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 LAWRENCE, KANSAS:
Section 1. Section 6-1201 of the Code of the City of Lawrence, 2008 Edition, and amendments thereto, is hereby amended to read as follows.
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 Lawrence, 2008 Edition, and amendments thereto, and its subsections, are hereby amended to read as follows.
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, and any tenant
of each adjoining property expressing a lack of objection to the proposed
sidewalk hospitality use. In the event that an adjoining property owner or the
tenant of an adjoining property 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. Notice shall be provided by first class mail or delivered in
another manner that is reasonably calculated to cause such notice to come to
the attention of its intended recipient. In the case of mailed notice, the notice
shall be deemed to be effective at the time that it is mailed.
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 or volume 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 Manager or his designee 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 Kansas sales and liquor tax
forms of the food service establishment. The forms for the prior twelve (12)
consecutive months shall be provided to the City Clerk at the time of initial
application and one month prior to license renewal. Upon the request of the
City Clerk, the licensee shall make available copies of the forms at any time
for use by the City Commission in consideration of the revocation or suspension
of the license.
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 If
required by law, 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. If the licensee is no longer a tenant of the property at the
time removal is required, the owner of the property shall be responsible for
any costs incurred in the removal of fixtures, and the return of 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