New issues arise with the proposed sidewalk dining ordinance

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Under the proposed new sidewalk dining ordinance, would the above type of sidewalk consumption of non-alcoholic food and beverages not be allowed anymore unless the business got a permit? In the second paragraph of the ordinance, there is a sentence that reads:

“Similarly, and as provided by chapter 14, article V of this code, a purveyor of food and beverages on premises located in such districts who is not a liquor licensee may, on an annual basis, apply for a permit to use such an area for the sale and service of food and beverages other than alcoholic beverages.”

Would it matter if customers just carry out their purchases for consumption on the sidewalk, but the establishment’s wait-staff don’t sell or service on the sidewalk?

Also, in the Nfld News story, Outdoor dining passes first round with council, Victor Summa raised other issues at Monday’s Council mtg:

Speaking before the council Monday, Summa wondered why the proposal didn’t include the word “sidewalk,” requires a landlord to consent if their tenant takes advantage of the ordinance, and asks business owners to carry more than $1 million in insurance.

See Pages 36-40 of the May 5 ouncil Agenda Packet (PDF) or the plain text here:

City Council Meeting Date: May 5, 2008
REGULAR
ITEM #: 12
Ordinance #878

ITEM: First Reading Approving Ordinance #878 Amending Chapter 6: Outdoor Sales and Service (Outdoor Drinking) and Amending Chapter 14 Outdoor Food and Beverage Service (Outdoor Dining).

ACTION REQUESTED:

Proposed Motion For Consideration: ____________Motion ___________Second

The City Council of the City of Northfield hereby approves Ordinance #878, which will amend Chapter 6 and Chapter 14 of the Municipal Code and provide for Outdoor Sales and Service and Outdoor Food and Beverage Service

SUMMARY:

The City Council is being asked to approve Ordinance No.878, which will allow outdoor dining and drinking on sidewalks located in the C-1 and C-2 zoning districts of the City of Northfield. The Council has reviewed this proposed ordinance at the Council workshop meetings of February 11, 2008, and March 24, 2008.

At the March 24th meeting of the City Council, the Council asked that the City Attorney research the ability of the City to restrict persons who are sitting at an outdoor dining or drinking location from smoking. The City Attorney has determined that Section 114.413 Subdivision 4 provides for the authority of the City to restrict smoking in these outdoor dining and drinking areas.

The Council was also interested in knowing what the implication of this outdoor dining and drinking ordinance has related to the Defeat of Jesse James Days activities. The ordinance has been written such that business owners who have an outdoor dining and drinking permit are also required to obtain a permit from the Defeat of Jesses James organization to be able to conduct outdoor dining or drinking business during the Jesse James Days event.

The Northfield Downtown Development Corporation has coordinated a review of the ordinance by local stakeholders and they have suggested that the requirement to have a barricade for a business that is only involved in outdoor dining not be applicable. The ordinance has been revised to reflect this suggestion from the NDDC.

A copy of the proposed ordinance is attached to this Staff report for review by the City Council. Staff recommends that the City Council approve this ordinance on first reading.

SUBMITTED BY: Brian P. O’Connell, Community Development Director

ATTACHMENTS:

1. Ordinance No. 878
ORDINANCE NO. 878
AN ORDINANCE AMENDING NORTHFIELD CODE CHAPTER 6, ALCOHOLIC
BEVERAGES, ARTICLE II, RETAILERS, DIVISION 2, LICENSE, BY ADDING NEW
SEC. 6-70, TEMPORARY EXPANSION OF LICENSED PREMISES; OUTDOOR
SALES AND SERVICE, AND AMENDING NORTHFIELD CODE CHAPTER 14,
BUSINESSES, BY ADDING NEW ARTICLE V, OUTDOOR FOOD AND BEVERAGE
SERVICE.
THE CITY COUNCIL OF THE CITY OF NORTHFIELD, MINNESOTA, DOES
ORDAIN THAT CHAPTER 6, ARTICLE II, DIVISION 2, SEC. 6-70, AND CHAPTER
14, ARTICLE V, AS FOLLOWS, ARE HEREBY ADOPTED AND ADDED TO THE
NORTHFIELD CODE OF ORDINANCES (new material is underlined):
Chapter 6
ALCOHOLIC BEVERAGES
Article II. Retailers
Division 2. License
Sec. 6-70. Temporary Expansion of Licensed Premises; Outdoor Sales and Service. The purpose of this section is to allow temporary expansion of the licensed premises of a liquor licensee, to temporarily include limited outdoor areas directly adjacent to and contiguous with the permanently licensed premises, subject to such conditions as the council determines will protect the public health, safety and welfare. The city council finds that allowing outdoor sales and service in the downtown commercial areas is beneficial to the creation of a vibrant and prosperous business community so long as adequate review, controls and accountability are in place. Accordingly, both liquor licensees and purveyors of food and beverages who are not liquor licensees shall be entitled to apply for the benefits available under this section. Therefore, the holder of any retail liquor license for premises located in the C-1 or C-2 zoning districts of the city may, on an annual basis, apply for a permit for temporary expansion of its licensed premises, for an area directly adjacent to and contiguous with the permanently licensed premises.

Similarly, and as provided by chapter 14, article V of this code, a purveyor of food and beverages on premises located in such districts who is not a liquor licensee may, on an annual basis, apply for a permit to use such an area for the sale and service of food and beverages other than alcoholic beverages. The city council may grant such a permit on the terms and conditions specified in this section and such other terms and conditions as the city council may determine are necessary or advisable to protect the public health, safety and welfare. Such a permit shall authorize use of any temporary expansion area on particular days, dates and times and shall be valid for a period of time as specified in the permit, not to exceed one year. If approved by the city council, a temporary expansion area may include defined areas on public property including public sidewalks. Application for a permit for temporary expansion of a licensed premises or other unlicensed premises shall be subject to the following requirements and procedures.

(a) Application. Application for a permit for temporary expansion of a licensed premises or other premises shall be made on a form provided by the city and shall contain the following information and such other information as the city may require from time to time:

(1) The names, addresses and telephone numbers of the license holder and of all managers of the licensed establishment or of the owner and manager of an unlicensed premises.

(2) A specific description and diagram of the area in which the temporary expansion activity is to occur. The description and diagram must include location, dimensions, barriers proposed to be used, ingress and egress arrangements, seating capacity, and other pertinent information.

(3) Written consent of the owner of the expansion area or of a person with lawful responsibility for the expansion area, if the owner is someone other than the licensee or business owner.

(4) The purpose for which the temporary expansion is sought, a description of planned activities, including food and beverage service, entertainment, if any, security plans (including lighting, sanitation, liquor control, etc.), and days and hours of operation including beginning and ending dates.

(5) Proof that any necessary auxiliary permits have been obtained.

(6) A detailed description of the planned staffing of the temporary expansion area during hours of operation, and methods the licensee will use to ensure that consumption of alcoholic beverages is restricted to the licensed premises and the temporary expansion area and that alcoholic beverages are not removed from those areas.

(7) Such other information as the city may deem necessary.

(b) Fees. Each application shall be accompanied by an application fee in such amount as may be determined by the city council by resolution from time to time.

(c) Review. Applications shall be submitted to the community development department and shall be reviewed by such staff persons as may be appropriate in the circumstances, including the chief of police in all applications which involve the outdoor sale of liquor. Review of applications shall include consideration of all pertinent building code, fire code and other life safety issues, applicable zoning ordinances, history of the licensee with regard to maintaining order on the licensed premises and complying with applicable laws, potential impact of proposed outdoor service on adjoining properties in terms of light, noise and liquor control, and other considerations.

(d ) Conditions. Approval of an application may be made subject to any appropriate restrictions or conditions, which may vary from establishment to establishment depending on the circumstances. At a minimum, the following restrictions and conditions shall apply:

(1) A temporary expansion area must be compact and contiguous to the permanently licensed premises and must be contained by approved physical enclosure devices. The enclosure requirement may be waived if no alcoholic beverages will be served in the area. An expansion area located on public property shall not unreasonably impede visibility of or access to a neighboring premises or business without permission from the neighboring premises or business owner.

(2) Hours of operation shall be limited to between 8:00 a.m. and 10:00 p.m., subject to other limitations imposed by law and subject to any greater restrictions which the city council may determine should apply to a temporary expansion area due to its particular circumstances.

(3) Days or dates of operation shall be as specified in the permit and no permit shall be valid for more than one year.

(4) Service of alcoholic beverages and other food and beverages shall be only at tables and limited to the approved seating capacity in a temporary expansion area, and food service shall be available in the temporary expansion area during all hours when liquor is sold.

(5) The city council may specify the type of beverage containers which may be used in a temporary expansion area, may require a specific type and number of refuse containers to be provided within the area, and may require sanitary facilities in addition to the facilities located within the permanent premises.

(6) An approved temporary barrier at least 36 inches in height shall be in place between the temporary expansion area and any other public or private property during all hours of operation, provided that the city council may require a higher and more secure barrier depending on the circumstances. This requirement may be waived if no alcoholic beverages will be served in the expansion area.

(7) The city council may require that access to and egress from a temporary expansion area be only through a door connecting it to the permanently licensed premises or to other property controlled by the licensee.

(8) The licensee shall have submitted adequate plans addressing liquor control and other public safety concerns and shall at all times comply with all such plans which have been approved by the city in issuing a permit under this section.

(9) If the temporary expansion area includes a public sidewalk or other walkway, at least 3 ½ feet of walkway must be maintained outside the temporary expansion area for barrier-free (including wheelchair accessible) pedestrian traffic.

(10) All temporary barriers, tables, chairs, and other property of the licensee shall be removed from any public property within a temporary expansion area, or shall be stored in some defined and secure area approved by the city, at all times other than hours of operation.

(11) The licensee shall be responsible for picking up trash and litter, whether generated by the operation of the temporary expansion area or not, within the temporary expansion area and within a reasonable distance (a minimum of 20 feet) from the temporary expansion area.

(12) All applicable liquor laws shall be faithfully observed by the licensee and the licensee’s employees.

(13) No smoking, as defined by Minnesota Statutes Section 144.413, Subd. 4, shall be allowed within a temporary expansion area on public property.

(14) The licensee or owner shall have secured any other permit or license which may be required for the use, area, and period of time proposed.

(15) The council may prohibit or may authorize entertainment to be conducted in an outdoor area, in the discretion of the council, and may restrict any authorized entertainment as necessary or desirable for the protection of the repose and welfare of the public and adjoining property owners.

(16) The licensee shall maintain commercial general liability insurance expressly covering any temporary expansion area, with a limit of not less than $1,200,000 each occurrence, and shall name the city of Northfield as an additional insured thereon. The licensee shall provide proof of such insurance to the city prior to issuance of any permit under this section and from time to time thereafter upon request of the city.

(17) By applying for and receiving a permit hereunder, the licensee or owner shall be deemed to have agreed to defend, indemnify and hold the city, its officers, employees and agents, harmless from any claims, damages, losses, costs and expenses which may arise as a result of the use of the temporary expansion area by the licensee, owner, and/or the licensee’s or owner’s employees, agents and customers. Specifically, but not by way of limitation, the licensee or owner shall

30 thoughts on “New issues arise with the proposed sidewalk dining ordinance”

  1. Griff, you’ve done a good service by making the proposed ordinance accessible here.

    I’m glad that the ordinance includes this condition: “(9) If the temporary expansion area includes a public sidewalk or other walkway, at least
    3 ½ feet of walkway must be maintained outside the temporary expansion area for barrier-free (including wheelchair accessible) pedestrian traffic.”

    It’s important that people still be able to move around on downtown sidewalks. I’m not sure 3.5 feet is enough, but perhaps it is.

  2. 3.5 feet, or 42 inches… seems like not enough.

    According to the American National Standard A117.1 – Providing Accessibility and Usability for Physically Handicapped People:

    If two wheelchairs are to pass each other, 60″ is required; and if space is needed for one wheelchair to pass an ambulatory person, 48″ is the minimum.

    I think that at a minimum, this should be 4 feet, and a strong recommendation to be 5 feet.

    Just my $0.02.

  3. Also, making the DJJD committee a “governing body” and giving them approval authority for all restaurants during that weekend is not a good idea.

    This puts them in a position that is not good, considering that they are an all volunteer organization. They would have to acquire additional resources to manage all of the requests, and this would draw resources away from their other goals. Also, we need to maintain the integrity of this (They have LOTS of integrity, but I am saying, it could look weird.) A restaurant owner wants to have outdoor dining during DJJD, and suddenly a large donation to the DJJD organization is made to support their efforts. There could be a perceived conflict of interest there.

    The city needs to manage its ordinances, not the DJJD committee.

    I would recommend the outdoor ordinance be set to run from Memorial Day weekend to Labor Day weekend each year, to avoid this issue all together.

    The way this is written, our church would have to obtain a permit to have our outdoor food booth with our quilt show approved by both the city and the DJJD committee for DJJD weekend. With this ordinance, the DJJD committee could effectively have a non-compete ban on the whole town regarding any type of outdoor food vending during the period. Your basically giving them complete control.

    Again, nothing against the DJJD folks. They do a great job. I just think this is a dangerous precedence turning our government over to a private group for a weekend.

    Again, another $0.02 for the discussion bank…

  4. This discussion got quiet really fast…

    Can anyone tell me when this is due to come up before the council for its second reading, or is it going back for re-work? As it stands, it seems to have a bunch of unanswered questions that need to be addressed.

  5. John Thomas: I think the concern about the DJJD approval of outdoor dining is that business owners will take unfair advantage of the DJJD festival without contributing. The DJJD committee pays for the trash removal, portable toilets and other amenities used by everybody’s customers. It is pretty complicated and expensive.

    I would not limit it Memorial Day to Labor Day, although I guess you could just except DJJD weekend. It is so nice to sit outside whenever the weather permits, we have enough winter– lets stretch out the good times when we can.

    I think we do have access issues because the sidewalks are not wide enough. Pedestrian only downtown, anyone? (Then we could stick out-door dining areas out 10 feet or so!) Lincoln Road in Miami is pretty neat.

  6. Jane,
    Your stated that it would be unfair for a local business to take advantage of DJJD weekend? Is it also unfair for a lot of those same places to loose customers to the weekend food vendors. Or is it unfair that they have to put up with the closed streets for a good portion of the week?
    My business often has to call for an extra dumpster dumping after that weekend. Do I ask for compensation? No.
    I think that it is unfair to put limitations on the local food establishments on the busiest weekend in the summer.
    Instead of making it harder for a local company it should be made easier. They should be encourage to take full advantage of the DJJD weekend. Many business owners and property owners downtown give financially but many give simply by consideration. They allow the art fair to set up and use property. They keep the walkways clean of trash etc…
    I guess you kinda struck a nerve on this one Jane.
    I think DJJD is the greatest single event in Northfield. But lets not forget that the local shops are here the other 360 ish days of the year.

  7. Jane, like it or not, make Division pedestrian only and you will kill business there. Pedestrian malls were big years ago, until cities saw how much they lost.
    You could eliminate a few parking spaces and do what Italy does by making some dining spots on the street (yes next to traffic on unbelievably narrow streets and bordered only by large plants in concrete planters).
    When it comes to planning principles versus customer demands, ‘You can’t always get what you want…’
    I’m not saying it’s a bad concept, it’s just not a workable one…so far.

  8. Kurt: I did not mean it as a restriction on business–rather, say that the 1st National bank decided to “take advantage” of the crowds at Jesse James days and lease out their sidewalk to a food vendor–unfairly competing with existing restaurants and also with the DJJD vendors–that is all that I would think should be restricted.

    I sincerely wish that we could make it possible for every business to make more money at DJJD–I don’t think that they should do it by leasing our their sidewalk.

    Business owners have reported to me that they find DJJD to be a difficult time to make oodles of money–the crowds can be difficult to manage, they may not be buying but they are all over inside the stores, and they want to use YOUR bathrooms, garbage, etc., even when they are not buying.

    I am hoping that the sidewalk ordinance would make it possible for area restaurants to expand their service area so that at DJJD they could make more money–I don’t think we should be restricting them at all for that weekend–we should make special adjustments so that they can get more out of it. I was really disagreeing with John Thomas who thought a Memorial Day to Labor Day would allow DJJD some leeway, and I think that we should be going as late into the fall as reasonable for sidewalk dining–including over DJJD.

  9. I think it is a real stretch to think that the sidewalk ordinance would help any business in downtown to make any additonal money during DJJD and here is why:

    1. Lets take Froggy’s for the first example. You may get some additional walk by traffic that you could seat, but DJJD has blocked off the street at HWY 3, thus limiting traffic. Parking? Forget about it. Its all gone, as everyone has parked and is heading to Bridge Square.

    2. Second example. Hogan Brothers & James Gang. Nope, sorry. DJJD has taken over the street for the reenactments, and the sidewalks for bleachers, as well as their bathrooms for all the crowds.

    3. Rubenstien may have a chance to use it, as they are right on the edge of the activity, but are also restricted due to the limited parking.

    Also, the example of the bank leasing out its space probably would not fly through the existing permitting process with the city, as that would be a non-conforming use of the property. They also have to have an existing food service wouldn’t they?

    I guess what I really want to discuss, is which establishments in town want to leverage this ordinance? This is going to cost money, and do they really think they can make a go of it?

    Also, what I do not see in here is a size restriction. It says that you have to leave 3.5 of walkway, but it does not control HOW MUCH of the public sidewalk you can use. Could you use this wiggle room to say… place outdoor dining from the back door of Froggys, all the way along the river wall to the foot bridge, as long as you left 3.5 for a walkway, or is it restricted to an extension of your property lines over the public right of way?

    Also, Item #10 allows for the city to loosely define secure. “Secure and defined” could be spun to leave the tables in place overnight and run a long cable with a lock through them to keep them from being stolen.

    I don’t know. I am not a legal expert, but a mere citizen. It does seem however that this is a start, and there are many areas that probably need further definition.

    Again, I am not against outside dining. What I am against is the ways some folks will take advantage of loopholes. I am also against turning over that control to someone other than the city.

  10. Could this ordinance then be used by DJJD to:

    1. Restrict Kool-Aid stands set up by kids that weekend?

    2. Restrict churches from food vending as fund-raisers that weekend?

    I am confused. Does DJJD get the ability to approve/deny ANY outdoor dining, anywhere in town that weekend…

    …The ordinance has been written such that business owners who have an outdoor dining and drinking permit are also required to obtain a permit
    from the Defeat of Jesses James organization to be able to conduct outdoor dining or drinking business during the Jesse James Days event.”

    Does this just pertain to those that obtain sidewalk dining permits, or does that go to folks that have a permit to serve on their enclosed decks or fenced in spaces, such as B&L, Georges, Froggy’s, Tavern, etc.

    I need to learn more.

  11. A few months back, in a Council Meeting or work session, the Mayor asked if this ordinance was designed to encourage or discourage outdoor dining. He posed it as a serious question.

    Generally speaking, most of us assume that those who come up with laws and rules to regulate and control our lives and activities are well meaning and filled full of good intentions. I think this assumption is erroneous and the faith which comes from it misplaced.

    Working together, accelerator and brakes determine speed in the direction you wish to go, based on your mental or paper map. Thus we navigate the obstacles and make progress or at least try to.

    The enabling and regulating functions of government are supposed to operate in a similar fashion. However, there comes a time when the outside observer (and the involved insider) sees the speed slow to almost a stop and notes that, over time, the regulating function has overwhelmed the enabling function. Result: outdoor dining ordinance, rental ordinance, building board of appeal (an attempt to ameliorate), no free wine on Girl’s Night Out, etc. etc. and the ongoing reputation of business-unfriendliness.

    In short, the outdoor dining ordinance is DESIGNED to discourage outdoor dining. If you can see that, then you may well experience that EUREKA moment that I am trying to show you.

  12. Thank you Norman. I did not realize it at all. Silly me, I thought it would be fun to be able to sit outside and eat my lunch on the few good days we sometimes have.

    We just do not have sidewalks that are wide enough to accomodate much outdoor dining–mores the pity.

  13. I took this photo of the sidewalk in front of the Loring Pasta Bar in June of 2006. The sidewalk is about the same width as on Division, with similar trees and bike racks and newspaper boxes. This could be Division Street! What’s not to like about it?

    IMG_2286

  14. Another PRIME example of Northfield being NON-FRIENDLY to business.

    Two years, and the impact of the ordinance is potentially make things worse, not better.

  15. Curious, really, how an ordinance intended to expand the range of sidewalk dining looks like it will have the opposite effect.

    In addition to the obvious downside for business owners, perhaps City Counselors should also have considered the costs to the city of adding regulation where none was needed (any complaints or problems with existing eating and drinking outside?) and adding to the administrative tasks of city staff.

  16. I agree Betsey.

    from the NDC blog:
    “Councilor Jim Pokorney came out strongly against such a move, however. He felt that the sidewalks belonged to the City and that they must be brought under control of the City. Councilor Pokorney went on to suggest that by adding more regulations, the City would in fact be facilitating business expansion. Councilors Davis, Denison and Vohs appeared to support Councilor Pokorney’s views and position. Mayor Lansing seemed to have concerns about it and Councilor Nelson clearly thought that it was a bad idea. I didn’t stay for the vote.”

    if the sidewalks belong to the city, maybe they start shoveling and sweeping mine. 😉

    How could the city screw this up? I see no opposition to this ordinance. This is a win-win situation. A chance for the council to show us they are not disfunctional . A chance to actually accomplish something. The ordinance was handed to them with the support of business. Dot your i’s and cross your t’s. instead, they dotted the ts and crossed our eyes.

    I believe it might be time for succession. Could Dundas annex downtown Northfield?

  17. Today’s Nfld News: Outdoor dining ordinance passes.

    Instead of last-minute changes and postponing a vote for at least two weeks, eating into the short outdoor dining season, City Administrator Al Roder suggested the council tweak the ordinance and use varying fees to discern between eateries that sell alcoholic beverages and those that don’t. Roder said by approving the ordinance, the city can regulate food and beverage service on its sidewalks, but charge a lower fee for establishments that don’t serve alcohol. Councilors agreed 5-1 to allow outdoor dining from 6 a.m. to 10 p.m., two hours earlier than previously approved. Councilor Arnie Nelson voted no.

  18. Anyone know how much it will cost GBM and Tiny’s to have food and tables on the sidewalk vs. establishments like the Rueb or Sprazzo who would serve alcohol?

  19. The discussion was so non-directed and jumping all over the place….probably because of the general problems with the written structure of the ordinance… but i believe that places who do NOT sell alcohol will still have to go through the application and permitting process, but will NOT pay a fee, as the alcohol sellers must.

    In general, a very biz unfriendly, messed up process, and why? Councilors should have the sense to not go on and on about who OWNs the sidewalks, and just figure out instead how Northfield is benefitted by the USE of the sidewalks.

    I’ll say it again, there is no “city” without the citizens; to constantly set “city” and citizens up in adversarial positions is just patently improper, if not stupid.

  20. So how am I supposed to race down the sidewalk on my bike if people are in my way sitting at tables eating???

  21. The NF eateries could just ignore the rules and process, set up tables and serve food outside – we didn’t see anything 😉 – this is how these things are handled in Europe. Throw a meal or two in for some Councilors and they will settle down. Ask forgiveness not permission.

  22. Nice idea – You should be Mayor Tracy !

    Of course, like Michael Jackson left the 5, to reach your destiny you will have to cut the other two triumviratata loose.

  23. The permit fee for sidewalk dining is on the City Council agenda tonight, Item 12, detailed on pages 31-35 of the meeting packet.

    I emailed Community Development Director Brian O’Connell in mid-June:

    Brian, I hope:

    # the application is simple/quick/easy
    # the license fee is cheap, ie, less than $25 for alcohol, less than $10 for non.

    Assuming it gets approved at the July 7th Council meeting, it’ll be Aug. before applications can be filed, processed and issued…. and then who knows how long before proprietors interested in the alcohol license get tables, chairs, chains/boundaries, train staff, etc etc.

    Why not charge no fees at all this first year since proprietors will have missed the months of May, June and July?

    Acting quickly now and not charging fees will encourage proprietors to try it out and it’ll give you and the Council more time to ascertain a fair fee for licenses.

    Looking at the packet, he’s giving the Council two options: 1) charge a fee yet this year ($65 for alcohol, $0 for non – his recommendation); or 2) no fees at all for now, since the ordinance is a temporary ordinance anyway and will have to be enacted next year.

    Kudos to Brian for the two options, both reasonable. I hope to attend tonight. I’ll argue for no fees at all for now.

    So there’s no need to get arrested or to stage a sit-out.

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