[HISTORY: Adopted by the Council of the Township of Montclair 12-18-2012 by Ord. No.
O-12-65.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Alcoholic beverages — See Ch. 74.
Consumption of alcohol in public — See Ch. 127.
Noise — See Ch. 217.
Signs — See Ch. 277.
Streets and sidewalks — See Ch. 297.
[1]
Editor's Note: This ordinance superseded former Ch. 276,
Sidewalk Cafes, adopted 5-13-1997 by Ord. No. 97-16, as amended.
The Township Council of Montclair has determined that the establishment
of sidewalk cafes permitting dining will promote the public interest
by creating an attractive pedestrian environment for its businesses
during the day and night and will foster a pleasant and distinctive
ambience within the Township. The purpose of this chapter is to establish
the appropriate regulations to license and regulate this activity
in order to ensure that the health, safety and welfare of the Township
is protected.
As used in this chapter, the following terms shall have the
meanings indicated:
The building whose principal facade fronts on the sidewalk
where the sidewalk cafe is or is proposed to be located.
Movable cafe partitions shall be provided which shall separate
the sidewalk cafe from the pedestrian passageway. Said partition shall
be no less than 30 inches in height and shall not exceed 36 inches
in height, and the design of the partition shall clearly delineate
the pedestrian passageway. The partition shall be appropriate to the
facade of the building. The partition and all tables and chairs shall
be removed from the sidewalk at the close of business each day.
Any individual, partnership, corporation, association or
other entity.
That portion of the facade of a building which fronts on
a street.
For sidewalks measuring 15 feet or less from the principal facade
to the curb: the sidewalk cafe shall be located immediately adjacent
to the principal facade. In no case shall the sidewalk cafe extend
so far as to leave less than six feet for pedestrian traffic (area
which is unobstructed by trees, light poles, trash receptacles, parking
meter posts, planters and similar structures).
For sidewalks measuring over 15 feet, the pedestrian passageway
shall be located immediately adjacent to the principal facade, and
the seating area of the sidewalk cafe shall begin beyond the passageway.
At least a six-foot unobstructed passageway shall be provided
for pedestrian traffic (area which is unobstructed by trees, light
poles, trash receptacles, parking meter posts, planters and similar
structures) at all times.
Sidewalk cafes shall only be permitted in front of an operating
retail food establishment preparing food and beverages on premises.
In those situations where an operating retail food establishment is
located on a corner, both the front and the side street area of the
retail food establishment may be utilized, following the above stipulations
for sidewalk width.
An area of sidewalk, parallel to the principal facade, unobstructed
by trees and light poles, trash receptacles, parking meter posts,
telephone booths and similar structures. The location of a required
pedestrian passageway shall adhere to the definition of "projections"
above, dependent upon the width of the sidewalk.
The establishment actually located within the adjacent building
for which a current retail food establishment inspection certificate
has been issued by the Department of Health, and shall include, by
way of example, a restaurant, hotel, coffee shop, tearoom, dining
room, cafeteria, luncheonette, soda fountain, sandwich shop, delicatessen
and the like.
The paved surface provided for the exclusive use of pedestrians
in the public right-of-way and situated between and extending from
any building to the curb of any street (excluding therefrom any unpaved
area).
The utilization of sidewalk space beyond the building line
to accommodate the serving of food and drink to patrons of a restaurant
or retail food establishment preparing food and beverages on premises,
which space is unenclosed and does not have walls. It shall consist
of tables and chairs set in front of the restaurant or retail establishment.
A.
No person shall operate a sidewalk cafe within the Township of Montclair without first obtaining a sidewalk cafe license and satisfying all of the requirements of this chapter. Licenses shall be renewed annually in accordance with § 276-8.
(1)
The Township of Montclair shall issue such license upon the adherence
to all conditions set forth in this chapter and all applicable Township
and state laws and regulations.
(2)
The Township of Montclair reserves the right to revoke the license
of any sidewalk cafe licensee who, upon the expiration of 10 days
after receipt of notice from the Township of Montclair or its agents
of a violation of state law or any of the requirements set forth in
this chapter, fails to abate the violation.
(3)
The Township of Montclair expressly reserves the right to require
the removal of all sidewalk cafes or other projections or encumbrances
upon any street, sidewalk or public easement which are improperly
constructed or maintained.
B.
An application for an initial sidewalk cafe license or a renewal
license shall be accompanied by an annual operation fee in the amount
of $150 for sidewalk cafes seating 12 or fewer patrons and an annual
operation fee in the amount of $250 for sidewalk cafes seating over
12 patrons. For sidewalk cafes which extend a distance greater than
four feet from the principal facade and have greater than three tables/six
seats, an additional sidewalk use fee of $1.25 per square foot of
outdoor dining area will be assessed. For the first year following
the passage of this chapter, the sidewalk use fee shall be waived
for any applicant who provides proof that he/she has purchased cafe
partitions at a reasonable cost to comply with this chapter. The Township
shall issue the sidewalk cafe license upon adherence to all conditions
set forth in this chapter and all applicable Township and state laws
and regulations. Renewal applications and license fees must be received
by the Health Department no later than January 31 of the year preceding
the year for which the license is issued. A late fee of $50 will be
assessed for renewal applications received after January 31, and $100
for those received after February 28.
C.
All changes in ownership shall require a new application and license
with payment of the fee provided herein.
A.
Each applicant for a sidewalk cafe license shall submit and file
an initial application form with the Health Department, together with
five copies of a cafe plan (as defined below), and the appropriate
fee. The application shall set forth:
B.
Cafe plan.
(1)
The term "cafe plan" shall mean a plan setting forth the following
information, and such other additional information, if any, as may
be deemed necessary and subsequently requested by the Township:
(a)
Identification of the adjacent building and properties immediately
adjacent to such building.
(b)
A scaled drawing of the proposed design and location of the
sidewalk cafe; all temporary structures, equipment and apparatus to
be used in connection with its operation, including actual square
footage of the dining area, partitions, tables (size included), chairs,
planter, lighting and electrical outlets (if any); provisions for
the storage of such structures, equipment and apparatus; proposed
signage; and the location of any fire hydrant, plug or standpipe,
utility pole, parking meter station, telephone booth or other permanent
fixture between the adjacent building and the curb, including a clear
indication of the presence of the required pedestrian passageway.
Accessory items such as signs, hostess desk, service stations and
other items associated with the sidewalk cafe shall not be permitted
on the sidewalk outside the designated boundary of the cafe. The plan
shall be drawn to scale but need not be professionally drawn.
(c)
A statement of the seating capacity of the proposed sidewalk
cafe and of the existing retail food establishment actually operated
by the applicant in the adjacent building.
(2)
Cafes with size constraints making it unreasonable to comply with
the partition requirements may apply for a waiver of such. Approval
of the waiver is at the discretion of the Health Department.
(3)
The Health Department shall refer the cafe plan to the Fire Official, Uniform Construction Code Official, and Housing and Zoning Officer, who shall review such cafe plan, verify whether there are any outstanding code violations for the retail food establishment (i.e., zoning, property maintenance, building and fire codes) and provide a written recommendation based upon the plan's compliance with §§ 276-3 and 276-8 of this chapter to the Health Department within five business days.
(4)
Applications for renewal of (previously approved) sidewalk cafes
which have no changes from the initial application may submit a license
renewal form, updated insurance information and annual fee only.
(5)
If no outstanding violations exist, the Health Department shall approve
or disapprove the cafe plan no later than 10 business days from the
date of submittal of a complete application and plan.
No sidewalk cafe license shall be issued unless the licensee
shall have first filed adequate proof that the following insurance
requirements have been provided:
A.
The following wording must appear on the insurance certificate: "The
certificate holder (Township of Montclair) is included as an additional
insured as respects losses arising solely from the operation of the
sidewalk cafe."
B.
Ten days' written notice of cancellation must be provided to
the Township.
C.
Insurance in force must be written by a company licensed to do business
in the State of New Jersey and rated A or better by A.M. Best Rating,
and the certificate shall so state: "Rated by A.M. Best Rating."
D.
Minimum coverage requirements are:
(1)
General aggregate: $1,000,000.
(2)
Products and completed operation aggregate: $1,000,000.
(3)
Personal and advertising injury: $1,000,000.
(4)
Each occurrence: $1,000,000.
(5)
Fire damage (any one fire): $50,000.
(6)
Medical expense (any one person): $5,000.
(7)
Workers' compensation: statutory requirements.
No sidewalk cafe license shall be issued unless the licensee
shall have first executed and filed with the Health Department an
indemnification agreement pursuant to which the licensee, in further
consideration of the issuance of the license, shall agree to forever
defend, protect, indemnify and save harmless the Township of Montclair,
its officers, agents and employees, from and against any and all claims,
causes of action, injuries, losses, damages, expenses, fees and costs,
including attorneys' fees, arising out of or which may arise
out of the licensee's operation of such sidewalk cafe.
A.
All sidewalk cafe licenses shall be issued for a one-year period,
beginning March 1 and ending February 28.
B.
Licenses may be renewed annually by the filing of an annual application.
C.
The Township may temporarily suspend a sidewalk cafe license if access
to the sidewalk is needed in connection with public work to be performed
in the area.
A sidewalk cafe authorized and operating pursuant to this chapter
shall comply with all of the following rules and regulations and such
others as may be adopted from time to time by ordinance of the Township
Council:
A.
The cafe shall be operated and maintained in accordance with the
cafe plan as finally approved and by the same person who operates
and maintains the abutting retail food establishment.
B.
The placement of furniture, apparatus, decoration or appurtenances
used in connection with the operation of the sidewalk cafe in relation
to any fire hydrant, plug or standpipe permanent fixture shall be
approved by specific written authorization of the Fire Official based
upon his or her review of the cafe plan.
C.
No furniture, apparatus, decoration or appurtenance used in connection
with the operation of the sidewalk cafe shall be located in such a
way as to impede the safe and speedy ingress and egress to or from
any building or structure.
D.
No furniture, apparatus, decoration or appurtenance used in connection
with the operation of the sidewalk cafe shall be located in or project
or protrude into the required pedestrian passageway, and such encumbrances
shall not pose a safety hazard to the general public.
E.
Any table service provided at the sidewalk cafe shall be provided
by persons engaged or employed for that purpose and shall be furnished
to seated patrons only. Table service is not required, and retail
food establishments that do not provide table service may operate
sidewalk cafes in which patrons carry their food from inside the premises
to tables located in the sidewalk cafe.
F.
The sidewalk area utilized by the sidewalk cafe shall be kept clean
and free of litter and shall be washed as necessary. Covered trash
receptacles shall be provided and maintained (emptied) by the retail
food establishment operator.
H.
Noise shall be kept at such a level as to comply in all respects
with the provisions of applicable ordinances. Exterior lighting shall
be directed onto the sidewalk cafe and shall not intrude on adjacent
residential properties.
I.
Sidewalk cafes shall be permitted to operate only from 7:00 a.m.
until 11:00 p.m.
J.
Within 30 minutes after the closing of the restaurant, the licensee
shall cause to have removed from the sidewalk all partitions, furniture,
trash receptacles, apparatus, decorations and appurtenances, and any
other material or items used in connection with the operation of such
cafe. All such materials and items shall be stored in a safe and secure
location approved by the Fire Chief and shall not be stored in food
preparation or food storage areas.
K.
No food may be prepared or stored in the sidewalk cafe or outside
the adjacent building.
L.
The license shall comply with all other ordinances of the Township
of Montclair.
A.
The sidewalk area upon which a cafe has been authorized to operate
pursuant to this chapter may constitute premises duly licensed for
the sale and consumption of alcoholic beverages; provided, however,
that the related restaurant of which the cafe is a part is so licensed;
and provided, further, that specific approval has been obtained pursuant
to New Jersey alcoholic beverage control regulations for extension
of the alcoholic beverage consumption license to the sidewalk area.
Such approval shall be separate from, and must be obtained in addition
to, the license to operate a sidewalk cafe pursuant to this chapter.
B.
Retail food establishments which do not have a license to sell alcoholic
beverages within their premises but are legally permitted to allow
patrons to carry onto and consume alcoholic beverages inside the establishment
(BYOB) shall also be permitted to allow patrons to carry onto and/or
consume alcoholic beverages on any sidewalk area duly licensed as
a cafe hereunder.
Upon determination by the Health Department that a licensee
has violated one or more of the provisions of this chapter, the Department
may give written notice to the licensee to correct such violation
within 24 hours of the receipt of such notice by the licensee. In
the event that the licensee fails or refuses to correct such violation
within such period, the licensee's sidewalk cafe license may
thereupon be revoked. Any licensee cited for three or more violations
of this chapter, even if corrected, may have his or her license revoked.
Any person aggrieved by any action of the Health Department,
in the denial or revocation of a sidewalk cafe license, shall have
the right to appeal to the Township Manager. The appeal shall be taken
by filing with the Health Department, within 30 days after the notice
of the action complained of has been served personally upon the licensee,
or mailed, postage prepaid, to the licensee at the address given by
the licensee on the application form, a written statement setting
forth fully the grounds for appeal. The Health Department shall set
a time and place for the appeal, which, in the case of a license revocation,
shall be no later than five business days after the appeal is filed,
at which time the Township Manager shall conduct a hearing and affirm,
modify or reverse the action appealed from.
Any person who violates any provision of this chapter shall,
upon conviction thereof, be punished by a fine not exceeding $2,000,
imprisonment in the county/municipal jail for a term not exceeding
90 days, or a period of community service not exceeding 90 days, or
any combination thereof as determined by the Municipal Court Judge.
Each day on which a violation of an ordinance exists shall be considered
a separate and distinct violation and shall be subject to imposition
of a separate penalty for each day of the violation as the Municipal
Court Judge may determine.
