This article shall be known as the "Outdoor Dining Ordinance." The purpose of this article is to allow for the expansion and use of certain outdoor dining areas, without requiring a special permit, to promote business, revitalization, and public safety.

(Ord. No. 004-21, § 3, 7-20-2021)

For the purpose of this article:

(a)

"Encroachment area" shall mean that portion of the outdoor dining area authorized to use a portion of the City's public right-of-way.

(b)

"Sidewalk area" shall mean that portion of the City's right-of-way typically located between the building wall and the curb and gutter.

(c)

"Outdoor dining" shall refer to a delineated area within a parcel, including patios and similar areas, located outside of and adjacent to a building used for consuming food or beverages at a table with chairs, a portion of which must be within 20 feet of said building, or up to 30 feet if there are unusual circumstances as determined by the Development Services Director. "Outdoor dining" shall not include food preparation areas, but may include outdoor spaces including parking areas.

(Ord. No. 004-21, § 3, 7-20-2021)

This article shall apply to restaurants, coffee shops, delicatessens, cafeterias, bars and drinking establishments (including sport bars, taverns, pubs, brew pubs, and similar establishments per Section 8-5.8004a), lounges (including cocktail lounges), ice cream stores, food courts, bakeries, eating and drinking establishments (including nightclubs) and similar uses as may be determined by the Development Services Director. This article shall also apply to nightclubs with dancing prohibited in the outdoor dining area. This article shall not apply to mobile and open air vending operations.

(Ord. No. 004-21, § 3, 7-20-2021)

(a)

No site plan, conditional use permit, or amendment to an existing permit is required for expansion into an outdoor dining area if the proposed use is existing and authorized for any portion of the applicant's property, use of the outdoor dining area does not obstruct vehicular circulation, and outdoor dining use is not expressly prohibited by a condition of an existing site plan, conditional use permit, approved parcel or tract map, zoning action, or other entitlement. Instead, an over-the-counter application shall be submitted to the Development Services Director for ministerial approval of an administrative permit consistent with this article prior to use of the outdoor dining area. The application shall include a scaled exhibit depicting the location of the outdoor dining area (including proposed structures and barriers, locations of tables and chairs, and existing structures on the parcel), designate access points for unimpeded ingress and egress, be signed by one or more of the record owners of the parcel of property, and contain any other information required by the Development Services Director. The Development Services Director shall provide a copy of approved applications to the Police Department and Fire Department. Semi-permanent and permanent structures, facilities, fixtures or buildings are allowed consistent with Title 7 (Building Regulations) and may require a building or other permit.

(b)

Use of the outdoor dining area shall be subject to the same hours of operation as the existing authorized use for the property.

(c)

If an outdoor dining use offers alcoholic beverage service, such use operator shall be duly licensed by the State Department of Alcoholic Beverage Control and shall conform to the requirements of such license. Notwithstanding Section 5-6.02, it shall not be unlawful to consume alcoholic beverages within the designated outdoor dining area where expressly permitted pursuant to the terms of a license issued by the ABC and consistent with the administrative permit and requirements of this article.

(d)

Multiple outdoor dining areas may be used. The total area of the outdoor dining area shall not exceed 1,000 square feet. Additionally, the total outdoor dining area cannot exceed the total size of the existing buildings on the property for an over the counter (administerial) application. A conditional use permit is required for all other outdoor dining uses.

(e)

The outdoor dining area must maintain and allow for at least four feet of available and usable travel space for all walkways, sidewalks, entrances and exits. The outdoor dining area must not obstruct direct access or egress from any entrance or exit. Travel space between the outdoor dining area and the building used for consuming food and beverages cannot cross an area where vehicular traffic is allowed, and a ten-foot visibility triangle must be maintained at all driveways and vehicular entrances. An outdoor dining area adjacent to a roadway or vehicular travel area must be located at least six feet from the edge of curb. If the outdoor dining area would cause the total building occupancy to exceed 49 people, the building must have at least two unobstructed exits consistent with the Building Code.

(f)

No additional parking is required when the outdoor dining area is less than 1,000 square feet as long as either i) the on-site parking requirements of Section 8-5.6102 are met before the addition of the outdoor dining area; and ii) there is enough parking remains to facilitate parking needs as determined by the Development Services Director.

(g)

Use of the outdoor dining area shall comply with the Noise Ordinance per Chapter 17 of Title 4 of this Code. Use of the outdoor dining area is prohibited before 7:00 a.m. and after 10:00 p.m. For locations located more than 400 feet from residential or other sensitive uses, outdoor dining may occur on Thursday, Friday and Saturday nights until 11:00 p.m.

(h)

Barriers around outdoor dining areas are not required, but are allowed subject to this Code if not more than four feet in height and maintain at least 50% transparency to the outdoor elements. Barriers cannot block or enclose existing ingress or egress to a structure absent prior authorization from the Building Official or designee. Barriers can be permanent or temporary, and may include moveable stanchions and similar items. All barriers must have at least one direct exit made by either providing a gap in the barrier, or with a door or gate that swings in the direction of egress travel equipped with panic hardware and having an operating force of no more than five pounds, or as otherwise required by accessibility regulations. Door or gate swing shall not intrude into any travel or related area, nor shall it intrude into any parking space. An outdoor dining area, where alcoholic beverages are consumed, must comply with barrier requirements as may be established by the California Department of Alcoholic Beverage Control.

(i)

Furnishings and structures shall comply with the following:

(1)

Furnishings and material are required to be sturdy, durable, and attractive.

(2)

Allowed furnishings may include tables, chairs, umbrellas (including table center and free-standing umbrellas), landscape pots, wait stations, planters, benches, waste receptacles, and similar items that help to define pedestrian and other use of the outdoor dining areas. Materials must be of wood, metal, stone, terra cotta, cast stone, hand-sculpted concrete, a solid surfacing material, or plastic. Plastic resin furnishings are prohibited unless made of commercial-grade materials; chain linked fencing is prohibited.

(3)

No signs shall be affixed to or supported by the furnishings or fixtures except as authorized by Article 63 (Signs), Chapter 5, of Title 8.

(4)

Permanent fencing, barriers, lighting, heating, cooling or other fixtures are allowed with a building permit; portable heaters are subject to review and approval by the Fire Department.

(5)

Individual table umbrellas may be used; roof coverings, canopies, tents, structures, or similar items require a building permit and are subject to approval by the Fire Department.

(6)

Table coverings must be in compliance with public health regulations. Vinyl tablecloths are not permitted. Tablecloths shall be brought indoors nightly and shall be clean when placed outside each day.

(7)

All outdoor dining area and furnishings shall be kept clean and litter-free, and must be kept in a safe condition at all times.

(8)

Furnishings such as tables and chairs, and fixtures such as portable heaters, shall not be stored in such a way as to be visible from the street for more than 72 hours. Furnishings and fixtures ready for use may remain in the outdoor dining area at all times even if visible from the street.

(9)

Lighting is permitted during hours of operation to provide for a warm glow (2,700 to 3,200 degrees Kelvin), and not result in offsite glare.

(10)

Furnishings and decorations shall not encroach beyond the designated area or overhang pedestrian or vehicular paths of travel outside of the outdoor dining area.

(j)

Outdoor dining shall comply with all applicable federal, state, and local laws, including Title 7 (Building Regulations), including the Building, Fire, and Electrical Codes; Americans with Disabilities Act (ADA) regulations; California Department of Alcoholic Beverage Control regulations; regulations governing the sale and service of food and beverages to the public; and shall not be a nuisance or constitute a threat to public health and safety.

(k)

Suspension, termination, and revocation:

(1)

The administrative permit issued pursuant to this article may be suspended by the Development Services Director for up to 30 days for each occurrence of the following i) failure to comply with the requirements of this article; or ii) failure to comply with the requirements of the administrative permit. Unless the failure to comply poses an immediate risk to public health and safety, an oral or written warning of the violation may be provided by the Director. The Director's determination of suspension must be in writing, list the specific violation, identify the duration of the suspension, when it will go into effect, and provide notice of the opportunity to appeal. The affected party may file a written appeal to the Director within five business days. The Director shall then review the initial determination, and then issue a final decision on the appeal within three business days.

(2)

The administrative permit issued pursuant to this article shall automatically terminate and be of no further force or effect upon the occurrence of any of the following:

(i)

The failure to maintain a business license for more than 60 days;

(ii)

Transfer or sale of more than 50% of ownership;

(iii)

Cessation of operations for 90 days; or

(iv)

Modification of an approved site plan or layout of the property that is not reflected in the application for the administrative permit.

(3)

In addition to any other remedies authorized by law, including citation, the City may revoke the approval following the process set forth in Section 8-5.7109, except that the matter shall be heard by the Planning Commission instead of the Council. Any subsequent appeal of the determination of the Planning Commission shall filed with the City Clerk within ten days, after which the City Council shall consider the appeal and approve, approve with modifications, or deny the appeal.

(Ord. No. 004-21, § 3, 7-20-2021)

Use of City street easement or right-of-way (such as a sidewalk area) for outdoor dining purposes may be approved at the discretion of the Development Service Director after consultation with the Department of Public Works. Said use shall be subject to the following requirements in addition to those required by Section 8-5.4904 except as noted:

(a)

A valid encroachment permit is required as defined by Section 7-16.58, and a zoning clearance as required by Section 8-5.7002.

(b)

Use of the encroachment area for outdoor dining shall be subject to the following:

(1)

No rent shall be charged for use of the encroachment area.

(2)

The applicant, at applicant's sole cost, expense, and liability, shall use the encroachment in the outdoor dining area solely for purposes of this article.

(3)

Use of the encroachment area shall not cause the encroachment area, or adjacent property or right-of-way to become out of compliance with any applicable federal, state or local law including this Code.

(4)

Applicant shall maintain the encroachment area, promptly dispose of trash and keep it in a clean at all times, and repair it consistent with City standards and at applicant's sole cost and expense. If the applicant fails to reasonably repair any damage to the encroachment area or caused by the applicant or applicant's use of the encroachment area, the City may repair at the sole cost, expense, and liability of applicant.

(5)

To minimize litter and debris, where table wait service is provided or food is served to the customer on a tray to be taken and eaten on site in the outdoor dining area, the plates, glasses, cups, and utensils must be made of permanent (non-disposable) materials such as glass, ceramic, and metal, and high-quality (non-disposable) napkins used.

(6)

Applicant's use of the encroachment area shall be secondary and subject to any other use of the encroachment area by the City, any easement holder, or provider of utilities including those for water, sewer, electricity, communications, etc. Upon oral or written request by the City, any easement holder, or any provider, applicant shall immediately move or remove any furnishings or structures from any portion of the encroachment area as requested.

(7)

Applicant shall defend, hold harmless, and indemnify the City regarding applicant's use of the encroachment area.

(8)

Upon any revocation or termination of the encroachment permit, applicant shall, at its sole cost, expense and liability, remove the any and all furnishings and appurtenant structures and equipment located in the encroachment area, restore the encroachment area to substantially the same condition it was in prior to applicant's use, and surrender to the City all possession, use and occupation of the encroachment area. Upon any revocation or termination of the encroachment permit, applicant shall, at its sole cost, expense and liability, remove the any and all furnishings and appurtenant structures and equipment located in the encroachment area, restore the encroachment area to substantially the same condition it was in prior to applicant's use, and surrender to the City all possession, use and occupation of the encroachment area.

(c)

Semi-permanent structures, facilities, fixtures or buildings are allowed consistent with Title 7 (Building Regulations), but are not required. Such semi-permanent items in the outdoor dining area shall be subject to this Code and require an encroachment permit, and potentially a building permit, as well as approval by both the Development Services Director and the Public Works Director. Permanent changes to any sidewalk or public right-of-way shall require prior approval from either the Development Services Director or Public Works Director. Permanent structures within the City's right-of-way are not allowed.

(d)

Furnishings and structures shall comply with the following:

(1)

All outdoor dining furnishing shall be of high quality, commercial grade, and designed for outdoor use, and must be approved by the Development Services Director prior to use.

(2)

Tables and seating shall comply with the following standards:

(i)

Table and seating framework shall be wrought iron, fabricated steel, cast aluminum, cane or teak.

(ii)

The seat of chairs and other seating shall be wrought iron, fabricated steel, cast aluminum, cane, teak or rattan.

(iii)

Table tops shall be slate, marble, granite, faux stone, wrought iron, embossed aluminum, teak, tempered glass, and mesh tops of wrought iron and aluminum are permitted. Plastic, resin, and plain metal table tops are not permitted.

(iv)

Tables and seating shall be of the same or of consistent and compatible design. All furnishings shall be properly maintained and cleaned regularly.

(3)

The following standards shall apply to umbrellas and similar shading furnishings:

(i)

Umbrellas must be removed from the encroachment area when windspeed or gusts speeds are greater than or equal to 20 miles per hour.

(ii)

The canopy must be made of canvas; vinyl or plastic umbrellas are prohibited.

(iii)

Stands must be made of cast aluminum, wrought iron, fabricated steel, or wood.

(iv)

All umbrella panels shall be of the same solid color. A complementary solid color may be used for trim (such as piping). Patterns (floral, stripes, etc.) and fluorescent colors are prohibited.

(4)

Standing portable propane heaters are permitted, subject to review and approval by the Fire Department. All other types of heaters, including electric or fuel heaters other than propane, are prohibited.

(5)

Sidewalk furnishings that are permitted to be stored outside include planters, casters, and counter-top tables. All furnishings being stored outside shall be locked together each evening and stored in front of the business in a way that does not affect ingress/egress to the building. Any other furnishings must be stored indoors at close of business or 10:00 p.m. each day, whichever is earlier.

(6)

Furnishings shall be removed immediately upon the change or use or permanent closure of the associated business.

(e)

An applicant shall be required by the permit to maintain the encroachment area free of any nuisance in fact or in law. The applicant shall also be solely responsible for operation, maintenance and repair of the encroachment area, and shall at all times provide and maintain insurance acceptable to the City. Use of the encroachment on the City's property is a non-exclusive, revocable use. The City, in its sole discretion, may revoke the encroachment permit upon determination by the Public Works Director that the use of any portion of the encroachment area is required for any municipal or public utility purpose, or is detrimental to or not in furtherance of the public health, safety, welfare and interest. The encroachment permit may also be revoked, upon determination by the Public Works Director, that the applicant has failed to comply with one or more of the terms, conditions, or restrictions of the encroachment permit or this Article. The revocation of an encroachment permit issued under this Section is not subject to Section 8-5.7109.

(f)

The addition of lighting shall require approval of Development Services Director or Public Works Director. Permitted lighting is to provide for a warm glow, light sources shall be of warm white light (2,700 to 3,200 degrees Kelvin). Lighting not approved by the City shall be removed immediately.

(g)

No additional parking shall be required for use of the encroachment area for outdoor dining; the parking requirements of Section 8-5.4904g and 8-5.6102 are not applicable to this Section.

(Ord. No. 004-21, § 3, 7-20-2021)

No vested or any other property right is created by the approval of this article or by any use, or construction of any structures, facilities, fixtures, or buildings, authorized by this section. Should the City repeal or amend this article, no claim for loss of property rights or due process of any kind shall be maintained against the City.

(Ord. No. 004-21, § 3, 7-20-2021)