[HISTORY: Adopted by the Board of Trustees of the Village of Rye Brook 6-9-2020 by L.L. No. 4-2020. Amendments noted where applicable.]
Editor's Note: Former Ch. A257, Fees, adopted 4-24-2001, was repealed 8-26-2003 by L.L. No. 13-2003. The current License and Fee Schedule is on file in the Village Clerk's office.
On January 30, 2020, the World Health Organization designated the novel coronavirus, COVID-19, outbreak as a Public Health Emergency of International Concern.
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.
On March 7, 2020, pursuant to Section 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.
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 retail businesses, gym operations, personal care services, and food establishments, their owners and employees located in the Village.
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.
There is growing consensus among experts that the risks of contracting or spreading the coronavirus while outdoors are acceptably low if precautions are taken.
In order to further protect the public health, safety and welfare and support the local economy and retail businesses, gym operations, personal care services and food establishments in their slow and difficult recovery, the Village deems it necessary to authorize the expansion of outdoor retail sales areas, gym operations, personal care services and food establishment dining areas for 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 ESTABLISHMENT
- Any establishment which serves made-to-order food or beverages for dine-in, takeout, or delivery. Food establishments shall include, but are not limited to, restaurants, cafes, fast-food establishments and food establishments within grocery stores.
- OUTDOOR BUSINESS AREA
- Any outdoor space utilized for outdoor retail sales, gym operations, outdoor personal care services or outdoor dining pursuant to an outdoor business area permit.
- Any individual person, firm, partnership, association, corporation, company, organization or legal entity of any kind, including public agencies and municipal corporations.
Retail businesses, gym operations, personal care services and food establishments may seek approval to create and/ or expand outdoor retail sales areas, gym operations, personal care service areas and outdoor dining areas, referred to as "outdoor business areas." 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 at the discretion of the Building Inspector. No retail business, gym operation, personal care service or food establishment is eligible for an outdoor business area permit unless it is an essential business as defined by New York State Empire State Development or unless the phase within which the industry is classified is cleared for opening by New York State in accordance with the New York Forward phased re-opening plan.
The 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 250, Zoning.
To the extent any provision of this chapter conflicts with any other requirement of the Village 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.
A permit shall not be required for curbside pickup. Curbside pickup shall not be implemented in a manner that blocks traffic or fire access lanes. Within a shopping center, customers utilizing curbside pickup shall be instructed to park their vehicle in a striped parking space to receive their purchased goods.
All applications for an outdoor business area permit shall be on a form provided by the Village and shall contain the following information:
The name, address of the applicant.
The name and address of the retail business, gym operation, personal care service or food establishment.
A signed license agreement for the use of public property, if applicable.
Approval from the New York State Liquor Authority to serve alcohol in the outdoor business area, if applicable.
Insurance certificates, naming the Village of Rye Brook as an additional insured, if using public property.
A sketch with sufficient detail 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.
A statement describing the proposed use of the outdoor business area, including days and hours of intended operation and proposed capacity.
Map indicating the location of the business within the property as well as the names of the three adjacent businesses on each side of the applicant clearly identifying the location of the outdoor business area.
If a tenant is seeking an outdoor business area permit, the application shall include written authorization from the landlord.
The Building Inspector is hereby authorized to grant an outdoor business area permit upon the applicant's demonstration of compliance with the following requirements:
The outdoor business area shall not be used for any purpose other than for the approved business use.
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.
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.
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.
All furnishings shall be removed and stored indoors at closing in an approved manner when the outdoor business area is not in operation.
No permanent structure may be installed.
The applicant shall be responsible for any damage caused to any sidewalk or public property as a result of the business operations.
All outdoor business areas shall be closed to all lawful permitted activities, including cleanup, on or before 10:00 p.m. each day.
Requirements applicable to outdoor dining areas.
All food and beverages to be served or consumed in the outdoor business area shall be prepared within the existing food establishment. The food establishment shall not serve food or beverage to a patron unless that patron is seated at a table.
The operator of the food establishment shall procure the appropriate approval from the State Liquor Authority if the food establishment intends to serve alcoholic beverages in the outdoor business area and shall comply with all other laws, regulations and guidelines concerning the serving of alcoholic beverages. The required approval must be submitted to the Village before the operator may serve alcoholic beverages in the outdoor business area. All alcoholic beverages to be served in the outdoor business area shall be prepared within the existing food establishment, and alcoholic drinks shall only be served to patrons seated at tables.
The Building Inspector may impose reasonable conditions on the approval of an outdoor business area permit related to the outdoor business area's size, location, impact on available parking, pedestrian safety, noise, and the public health, safety and welfare.
All outdoor business operations shall comply with any applicable CDC, state or county guidance, rule, regulation or law concerning required measures to minimize the spread of COVID-19.
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.
The grounds upon which a permit may be revoked or suspended, in the Building Inspector's sole discretion, shall include but shall not be limited to:
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.
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.
Failure to comply with any provision of this chapter or any other applicable law or regulation or term or condition of the permit.
The Building Inspector, upon determination that a violation of this chapter exists, shall perform personal service of a notice of violation/order to remedy same to 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 24 hours of service of the notice. Failure to correct all violations within 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 is to be revoked or suspended, a stop-work order shall be issued in accordance with Chapter 214 of Village Code.
Neither the adoption of this chapter nor the granting of any license or permit pursuant hereto shall be construed as a waiver of any right, privilege or immunity of the Village of Rye Brook concerning its public easement over the streets and sidewalks, or of any requirement of law concerning the liability of the Village of Rye Brook with respect to streets and sidewalks, whether expressed or implied.
The applicant shall agree, on a form approved by the Village Attorney, to indemnify and save harmless the Village of Rye Brook, its officers, agents, attorneys and employees, from and against any claim of loss, liability or damage by any person arising as a result of 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 until December 31, 2020. Upon written request to the Village Administrator, the permit may be renewed in periods of six months each.
All outdoor business area permits shall be valid until the Governor rescinds all requirements and guidelines for social distancing.
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 administrative fee as set forth by resolution of the Village Board of Trustees in the Village Fee Schedule, which may be amended, is required upon the issuance of an application.
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.