(A) All premises used by a licensee under this division shall be periodically inspected by the Police Chief, Building Official, Fire Marshal, City Development Director, and City Planner, or their authorized representatives, for the safety of the OPS and compliance with all applicable laws, codes, ordinances, and any conditions imposed by any board or commission. A search warrant shall not be required for such inspections, in accordance with the opinion of the Michigan Supreme Court in Gora v City of Ferndale, 456 Mich 704 (1998). It is unlawful for any licensee to deny or refuse access to the premises or to hinder the official in any manner in the performance of his or her responsibilities under this division, and such refusal shall constitute sufficient grounds for immediate revocation of a license granted under the provisions of this division. The following minimum standards shall be maintained:
(1) An OPS must comply with all applicable construction, building, and fire codes and all other governmental laws and regulations, including all technical codes, as well as the conditions of any permits, licenses, or other approvals issued for, or governing, the use of the OPS.
(2) (a) An OPS must be "open air" but be enclosed around its perimeter to prevent ingress and egress from any location except the principal structure to which it is attached. Enclosures shall consist of metal railing, wood railing, brick walls, or other durable materials approved by the Building Official. No exits, doors, or gates shall be installed in the enclosure unless required by federal or state laws or codes, or unless specifically authorized by the Fire Department, Building Official, or a board or commission. Access to the OPS, and departure therefrom, shall not be permitted from any location other than the principal structure unless for emergency purposes. The OPS shall be located adjacent and connected to the indoor premises and all patrons shall enter and exit the OPS from inside the principal structure. The perimeter of the OPS shall be shielded and screened through the use of walls, fencing, trees, shrubbery, and/or other materials designed to mitigate sound and light emanating from the OPS.
(b) Exception: An OPS licensed under this division that consists solely of outside tables provided for patrons of the business is not required to comply with this division.
(3) Lighting for the OPS shall be shielded so as to prevent glare to adjacent properties, public rights-of-way, vehicles, and pedestrians.
(4) The OPS shall only be operated in accordance with a plan approved by the City Planner (or, if applicable, the Planning Commission) for mitigation of any potential nuisance caused by the use of speakers, amplified music, televisions, displays, lighting, performances, or other forms of entertainment.
(5) If required by the City Planner due to proximity of the OPS to nearby properties that may be residential or otherwise in use, the establishment shall post conspicuous signage visible to users of the OPS advising patrons to respect neighboring properties by not yelling, screaming, littering, singing, or otherwise engaging in activities that could disturb a neighboring property, and to depart the premises at the conclusion of their visit by leaving courteously and expediently, with no loitering in the parking areas or outside of the establishment.
(6) The establishment shall employ sufficient staff to ensure that noise levels within the OPS are not distracting any nearby residents and/or businesses, and also to maintain compliance and reduce congestion. The establishment shall also maintain staff to continuously patrol and monitor the exterior of the premises to address any noise and/or nuisance issues and facilitate the dispersal of individuals loitering on the site but outside of the OPS.
(7) Unless an alternative is specifically approved by the City Planner or a city board or commission, the ingress and egress points to and from an OPS into the principal structure (if applicable) shall be designed to muffle, mask, or prevent lights, vibration, and/or sound from inside the principal structure that could impact neighboring properties by installation of a vestibule, transition room, or hallway with a sound muffling door at each access point, or by installing a sound-muffling revolving door. All ingress and egress doors shall remain closed unless being utilized for immediate ingress or egress, or unless the business is closed to the public and employees are utilizing the doors during daylight hours for cleaning, stocking, and similar business purposes.
(8) An OPS and shall be regularly maintained in a safe, clean, litter-free, and orderly condition.
(9) All chairs, benches, tables, and other installations that are part of the outdoor seating area shall be of quality, durable material and shall be removed and stored in a legal location and manner when the OPS is not in use.
(10) Elevated platforms are prohibited unless specifically authorized by the City Planner or a city board or commission.
(11) If applicable, the maximum occupancy permitted in the OPS shall be posted in the OPS and at the inside entrance to the OPS in a conspicuous place. The licensee shall ensure that the number of occupants in the OPS does not exceed the posted limit at any time. A server or other person employed by the licensee who briefly enters and exits an OPS shall not be considered an occupant for the purposes of this division.
(12) All required city, county, and state permits, licenses, and approvals shall be secured prior to any OPS license becoming effective.
(B) For an OPS that is located upon property that adjoins, or is located within 500 feet of (measured from the approved boundary of the OPS to the applicable property line), any property zoned for, utilized for, or depicted on the city's master plan for future residential purposes, the following additional regulations apply:
(1) The applicant is required to comply with a nuisance mitigation plan.
(2) The nuisance mitigation plan must be submitted by the applicant with the license application. The nuisance mitigation plan will be presented by the City Planner to the Planning Commission for review under the standards set forth in the zoning ordinance.
(3) Failure to comply with the nuisance mitigation plan as approved by the Planning Commission shall be grounds for the Planning Commission to revise or revoke the nuisance mitigation plan. Ongoing or recurring instances of noncompliance shall be submitted by the City Planner to the Planning Commission for review. A license issued under this division shall be suspended by the City Clerk in the event that the Planning Commission revokes an approved nuisance mitigation plan. The license shall be reinstated if the Planning Commission later approves a new or revised nuisance mitigation plan or if the City Planner determines that the noncompliance is otherwise corrected.
(4) Ongoing instances of unforeseen or unintended consequences adverse to other properties or which extend beyond the property line shall be submitted by the City Planner to the Planning Commission for review and consideration of potential amendments to the terms and conditions applicable to the OPS.
(Ord. No. 450, § 1, 12-20-16)