Plymouth Municipal Code Ch. 12.12 Restaurant Sidewalk Seating Permits

The purpose of this chapter is to set forth the conditions and requirements under which indoor restaurants may be allowed by permits to maintain sidewalk seating on a public City sidewalk. The chapter also provides conditions under which the outdoor service of food and alcoholic beverages may be allowed in sidewalk seating areas. Notwithstanding any other provision of this Code, permits for sidewalk seating and the service of food and alcohol in such areas shall be administered as set forth in this chapter.

(Ord. 2004-03 § 1)

"Sidewalk seating"

means any group of tables, chairs and appurtenances situated and maintained upon the public sidewalk for use in connection with the public consumption of food and beverages sold to the public from an adjoining indoor restaurant.

(Ord. 2004-03 § 1)

"Indoor restaurant"

means a business which prepares and sells food and beverages for immediate consumption on the premises; and which derives at least 70% of its total revenues from food sales. For the purposes of this chapter, indoor restaurant does not include bars, cocktail lounges, convenience stores, vending machines, itinerant food vendors or vehicles.

(Ord. 2004-03 § 1)

Sidewalk seating shall be allowed only in conjunction with the operation of an indoor restaurant, and only by issuance of a sidewalk seating permit approved by the Planning Commission.

A. A sidewalk seating permit application shall be in lieu of a request for an encroachment permit as described in Plymouth Municipal Code Chapter 12.08. Provided, however, that a separate encroachment permit may be required by the State Department of Transportation (Caltrans) if the sidewalk seating area is located within the Caltrans right-of-way.

B. The applicant shall submit a complete sidewalk seating permit application, the form and content of which shall be as defined by the Planning Commission. Fees for the application for or renewal of a sidewalk seating permit shall be set forth by the City Council through resolution and as modified by the City Council from time to time. Applications for sidewalk seating permits shall not be processed until a complete application has been made to the satisfaction of the Planning Director and all fees paid.

C. The Planning Director shall provide notice of the application by posting the site and its surroundings for a period of at least 14 days prior to the Planning Commission action on the application.

D. The Planning Director shall circulate the application to affected City departments for comments.

E. The Planning Commission shall: (1) grant the application, subject to such conditions as it deems appropriate, if the application meets the requirements of this chapter; (2) deny the application if it does not meet the requirements of this chapter; or (3) refer application to the City Council for a determination if substantial public concerns have been expressed in the course of the review period. A public hearing is not required for this application. In the event the Planning Commission denies the application, the Planning Commission shall make written findings, based on substantial evidence in the record, as to the reasons for its denial and the manner in which the application fails to meet the requirements of this chapter.

(Ord. 2004-03 § 1)

As a condition of approval of a sidewalk seating permit, an applicant shall agree in writing to pay the costs incurred by the City in addressing future complaints from the public or code enforcement actions (whether or not the complaints or code enforcement issues are determined to be substantiated) and handling future permit reviews and permit modifications.

(Ord. 2004-03 § 1)

Sidewalk seating permits shall be subject to the following minimum requirements and limitations:

A. Sidewalk seating shall only be allowed in commercial zoning districts and only in conjunction with and directly adjacent to an indoor restaurant which operates the seating. The sidewalk seating area shall be no wider than the actual street frontage of the indoor restaurant. The sidewalk seating associated with an indoor restaurant shall be confined to a single contiguous area as designated on an approved permit.

B. The total amount of outdoor seating, whether on the sidewalk or on private property, shall not exceed 25% of the indoor seating of the restaurant. The Planning Commission may increase this amount upon finding that special circumstances exist.

C. Outdoor seating areas shall only be allowed to the extent that there is adequate room to accommodate both pedestrian and disabled traffic and the seating area. A minimum five-foot clear area of sidewalk between the seating area and any curb or obstruction shall be provided, unless local, State, or Federal disability access laws require a larger area. The outdoor seating area itself shall be accessible to disabled persons.

D. All outdoor seating furniture, including tables, chairs, planters, and umbrellas, shall be moveable. Umbrellas must be secured with a minimum base of not less than 30 pounds. Outdoor heaters, music and speakers, and portable lighting fixtures are prohibited.

E. The permittee shall not permit the following outside the indoor restaurant: food preparation; tables preset with utensils, glasses, napkins or condiments; busing stations or storage; or trash receptacles. All exterior surfaces shall be easily cleanable and shall be kept clean at all times by the permittee. The permittee shall be responsible for maintaining the outdoor seating area in a clean and safe condition at all times.

F. Signage shall be prominently displayed within the perimeter of the outdoor dining area to require customers to keep alcoholic beverages within designated areas. Alcoholic beverages are prohibited on City sidewalks pursuant to Section 9.04.010 of this Code, except where permitted by a permit issued pursuant to this chapter.

G. Maximum permitted hours of operation of the outdoor seating area shall be between 7:00 a.m. and 10:00 p.m. Tables, chairs and all other furniture shall be removed from the sidewalk and stored indoors at night and whenever the seating area is not in use.

H. The City, acting through the City Administrator or designee, shall have the right to prohibit the operation of an outdoor seating area at any time because of actual or anticipated conflicts in the use of the sidewalk area. Such conflicts may arise from, but are not limited to, scheduled events or festivals, parades, repairs to the street or sidewalk, demonstrations, or emergencies. To the extent possible, the City shall endeavor to provide prior written notice to the permittee that the operation of the sidewalk seating will be temporarily suspended, but failure to provide such notice shall not affect the right and power of the City to prohibit the operation of any sidewalk seating area at any time. The decision to suspend operation of an outdoor seating area shall not be subject to appeal unless the suspension exceeds three days.

I. The permittee shall maintain, and provide proof of public liability insurance in an amount not less than $300,000 per occurrence. The permittee shall defend and indemnify the City, and its officers, agents and employees, from and against any damages alleged to arise out of or be connected with the use or existence of the outdoor seating area, save and except for those matters arising from the sole, active negligence of the City. Failure to maintain such insurance shall void the permit.

J. Approval of a sidewalk seating permit shall include all requirements and limitations associated with the approval of an encroachment permit issued pursuant to Chapter 12.08. Such approval does not extend to any encroachment permit required separately by the State Department of Transportation (Caltrans).

K. Permittee shall comply with all applicable regulations of the State Department of Alcoholic Beverage Control.

L. The permit may be subject to such other reasonable conditions as the Planning Commission may impose.

(Ord. 2004-03 § 1)

A sidewalk seating permit shall be valid for a period of one year. As long as all terms of the permit continue to be met and substantive complaints about the operation have not been received, the Planning Commission may renew the permit each year without undergoing the notice and administrative review procedure. If it is necessary to address actual or anticipated problems with the operation, or comply with changes in Federal, State or local law, the Planning Commission may impose additional conditions or require that the public notice and administrative review be repeated at the permittee's expense under the cost recovery policy of Section 12.12.050.

(Ord. 2004-03 § 1)

A sidewalk seating permit is non-transferable.

(Ord. 2004-03 § 1)

A sidewalk seating permit may be revoked or suspended by the Planning Commission at any time if it is found that the conditions of the permit, of this chapter, or of applicable local, State or Federal law have been violated, or that the sidewalk seating area is being operated in a manner which constitutes a nuisance, or if the operation of the sidewalk seating area unduly restricts or impedes the movement of pedestrians. Prior to such revocation or suspension, the permittee shall be given not less than 14 days prior notice of the intention to revoke or suspend the permit, including a statement of the reasons for such intention. The permittee shall have the right to present evidence regarding the proposed revocation or suspension. Any decision of the Planning Commission to revoke or suspend a permit shall be made only the basis of formal findings, based upon substantial evidence in the record. The provisions of this section do not apply to the temporary suspension of permits as a result of conflicts provided for in Section 12.12.060(H), except that suspensions as a result of conflicts may be appealed in for greater than three days in length.

(Ord. 2004-03 § 1)

The decision of the Planning Commission to approve, suspend or revoke a sidewalk seating permit may be appealed to the City Council by any interested person by filing a written appeal with the City Clerk within 10 days of the decision. The City Council may, by resolution, impose a non-refundable fee for such appeal. Such appeal shall indicate the basis for the appeal. The decision of the City Council shall be final.

(Ord. 2004-03 § 1)