§ 90.07  OUTDOOR SEATING AREAS ON PUBLIC SIDEWALKS OR SPACES.
   (A)   Definitions. The following terms shall apply to this section as written unless context indicates or requires a different meaning:
      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 or public space 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 or public space 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 or public space 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 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 or public space 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 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, 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 pressure washing of the sidewalk or public space 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 or public space.
      (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)   The outdoor seating area shall allow a minimum 5-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 2 feet clearance) and/or adjacent to the building, so long as clearances are maintained.
      (5)   Where curbside abuts on-street parking, curbside tables shall be placed parallel to the street. A minimum 2 foot setback should be maintained from the curb edge.
      (6)   A minimum clearance of 5 feet must be maintained between the outdoor seating area and edge of driveways, alleys, and handicapped ramps.
      (7)   Outdoor seating area at corners must not extend to within sight triangles at street intersections or driveway entrances.
      (8)   Clear unobstructed height of 7 feet must be maintained between the sidewalk surface and overhead objects including umbrellas.
      (9)   The outdoor seating area must not block access to public amenities like street furniture, trash receptacles, and way finding, or directional signs.
      (10)   Furniture must be made of durable material. No plastic, or unfinished or pressure treated wood furniture is permitted.
      (11)   Planters or pots may be used to define the outdoor dining space but are not required.
      (12)   Tabletop signage is limited to menus and must not exceed 4 square feet in area.
      (13)   Lighting must not cause glare to pedestrians or vehicular traffic.
      (14)   Lighting must not be affixed to town landscaping for site furniture without a permit from the town.
   (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. At a minimum, the application 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 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 sealing area and its proposed arrangement.
      (2)   An applicant shall also provide:
         (a)   An application fee as provided in the town 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 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 Wilkesboro 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 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 must be submitted on or before May 31.
      (2)   (a)   The permit renewal process shall consist of re-submission of the following:
            1.   Certificate of insurance;
            2.   Indemnity agreement;
            3.   A copy of all permits and licenses issued by the state, county or city 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
            4.   Permit fee.
         (b)   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 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 and dining 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)   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.
      (3)   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 department with a scaled drawing or site plan of architectural design standard quality 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.
      (4)   Outdoor seating areas shall be open to the air, except that seating may be located under approved umbrellas, awnings, or canopies.
      (5)   A permit holder must provide stanchions or other portable, visible, above-ground barrier between the approved outdoor seating area and the remainder of the public sidewalk whenever the outdoor seating area is in use.
      (6)   Nothing shall be permanently affixed to a sidewalk or to other public property.
      (7)   The permit holder and the permitted business shall not operate outside the area specified in the permit.
      (8)   Permit holders and operators shall keep all licenses and permits required for their business operations continuously in effect.
      (9)   Permit holders and operators shall ensure that the permitted business obeys all laws related to alcohol service and consumption. Permit holders shall post visible signs at all exit points from the outdoor seating area to the public sidewalk reminding patrons that they cannot possess open containers of alcohol outside the public seating area. 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.
      (10)   An outdoor seating area may be used by the permit holder only when the permitted business is open to customers.
      (11)   No outdoor seating area shall operate after 2:00 a.m. on Saturday or Sunday. No outdoor seating area shall operate after 12:00 a.m. on any other day of the week. Permit holders shall ensure that their outdoor seating areas are not available for use after the hours specified in this subsection.
      (12)   The maximum occupancy permitted in the outdoor seating area shall be posted 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 sealing area shall not be considered an occupant for the purposes of this division.
      (13)   The permit holder shall keep the outdoor seating area and the adjacent 7 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.
      (14)   The permit holder is responsible for the maintenance, upkeep, 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. Those requirements are contained within North Carolina G.S. § 136-27.4 and can be found at: https://www.ncleg.net/ EnactedLegislation/Statutes/PDF/BySection/Cha pter_136/GS_136-27.4.pdf
   (I)   Assignment prohibited; effect of ceasing business operations. An outdoor seating area permit is not transferable 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.
   (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 10 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)   Other remedies. In addition to civil penalties and permit suspension, a violation of this division is a misdemeanor and may also be enforced through injunctive or other equitable relief, or a combination of remedies.
      (3)   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. 2018-12, passed 8-6-2018)