21I
1 ORDINANCE 2 -------------
3 An Ordinance amending Section 20-3.3(E) of the City of South Miami
4 Land Development Code concerning outdoor seating and dining
5 requirements for all commercial properties, except for properties in
6 the RO -Residential Office zoning district.
7
8 WHEREAS, several restaurants in the City of South Miami ("City") have
9 been having difficulty obtaining endorsements to their commercial liability policies
10 that would provide the City with advanced notice of cancellation of the policy; and
11
12 WHEREAS, the outdoor seating and dining ordinance needed to be updated
13 to provide the City with greater protection and control over the use of the City's
14 sidewalks by restaurants.
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16 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY
17 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
18
19 Section 1. Section 20-3.3(E) of the City of South Miami Land Development Code is
20 hereby amended to read as follows:
21
22 (E) Outdoor Seating/Diningfor All commercial Properties, exceptfor Properties in
23 the RO Residential Office Zoning District.
24
25 (1) An application for outdoor seating and dining or a sidewalk cafe, on private
26 property or on public rights-of-way must be filed with the Planning Department.
27 The application shall include a layout (site plan) of the location of all tables,
28 chairs (including number and type of chairs), benches, and other furniture;
29 pedestrian ingress and egress; location of refuse containers; location of approved
30 outdoor speakers; and other elements necessary to illustrate the proposed outdoor
31 seating/dining use and area (all drawings must be titled, indicate orientation, and
32 be at an acceptable scale). If applicable, the site plan must clearly indicate which
33 seats and tables are on private property and which are on the public right-of-way.
34 The City Manager shall require that an amended site plan be submitted in order to
35 address specific problems. The following definitions shall be applicable:
36 (a) Seating shall mean any type of chair or furniture used by customers
37 in the act of consuming beverages or food;
38 (b) Table any furniture which is used for the placement of food or
39 beverages.
40
41 The following words, terms and phrases, when used in this code, shall have the
42 meanings ascribed to them in this section, except where the context clearly
43 indicates a different meaning:
44
45 City means the City Manager unless stated otherwise in this ordinance.
46 City Manager means the city manager or the city manager's designee.
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Code compliance officer means the code compliance officers, or any other
authorized agent or employee of the city whose duty it is to assure compliance
with the City's code.
Menu board means a board allowing for the posting of a restaurant's menu and
fabricated in such a manner so as not to constitute a form of general advertising or
establishment identification.
Permittee means the recipient of an Outdoor Seating/Dining Permit under the
terms and provisions of this division.
Permit Year means the city's fiscal year that commences on October 1st and that
ends on September 30th of the following calendar year.
Restaurant for pumoses of this section only, means a food service establishment
that is maintained and operated as a place where food and/or beverages are
prepared and/or served and sold for consumption within the premises, or a
business establishment which has, as an ancillary or secondary use, a part thereof
where food and/or beverages are prepared and/or served and sold for consumption
within the premises.
Right-or-way means land in which a governmental body owns the fee title or has
an easement devoted to or required for use as a transportation facility including
sidewalks and streets.
Sandwich board sign shall have the same definition as set forth in section 20-
4.3(B) under the name "Sign, portable outdoor dining";
Seating means any type of chair or other furniture used by customers in the act of
sitting while consuming beverages or food.
Sidewalk means that portion of the right-of-way which is intended for use by
pedestrians and is located between the curb line or the lateral line of a street and
the adjacent property line.
Sidewalk cafe (cafe) means an outdoor seating and dining use located on a right-
of-way which is associated with a restaurant and is primarily characterized by
tables and chairs; may be shaded by awnings, canopies or umbrellas; and may
include such other sidewalk cafe furniture (as hereinafter defined) as permitted
and/or approved pursuant to this section.
Sidewalk cafe furniture means those nonpermanent fixtures, furnishings and
equipment associated with the operation of a sidewalk cafe and approved pursuant
to this section including, tables, chairs, seating, umbrellas, planters, heaters, fans,
rolling service stations, service carts, bussing stations, and menus and/or specials
boards.
Sign shall have the same meaning as provided for in Section 20-4.3 of this code.
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Street means that portion of a right-of-way improved, designed or ordinarily used
for vehicular traffic and/or parking.
Table means any furniture which is used for the placement of food or beverages.
(2) Sidewalk cafe or Outdoor seating/dining areas and uses of the public right-
of-way and/or any private property may be approved, denied, or approved with
conditions, modifications, safeguards, or stipulations appropriately and reasonably
related to the intent, purposes, standards, and requirements of the related
regulations by the City Manager. Such outdoor seating/dining permit shall not be
transferable in any manner and is strictly a conditional use permit, issued for a
period of one year, renewable annually via payment of the annual occupational
license fee, annual proof of compliance with the requirements of this ordinance,
including insurance and if applicable, payment of the per seat fee set forth below.
(3) The fee for Sidewalk cafes shall be charged annually for each outdoor seat
located on public rights-of-way and or any stand alone table top with no seating
which is used for consumption of beverages or food. The fees to be charged shall
be set forth in the City'S Schedule of Fees a resolution or ordinance to be adopted
by the City Commission. The permit fee shall be added to the annual
occupational license fee and the payment of all outstanding violation fees for the
main business. No Sidewalk cafe permit shall be issued while the applicant is
delinquent in the payment of any money owed to the City.
(4) The applicant shall provide the City with an indemnity agreement that is
acceptable to the City Manager and that provides for indemnification and
compliance with the City's insurance requirements. This agreement will include
specification of liability insurance provided. including the following:
(a) Commercial general liability insurance in the amount of$l,OOO,OOO.OO per
occurrence for bodily injury and property damage. The city must be
named as an additional insured on this policy, and an endorsement must be
issued as part of the policy reflecting compliance with this requirement.
(b) For sidewalk cafes which serve alcoholic beverages, liquor liability
insurance in the amount of $1 ,000,000.00 per occurrence for bodily injury
and property damage. The city must be named as an additional insured on
this policy, and an endorsement must be issued as part of the policy
reflecting compliance with this requirement.
(c) Workers' compensation and employers' liability as required by the state.
All policies must be issued by companies authorized to do business in the state
and rated B+:VI or better per Best's Key Rating Guide, latest edition who are not
surplus lines carriers and who are covered by the Florida Insurance Guaranty
Association. The City Manager may increase these insurance requirements
provided such requirements are applied to all paI1ies similarly situated.
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Proof of insurance shall be provided to the city as a requirement of the permit. If
such proof is a nonbinding certificate, the applicant's insurance agent and carrier
shall advise the City in writing, in a form acceptable to the City Manager execute
annually, an affidavit with the city verifying that the applicant on behalf of the
cafe has the required insurance. Such affidavit shall include the policy number,
company name and company contact information. City officials shall contact the
applicant's insurance company monthly to verify the existence and continuance of
such insurance. Unless the cafe provides the City with a binding certificate of
insurance and an endorsement to provide the City with at least 10 days advanced
notice of intent to cancel the policy, the cafe shall pay the City a monthly fee of
$25 to cover the cost to verify existence of coverage. Failure to comply with
these requirements shall be deemed to be operating without a valid permit and
shall cause an immediate suspension of the permit and the assessment of a daily
fee until the permit is revoked or the requirements are met.
(5) AIl Sidewalk cafe outdoor seating/dining use and area permit may be
revoked by the City Manager upon finding that one fB or more conditions of
these regulations have been violated, or that the Sidewalk cafe outdoor
seating/dining area and use and area is being operated in a manner which is
inconsistent with the approved site plan or constitutes a public nuisance, or in any
way constitutes a reasonable risk of injury to persons or damage to property or
potential liability to the City. A decision by the City Manager to revoke ~ permit
for failure to comply with the one or more conditions or regulations may be
appealed by the owner or operator to the City Commission. An appeal must be
filed with the City Clerk within thirty (30) days of receipt of written notice of the
City Manager's decision. An appeal of the City Manager's decision does not stay
the implementation of the City Manager's decision. The City Commission shall
hear and enter a decision on any appeal taken within sixty (60) days from the date
the appeal is filed. The City Manager's decision shall be in writing and indicate
what provisions of the City's code of ordinances have been violated and/or what
public nuisance or risk of potential liability to the City predicated the decision of
the City Manager.
(6) Outdoor seating/dining use and area A Sidewalk cafe permit may be
temporarily suspended by the city manager for public use/purpose, utility,
sidewalk or road repairs, emergency situations, or violations of provisions
contained herein. The length of suspension shall be determined by the city
manager as necessary. Removal of all street furniture and related obstructions
shall be the responsibility of the owner/operator of the outdoor seating/dining.
(7) A Sidewalk cafe permit Outdoor seating/dining use and area may be
temporarily expanded by the City Manager upon receipt of a written request
including a site plan during special events.
(8) A Sidewalk cafe permit Outdoor seating/dining area shall be kept in a neat
and orderly appearance and shall be kept free from refuse and debris. The
applicant shall be responsible for daily cleaning and sweeping of the Sidewalk
cafe Outdoor seating/dining area and for the cleanliness and maintenance of any
outdoor planters immediately adjacent to the outdoor seating/dining area.
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Cleaning shall include twice-monthly pressure cleaning or other appropriate
cleaning methods, as determined by the City. Use of city sidewalks for trash and
garbage removal shall be prohibited.
(9) A Sidewalk cafe Outdoor seating/dining use and area shall not interfere
with the free and unobstructed pedestrian or vehicular circulation of traffic, public
access to any street intersections, crosswalks, public seating areas and
conveniences, bus stops, alleys, service casements, handicap facilities, or access
to any other public, residential or commercial establishments. The width and
location of the sidewalk pedestrian passage through the Sidewalk cafe shall be as
follows:
a) If there is seating on one side of the sidewalk, a minimum of five
(5) feet of sidewalk must remain clear and unobstructed by outdoor seating
furniture and the maneuvering of chairs, and clear for pedestrian passage
including room for maneuvering of chairs;
b) If there is seating on two (2) sides of the sidewalk a minimum of
five (5) feet of sidewalk between the two (2) seating areas must remain
clear and unobstructed by outdoor seating furniture and the maneuvering of
chairs, and clear for pedestrian passage including room for maneuvering of
ehairs;
c) All outdoor furniture including but not limited to tables, chairs,
umbrellas, and outdoor planters shall be located a minimum of
eighteen (18) inches from the curb.
(10) A Sidewalk cafe Outdoor seating/dining area on the public rights-of-way
shall be open and unenclosed. No building structures of any kind shall be allowed
in and over any portion of the outdoor seating/dining area located on public
property, except by prior express written authority of the City Manager.
(11) Tables, chairs and all other furniture used in the operation of an outdoor
seating/dining area on the public rights-of-way shall not be anchored or restrained
in any manner. Individual table umbrellas, planters, or other such non-stationary
elements may be permitted within the outdoor seating/dining area and where
applicable, shall have a minimum clearance height of seven (7) feet above the
sidewalk.
(12) A Sidewalk cafe Outdoor seating/dining uses and area must apply for and
receive specific approval to provide amplified sound of any kind in the outdoor
seating area. In the event the City Manager determines that the amplified sound
constitutes a public nuisance the Ccity Mmanager shall impose additional
conditions; in the event of a second offense the City Manager shall revoke the
approval authorizing the use of amplified sound. Sound must be kept at a low
volume so as to not disturb neighboring businesses, residences, or to be audible in
neighboring residential districts. Plans for amplified sound must be submitted
with the site plan. Each establishment must sign an agreement in order to have
amplified music.
(13) A Sidewalk cafe Outdoor seating/dining use and area on public rights-of-
way shall be restricted to the length of the sidewalk or public right-of-way
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immediately fronting the Sidewalk cafe or other establishment unless expressly
authorized in writing by the City Manager. The utilization of space extending
beyond the subject property frontage onto the immediately adjacent property may
be authorized by the City Manager with the express written approval of the
adjacent storefront, however, the seats and chairs in this location may not almt
block the adjacent storefront windows may be authorized. This expansion is
subject to annual written consent provided by the property owners in front of
whose properties the outdoor seating/dining service would occur. The annual
written consent form shall be provided to the City and shall include an insurance
policy naming the City as co insured an additional insured and a hold harmless
clause in favor of the City.
(14) A Sidewalk cafe Outdoor seating/dining area shall be at the same elevation
as the adjoining sidewalk or public right-of-way unless expressly authorized in
writing by the City Manager.
(15) Carts and trays for serving food are permitted in the outdoor
seating/dining area but must comply with the provisions of Subsection 9(a) and
(b).
(16) The maximum number of outdoor seats shall not exceed eighty (80)
percent of the number of indoor seating, except for restaurants with indoor seating
of twenty-five (25) seats or less which may have outdoor seats not to exceed one
hundred (100) percent of the number of indoor seats.
(17) During the-operating hours 7:00 a.m. to closing all outdoor furniture must
be securely placed as shown on the approved site plan or as may be ordered by the
City Manager in writing. After closing operating hours, outdoor furniture must be
neatly stacked to a maximum height of five (5) feet without blocking the
sidewalk. A City approved cover may be required by the City Manager for
Cchairs left outside when stacked must be covered with a City approved cover.
(18) No person, property owner, lessee or restaurant shall allow provide or
permit outdoor seating/dining without a permit. Each day that outdoor
seating/dining or similar activity occurs without a permit or in violation of the site
plan, shall constitute a separate incident of violation and shall result in a---fi:ve
hundred dollar ($500.00) a day fine for each day of continued violation. The
continuing operation of a sidewalk cafe or any outdoor restaurant seating/dining
activity without a permit after the receipt of a violation notice from the City
Manager may result in the revocation of the restaurant occupational license
pursuant to Section 13-16 of the City Code.
(19) Any violation of the regulations and standards set forth in this section shall
constitute a separate incident of violation and shall result in a five hundred dollar
($500.00) a day fine for each day of continued violation. A subsequent violation
of any of the regulations and standards set forth in this ordinance shall result in a
fine for each day of such continued violation, or as set forth in the City'S schedule
of fees, whichever is greater. The continuing operation of an activity governed by
this ordinance without a permit after the receipt of a violation notice from the City
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Manager may result in the revocation of the occupational license of the person or
entity responsible, pursuant to Section 13-16 of the City Code.
(20) The City Manager or his/her designee may order all seats, tables, and
planters to be removed in the event of a pending storm, hurricane, or other
declared emergency.
(20) The City shall issue 24-hour warning notices for all non-life safety
violations of this ordinance which must be corrected with 24 hours of receipt of
such notice.
(21) Tables, chairs and other furniture on the side'.valk may be removed by the
city, and a reasonable fee charged for labor, transportation, and storage shall be
levied should the business fail to remove said items within thirty six (36) hours of
receipt of the city's notice to do so for any reason under this section. In the event
of a pending storm, hurricane or other declared emergency the City Manager may
reduce the thirty six (36) hour time frame.
(21) No warning notices shall be required prior to the issuance of a violation
for failure to have a permit or for life safety violations and/or life safety.
Sidewalk cafe site plan violations and such violations shall be corrected
immediately. Life safety violations are defined as those conditions which, in the
reasonable determination and judgment of the city manager, involve serious
danger and/or risk to the public health, safety or welfare (including, without
limitation, blocking pedestrian pathways and violations of the state accessibility
code for building construction). Life safety outdoor seating /dining site plan
violations are defined to include those instances where the permittee is operating
outside of the permitted outdoor seating/dining use area (as approved pursuant to
this code) such as where sidewalk cafe furniture is found outside the approved
boundaries of the outdoor seating/dining use site plan; but shall not be deemed to
include instances where a chair or chairs are temporarily moved outside the
approved boundaries of site plan by a sidewalk cafe patron(s) unless it remains in
such unauthorized location for more than 15 minutes.
(22) If city personnel finds a violation of this ordinance after a 24 hour warning
notice of such violation as been previously issued, then a notice of violation shall
be issued to the violator. No such warning notice is required for the failure to
have a valid permit or for :::life safety violations of this section and for life safety
outdoor seating/dining site plan violations, and a violation may be issued at any
time.
(23) The City Manager or his/her designee may order all furniture, including by
not limited to, seats, tables, and planters to be removed in the event of a pending
storm, hurricane, or other declared emergency.
(24) Tables, chairs and other furniture on the sidewalk may be removed by the
city, and a reasonable fee charged for labor, transportation, and storage as well as
a fine which shall be initially set at $250 and which shall be levied against the
person or entity who owns and/or controls such furniture should the responsible
Page 7 of8
1 person or entitiy fail to remove said items within thirty-six (36) hours of receipt of
2 the city's notice to do so for any reason under this section. In the event of a
3 pending storm, hurricane or other declared emergency the City Manager may
4 reduce the thirty-six (36) hour time frame. The city manager shall promulgate
5 and review, as needed, regulations regarding the storage and disposition of
6 sidewalk cafe furniture under this section.
7
8 Section 2. Codification. The provisions of this ordinance shall become and be made part
9 of the Code of Ordinances of the City of South Miami as amended; that the sections of this
10 ordinance may be renumbered or re-Iettered to accomplish such intention; and that the word
11 "ordinance" may be changed to "section" or other appropriate word.
12
13 Section 3. Severability. If any section, clause, sentence, or phrase of this ordinance is
14 for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding
15 shall not affect the validity of the remaining portions of this ordinance.
16
17 Section 4. Ordinances in Conflict. All ordinances or parts of ordinances and all
18 sections and parts of sections of ordinances in direct conflict herewith are hereby repealed.
19 However, it is not the intent of this section to repeal entire ordinances, or parts of ordinances,
20 that give the appearance of being in conflict when the two ordinances can be harmonized or
21 when only a portion of the ordinance in conflict needs to be repealed to harmonize the
22 ordinances. If the ordinance in conflict can be harmonized by amending its terms, it is hereby
23 amended to harmonize the two ordinances. Therefore, only that portion that needs to be repealed
24 to harmonize the two ordinances shall be repealed.
25
26 PASSED AND ENACTED this __ day of ,2014.
27
28 ATTEST: APPROVED:
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31 CITY CLERK MAYOR
32 1 st Reading
33 2nd Reading
34
35 READ AND APPROVED AS TO FORM: COMMISSION VOTE:
36 LANGUAGE, LEGALITY AND Mayor Stoddard:
37 EXECUTION THEREOF Vice Mayor Harris:
38 Commissioner Liebman:
39 Commissioner Welsh:
40 Commissioner Edmond:
41 CITY ATTORNEY
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