ORDINANCE NO. 8274
AN ORDINANCE AMENDING ARTICLE 12 OF
CHAPTER VI OF THE CITY CODE REGARDING THE USE OF SIDEWALKS FOR SIDEWALK DINING
AND HOSPITALITY.
BE IT
ORDAINED BY THE GOVERNING BODY OF THE CITY OF
Section 1. Section 6-1201 of the Code of the City of
6-1201 SIDEWALK DINING AND HOSPITALITY LICENSE,
DEFINITIONS.
(A) "Licensee"
shall mean the owner of a food
service hospitality establishment that obtains a sidewalk
dining license pursuant to this Article.
(B) "Food service
establishment" “Hospitality Establishment” shall mean a business that
which possesses
a valid Kansas food service establishment license pursuant to K.S.A. 36-501 et
seq. sells food, beverages, or both for on-premises
consumption and whose owner(s) seeks to use a portion of the City owned
sidewalk for dining
purposes the consumption of food or beverages by its patrons.
(C) "Sidewalk"
shall mean the City owned right-of-way or easement that adjoins the property
line of the food service establishment.
Section 2. Section 6-1202 of the Code of the City of
6-1202 LICENSE
APPLICATION AND CONDITIONS.
Upon
application of the owner(s) of a food
service hospitality establishment to the City Clerk, the
City Commission may grant a conditional waiver from the prohibition of the use
of the sidewalk (Chapter 16, Article 8) for private purposes. Such license shall only be granted if the
hospitality establishment is in compliance with all applicable zoning
regulations including Section 20-509 of the City Code, and amendments thereto,
the use regulations that apply to eating and drinking establishments. Each license shall expire annually on November
1st. Each license that is
issued shall be subject pursuant to the
following conditions and requirements:
6-1202.1 The
proposed sidewalk dining hospitality
use shall be pursuant to the written permission of the record and equitable
property owner for the applicant food
service hospitality establishment. Further, the applicant for any new or
renewal license shall submit a written statement from each adjoining property
owner expressing a lack of objection to the proposed sidewalk hospitality
use. In the event that an adjoining
property owner fails or refuses to sign such a written statement, or upon the
request of the City Commission, a public hearing will be held by the City Commission
to determine whether to grant the license.
At such hearing, the City Commission will hear such testimony and
receive such evidence as is necessary for it to determine whether it is within
the public’s interest to approve such use and shall make findings of fact
sufficient to support its decision. The
applicant and all adjoining property owners shall be provided written notice of
the date and time of such hearing at least ten days prior to its
occurrence.
6-1202.2 The use of the sidewalk shall be in conformance with the
zoning regulations for the food
service hospitality establishment. The use shall be limited to the sale,
possession, and consumption of food and beverages as part of the business of
the food
service hospitality establishment. The City and the licensee shall execute an
agreement for the use of the sidewalk that shall include all conditions of this
Article and such other conditions as the City Commission may require.
6-1202.3 The
licensee shall possess a valid Kansas Food Service Establishment License
pursuant to K.S.A. 36-501 et seq. The City Manager or his designee shall
have to power to enact reasonable administrative regulations that apply to a
licensee’s use of the sidewalk for the purpose of protecting the community’s
health, safety and welfare. These
regulations shall be labeled with the date that they are enacted and shall be available
for inspection by the public during regular business hours. The regulations may include:
(A)
Seating
requirements for patrons in sidewalk hospitality areas.
(B)
The
composition of any beverage containers, bowls, plates or other items used in
outdoor food or beverage service.
(C)
The use of
sound amplification devices or other means of noise production in the sidewalk
hospitality area.
(D)
The allowable
hours of use of the sidewalk hospitality area.
(E)
Staffing
requirements for the monitoring of a sidewalk hospitality use.
(F)
Any other
reasonable condition that protects the community’s health, safety, or welfare.
The licensee shall
comply with all regulations related to sidewalk hospitality enacted by the City
Clerk pursuant to this section. The
license regulations in effect at the time of the issuance or renewal of a
license under this Article shall be considered conditions of the license, and
the failure to abide by these conditions may lead to license revocation as
provided for by this Article. The
licensee shall be provided with a copy of the applicable regulations for the upcoming
licensing term at the time that a license is issued.
6-1202.4 The City Commission may grant permission for the licensee
to serve, and patrons of the licensee to possess and consume alcoholic liquor
and/or cereal malt beverages on the sidewalk, pursuant to Chapter 4 of the City
Code. The licensee shall pay for the
publication costs of an ordinance granting exemption for the possession and
consumption of alcoholic liquor on City right-of-way. The licensee shall comply with all state and
City laws pertaining to the sale of alcoholic liquor and cereal malt beverages. If food is served by a licensee anywhere
on its premises, then, as a condition of licensure, food service must also be
available in the sidewalk hospitality area during the same times and at the
same prices as food is available inside the establishment.
6-1202.5 A
minimum of seventy percent (70%) of all sales of the licensee from the public
sidewalk and the food service establishment shall be from the sale of food and
non-alcoholic beverages. The licensee shall
make available to the City copies of completed and filed State of
6-1202.6 The
licensee shall submit a site plan for the proposed use of the sidewalk pursuant
to Chapter 20 of the City Code that shall include elevation drawings. The proposed use shall maintain a minimum of
six (6) feet width of unobstructed sidewalk between the food service hospitality
establishment sidewalk use and the street curb or plantings, whichever is
closer, for public use. The site plan
shall state the square footage of sidewalk proposed for such use. The site plan shall require the composition
of railings and barriers to be wrought iron and shall detail the style, design,
and color of railings and barriers proposed for placement on the sidewalk. The site plan shall provide for the seating
of the patrons of the food
service hospitality establishment in the sidewalk dining
area. The site plan shall contain such
other conditions and restrictions on the use of the sidewalk as the City
Commission determines appropriate for the use.
6-1202.7 Review
of the site plan shall be conducted by the Historic Resources Commission and
the State Historic Preservation Officer if required by law.
6-1202.8 The City may require the removal of any fixtures placed on
the sidewalk pursuant to this Article, including the immediate removal of any
fixtures pursuant to City public works or utilities needs or the removal during
certain seasonal time periods (e.g. winter months). The licensee shall be solely responsible for
any costs incurred in the removal of fixtures, and shall return the sidewalk to
City pavement standards.
Upon the expiration
of a license granted pursuant to this Article, the licensee shall cease the use
of the sidewalk for business purposes and shall have fourteen (14) days to
remove any fixtures placed on the sidewalk.
6-1202.9 The
applicant shall annually pay a fee for the use of the sidewalk which shall be
$3.50 per square foot per year. The fee
shall be paid at the time of license issuance, and on the annual anniversary
thereof. The fee shall be considered as
a lease payment for the commercial use of the sidewalk.
6-1202.10 The license granted pursuant to this Article may be revoked
or suspended by the City Commission, after written notification to the licensee
of the intent to revoke or suspend and the conducting of a public hearing. Such
notification shall be mailed to the licensee at least ten (10) days prior to a
public hearing on the proposed revocation or suspension.
Notwithstanding
this provision, the City may immediately suspend the license for the use of the
sidewalk for a period not to exceed fourteen (14) days, if either the City
Commission or the City Manager determines that such emergency license
suspension best protects the public health, safety and welfare. Immediately upon the emergency suspension,
the licensee shall be notified in writing of the time and place of a City
Commission hearing on a further suspension or revocation of the license.
6-1202.11 (A) Insurance. The licensee shall carry an insurance policy
issued by a company
licensed to issue insurance in the State of Kansas, insuring the licensee, and the City of
Lawrence as an additionally named insured, in an amount not less than $500,000
single incident, for any liability associated with the failure of the
licensee, its employees, agents, servants, invitees, and patrons to exercise due
care and diligence in the use of the sidewalk.
(B)
Indemnification.
The agreement between the City and the licensee shall provide that the licensee
agrees to at all times save and hold harmless the City of Lawrence, Kansas from
all liability, costs, damages, and expenses of any kind, for the payment of
which the City may become liable to any person, firm or corporation by reason
of any claim or damages arising from the failure of the licensee, its
employees, agents, servants, invitees, and patrons to exercise due care and
diligence in the use of the sidewalk.
6-1202.12 The license granted pursuant to this Article shall be
non-assignable and non-transferable.
6-1202.13 No license shall be issued under
this section to any hospitality establishment that does not derive at least 55%
of its gross receipts from the sale of food and non-alcoholic beverages, unless
the hospitality establishment has no reasonable alternative location for an
outdoor hospitality area. A licensee has
no reasonable alternative location for an outdoor hospitality area if there is
no single outdoor area on the premises of the establishment that:
(A)
Is at least 50
square feet in area, excluding from measurement any area that serves as the
most direct path between a customer entrance to the interior of the hospitality
establishment and the public right of way.
In determining the dimensions of any area excluded from measurement
under this section the width of the excluded area shall be no greater than the
width of the customer entrance served by that area, or 6 feet, whichever is
lesser.
(B)
Is at least
five feet wide, with width defined as its shortest dimension.
This provision
shall not apply to any hospitality establishment that has a current sidewalk
dining license when this provision becomes effective.
Section 3. Severability. If any section, clause, sentence, or phrase
of this ordinance is found to be unconstitutional or is otherwise held invalid
by any court of competent jurisdiction, it shall not affect the validity of any
remaining parts of this ordinance.
Section 4. This ordinance shall take effect and be
in force effective upon its passage and publication once in the official city
paper as provided by law.
PASSED
by the Governing Body this _______ day of____________, 2008.
PASSED:
________________________
Michael
Dever, Mayor
ATTEST:
____________________________
Frank S. Reeb, City Clerk
APPROVED AS TO LEGAL FORM:
____________________________
Toni
Ramirez Wheeler
Director of
Legal Services