ORDINANCE NO. 8831

 

AN ORDINANCE OF THE CITY OF LAWRENCE, KANSAS, REPEALING EXISTING CHAPTER VI, ARTICLE 12 AND ENACTING, IN ITS PLACE, CHAPTER VI, ARTICLE 12 OF THE CODE OF THE CITY OF LAWRENCE, KANSAS, 2011 EDITION, AND AMENDMENTS THERETO, PERTAINING TO SIDEWALK DINING.

 

BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:

 

SECTION 1. Existing Chapter VI, Article 12, of the Code of the City of Lawrence, Kansas, 2011 Edition, and amendments thereto, is hereby repealed in its entirety, it being the intent of the Governing Body that Section 2 of this Ordinance supersede it.

 

SECTION 2. Chapter VI, Article 12, of the Code of the City of Lawrence, Kansas, 2011 Edition, and amendments thereto, is hereby enacted:

 

ARTICLE 12. SIDEWALK DINING

 

6-1201             PURPOSE.

The Governing Body finds that, because it encourages a pedestrian-oriented environment, because it creates a vibrant and visually attractive streetscape, and because it promotes and stimulates commerce, it is in the best interest of the residents of the City of Lawrence, Kansas, to permit, subject to regulation, Sidewalk Dining.

 

6-1202             DEFINITIONS.

The following words, terms, and phrases, when used in this Article, shall, except where the context clearly indicates otherwise, have the following meanings:

 

(a)        "Applicant" shall refer to a Hospitality Establishment, or a person authorized to act in its behalf, that has filed with the City Clerk an application for a Sidewalk Dining License.

 

(b)        "Hospitality Establishment" shall mean any business, however organized, that sells food, beverages, or both for consumption by patrons on the premises.

 

(c)        "Licensee" shall mean any Hospitality Establishment licensed by the City under this Article to use a Sidewalk for Sidewalk Dining.

 

(d)        "Sidewalk" shall mean the City-owned right of way or easement adjoining the property line of a Hospitality Establishment.

 

(e)        "Sidewalk Dining" shall mean the consumption of food, beverages, or both by patrons of a Hospitality Establishment outdoors on a specific area of a Sidewalk set aside for that purpose.

 

  

 

6-1203             SIDEWALK DINING LICENSE REQUIRED.

No Hospitality Establishment shall permit Sidewalk Dining without first obtaining a Sidewalk Dining License.

 

6-1204             SIDEWALK DINING LICENSE FEE.

The fee for a Sidewalk Dining License shall be $3.50 per square foot per year. The fee shall be considered to be in the nature of a lease payment for the commercial use of the Sidewalk. The Sidewalk Dining License fee shall be pro-rated for the first partial year in which it is issued. The Sidewalk Dining License Fee shall not be pro-rated or refunded in the case of suspension or revocation of a Sidewalk Dining License.

 

6-1205             SIDEWALK DINING LICENSE APPLICATION.

Application for a Sidewalk Dining License shall be made to the City Clerk on a form provided by the City Clerk for that purpose. The Applicant shall complete the form in full and shall provide, at the least, the following:

 

(a)        The name of the Hospitality Establishment to be licensed, including its    e-mail address, business address, business telephone, and mailing address.

 

(b)        If the Hospitality Establishment to be licensed is a corporation, partnership, or other business organization, the names, addresses, and dates of birth of all officers, directors, partners, or members.

 

(c)        The name of the manager of the Hospitality Establishment, his or her telephone number, mailing address, and e-mail address.

 

(d)        Written permission of all owners of record and all equitable owners, if any, of the real property upon which the Hospitality Establishment is located that would be offering Sidewalk Dining.

 

(e)        Written permission from all property owners and all tenants, if any, of properties adjacent to the Hospitality Establishment seeking the Sidewalk Dining License, declaring that said owners and tenants, if any, have no objection to the issuance of the Sidewalk Dining License.

 

(f)        Remittance of the Sidewalk Dining License Fee in the amount established at Section 6-1204.

 

(g)        A copy of a Certificate of Insurance, in accordance with Section 6-1209.3, establishing that the Applicant has procured appropriate liability insurance and that said insurance is current.

 

(h)        A copy of the Applicant's Kansas Food Establishment License.

 

 

 

 

 

(i)         A copy of the Applicant's State of Kansas sales and liquor tax reports, if any, for the preceding twelve months.

 

(j)         An executed Right of Way Agreement between the City and the owner(s) of the real property upon which the Hospitality Establishment, seeking the Sidewalk Dining License, is located.

 

(k)        A statement that the Applicant has submitted a Site Plan to the Lawrence-Douglas County Metropolitan Planning Office for approval.

 

(l)         The Applicant’s signature and the date.

 

6-1206             SIDEWALK DINING LICENSE ISSUANCE; DENIAL

 

 (a)       The City Clerk shall review each application for a Sidewalk Dining License. Within a reasonable time thereafter, the City Clerk shall submit the application to the Governing Body for approval unless:

 

            (1)        The application is incomplete.

 

(2)        The Hospitality Establishment has had a Sidewalk Dining License revoked by the City for any reason within the preceding two (2) years.

 

(b)        If the application is incomplete, then the City Clerk shall notify the Applicant and shall allow the Applicant additional time to complete the application. Within a reasonable time after its completion, the City Clerk shall submit the completed application to the Governing Body for approval. 

 

(c)        If the application is incomplete because the Applicant was unable to procure the signatures required by Section 6-1205(e), or if it the Hospitality Establishment has had a Sidewalk Dining License revoked within the two (2) previous years under Section 6-1206(a)(2), then the City Clerk shall deny the application by giving Notice of Denial to the Applicant. Notice of Denial shall be in writing, shall be mailed to the Applicant at his or her given address, shall inform the applicant of the reason for denial, and shall inform the Applicant that he or she has fourteen (14) days from the date of the Notice of Denial within which to submit to the City Clerk, in writing, a request for a public hearing before the Governing Body.  

                       

6-1207             SIDEWALK DINING LICENSE APPEARANCE; DURATION.

                       

(a)        The Sidewalk Dining License shall contain the seal of the City, the name and mailing address of the Licensee, and the expiration date of the license.

 

(b)        The Sidewalk Dining License shall be valid for a period not to exceed one year and shall expire at midnight on the subsequent November 1st.

 

6-1208             SIDEWALK DINING LICENSE RENEWAL; DENIAL

 

(a)        Not less than thirty (30) days prior to the expiration date of a Sidewalk Dining License, the City Clerk shall mail to the Licensee a renewal application form. The Licensee shall complete the renewal application form and shall return the same to the City Clerk no later than  November 1 of that year, providing, at the least, the following:

 

(i)         The name of the Licensee, including its e-mail address, business address, business telephone, and mailing address.

 

(ii)        If the Licensee is a corporation, partnership, or other business organization, the names, addresses, and dates of birth of all officers, directors, partners, or members.

 

(iii)       The name of the manager of the Licensee, his or her telephone number, mailing address, and e-mail address.

 

(iv)       Remittance of the Sidewalk Dining License Fee in the amount established at Section 6-1204.

 

(v)        A copy of a Certificate of Insurance, in accordance with Section  6-1209.3, establishing that the Licensee has procured appropriate liability insurance and that said insurance is current.

 

(vi)       A copy of the Licensee's Kansas Food Establishment License.

 

(vii)      A copy of the Licensee's state sales and liquor tax reports for the preceding twelve months.

 

(viii)     The Licensee’s signature and the date.

 

(b)        For any Sidewalk Dining License Fee and renewal application form received by the City Clerk after November 15, the City Clerk shall assess to the Licensee, as a late fee, a penalty not to exceed 10% of the Licensee's Sidewalk Dining License Fee.

 

(c)        At the same time that he or she mails to the Licensee a renewal application form, the City Clerk shall mail to all adjoining property owners of record and tenants of such property Notice that the Licensee is seeking to renew the Sidewalk Dining License and that said persons or business entities have thirty (30) days from the date of the Notice within which to submit in writing to the City Clerk any objection to a renewal of the Sidewalk Dining License.

 

(d)        If the renewal application form is submitted to the City Clerk, is complete (including remittance of the Sidewalk Dining License Fee), and no timely written objection under Section 6-1208(c) is received, then the City Clerk shall submit the renewal application to the Governing Body for approval.

 

(e)        If the renewal application form is incomplete or if the City Clerk receives timely written objection under Section 6-1208(c), then the City Clerk shall deny the renewal application by giving Notice of Denial to the Licensee. Notice of Denial shall be in writing, shall be mailed to the Licensee at his or her given address, shall inform the Licensee of the reason for denial, and shall inform the Licensee that he or she has fourteen (14) days from the date of the Notice of Denial within which to submit to the City Clerk, in writing, a request for a public hearing before the Governing Body. 

 

6-1209             SIDEWALK DINING LICENSE CONDITIONS.

Each Sidewalk Dining License issued by the Governing Body shall be subject to the following conditions and requirements:

 

6-1209.1          COMPLIANCE WITH ZONING REQUIREMENTS.

The use of the Sidewalk shall be in conformance with the zoning regulations governing the real property upon which the Licensee is located. The use shall be limited to the sale, possession, and consumption of food, beverages, or both as part of the business of the Licensee. 

 

6-1209.2          SITE PLAN.

 

(a)        In conjunction with its application for a Sidewalk Dining License, the Applicant shall, in accordance with Chapter 20 of the Code of the City of Lawrence, Kansas, as amended, submit a Site Plan to the Lawrence-Douglas County Planning Department for approval. In addition to meeting all requirements of Chapter 20, the Site Plan shall include the following:

 

(i)         Elevation drawings.

 

(ii)        A note setting forth the square footage of Sidewalk Dining area.

 

(iii)       A drawing or diagram showing the seating configuration within the Sidewalk Dining area.

 

(iv)       A drawing or diagram showing that there is a minimum of six (6) feet width of unobstructed Sidewalk reserved for pedestrian use between the proposed Sidewalk Dining area and the street curb or plantings, whichever is closer.

 

(v)        A drawing or diagram outlining the area to be used for Sidewalk Dining and showing the location of railings or barriers that shall separate it from that portion of the Sidewalk reserved for pedestrian use. The railings or barriers shall be constructed of wrought iron, ornamental metal, or other compatible materials that reflect and conform to the character of the area. The Site Plan shall also note the style, design, and color of the railings or barriers.

 

(vi)       A drawing or diagram showing any umbrellas proposed to be maintained within or overhanging the Sidewalk Dining area or the Sidewalk. Any umbrellas associated with the Sidewalk Dining use shall maintain a minimum distance of eighty (80) inches between the sidewalk surface and the lowest part of the umbrella's canopy.

 

(vii)      A note stating whether the Licensee will use amplified music or sound in conjunction with the Sidewalk Dining use. Any use of amplified music or sound shall comply with the City's noise ordinance.

 

(b)        If required by law, the Site Plan shall also be reviewed and approved by the Historic Resources Commission and/or the State Historic Preservation Officer.

 

6-1209.3          INSURANCE.

The Licensee shall carry an insurance policy issued by a reputable insurance company licensed to do business in the State of Kansas. The policy shall insure the Licensee in an amount not less than $500,000 per single incident for any liability associated with the failure of the Licensee, its employees, agents, servants, invitees, or patrons, to exercise reasonable care and diligence in the use of the Sidewalk. Proof of insurance shall be submitted to the City Clerk on a standard ACORD form, or substantially similar form as approved by the City Clerk, and shall establish that the Licensee maintains the requisite insurance and that it is current. The certificate shall also require the insurance carrier to notify the City at least thirty (30) days in advance of any change in terms and conditions of the policy, including cancellation for any reason, and in advance of any expiration of the policy term.

 

6-1209.4          INDEMNIFICATION.

The Licensee must comply with all terms of the executed Right of Way Agreement. Among other things, the Right of Way Agreement shall provide that the Licensee agrees, at all times, to save and to hold harmless the City, its officials, officers, employees, and agents, 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 related to or arising out of the Licensee's use of the Sidewalk for Sidewalk Dining.

 

6-1209.5          REMOVAL OF FIXTURES.

The City may require, at any time and for any reason, the removal of any fixtures placed on the Sidewalk pursuant to this Article. The Licensee shall be 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 the tenant of the real property at the time that removal is required, then the owner(s) of record of the real property shall be responsible for any costs incurred in removing the fixtures and in returning the sidewalk to City pavement standards.

 

6-1209.6          ALCOHOLIC LIQUOR; CEREAL MALT BEVERAGES.

The Governing Body may permit the Licensee to serve and the Licensee's patrons to purchase, possess, and consume alcoholic liquor and/or cereal malt beverages within the Licensee's Sidewalk Dining area in accordance with Chapter 4 of the City Code. The Licensee shall also comply with all State and City laws and ordinances governing the sale, possession, and consumption of alcoholic liquor and cereal malt beverages.

 

6-1209.7          SIDEWALK DINING LICENSE MAINTAINED ON THE PREMISES.      

A Licensee shall retain the Sidewalk Dining License on the premises and shall make it readily accessible for viewing by City personnel.

 

6-1209.8          SIDEWALK DINING LICENSE NON-TRANSFERABLE.

No Sidewalk Dining License issued in accordance with the provisions of this Article shall be used by any person other than the Licensee to whom it was issued.

 

6-1210             SIDEWALK DINING LICENSE RESTRICTIONS.

 

(a)        No Sidewalk Dining License will be issued under this Article to any Hospitality Establishment that does not derive at least fifty-five percent (55%) of its gross receipts from the sale of food and non-alcoholic beverages, unless the Hospitality Establishment has no reasonable location for an outdoor hospitality area. A Hospitality Establishment has no reasonable alternative location for an outdoor hospitality area if no single outdoor area on the premises of the Hospitality Establishment:

 

(i)         Is at least fifty square feet (50 ft2) in area, excluding the measurement of 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 subsection, the width of the excluded area shall be no greater than the width of the customer entrance served by that area, or six feet (6 ft), whichever is less.

 

(ii)        Is at least five feet (5 ft) wide, with width defined as the shortest dimension.

 

(b)        If food is served by a Licensee anywhere on its premises, then food service must also be made available in the Sidewalk Dining area during the same times and at the same prices that food is available elsewhere on the premises.

 

(c)        These restrictions shall not apply to any Licensee that would be in violation of these restrictions and that has an active Sidewalk Dining License at the time that this Ordinance is enacted.

 

6-1211             NOTICE OF VIOLATION.

Any Licensee determined by the City to be in violation of any provision of this Article shall be sent a Notice of Violation. The Notice of Violation shall be sent by certified mail, postage prepaid, and return receipt request to the Licensee. The Notice of Violation shall state:

 

                        (a)        The condition that has caused the violation;

 

                        (b)        The time within which the Licensee must cure the violation; and

 

                        (d)        That the Licensee shall have fourteen (14) days from the date of the Notice of Violation to request, in writing, a public hearing before the Governing Body.

 

6-1212             SUSPENSION; REVOCATION

If the continued operation of the Sidewalk Dining is determined by the City to be injurious to the health, safety, and welfare of the residents of the City, or if the Licensee has failed to cure a violation of this Article, the City shall send to the Licensee either a Notice of Suspension or a Notice of Revocation.

 

6-1213             PUBLIC HEARING.

 

(a)        Any Applicant or Licensee, aggrieved by the action of the City in denying an application for a Sidewalk Dining License, in issuing a Notice of Violation, in suspending a Sidewalk Dining License, or in revoking a Sidewalk Dining License, shall have the right to a public hearing before the Governing Body by requesting such a hearing within fourteen (14) days of the date of the Notice of Denial, Notice of Violation, Notice of Suspension, or Notice of Revocation. The Request for Hearing must be in writing, must be delivered to the City Clerk, and must set forth why the Applicant or Licensee believes that the Notice of Denial, Notice of Violation, Notice of Suspension, or Notice of Revocation is in error. After the Request for Hearing is filed, the Governing Body shall set a time and place for the hearing. Notice of the hearing shall be given to the Owner in the same manner as the Notice of Denial, Notice of Violation, Notice of Suspension, or Notice of Revocation.

 

(b)        If the hearing involves a Notice of Denial, the Governing Body shall not grant a Sidewalk License unless the Applicant establishes (1) that the Notice of Denial was issued in error or (2) that it is within the public's interest to approve the application for a Sidewalk Dining License. The Governing Body shall base its decision on the credible evidence adduced at the public hearing and shall make findings of fact sufficient to support its determination.

 

(c)        If the hearing involves a Notice of Violation, Notice of Suspension, or Notice of Revocation, the Governing Body shall affirm, reverse, or modify the Notice of Violation, Notice of Suspension, or Notice of Revocation. The Governing Body shall reverse the decision of City Staff only if it finds that the Notice of Violation, Notice of Suspension, or Notice of Revocation was issued erroneously. The Governing Body shall base its decision on the credible evidence adduced at the public hearing and shall make findings of fact sufficient to support its determination.

 

(d)        In the event of a public hearing, the decision of the Governing Body shall be the final decision of the City. If no hearing is requested, then the Notice of Denial, Notice of Violation, Notice of Suspension, or Notice of Revocation shall be the final decision of the City.

 

 

 

6-1214             ADMINISTRATIVE REGULATIONS.

 

(a)        In order to protect the health, safety, and welfare of the community, the City Manager or his or her designee shall have the power to promulgate reasonable administrative regulations governing a Licensee's use of the Sidewalk for Sidewalk Dining. Any regulations promulgated in accordance with this Article shall be dated and shall be available for inspection by the public during reasonable business hours. A Licensee shall receive a copy of any regulations at the time of the issuance of any Sidewalk Dining License or the renewal of a Sidewalk Dining License.

 

(b)        The Licensee shall comply with all regulations promulgated by the City Manager or is or her designee in accordance with this Article. Failure to abide with any regulation shall be grounds for Notice of Violation, Notice of Suspension, or Notice of Revocation pursuant to Sections 6-1211 or   6-1212 of this Article.

 

SECTION 3. 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 full force and effect immediately following its adoption and publication as provided by law.

 

ADOPTED by the Governing Body of the City of Lawrence, Kansas, this ____ day of January, 2013.

 

 

 APPROVED:

 

 

 

___________________________________

Robert J. Schumm

Mayor

ATTEST:

 

 

 

__________________________________

Jonathan M. Douglass

City Clerk

 

APPROVED AS TO FORM AND LEGALITY:                   

 

 

 

__________________________________

Toni R. Wheeler

City Attorney

 

*****

NOTICE TO PUBLISHER

 

Publish one time and return one Proof of Publication to the City Clerk and one to the City Attorney.