Memorandum

City of Lawrence

Legal Services

 

TO:

David L. Corliss, City Manager

 

FROM:

Toni Wheeler, Director of Legal Services

Scott J. Miller, Staff Attorney

 

C:

Scott McCullough, Director of Planning & Development Services

Diane Stoddard, Cynthia Wagner and Jonathan Douglass, CMO

 

Date:

March 29, 2010

                            

RE:

Louise’s request for amendment of the provisions of the City Code related to sidewalk hospitality uses.

 

Project History

Louise’s Downtown, a bar located at 1009 Massachusetts Street, desires to have a Sidewalk Dining and Hospitality License.  Under the current code provisions Louise’s Downtown does not qualify for a license because it has a patio area located in the rear of the establishment that provides an outdoor hospitality area of greater than 50 square feet in size. 

 

Joy Rhea, of Paul Werner Architects, submitted a letter on behalf of the establishment requesting Louise’s Downtown be permitted to have the license.  The commission received the request on March 2, 2010, and referred it to staff for a report. 

 

There is no mechanism in the current law for the City Commission to waive the provisions of the licensing ordinance for individual businesses.  In order to give Louise’s Downtown the result that they request, an amendment to the City Code would be required.       

 

History of Sidewalk Dining and Sidewalk Dining & Hospitality Regulations in Lawrence

A business may only lawfully offer a sidewalk hospitality space on public sidewalks in the City of Lawrence if the business owner has a license to do so.  (See Sidewalk Dining and Hospitality License, Section 6-1201 et seq. of the Code of the City of Lawrence, 2009 Edition).  The City Commission enacted licensing provisions in 1993 and amended them in 2008. 

 

To be eligible for a sidewalk dining license under the 1993 code provisions, an applicant had to be a “Food Service Establishment.”  A “Food Service Establishment” was 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 had to comply with other requirements including maintaining insurance, obtaining site plan approval, securing the owner’s consent, and paying a nominal fee, among other requirements.

 

In late 2007, after approving a license for the Bourgeois Pig, the commission requested staff review the sidewalk dining license code provisions.  In January 2008, staff reported on a number of issues related to sidewalk dining.  Owners of long-established bars in downtown Lawrence attended and requested an opportunity to have outdoor hospitality areas for their customers, stating it would help them accommodate customers who smoke. 

 

The Commission directed staff to prepare an ordinance (1) lowering the sidewalk dining food sales requirement for new establishments from 70% to 55%; (2) to remove the 55% food sales requirement for existing drinking establishments that had legal nonconforming use status from the 55% food sales requirement for downtown drinking establishments; and (3) to prohibit the issuance of a sidewalk dining and hospitality license to establishments that had a reasonable alternative location for an outdoor hospitality area.     

 

Louise’s Downtown Request

Louise’s Downtown has legal non-conforming use status from the 55% foods sales requirement for downtown drinking establishments.  It is the requirement in the current code that only businesses that have no alternative location for an outdoor hospitality area that poses a problem for Louise’s Downtown.  The pertinent provision of the Code is 6-1202.13.  It reads:

 

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: (Ord. 8274)

 

(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.

 

In other words, if a business has a useable non-enclosed area of 50 square feet or more located off of the City’s right of way, the business is limited to that space for its outdoor hospitality purposes.  It is our understanding that Louise’s Downtown has a patio area to the rear of its business that provides an outdoor hospitality area greater than 50 square feet in size. 

 

The necessary action in this case to grant the applicant’s request would be the repeal of Section 6-1202.13 of the City Code.  This would allow Louise’s Downtown and other bars in the downtown area that operate lawfully without meeting the 55% food sales requirement to build sidewalk dining areas on Massachusetts street as a supplement to their existing outdoor space.

 

New Policy Considerations

When the proposal to amend the ordinance to allow sidewalk hospitality areas for those establishments that do not sell food was initially introduced at the January 22, 2008, City Commission meeting, the proposal’s possible consequences were discussed.  The commissioners cited both positive and negative effects.  Those discussions can be found in the minutes of that meeting at http://www.lawrenceks.org/web_based_agendas/2008/02-05-08/02-05-08h/as_cc_minutes_012208.pdf (pp. 4-20).    

 

One thing that has changed since the issue was last considered by the City Commission is the passage of a law that regulates smoking throughout Kansas.  Kansas House Bill 2221, passed by the legislature and signed into law by the governor this legislative session, prohibits smoking near the access points of buildings where inside smoking is not allowed.  Under that bill, not only would smoking be prohibited in bars and restaurants, but it would also be prohibited within 10 feet of any doorway, open window or air intake leading into those bars or restaurants.  This significantly reduces the utility of some of the sidewalk hospitality uses in the downtown area because in some of these areas smoking is either not allowed or is only allowed in a very small portion of the area.

 

The entire frontage of Louise’s Downtown is approximately 25 feet according to the City’s GIS mapping tools.  Although the location of the entrance to the business would make it possible to have some area in the front of the business where smoking would be legal, the available space would not appear to be extensive.

 

Conclusion

If the Commission desires, Louise’s Downtown’s request can be accommodated through the repeal of one provision of the existing ordinance.  This will effectively allow any drinking establishment that does not sell food and that has nonconforming use status to apply for a sidewalk hospitality license, regardless of the other facilities they may have available.