The purpose of this chapter is to permit and regulate sidewalk dining. The city recognizes that the use of public walkways for limited sidewalk dining areas can improve the business environment and enhance the quality of life for residents so long as such use is consistent with the underlying dedication for public right-of-way, does not impede travel, and does not interfere with the rights of adjoining property owners. Therefore, the city may permit such uses on a temporary or nonpermanent basis and as a special privilege, not as a matter of right.

(Ord. No. 2357, § 3, 3-26-2014)

The definitions set forth in this section shall have the following meanings for the purposes of this Chapter 17.69.

"Administrative hearing" means the hearing before the director as set forth under Section 17.69.050.

"Applicant" means a person, entity, or corporation representing the restaurant business applying for the Permit. The applicant shall be authorized to represent the business in a contract.

"Director" means the director of community development or such other person that the city manager may designate to administer the provisions of this chapter.

"Permit" means the permit created by this chapter allowing a business to occupy for outdoor dining a portion of the public sidewalk.

"Permit area" means an area within the public walkway set up in conjunction with the uses of the abutting property for dining and including both any obstruction and any activity related to dining, including, but not limited to, waiting for tables, waiting on tables, busing tables and entertainment.

"Permittee" means the person, entity, or corporation representing the business to which the permit is issued.

"Primary business" means the restaurant or retail sales establishment serving prepared food to which the sidewalk dining is an accessory use pursuant to Montebello Municipal Code Section 17.08.030.

a.

Primary businesses by definition shall include restaurants and retail business establishments that sell prepared food, including but not limited to bakeries, ice cream parlors and delicatessens.

b.

Primary businesses shall not include bars or other establishments that do not qualify as a bona fide restaurant pursuant to Montebello Municipal Code Section 17.61.020.

"Renewal annual permit" means the annual renewal of the sidewalk dining permit as described in Section 17.69.140 of this chapter.

"Restaurant" as defined in Section 17.08.610 of the Montebello Municipal Code.

"Restaurant with alcohol sales" for purposes of this chapter shall mean bona fide restaurant as defined in Montebello Municipal Code Section 17.61.020 holding current and valid state and local licenses and permits to allow the sale of alcohol with food.

"Sidewalk" means that part of the public right-of-way dedicated to pedestrian circulation, including without limitation a public sidewalk or a public pedestrian mall.

"Sidewalk furnishings" means fixtures used in the use of the sidewalk for outdoor dining including tables, seating, portable lighting, heaters, umbrellas and canopies.

(Ord. No. 2357, § 3, 3-26-2014)

A.

Permit.

1.

Permit Required. Any restaurant desiring to erect, construct; place or maintain an encroachment upon any public sidewalk for outdoor sidewalk dining facilities must first obtain a permit pursuant to this chapter.

2.

Rights Granted. The permit only grants the permittee with a license to use the public sidewalk in the manner set forth herein. The permit does not grant any property right in the sidewalk.

3.

Non-transferrable. The permit is non-transferable and non-assignable.

4.

Annual Renewal. The permit shall be renewed annually as described in Section 17.69.140 of this chapter.

5.

Revocable. The permit is a privilege which is revocable at will and may be revoked by the city, for or without any cause whatsoever, at any time.

B.

Application Fee. With the application for a sidewalk dining permit, the applicant shall pay the sidewalk dining application fee established by city council resolution.

(Ord. No. 2357, § 3, 3-26-2014)

The applicant shall file an application with the director and shall pay the application fee specified by resolution of the council. The director shall establish a form for applications for a permit, including any application materials deemed necessary to enable complete review of the application. The application shall contain, at a minimum, the following information:

A.

Applicant. The name and signature of the applicant; and

B.

Business. The name and address of the business desiring to extend its operations onto an appurtenant sidewalk; and

C.

Hours of Operation. The hours that the permit area is proposed to be used for outdoor dining; and

D.

Plans. A plan, drawn to scale and dimensioned showing:

1.

The perimeter of the permit area.

2.

The unencumbered sidewalk area available for pedestrians

3.

All sidewalk furnishings including but not limited to umbrellas, tables, chairs and other portable appurtenances.

4.

Proposed permanent modifications including but not limited to fencing, landscaping or utility connections.

E.

Mailing List. A list of property owners as described in Montebello Municipal Code Section 17.78.010.

F.

Additional Information. Other information as may be required to establish, to the satisfaction of the director, that the proposed use will not impede or impair the use of the public walkway.

G.

Declaration. A declaration, under penalty of perjury, that all information provided in the application is true and correct.

(Ord. No. 2357, § 3, 3-26-2014)

A.

Application Completeness. The director, or designee, shall review the application for completeness.

B.

Schedule Administrative Hearing. An administrative hearing before the director on the proposed application shall be scheduled no more than thirty days after the application is deemed complete.

C.

Application Noticing. No less than twelve days prior to the administrative hearing, the application shall be noticed in the following manner:

1.

Mailed or Delivered Notice. Notice of the permit application shall be mailed to property owners as described in Montebello Municipal Code Section 17.78.040.

2.

Site Posting. A notice of the permit application shall be posted in a prominent location on the business requesting the permit.

D.

Notice Contents. The notice shall include the following:

1.

Applicant Identification. The business name, address and a description of the business requesting the permit.

2.

Request Description. A description of the proposed request, including but not limited to, the number of tables and seating proposed and whether or not alcohol will be permitted.

3.

Administrative Hearing Process Explained. An administrative hearing will be held on the date noticed if and only if a statement of concern is received by the community development department twenty-four hours before the tentative hearing date. If no concerns are received, the tentatively scheduled hearing will be cancelled.

E.

Administrative Hearing Procedures.

1.

The director, or designee, shall preside over the administrative hearing.

2.

The director, or designee, shall hear testimony for and against the permit application.

3.

The administrative hearing may be continued by the director without additional noticing.

F.

Decision and Notice. Within seven days of the conclusion of the administrative hearing or within seven days of the scheduled date of the administrative hearing, if cancelled, the director shall:

1.

Make the findings of fact as required by the chapter.

2.

Approve, approve with conditions or deny the permit application.

3.

Mail notice of the decision to the applicant and any other person requesting such notice.

G.

Appeal Process. The director's decision may be appealed to the planning commission as described in Montebello Municipal Code Section 17.78.060.

(Ord. No. 2357, § 3, 3-26-2014)

The permit may be approved only if the following findings are made:

A.

Sidewalk dining as proposed in this location meets the standards of this chapter and will comply with the conditions and restrictions set forth in this part, including obtaining all other permits and entitlements necessary for the intended use; and

B.

Sidewalk dining in this location is compatible with the use and enjoyment of the surrounding neighborhood uses and does not unduly interfere with the use of adjacent or neighboring properties; and

C.

Sidewalk dining use in this location does not impede travel on the public walkway, or create a hazard to the safety or health of pedestrian; and

D.

Sidewalk dining use in this location will not adversely impact traffic and parking safety in the surrounding area.

(Ord. No. 2357, § 3, 3-26-2014)

A.

Indemnification. As a condition to issuance, the permittee shall submit to the city's risk manager a signed agreement to defend, indemnify, save, and hold harmless the city and all of its officers, agents, or employees from and against any liability, loss, claims, suits, damages, costs, expenses, and judgments (including attorney's fees and costs of litigation) which in whole or in part result from, or arise out of, or are claimed to result from or to raise out of any acts, negligence, errors or omissions of the permittee resulting from any and all operations under the permit granted pursuant to this chapter. In addition, the agreement to indemnify shall include, but is not limited to, personal injury and property or other damage sustained by any person or persons (including but not limited to, companies, or corporations, permittee and its employees, or agents, and members of the general public.). The agreement to indemnify required herein shall be in a form approved by the city attorney's office.

B.

Insurance. As a condition to issuance, the permittee shall, at his or her own cost and expense, obtain and maintain in full force and effect all of the necessary insurance coverage for the full term of the sidewalk dining permit or any renewal thereof naming the city, its officials, employees, agents, and volunteers as an additional insured. The level of coverage shall be in the amount to be determined by the city's risk manager or the city manager's designee assigned to perform the functions of the risk manager.

(Ord. No. 2357, § 3, 3-26-2014)

In addition to any specific conditions of approval adopted for a permit, all sidewalk dining uses must comply with the following design standards.

A.

Clear Pedestrian Path. A minimum of five feet clear path of pedestrian travel is required.

B.

Setbacks. The permit area shall be located shall comply with the following minimum setbacks:

1.

Intersection. The permit area shall be located at least twenty feet from an intersection.

2.

Driveways. The permit area shall be located at least five feet from alleys, driveways, disabled person parking ramps, commercial loading zones, and bus zone areas; and

3.

Parallel Parking. The permit area shall be located at least three feet from any curb adjacent parallel parking space.

4.

Street Signs. The permit area shall be located at least three feet from traffic signs, utility poles, fire hydrants, parking meters, and other street fixtures; and

5.

The director may require a larger setback distances to provide for unimpeded pedestrian passage, traffic management, or any other public-use purpose.

C.

Compatibility. Tables, chairs, and other sidewalk furnishings must be compatible with the building in design, material, and color.

D.

Sidewalk Furnishings.

1.

Sidewalk furnishings shall not be placed in public right-of-way where they may interfere with safe line-of-sight distance or may otherwise pose a traffic safety hazard.

2.

Sidewalk furnishings shall not be placed where they may interfere with the pedestrian path of travel or may create a safety hazard.

3.

Equipment for the service of customers, including but not limited to trays or carts, eating or drinking utensils, linens, and cooking appliances shall not be placed or maintained on any portion of the sidewalk; and

4.

Umbrellas and free-standing canopies shall have a minimum height clearance of seven feet over the pedestrian walkway. Umbrella bases shall be completely within the permit area.

5.

All non-metallic umbrellas and canopies shall be flame proof.

E.

Outdoor lighting is required where food and drinks are served in the evening. Lighting may not cause glare of visual obstruction to drivers or pedestrians. Electrical cords or strings of lights may not be strung over or placed on public right-of-way.

F.

All sidewalk dining areas must comply with the Americans with Disabilities Act (ADA) guidelines.

(Ord. No. 2357, § 3, 3-26-2014)

A.

Hours of Operation.

1.

The hours of operation shall be limited to the hours of operation for the primary business.

2.

Notwithstanding the hours of operation of the primary business, no permit area shall operate between the hours of 11:00 p.m. and 6:00 a.m.

B.

Permit Area Maintenance. The permit area must be maintained in the following manner:

1.

The permit area must be kept clear of litter and food scraps at all times.

2.

The sidewalk furnishings must be kept in a clean, safe condition at all times.

3.

Sidewalk furnishings must be removed from the public right-of-way at close of business and stored out of public view.

4.

The permit area must be swept and mopped after the sidewalk furnishings are stored in the evening.

C.

Smoking. Smoking is prohibited in permitted sidewalk dining areas.

D.

Sit-down Dining. Dining within the permit area shall be limited to sit-down food and beverage service only. No stand-up service is permitted.

E.

Sound. Acoustic music is permitted in the permit area. However, the installation and/or use of speakers and other amplified sound equipment is not allowed.

F.

Compliance with Conditions. All conditions of the permit must be complied with at all times.

G.

No additional parking shall be required for the issuance of a sidewalk dining permit.

(Ord. No. 2357, § 3, 3-26-2014)

A.

Permit Required for Alcohol Sales. The permit must specifically permit the sale of alcohol on the sidewalk.

B.

Conditional Use Permit for Alcohol. The primary use must be a bona fide restaurant with a conditional use permit allowing on-sale alcohol in the main dining area as well as the permit area.

C.

Alcohol Sales Permit Review Process. The permit for alcohol sales shall be reviewed in the manner described in Section 17.69.110 of this chapter.

(Ord. No. 2357, § 3, 3-26-2014)

In addition to any specific conditions of approval adopted for a permit and all the standards presented in Section 17.69.080, all sidewalk dining uses that sell alcohol within the permit area shall comply with the following conditions:

A.

Physical Barrier. The permittee must install a physical barrier to control ingress and egress to the permit area. Barrier design shall be subject to the review and approval of the director. The director shall consider the following in the review:

1.

The barrier clearly defines the permit area to minimize opportunities for illegal consumption of alcohol.

2.

The barrier is compatible with the architectural character of the primary use.

3.

The barrier does not impede pedestrian traffic.

B.

Signs Advertising Alcohol Prohibited. The permittee shall neither use nor allow any free-standing card or any posted placard or sign of any size or kind promoting alcohol service or beverages within the permit area.

(Ord. No. 2357, § 3, 3-26-2014)

In addition to any specific conditions of approval adopted for a permit and all the standards presented in Section 17.69.090, all sidewalk dining uses that sell alcohol within the permit area must comply with the following standards.

A.

The primary use is a bona fide restaurant as defined in Montebello Municipal Code Section 17.61.020.

B.

The permittee holds a current and valid liquor license issued by the California Department of Alcoholic Beverage Control allowing its public eating establishment to operate as a bona fide public eating place under state law; and

C.

The licensee under the liquor license issued by the California Department of Alcoholic Beverage Control is in full compliance with all conditions and restrictions of the applicable liquor license; and

D.

The primary use and the site upon which the primary use is located are in full compliance with all provisions of this code and would continue to be in full compliance if and after a permit to allow alcohol sales in the permit area is issued.

(Ord. No. 2357, § 3, 3-26-2014)

Any permittee desiring to change the permitted use by increasing the size of the permit area, by changing substantially the use of arrangement of the occupancy or by adding previously unpermitted alcohol service to the permit area, shall file a new permit application under this chapter.

(Ord. No. 2357, § 3, 3-26-2014)

A.

Annual Renewal Permit.

1.

Annual Renewal Permit Request. Thirty days prior to expiration of the permit the permittee shall submit in writing a request for renewal. The request shall include a declaration under penalty of perjury that the permittee is in compliance with the provisions of this chapter, with the conditions of the permit.

2.

Failure to Request a Renewal in a Timely Manner. Failure to submit the renewal request thirty days prior to the expiration date shall cause a lapse in the permit which terminates the privilege to conduct business in the permit area. An application for a new permit must then be filed to restore the privilege to conduct business in the permit area.

B.

Annual Permit Renewal Fee (if any).

1.

Annual Renewal Fee Payment. Thirty days prior to expiration of the permit the permittee shall pay the annual permit renewal fee (if any) established by city council resolution.

2.

Failure to Pay the Fee in a Timely Manner. Failure to pay the renewal fee thirty days prior to the expiration date shall cause a lapse in the permit which terminates the privilege to conduct business in the permit area. An application for a new permit must then be filed to restore the privilege to conduct business in the permit area.

(Ord. No. 2357, § 3, 3-26-2014)