[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:
The Building Commissioner, Building Inspector or alternate
Building Commissioner or their designee.
Items or merchandise offered for sale in the regular course
of business.
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]
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]
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.
A.
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.
B.
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.
A.
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.
B.
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:
A.
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.
B.
A copy of a doing-business-as certificate if the applicant will operate
the business under a business or fictitious name.
C.
The address and description of the premises where the applicant intends
to establish or operate an outdoor cafe or retail sales.
D.
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.
E.
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:
F.
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]
A.
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.
B.
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.
A.
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.
B.
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.
C.
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[1] 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.
