City of Kingston, NY Chapter 346 Sidewalk Cafes [1]

[HISTORY: Adopted by the Common Council of the City of Kingston 10-2-2012, approved 10-3-2012; amended in its entirety 4-5-2022, approved 4-6-2022. Subsequent amendments noted where applicable.]

[1] Editor's Note: This chapter was originally adopted as Ch. 366 but was renumbered in order to retain the alphabetical organization of the Code.

§ 346-1 Purposes.

The sidewalk cafe/outdoor seating regulations as established in this chapter are designed to allow sidewalk cafes/outdoor seating on private and public property in locations where they are determined to be appropriate by the City and to promote and protect the public health, safety, general welfare and amenity. These general goals include, among others, the following specific purposes:

A. To provide adequate space for pedestrians on the sidewalk adjacent to the sidewalk cafes, and to insure access to adjacent commercial and retail uses.

B. To promote sidewalk cafes/outdoor seating as useful and properly planned visual amenities which better relate to the streetscape.

C. To promote the desirable use of land and buildings and thereby protect the City's tax revenue.

§ 346-2 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

OUTDOOR DINING AREAS

A. An outdoor dining area, located on public property, which is public through dedication or easement, or public right-of-way that provides waiter or waitress service and contains tables, chairs, railings and may contain planters. "Outdoor dining" is defined as an open air space without a fixed roof (besides a temporary or seasonal awning or cover). All roadway and sidewalk seating elements must be removed when a City agency, utility company, or other contractor needs to access the space for installation or repair. This includes, but is not limited to, tents, barriers, tables, chairs, and portable heaters.

B. In addition, roadway seating elements need to be removed during the snow season when roadway dining is suspended. Roadway and sidewalk seating elements must also be removed to facilitate routine and emergency tree work, regardless of whether the City has provided advanced noticed for emergency work.

§ 346-3 General regulations.

A. No sidewalk cafe/outdoor seating shall operate in the City of Kingston without a license issued in accordance with this chapter.

B. Issuing authority; exceptions.

(1) The City of Kingston Building Department is authorized to issue a license to operate a sidewalk cafe/outdoor seating on public property or public right-of-way, provided that the standards set forth in this chapter and all requirements of the Americans with Disabilities Act[1] guidelines have been complied with by the occupant.

[1] Editor's Note: See 42 U.S.C. § 12101 et seq.

(2) The following types of outdoor dining areas do not require licensing by the City:

(a) Restaurants utilizing any privately owned outdoor space, such as front yards, side yards, rear yards, or courtyards.

(b) Restaurants utilizing private parking lots.

(c) Restaurants utilizing balconies, terraces, or open air rooftop space.

(d) Restaurants on open air boats.

C. A license to operate a sidewalk cafe/outdoor seating shall be issued only to the owner of the business which operates the proposed cafe. Sidewalk cafe/outdoor seating licenses are nontransferable. In the event of a change in ownership of a business which operates a sidewalk cafe/outdoor seating, a new license must be obtained prior to continued operation of the sidewalk cafe. Seating in an outdoor dining area is exclusive to the licensed business only. Licenses to operate sidewalk cafes/outdoor seating shall be for a renewable term of two years.

D. A nonrefundable application fee in an amount as set forth in the fee schedule to be established by resolution of the Common Council of this City shall be charged.[2]

[2] Editor's Note: See Ch. 217, Fees.

E. Prior to the issuance of a license to operate a sidewalk cafe/outdoor seating, the applicant shall file, with the Director of the Building and Safety Department, an agreement to indemnify and hold harmless the City of Kingston, its officers and employees against any loss or liability or damage, including expenses and costs for bodily injury, and for property damage sustained by any person as a result of the applicant's operation of a sidewalk cafe/outdoor seating.

F. Prior to the issuance of a license to operate a sidewalk cafe/outdoor seating, the applicant shall also file with the Director of the Building and Safety Department a certificate of insurance demonstrating that the applicant has a satisfactory amount of public liability, property and workers' compensation insurance as set forth in Schedule A and naming the City as coinsured for such insurance covering the operation of a sidewalk cafe/outdoor seating. Schedule A is on file in the City Clerk's office.

G. The operator of a sidewalk cafe/outdoor seating must provide proof of insurance set forth in Subsection F to the Director of the Building and Safety Department on or before January 1 of each calendar year. Failure to provide timely proof of insurance shall constitute good cause for the City to revoke any previously issued license or deny a future application for license renewal.

H. The operator of a sidewalk cafe/outdoor seating must submit a site plan to the Director of the Building and Safety Department. The operator must provide such information as requested by the Director of the Building and Safety Department, including but not limited to the number of proposed tables, the linear square footage of the proposed outdoor cafe and a map showing the design and location of all temporary structures such as retractable awnings, planters, landscaping, tables, chairs, umbrellas and other equipment, as well as lighting and electrical outlet locations. The owner must also indicate whether alcoholic beverages will be prepared and/or served within the proposed outdoor dining area.

I. In the event that the sidewalk cafe/outdoor seating will be operating in a rental space, the operator must submit with the site plan a written consent from the owner of the property. If the outdoor dining area extends onto a neighboring property, the operator must obtain the written consent of the neighboring property owner and tenant.

J. If the Director of the Building and Safety Department disapproves the site development plan or determines not to issue the license, he shall state his reason for his determination in a letter to the applicant. The applicant may then petition the Common Council to be heard.

K. Hours.

(1) Sidewalk cafe/outdoor seating shall close operation by 10:00 p.m. Any requests for later hours will require a noise permit from the Planning Department as well as approval from the Mayor.

(2) Outdoor dining areas placed in parking spots must be used a total of six hours per day and at least five days per week for permanent placement. If the outdoor dining area in a parking spot is used less than six total hours per day and five days a week, the furnishings should be removed when not in use.

L. License to operate sidewalk cafes shall not be granted absent proof that the operator has set aside a minimum of 36 inches of clear distances, exclusive of the area occupied by the sidewalk cafe, free of all obstructions (such as trees, parking meters, utility poles, etc.) in order to allow adequate pedestrian and/or wheelchair movement. Outdoor dining areas should not extend more than seven feet from the sidewalk and must maintain a two-foot distance from parking space wheel stops on either side.

M. The applicant shall be responsible for delineating the cafe/outdoor seating area by setting up a barrier such as planters or a railing to physically separate patrons from pedestrian traffic.

N. No structure or enclosure to accommodate the storage of accumulated garbage may be erected or placed adjacent to or separate from the sidewalk cafe on public property.

O. A sidewalk cafe/outdoor seating shall not interfere with any public service facility, including, but not limited to, bus stops, lampposts, fire hydrants, lighting fixtures, mailboxes, public benches, or telephones located on the sidewalk.

P. Furnishings and structures.

(1) Furnishings of all sidewalk cafes/outdoor seating shall be readily removable, including but not limited to all lights, tables, railings, heaters and umbrellas. Furnishings may not be attached to the sidewalk or to any other public property, either in a permanent or temporary manner. Tables and chairs must be removed or secured in place when not in use.

(2) Umbrellas and tents should not be used during inclement weather, such as high wind conditions. Structures or additions of any kind may not be bolted down or drilled into the roadway or sidewalk. Structures, tents, or umbrellas may not block any right-of-way signs or street regulation signs.

(3) Platforms may not be installed on sidewalks, but should be installed in authorized roadway seating areas behind the required barrier to flush height with curb to facilitate ADA compliance, prevent the curb from becoming a tripping hazard, and allow drainage to underpass seating. Such platforms shall not block rainwater drainage getting to the curb or flowing along the curb and shall not obstruct access to utility covers.

Q. Effect on other properties.

(1) Operation of a sidewalk cafe/outdoor seating shall not adversely impact on adjacent or nearby residential, religious, educational or commercial properties, and shall be in accordance with all applicable codes and regulations.

(2) Dining elements may not cover, shade, come in contact with, or be located within one foot of City trees. Rainwater runoff from dining elements may not be caused to discharge directly into a tree bed. Runoff from cleaning may not be discharged or allowed to flow into a tree bed.

(3) Tree removal, tree pruning, attaching lights or other materials to trees, and constructing any structure within or over a tree bed is prohibited.

R. Lighting, heating and cooking elements.

(1) All electrical wiring and fixtures associated with or part of the sidewalk cafe/outdoor seating shall be installed by a licensed electrician and shall be in conformance with all applicable City ordinances.

(2) The City will allow restaurants to incorporate heating elements in outdoor dining setups. Heating elements shall be placed at least five feet from the trunk or branches of City trees.

(3) No cooking barbeque nor open flames are allowed in roadway nor sidewalk seating areas with the exception of tabletop candles.

(4) Lighting may be added to outdoor seating areas, provided lighting is not blinding to passing traffic and complies with City fire and electrical code. Lights may not be attached to trees. Additionally, City streetlight wiring may not be used to connect any external power or lighting source.

S. Sidewalk cafes/outdoor seating and the public property on which they are located shall be kept neat and clean at all times and free from any substance that may damage the sidewalk or cause pedestrian injury. Outdoor dining areas that do not provide table service must provide trash and recycling receptacles.

T. Alcoholic beverages and smoking.

(1) The drinking of alcoholic beverages by a member of the public while a patron at a sidewalk cafe/outdoor seating, within the confines of the sidewalk cafe/outdoor seating area, shall not be construed as a violation of any ordinance controlling open containers in a public area. The operator of the sidewalk cafe/outdoor seating shall take whatever steps are necessary to procure the appropriate license from the State Liquor Authority if they intend to serve alcoholic beverages in the sidewalk cafe/outdoor seating area and shall comply with all other laws and regulations concerning the serving of alcoholic beverages in this state.

(2) Smoking and electronic cigarette use is not allowed in outdoor dining areas. Vaping and hookah smoking is not allowed.

U. The sidewalk cafe/outdoor seating permit must be prominently displayed by the permit holder in a publicly visible location.

§ 346-4 Penalties for offenses.

Any person who shall violate any of the provisions of this chapter shall be liable to prosecution in the City Court and/or any court of competent jurisdiction and shall, upon conviction thereof, be liable for a fine of up to $250. Each and every day such violation continues shall be deemed a separate violation.

§ 346-5 Revocation for cause.

Any license granted under the provisions of this chapter may be suspended or revoked by the Director of the Building and Safety Department for cause. The licensee may request a hearing before the Director of the Building and Safety Department or his designee within five days of receipt of notice of suspension or revocation. Any such hearing shall be held after reasonable written notice by the Director of the Building and Safety Department to the licensee of the violations, and the licensee shall have the right to be represented by counsel, present evidence on his or her behalf and confront the evidence against him or her. Cause for revocation or suspension of a temporary license shall be any condition that may endanger the health and safety of the public.