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Journal-World classified (published 02/24/2013)

(First published in the Lawrence Daily Journal-World
February 17, 2013)

ORDINANCE NO. 8831

AN ORDINANCE OF THE CITY
OF LAWRENCE, KANSAS, REPEALING EXISTING CHAPTER VI, ARTICLE 12 AND ENACTING, IN ITS PLACE,
CHAPTER VI, ARTICLE 12 OF
THE CODE OF THE CITY OF
LAWRENCE, KANSAS, 2011
EDITION, AND AMENDMENTS THERETO, PERTAINING TO SIDEWALK DINING.

BE IT ORDAINED BY THE
GOVERNING BODY OF THE
CITY OF LAWRENCE, KANSAS: SECTION 1. Existing
Chapter VI, Article 12, of the
Code of the City of Lawrence, Kansas, 2011 Edition,
and amendments thereto,
is hereby repealed in its entirety, it being the intent of
the Governing Body that
Section 2 of this Ordinance
supersede it. SECTION 2.
Chapter VI, Article 12, of the
Code of the City of Lawrence, Kansas, 2011 Edition,
and amendments thereto,
is hereby enacted: ARTICLE
12. SIDEWALK DINING
6-1201 PURPOSE. The Governing Body finds that, because it encourages a
pedestrian-oriented environment, because it creates a vibrant and visually
attractive streetscape, and
because it promotes and
stimulates commerce, it is
in the best interest of the
residents of the City of
Lawrence, Kansas, to permit, subject to regulation,
Sidewalk Dining. 6-1202
DEFINITIONS. The following
words, terms, and phrases,
when used in this Article,
shall, except where the
context clearly indicates
otherwise, have the following meanings: (a)
"Applicant" shall refer to a
Hospitality Establishment,
or a person authorized to
act in its behalf, that has
filed with the City Clerk an
application for a Sidewalk
Dining License. (b)
"Hospitality Establishment" shall mean any business, however organized,
that sells food, beverages,
or both for consumption by
patrons on the premises.
(c) "Licensee" shall mean
any Hospitality Establishment licensed by the City
under this Article to use a
Sidewalk for Sidewalk Dining. (d) "Sidewalk" shall
mean the City-owned right
of way or easement adjoining the property line of a
Hospitality Establishment.
(e) "Sidewalk Dining" shall
mean the consumption of
food, beverages, or both by
patrons of a Hospitality Establishment outdoors on a
specific area of a Sidewalk
set aside for that purpose.
6-1203 SIDEWALK DINING LICENSE REQUIRED. No Hospitality Establishment shall
permit Sidewalk Dining
without first obtaining a
Sidewalk Dining License.
6-1204 SIDEWALK DINING LICENSE FEE. The fee for a
Sidewalk Dining License
shall be $3.50 per square
foot per year. The fee shall
be considered to be in the
nature of a lease payment
for the commercial use of
the Sidewalk. The Sidewalk
Dining License fee shall be
pro-rated for the first partial year in which it is issued. The Sidewalk Dining
License Fee shall not be
pro-rated or refunded in
the case of suspension or
revocation of a Sidewalk
Dining License. 6-1205

SIDEWALK DINING LICENSE
APPLICATION. Application
for a Sidewalk Dining License shall be made to the
City Clerk on a form provided by the City Clerk for
that purpose. The Applicant
shall complete the form in
full and shall provide, at
the least, the following: (a)
The name of the Hospitality
Establishment to be licensed, including its e-mail
address, business address,
business telephone, and
mailing address. (b) If the
Hospitality Establishment
to be licensed is a corporation, partnership, or other
business organization, the
names, addresses, and
dates of birth of all officers,
directors, partners, or
members. (c) The name of
the manager of the Hospitality Establishment, his or
her telephone number,
mailing address, and e-mail
address. (d) Written permission of all owners of
record and all equitable
owners, if any, of the real
property upon which the
Hospitality Establishment
is located that would be offering Sidewalk Dining. (e)
Written permission from all
property owners and all
tenants, if any, of properties adjacent to the Hospitality Establishment seeking the Sidewalk Dining License, declaring that said
owners and tenants, if any,
have no objection to the issuance of the Sidewalk Dining License. (f) Remittance
of the Sidewalk Dining License Fee in the amount established at Section 6-1204.
(g) A copy of a Certificate
of Insurance, in accordance
with Section 6-1209.3, establishing that the Applicant has procured appropriate liability insurance
and that said insurance is
current. (h) A copy of the
Applicant's Kansas Food
Establishment License. (i) A
copy of the Applicant's
State of Kansas sales and
liquor tax reports, if any,
for the preceding twelve
months. (j) An executed
Right of Way Agreement
between the City and the
owner(s) of the real property upon which the Hospitality Establishment, seeking the Sidewalk Dining License, is located. (k) A
statement that the Applicant has submitted a Site
Plan to the
Lawrence-Douglas County
Metropolitan Planning Office for approval. (l) The
Applicant's signature and
the date. 6-1206 SIDEWALK
DINING LICENSE ISSUANCE;
DENIAL (a) The City Clerk
shall review each application for a Sidewalk Dining
License. Within a reasonable time thereafter, the City
Clerk shall submit the application to the Governing
Body for approval unless:
(1) The application is incomplete. (2) The Hospitality Establishment has had a
Sidewalk Dining License revoked by the City for any
reason within the preceding two (2) years. (b)

If the application is incomplete, then the City Clerk
shall notify the Applicant
and shall allow the Applicant additional time to
complete the application.
Within a reasonable time
after its completion, the
City Clerk shall submit the
completed application to
the Governing Body for approval. (c) If the application
is incomplete because the
Applicant was unable to
procure the signatures required by Section 6-1205(e),
or if it the Hospitality Establishment has had a Sidewalk Dining License revoked within the two (2)
previous years under Section 6-1206(a)(2), then the
City Clerk shall deny the
application by giving Notice of Denial to the Applicant. Notice of Denial shall
be in writing, shall be
mailed to the Applicant at
his or her given address,
shall inform the applicant
of the reason for denial,
and shall inform the Applicant that he or she has
fourteen (14) days from the
date of the Notice of Denial
within which to submit to
the City Clerk, in writing, a
request for a public hearing
before the Governing Body.
6-1207 SIDEWALK DINING LICENSE APPEARANCE; DURATION. (a) The Sidewalk Dining License shall contain
the seal of the City, the
name and mailing address
of the Licensee, and the expiration date of the license.
(b) The Sidewalk Dining License shall be valid for a
period not to exceed one
year and shall expire at
midnight on the subsequent November 1st. 6-1208
SIDEWALK DINING LICENSE
RENEWAL; DENIAL (a) Not
less than thirty (30) days
prior to the expiration date
of a Sidewalk Dining License, the City Clerk shall
mail to the Licensee a renewal application form. The
Licensee shall complete the
renewal application form
and shall return the same
to the City Clerk no later
than November 1 of that
year, providing, at the
least, the following: (i) The
name of the Licensee, including its e-mail address,
business address, business
telephone, and mailing address. (ii) If the Licensee is
a corporation, partnership,
or other business organization, the names, addresses,
and dates of birth of all officers, directors, partners,
or members. (iii) The name
of the manager of the Licensee, his or her telephone number, mailing address, and e-mail address.
(iv) Remittance of the Sidewalk Dining License Fee in
the amount established at
Section 6-1204. (v) A copy
of a Certificate of Insurance, in accordance with
Section 6-1209.3, establishing that the Licensee has
procured appropriate liability insurance and that said
insurance is current. (vi) A
copy of the Licensee's Kansas Food Establishment License. (vii) A copy of the
Licensee's state sales and
liquor tax reports for the
preceding twelve months.
(viii) The Licensee's signature and the date. (b) For
any Sidewalk Dining License Fee and renewal application form received by
the City Clerk after November 15, the City Clerk shall
assess to the Licensee, as a
late fee, a penalty not to exceed 10% of the Licensee's
Sidewalk Dining License
Fee. (c) At the same time
that he or she mails to the
Licensee a renewal application form, the City Clerk
shall mail to all adjoining
property owners of record
and tenants of such property Notice that the Licensee is seeking to renew the
Sidewalk Dining License
and that said persons or
business entities have
thirty (30) days from the
date of the Notice within
which to submit in writing
to the City Clerk any objection to a renewal of the
Sidewalk Dining License.
(d) If the renewal application form is submitted to
the City Clerk, is complete
(including remittance of
the Sidewalk Dining License
Fee), and no timely written
objection under Section
6-1208(c) is received, then
the City Clerk shall submit
the renewal application to
the Governing Body for approval. (e) If the renewal
application form is incomplete or if the City Clerk receives timely written objection under Section
6-1208(c), then the City
Clerk shall deny the renewal application by giving
Notice of Denial to the Licensee. Notice of Denial
shall be in writing, shall be
mailed to the Licensee at
his or her given address,
shall inform the Licensee of
the reason for denial, and
shall inform the Licensee
that he or she has fourteen
(14) days from the date of
the Notice of Denial within
which to submit to the City
Clerk, in writing, a request
for a public hearing before
the Governing Body. 6-1209
SIDEWALK DINING LICENSE
CONDITIONS. Each Sidewalk
Dining License issued by
the Governing Body shall
be subject to the following
conditions and requirements: 6-1209.1 COMPLIANCE WITH ZONING REQUIREMENTS. The use of
the Sidewalk shall be in
conformance with the zoning regulations governing
the real property upon
which the Licensee is located. The use shall be limited to the sale, possession,
and consumption of food,
beverages, or both as part
of the business of the Licensee. 6-1209.2 SITE PLAN.
(a) In conjunction with its
application for a Sidewalk
Dining License, the Applicant shall, in accordance
with Chapter 20 of the Code
of the City of Lawrence,
Kansas, as amended, submit a Site Plan to the
Lawrence-Douglas County
Planning Department for
approval. In addition to
meeting all requirements of
Chapter 20, the Site Plan
shall include the following:
(i) Elevation drawings. (ii) A
note setting forth the
square footage of Sidewalk
Dining area. (iii) A drawing
or diagram showing the
seating configuration
within the Sidewalk Dining
area. (iv) A drawing or diagram showing that there is
a minimum of six (6) feet
width of unobstructed
Sidewalk reserved for pedestrian use between the
proposed Sidewalk Dining
area and the street curb or
plantings, whichever is
closer. (v) A drawing or diagram outlining the area to
be used for Sidewalk Dining
and showing the location of
railings or barriers that
shall separate it from that
portion of the Sidewalk reserved for pedestrian use.
The railings or barriers
shall be constructed of
wrought iron, ornamental
metal, or other compatible
materials that reflect and
conform to the character of
the area. The Site Plan shall
also note the style, design,
and color of the railings or
barriers. (vi) A drawing or
diagram showing any umbrellas proposed to be
maintained within or overhanging the Sidewalk Dining area or the Sidewalk.
Any umbrellas associated
with the Sidewalk Dining
use shall maintain a minimum distance of eighty
(80) inches between the
sidewalk surface and the
lowest part of the
umbrella's canopy. (vii) A
note stating whether the Licensee will use amplified
music or sound in conjunction with the Sidewalk Dining use. Any use of amplified music or sound shall
comply with the City's
noise ordinance. (b) If required by law, the Site Plan
shall also be reviewed and
approved by the Historic
Resources Commission
and/or the State Historic
Preservation Officer.
6-1209.3 INSURANCE. The Licensee shall carry an insurance policy issued by a reputable insurance company
licensed to do business in
the State of Kansas. The
policy shall insure the Licensee in an amount not
less than $500,000 per single incident for any liability
associated with the failure
of the Licensee, its employees, agents, servants, invitees, or patrons, to exercise reasonable care and
diligence in the use of the
Sidewalk. Proof of insurance shall be submitted to
the City Clerk on a standard
ACORD form, or substantially similar form as approved by the City Clerk,
and shall establish that the
Licensee maintains the requisite insurance and that it
is current. The certificate
shall also require the insurance carrier to notify the
City at least thirty (30) days
in advance of any change in
terms and conditions of the
policy, including cancellation for any reason, and in
advance of any expiration
of the policy term. 6-1209.4
INDEMNIFICATION. The Licensee must comply with
all terms of the executed
Right of Way Agreement.
Among other things, the
Right of Way Agreement
shall provide that the Licensee agrees, at all times,
to save and to hold harmless the City, its officials,
officers, employees, and
agents, from all liability,
costs, damages, and expenses of any kind, for the
payment of which the City
may become liable to any
person, firm, or corporation
by reason of any claim or
damages related to or arising out of the Licensee's
use of the Sidewalk for
Sidewalk Dining. 6-1209.5
REMOVAL OF FIXTURES. The
City may require, at any
time and for any reason,
the removal of any fixtures
placed on the Sidewalk pursuant to this Article. The Licensee shall be responsible
for any costs incurred in
the removal of fixtures and
shall return the Sidewalk to
City pavement standards. If
the Licensee is no longer
the tenant of the real property at the time that removal is required, then the
owner(s) of record of the
real property shall be responsible for any costs incurred in removing the fixtures and in returning the
sidewalk to City pavement
standards. 6-1209.6 ALCOHOLIC LIQUOR; CEREAL
MALT BEVERAGES. The Governing Body may permit the
Licensee to serve and the
Licensee's patrons to purchase, possess, and consume alcoholic liquor
and/or cereal malt beverages within the Licensee's
Sidewalk Dining area in accordance with Chapter 4 of
the City Code. The Licensee
shall also comply with all
State and City laws and ordinances governing the
sale, possession, and consumption of alcoholic liquor and cereal malt beverages. 6-1209.7 SIDEWALK
DINING LICENSE MAINTAINED ON THE PREMISES.
A Licensee shall retain the
Sidewalk Dining License on
the premises and shall
make it readily accessible
for viewing by City personnel. 6-1209.8 SIDEWALK DINING LICENSE NON - TRANSFERABLE. No Sidewalk Dining License issued in accordance with the provisions of this Article shall be
used by any person other
than the Licensee to whom
it was issued. 6-1210 SIDEWALK DINING LICENSE RESTRICTIONS. (a) No Sidewalk Dining License will be
issued under this Article to
any Hospitality Establishment that does not derive
at least fifty-five percent
(55%) of its gross receipts
from the sale of food and
non-alcoholic beverages,
unless the Hospitality Establishment has no reasonable location for an outdoor hospitality area. A
Hospitality Establishment
has no reasonable alternative location for an outdoor
hospitality area if no single
outdoor area on the premises of the Hospitality Establishment: (i) Is at least
fifty square feet (50 ft2) in
area, excluding the measurement of any area that
serves as the most direct
path between a customer
entrance to the interior of
the Hospitality Establishment and the public right of
way. In determining the dimensions of any area excluded from measurement
under this subsection, the
width of the excluded area
shall be no greater than the
width of the customer entrance served by that area,
or six feet (6 ft.), whichever
is less. (ii) Is at least five
feet (5 ft.) wide, with width
defined as the shortest dimension. (b) If food is
served by a Licensee anywhere on its premises, then
food service must also be
made available in the Sidewalk Dining area during the
same times and at the
same prices that food is
available elsewhere on the
premises. (c) These restrictions shall not apply to
any Licensee that would be
in violation of these restrictions and that has an
active Sidewalk Dining License at the time that this
Ordinance is enacted.
6-1211 NOTICE OF VIOLATION. Any Licensee determined by the City to be in
violation of any provision
of this Article shall be sent
a Notice of Violation. The
Notice of Violation shall be
sent by certified mail, postage prepaid, and return receipt request to the Licensee. The Notice of Violation
shall state: (a) The condition that has caused the violation; (b) The time within
which the Licensee must
cure the violation; and (c)
That the Licensee shall
have fourteen (14) days
from the date of the Notice
of Violation to request, in
writing, a public hearing
before the Governing Body.
6-1212 SUSPENSION; REVOCATION If the continued operation of the Sidewalk Dining is determined by the
City to be injurious to the
health, safety, and welfare
of the residents of the City,
or if the Licensee has failed
to cure a violation of this
Article, the City shall send
to the Licensee either a Notice of Suspension or a Notice of Revocation. 6-1213
PUBLIC HEARING. (a) Any
Applicant or Licensee, aggrieved by the action of the
City in denying an application for a Sidewalk Dining
License, in issuing a Notice
of Violation, in suspending
a Sidewalk Dining License,
or in revoking a Sidewalk
Dining License, shall have
the right to a public hearing
before the Governing Body
by requesting such a hearing within fourteen (14)
days of the date of the Notice of Denial, Notice of Violation, Notice of Suspension, or Notice of Revocation. The Request for Hearing must be in writing,
must be delivered to the
City Clerk, and must set
forth why the Applicant or
Licensee believes that the
Notice of Denial, Notice of
Violation, Notice of Suspension, or Notice of Revocation is in error. After the
Request for Hearing is filed,
the Governing Body shall
set a time and place for the
hearing. Notice of the hearing shall be given to the
Owner in the same manner
as the Notice of Denial, Notice of Violation, Notice of
Suspension, or Notice of
Revocation. (b) If the hearing involves a Notice of Denial, the Governing Body
shall not grant a Sidewalk
License unless the Applicant establishes (1) that
the Notice of Denial was issued in error or (2) that it is
within the public's interest
to approve the application
for a Sidewalk Dining License. The Governing Body
shall base its decision on
the credible evidence adduced at the public hearing
and shall make findings of
fact sufficient to support
its determination. (c) If the
hearing involves a Notice of
Violation, Notice of Suspension, or Notice of Revocation, the Governing Body
shall affirm, reverse, or
modify the Notice of Violation, Notice of Suspension,
or Notice of Revocation.
The Governing Body shall
reverse the decision of City
Staff only if it finds that the
Notice of Violation, Notice
of Suspension, or Notice of
Revocation was issued erroneously. The Governing
Body shall base its decision
on the credible evidence
adduced at the public hearing and shall make findings
of fact sufficient to support
its determination. (d) In the
event of a public hearing,
the decision of the Governing Body shall be the final
decision of the City. If no
hearing is requested, then
the Notice of Denial, Notice
of Violation, Notice of Suspension, or Notice of Revocation shall be the final decision of the City. 6-1214
ADMINISTRATIVE REGULATIONS. (a) In order to protect the health, safety, and
welfare of the community,
the City Manager or his or
her designee shall have the
power to promulgate reasonable administrative regulations governing a
Licensee's use of the Sidewalk for Sidewalk Dining.
Any regulations promulgated in accordance with
this Article shall be dated
and shall be available for
inspection by the public
during reasonable business
hours. A Licensee shall receive a copy of any regulations at the time of the issuance of any Sidewalk
Dining License or the renewal of a Sidewalk Dining
License. (b) The Licensee
shall comply with all regulations promulgated by the
City Manager or is or her
designee in accordance
with this Article. Failure to
abide with any regulation
shall be grounds for Notice
of Violation, Notice of Suspension, or Notice of Revocation pursuant to Sections
6-1211 or 6-1212 of this Article. SECTION 3. If any section, clause, sentence, or
phrase of this ordinance is
found to be unconstitutional or is otherwise held
invalid by any court of
competent jurisdiction, it
shall not affect the validity
of any remaining parts of
this ordinance. SECTION 4.
This ordinance shall take
effect and be in full force
and effect immediately following its adoption and
publication as provided by
law. ADOPTED by the Governing Body of the City of
Lawrence, Kansas, this 12th
day of February, 2013.

APPROVED:
/s/ Robert J. Schumm Robert J. Schumm
Mayor
ATTEST:
/s/ Jonathan M. Douglass
Jonathan M. Douglass
City Clerk

Approved as to form and
legality
/s/Toni R. Wheeler
Toni R. Wheeler
City Attorney
________