[HISTORY: Adopted by the Board of Trustees of the Village of Pelham 9-22-2020 by L.L. No. 3-2020.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law was adopted as Ch. 75A, but was renumbered to maintain the organization of the Code.
A. 
On January 30, 2020, the World Health Organization designated the novel coronavirus, COVID-19, outbreak as a Public Health Emergency of International Concern.
B. 
On January 31, 2020, the United States Health and Human Services Secretary declared a public health emergency for the entire United States to aid the national healthcare community in responding to COVID-19.
C. 
On March 7, 2020, pursuant to § 28 of Article 2-B of the Executive Law, Governor Cuomo issued Executive Order Number 202, declaring a state disaster emergency for the entire State of New York. Thereafter, numerous additional executive orders were issued which prohibited in-person gatherings and required 100% of the workforce of nonessential businesses and services throughout the state to work remotely.
D. 
It is evident that the COVID-19 pandemic has and will continue to have negative consequences for the Village's small businesses and economy, including but not limited to, food service establishments, personal care establishments, recreational establishments and retail establishments located in the Village and their owners and employees.
E. 
The Centers for Disease Control and Prevention (CDC) and the State of New York have stated that social distancing and other health protective measures will continue to be required while the State relaxes mandated closures and begins to reopen the economy.
F. 
There is growing consensus among experts that the risks of contracting or spreading the coronavirus while outdoors is acceptably low if precautions are taken.
G. 
In order to further protect the public health, safety and welfare and support the local economy and food service establishments, personal care establishments, recreational establishments and retail establishments in their slow and difficult recovery, the Village deems it necessary to authorize the expansion of outdoor business areas for food service establishments, personal care establishments, recreational establishments and retail establishments during a temporary period of time to allow such businesses to offer safe, socially-distanced outdoor shopping, services and dining.
As used in this chapter, the following terms shall have the meanings indicated:
FOOD SERVICE ESTABLISHMENT
Food service establishment shall have the meaning set forth in § 75-2.
OUTDOOR BUSINESS AREA
An outdoor space that is an area not considered to be a sidewalk cafe as set forth in Chapter 75, and is utilized by a food service establishment, personal care establishment, recreational establishment or retail establishment pursuant to an outdoor business area permit.
OUTDOOR BUSINESS AREA PERMIT
An outdoor business area permit issued pursuant to this chapter.
PERSONAL CARE ESTABLISHMENT
A business engaged in providing personal services to persons relating to hygiene and/or beauty, including barber shops, nail salons, hair-dressing establishments, beauty salons and similar establishments.
RECREATIONAL ESTABLISHMENT
A business and/or club which, for compensation and/or dues, offers recreational services, including, but not limited to, gyms; health clubs; martial arts studios; educational uses; indoor sports facilities; outdoor recreation facilities such as skating rinks, bocce and sports courts; children's play facilities; bowling alleys; rock climbing gyms; indoor tennis clubs; e-sports; and similar establishments.
RETAIL ESTABLISHMENT
Retail establishment shall have the meaning set forth in § 72-2.
A. 
Food service establishments, personal care establishments, recreational establishments and retail establishments may seek approval to create and/or expand outdoor business areas by applying for a permit pursuant to this chapter.
B. 
No person shall establish or expand an outdoor business area on private or public property except upon the granting of an outdoor business area permit.
C. 
An outdoor business area permit shall be granted only upon compliance with the provisions of this chapter and at the discretion of the Building Inspector.
D. 
No food service establishment, personal care establishment, recreational establishment or retail establishment shall be eligible for an outdoor business area permit unless the activity authorized by the outdoor business area permit complies with applicable New York State law, including the New York State Forward phased re-opening plan and any applicable regulations and executive orders.
E. 
An outdoor business area shall not require land use approvals such as site plan, special permit, subdivision, variances or any other discretionary review or approval by any board within the Village. Outdoor business areas shall be exempt from all requirements set forth in Chapter 98, Zoning.
F. 
To the extent any provision of this chapter conflicts with any other requirement of the Code, the provisions of this chapter shall supersede those other requirements to the extent of such inconsistency, unless otherwise determined to be applicable by the Building Inspector for purposes of public health and safety.
G. 
An outdoor business area permit shall not be required for curbside pick-up. Curbside pick-up shall not be implemented in a manner that blocks traffic or fire access lanes.
A. 
All applications for an outdoor business area permit shall be on a form provided by the Village and shall contain the following information:
(1) 
The name address of the applicant.
(2) 
The name and address of the food service establishment, personal care establishment, recreational establishment or retail establishment.
(3) 
The business owner's name.
(4) 
A signed license agreement for the use of public property on a form provided by the Village if the outdoor business area is to be located on public property.
(5) 
Approval from the New York State Liquor Authority to serve alcohol in the outdoor business area, if applicable.
(6) 
Insurance certificates naming the Village of Pelham as an additional insured if the outdoor business area is to be located on public property.
(7) 
A drawing showing the proposed layout, including any proposed temporary awnings, tents, pergolas, the existing building, points of ingress and egress, proposed location of all tables, chairs, umbrellas, barriers, displays, service stations, registers and any other equipment, furnishing or structure to be installed in the outdoor business area. The drawing shall be signed and sealed by a licensed professional unless such requirement is waived by the Building Inspector.
(8) 
A statement describing the proposed use of the outdoor business area, including days and hours of intended operation and proposed capacity.
(9) 
If a tenant is seeking an outdoor business area permit, the application shall include written authorization from the landlord.
A. 
The Building Inspector is hereby authorized to grant an outdoor business area permit upon the applicant's demonstration of compliance with § 62-4 of this chapter and with the following requirements:
(1) 
General requirements.
(a) 
The outdoor business area shall not be used for any purpose other than for the approved use.
(b) 
The outdoor business area shall comply with any and all state and local health, fire, building, sanitation and maintenance codes applicable to the use of the establishment, including but not limited to the installation of tents, outdoor natural gas/propane patio heaters, fire pits/tables.
(c) 
The number and location of all tables, displays, service stations, registers and any other equipment, furnishings or structures installed in the outdoor business area are subject to approval by the Building Inspector, in accordance with all applicable State Code and ADA requirements.
(d) 
If not located on a sidewalk, there must be a physical barrier or separation to protect patrons and employees from vehicular traffic, such as bollards, planter boxes or "jersey" barriers.
(e) 
All furnishings shall be removed and stored indoors at closing in an approved manner when the outdoor business area is not in operation.
(f) 
No permanent structure may be installed.
(g) 
The applicant shall be responsible for any damage caused to any sidewalk or public property as a result of the business operations.
(h) 
All outdoor business areas shall be closed to all lawful permitted activities, including cleanup, on or before 10:00 p.m. each day.
(2) 
Requirements applicable to food service establishments.
(a) 
All food and beverages to be served or consumed in the outdoor business area shall be prepared within the existing food service establishment. The food service establishment shall not serve food or beverage to a patron unless that patron is seated at a table.
(b) 
The operator of the food service establishment shall procure the appropriate license from the New York State Liquor Authority if the food service establishment intends to serve alcoholic beverages in the outdoor business area and shall comply with all other laws and regulations concerning the serving of alcoholic beverages. The appropriate license must be submitted to the Village before the operator may serve alcoholic beverages in the outdoor business area.
(c) 
Sound amplification and public address systems and equipment shall be prohibited. Outdoor business areas shall not be utilized for live performance or recorded audio transmissions.
(d) 
Chairs and tables shall not be utilized for the display of merchandise or the advertising of goods or services.
(e) 
During hours of daylight, alcoholic beverages may be served solely in conjunction with the service of food. Subsequent to sundown, alcoholic beverages may be served in the absence of service of food. All alcoholic beverages shall be prepared within the appurtenant food service establishment and shall be served solely to patrons seated at tables. The consumption of alcoholic beverages by a member of the public, while a patron, within the confines of the area of the outdoor business area, shall not be a violation of any local law, ordinance, rule or regulation relating to open alcoholic containers in a public area.
(f) 
No patron at the outdoor business area of a food service establishment shall be served any food or beverages unless the patron is seated at a table.
(g) 
The food service establishment is responsible, at all times, for the cleanliness of the outdoor business area and the tables and chairs located therein, as well as the cleanliness of the abutting sidewalk and curb areas.
(h) 
No structure, container or enclosure for garbage or rubbish may be erected or placed adjacent to or within the confines of the outdoor business area.
B. 
The Building Inspector may impose reasonable conditions on the approval of an outdoor business area permit relating to the outdoor business area's size, location, impact on available parking, pedestrian safety, noise, and the public health, safety and welfare.
C. 
All food service establishments, personal care establishments, recreational establishments and retail establishments utilizing an outdoor business area shall comply with any and all applicable CDC, New York State and Westchester County guidance, rule, regulation, executive order and/or law concerning required measures to minimize the spread of COVID-19.
A. 
Modification. The Building Inspector may modify an outdoor business area permit at any time and for any reason, including but not limited to, modifying the location of any structure or furnishing, the size of the permitted outdoor business area or permitted capacity of the outdoor business area. The Building Inspector shall provide written notice to the permittee of any such modifications.
B. 
Revocation.
(1) 
The grounds upon which an outdoor business area permit may be revoked or suspended, in the Building Inspector's sole discretion, shall include but shall not be limited to:
(a) 
The permit was issued in error, or issued in whole or in part as a result of a false, untrue, or misleading statement on the permit application or other document submitted for filing.
(b) 
Use of the property for an outdoor business area creates a hazard, public nuisance, threat to public safety, or other condition which negatively impacts the use and/or enjoyment of surrounding properties, or threatens the peace and good order, or quality of life in the surrounding community.
(c) 
Failure to comply with any provision of this chapter or any other applicable law or regulation or term or condition of the permit.
(2) 
The Building Inspector, upon determination that a violation of this chapter exists, shall personally service a notice of violation/order to remedy on the permittee or to his/her representative indicating the date and time of service and the specific violation(s) in question. All noticed violations of this chapter shall be cured within twenty four (24) hours of service of the notice. Failure to correct all violations within twenty four (24) hours may result in the revocation or suspension of the outdoor business area permit. In the event that the Building Inspector determines that the outdoor business area permit should be revoked or suspended, a stop work order shall be issued in accordance with the applicable provisions of the Code.
Neither the adoption of this chapter nor the granting of any license pursuant hereto shall be construed as a waiver of any right, privilege or immunity of the Village concerning its public easement over the streets and sidewalks, or of any requirement of law concerning the liability of the Village with respect to streets and sidewalks, whether expressed or implied.
Prior to the issuance of an outdoor business area permit, the applicant shall agree, on a form approved by the Village Attorney, to indemnify and save harmless the Village, its officers, agents, attorneys and employees, from and against any claim of loss, liability and/or damage (including but not limited costs and attorneys' fees) arising or resulting the applicant's operation of the outdoor business area.
The Village Administrator may modify any requirements set forth in this chapter, unless required elsewhere by county or state law.
All outdoor business area permits shall be valid for three months. Upon written request to the Village Administrator and at the Village Administrator's discretion, an outdoor business area permit may be renewed.
Any person committing an offense against the provisions of this chapter shall be guilty of a violation punishable by a fine not exceeding $250. The continuation of an offense against the provisions of this chapter shall constitute, for each day the offense is continued, a separate and distinct offense hereunder. The provisions of this chapter are enforceable by the Village Police and the Village Building Inspector.
An application for an outdoor business area permit must be accompanied by a payment of the administrative fee chargeable for an outdoor business area permit as set forth by resolution of the Village Board of Trustees in the Village Fee Schedule, which may be amended at any time.
Should any section or provision of this chapter be determined by any court of competent jurisdiction to be unconstitutional or invalid, then such section or provision shall be null and void and shall be deemed separable from the remaining section of this chapter, and such determination shall in no way affect the validity of the remaining sections or provisions of this chapter.