permittee does hereby covenant and agree to assume all liability and responsibility of the city, its officers, agents, servants and employees, for such claims or suits or causes of action, whether or not such responsibility is caused by the negligence of the city, its officers, agents, employees, contractors or subcontractors.
(3) As a further condition, permit holder by acceptance of the permit expressly agrees to indemnify and hold harmless and defend the city, its officers, agents, servants and employees from and against any and all claims or suits for personal injury, including death, of whatsoever kind or character, whether real or asserted, arising out of or in connection with the consumption of food products sold on any public property herein described.
(4) These conditions of indemnification shall be covenants which shall run with the title of the abutting land wherein such sidewalk café lies, or is located.
(c) Standards for sidewalk cafés. Any sidewalk café which rests in whole or in part upon any public sidewalk, public park, public property, private property or public or private right-of-way shall comply with the following standards.
(1) No sidewalk café shall encroach in whole or in part upon any sidewalk or public walkway in such a manner so as to leave less than eight feet of clear and unobstructed passage for pedestrian use; except that a clean and unobstructed passageway of six feet may be permissible on those sidewalks which are less than ten feet wide where there has been a showing, by trained and registered traffic engineers, that by a traffic study measuring the peak pedestrian usage periods, that pedestrian traffic will not be significantly impeded or inconvenienced and the city traffic engineer and city manager are in agreement that such location may be used for sidewalk café purposes.
(2) No sidewalk café may be enclosed by fixed walls except that sidewalk café boundaries may be delineated by the use of temporary barriers such as balustrades, cordons or railings. Any such temporary barrier must be easily removed and three feet or less in height above the sidewalk. Under no circumstances shall temporary barriers as authorized hereunder be allowed in the public walkway as established by the city traffic engineer. Nor shall a temporary barrier be affixed to the sidewalk or to any permanent structure, except that it may be attached by removable clips or devices approved in advance by the public works engineer. With the approval of the public works engineer, a permittee may drill holes in the sidewalk to secure such clips or devices to the sidewalk. Said clips or devices shall enable a temporary barrier to be easily attached, detached and removed without the temporary barrier, clips or devices causing damage to the sidewalk.
(3) All sidewalk cafés shall be open to the air.
(4) Canopies may be permitted in accordance with specifications, as delineated by the building code, which relate to height, placement, interference with pedestrian passage and traffic sight easements.
(5) Sidewalk cafés shall in no way obstruct the ingress to or egress from any other building or business.
(6) All sidewalk cafés and their attendant facilities or improvements shall comply with clearances required for structures in relation to utility lines as provided in the city building code.
(7) No portion of a sidewalk café or its facilities, appurtenances, planters, shrubs, tables, chairs or other materials shall be permitted in the public walkway.
(8) Sidewalk cafés shall provide and maintain adequate lighting in and around the public walkway so as to prevent inability of sidewalk users to observe and avoid obstructions. Additionally all lighting shall be in compliance with the following requirements.
a. Lighting shall not be located or affixed in a manner which shall interfere with or obscure the vision of vehicular traffic.
b. Lighting shall be shaded so as to illuminate no further than the outer boundaries of the property upon which the sidewalk café is located and in a manner such that it is not obtrusive to adjacent property owners.
c. Such illumination shall be no brighter than the illumination yielded by an ornamental street light.
d. The design or color of the lighting shall not be done in a manner which could be mistaken for a traffic signal. No red, green or amber lights shall be used.
(9) Sidewalk cafés shall not obstruct access to hydrants, street lights, telephones, mailboxes, transit stops or any other public service facility on the sidewalk or street.
(10) Sidewalk café signs shall be in accordance with the city sign code.
(11) Neither food nor beverages shall be served to a patron at a sidewalk café unless that patron is seated at a table.
(12) No sidewalk café appurtenance shall be placed, erected or constructed within two feet of a curbline.
(13) No sidewalk café shall use disposable or paper plates or napkins. Glasses, drinking receptacles and eating utensils used shall also be made of nondisposable materials. Place settings shall only be situated on tables after patrons are seated.
(d) Revocation of permit. Sidewalk café permits are a privilege, not a right, subject to demands to remove any and all facilities, without liability, upon notice by the director that public necessity requires an immediate revocation of the permit and termination of the operation or any lawful need for the site or access thereto by the city, or any utility company arises.
(1) Written notice shall be provided as promptly as possible.
(2) The notice shall provide the reason or reasons for removal and or revocation.
(Ord. 9881, § 1, passed 6-4-1987; Ord. 14934, § 8, passed 1-22-2002; Ord. 17522, §§ 5, 6, passed 4-24-2007)
Cross-reference:
Building code, see §§ 7-46 et seq.
Sign code, see Ch. 29