[Adopted 10-5-2010 by Ord. No. 152-10; amended in its entirety 6-5-2012 by Ord. No. 112-2012]
The meaning of words in this article shall be as follows:
- BUILDING COMMISSIONER
- The Building Commissioner, Building Inspector or alternate Building Commissioner or their designee.
- Items or merchandise offered for sale in the regular course of business.
- OUTDOOR CAFE
- Any restaurant where food or refreshments are served or consumed
outside of the main building on either private property or on the
public right-of-way, immediately in front of or adjacent to any restaurant,
cafe, cafeteria other place of business. The definition of "outdoor
cafe" does not apply to mobile food operations as defined in City
of Fitchburg Zoning Ordinance Chapter 181.10, Definitions.[Amended 5-16-2017 by Ord. No. 112-2017]
- OUTDOOR SALE
- The sale of goods on either private property or on the public
right-of-way, immediately in front of or adjacent to the place of
business offering the goods for sale. The definition of "outdoor sale"
does not apply to mobile food operations as defined in City of Fitchburg
Zoning Ordinance Chapter 181.10, Definitions.[Amended 5-16-2017 by Ord. No. 112-2017]
- OUTDOOR TABLE
- A table and chairs placed outside of any building for use by the public and/or employees of the person placing the table for eating food prepared at another location.
- Any individual, partnership, association, firm, company, corporation, department, agency, group, or public body.
- That area of the public right-of-way reserved for pedestrian traffic from the curb to the front line of the building.
It is unlawful for any person to establish or operate an outdoor cafe or outdoor retail sale on the sidewalks of the City of Fitchburg unless the person holds a currently valid license issued pursuant to the terms of this article and owns or rents the premises adjacent to the outdoor cafe or outdoor retail.
Any commercial or retail establishment may, with a license from the Building Commissioner, place outdoor tables and chairs for the use of its employees or the public.
If the cafe or outdoor sale is located within or on the sidewalk, it shall be located adjacent to the premises which operates it and may extend to the curbline in front of the premises. The person operating the outdoor cafe or sale must maintain an unobstructed paved surface for pedestrian traffic as determined by the Building Commissioner.
When located on private property, outdoor cafes or sales must be adjacent to the premises to which the outdoor cafe or sale is accessory but may be located in front of, on the side of and/or to the rear of the premises. Such cafes shall be required to maintain an unobstructed paved surface a minimum of 48 inches' clear width for pedestrian traffic as determined by the Building Commissioner. Any relief from this requirement may be sought from the Architectural Access Board (AAB).
Any person may apply to the Building Commissioner. The application, signed by the applicant, shall contain the following information:
The name, residence address and telephone number of each person having an ownership interest in the operation of the activity, including the names of the managers or officers of a limited-liability company; if a corporation, the names, residence addresses and telephone numbers of the corporation and the name of the person authorized to accept service of process within the Commonwealth of Massachusetts.
A copy of a doing-business-as certificate if the applicant will operate the business under a business or fictitious name.
The address and description of the premises where the applicant intends to establish or operate an outdoor cafe or retail sales.
The name and address of the person owning the premises, if other than the applicant, and the signed consent of the owner of the premises for the operation of the outdoor cafe or sale.
Two sets of a proposed layout sketch clearly illustrating the number and location of all tables, chairs, umbrellas or other furnishings or fixtures intended to be located in the outdoor cafe or outdoor sale. The sketch must show the perimeter of the area to be used and the area of unobstructed space permitting free passage of pedestrian traffic around or through the outdoor cafe or sale. The perimeter may be set off by a portable-type enclosure, which may include line plantings. The plan shall also show the following:
An application fee in the amount of $75 shall be submitted with the application.
The Building Commissioner will review the application for completeness, compliance with this article and compliance with other applicable laws and regulations, including those enforced by the Fitchburg Board of Health. If the application is complete, the Building Commissioner will act upon the same within 30 business days of the submittal of the application. If the application is incomplete, the Building Commissioner will notify and inform the applicant as to how the application is incomplete.
If the application complies with this article, the Building Commissioner shall issue a license to run concurrently with the establishment's certificate of inspection, subject to the terms and conditions of this article. The Building Commissioner may impose reasonable terms and conditions on the license and may promulgate regulations relating to licenses granted under this article. The regulations shall be filed with the City Clerk.
The license is personal to the applicant, and any change or transfer of ownership of the outdoor cafe shall terminate the license and shall require new application and a new license meeting the requirements of this article.
Acceptance of the license by the applicant shall operate as a consent to inspection of the premises by the health, fire, police and building officials of the City for the purpose of determining compliance with the terms and conditions of this article and other applicable federal, state, or local laws or regulations.
[Amended 6-3-2014 by Ord. No. 100-2014]
The Building Commissioner may not grant a license to any person to operate an outdoor cafe or outdoor sale, on City property, until and unless such person files with the Building Commissioner or his or her designee a written indemnification and hold harmless agreement indemnifying the City of Fitchburg, its officers, agents, servants and employees from any or all claims, damages, judgment costs or expenses, including attorneys fees, which they or any of them may incur or be required to pay because of any personal injury, including death, or property damage suffered by any person or persons as a result of or related in any way to the operation and maintenance of the outdoor cafe or outdoor retail sales for which the license is issued.
[Amended 6-3-2014 by Ord. No. 100-2014]
The Building Commissioner may not grant a license to any person to operate an outdoor cafe or outdoor sale until and unless such person files with the Building Commissioner or his or her designee a copy of a comprehensive general liability policy issued to such person by a public liability insurance company authorized to do business in the Commonwealth of Massachusetts, affording the coverages set forth below in the amounts so specified. Such insurance policy shall name the City of Fitchburg, 718 Main Street, Fitchburg, MA 01420, its agents, officers, servants, and employees as additional insured with respect to the operation and maintenance of the outdoor cafe in the following amounts: general liability, $1,000,000 each occurrence / $3,000,000, general aggregate.
The insurance coverage required by this article shall at all times be maintained for the full amount. The policy of insurance required by this article to be filed with the Building Commissioner or his or her designee shall contain a clause obligating the company issuing the same to give not less than 30 days' written notice to the City Clerk before failing to renew or canceling the policy or amending any of the terms thereof. The cancellation, termination or nonrenewal of any such policy shall have the immediate effect of suspending the license of such person to operate the outdoor cafe covered thereby until a new policy complying with the provisions of this article is filed with the Building Commissioner or his or her designee.
Any license issued hereunder may be revoked or suspended by the Building Commissioner for noncompliance with this article or any term or condition of the license or for violation of any other applicable federal, state, or municipal law or regulation. Any license issued hereunder is issued upon the express understanding that the licensee obtains no property right or interest in the continuation of said license.
In addition to the powers of suspension or revocation as set forth above, the City reserves the right to modify, suspend or revoke any license on 10 days' written notice if the City determines that pedestrian traffic is made unsafe because of the operation of the outdoor cafe/sale. The license may also be suspended or revoked on 10 days' written notice in the event that the City determines that it is necessary to utilize the area or any part thereof for the maintenance or installation of underground utilities. In the event of an emergency, which emergency is certified by the Building Commissioner, the license may be suspended or revoked without notice.
If the license is suspended or revoked, the licensee will, at his or her own cost, vacate the sidewalk space and promptly remove any property placed thereon. Failure to do so within five days shall grant the City the right to remove any property from the sidewalk, and the licensee shall reimburse the City's cost of removal and/or storage.
[Amended 6-3-2014 by Ord. No. 100-2014]
Each licensee is responsible for keeping the area of the outdoor cafe or outdoor sale and the adjacent walks and streets free and clear of any debris or litter resulting from the operation of the cafe or sale. The area must be cleaned as needed and at the beginning and end of each business day.
The Building Commissioner, notwithstanding §§ 132-2, 149-2 through 149-10, 157-31, 157-40, 157-42, 157-43, 157-44 of the City Code, may authorize signs and displays for outdoor sales and cafes. Outdoor umbrellas located in an outdoor cafe are exempt from the Sign Ordinance of the City of Fitchburg.
If the applicant is the holder of an alcoholic beverage control license pursuant to the laws of the Commonwealth of Massachusetts, it shall be the applicant's responsibility to cause the alcohol beverage control license to be amended to include the premises utilized for outdoor cafe purposes in order to serve alcoholic beverages therein. For holders of an alcoholic beverage license, to the extent there is any conflict between this article and the rules and regulations of the Board of License Commissioners or the ABCC, the latter will control.
No outdoor cafe shall remain open for business after 2:00 a.m. All persons occupying the outdoor cafe shall vacate the same no later than 2:00 a.m.
The license shall be displayed in a conspicuous place on the premises.
All provisions of this article are severable. If for any reason any provision of this article is held to be invalid, the validity of the remainder of the article shall not be affected.
This article shall become effective upon adoption, final approval and publication pursuant to law.