[HISTORY: Adopted by the Town Board of the
Town of New Castle 3-10-1992 by L.L. No. 3-1992. Amendments noted where
applicable.]
The sidewalk cafe regulations as established
in this chapter are designed to allow sidewalk cafes on public property,
in locations where they are determined to be appropriate by the Town
Engineer and to promote and protect the public health, safety and
general welfare. These general goals include, among others, the following
specific purposes:
A.
To provide adequate space for pedestrians on the sidewalk
adjacent to sidewalk cafes and to ensure access to adjacent commercial
and retail uses.
B.
To promote sidewalk cafes as useful and properly planned
visual amenities which better relate to the stereoscope.
C.
To promote the most desirable use of land and buildings
and thereby protect the Town's tax revenues.
For purposes of this chapter, the following
terms shall have the following meanings:
A public telephone, mailbox, bench or other facility provided
for the use of the general public.
Any area between the curbline and a structure, whether publicly
or privately owned, which is used by the public or open to use by
the public.
An outdoor dining area located on a sidewalk.
A.
No person shall engage in the operation of a sidewalk
cafe except upon the granting of a license therefor by the Town Engineer
pursuant to this chapter and in accordance with the terms and conditions
of such license.
B.
Rules and regulations. The Town Engineer is hereby
authorized to grant revocable licenses for the use of the sidewalks
for sidewalk cafes upon the following terms and conditions:
(1)
The license shall be valid only during a single calendar year, and shall be renewed each year thereafter on application of the licensee specifying any change from the information originally set forth pursuant to § 104-3C unless the Town Engineer, for cause, or the licensee does not renew said license. In the event the Town Engineer determines not to renew a license, he shall give notice to licensee of said intention, by certified mail return receipt requested, not later than 30 days after receipt of an application for renewal of said license, and the reason therefor. The licensee may seek review of the Town Engineer's determination by appealing to the Town Board. Such review shall be requested by the licensee in writing and not later than 15 days from the receipt of the denial of the application by the Town Engineer of said license. Upon appeal, the Town Board shall give notice to the licensee of the meeting at which the appeal will be considered, which notice shall be delivered personally or by certified mail and addressed to the licensee's address as shown on the application. Such licensee shall be entitled to attend the meeting before the Town Board and shall be afforded a full opportunity to be heard. The Town Board shall render a final determination within 30 days of the said meeting.
[Amended 7-23-1996 by L.L. No. 6-1996]
(2)
No sidewalk cafe may be operated except:
(3)
No sidewalk cafe shall operate after midnight or when
the entity with which it is associated is not open to the public.
(4)
Furnishing of a sidewalk cafe shall consist solely
of readily removable tables, chairs, umbrellas and trash receptacles
(together "furnishings") of a standard design, type, size and color
approved by the Town Board by resolution and all of which as to each
cafe shall be uniform in style, color, and material. Furnishings may
not be attached, even in a temporary manner, to the sidewalk or other
public property or to any building or structure. All furnishings shall
be removed from the sidewalk and stored indoors at closing in an approved
manner when the sidewalk cafe is not in operation.
[Amended 9-14-2004 by L.L. No. 9-2004]
(5)
No permanent structure may be affixed to the sidewalk
or any building. The licensee shall be responsible for any damage
caused to any sidewalk or public property as a result of the licensee's
operations under this chapter.
(6)
Sidewalk cafes, the public property on which they
are located and the surrounding area shall at all times be kept free
and clear of litter, debris and any substance that may damage the
sidewalk or cause pedestrian injury.
(7)
The licensee shall dispose of all refuse in accordance
with its designated and customary place of disposal and shall have
the affirmative obligation to maintain the sidewalk cafe and surrounding
premises free of litter at all times. Licensees may maintain receptacles
for the disposal of waste on the sidewalk in a design, type, size
and color approved by the Town Board. Licensees shall not use Town
receptacles for disposal of garbage or refuse.
(8)
The licensee shall have the consent of the owner and
lessee, if any, of the premises in front of which the licensed activity
is to be conducted.
(9)
No outdoor lighting (except for candles) or live or
mechanical music shall be permitted.
(10)
All food and beverages to be served or consumed
at sidewalk cafes shall be prepared within the existing restaurant
or retail food store. The restaurant shall not serve food or beverage
to a patron at a sidewalk cafe area unless that patron is seated at
a table.
(11)
All alcoholic beverages to be served at sidewalk
cafes shall be prepared within the existing restaurant, and alcoholic
drinks shall only be served to patrons seated at tables. The drinking
of alcoholic beverages by a member of the public while a patron at
a sidewalk cafe, within the confines of the sidewalk cafe area, shall
not be construed as a violation of any ordinance controlling open
containers in a public area. The operator of the sidewalk cafe shall
take whatever steps are necessary to procure the appropriate license
from the state liquor authority if he intends to serve alcoholic beverages
in the sidewalk cafe area and shall comply with all other laws and
regulations concerning the serving of alcoholic beverages in this
state.
(12)
Operation of a sidewalk cafe shall not adversely
impact on adjacent or nearby residential, religious, educational or
commercial properties and shall be in accordance with all applicable
codes and regulations.
(13)
Restaurants located next to each other, without
intervening uses or entranceways to buildings, may have sidewalk cafes
that abut each other.
(14)
At all times a five-foot walking area between
the cafe table area and the curb must be maintained. Furnishings or
other property must not be allowed to intrude upon the five-foot walking
area.
(15)
The licensee shall at all times maintain free
and clear from all obstruction an aisle not less than four feet in
width providing access to any establishment fronting on said sidewalk.
(16)
The sidewalk use shall not interfere with access
to any public service facility.
(17)
The number and location of tables shall be approved
by the Town Engineer, or the Town Engineer's designee, in accordance
with fire and building code requirements and policies and sound practice,
and at all times a separation of not less than 36 inches shall be
present between the back of a chair at any table and the next table,
structure, or object behind it.
[Amended 7-23-1996 by L.L. No. 6-1996; 9-14-2004 by L.L. No.
9-2004]
C.
Application. Application for a license pursuant to
this section shall be made on a form designed by the Town Supervisor
and approved by the Town Attorney and shall be submitted to the Town
Engineer in hard copy and in an electronic file format. Such form
shall contain at least the following information:
[Amended 3-27-2012 by L.L. No. 1-2012]
(1)
The name and address of the licensee.
(2)
The proposed site for the activity.
(3)
A site plan showing the following:
(a)
A proposed layout.
(b)
The capacity of the existing facility and capacity
of proposed outdoor dining.
(c)
A statement of the months, days and hours of
intended operation.
(d)
The licensee's entire property and adjacent
properties on a location map with streets for a distance of at least
25 feet, at a scale of one inch equals 10 feet.
(e)
A detailed plan at a scale of 1/2 inch equals
one foot showing the design and location of all temporary structures
such as tables and chairs.
[Amended 7-23-1996 by L.L. No. 6-1996]
The Town Engineer or his designee shall grant
or deny an application for a license pursuant to this chapter within
30 days of its complete submission.
Upon a finding by the Town Engineer that the applicant has violated any provision of this chapter or the terms and conditions of the license or has engaged in any practice in conjunction with the regulated sidewalk activity which constitutes a danger to the health or safety of any patron or pedestrian, the Town Engineer shall give notice to the applicant to correct such violation or cease such practice within 24 hours. If the applicant fails to comply with such notice, the Town Engineer may suspend the license for a period not in excess of 30 days, during which time the applicant shall be entitled to a hearing, at which the licensee may be represented by counsel, to present evidence in his behalf and confront the evidence against him. If, upon considering the evidence presented at the hearing, the Town Engineer adheres to the finding, the Town Engineer may reinstate the license with additional conditions related to the violation or improper practice which has been found, or revoke the license and forfeit the applicants cash deposit. In addition to, or in substitution for, the suspension or revocation of the license, the Town Engineer may impose an administrative sanction in an amount determined by him to be the cost to the Town of the applicant's failure to comply with the terms of this chapter or the permit issued to the applicant pursuant hereto, which such sanction shall be deducted by the Town Board from the applicant's cash deposit. The suspension, revocation or other action taken pursuant to this section shall not relieve the applicant or any other person from any liability which may be imposed pursuant to §§ 104-9 and 104-10 of this chapter.
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 Town of New Castle concerning
its public easement over the streets and sidewalks, or of any requirement
of law concerning the liability of the Town of New Castle with respect
to streets and sidewalks, whether expressed or implied.
The applicant shall agree, on a form approved
by the Town Attorney, to indemnify and save harmless the Town of New
Castle, 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 sidewalk use.
[Amended 8-10-2004 by L.L. No. 7-2004]
The applicant shall obtain, and maintain in
full force and effect throughout the term of the license, a policy
of general liability insurance, which such policy shall:
A.
Name the Town of New Castle, its officers, agents,
attorneys and employees as additional insureds;
B.
Have a combined single limit of not less than $1,000,000;
and
C.
Contain a provision prohibiting its cancellation except
upon a minimum of 10 days' notice to the Town of New Castle.
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The applicant shall file with the Town Board,
prior to the issuance of the license, a certificate evidencing the
requisite insurance and setting forth the actual cancellation notice
provision contained in the policy.
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[Amended 7-23-1996 by L.L. No. 6-1996[1] ]
Any person who shall violate any of the provisions
of this chapter shall be liable to prosecution in the Town Justice
Court and shall, upon conviction thereof, be liable to a fine that
shall not exceed $250. If a fine imposed pursuant to this section
or resulting from the maintenance, use or operation of a sidewalk
cafe is not paid within five business days after the fine is imposed,
except as otherwise ordered by the Court, the Town may immediately
revoke the license for any such licensee.
[Amended 7-23-1996 by L.L. No. 6-1996; 9-10-2002 by L.L. No.
8-2002]
A license and administrative fee as set forth
by resolution of the Town Board in the Master Fee Schedule, which
may be amended, is required upon the issuance of a license.
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.
