§ 6.3.3. Sidewalk café.

(A)

Definition. A "Sidewalk Café" is a grouping of dining furniture which may include tables and chairs , approved by the City through a Sidewalk Café permit and is situated and maintained outside within a public right-of-way, a portion of which may be located in a public pedestrian way (sidewalk), between the building front (and/or side for corner lots) and the curb at the edge of the roadway and such area is used for the consumption of food and beverages sold to the public from an adjoining restaurant or other eligible business. ted Sidewalk Cafés are allowed only when in compliance with this Section. [Amd. Ord. 51-05 7/19/05]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(B)

Permit and fees. It shall be unlawful for any person to establish a Sidewalk Café unless a valid permit to operate a Sidewalk Café has been obtained from the City pursuant to this Section. The permit shall be issued on a form provided by the City. No permit shall be issued until all the requirements of this Section have been met. Permits shall not be transferable. All permits shall comply with the following: [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(1)

Each Sidewalk Café permit shall be effective for one year, from July 1 until June 30. Any new permit application received after July 1 until December 31 will pay the full cost of the permit fee and the permit shall expire June 30 of the following year. Any new permit application received after December 31 will pay one-half of the cost of the permit fee and the permit shall expire June 30 of the same year. In addition, should the initial Sidewalk Café permit or any renewal permit be cancelled for any reason pursuant to this section. a new application fee shall be required for any subsequent permits issued. [Amd. Ord. 56-09 10/20/09]; [Amd. Ord. 51-05 7/19/05]; [Amd. Ord. 5-05 3/1/05](Ord. No. 17-17, § 2, 6-13-17)

(2)

The initial Sidewalk Café application fee along with the annual permit fee based upon pet the square footage of approved Sidewalk Café spacer shall both be established by a resolution of the City Commission. Additional "leasing fees" shall be collected for any Sidewalk Café located in the Florida Department of Transportation (FDOT) right-of-way along East Atlantic Avenue and along South Ocean Boulevard. The FDOT leasing fees will also be established by resolution of the City Commission and collected based on the terms . outlined in the Lease Agreement between the City and the FDOT. which may be amended from time to time. [Amd. Ord. 23-12 8/7/12]; [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(3)

Renewals of a Sidewalk café permit and payment of fees must be submitted and approved on or before July 1 of each year. [Amd. Ord. 51-05 7/19/05]; [Amd. Ord. 5-05 3/1/05]

(4)

Late renewal fee. If a renewal payment is not submitted by July 1st, it shall be considered late and subject to a late fee of ten-percent, plus an additional five-percent late fee if payment is not received by the first of each month thereafter until paid, provided that the total late fee shall not exceed 20 percent of the permit fee. If a renewal payment is not submitted by July 1, the City has the right to immediately cancel the Sidewalk Café permit upon written notice to the permit holder and the City may also cancel such permit without notice if the payment, along with accrued late fees is not fully paid by October 1, of any renewal period. [Amd. Ord. 56-09 10/20/09] (Ord. No. 17-17, § 2, 6-13-17)

(5)

Any applicant that was issued a Café permit prior to this ordinance and no longer meets the definition of a Sidewalk Café shall be eligible for one one-year extension of their Sidewalk Café permit after which the applicant shall be required to submit a site plan modification (if the area of the Café is not shown on an approved site plan) or shall be required to remove all Sidewalk Café elements. (Ord. No. 17-17, § 2, 6-13-17)

(B)

Reserved. [Amd. Ord. 5-05 3/1/05]; [Amd. Ord. 25-98 7/21/98]

(C)

Required information. In addition to the required permit application and permit fee, the following must be provided at the time the application is submitted or renewed: [Amd. Ord. 5-05 3/1/05]; [Amd. Ord. 25-98 7/21/98]

(1)

A copy of a valid business tax receipt; and description of use. [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05]

(2)

A sketch plan of the area between the store front and vehicular travel surface or public space, drawn to a minimum scale of one inch equals ten feet which shows: [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 25-98 7/21/98]

(a)

The sidewalk café area including square footage and dimensions; [Amd. Ord. 5-05 3/1/05]

(b)

The store front and all openings (doors, windows); [Amd. Ord. 5-05 3/1/05]

(c)

The location of curb, sidewalk, and any utility poles, fire hydrants, landscaping, or other items, within the right-of-way and private property, between the curb and the store front including dimensions; [Amd. Ord. 5-05 3/1/05]

(d)

The location of any of the above items which are within six feet of the ends of the proposed use area; and the location of parking spaces (or use of the street or public space) adjacent to the proposed use area; [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05]

(e)

Clear delineation of the boundary between private property and the right-of-way including dimensions; [Amd. Ord. 5-05 3/1/05]

(f)

Delineation of "clear pedestrian pathways" and "No Table Zones" as required by Subsection (F)(5); [Amd. Ord. 5-05 3/1/05]

(g)

Proposed location of chairs with tables, and other private features such as but not limited to hostess stands, umbrellas, etc.; [Amd. Ord. 5-05 3/1/05]

(h)

Proposed location of sidewalk café barriers as required by Subsection (F)(7); [Amd. Ord. 5-05 3/1/05]

(i)

Photographs and/or manufacturer brochures depicting the chairs, tables, umbrellas, menu boards and logos, and other temporary private features including, but not limited to, lighting, planters, ropes, stanchions and other equipment to be used in the proposed sidewalk café area. [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05]

(j)

If the Permittee intends to use property in front of an adjacent business, the permittee must submit a notarized statement from the adjacent business owner(s) indicating the adjacent business owner has allowed the use of the sidewalk in the front of their business(s), on a form acceptable to the City. [Amd. Ord. 5-05 3/1/05]

(3)

Proof of Insurance and a Hold Harmless Agreement in a form acceptable to the City Attorney.

(D)

Processing. The permit application including the Required Information as requested in Subsection (C) above shall be submitted to the Community Improvement Department for processing. Appeals shall be governed by Section 2.4.7(E). [Amd. Ord. 5-05 3/1/05]; [Amd. Ord. 25-98 7/21/98]

(E)

Geographic limitation. A permit for a sidewalk café may be issued within those zoning districts which allow restaurants, subject to any limitations or restrictions of the particular district. [Amd. Ord. 25-98 7/21/98]

(F)

Use, design, and maintenance of a sidewalk café. [Amd. Ord. 25-98 7/21/98] (Ord. No. 17-17, § 2, 6-13-17)

(1)

A Sidewalk Café shall only be established in conjunction with a legally established restaurant or business where the food product is prepared, processed, or assembled on the premises (for example: deli, ice cream store, sandwich shop) where the food product preparation is the main or sole purpose of the business. These businesses shall be deemed eligible to apply for a Sidewalk Café permit. A business that prepares., processes., or assembles food on the premises, where such food preparation or assemblage is not the main or sole purpose of the business shall not be allowed to establish a Sidewalk Café. [Amd. Ord. 10-12 4/3/12]; [Amd. Ord. 37-10 11/2/10] (Ord. No. 17-17, § 2, 6-13-17)

(2)

A Sidewalk Café may only be established in the area between the curb of a public roadway and in the front of the business or along a side street adjacent to the business on include portions of a public pedestrian ways (sidewalk) or a public plaza. However, businesses located on Atlantic Avenue which also have a side street frontage shall be allowed to establish a Sidewalk Café along only one of the street frontages (e.g. Sidewalk Café permitted on either the side street or on Atlantic Ave, but not on both street frontages). The Sidewalk Café shall not be established adjacent to a travel lane or on-street parking, unless there is no ability to establish a Sidewalk Café adjacent to the storefront, in which case a Sidewalk Café may be located adjacent to a traffic lane or street parking as long as a six foot clear pedestrian path is provided and the tables and associated chairs provide a minimum setback of five feet from the vehicular travel lane and associated curbing. This five feet setback does not apply when the tables are immediately adjacent to on-street parking. [Amd. Ord. 03-15 02/24/2015]; [Amd. Ord. 10-12 4/3/12]; [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(3)

Alcoholic beverages may be consumed at a sidewalk café.

(4)

The use of the dining furniture shall be only for the customers of the business with which the Sidewalk Café is associated. Tables, chairs, umbrellas, barriers and other objects associated with a Sidewalk Café shall be of quality design, materials and workmanship both to ensure the safety and convenience of users and to enhance the visual and aesthetic quality of the urban environment, as previously approved by the City and as shown and depicted in the approved Sidewalk Café permit. All tables, chairs, umbrellas, barriers and associated objects must be located within the Sidewalk Café permit area. All umbrellas and canopies must maintain a minimum seven feet clear area and shall not extend outside of the Sidewalk Café area. All barriers shall be three feet in height. See Figures 6.3.3—1 and 2 for more details. [Amd. Ord. 37-10 11/2/10] (Ord. No. 17-17, § 2, 6-13-17)

Figure 6.3.3-1 Sidewalk Café Cross Section Diagram

Figure 6.3.3-2 Sidewalk Café Plan View Diagram (Example)

(5)

Within "ZONE-1". defined as that area east-to-west between Swinton Avenue and the Intracoastal Waterway, and north-to-south between NE 1 ^st Street and SE 1 ^st Street (see Figure 6.3.3-3). the following regulations shall apply: [Amd. Ord. 03-15 02/24/2015]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(a)

When a Sidewalk Café operator provides a clear pedestrian path of a minimum of six feet. the operator can choose to place the associated tables and chairs on either side of the pathway, but not on both sides. The six-foot clear pedestrian path shall be parallel to the street and/or alley. (Ord. No. 17-17, § 2, 6-13-17)

(b)

In the event that a six-foot clear pedestrian path adjacent to the curb is interrupted by street furniture, trees, tree grates or similar impediments, then the Sidewalk Café operator may provide for a six-foot clear pedestrian path commencing from the edge of the impediment closest to the building facade for a distance of six feet towards the building. (Ord. No. 17-17, § 2, 6-13-17)

(c)

If a Sidewalk Café operator provides a clear pedestrian path of a minimum of seven feet the operator can place the associated tables and chairs on both sides of the pathway. The seven-foot clear pedestrian path shall be parallel to the street and/or alley. (Ord. No. 17-17, § 2, 6-13-17)

Figure 6.3.3-3 Sidewalk Café Zone 1

(d)

For Sidewalk Cafés with permits approved prior to the effective date of this ordinance, the dimensions of approved pedestrian paths will prevail until the next annual permit renewal. In the event of any dispute as to the placement and/or dimension of any required pedestrian path within any ZONE, the Planning Zoning and Building Director, or a designee of the Director, shall make the final determination in order to bring the operator into conformance with any pedestrian pathway regulations set forth herein. (Ord. No. 17-17, § 2, 6-13-17)

(6)

Within "ZONE-2" as defined as all other geographical areas of the City, the following regulations shall apply: (Ord. No. 17-17, § 2, 6-13-17)

(a)

When a Sidewalk Café operator provides a clear pedestrian path of a minimum of six feet. the operator can choose to place the associated tables and chairs on either side or both sides of the pathway. In either case, the six-foot clear pedestrian path shall be parallel to the street and/or alley. (Ord. No. 17-17, § 2, 6-13-17)

(b)

When the Sidewalk Café is established on one side of the six-foot clear pedestrian path adjacent to the curb and is interrupted by street furniture, trees, tree grates or similar impediments, then the Sidewalk Café operator may provide for a six-foot clear pedestrian path commencing from the edge of the impediment closest to the building facade for a distance of six feet towards the building. (Ord. No. 17-17, § 2, 6-13-17)

(c)

For Sidewalk Cafés with permits approved prior to effective date of this ordinance, the dimensions of approved pedestrian paths will prevail until the next annual permit renewal. (Ord. No. 17-17, § 2, 6-13-17)

(7)

A "No Table Zone" is hereby established. No Sidewalk Café tables or chairs shall be located within the "No Table Zone". The "No Table Zone" is that area located at the intersections of Atlantic Avenue with any side street, within 15 feet of the extended curb line. The 15 feet will be measured perpendicular to the street from the extended curb. For non-Atlantic Avenue intersections, the "No Table Zone" shall be ten feet as measured above. [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(8)

The Sidewalk Café area is to be segregated from the pedestrian pathway by means of barriers such as planters, railings or other similar moveable fixtures or other clearly visible demarcation. No part of the barrier shall be located within the required clear pedestrian pathway as defined in subsection (5) and (6) above. [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(9)

In addition to previously approved business signs, the Sidewalk Café may have one additional business sign. [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(a)

The business sign shall not exceed four square feet. [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(b)

The business sign shall not exceed 42 inches in height. [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(10)

Use area and/or seating capacity realized through a Sidewalk Café use and contiguous outdoor dining areas shall not invoke provisions of the zoning code as they pertain to parking or other matters. [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(11)

Food may be carried to tables by patrons or served by a table waiter/waitress for all uses that have been assessed restaurant parking requirements. All other uses that have been assessed general commercial parking requirements, but otherwise qualifying for Sidewalk Café permit, shall be for take-out food only (food may be carried to tables by patrons; no waiter/waitress service is allowed). The use of food preparation stations, trash receptacles and cash registers are prohibited within the Sidewalk Café area. [Amd. Ord. 10-12 4/3/12]; [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(12)

The use of carpeting, artificial turf, or other services of any kind must be approved as a part of the Sidewalk Café application. [Amd. Ord. 37-10 11/2/10] (Ord. No. 17-17, § 2, 6-13-17)

(13)

All services provided to patrons of a Sidewalk Café and ah patron activity (i.e., sitting, dining, etc.) shall occur within the designated Sidewalk Café area, and shall not impinge on the required clear pedestrian pathways as provided for in subsections (F)(5) and (6) above for pedestrian passage at any time. Chairs shall be arranged parallel to the clear pedestrian path so that they do not encroach into the clear pedestrian path to accommodate patrons. [Amd. Ord. 37-10 11/2/10] [Amd. Ord. 03-15 02/24/2015] (Ord. No. 17-17, § 2, 6-13-17)

(14)

Hours of operation shall be the same as the associated businesses. [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(15)

The area covered by the permit, including the sidewalk, curb and gutter immediately adjacent to it, shall be maintained in a clean, neat, attractive and orderly manner at all times and the area shall be cleared of all debris and stains on a periodic basis during the day and again at the close of each business day, ensuring a tidy appearance. The permittee shall also be responsible to pressure clean the sidewalk surface on which the Sidewalk Café is located at least once a week or more frequently, if needed and pick up all litter and debris including litter and debris in the landscaped areas adjacent to the Sidewalk Café area under permit. [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(16)

No tables, chairs, or any other part of Sidewalk Cafés shall be attached, chained, or in any manner affixed to any tree, post, sign or other fixtures, curb or sidewalk within or near the permitted area. [Amd. Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(G)

Liability and insurance. [Amd. Ord. 25-98 7/21/98]

(1)

Prior to the issuance of a permit, the applicant shall furnish a signed statement that the permittee shall hold harmless the City, its officers and employees and shall indemnify the City, its officers and employees from any claims for damages to property or injury to persons which may be occasioned by any activity carried on under the terms of the permit.

(2)

Permittee shall furnish insurance and insurance certificate and maintain such public liability, food products liability, and property damage insurance from all claims and damages to property or bodily injury, including death, which may arise from operations under the permit or in connection therewith. Such insurance shall provide coverage of not less than $1,000,000.00 for bodily injury, and property damage respectively, per occurrence. Such insurance shall name the City, its officers and employees as additional insureds and shall further provide that the policy shall not terminate or be canceled without 30 days written notice to the City. [Amd. Ord. 25-98 7/21/98]

Enacted a new letter (H) and relettered. [Amd. Ord. 5-05 3/1/05]

(H)

Penalties for violations. In addition to the remedies provided in Section 6.3.3(I), the following penalties will be imposed upon the issuance of a written notice to the permittee shall be given as follows: [Amd. Ord. 5-05 3/1/05]

1 ^st violation — a written warning [Amd. Ord. 5-05 3/1/05]

2 ^nd violation — up to $150.00 fine [Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05]

3 ^rd violation — up to $250.00 fine [Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05]

(I)

Denial, revocation, or suspension of permit; removal and storage fees; jurisdiction of the Code Enforcement Board or civil violations; emergencies. [Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05]; [Amd. Ord. 25-98 7/21/98] (Ord. No. 17-17, § 2, 6-13-17)

(1)

In addition to the remedies for late fees set forth hereinabove at subparagraph (A)(4). The City Manager or his/her designee may deny, revoke, or suspend a permit of any Sidewalk Café in the City if it is found that: (Ord. No. 17-17, § 2, 6-13-17)

(a)

Any necessary business or health permit has either been suspended, revoked, or canceled or has lapsed. (Ord. No. 17-17, § 2, 6-13-17)

(b)

The permittee does not have insurance which is correct and effective. (Ord. No. 17-17, § 2, 6-13-17)

(c)

Changing conditions of pedestrian or vehicular traffic cause congestion necessitating removal or modification of the Sidewalk Café, in order to avoid danger to the health, safety or general welfare of pedestrians or vehicular traffic. [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(d)

The permittee has failed to correct violations of this subchapter or conditions of permitting within three days of receipt of written notice of same. (Ord. No. 17-17, § 2, 6-13-17)

(e)

If the permittee receives more than three Code Enforcement violations and/or civil violations in a twelve-month period from the issuance of its permit for non-compliance to this Section, the permit shall be terminated and no refunds of the permit application fee shall be granted. The permittee may not receive a new permit for six months. [Ord. 37-10 11/2/10]; [Amd. Ord. 5-05 3/1/05] (Ord. No. 17-17, § 2, 6-13-17)

(f)

The Sidewalk Café does not enhance or conform to the aesthetic ambiance of the area or is not compatible with other adjacent businesses or Sidewalk Cafés. [Amd. Ord. 51-05 7/19/05] (Ord. No. 17-17, § 2, 6-13-17)

(2)

The City many remove or relocate or order the removal or relocation of tables and chairs and other vestiges of the sidewalk café and a reasonable fee charged for labor, transportation, and storage, should the permittee fail to remove said items within 36 hours of receipt of the written notice from the City Manager or his/her designee ordering removal or relocation. However, in the event of an emergency, no written notice of relocation or removal shall be given and relocation and/or removal shall commence immediately. [Amd. Ord. 5-05 3/1/05]

(3)

The permittee may appeal the order of the City Manager pursuant to Section 6.3.3(J), below. [Amd. Ord. 5-05 3/1/05]; [Amd. Ord. 25-98 7/21/98]

(4)

Fines for noncompliance shall be in accordance with Chapter 37 of the Code of Ordinances. [Ord. 37-10 11/2/10]; [Amd. Ord. 51-05 7/19/05]

(5)

The sidewalk café permit may be suspended upon written notice of the City Manager or his/her designee and removal may be ordered by the City when repairs necessitate such action. [Amd. Ord. 5-05 3/1/05]

(6)

In addition, the City may immediately remove or relocate all or parts of the sidewalk café or order said removal or relocation in emergency situations, without written notice. In an emergency or upon the issuance of a hurricane warning or notification of another weather emergency by the county, the permittee shall forthwith place indoors all tables, chairs, and other equipment located on the sidewalk. Failure to comply shall result in violation of this subsection which shall result in the issuance of a fine not to exceed $500.00. [Amd. Ord. 5-05 3/1/05]

(J)

Appeals. [Amd. Ord. 5-05 3/1/05]; [Amd. Ord. 25-98 7/21/98]

(1)

Appeals of the decision of the City Manager or his/her designee shall be initiated within ten days of a permit denial, revocation or suspension, or of an order of removal or relocation, by filing a written notice of appeal with the City Manager. [Amd. Ord. 25-98 7/21/98]

(2)

The City Manager shall place the appeal on the first available regular City Commission agenda. At the hearing on appeal, the City Commission shall hear and determine the appeal, and the decision of the City Commission shall be final and effective immediately. The City Commission shall apply the standards set forth in 6.3.3(I). [Amd. Ord. 51-05 7/19/05]; [Amd. Ord. 25-98 7/21/98]

(3)

The filing of a notice of appeal by a permittee shall not stay an order of the City Manager or his/her designee regarding the suspension, revocation or denial of the permit, or the relocation or removal of the vestiges of the sidewalk café. Vestiges of the sidewalk café shall be removed as set forth in this subchapter, pending disposition of the appeal and the final decision of the City Commission. [Amd. Ord. 25-98 7/21/98]

(4)

Appeals from the decision of the Code Enforcement Board shall be to the circuit court and not to the City Commission. [Amd. Ord. 25-98 7/21/98]