[HISTORY: Adopted by the Council of the City of Beacon 7-6-2020 by L.L. No. 9-2020. Amendments noted where applicable.]
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 health care 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 City'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 City.
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 City 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.
- 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 in the City of Beacon 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 reopening plan.
Only businesses that have obtained a certificate of occupancy from the City of Beacon may apply for an outdoor business area permit.
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 City. Outdoor business areas shall be exempt from all requirements set forth in Chapter 223, Zoning.
To the extent any provision of this chapter conflicts with any other requirement of the City 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 City and shall contain the following information:
The name and 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 City of Beacon as an additional insured, if using public property.
A drawing 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. The drawing shall be signed and sealed by a licensed professional unless such requirement is waived by the Building Inspector.
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.
All outdoor business area permits shall be subject to the following terms and conditions:
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, firepits/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.
The outdoor business area shall at all times be kept free and clear of garbage, litter, refuse, rubbish and debris.
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 City 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.
Upon the expiration or earlier termination of the outdoor business area permit, the applicant shall restore the outdoor business area to the same condition it enjoyed prior to the applicant's use of the outdoor business area, including the removal of any personal property, fixtures, improvements, or structures in the outdoor business area. In the event the applicant has caused any damage to the outdoor business area, any improvements thereto, or any other facilities, the applicant shall immediately cause such damage to be repaired at its sole cost and expense.
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. Any permit issued pursuant to this chapter may be revoked or suspended by the Building Department of the City of Beacon for cause, after notice to the owner and after an opportunity for the owner to be heard by the Building Department, upon a finding by the Building Department that any requirement of this chapter has been violated.
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 City of Beacon concerning its public easement over the streets and sidewalks, or of any requirement of law concerning the liability of the City of Beacon with respect to streets and sidewalks, whether expressed or implied.
No permit for any outdoor business area located on public property shall be issued by the Building Inspector until the applicant therefor shall have first placed on file with the Town satisfactory evidence of the following types of coverage and limits of liability:
Statutory workers' compensation and employers' liability policy, covering operations in New York State, with policy limits equal to New York State requirements.
General liability coverage with limits of insurance of not less than $1,000,000 each occurrence and $2,000,000 annual aggregate.
If the coverage contains a general aggregate limit, such general aggregate shall apply separately to each project.
The City of Beacon and its agents, officers, volunteers, directors and employees shall be named as additional insureds and included in a waiver of subrogation endorsement.
The applicant shall maintain the general liability coverage for itself and all additional insureds for the duration of the outdoor business operations.
The applicant's policy must be primary and noncontributory to any insurance the City of Beacon maintains.
Certificates shall provide that 30 days' written notice prior to cancellation be given to the City of Beacon. Policies that lapse and/or expire during the term of permit shall be recertified and received by the City of Beacon no fewer than 30 days prior to cancellation or renewal.
Such insurance hereinabove referred to shall remain in force throughout the effective period of the permit and/or any authorized extension or extensions thereof and shall carry an endorsement to the effect that the insurance company will give at least 10 days' prior written notice to the City of Beacon of any modification or cancellation of any such insurance and shall contain a clause to the effect that termination of said insurance shall be without prejudice to the right of the City of Beacon to make claim or claims thereafter for any loss or damage sustained as a result of any act or acts committed or omitted during the term of said insurance.
The applicant shall agree, on a form approved by the City Attorney, to indemnify and save harmless the City of Beacon, 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 City 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 November 15, 2020. Upon written request to the City Administrator the permit may be renewed for a period of 30 days.
A violation of this chapter shall be an offense punishable by a penalty as provided for in § 1-3, General penalty.
An administrative fee as set forth by resolution of the City Council in the City of Beacon fee schedule, which may be amended, is required upon the issuance of an application.
Editor's Note: Said fee schedule is on file in the City offices.
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.