ORDINANCE No. 182870 AS AMENDED

*Amend regulations for Sidewalk Cafes (Ordinance; amend Code Section 17.24.020 Figure 2 and Code Chapter 17.25)

The City of Portland ordains:

Section 1. The Council finds:

1.  Title 17.25, Sidewalk Cafes of Portland City Code authorizes restaurants to place tables and chairs within the sidewalk area outside of their businesses.

2.  A 34 member advisory committee was formed in September 2008 of business, restaurant, neighborhood, pedestrian, and disabled interest groups, as well as relevant City bureaus. The committee concluded in February 2009. The committee was assigned to review the current Sidewalk Café Permit Program and make recommendations to improve the program for all users of the City’s sidewalks. The purposes of the code changes are to enact the committee’s majority recommendations.

3.  Notice of the proposed changes, invitation to the open houses and to participate with the online survey were sent to all restaurants within the City. Notices were also sent to all neighborhood and business associations.

4.  Two open house events were held on January 26, 2009, one morning and one evening event. The draft recommendations of the advisory committee were presented and staff from the Bureau of Transportation answered questions and discussed the proposals. Attendees were asked to complete a survey seeking comments on the recommendations.

5.  An online survey was opened on January 1, 2009 and closed on February 10, 2009. Materials displayed at the open house events, in addition to records of the advisory committee’s meetings were on the website and participants were invited to complete the survey after reviewing the website materials.

6.  A total of thirty seven surveys were submitted; eighteen at the open house events and nineteen online.

7.  Modifications were made to the proposals to address the survey results.

NOW, THEREFORE, the Council directs:

a. Amend Figure 2 of Section 17.24.020 as set forth in Exhibit A of this Ordinance.

b. Amend City Code Chapter 17.25, Sidewalk Cafes as follows:

Sections:

17.25.010 Permit Required.

17.25.010 Permit Required.

Operating a Ssidewalk Ccafe on City sidewalks is unlawful without a permit. No person shall conduct a business as herein defined without first obtaining a permit from the Office of the City Engineer Bureau of Transportation and paying the fee therefor to the City TreasurerCity of Portland. It shall be unlawful for any person to operate a sidewalk cafe on any sidewalk within the City of Portland except as provided by this Chapter.

17.25.020 Definitions.

A. Operate a sSidewalk Ccafe. Operate a Ssidewalk Ccafe means serving food or beverage from an adjacent cafe or restaurant to patrons seated at tables located within the Ssidewalk area adjacent to the cafe or restaurant.

B. Sidewalk. Sidewalk means that portion of the street between the curb lines or the lateral lines of roadway and the adjacent property lines intended for use by pedestrians.

C. Commercial zone. Commercial zone means abutting property which is zoned C, Commercial, or E, Employment pursuant to Title 33, Planning and Zoning of this Code or any other zone which may be created as a successor zone to such existing commercial zones.

D. Transit Mall Mall area. Mall area means that area bounded by SW Broadway on the west, NW Irving on the north, SW Fourth Avenue on the east, and SW Madison Street on the south, but not including the street and sidewalk areas of SW Broadway and SW Fourth Avenue. Transit Mall means the entire length of 5th and 6th Avenues bounded by I-405 on the south and NW Irving on the north.

E. Clear Pedestrian Zone. The Clear Pedestrian Zone is the area reserved for travel. No café operations are allowed in this area and the area must meet City standards and be free of hazards as described in the Sidewalk Maintenance Program Policy & Operating Guidelines (TRN-1.11).

F. Area of Operation: Area of Operation means the area of Sidewalk established by the City Engineer and demarcated on the sidewalk according to the specifications of the City Engineer within which the business is allowed to Operate a Sidewalk Cafe.

G. Responsible Party: Responsible Party means an individual who works on-site at the business and is

responsible for overseeing the Operation of the Sidewalk Café, such as the restaurant manager or other person with similar responsibility.

H. Permittee: Permittee means the individual who applied for the sidewalk café permit and to whom the permit is issued. The Permittee bears ultimate responsibility for the operation of the Sidewalk Café.

I. Storage of Materials: Storage of Materials means any arrangement of furniture and materials that precludes operating a sidewalk café.

17.25.030 Application Fee and Permit Fee.

Fees for operating a sidewalk café are established by the City Engineer. Fees are assessed as prescribed in Section 17.24.010.

Each application for a sidewalk café permit shall be accompanied by an application fee. The application fee is nonrefundable and additional to the permit fee. The permit fee shall be collected prior to issuance of the permit. Permits renewed prior April 1st do not require an application fee.

17.25.040 Permit Application.

Application for a permit to operate a sidewalk cafe shall be made at the office of the City Engineer in a form deemed appropriate by the City Engineer. Such application shall include, but not be limited to, the following information:

A. Name and address of the applicant.

B. The expiration date of applicant’s business license.

C.B. A drawing showing the width of the applicant’s cafe or restaurant facing the sidewalk indicating the area requested to be used, location of doorways, and the width of sidewalk (distance from curb to building face), location of trees wells, parking meters, bus shelter, sidewalk benches, tree or trash receptacles, driveway (curb cut), or any other semi-permanent sidewalk obstruction.

D. A drawing showing the area requested for use as a sidewalk cafe with the table locations together with the area which will be occupied by the table and accompanying chairs, location and size of any features used to delineate the area such as portable planters, etc.

E.C. A color rendition in perspective for review by the Bureau of Planning Development Services shall be furnished upon request by the City Engineer.

FD.. A letter signed by the property owner, consenting to a sidewalk cafe adjacent to the property on which the restaurant is located.

E. A signed agreement between the Responsible Party and the City stating the Responsible Party understands all terms and conditions of the permit.

17.25.050 Permit Requirements.

No person shall operate any restaurant or cafe, to provide food or alcoholic liquor, on any public street or sidewalk unless such person has obtained a valid permit, to operate that business in such a manner, pursuant to this Chapter.

17.25.060 Location Rules and Review.

The applicant will be guided by the following in the drawing required in Section 17.25.040 D:

A. The area to be considered must have combination sidewalks which are 12 feet in width or greater. A sidewalk café shall only be allowed where the sidewalk is at least 8 feet wide. Café operations will be allowed only within the Area of Operation, which shall be established by the City Engineer.

The following table shows the minimum width of the Clear Pedestrian Zone for a given sidewalk width.

B. Sidewalk cafes proposed for areas which have a high density of pedestrian usage will be located such that there is a clear passageway of at least 6 feet. Sidewalk width is determined by City records. Adjustments may be made at the discretion of the City Engineer when field measurements conflict with City records.

C. Requests for sidewalk cafe permits within the "Mall area" will be considered only in the area adjacent to the curb and does not have bus loading or unloading areas. As a tool to allow compliance in areas with space conflicts a sidewalk café may be allowed pinch points that are less than the required Clear Pedestrian Zone minimum width. At a pinch point, the Clear Pedestrian Zone minimum width may be reduced by 6 inches for a length of no more than 2 feet. Pinch points must be at least 4 feet from adjacent pinch points. Pinch points are to be used at the discretion of the City Engineer.

D. The approved location shall be established by the City Engineer. The Clear Pedestrian Zone shall be free of all obstructions, permanent and temporary. This includes objects such as posts, signs, street lights, fire hydrants, bicycle racks, bicycles utilizing bicycle racks, vegetation, trees, tree-wells, planters, literature and news racks, parking meters, bus shelters, benches, tables, chairs, umbrellas, heaters, and waste receptacles.

E. Obstructions controlled by the café or property owner that extend into the Clear Pedestrian Zone shall be at least 7 feet above the sidewalk surface within the Clear Pedestrian Zone.

F. Curbside seating may be allowed, subject to approval, and must allow a 2 foot buffer from the curb.

Loading zones, bus stops, adjacent travel lanes or other conditions may prohibit curbside seating. The 2 foot buffer may be waived at the Bureau of Transportation’s discretion when seating is adjacent to bike corrals or no-parking zones.

G. Within the Clear Pedestrian Zone there shall also be a continuous, straight passage at least 2 feet in width, known as the clear visual zone, to provide pedestrians with a clear visual indication of the direction and location of the Clear Pedestrian Zone. The Clear Pedestrian Zone is allowed to meander to navigate obstructions, but its ability to do so is limited by the clear visual zone.

H. To ensure compliance with the Americans with Disabilities Act, there shall be a continuous passage at least 4 feet in width with a maximum 2% pavement cross slope within the Clear Pedestrian Zone.

I. The approved Area of Operation shall be established by the City Engineer.

J. Within the Transit Mall, additional criteria regarding Clear Pedestrian Zone minimum widths may be applied per the City Engineer’s discretion.

17.25.070 Liability and Insurance.

A signed statement that the permittee shall hold harmless the City of Portland, its officers and employees, and shall indemnify the City of Portland, its officers and employees for any claims for damages to property or injury to persons which may be occasioned by any activity carried on under the terms of the permit. Permittee shall furnish and maintain such public liability and property damages insurance as will protect permittee and City from all claims for damage to property or bodily injury, including death, which may arise from operations under the permit or in connection therewith. Such insurance shall provide coverage of not less than $1,000,000 (one million dollars). Such insurance shall be without prejudice to coverage otherwise existing therein, and shall name as additional insured the City of Portland, its officers and employees, the property owner, and shall further provide that the policy shall not terminate or be canceled prior to the completion of the contract without 30 days written notice to the City of Portland Bureau of Transportation, 1120 SW Fifth Avenue, Room 825. A signed statement that the permittee shall hold harmless the City of Portland, its officers and employees, and shall indemnify the City of Portland, its officers and employees for any claims for damages to property or injury to persons which may be occasioned by any activity carried on under the terms of the permit. Permittee shall furnish and maintain such public liability, food products liability, and property damages insurance as will protect permittee and City from all claims for damage to property or bodily injury, including death, which may arise from operations under the permit or in connection therewith. Such insurance shall provide coverage of not less than $100,000 for bodily injury for each person, $300,000 for each occurrence and not less than $300,000 for property damage per occurrence. Such insurance shall be without prejudice to coverage otherwise existing therein, and shall name as additional insures the City of Portland, its officers and employees, the property owner, and shall further provide that the policy shall not terminate or be canceled prior to the completion of the contract without 30 days written notice to the Auditor of the City of Portland.

17.25.080 Form and Conditions of Permit.

The permit issued shall be in a form deemed suitable by the City Engineer. In addition to naming the permittee name of the business and other information deemed appropriate by the City Engineer, the permit shall contain the following conditions:

A. Each permit issued shall terminate December 31st of the year in which issued.

B. The permit issued shall be personal to the Ppermittee only and is not transferable in any manner.

C. The permit may be suspended by the City Engineer when an ordinance providing for a "community event" shall so provide.

D. The permit is specifically limited to the approved Area of Operationin the area shown on the "Exhibit" prepared by the City Engineer and attached or made part of the permit.

E. The permittee Responsible Party shall use positive action to assure that its use of the sidewalk in no way interferes with or embarrasses sidewalk users or limits their free and unobstructed passage.

F. The sidewalk and all things placed thereon shall at all times be maintained in a clean and attractive condition;. and at such times that the permittee is not utilizing the sidewalk as authorized, all things shall be removed therefrom. If throwaway utensils, cups, and plates, etc., are used, tTrash containers may will be provided on site for use by the cafe patrons.

G. The permittee shall notify the City Engineer when operation of the sidewalk cafe begins. The Permit shall be posted in a conspicuous place near the main entrance visible from the sidewalk at all times.

H. Storage of Materials shall be prohibited. All furniture and materials shall be removed within a period of 10 days from the right-of-way when not in use. Removal of furniture may be required, on a case by case basis, outside of the business’ hours of operation if determined necessary for safety or other reasons at the discretion of the City Engineer. The Portland Police Bureau or the Office of Neighborhood Involvement may provide recommendations for the consideration by the City Engineer.

I. Responsible Party shall notify the Bureau of Transportation of any changes to the contact information provided in the City /Responsible Party Agreement.

J. Outdoor cooking shall be prohibited.

17.25.090 Denial, Revocation or Suspension of Permit.

A. The City Engineer may deny, revoke, or suspend the permit for any sidewalk cafe authorized in the City of Portland if it is found:

1.  That the provisions of this Chapter have been violated.

2. Any necessary health permit has been suspended, revoked, or canceled;

23. The Ppermittee does not have insurance which is correct and effective in the minimum amount prescribed in Section 17.25.070.

B. Upon denial or revocation, the City Engineer shall give notice of such action to the applicant or permitteeResponsible Party and Permittee in writing stating the action which has been taken and the reason therefor. If the action of the City Engineer is based upon Subsection A 2 and 3 of this Section, tThe action shall be effective upon giving such notice to the permitteeResponsible Party, otherwise, such notice shall become effective within 10 days unless appealed to the City Council by filing a written notice of appeal with the City Auditor. Any denial or revocation effective immediately may also be appealed to the City Engineer to the Council by such filing within 10 days.

17.25.100 Appeal.

Any Applicant aggrieved by an Administrator's determination may appeal that determination to the Code Hearings Officer as provided in Chapter 22.10 of this Code. Notwithstanding any other provisions of this Code, there shall be a non-refundable fee of $250 for any appeal pursuant to this subsection. Such fee must accompany any such appeal and no such appeal shall be considered filed or received until such fee is paid in full. The Auditor shall place the appeal on the Council Calendar at the first convenient opportunity therefor and shall notify the City Engineer thereof. At the hearing upon appeal, the Council shall hear all witness including the City Engineer, or his representative who shall state the grounds for his action, and the applicant or person whose permit has been revoked or suspended may supply testimony in writing by witness or otherwise and may question witnesses on his own behalf or on behalf of the City. The Council shall hear and determine the appeal, and the decision of the Council shall be final and effective immediately.

Section 2. The Council declares that an emergency exists to allow the Bureau of Transportation to start the 2009 permitting year and align these changes with the new fee structure effective July 1, 2009; therefore, this Ordinance shall be in full force and effect from and after its passage by the Council.

Passed by the Council, June 03, 2009  LaVonne Griffin-Valade

 Auditor of the City of Portland

Mayor Sam Adams  By /s/ Susan Parsons

Prepared by: Rich Eisenhauer:slg

Date Prepared. May 14, 2009  Deputy  

BACKING SHEET INFORMATION

AGENDA NO. 767-2009

ORDINANCE/RESOLUTION/COUNCIL DOCUMENT NO. 182870 AS AMENDED