HomeMy WebLinkAboutORD-07-98 Add Ch 12.18 Outdoor Dining on Public WalkwaysORDINANCE NO. 7-
98 AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF ORANGE ADDING CHAPTER 12.
18 TO THE ORANGE MUNICIPAL CODE
RELATING TO OUTDOOR DINING ON PUBLIC W ALKW
AYS.WHEREAS, the City Council recognizes that the use of public walkways for
limited Outdoor Dining Areas can improve the business environmenl and enhance the quality of life
for residents of the Cily of Orange;
and WHEREAS, the City Council desires to pernlit the use of public walkways for
limited outdoor dining on a temporary, non-permanent basis pursuant to a permit established
by
this ordinance.NOW, THEREFORE, the City Council of the City of Orange does hereby
ordain
as follows:
SECTION I:Chapter 12.18 is hereby added to the Orange Municipal Code to read
as
follows:Sections:12.
18.010 12.
18.020 12.
18.030 12.
18.040 12.
18.050 12.
18.060 12.
18.070 12.
18.080 12.
18.090 12.
18.100 12.
18.110 12.
18.120 12.
18.130 12.
18.140 12.
18.150 12.
18.160 12.
18.170 Chapter
12.18 OUTDOOR DINING ON
PUBLIC WALKWAYS
Short Title Declaration
of
Policy Definitions
Permit
Required Application Change in
permitted uses Outdoor Dining Permit ~
Required Findings Outdoor Dining
Permit Standards Indemnification
of City
Liability insurance Annual Permit Fee ~
When due Extent of
zoning
compliance Termination Lapse or Revocation and Refusal
to Issue Violation -
Penalty
Enforcement
on 1218010 Short Title. This chapter shall be known and designated as the
Outdoor Dining Ordinance".
on 12.18.020 Declaration of Policy. The primary purpose of public walkways is
the free and unobstructed right of travel. However, the City recognizes that the use of public
walkways for limited Outdoor Dining Areas can improve the business environment and enhance
the quality oflife for Orange residents so long as such use is not inconsistent 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 non-permanent basis and as a special privilege, not as a matter
of right.12.18.030 Definitions. For the purpose oflhis Chapter, the following words
and phrases shall have the meanings respectively ascribed to them by
this section.A. "Abutting Property" means the property directly fronting on the portion
of the public walkway in which the Outdoor Dining Area is to
be placed.B. "Adjoining Property" means a property which is next to lhe abutting
property and fronts wilh it on the same
public walkway.C. "Director" means the Director of the Department of Public Works or his
or
her designee.D. "Obstmction" means any object which completely or partially blocks a
path of travel on a public walkway and includes all temporary stmctures, appurtenances,
fumishings and furniture attendant to a permitted use under
this chapter.E. "Permit" means the Outdoor Dining Permit created by
this chapter.F. "Person" means any individual, firm, comp,my, account,
association, partnership,corporation, joint venture, or any
other entity.G. "Plaza Area" means the area contained within and properties facing the
100 and 200 block, east and west, of Maple Avenue and Almond Avenue and the 100 block,
north and south, of Lemon Street and
Grand Street.H. "Plaza Quadrants" means those commercial properties having frontage
on the traffic circIe intersection of Chapman Avenue and
Glassell Street.I. "Public Walkway" means all or any portion of territory within the City
set apart and designated for the use of the public as a thoroughfare for primarily
pedestrian travel,including alleys, the sidewalks, the center and the side
plots thereof.J. "Outdoor Dining Area" means an area within the public walkway set
up in conjunction with the use of the abutting property for dining and including both
any obstruction and any activity related to dining, including, but without limilation, waiting for tables,
waiting on tables and
busing tables.12.18.040 Outdoor Dining - Permit Required. No person shall establish or maintain
any Outdoor Dining Area within a public walkway except pursuant to a written outdoor
dining permit approved by the Director pursuant to this chapter. This chapter shall not be applicable
to any activity performed pursuant to and permitted by other specific provisions of this code or
to other obstructions prohibited by other specific provisions of this
code.Ord No. 7-
l2...18050 Application. A person desiring a permit shall file an application with the Director
and shall pay the application fee specified by City Council resolution. 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 include a declaration under penalty of perjury
that all information is tme and correct and shall contain, at a minimum, the following information:
I. The name and business address of applicant if a natural person; if an entity, the name and
address thereof and the name and address of the individuals authorized to bind the entity in contract; if a
corporation, the name, address and telephone number of the president or chairman of the board, the
agent for service of process, and the local manager, if any, and the state of incorporation;
2. If applicant is not the owner of the abutting property, then applicant shall obtain approval
of the application signed by the legal or beneficial owner of the abutting property, or by his or her duly
authorized agent. Any person signing the approval as an agent shall fumish a written authorization for
such purpose;
3. Sufficient evidence to establish, to the satisfaction of the Director, in his or her sole
discretion, that the proposed use is not inconsistent with the underlying dedication for public right-
of-way and is not inconsistent with the City's title or estate in the underlying public
walkway;4. Certification by the Community Development Department that the abutting property
has previously received all zoning entitlements consistent with the operation of an Outdoor Dining Area
and is in compliance with all zoning
regulations;5. Plans satisfactory to the Director which show in detail the dimensions of the
Outdoor Dining Area, a description of its use and the arrangement of the occupancy, including, but
without limitation, all obstmctions and activities in the public walkway, the number of seats, tables, a
schedule of time of use, and all utility connections to be utilized in cOlmection with such
occupancy.12..18.060 Change in Permitted Use. Any permittee desiring to change the permitted use
by increasing the size of the Outdoor Dining Area, by changing substantially the use or arrangement of
the occupancy, shall file a new application under this
chapter.12.18.070 Outdoor Dining Permit - Required Findings. No permit may be issned until the
application is approved by the Director and all of the following findings are made by the Director:
I. The proposed Outdoor Dining activity meets the standards of this chapter; and
2. The proposed Outdoor Dining activity does not unduly interfere with the use of the public
right-of-way by adjoining property owners and
tenants; and 3. The sidewalk's public use, pedestrian, transit and business services including
but not limited to loading zones, bus stops, public phones, and benches, are not
restricted; and,4. The proposed Outdoor Dining activity is complementary to and not inconsistent
with the underlying dedication for public right-of-way and is not inconsistent with the City's title
or estate in the
underlying public walkway; and 5. The proposed Outdoor Dining activity is compatible with the
use and enjoyment
of surrounding uses; and 6. The proposed Outdoor Dining activity does not impede travel on
the public walkway or create a hazard to the safety or
health of passers-by; and 7 The proposed Outdoor Dining activity does not unlawfully alter
the associated use
of the abutting property; and 8. Building
entryways are not obstructed; and 9. The abutting property has previously received
all necessary zoning related
12.,ll080 Outdoor Dining Permit Standards. All pennits issued pursuant to the terms of
this chapter shall conform to the following standards and no permit may be issued which does
not so conform:
1. A permit may be issued only to the operator of a business in the abutting property.
2. Outdoor dining located on public walkways shall be limited to commercial areas
within the Old Towne District bounded by Maple Avenue to the north, Almond Avenue to the
south, Grand Street to the east and Lemon Street to the west, and which provide meal service,
specialty food service (e.g. cookies, ice cream) and full menu food services.
3. Temporary, mobile or free-standing food service providers are not eligible for
a permit under this
chapter. .4. All features including, but not limited to, tables, chairs, and umbrellas located
on a public walkway shall be removed from the public walkway when not in
use.5. Outdoor Dining Areas shall provide a minimum six (6) foot unobstructed area
of public walkway. Dining areas within the "Plaza Quadnmts" shall maintain a six (6)
foot minimum width pedestrian corridor adj acent to storefronts. Dining areas shall not be
permitted in areas wh<~re less than an eight (8) foot minimum sidewalk width exists, unless additional
or lesser public walkway is approved by the Director on the basis of considerations specified in
this
chapter.6. The Outdoor Dining Area shall be located in a manner which will not
interfere withvisibil:ity, vehicular or pedestrian mobility or access to City or public utility facilities.
The determination of whether an Outdoor Dining Area (or any part thereof) interferes shall be
made by the Director at the time of application based on the characteristics of each proposed
site.7. The Outdoor Dining Areas may be defmed by placement of portable but
sturdy fencing or other suitable dividers as required or approved by the Director and shall be in
keeping with the ae:sthetic and architectural characler of the Old Towne commercial area and with
all approved d'~sign guidelines for the Old Towne commercial
area.8. Any modification to public surfaces, such as borings for recessed sleeves or
post holes must be approved in advance by the
Director.9. The height of any fabricated barrier and or installed landscaping shall not
exceed three feel, six inches (3'6") and shall be entirely portable. Barriers utilizing any type of
stretched canvas material must be strung through eye
hooks.10. No barrier is required if the food provider limits outdoor tables and chairs to
one row abutting the wall of the establishment (except that the "Plaza Quadrants" businesses
shall maintain a minimum 6-foot width pedestrian corridor adjacent to storefronts). Such
tables shall be limited to a dimension of24 inches in width by 30 inches
in length.11. The use of retractable awnings or removable table umbrellas
is encouraged provided tl1at they maintain at least seven (7) feet of clearance above the sidewalk level
and do not exceed ten (10) feet in height. Awnings may extend six (6) feet from the building
front and may not cover more than fifty percent (50%) of the Outdoor Dining Area, whichever
is less.12. Awnings must be regularly maintained and cleaned in accordance with the
City's water conservation policies (bucket and
brush method).13. No signs are permitted in the Outdoor Dining Area with the exception of
a menu sign. Business names may be permitted on the valence of the awnings and/or
umbrellas, as approved by the Design Review Board; however commercial and product logos are
not permitted OId No.
on the valance of awnings and/or on umbrellas or in any other outdoor display.
14. Lighting shall be incorporated into the facade of the building, and shall
complement the style of the building. Lights on buildings shall not be glaring to pedestrian or
vehicular traffic and should illuminate only the Outdoor Dining Area. (General illumination
should be at five foot-candles, with a maximum often foot-candles.) Table lamps or
candles are encouraged. Wired electrical fixtures will be allowed outside the face of the
building if contained within the barrier and installed by a licensed electrician. An electrical permit
must be obtained from the Building Division to install
outdoor lighting.15. The design materials and colors used for chairs, tables, lighting,
other fixtures,fencing, dividers and obstructions, including umbrellas and awnings, shall
be generally consistent both with the architectural style and colors used on the building facade and
meet the minimum quality standards as established by the Director and in keeping with the
aesthetic and architectural character of the Old Towne commercial area and with all
approved design guidelines of the Old Towne
commercial area.16. Upon the daily termination of outdoor dining all barriers (except
those installed by the City) must be removed and the public walkway returned to its
original condition.17. All Fire Department regulations and standards concerning exterior
lighting and power must be met. These regulations and standards will be supplied at the time
of application.18. A landscape maintenance program, if applicable, shall be submitted
with the outdoor dining application. Once approved by the Director, landscaping must
be properly maintained. Water drainage into the Plaza District shall not be allowed and stressed
or dying landscape must be promptly replaced. Potted plants must have a saucer or other
suitable system to retain seepage and be elevated to allow for air flow of at least one inch between
saucer
and sidewalk.19. All Outdoor Dining Areas must be readily accessible to and useable
by
disabled individuals.20. Any modification to the approved plans must be resubmitted as a
new application and must comply with all standards for the issuance of a permit under this chapter which
are then
in effect.21. A permit is not transferable to any entity or person and is valid only as
to the
original permittee.22. Use, occupation and obstruction of the public walkway which is
permitted under this chapter may be temporarily suspended, without prior notice or hearing, when,
in the discretion of the Director, the police chief, or the fire chief, any such use,
occupation or obstruction may interfere with public safety etIorts or programs, special
events, street improvement activities, constmction activities, cleaning efforts or other similar activities
or with the health, welfare or safety of the citizens of
the City.23. Permits shall be considered temporary and nonpermanent in nature,
and permittee shall have neither property interest in nor any entitlement to the granting or continuation
of any
such permit.24. Permits may be lerminated by the City, with or without cause, regardless
of the nature and scope of the financial or other interest in, or on account of the permit or
the
permitted use.25. Outdoor Dining Areas are for sit-down food and beverage service
only; no stand up
service is permitted.26. Outdoor Dining Areas shall be kept in a good state of repair and
maintained in a 5
clean, safe and sanitary condition in accordance with Health Department regulations.
27. All plans and permits for the Outdoor Dining Area approved by the City must be
kept on the premises for inspection at all times the establishment is open for business.
28. No entertainment, music, sound syslem, or similar will be permitted in Outdoor
Dining Areas so as not to unduly intrude on neighboring businesses or exceed limits set by the
City's noise ordinance.
29. Notwithstanding the terms of the Outdoor Dining permit, no tables, chairs or
barriers shall be placed nor food service provided over public property during the "International
Street Fair" or other event deemed by the Director to be in conflict with Outdoor Dining.
The Director may, in his or her sole discretion, place additional conditions upon the
issuance of the permit in order to ensure the protection of the public walkways and the rights of
all adjoining property owners and the health, safety and general welfare of the public.
12.18.090 Indemnification of City.
1. As a condition of issuance, lhe permittee, and any person acting under or pursuant
to said perrnit, agrees to indemnify, hold harmless, release mid defend (even if the allegations are
false, fraudulent or groundless), to the maximum extent pelmitted by law, the Director, the City,
its City Council and each member thereof, and its officers, employees, advisory body members
and representatives, from and against any and all liability, loss, sui Is, claims, damages, costs,
judgments and expenses (including attorney's fees and costs of litigation) which in whole or in
part result from, or arise oul of, or are claimed to resul1 from or to arise out of mIl' acts,
negligence, errors or omissions (including, without limitation, professional negligence) of
permittee, its employees, representatives, contractors, subcontractors, or agents by reason of or
arising out of, or in any manner connected with, any and all acts, operations, privileges
authorized, allowed or undertaken pursuant to the permit including, without limitation, any
condition of property used in the operations.
2. This agreement to indemnify includes, but is not limited to, personal injury
including death at any time) and property or other damage sustained by any person or persons
including" but not limited to, companies, corporations, permittee and its employees or agents,
and members of the general public).
3. As a further condition of issuance of the permit, permittee convenants not to sue
the Director, City, its City Council and each member thereof, and its employees, agents and
representatives and shall cause its insurers to waive subrogation against the same with respect to
any action, cause of action, claim or demand in any way resulting from or connected with any
and all undertakings and operations conducted pursuant to the permit.
12.18.100 Liability Insurance.
The City Council shall establish by resolution the minimum levels and standards
of liability insurance and claims reserve which must be maintained in order to apply for, to
receive and to operate with a permit under this chapter. The City Council shall also establish by
resolution the manner in which compliance with the minimum standards is to be demonstrated.
OId No. 7-98
The failure to maintain the minimUll1levels and standards of liability insurance for any period of
time shall be sufficient grounds for revocation of permit.
12.18 II 0 Annual Permit Fee - When due.The
permittee shall pay, on an annual basis, and prior to the deadline date specified on th,:
permit, an amount based upon the fee established by resolution of the City Council. Failure to
pay the annual fee prior to the deadline date shall cause a lapse in the permit which terminates the
privilege to operate an Outdoor Dining Area. An application for a new permit must then be filed
if the person wishes to restore the privilege to operate a Outdoor Dining Area.12.
18.120 Extent of Zoning Compliance.Use
of a public walkway under this chapter is on a temporary and non-permanent basis,
allowed as a special privilege, and not as a matter of right. A permit granted under this chapter is
not a land use entitlemenl that runs with the land. Notwithstanding anything in this code to the
contrary, any Outdoor Dining Area and related obstruclion permitted pursuant to a Outdoor
Dining permit shall not be subject to any of the requirements of Title 17 of this code, except as
provided in this chapter.
12.18.130 Termination.
The Director may notify the permittee in writing of a termination and specifY the time
within which the termination is to take place or, in the discretion of the Director, immediately
terminate the permit without prior notice. Upon delivery of a notice of termination, the City
shall have the right to require the immediate removal of all obstructions in the public walkway;
and may perform such removal if the permittee fails to do so within such time as specified by the
Director. The permittee shall reimburse the City for any expense incurred by the City in
removing any obstruction in the event it is not removed by the permittee within the time required
by the City. Should the permittee continue to use the public walkway after the permit has been
terminated, the City may take appropriate action to restrain the use of the public walkway by
pemlittee and, in such event, the permittee shall reimburse the City for its reasonable costs and
expenses in connection therewith, including reasonable attomey's fees and court costs.
In the event a permit is terminated by the City, permittee is entitled to a pro rata refund of
the annual permit fee.
12.18140 Lapse or Revocation and Refusal to Issue.
A person desiring a permit for a Outdoor Dining Area which has been the subject, in part
or in whole, of a prior permit which has lapsed, been revoked or terminated shall file a new
application and shall pay the application fee specified by City Council resolution.
The Director may refuse to issue such a permit for a Outdoor Dining Area, if any
applicant for repermitting fails to meet any requirements for a new permit, or if such person has
failed or refused:
7 Ord No. 7-
I. To pay any fees for permits or charges as provided by this chapter; or to repair
public improvements or other property damaged as a result of the occupancy of a public
walkway; or
2. To demonstrate readiness and willingness to comply with the terms of this
chapter, with the standards promulgated pursuant to this chapter or with the terms of the permit.
12.18.150 Violation-
Penalty.Any individual establishing, operating or maintaining an Outdoor Dining Area without
a valid pemlit issued pursuant to this chapter or who knowingly submits false information for
the purposes of obtaining such a permit is guilty of a misdemeanor and upon conviction thereof
shall be punished by a fine of not more than $1,000 or by imprisonment in the county jail for a
period of not more than six (6) months orby both such fine and
imprisonment.12.18.160
Enforcement.I. Notice of violation of the design standards shall be made in writing to
the permittee. The permittee will have ten (10) days to cure such default, or
quit.2. Notice of violation of any standards of operation shall be made verbally or
in writing to the permittee. Immediate abatement of such violation will be required by
the permittee. Verbal notices of violation shall be followed by a written notice for purposes
of establishing a record of violations at the discrelion of the party giving verbal
notice.3. Violations of the terms of the license agreement or any provision of
these standards shall be kept on file by the City. Three violations within one year shall constitute
a basis for ilnmediate closure of the Outdoor Dining Area and revocation of outdoor dining
permit.The City retains the right to revoke a permit upon thirty (30) days notice regardless
of conformarlce with these
provisions.4. Upon termination of the Outdoor Dining permit, the permittee shall remove
all personal property, fumishings and equipment from the Ouldoor Dining
Area.5. Enforcement of the Outdoor Dining permit shall be by the
Director.6. Any outdoor dining use within the Old Towne District using public property
that has not belen established with prior permit approval, must obtain an Outdoor Dining
permit within ninety (90) days of the effective date of this chapter. No Outdoor Dining
permit application filing fee shall be required for those approved uses existing prior to the effective
date of this
chapter.12.18.170
Appeals a. Any person aggrieved by any action of the Director under this chapter may
appeal the decision by filing with the City Clerk a statement addmssed to the City Manager setting
forth the facts :md circumstances regarding the appealed action. The City Clerk shall notify
the applicant, in writing, of the time and place sel forth for the hearing on his or her
appeal.b. The right to appeal from the action of the Director shall terminate upon
the expiration of fifteen (15) days following the date written notification advising the applicant
of the action of the Director and of his or her right to appeal such
action.c. The hearing on the appeal shall be held within twenty (20) City business days
of OId No. 7-
the City Clerk's receipt of the appeal.
d. The appellate hearing shall be presided over by a hearing officer selected by the
City. A decision regarding said appeal shall then be issued no later than ten (10) City business
days following said hearing. The decision of the hearing officer shall be final.
SECTION II:
Severability. If any section, subseclion, sentence, clause or phrase of this ordinance is for
any reason held to be invalid or unconstitutional by a decision of any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of this
Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each
and ,every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional
without regard to whether any portion of the ordinance would be subsequently declared invalid
or unconstitutional.
SECTION III:
A summary of this Ordinance shall be published and a certified copy of the full text of
this Ordinance shall be posted in the Office of the City Clerk at least five days prior to the City
Council meeting at which this Ordinance is to be adopted. A summary of this Ordinance shall
also be published once within 15 days after its passage in a newspaper of general circulation in
th(~ City of Orange. The City Clerk shall post in the Office of the City Clerk a certified copy of
the full text of the adopted Ordinance along with the names of those City Council members
voting for and against the Ordinance in accordance with Government Code Section 36933.
Adopted this 12th day of May 1998.
ATTEST:
f..-'}.-"7_(...t:',.,M yor
Joanne Coontz i atLd-
M~-
H:~<B-t"t'
City Clerk ofth Ity of Orange
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF ORANGE )
I, CASSANDRA J. CATHCART, City Clerk of the City of Orange, California, do hereby
celiify that the foregoing Ordinance was inlroduced at the regular meeting of the City Council
9 OId No. 7-
held on the 28th day of April
said City Council duly held on the 12th
and adopted by the following vote, to wit:
1998, and thereafter at a regular meeling of
day of May , 1998, was duly passed
AYES: COUNCIL MEMBERS: MURPHY, SLATER, COONTZ, SPURGEON
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: ALVAREZ
ABSTAIN: COUNCIL MEMBERS: NONE
7-98outdoor dining public walkways
95 Ord No. 7-