Memorandum                               

City of Lawrence

Department of Administrative Services

 

TO:

David Corliss, City Manager

 

FROM:

Frank S. Reeb, Administrative Services Director/City Clerk

 

CC:

Cynthia Boecker, Assistant City Manager

Diane Stoddard, Assistant City Manager

Jonathan Douglass, Assistant to the City Manager

Toni Wheeler, Director of Legal Services

Scott McCullough, Director of Planning and Development Services

Lynne Braddock-Zollner, Historic Resources Administrator

 

Date:

January 16, 2008

 

RE:

Sidewalk Dining License Food Sales Research

 

 

Introduction

During the November 6, 2007, City Commission meeting, following the approval of The Bourgeois Pig’s sidewalk dining license, the City Commission directed staff to look at options for possible revisions to the current sidewalk dining license requirements.  While the discussion on possible revisions was general in nature, much of the discussion and public comment focused on the food sales requirement.  The Commission also requested a review of issues related to the use of portable heaters, umbrellas and awnings in the sidewalk dining area.  This memo addresses three possible options for modifying the current 70% food sales requirement and includes provisions other communities have implemented for sidewalk dining licensees selling alcoholic beverages in the public right of way.  In addition, the memo includes as an attachment, proposed guidelines, approved by the Historic Resources Commission, and reviewed by the City Commission in July 2005, addressing, among other things, the use of heaters, umbrellas and awnings in the sidewalk dining area. 

 

Background

The City of Lawrence sidewalk dining license provisions have been in existence since 1993 and the basic requirements to obtain a license have not changed since that date.  The requirements for obtaining a sidewalk dining license are codified in the Code of the City of Lawrence at 6-1201, et seq.  To be eligible for a sidewalk dining license, an applicant must be a “Food Service Establishment” (defined as a business “which possesses a valid Kansas food service establishment license pursuant to K.S.A. 36-501, et seq.) that generates a minimum of 70% of all sales from the public sidewalk and the food service establishment from the sale of food and non-alcoholic beverages.  The applicant must also submit a site plan for the proposed use of the sidewalk that shall include elevation drawings.  The applicant must also receive permission from the property owner; meet general liability insurance requirements; pay a fee of $3.50 per square foot per year; and execute an agreement for the use of the sidewalk that may include, among other items, special conditions as the City Commission may require.  There are currently 26 sidewalk dining licenses in the downtown area.  A map of the existing sidewalk dining licenses is attached.    

 

Sidewalk Café Research from Other Communities

Based on a review of sidewalk dining café licenses in other communities, the food sales eligibility requirement generally falls into one of three categories, ranging from: 1) no food sales requirement but limiting eligibility through the definition of a “restaurant”; 2) requiring no food sales and allowing sidewalk cafes to both restaurant and bars; or 3) requiring a specific food sales percentage with the majority of communities in the 50% food sales level.  Each of the three categories is discussed below. 

 

Eliminate the 70% food sales percentage but more narrowly define food service establishment (the “Iowa City Option”)

One option for amending the food sales requirement is to eliminate the 70% food sales percentage but limit eligibility through the definition of a “restaurant.”  The City of Iowa City, Iowa (home of the University of Iowa) has such a sidewalk café license for sidewalk dining on the public right of way.  Eligibility for a sidewalk café permit is limited to “a business whose primary function is the service of food to customers and which meets the following criteria:

·        Prepares meals on the premises and provides meal service to each floor of the premises which is open to the public while the kitchen is open;

·        Has a food service menu from which customers may order;

·        Has an employee whose primary duty is the preparation of food and an employee whose primary duty is to serve food to customers;

·        Has a kitchen separate from the bar equipped with all of the following: a stove; a griddle; a grill or broiler, and a food refrigeration unit with a capacity in excess of twenty cubic feet (20 cu ft.);

·        Operates the restaurant service during at least sixty percent (60%) of the hours that the business is open to the public; and

·        Holds itself out to be a restaurant and advertises itself as a restaurant if it advertises;

·        Includes a café, cafeteria, coffee shop, delicatessen, ice cream shop, lunchroom, or tearoom.”

 

In Iowa City, possession and consumption of alcoholic beverages is allowed in the sidewalk café dining area in much the same manner as the consumption of alcoholic beverages in the main restaurant area and the sidewalk café area is essentially an extension of the licensed premises.  As such, there are no special hours of operation for sidewalk café operations that are different than the restaurant itself.  The Iowa City official I spoke with indicated the sidewalk café permit ordinance has been in existence since the late 1980’s but was amended in 2003 to include anchored fencing.  All applications for a sidewalk café license are reviewed by a Sidewalk Café Review Committee before the application is presented to the governing body for consideration.  The Iowa City sidewalk café permit ordinance is enforced on a complaint basis and there have been very few noise and trash related complaints.  When a complaint is received, a phone call or visit from a city official has addressed the issue.  The City of Iowa City currently has about 20 sidewalk cafes in the downtown area. 

 

Eliminate the 70% Food Sales Requirement

At least two municipalities, Athens-Clark County, Georgia, and Madison, Wisconsin, have sidewalk café ordinances with no food sales requirements and thus both restaurants and bars are generally eligible.  Athens Georgia defines “sidewalk café” to mean “the location and use of tables and chairs on the public sidewalk and operated as an extension of a licensed food or beverage establishment in the Downtown Athens District and which sidewalk café shall be an incidental activity of the establishment.”  Currently, Athens-Clarke County has approximately 50 sidewalk cafés of which approximately 10 are adjacent to bars.  There are no special closing times for sidewalk dining areas that are different than the other parts of the bar or restaurant.  Alcoholic beverages are allowed in the sidewalk café area but glass bottles and other containers are prohibited.  The Athens-Clarke County official I talked to indicated there have been no major problems, such as noise or trash issues, with sidewalk café’s and the ordinance is enforced on a complaint basis.  She told me, however, that recently Athens-Clarke County enacted a smoking ban in public places and the sidewalk cafes are used by smokers, which has generated some complaints to business owners and the unified government.   

 

The City of Madison, Wisconsin also has a sidewalk café license without a food sales percentage requirement.  Madison defines its sidewalk cafés to mean “any group of tables, chairs, benches, barriers or partitions, trash containers and suitable decorative devices maintained upon any part of the public right-of-way for use by an establishment with a valid food and drink permit in the sale to the public of food, refreshments, and beverages of all kinds.”  The City of Madison currently has approximately 55 sidewalk café licenses in the downtown area and approximately 5 are held by bars or lounges.  For those sidewalk café licensees with an alcoholic beverages license, there are specific provisions regulating the sale and consumption in the public right of way.  For example, consumption of alcohol beverages is limited to persons seated at tables in the sidewalk cafe site.  In addition, food service is required to be available at all times the sidewalk cafe is open.  The Madison city code also expressly states that each sidewalk cafe serving alcoholic beverages shall be responsible for policing the area of the sidewalk cafe to ensure customers are of legal drinking age and alcoholic beverages are not removed from the premises.  There are no special closing times for sidewalk café areas that are different than the other parts of the bar or restaurant. 

 

The City of Madison sidewalk cafés also appear highly regulated.  A Street Vending Coordinator is responsible for administering all sidewalk café licenses and other use of right of way permits (e.g., street vending permits).  In addition, the city employs a Street Vending Monitor position in the summer months to assist the Street Vending Coordinator with active enforcement of the various requirements.  The Street Vending Coordinator has the legal authority to issue citations.  I spoke with the Street Vending Coordinator who told me Madison has a policy of “observing, educating, warning, and enforcing” the provisions which seems to work well for their community.  He indicated there are very few complaints regarding the sale of alcohol, noise, or trash in the sidewalk café or other street vending portions of the public right of way. 

 

The City of Madison also has an Alcohol License Review Committee (ALRC) that reviews all sidewalk café applications for establishments requesting to serve alcoholic beverages in the sidewalk café area.  The ALRC is a 13 person committee that includes two governing body members, the Police Chief, or designee; City Clerk; a representative of the “Tavern League”; a University of Wisconsin representative; and, two citizen members.  The Street Vending Coordinator told me that this committee does a very good job of identifying alcohol related issues and educates applicants of responsibilities and consequences.  As a result, it is rare to hear complaints about alcohol concerns, trash or noise related to sidewalk café licenses.

  

Lower the food sales percentage to 50%

The vast majority of communities identified with sidewalk café permits have some food sales percentage requirement with many at 50% of gross receipts (e.g., Eau Claire, Wisconsin, Ashland Oregon, Portland, Oregon, Port Richey, Florida, Keene, New Hampshire, Lincoln, Nebraska [60% food sales]).  The Eau Claire, Wisconsin definition of an eligible establishment is representative of those municipalities with a 50% food sales requirement.  The Eau Claire definition limits eligible establishments to full service restaurants defined as “an establishment requiring a restaurant license . . .whose food sales are greater than 50 percent of its gross receipts.” 

 

In many of these communities, the sidewalk café area is essentially an extension of the restaurant and alcoholic beverages are allowed in the sidewalk area.  However, there are specific provisions regulating the consumption of alcohol, including:

·        limiting the sale to restaurant patrons seated at tables;

·        limiting containers to non glass materials;

·        requiring the sidewalk area to be continuously supervised by a restaurant employee;

·        requiring food service whenever the sidewalk café area is in use; and

·        prohibiting taps, kegs, coolers or other alcoholic beverage storage devices in the sidewalk café area. 

 

At least one community, Ashland, Oregon, prohibits smoking in the approved sidewalk dining area.  As far as closing times, the communities with a 50% food sales requirement appear to be split between no special closing time to requiring service and consumption of alcoholic beverages in the sidewalk dining area to end at 11 p.m.

 

As the Commission considers possible food sales requirement revisions, the following policy questions may be helpful to the discussion:

  • What is the goal the Commission is trying to reach with possible sidewalk dining revisions?
  • To what extent, and how, will the possession and consumption of alcoholic beverages in the sidewalk dining area be controlled differently than in other parts of the licensed premises?
  • Is the current application review process appropriate or is a more rigorous review process necessary before the City Commission considers the license application (e.g., similar to the Alcohol License Review Committee in Madison, WI)?
  • How active of an enforcement of existing or revised license requirements is appropriate (e.g., on a complaint basis or a more active enforcement as in Madison, WI)?
  • Is the current fee structure appropriate?

 

Planning Staff  Developed Guidelines For Sidewalk Dining Areas

The other issues briefly addressed at the November 6, 2007 City Commission meeting, including the use of heaters, umbrellas, and awnings are included in the proposed Guidelines For Sidewalk Dining Areas developed by Planning Staff.  A copy of the Guidelines is attached.  An earlier version of the guidelines was presented to the City Commission on July 19, 2005.   Following discussion about railing heights, umbrellas, and the use of heaters, the Commission received the draft sidewalk dining guidelines and directed staff to revise the guidelines to reflect raising the rail height maximum to 45 inches; allowing the use of umbrellas; clarifying the term “detachable”; and clarifying that the guidelines would apply to all new sidewalk dining applications. A copy of the July 19, 2005 City Commission meeting minutes is attached. 

 

Action Requested

Provide staff direction on whether to revise existing sidewalk dining license eligibility criteria and whether to adopt the proposed Guidelines For Sidewalk Dining Areas.