[HISTORY: Adopted by the Commissioners of the Town of Dewey Beach 11-13-1993 by Ord. No. 278 (§ 1050 of the 1984 Code). Amendments noted where applicable.]
No person shall operate, maintain or carry on the business of a restaurant until the owner, operator or lessee has received a permit of compliance from the Town stating that said restaurant is in compliance with all the Town's applicable zoning and licensing requirements. A copy of such permit of compliance shall be issued to the Delaware Alcoholic Beverage Commission.
Any person desiring a restaurant permit of compliance, as required by this chapter, shall file a written application with the Town Manager on a form to be furnished by the Building Inspector. The application shall be accompanied by the application fee as hereinafter provided and shall, in addition, furnish the following information:
The type of ownership of the business, i.e., whether individual, partnership, corporation or otherwise.
The name and designation under which the business or practice is to be conducted.
The business address and all telephone numbers where the business is to be conducted.
The plan of the proposed restaurant or proposed expansion of an existing restaurant. Said plan shall show the following information:
The location of the restaurant.
The location's zoning classification.
The number and sizes of bar areas in the restaurant.
The restaurant's floor plan.
The restaurant's seating capacity.
The designated areas for storage and for preparation of food service.
The distance to the nearest property line of the nearest lot zoned residential from the proposed restaurant or existing restaurant property.
A statement that the establishment's primary purpose shall be that of a restaurant as defined in the Dewey Beach Municipal Code.
A statement containing an approximate percentage of projected revenue to be derived from the sale of alcoholic beverage as compared to the percentage of projected revenue to be derived from the sale of food.
An authorization for the Town, its agent and employees to seek information and conduct an investigation as to the accuracy of the statements set forth in the application to the best of their ability.
Written and dated declaration by the applicant, under verification, oath or affidavit, that the forgoing information contained in the application is true and correct with said declaration being duly dated and signed.
The Town Manager shall verify the completeness and accuracy of the application and may in his sole discretion reject the application if it is incomplete or inaccurate.
Except as provided in § 144-6 hereof, no applicant shall receive a permit of compliance from the Town until after a public hearing at which hearing interested parties and citizens shall have an opportunity to be heard. The Town Manager shall place said application on the agenda for a public hearing at the next scheduled regular meeting of the Town Commissioners if the date of such meeting is more than 25 days from the date the application is filed with the Town Manager, otherwise the application shall be heard at the second scheduled regular meeting of the Town Commissioners or at a special meeting.
A permit of compliance shall not be issued to the applicant or to the Delaware Alcoholic Beverage Control Commission except by a favorable vote of a majority of the Town Commissioners. In reaching their decision, the Commissioners shall consider factors, including but not limited to:
Whether the applicant has demonstrated that the establishment's primary purpose will be that of a restaurant as defined in the Code.
Whether the establishment meets all of the Town's applicable zoning and licensing provisions.
Whether the establishment would be a detriment to the peace, order and quiet of the neighborhood in which the establishment is located and the Town as a whole.
Whether the establishment will have an adverse impact on the neighboring properties or on the Town, considering the impact on traffic, parking and noise.
Whether the applicant had made any false representation or statements with respect to (a) the application submitted under this chapter; and (b) the issuance of a building permit or business license for the subject establishment.
At least 15 days' notice of the time and place of such hearing shall be sent to all property owners whose boundaries are within 200 feet of the boundaries of the proposed restaurant or existing restaurant property. Notice shall be sent by regular United States mail to the last known address to which the Town tax bills are sent, said mailing to be done by the Town.
The provisions of this chapter shall apply to:
All restaurants whose liquor license was approved or issued by the Delaware Alcoholic Beverage Control Commission on or after November 13, 1993.
Any proposed extensions and/or modifications of the premises of an existing restaurant, regardless of the date that said restaurant's liquor license was approved or issued.
An existing restaurant whose liquor license was issued by the Delaware Alcoholic Beverage Control Commission prior to November 13, 1993, is not required to obtain a certificate of compliance pursuant to this chapter unless application is made for an extension or modification of the premises of the restaurant. However, all such existing restaurants shall file a floor plan showing the location and dimensions of all bars, tables and chairs of any service area or any outside decks, patios, porches.
Any transfer of ownership of an existing establishment or a majority of stockholders owning an existing establishment shall comply with the following:
In the case where an existing restaurant's liquor license is being transferred to a new owner at the existing site, the present owner must file with the Town documentation to prove that the floor plan of said restaurant is substantially the same as it was on the later of the adoption date of this chapter or the date of the most recent request for an issuance of a certificate of compliance for that establishment. Such documentation shall include but not be limited to a floor plan showing the location and size of the permanent seated dining and bar areas. If the Town Manager determines that the floor plan in respect to the total square footage of the restaurant and percentage of the floor plan devoted to bar area and percentage of floor area devoted to permanent seated dining area is substantially the same as of the adoption date of this chapter, no hearing shall be required.
Editor's Note: Former Subsection (2), as amended 2-12-1994 by Ord. No. 287, which immediately followed this subsection, was deleted 9-8-1995 by Ord. No. 333.
The Town Manager shall enforce the provisions of this chapter.
Any permit of compliance issued pursuant to this chapter shall be subject to suspension or revocation by the Town Manager by reason of violation of any provision of this chapter; provided, however, that before any permit of compliance is revoked or suspended the Town Manager shall give 10 days' written notice in advance by certified mail with return receipt requested directed to the permit holder at the restaurant's address, of the reason for the intended revocation or suspension, and upon the correction of the defect within 15 days following receipt of said notice, no revocation or suspension shall take effect for the first offense.
Upon a subsequent offense which shall be defined to be an offense occurring within 120 days of the preceding offense, the Town Manager shall suspend the permit of compliance and shall notify the permit holder at the restaurant's address. The period of suspension shall be for 10 days. If the holder of a permit commits five offenses with a twelve-month period, the permit of compliance shall be revoked by the Town Manager, and notice of such revocation shall be given to the permit holder as provided herein.
Any permit holder may appeal the decision of the Town Manager to revoke or suspend the permit of compliance to the Town Commissioners. Such appeal shall be in writing, setting forth the reasons for the appeal, and shall be filed with the Town Manager by certified mail, with return receipt requested, together with an appeal processing fee of $250 within 10 days after receipt of the notice from the Town Manager suspending the permit of compliance. Upon receipt of the notice of appeal, the Commissioners shall fix a time and a place for a public hearing of the appeal, with said time for the hearing of the appeal to be not more than 30 days following receipt thereof.
The hearing shall be conducted by the Commissioners and a record of the hearing shall be made and kept by the Commissioners. All testimony shall be recorded but need not be transcribed. The record shall include the evidence, the Commissioners' findings of fact, the Commissioners' decision and a brief statement of the reasons therefor. At said hearing, the permit holder shall be entitled to legal representation and to present witnesses.
The filing of an appeal by the permit holder shall operate as a stay of the determination of the Town Manager to revoke or suspend the permit of compliance. However, if the appeal is withdrawn or if the suspension is upheld, the period of suspension shall commence on the anniversary date of the original suspension. For example, if a license is suspended commencing July 1, 1991, and because of an appeal a stay occurs and the issue is not finally resolved until December 1991 the permit of suspension will commence July 1, 1992.
It shall be illegal for any restaurant to modify its floor plan, seating arrangement, and/or the location and number and sizes of bar areas and permanent seated dining areas from the plans submitted to the Town pursuant to the provisions of this chapter without a public hearing and the issuance of a certificate of compliance, except that a floor plan may be modified without a hearing with the approval of the Town Manager or his designee, if they determine that the modified floor plan does not result in an increase in the maximum occupancy permitted by the State Fire Marshal for the seated arrangement identified. The Town Manager or his designee shall inspect all restaurants at least annually to insure compliance with this chapter.
[Amended 2-12-1994 by Ord. No. 288; 3-19-1994 by Ord. No. 291]
Should the Town Manager deny a request to modify a floor plan, the applicant may appeal his decision to the Commissioners who shall schedule a hearing of said appeal within 45 days. The issue on appeal shall be whether the proposed modified floor plan violated the provisions of this chapter or results in an increase in the size of the bar area.
Violation of any of the provisions of this chapter shall be punishable by a fine of not less than $100 nor more than $200 for each offense, exclusion of the court cost of prosecution which costs shall be paid by the owner, operator or lessee of the establishment in violation of this chapter. For the purpose of this chapter, a separate offense shall be deemed to be committed on each day during or on which a violation occurs or continues after receipt of notice of violation.
Each application for a permit of compliance shall be accompanied by a fee payable to the Town in the amount of $500.
No new application shall be acted upon by the Commissioners if within a six-month period immediately preceding the filing of the new application they have rendered a decision regarding the same application. However, this limitation shall not be applicable if the Commissioners shall find that the facts and circumstances existing at the time of their prior decision have undergone a substantial change justifying the Commissioners' reconsideration.
The owner or licensee of any restaurant subject to the provisions of this chapter shall notify the Town Manager prior to requesting a variance from the Delaware Alcohol Beverage Control Commission with respect to a liquor license.