Santa Ana Municipal Code § 33-180 Appeals

This chapter shall be known as the "Outdoor Dining Ordinance."

(Ord. No. NS-2350, § 1, 5-18-98)

The purpose of this article is to permit outdoor dining areas in the public right-of-way by issuing outdoor dining license agreements to establishments in the Midtown, Downtown, and Museum Districts, generally bounded by Memory Lane, Broadway, Flower, First, Spurgeon, and French Streets, and further defined as that shaded area contained in Exhibit 1, attached hereto and incorporated herein as if fully set forth. In these districts, licensed outdoor dining areas will revitalize and encourage business. Moreover, the licensing agreements will ensure that the public right-of-way provides adequate pedestrian circulation thus promoting the health, safety, and welfare of the residents.

(Ord. No. NS-2350, § 1, 5-18-98)

Downtown District means that shaded area in Exhibit 1, attached hereto and incorporated herein as if fully set forth.

Midtown District means that shaded area in Exhibit 1, attached hereto and incorporated herein as if fully set forth.

Museum District means that shaded area in Exhibit 1, attached hereto and incorporated herein as if fully set forth.

Outdoor dining area means the area defined, designed, installed, and maintained, pursuant to section 33-176 of this Code, immediately adjacent to a food service establishment, where patrons may consume food and/or beverages.

Public right-of-way means that area of the street, roadway, parkway, or sidewalk, that is owned, maintained, or controlled by the city.

(Ord. No. NS-2350, § 1, 5-18-98)

It shall be unlawful for any person, association, partnership or corporation to install or maintain any outdoor dining area on any street or sidewalk within the city unless there has been issued a license therefor as provided in this article. A separate license shall be obtained for each outdoor dining area, which license shall be valid only for the location specified therein. Each license shall bear a separate number. Not more than one (1) license shall be issued for any one (1) location unless the executive director of the public works agency or his designee finds that more than one (1) outdoor dining area is reasonably necessary to accommodate persons at such locations.

For any facility operating an outdoor dining area pursuant to a valid written agreement with the city as of May 4, 1998, the terms of such agreement may be extended up to sixty (60) months from the date of the adoption of this article by the executive director of the public works agency, subject to such other terms as may be deemed necessary or desirable. On or before the expiration of the sixty-month period, the operator shall obtain a license agreement pursuant to this article or remove the outdoor dining area.

(Ord. No. NS-2350, § 1, 5-18-98)

(a) No outdoor dining area license shall be issued except upon written application, filed with, and upon a form prescribed by the executive director of the public works agency or his designee, showing the proposed location of each outdoor dining area and such other information as the executive director of the public works agency or his designee may require. The initial application for an outdoor dining area license shall be accompanied by a nonrefundable processing fee established by resolution of the city council.

(b) Detailed plans and specifications of each outdoor dining area shall be supplied by the applicant in a form as approved by the executive director of the public works agency or his designee.

(c) Each application must be signed by the owner or legal representative of the owner of the outdoor dining area for which the license is requested.

(Ord. No. NS-2350, § 1, 5-18-98)

(a) Upon approval of an application for a new license, a one-time nonrefundable license fee for each outdoor dining area, in an amount established by resolution of the city council, shall be submitted. Each new license issued shall expire one year from the date of issuance.

(b) The license holder may renew the license, subject to an annual renewal fee. Each license may be renewed, provided: (1) a renewal application is filed at least thirty (30) days prior to the expiration date of the existing license; (2) an annual renewal fee, as established by resolution of the city council, is paid; (3) all past due fees, as established by resolution of the city council, are paid; and (4) the license holder has complied with all provisions of this Code.

(Ord. No. NS-2350, § 1, 5-18-98; Ord. No. 2383, § 1, 4-5-99)

Prior to issuance of any license under this article, each applicant shall:

(a) Enter into a license agreement, representing, stipulating, contracting and agreeing that such applicant will indemnify, defend and hold the city and its officers, agents, volunteers and employees harmless against liability for any and all claims for damage to property, or injury to, or death of persons arising out of or resulting from the issuance of the license or the placement of outdoor dining areas. A new license agreement is not required with each renewal application.

(b) Obtain and file with the clerk of the council, and thereafter maintain during the term of any such license:

(1) A comprehensive general liability insurance policy or policies, approved as to form by the city attorney, issued by an insurance company or companies authorized to do business in the State of California. The city, its officers, agents, volunteers and employees shall be named as additional insureds on said policy or policies. The policy limits of said insurance policy or policies shall be not less than one million dollars ($1,000,000.00) combined single limit for both bodily injury and property damage, or equivalent.

(2) Workers' compensation as required by the Labor Code of the State of California and employers' liability insurance with a limit of one million dollars ($1,000,000.00) per accident.

(3) Property insurance for all licensee's contents, inventory, equipment, and for any improvements or betterments made by licensee to the outdoor dining area.

The executive director of the public works agency may increase the dollar amount of coverage required under any of the policies described above, upon prior written notice to the license holder.

(c) A cash deposit or letter of credit, issued by a financial institution and in a form acceptable to the public works agency and the city attorney's office, in the amount of one thousand dollars ($1,000.00) per outdoor dining area shall be posted by the license holder to insure proper site restoration.

(Ord. No. NS-2350, § 1, 5-18-98; Ord. No. 2383, § 2, 4-5-99)

(a) The application for an outdoor dining area license shall be denied if it is found by the executive director of the public works agency or his designee that the maintenance of area would tend to obstruct passage along any public street, or to create a hazard, or would otherwise be detrimental to the public safety, welfare or convenience.

(b) Any license may be revoked or renewal thereof denied by the executive director of the public works agency or his designee for any violation of any of the provisions of this article, for any fraud or misrepresentation in the application, violation of any other chapter of this Code, failure to comply with the standards for outdoor dining areas as specified in section 33-176 of this Code, criminal activity, adverse impacts on or to adjacent land uses, or for any reason which would have been grounds for denial of the application.

(c) The application shall be denied if the applicant fails to deposit the license fee and accept the license within thirty (30) days after notice of the approval of the application by the executive director of the public works agency or his designee.

(d) Any license issued under this article shall be canceled and revoked if the license holder fails to install and use the outdoor dining area within ninety (90) days after the date of issuance of such license.

(e) If the owner, tenant or person in lawful possession or control of the property abutting the street at the place where the outdoor dining area is to be located gives written notice of objection to such location to the executive director of the public works agency or his designee at any time before issuance of the license that maintenance of the outdoor dining area would tend to obstruct passage along any public street, or to create a hazard, or would otherwise be detrimental to the public safety, welfare or convenience, the executive director of the public works agency or his designee shall consider such notice in making the determination pursuant to subsection (a) of this section. If such written notice is received by the executive director of the public works agency or his designee after the date of issuance of the license, the license shall not be revoked but renewal thereof shall be denied on the next renewal date if the executive director of the public works agency or his designee finds in accordance with subsection (a) of this section. Any such denial or revocation of any license shall be subject to review upon filing of a timely appeal pursuant to the provisions of chapter 3 of this Code.

(f) Any license issued under this article may be revoked for failure to pay the business license tax as required by this Code.

(g) Notwithstanding the above, the executive director of the public works agency or his designee retains the right to revoke the license, at will, upon thirty (30) days written notice to the license holder.

(Ord. No. NS-2350, § 1, 5-18-98; Ord. No. 2383, § 3, 4-5-99)

(a) The design of each outdoor dining area shall be approved by the executive director of the public works agency or his designee prior to issuance of a license therefor. Approval shall be based on compliance of applicant with reasonable guidelines issued by the executive director of the public works agency or his designee.

(b) Outdoor dining areas shall be constructed in conformity with the Uniform Building Code, amended, and adopted by section 8-43 of this Code.

(c) Outdoor dining areas shall be maintained in a neat, attractive, safe and sanitary manner at all times. Routine maintenance, including cleaning and emptying of trash receptacles, shall be provided each dining area daily. Damaged, defaced or defective segments of any dining area shall be replaced within forty-eight (48) hours of discovery thereof or notice thereof by the city, whichever occurs earlier, except that any condition which, in the opinion of the executive director of the public works agency or his designee constitutes a safety hazard shall be repaired, replaced, removed or otherwise corrected immediately upon notification by the city.

(d) Upon removal of any dining area, all materials shall be removed from the site by the license holder and the site restored to the condition in existence prior to installation of the dining area, including complete restoration of any sidewalk upon which the removed dining area was located.

(Ord. No. NS-2350, § 1, 5-18-98)

(a) The executive director of the public works agency or his designee may cause a dining area to be removed and stored after expiration or revocation of the license, or when a dining area is placed or maintained in violation of any provision of this article or any requirements set forth in the license, if the license holder fails to remove or correct the same after ten (10) days notice thereof by mail.

(b) A dining area which is placed on the street without a license may be removed and stored.

(c) All of the foregoing shall be at the sole risk of the license holder or owner and shall be in addition to any other remedy provided by law.

(d) The license holder or owner may recover the property which has been removed and stored during the time specified in section 2-705 of this Code, by paying the actual cost of such removal and storage. Unclaimed property may be disposed of pursuant to the applicable provisions of law.

(Ord. No. NS-2350, § 1, 5-18-98)

Whenever a restaurant for which a license has been issued is sold, or the title or control thereof assigned or transferred, the license holder shall report such fact to the executive director of the public works agency or his designee within ten (10) days after such sale, transfer or assignment. The new owner of the restaurant shall, within such ten-day period, either remove the outdoor dining area or obtain a license for its maintenance.

(Ord. No. NS-2350, § 1, 5-18-98)

The executive director of the public works agency or his designee shall enforce the provisions of this article. In addition to removal of dining area as provided in section 33-177 of this Code, fees for noncompliance with the terms and conditions of this article may be assessed by the executive director of the public works agency or his designee as established by resolution of the city council to defray the cost of enforcement and issuing notices concerning failure of licensee to meet and maintain required city standards.

(Ord. No. NS-2350, § 1, 5-18-98)

Any person or entity aggrieved by a finding, notice, or action taken under the provisions of this article may appeal pursuant to the procedures of Chapter 3 of this Code, and shall be apprised of his right to appeal.

(Ord. No. NS-2350, § 1, 5-18-98)