HomeMy WebLinkAbout11-243MAY 24, 2011 11 -164 11 -201 11 -214 11 -243 RECONSIDERED
MAY 10, 2011 ORDINANCE
APRIL 26, 2011
APRIL 12, 2011
(CARRIED 6 -0 LOST LAID OVER WITHDRAWN )
AS AMENDED
PURPOSE: APPROVE AMENDMENT TO CHAPTER 25 STREETS &
SIDEWALKS TO CREATE SECTION 25 -62 SIDEWALK
CAFE /OUTDOOR SEATING REGULATIONS IN THE PUBLIC
RIGHT -OF -WAY ON NORTH MAIN STREET
INITIATED BY: BUSINESS IMPROVEMENT DISTRICT; DEPARTMENT OF
COMMUNITY DEVELOPMENT
BID BOARD RECOMMENDATION: Approved
A GENERAL ORDINANCE OF THE CITY OF OSHKOSH CREATING REGULATIONS
FOR SIDEWALK CAFE /OUTDOOR SEATING AREAS WITHIN THE PUBLIC RIGHT-
OF-WAY
The Common Council of the City of Oshkosh do ordain as follows:
SECTION 1. That Section 25 -62 Sidewalk Cafe /Outdoor Seating is hereby
created to read as follows:
SECTION 25 -62 SIDEWALK CAFE /OUTDOOR SEATING
(A) Purpose
To further encourage the revitalization of the Downtown and Main Street areas of
the city of Oshkosh, including the development of social and economic activity.
(B) Definitions
(1) Sidewalk Cafe: An expansion of an establishment creating an outdoor
seating facility on part of the public right -of -way that immediately adjoins
the licensed premises for the purpose of consuming food or beverages
prepared at the full service restaurant, coffee shop or tavern adjacent
thereto.
(C) License Required
A Sidewalk Cafe License is required to construct and operate a sidewalk cafe or
outdoor seating area in the city of Oshkosh. No person shall sell any food and /or
beverages at a sidewalk cafe unless such a license has been issued.
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APRIL 26, 2011 CONT'D
APRIL 12, 2011
(1) Before a cafe license may be issued, an application and site plan shall be
reviewed for approval by the Site Plan Review Committee. During the
review, any concerns with the site plan will be addressed and
communicated to the applicant. All issues and concerns must be
addressed before final approval of the application.
(2) The license shall not be transferrable either through person or premise.
(3) All submitted applications shall include at least the following information:
(a) Completed application form and application fee.
(b) Ten copies of a scaled site plan which depicts the dimensions of
the existing sidewalk area and adjacent property, the location of the
proposed sidewalk cafe, size and number of tables, chairs,
planters, umbrellas, location of doorways, trees, parking meters,
bus shelters, sidewalk benches, bike racks, trash receptacles, or
any other sidewalk obstructions either existing or proposed, within
the pedestrian area.
(c) Photographs, drawings, or manufacturer's brochures fully
describing the appearance and dimensions of all proposed tables,
chairs, umbrellas, or other objects relating to the sidewalk cafe.
(d) Copy of a current certificate of insurance in the amount and
categories required by section (G) of this Ordinance.
(4) A sidewalk cafe license does not grant the licensee exclusive use of the
public right -of -way.
(a) All public improvements including, but not limited to trees, light
poles, traffic signals, manholes, or any public initiated maintenance
procedures, shall take precedence over the use of the public right -
of -way pursuant to the sidewalk cafe license at all times.
(b) Licenses issued under this section may not be valid on any day that
a permitted special event would close the street and /or sidewalk in
front of the sidewalk cafe to normal use or traffic. Special Events
organizers upon approval of the Special Event Permit by the
Common Council shall notify sidewalk cafe license holders prior to
scheduled events.
(5) The approval of a sidewalk cafe license is conditional at all times. A
sidewalk cafe license may be revoked or suspended by the City when
necessary to protect the public health, safety, or welfare; to prevent a
nuisance from developing or continuing; in emergency situations; or due to
noncompliance with this Section, the City Municipal Code, or applicable
state or federal law.
(6) The cafe license shall be renewed on an annual basis and be valid from
April 1 st through October 31 st of any year.
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APRIL 26, 2011 CONT'D
APRIL 12, 2011
(D) Location
(1) Sidewalk cafes may be permitted on public sidewalks on North Main
Street within the area bound by Irving Avenue to the north and Ceape
Avenue to the south.
(2) Sidewalk cafe outdoor seating areas may be located only on that portion
of the public right -of -way that is a minimum of five (5) feet from the right -
of -way line, and two (2) feet from established face of curb or street where
the license holder's business is located, and shall not be in conflict with
the City's Municipal Code (See Figure 1).
(3) Sidewalk cafes shall extend no further than the side property lines of the
establishment's street frontage.
(4) A minimum of five (5) feet of unobstructed public pedestrian walkway
adjacent to the right -of -way line shall be maintained at all times (See
Figure 1).
(5) No part of the sidewalk cafe shall obstruct access to any fire hydrant nor
obstruct the view of any fire hydrant from the street.
(6) No sidewalk cafe shall be permitted within five (5) feet of the sides of bus
stops or bus shelters, nor permitted in a manner that interferes with the
use of bus stops or interferes with the ingress or egress from any bus
shelter.
(7) No portion of a sidewalk cafe shall be located within five (5) feet of a curb -
cut, a marked crosswalk, or any other obstruction including, but not limited
to, a parking meter post, sidewalk bench, bike rack, kiosk, etc.
(8) No portion of a sidewalk cafe shall be located to obstruct any truck, freight,
or passenger loading zone, nor adjacent to any disabled parking space.
(9) At least one (1) unobstructed entrance of at least three (3) feet in width
shall be maintained to allow sufficient public entry /exit to sidewalk cafe.
(10) No sidewalk cafe shall be placed on any grass, lawn, or any unpaved
areas of the right -of -way.
(11) No portion of the sidewalk cafe shall be used for food or beverage
preparation, storage or refrigeration.
(E) Restrictions
(1) Signage
No signs shall be permitted in the sidewalk cafe area except the following:
(a) Table umbrellas with the license holder's business name printed
thereon or name(s) of products sold at the business.
(b) Sandwich board signs or any other signs for which the license
holder has obtained the appropriate permits.
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APRIL 26, 2011 CONT'D
APRIL 12, 2011
(c) A hand -held menu provided to patrons by the license holder shall
not be considered a sign. Tabletop documents such as wine lists or
information pertaining to the business shall not be considered signs
if they are not more than 9 x 12 inches.
(d) Off - premise signage or advertising shall be prohibited.
(2) Use of Public Property
(a) No license holder may use any public property such as light poles
or other utility poles, flower planters, trees, or other amenities as a
point of attachment for anything, including ropes, posters, signs, or
electrical cords.
(b) No license holder may use public electric receptacles for any
purpose.
(3) Obstruction in Clear Walkway
No license holder shall place any object such as chairs, tables, signage,
electric cords, etc. in the sidewalk from the right -of -way line to five (5) feet
from the right -of -way line (See Figure 1).
(4) Obstruction of Traffic
No license holder may place, construct, or maintain fencing, a barrier, or
any other object that would obstruct the view for traffic on the streets,
alleyways, driveways, or for any other vehicle traffic path.
(5) Furnishings
(a) The license holder shall use, and maintain in good repair, safe,
sturdy furniture designed for outdoor use.
(b) The license holder shall use furnishings and equipment which
enhance the aesthetics of the surrounding area.
(c) Umbrellas and other decorative material shall be wood, canvas,
cloth, plastic metal or similar material.
(i) Umbrellas shall be stabilized to prevent them from being
lifted from their holders or blown over by wind. No alteration
of city property shall be allowed.
(ii) No portion of an umbrella shall be less than six feet eight
inches (6'8 ") above the sidewalk.
(d) All furnishings shall be readily removable and shall not be
physically attached, chained, or in any manner affixed to any
structure, tree, post sign, or other fixture, curb, or sidewalk.
(e) The City, its officers and employees, shall not be responsible for
sidewalk cafe fixtures that are relocated or damaged.
MAY 24, 2011 11 -164 11 -201 11 -214 11 -243 RECONSIDERED
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APRIL 26, 2011 CONT'D
APRIL 12, 2011
(f) A cafe license holder that is allowed to sell or serve alcohol
beverages shall maintain a freestanding decorative barrier
establishing the boundaries of the sidewalk cafe on all sides with
exception of a 36 inch wide open section facing the business for
ingress and egress from the cafe area. Such barrier shall be
between 34 inches and 38 inches high, and shall not extend into
the area outside the sidewalk cafe area authorized in the license.
(g) All furnishings shall be removed daily from the public right -of -way at
the end of business or by 10:30 p.m., whichever is sooner. The
license holder shall also remove from the sidewalk cafe all
furnishings anytime that service is not authorized or is not being
offered to the public at the sidewalk cafe.
(6) Dates and Hours
(a) A sidewalk cafe may be open for business between the hours of
7:00 a.m. and 10:00 p.m.
(b) A sidewalk cafe shall not be open during hours when food or
beverage service is not available.
(c) A sidewalk cafe shall be allowed from April 1 St until October 31st
(7) Lightin
Lighting shall be shielded so as not to shine directly onto adjoining
property or create a glare that is distracting to adjoining property users or
to vehicles in the street.
(8) Music /Noise
The license holder shall not direct or allow to be directed, music into the
sidewalk cafe area by means of outdoor speakers or jukeboxes, nor shall
the license holder allow live music in the sidewalk cafe area.
(9) Patron Service
(a) No person may be served in the sidewalk cafe unless seated.
Sidewalk cafe capacity is limited to the number of seats in the cafe.
(b) During the sidewalk cafe's operating hours, patrons being served
within the sidewalk cafe shall count towards the premise's
established capacity.
(10) Sidewalk Cafe Maintenance
(a) The license holder shall remove all trash from the sidewalk cafe on
a regular basis during business hours, and shall keep the sidewalk
cafe area in a clean, orderly, litter -free and hazard -free condition.
(b) The license holder shall remove litter from the abutting properties
which may have come from the sidewalk cafe.
(c) The license holder shall not place any solid waste in the City solid
waste containers.
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MAY 10, 2011 ORDINANCE
APRIL 26, 2011 CONT'D
APRIL 12, 2011
CooyJ Q yve ceriyine
(11) �Qeverac
Food and b everages m only he se rved with etal or paper
dish e / � i � +{ � ves o� n Glass or crockery pr ohibited in +he
s erJ.�TGT�TJ�r �TTAT«i C1 ITr - LTTV
sidewalk cafd
(F) Service of Alcohol Beverages
A license holder may sell and serve alcohol beverages in an outdoor cafe only if
the license holder complies with all the requirements for obtaining an alcohol
beverage license, and the sidewalk cafe is listed on the alcohol beverage license
application as being an extension of the licensed premises. Alcohol may be
served at sidewalk cafes under the following conditions:
(1) The license holder has a valid and appropriate alcohol beverage license
for the principal premises.
(2) The alcoholic beverage license includes the sidewalk cafe in the
description of the licensed premises.
(a) Applicant shall file a written explanation of the purpose, intent and
operation of the sidewalk cafe with the City Clerk.
(3) Alcohol beverages may only be sold and served to patrons seated at
tables in the sidewalk cafe.
(4) Alcohol beverages may only be served by a licensed bartender in
compliance with the alcohol beverage laws, ordinances, and regulations.
(5) No beverages shall be prepared in the cafe area.
(6) rrko beverages may only he s erve d in plast etal or paper
co Glass or crock �// prohibited in cide�� a
GVTr�Q/7TerJ.�TGT�TJ�r - GTV A „VT�J� he it
T �7TV�ilTG7YATIC
(7) The license holder shall be responsible for monitoring the sidewalk cafe
area to prevent underage persons from entering or remaining in the
sidewalk cafe, except when underage persons are allowed to be present
on the licensed premises under applicable laws.
(8) The license holder shall not allow patrons of the sidewalk cafe to bring
alcohol beverages into the sidewalk cafe from another location, nor to
carry open containers of alcohol beverages about in the sidewalk cafe
area, nor to carry open containers of alcohol beverages served in the
sidewalk cafe outside the sidewalk cafe area.
(9) The service area from which the alcohol beverages are dispensed shall be
located indoors and shall not be located in the sidewalk cafe area.
(10) The license holder may begin serving alcohol beverages at 7:00 a.m. The
last call for alcohol beverages shall be at 9:30 p.m. All alcoholic
beverages must be removed from the sidewalk cafe by 10:00 p.m.
MAY 24, 2011 11 -164 11 -201 11 -214 11 -243 RECONSIDERED
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APRIL 26, 2011 CONT'D
APRIL 12, 2011
(11) The City Manager, Chief of Police or designee without notice may close a
sidewalk cafe at any time if the health, safety, welfare, or good order of the
city is threatened.
(G) Liability Insurance
No applicant shall be issued a sidewalk cafe license without providing proof of
sufficient liability insurance covering the sidewalk cafe area in the following
minimum amounts:
Commercial general liability: $1,000,000 per occurrence /general aggregate.
Employer's liability: $300,000 policy limit; $100,000 per employee.
(1) The license holder must agree to indemnify, defend and hold the City, its
employees and agents harmless against all claims, liability, loss, damage,
or expense incurred by the City as a result of any injury to or death of any
person or damage to property caused by or resulting from the activities for
which the license is granted.
(2) As evidence of liability insurance, the license holder shall furnish a
Certificate of Insurance, on a form acceptable to the City, evidencing the
existence of adequate liability insurance naming the City of Oshkosh, its
employees and agents as additional insureds.
(3) Whenever such a policy is cancelled, not renewed, or materially changed,
the insurer and the license holder shall notify the City of Oshkosh by
certified mail.
MAY 24, 2011 11 -164 11 -201 11 -214 11 -243 RECONSIDERED
MAY 10, 2011 ORDINANCE
APRIL 26, 2011 CONT'D
APRIL 12, 2011
SECTION 2. This Ordinance shall be in full force and effect from and after its
passage and publication.
SECTION 3. Publication Notice. Please take notice that the City of Oshkosh
enacted Ordinance #11 -214 APPROVE AMENDMENT TO CHAPTER 25 STREETS &
SIDEWALKS TO CREATE SECTION 25 -62 SIDEWALK CAFE /OUTDOOR SEATING
REGULATIONS IN THE PUBLIC RIGHT -OF -WAY ON NORTH MAIN STREET on April
26, 2011. The full text of the Ordinance may be obtained at the Office of the City Clerk,
215 Church Ave. and on the City's website at www.ci.oshkosh.wi.us Clerk's phone:
(920) 236 -5011.
BOLD & ITALICS INDICATES AMENDMENTS
O
1HKOfH
ON THE WATER
TO: Honorable Mayor and Members of the Common Council
FROM: Darryn Burich (7-1?
Director of Planning Services
DATE: May 18, 2011
RE: Approve Amendment to Chapter 25 - Streets and Sidewalks, to allow sidewalk
cafes /outdoor seating on public right -of -way on North Main Street from Ceape Avenue
to Irving Avenue.
BACKGROUND
The City of Oshkosh is proposing an Outdoor Dining/Sidewalk Cafe Ordinance to further encourage
revitalization of the downtown and Main Street areas of the City of Oshkosh, including the promotion
of social and economic activity. The proposed language will be added to Chapter 25 (Section 25 -62)
of the City of Oshkosh Municipal Code which will allow caf6 -style seating on public sidewalks on
North Main Street from Ceape Avenue to Irving Avenue. The newly reconstructed N. Main Street
with a wider sidewalk area now provides the opportunity to create a pedestrian- friendly environment
including the addition of caf6 -style seating.
The purpose of the Sidewalk Caf6 /Outdoor Seating Ordinance is to encourage the revitalization of the
downtown and N. Main Street area including the development of social and economic activity. The
proposed ordinance provides guidelines and requirements to allow outdoor cafe -style seating in public
right -of -way for restaurants, coffee shops and taverns. The proposed ordinance will allow restaurants,
coffee shops and taverns to serve food, nonalcoholic and alcoholic beverages within the public right -
of -way. Sidewalk cafes will be required to obtain a caf6 license which will include review by the Site
Plan Review Committee prior to issuance of the license. License approval, implementation and
oversight will be coordinated by the Department of Community Development.
Since original passage and subsequent reconsideration and layover of the ordinance by Council, City
staff has held meetings with stakeholders to solicit additional input to determine whether reasonable
accommodations could be made to meet both the needs of the business owners to promote the use of
the caf6 areas and the needs of staff for maintaining the right -of -way areas.
Under consideration is the original Ordinance as approved by Council and amended to include the use
of glassware in the caf6 areas (I would note that the Police Department still has concerns about the use
of glassware outside in the right -of -way for safety concerns as potential projectiles and breakage). In
the analysis section that follows we have summarized the major concerns identified by the stakeholders
during the meetings and staff s recommendation for an amendment to the proposed Ordinance.
ANALYSIS
The following is a list of some of remaining significant concerns raised by the stakeholders along with
the staff recommendation. Council will need to amend the Ordinance to incorporate any or all of the
issues noted.
Expansion of Sidewalk Cafe into Adjoining Properties
The Department of Community Development gave an informational presentation to the Plan
Commission at their April 19 meeting. The Plan Commission was not asked to act on it as the
proposed ordinance is outside of Chapter 30 of the Municipal Code but was presented to obtain their
input. The Commission made a recommendation that a proposed cafe should be able to encroach into
vacant neighboring caf6 designated areas with written consent from the neighboring property owner(s)
and business owner(s). This added language would be added under:
• Section 25- 62(D)(3)(a) A Sidewalk Cafe may extend into adjacent vacant cafe area(s)
with written consent from the neighboring property owner(s) and business owner(s).
• Section 25- 62(D)(3)(b) At any time, the neighboring property owner or business owner
may terminate the use of the extended Sidewalk Caf6 within their designated cafe area.
Said termination shall be submitted in writing to both the City and Cafe License holder.
➢ Staff recommends the added language as proposed above.
Fencin
As written, the ordinance requires Sidewalk Cafe license holders serving alcoholic beverages to
provide fencing around their cafe area to designate where alcohol will be served. After meeting with
potential Caf6 License applicants, they expressed concerns with regard to the cost of appropriate
decorative fencing as well as the labor required to set up and remove the fencing on a daily basis. City
staff met with the Police Chief Gruel and he has expressed less concern about the fencing provision as
long as the current ordinance requirement that patrons must be seated and served by a licensed
bartender remains in place and is enforced.
➢ Therefore, staff is recommending the removal of Section 25- 62(E)(5)(f):
A caf6 license holder that is allowed to sell or serve alcohol beverages shall maintain a
freestanding decorative barrier establishing the boundaries of the sidewalk caf6 on all sides
with exception of a 36 inch wide open section facing the business for ingress and egress from
the caf6 area. Such barrier shall be between 34 inches and 38 inches high, and shall not extend
into the area outside the sidewalk cafe area authorized in the license.
Allowing Cafe Amenities to remain on Sidewalk After Hours
The current ordinance requires fencing, tables, chairs and any other items to be removed when not in
use, by the close of business or by 10:30 p.m. each evening, whichever is sooner.
Staff included this provision to prevent continued use of cafe amenities beyond the approved cafe
hours. In addition, the Police Chief raised concerns that furnishings could be stolen, vandalized or
used as projectiles. Loitering and noise issue were also raised as concerns.
R1
The property owners (i.e. tavern) suggested that it is difficult for them to remove items by 10:30 p.m.
which is a busy time for them. There was concern about where items would be stored and accessible
on a daily basis. The property owners also expressed interest in purchasing better quality items, such
as concrete tables and benches, that would not be easy to move but which would also address some of
the concerns raised by the Chief.
Possible Resolutions —
A. Current Ordinance as proposed, no amendment required - All furnishings shall be removed
daily from the public right -of -way at the end of business or by 10:30 p.m., whichever is
sooner. The license holder shall also remove from the sidewalk cafe all furnishings
anytime that service is not authorized or is not being offered to the public at the sidewalk
cafe.
B. By 10:00 p.m., the cafd must close Tables, chairs and other amenities may remain located
in the cafd area; however, their use after approved cafd hours is prohibited.
This would require an amendment to the current ordinance by deleting the requirement that
furniture be removed daily or when the cafd is not open. Staff suggested as a compromise that
tables and chairs could be stacked and tied /chained/cabled together by 10:30 p.m. making them
unusable. A downside to this is that this will create a cluttered look along Main Street or could
possible create an obstruction, especially when several taverns do not open until late afternoon
leaving the furnishings stacked all morning and afternoon, and considering the other amenities
(benches, planters) that are left out at all hours.
C. By 10:00 p.m., the cafe must close. Tables, chairs and other amenities must be removed by
the end of business; however, their use after approved cafe hours is prohibited.
This would require an amendment to the ordinance. This option could create some confusion by
having tables and chairs available when service is not, patrons and pedestrians may try to use or
may use this as a smoking area. In recent days, tavern owners have suggested tables remain
available for smoking, which would increase this confusion and contribute greater to loitering and
noise problems. To prevent confusion, it could be required that signage outlining the use of the cafd
be posted within the cafd area.
Staff feels option "C" is a reasonable compromise by allowing cafd license holders flexibility to
remove furnishings as time permits. Staff can prepare guidelines as to what verbiage should be
placed on signage to prevent after hour use and use of the cafd in general, including:
- Cafd chairs and tables must be vacated after 10:00 p.m.
- Customers must be seated to be served
- No carry -ins or carry -outs allowed
Required Signage
Business owners suggested that signage should be required outlining the rules and use of the cafd.
Staff feels that this is a good suggestion and recommends including cafd use signage under Section 25-
62(E)(1). Sign verbiage should be similar to that as recommended under option "C" in Allowing Cafd
Amenities to remain on Sidewalk Afterhours and include:
- Cafd chairs and tables must be vacated after 10:00 p.m.
- Customers must be seated to be served
- No carry -ins or carry -outs allowed
3
Smoking
As written, the proposed ordinance allows smoking within the designated Sidewalk Cafe / Outdoor
Dining area; therefore, no amendment to the ordinance is necessary.
To prohibit smoking, an amendment to the ordinance will be required. By this amendment, the
Common Council would be directing staff to make the appropriate changes to the ordinance to prohibit
smoking. These changes would include prohibiting smoking in the cafe area and allowing the property
owner to designate a smoking area, if they so choose on the site plan the business submits for license
approval. If the owner chooses to designate a smoking area, staff is proposing that they be allowed to
designate that on public property if they identify it on their site plan. Property owners could also
designate the smoking area on private property should they so choose. The practical effect of
designating the smoking area on the public area may be to reduce the area available for the sidewalk
cafe. Property owners would not be able to designate the five foot area designated as the ADA
accessible sidewalk for smoking. Property owners would also be limited to designating a public area
in front of their own business or in front of an adjoining property with permission if Council would
pass that proposed amendment.
Staff is not making any recommendation with respect to the smoking issue. Smoking is a policy issue
that is entirely within the Council's purview. We believe that Council has sufficient information to
reach a decision.
Other issues and concerns raised by business owners to city staff:
No Carry -outs / Service by Licensed Bartenders
The current ordinance requires that alcoholic beverages must be served by a licensed bartender to cafe
patrons to control the distribution of alcohol. There was discussion with potential Cafe License
applicants and their concern is at times, they have limited staff to be able to serve cafe patrons. It was
agreed upon that a solution would be to have unlicensed wait staff and bouncers acquire bartender
licenses to enable them to serve alcoholic beverages to cafe patrons.
Staff recommends no amendment and use current ordinance wording as proposed.
10:00 p.m. Cafe Closing Time
The ordinance currently states that a sidewalk cafe may be open for business between the hours of 7:00
a.m. and 10:00 p.m. Potential cafe applicants expressed concerns that the 10:00 p.m. limit for cafe's is
too early. Staff explained this correlates with the city's noise ordinance and the fact that there are
several upper -story residential dwelling units along Main Street so excessive noise is a concern.
Staff recommends no amendment to the cafe hours of operation.
Portable Heaters
Business owners inquired if portable propane heaters can be allowed. Typically, these heaters are self -
contained and six to seven feet tall with at 18" to a 24" base. The Fire Department as well as the
NFPA does not support the use of these types of heaters in areas with foot traffic due to possible
tipping, and that some heaters may not have automatic shutoffs.
Staff is recommending no amendment to include the use of outdoor heaters.
q
FISCAL IMPACT
N/A
RECOMMENDATION
The BID Board and the Department of Community Development recommend approval of the
ordinance as discussed, along with the amendments contained herein. The Council will also need to
provide direction to staff with respect to the smoking issue.
Approved,
City Manager
S