(A) Except as otherwise authorized by statute or ordinance (including §§ 90.07 and 90.08 below), and except to the extent required by the performance of some function authorized or mandated by a statute or ordinance, no person may obstruct or impede travel in the public streets or sidewalks within the town by placing or leaving any object within the traveled portion of the public right-of-way.
(B) Except as provided in this section, division (A) above applies, but is not limited to goods, wares or merchandise displayed for sale. Partial obstruction of a public sidewalk for a sidewalk sale is permissible in accordance with a permit issued by the Administrator upon a finding that:
(1) The sale will not extend for more than 3 consecutive days;
(2) The obstruction will take place only during daylight hours;
(3) The permit, together with any other permits issued to the same applicant or to other applicants for sale at the same location, will not authorize an obstruction for more than ten days during any 365-day period; and
(4) The sidewalk will only be partially obstructed, leaving at all times an unobstructed passageway in accordance with the Americans with Disabilities Act (ADA).
(C) If a permit is issued pursuant to division (B) above, no person may cause, suffer or permit the operation of a sidewalk sale in violation of the conditions set forth in divisions (B)(1) through (4) or any other conditions attached to the permit.
(D) Division (A) above shall not apply to temporary obstructions caused by persons engaged in construction work on abutting property when proper warning devices are maintained in accordance with § 90.04.
(E) Except as otherwise provided in this section, pertaining to sidewalk dining:
(1) General. Notwithstanding any other provisions of this code to the contrary, sidewalk dining shall be permitted and shall be subject to such regulations as are set forth in this section.
(2) Permit required. The establishment of a sidewalk dining area shall require the issuance of a permit in accordance with the requirements of this section. A permit shall not be required for sidewalk dining in instances where no seating or tables are provided.
(3) Application. Any restaurant, wine shop, or eating establishment, as defined herein, desiring to operate a sidewalk dining area shall prepare and file an application with the City Manager or his or her authorized representative, which shall contain the following information:
(a) The name, address and telephone number of the business desiring to operate a sidewalk dining area.
(b) The name, address and telephone number of the business operator.
(c) The type of food, beverage, or food product to be sold and served at or on the sidewalk.
(d) The hours of operation of the business and the proposed hours of operation of the sidewalk dining area.
(e) A drawing or site plan showing the section of sidewalk or pedestrian way to be used for the sidewalk café dining area, and the section to be kept clear for pedestrian and fire lane use, and depicting the proposed placement of tables, chairs, barricades, umbrellas, trash receptacles, and other furnishings on the sidewalk or pedestrian way.
(f) Proof of an insurance policy, issued by an insurance company licensed to do business in the State of North Carolina, protecting the permittee and indemnifying the city from all claims for damages to property and bodily injury, including death, which may arise from operations under or in connection with the permit. Such insurance shall name the city as additional insured and shall provide that the policy shall not terminate or be canceled prior to the expiration date without 30 days' advance written notice to the city. Such insurance shall afford minimum limits of $1,000,000 of general liability coverage annually.
(g) A copy of all the permits and licenses issued by the county, state or the city, including health and ABC permits and business licenses, necessary for the operation of the business, or a copy of the application for the permit if no permit has been issued. This requirement includes any permits or certificates issued by the city or other governmental authority, for exterior alterations or improvements to the restaurant, eating establishment, or wine shop.
(h) A sworn statement describing any violation by the operator of any laws, regulations, or ordinances relating to the possession, sale, consumption, or transportation of intoxicating beverages or controlled substances during the five years immediately preceding the date of the permit application.
(i) Such additional information as may be requested by the City Manager or his or her designee to determine compliance with this section.
(j) An annual fee in the amount of $25 to cover the cost of processing and investigating the application and issuing the permit.
(4) Issuance of permit. No permit for the operation of a sidewalk café dining area may be issued unless the application is complete and the following requirements are met:
(a) Sidewalk dining areas must be associated with one of the following business types:
1. An
OPERATING RESTAURANT
, defined as an establishment substantially engaged in the business of preparing and serving meals. A restaurant's gross receipts from food and nonalcoholic beverages shall be not less than 30% of the total gross receipts from food, nonalcoholic beverages, and alcoholic beverages. A restaurant shall also have a kitchen and an inside dining area with seating for at least 36 people. A restaurant may sell for on-premises consumption those spirituous liquors, wines, malt beverages, and any other alcoholic beverage as permitted by the N.C. Alcohol Beverage Commission. Sidewalk dining associated with a restaurant shall fall such that it is under the same management and shares the same food preparation facilities, rest room facilities and other customer convenience facilities as the restaurant. The sidewalk café dining area must be operated under the same name as the restaurant and may not be open or operated at any time when the restaurant is not open for business.
2. An
OPERATING WINE SHOP
, defined as an establishment authorized to conduct the retail sale of malt beverages, unfortified wine, and fortified wine in the manufacturer's original container for consumption off the premises, conduct wine tasting on the premises that are conducted and supervised by the permittee in accordance with G.S. § 18B-1001, Subdivision (15), and ship malt beverages, unfortified wine, and fortified wine in closed containers to individual purchasers inside and outside the state. The primary purpose of a wine shop is selling malt beverages and wine for consumption off the premises and regularly and customarily educating consumers through tasting, classes, and seminars about the selection, serving, and storing of wine pursuant to the wine shop permit requirements of the N.C. Alcohol Beverage Commission. Sidewalk dining associated with a wine shop shall fall under the same management and shares the same food preparation facilities, rest room facilities and other customer convenience facilities as the wine shop. The sidewalk dining area must be operated under the same name as the wine shop and may not be open or operated at any time when the wine shop is not open for business. In addition, the wine shop must meet the following criteria:
3. An
OPERATING EATING ESTABLISHMENT
, defined as an establishment engaged in the business of regularly and customarily selling food, primarily to be eaten on the premises. Eating establishments shall include businesses that are referred to as restaurants, cafeterias, or cafes, but do not qualify under the definition of a restaurant as provided above. Eating establishments shall have an inside dining area and seating but are not required to contain a kitchen or a minimum number of seats, and an eating establishment may sell for on-premises consumption those wines and malt beverages or any other alcoholic beverage as permitted by the N.C. Alcohol Beverage Commission. Sidewalk dining areas associated with an eating establishment shall fall under the same management and share the same food preparation facilities, rest room facilities and other customer convenience facilities. The sidewalk dining area must be operated under the same name as the eating establishment and may not be open or operated at any time when the eating establishment is not open for business.
A. Sidewalk dining areas must be, clearly incidental to the associated business. The seating capacity of the sidewalk dining area may not be more than 50% of the interior seating capacity of the associated business.
B. The proposed hours of operation shall be no earlier than 8:00 a.m. and no later than 11:00 p.m. daily.
C. The placement of tables, chairs and other furnishings as shown in the drawing submitted with the site plan must be done in such a manner that is in accordance with the Americans with Disabilities Act (ADA) to ensure unobstructed space remains on the sidewalk or pedestrian way for the passage of pedestrians. No fire exits or lanes may be blocked and such must remain clear at all times.
D. The business seeking to operate sidewalk dining must front on and open onto the sidewalk or pedestrian way proposed for the sidewalk dining. The placement of tables, chairs, and other furnishings may not extend beyond the sidewalk or pedestrian way frontage of the associated business, with the following exception. Tables, chairs and other furnishings may extend up to 12 feet on the adjacent property frontage in either or both directions with the written permission (provided at the time of application) of the occupant of the adjacent property (see graphic below).
E. The tables, chairs and other furnishings used in the sidewalk café dining area shall not be anchored and shall be of a type of street furniture that is easily movable.
F. Except as elsewhere permitted by the code, the operation or furnishing of the sidewalk dining area shall involve no permanent alteration to or encroachment upon any street, sidewalk, or pedestrian way or to the exterior of the associated restaurant, wine shop, or eating establishment.
G. Trash and debris. Each operator conducting sidewalk dining shall provide adequate trash receptacles for its patrons. At the end of each business day and during operating hours, the operator shall remove all trash and debris of any sort from the area, and in addition shall remove from the sidewalk alongside and abutting properties any trash or debris originating as a result of the operation of the sidewalk dining area.
H. Alcoholic beverages. Notwithstanding any other provisions of this code, alcoholic beverages may be served in approved sidewalk café dining areas provided that the following requirements are met:
i. Sidewalk dining shall be part of a restaurant, wine shop, or eating establishment as defined above and shall otherwise be authorized, permitted, or licensed under the state law and city code to serve and sell alcoholic beverages for on-premises consumption.
ii. The portion of the sidewalk dining area where alcohol is or may be served shall be enclosed by clearly visible barricades and shall not have more than two points of ingress and egress.
iii. The sidewalk dining area must be included as part of the premises for which an ABC permit is issued pursuant to G.S. § 18B-1001, or other state law, for the purpose of applying and enforcing state laws regarding the sale or consumption of alcoholic beverages.
iv. Signs shall be posted, visible at all exit points from the sidewalk café dining area, that it is unlawful to remove alcoholic beverages from the premises.
v. The business operator shall not have violated any law, regulation, or ordinance relating to the possession, sale, transportation or consumption of intoxicating beverages or controlled substances for the three years preceding the commencement of the sale of alcoholic beverages at the sidewalk café dining area.
vi. Outdoor bars or outdoor alcoholic beverage preparation is prohibited within the sidewalk dining area.
I. Denial. A permit may be denied if it is found that the granting of the permit would not be in the public interest. Any applicant denied a permit to operate a sidewalk dining area shall receive a written statement outlining the grounds on which the denial is based. The applicant may appeal the denial of the permit to the City Council within 15 working days after the date of the written denial and the City Council may take such action as it shall find necessary. The findings and determination of the City Council shall be final.
J. Terms and transfer. Permits for a sidewalk dining area issued in accordance with the provisions of this section shall:
i. Be issued for the period beginning July 1 or thereafter and expiring June 30 of each year. If a permittee discontinues the business operation or sidewalk café dining area, no refund of the permit fee shall be made.
ii. Not be transferable or assignable.
K. Permit revocation. The City Manager or his or her authorized representative may revoke a permit issued pursuant to this section if he or she finds that the business operator has:
i. Deliberately misrepresented or provide false information in the permit application.
ii. Violated any provision of the County Health Department regulations or of this section.
iii. Violated any law, regulation, or ordinance regarding the possession, sale, transportation or consumption of intoxicating beverages or controlled substances.
iv. Operated the sidewalk dining area in such a manner as to create a public nuisance or to constitute a hazard to the public health, safety, or welfare, specifically including failure to keep the area clean and free of refuse.
v. Failed to maintain any health, business or other permit or license required by law for the operation of a restaurant, wine shop, or eating establishment business.
vi. Fails to consistently maintain the sidewalk dining area in a neat and trash free manner.
vii. Operates the business or sidewalk dining area in violation of any city, county or state law, ordinance, or regulation.
(F) Except as otherwise provided in this section, pertaining to sidewalk furniture:
(1) General. Notwithstanding any other provisions of this code to the contrary, sidewalk furniture not placed by the city shall be permitted in the central business district as indicated on the official zoning map of the city and shall be subject to such regulations as are set forth in this chapter.
(2) Permit required. No person, firm or corporation shall erect, place or maintain any benches, chairs, planters or other street furniture on any publicly owned rights-of-way without first having obtained a permit from the city. The City Manager or his or her authorized representative may issue a permit for the placement of benches, chairs, planters or other street furniture at specified locations along publicly owned rights-of-way on a sidewalk, sidewalk area, shoulder or plaza provided the following criteria are met:
(a) The use of benches, chairs, planters and/or street furniture should be designed to enhance and blend in with the surroundings. Street furniture shall not be permitted if it endangers the public health or safety or prohibits pedestrian passage or entrance to any establishment.
(b) The placement of street furniture must not extend more than six feet from the building wall, with benches and planters placed flush against building fronts. The placement of the furniture may not extend beyond the sidewalk or pedestrian way frontage of the associated businesses.
(c) No street furniture may be placed in any location whereby the clear space for the passageway of pedestrians is not in accordance with the Americans with Disabilities Act (ADA).
(d) All street furniture unless otherwise specified in sidewalk dining must be removed from the public right-of-way at the end of the business day.
(e) The owner is required to maintain the street furniture and the area surrounding its placement in a clean and safe condition.
(f) Street furniture shall contain no advertising except the business name and/or the name of a product or products sold in the business.
(3) Application. Application for a permit shall be made on forms provided by the City Manager or his or her designee. The application shall be accompanied by information showing the type of furniture to be placed and a site plan or photograph showing its proposed location.
(4) Separate from sidewalk dining. Permits issued for street furniture pursuant to this section shall be considered separate from permits and requirements for other right-of-way usage permits such as sidewalk dining and sandwich boards. The City Manager or his or her authorized representative, in his or her discretion, may limit the number of permits available at each business location.
(5) Permit revocation. Permits issued pursuant to this section may be revoked due to public need of the right-of-way, non-compliance with the provisions of this section, or any other reason deemed sufficient to the city. If upon revocation, the street furniture is not removed upon ten days' notice, the city shall have the right to remove such street furniture.
(Ord. passed 5-28-2013) Penalty, see § 90.99