[Adopted 6-4-2018 by Ord. No.
02-2018]
The sidewalk cafe regulations as established in this article
are designed to allow sidewalk cafes on public property throughout
the year, in locations where they are determined to be appropriate
by the Code Enforcement Officer of the Borough of Boyertown, 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 cafe areas 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 streetscape.
C.
To establish administrative and enforcement procedures for sidewalk
cafes that are effective, efficient and enforceable.
D.
To preserve and enhance the character of neighborhoods within the
Borough and to protect the adjacent residential areas.
For purposes of this article, 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 in front of
the principal place of business of a restaurant or other area adjacent
to the principal place of business of a restaurant.
A.
No person shall engage in the operation of a sidewalk cafe except
upon the granting of a permit therefor by the Code Enforcement Officer
pursuant to this article and in accordance with the terms and conditions
of such permit.
B.
The Code Enforcement Officer is hereby authorized to grant revocable
permits for the use of the sidewalks for sidewalk cafes upon the following
terms and conditions:
(1)
Review and approval of the Code Enforcement Officer.
(2)
The issuance of a permit. Permits, regardless of when issued, shall
be valid for a term of 12 months from the date of issuance, and shall
be renewed each year thereafter on application of the applicant specifying
any change from the information originally set forth in the initial
approved application. If a permit holder fails to file an application
for renewal on or before December 1 of any calendar year for the immediately
following year, any subsequent application filed shall be deemed to
be an initial application.
(3)
Payment of the applicable permit fee as set forth herein or as hereafter
established from time to time by resolution of Borough Council.
C.
No sidewalk cafe may be operated except:
(1)
As an accessory use to a restaurant lawfully operating on the first
floor of a building;
(2)
At a suitable location on the sidewalk in front of the principal
place of business of a restaurant or other area adjacent to the principal
place of business of a restaurant; and
(3)
By the entity which operates the restaurant.
D.
No sidewalk cafe shall operate after 12:00 midnight or when the entity
with which it is associated is not open to the public.
E.
No permanent structure may be affixed to the sidewalk or any building.
The applicant shall be responsible for any damage caused to any sidewalk
or public property as a result of the applicant's operations
under this article.
F.
The public property on which sidewalk cafes 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.
G.
The applicant 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 and surrounding premises free
of litter at all times.
H.
Live or mechanical music shall be permitted at permitted sidewalk
cafes during the hours of 12:00 noon through 10:00 p.m. provided said
sidewalk cafe is open for business at all times during the playing
of such live or mechanical music and provided the sound of such music
does not create a nuisance.
I.
All food and beverages to be served or consumed at sidewalk cafes
shall be prepared within the existing restaurant. The restaurant shall
not serve food or beverages to a patron at a sidewalk cafe area unless
that patron is seated at a table.
J.
Alcoholic beverages may be served at a sidewalk cafe only by an establishment
duly licensed by the Pennsylvania Liquor Control Board (PLCB). Establishments
offering patrons the opportunity to bring alcoholic beverages to the
establishment to be consumed therein (BYOB establishments) shall not
permit nor consent to the consumption of any alcoholic beverages in
the sidewalk cafe area. 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. Patrons may
carry alcoholic beverages between a sidewalk cafe and a bar or restaurant
attached to the sidewalk cafe, including, if necessary, traversing
an outdoor area which is not part of the sidewalk cafe; provided,
however, that alcoholic drinks shall be carried only and not consumed
during such period of transit. 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 code or ordinance controlling open containers in
public areas. The operator of the sidewalk cafe shall procure the
appropriate license from the PLCB 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 the Commonwealth of Pennsylvania.
K.
Operations 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.
L.
Restaurants located next to each other, without intervening uses
or entranceways to buildings, may have sidewalk cafes that abut each
other.
M.
At all times, a walking area between the cafe table area and the
curb must be maintained. The walking area shall run parallel to the
sidewalk, be straight, and be a minimum of four feet wide. Furnishings
or other property must not be allowed to intrude upon the walking
area. In addition, the Borough has the right at any time and from
time to time to require the applicant to erect a temporary removable
buffer between the public portions of the sidewalk cafe and the adjacent
sidewalks to insure the safety of pedestrians.
N.
The permit holder 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.
O.
The sidewalk use shall not interfere with access to any public service
facility.
P.
Application for a permit pursuant to this section shall contain at
least the following information:
(1)
The name and address of the applicant.
(2)
The proposed site for the activity.
(3)
A site plan showing the following:
(a)
A proposed layout.
(b)
The seating capacity of the existing facility and the seating
capacity of the proposed outdoor dining area.
(c)
A statement of the months, days and hours of intended operation.
(d)
The applicant's entire property and adjacent properties
should be shown on a location map with streets for a distance of at
least 25 feet.
(e)
A detailed plan acceptable to the Code Enforcement Officer showing
the design and location of all tables, chairs, furnishings and other
property with the proposed sidewalk cafe area. The Code Enforcement
Officer shall use his best efforts to accommodate the applicant's
preference as to the location of tables, chairs, furnishings and other
property but shall not be bound by such preference.
(4)
Proof of insurance as required herein.
(5)
Any other information that the Code Enforcement Officer may find
reasonably necessary for the fair determination as to whether a permit
should be issued.
The Code Enforcement Officer or his designee shall grant or
disapprove an application for a permit pursuant to this article within
30 days of its complete submission.
Upon a finding by the Code Enforcement Officer that the applicant
has violated any provision of this article or the terms and conditions
of the permit 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 Code Enforcement Officer
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 Code Enforcement Officer shall have the authority
to revoke or suspend a permit upon the finding of a violation of any
applicable rule, regulation, ordinance or local law or upon good cause
shown.
Appeals from the denial, revocation or suspension or other condition
of a permit or renewal thereof may be taken to the Borough Council
by any aggrieved person within 30 days from the date of the denial,
revocation or suspension, by filing a written notice with the Code
Enforcement Officer on forms prescribed by the Borough Council. Each
appeal shall refer to the specific, relevant provision of this article,
explain the aggrieved person's position with respect to the determination
being appealed and state the relief requested.
Neither the adoption of this article nor the granting of any
permit pursuant hereto shall be construed as a waiver of any right,
privilege or immunity of the Borough concerning its public easement
over the streets and sidewalks, or of any requirements of law concerning
the liability of the easement over the streets and sidewalks, or of
any requirement of law concerning the liability of the Borough of
Boyertown with respect to streets and sidewalks, whether expressed
or implied.
Before any permit is issued, the applicant must enter into an
agreement with the Borough, in form satisfactory to the Borough Solicitor,
containing the following provisions set forth in this section. Specifically,
the applicant shall indemnify and hold harmless the Borough, its officers,
employees and agents from and against any and all loss resulting from
injury or death to persons, or damage to property, or any other claims
arising out of, resulting from or in any manner caused by the presence,
location, use, operation, installation, maintenance, replacement or
removal of such sidewalk cafes, or by the acts or omissions of the
applicant or employees or agents of the applicant in connection with
such sidewalk cafe. The applicant shall also release the Borough from
any and all claims relating to its sidewalk cafe, including, but not
limited to, loss of business and/or value of the sidewalk cafe when
it is ordered removed or when street, sidewalk or utility construction
occurs.
The applicant shall, at its own expense, maintain in full force and effect an insurance policy naming the Borough as an additional insured. The policy shall afford comprehensive general liability insurance in the amount of not less than $1,000,000, including contractual liability insurance covering the applicant's indemnification and hold harmless obligations under § 168-8 above, and shall provide that the Borough Manager be notified at least 30 days prior to the expiration of coverage in the event the policy is cancelled or the applicant fails to renew. Within 10 days of the approval of the sidewalk cafe permit, and each year thereafter, the applicant shall submit a new certificate of insurance to the Borough Manager. In addition, the applicant shall obtain a bond in an amount and form satisfactory to the Code Enforcement Officer and provide said bond to the Borough to indemnify the Borough for the cost of removal of any sidewalk cafe and all incidental costs.
A person who violates or permits a violation of any provision
of this article shall be subject to a summary offense and, upon a
conviction of a summary offense and upon conviction in a summary proceeding
pursuant to the Pennsylvania Rules of Criminal Procedure, shall be
subject to pay a fine of not more than $1,000, plus court costs and
reasonable attorneys' fees incurred by the Borough in the enforcement
proceedings. Each day a violation exists shall constitute a separate
offense, and each section of this article that is violated shall also
constitute a separate offense. In addition to or in lieu of enforcement
under this section, the Borough may enforce this article in equity
in the Court of Common Pleas of Berks County.
