Lazaro Aleman
ECB Publishing, Inc.
City officials are set to take up an ordinance on March 6 that would allow downtown eateries to serve alcoholic beverages on the sidewalk outside the establishments. The ordinance essentially tweaks the 2016 ordinance that permits such places to have outdoor seating.
City officials discussed the proposed ordinance earlier this month and indicated that they were ready to approve it. The question, however, is whether they will implement it once approved. Implementation, they say, will depend on whether downtown merchants comply with the current ordinance.
The discussion that the council held on Tuesday evening, Feb. 6, proceeded on dual tracks. One was whether to tweak the existing ordinance to allow alcohol consumption on the sidewalk, which city officials believe will help spur economic development activity. The other was what to do about the fact that downtown merchants are currently not complying with the requirements of the sidewalk ordinance, putting them and the city at risk of liability.
City Attorney Bruce Leinback initiated the discussion, noting that the change to allow alcohol to be served on the sidewalk was doable. It required, he said, carving out an exception to the existing ordinance to permit restaurants that serve food to serve alcohol outdoor.
Councilwoman Julie Conley, however, mentioned the elephant in the room.
“I like the concept of being able to serve alcohol outside,” Conley said. “But I don't like the idea of passing another ordinance if we're not going to enforce it. We've got to have the political will to say, if we're going to do it, we've got to enforce the rules.”
Leinback concurred.
“There is a liability issue out there right now,” he said, referring to the merchants who are displaying wares and featuring tables and seats outside their establishments without benefit of the required permit or liability insurance.
City Manager Steve Wingate took it a step further. He said that following the January council meeting, where the issue had come up, he and Joe Rosmini had approached the respective businesses, explained the situation to the owners, and offered to help them complete the paperwork if necessary. But so far, he said, nothing had come of their effort.
“Not one person is complying voluntarily with our rules,” Wingate said. “I need direction from you if you want me to proceed with orders.”
Wingate said if the council instructed him, he would mail certified letters to the affected businesses, giving each 30 days to comply with the ordinance or remove their outdoor seating and wares from the sidewalk.
City officials are not a little frustrated that their efforts to spur economic development activity in the downtown district have being spurned, to the degree that the merchants are taking advantage of the ordinance's generosity but not complying with its requirements insofar as acquiring a sidewalk permit or $300,000 worth of liability insurance.
They point out that prior to passage of the ordinance, state law specifically prohibited the placement of wares and seating on public sidewalks, a prohibition that the ordinance had cured. Yet the merchants refuse to cooperate and acquire the required permit and liability insurance, putting both the businesses and the city at risk of liability, officials say.
Leinback underscored the problem, pointing out that in today's litigious society, the current situation opens the city and merchants to a lawsuit should someone injured his or herself on the sidewalk as a consequence of the various objects on the sidewalk. Never mind that some of the seating was obstructing passage in some instances, a violation of the Americans with Disabilities Act (ADA).
The bottom line, Leinback said, was that the city was responsible for the sidewalk if an accident should happen.
“More than likely, they (injured persons) are going to go after the city, not the business owner,” he said. “The ordinance is a way for people to have these things on the sidewalk legally.”
Avera agreed.
“What bothers me is that some of them are not even ADA compliant,” he said.
He offered that the intent of the proposed alcohol consumption ordinance was to act as “a carrot”, or incentive, to get the merchants to comply, as opposed to using the stick of enforcement. If the carrot didn't work, however, perhaps the stick was warranted, he said.
The other council members didn't disagreed.
“I don't understand what is so onerous about getting the sidewalk permit,” Conley said, adding that she had personally visited with some of the merchants and offered to help them with the paperwork and even so she had had not one taker.
Wingate reiterated his request.
“Should we give them 30 days to comply and if they don't comply, the materials will be removed?” he asked.
In the back and forth of the discussion, Wingate's question appeared to get lost, but ultimately, the council seemed to give him the nod to proceed with the mailing of the certified letter. The council also instructed Leinback to proceed with the drafting of the alcohol consumption ordinance and have it ready for consideration on March 6. At the same time, the council indicated that even if it adopted the ordinance, it could well hold its implementation in abeyance, pending the merchants' compliance with the sidewalk ordinance.
City officials passed the sidewalk ordinance in October 2016 and revisited it three months later, at which time they waived the annual $25 permit fee for a year in light of the protest and confusion that the measure generated. City officials also vowed at the time to do a better job of educating the public about the benefits and requirements of the ordinance.
At the time, city officials reiterated the importance of establishing minimum standards to ensure that the city wouldn’t be liable or cited for ADA violations. Hence, the requirements that merchandise displays could not exceed 60 percent of a building’s sidewalk frontage, must meet ADA standards, and be less than 24 inches tall and no higher than five feet, among other stipulations.
The ordinance also dictated that tables and seating couldn't occupy more than 80 percent of a building’s sidewalk frontage, couldn't impede pedestrian traffic, and must be maintained in safe condition. Finally, it required merchants to maintain a minimum of $300,000 worth of liability insurance.
Permit holders must also indemnify the city and its representatives of any and all liability that may arise from a business’s placement of permitted items on sidewalks.
The annual permit went into effect on Jan. 1, 2017, with the city's expressed intent at that time to begin enforcement against noncompliant businesses on March 31, 2017.
ECB Photo By Laz Aleman, Feb. 21, 2018
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Restaurants in the downtown area were quick to take advantage of outdoor seating once permitted, but city officials say the businesses are not abiding by the requirements of the ordinance.
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