[HISTORY: Adopted by the Mayor and Council of the Borough of East Rutherford 10-20-2009 by Ord. No. 2009-18. Amendments noted where applicable.]
The purpose of this chapter is to establish a procedure and authorize rules and regulations thereunder for the licensing of outdoor cafes in the Borough of East Rutherford.
Unless specifically defined below, words or phrases used in this chapter shall be interpreted so as to give them the meanings they have in common usage and to give this chapter its most reasonable application. As used in this chapter, the following shall have the meanings indicated:
- ADJACENT BUILDING
- The building whose principal facade fronts on the sidewalk where the outdoor sidewalk cafes is or is proposed to be located.
- ADULT PATRON
- See "patron, adult."
- FAST-FOOD ESTABLISHMENT
- An establishment serving food for consumption by the public on its premises, whether free or for cost and where such food is served to seated or standing patrons on utensils manufactured of a nonpermanent and/or nondurable material such as plastic, resin, paper or other synthetic materials not intended or capable of reuse and such service is not by waiters or waitresses employed exclusively for that purpose. Fast-food restaurants are not permitted to be licensed under hot dog stands, delicatessens, pizza parlor or other entities commonly referred to as a fast-food restaurant or establishment, such as McDonald's, Burger King, Nathan's, KFC or the like.
- Tables, chairs and servers normally associated with dining activity. Except for table umbrellas, no establishment licensed under this section shall use furniture fabricated or manufactured with materials containing more than 25% of synthetic content such as plastic or resin. Lawn furniture or the like is not permitted.
- OUTDOOR CAFE
- Any eating establishment where food and other refreshments are served upon the public right-of-way, namely the sidewalks immediately in front of any restaurant, cafe or place of business where food and/or other refreshments are served or a public plaza immediately adjacent to any restaurant, cafe or place of business where food and/or other refreshments are served, or where permitted on private property pursuant to the Land Use and Zoning Ordinances. Said outdoor area shall be considered as part of the building structure and shall be limited in use by patrons of the eating establishment. Consumption of permitted alcoholic beverages in an outdoor cafe by patrons shall not be considered in violation of state regulations and/or local ordinances prohibiting the consumption of such beverages in open containers.
- OUTDOOR CAFE ZONE
- Paterson Avenue, from Hackensack Street west to Locust Lane;
Hackensack Street, from Paterson Avenue south to the Rutherford border;
Park Avenue, from Paterson Avenue south to Union Avenue railroad tracks;
Enoch Street, from Hoboken Road to Paterson Avenue; Hoboken Road,
from Enoch Street to Route 17; Route 17, southbound side, from Paterson
Plank Road to Stanley Street; Route 17, northbound side, from Union
Avenue to Paterson Plank Road.[Amended 5-17-2011 by Ord. No. 2011-05]
- OUTDOOR SIDEWALK CAFE
- A restaurant, as defined herein, serving food to be consumed by adult patrons seated at furniture located within that more-or-less-rectangular portion of the sidewalk which lies within the area bounded by the public street. The principal facade of the adjacent building and the imaginary perpendicular lines running from the outer edge of such principal facade to the public street.
- PATRON, ADULT
- A member of the general public aged 18 years old or older. Except when accompanied by an adult patron, no member of the general public under the age of 18 years old shall be permitted to be served at any outdoor sidewalk cafe by any establishment licensed under this section.
- PERMITTED ZONES
- Commercial zones, mixed commercial zones and light industrial zones, planned commercial development zones and Redevelopment-1 zones, all as defined in Chapter 389, Zoning, and as shown on the Zoning Map of the Borough of East Rutherford. [Amended 5-17-2011 by Ord. No. 2011-05]
- An establishment located within the adjacent building, the primary activity of which is the preparation and serving of food for consumption by adult patrons on its premises, whether free or for cost and where the food to be consumed is served to adult patrons seated at furniture by waiters or waitresses employed exclusively for that purpose on utensils of permanent and durable material designed and capable of being reused and shall include, but not be limited to, a restaurant, hotel, coffee shop, tearoom, dining room, cafeteria, luncheonette, soda fountain, sandwich shop and the like, but shall not be a fast-food establishment as defined herein.
- The paved surface provided for the exclusive use of pedestrians and situated between, and extending from, any building to the curb of any street. For the purpose of this section, the area normally being the area between the paved sidewalk and the curb and surface with cement, brick or stone pavers or any acceptable surface material other than dirt and/or vegetation is considered to be part of the sidewalk. Utensils, dinnerware, eating utensils such as knives, forks, spoons, coffee or tea cups, drinking glasses, napkins, tablecloths and the like.
No person, firm, partnership, corporation, association or organization (hereinafter collectively referred to as "person") shall create, establish, operate, maintain or otherwise be engaged in the business of conducting an outdoor cafe upon the sidewalks or public plazas of the Borough of East Rutherford, or on private property, unless such person shall hold a currently valid license issued pursuant to the terms of this chapter.
No license shall be issued unless the location of the proposed license shall be in an Outdoor Cafe Zone.
No license shall be issued hereunder unless the licensee shall demonstrate that a minimum of three feet of unobstructed paved surface will be available for pedestrian traffic around or through such outdoor cafe.
Such outdoor cafe shall be located directly in front of or behind a restaurant located in an adjacent building.
No food or drinks served at such outdoor cafe shall be prepared or stored other than in the interior of the eating establishment.
Application for the license required under this chapter shall be made to the Construction Official and be signed by the applicant. The application shall be in such form as may be established by the Construction Official and shall contain the following information:
The full name, residence address and telephone number of each individual, owner or partner, or if a domestic corporation, the names, residence addresses and telephone numbers of the directors and officers owning a ten-percent-or-greater interest in the corporation and the chief operating executive of the corporation.
A copy of the trade, corporate, business or fictitious name upon which the applicant intends to do business pursuant to this chapter.
The address of each place where the applicant intends to establish or operate an outdoor cafe.
The full name and address of the person owning the premises, if other than the applicant, and the consent of the owner of the premises to the application.
Three sets of a proposed layout plan containing drawings clearly illustrating the following information:
Number and location of all tables, chairs and umbrellas intended to be located in the outdoor cafe;
The location of any doors leading from the eating establishment to the outdoor cafe. No such doors may be obstructed in any manner.
The number of feet permitting free passage of pedestrian traffic around or through each outdoor cafe.
The application form, together with the appropriate application fee shall be filed with the Construction Official. The Construction Official shall also refer the layout plan to the Fire Official, Health Officer, Borough Engineer or any other appropriate municipal agency or department for any clarification of any issue regarding the layout plan in relation to public safety or health issues for review and recommendation.
The Construction Official will review the application for completeness and compliance with the terms of this chapter. If the application is complete, the Construction Official will act upon the same within 10 business days of the submittal of the application or within 10 business days after the application becomes complete. If the application is not complete, the Construction Official will so notify the applicant within 10 business days of the submission and specifically detail the areas in which the application lacks compliance with the requirements of this chapter.
If the application complies with the chapter, the Construction Official shall issue a license strictly subject to the terms and conditions of this chapter. All outdoor sidewalk cafe licenses shall be issued for the period commencing April 1 and ending November 30 of the particular year. Licenses must be renewed annually by the filing of an application in accordance with the provisions of this section.
The license is personal to the applicant and any change or transfer of ownership of the outdoor cafe shall terminate the license and shall require a new application and new license in conformance with all of the requirements of this chapter.
Acceptance of the license by the applicant shall operate as a consent to the health, fire, police and building officials of the Borough to inspect the outdoor cafe for continued compliance with the terms and conditions of this chapter and any federal, state, county or local law, ordinance or regulations affecting the same.
No license required by this chapter shall be granted to any person to operate an outdoor cafe until such person shall have filed with the Construction Official agreement, at the option of the Borough, to either repair at its sole cost and expense any damage caused to the sidewalk by the operation of the cafe or to reimburse the Borough in full for all costs and expenses incurred by it in making any such repairs; to indemnify and hold harmless the Borough of East Rutherford, its agent, servants, representatives or employees, from any or all claims, damages, judgment costs or expenses, including attorneys fees, which they or any of them may incur or be required to pay because of any personal injury, including death, or property damage suffered by any person or persons as a result of or related in any way to the operation and maintenance of the outdoor cafe for which the license is issued. Said maintenance and indemnification agreement shall be in a form acceptable to the Borough Attorney.
No license required by this chapter shall be granted to any person to operate an outdoor cafe until such person shall have first filed with the Construction Official a comprehensive general liability policy issued to such person by a public liability insurance company authorized to do business in the State of New Jersey affording the coverages set forth below in the amounts specified. Such insurance policy shall name the Borough of East Rutherford, One Everett Place, East Rutherford, New Jersey, and its agents, officers, servants, representatives and employees as additional insured with respect to the operation and maintenance of the outdoor cafe in the following amounts:
The insurance coverage required by this section shall at all times be maintained for the full amount. The policy of insurance required by this section to be filed with the Construction Official shall contain an endorsement for 30 days' notice of cancellation or nonrenewal stating that the Borough and licensee shall receive, in writing, 30 days' notice of cancellation or nonrenewal by certified mail, return receipt requested. The Borough shall be named as an additional insured under the liability portion of the insurance coverage. Notice of cancellation shall not relieve the company issuing such policy of liability for any injury or claim arising before the cancellation becomes effective. The cancellation of any such policy shall have the immediate effect of suspending the license of such person to operate the outdoor cafe covered thereby until a new policy complying with the provisions of this section is filed with the Construction Official and a letter in writing confirming the new effective date of license is issued by the Construction Official.
Every insurance policy required hereunder shall contain a provision for continuing liability thereunder to the full amount thereof, notwithstanding any recovery thereon, that the liability of the insured shall not be affected by the insolvency or the bankruptcy of the insured and that, until the policy is cancelled, the insurance company will not be relieved from liability on account of nonpayment of premium or of any act or omission by the named insured. Such policy of insurance shall be further conditioned for the payment of any and all judgments up to the limits of such policy.
An outdoor sidewalk cafe authorized and operating pursuant to this section shall comply with all of the following rules and regulations and such others as may be adopted from time to time by resolution of the Borough Council.
The cafe shall be operated and maintained in accordance with the layout plan as finally approved.
No furniture, apparatus, decoration or appurtenance used in connection with the operation of the outdoor sidewalk cafe shall be located in such a way as to impede the safe and speedy ingress and egress to or from any building or structure.
No furniture, apparatus, decoration or appurtenance used in connection with the operation of the outdoor sidewalk cafe shall be located in such a way that less than 2 1/2 feet of paved sidewalk remains for the exclusive use of pedestrians, the required pedestrian passageway; nor shall any such furniture, apparatus, decoration or appurtenance project or protrude into, on or above the required pedestrian passageway.
Service in the outdoor sidewalk cafe shall be provided by persons engaged or employed for that exclusive purpose and shall be furnished to seated patrons only.
The sidewalk area utilized for the cafe shall be kept clean and free of litter. Trash receptacles shall be provided as required by the operator of the outdoor sidewalk cafe. Sidewalk areas shall be kept clean during hours of operation. Litter shall not be permitted on adjoining sidewalks or property. Sidewalks must be swept daily and debris placed in appropriate containers, not in the street or gutter. Sidewalks shall be washed as necessary.
Noise shall be kept at such a level as to comply in all respects with these Revised General Ordinances of the Borough of East Rutherford. Sound systems are prohibited.
Within one hour after the closing of the outdoor sidewalk cafe, the operator shall have all furniture, apparatus, decoration or appurtenances and any other items used in connection with the operation of such outdoor sidewalk cafe removed from the sidewalk. All such materials shall be stored in a safe and secure interior location.
The operator shall comply with all the requirements of N.J.A.C. 8:24-1 et seq., and N.J.S.A. 24:15-1 et seq.
The outdoor sidewalk cafe shall be actually operated and maintained by the same person who operates and maintains the restaurant in the adjacent building.
All food preparation shall be in the regular kitchen area of the related restaurant and will not be permitted outdoor in the sidewalk cafe area.
No license shall serve drivers or passengers while they are sitting in cars at the curb or in the street. All patrons must be seated at furniture, as defined in § 207-2, throughout their meal.
No vending machines of any kind are permitted on the exterior of any building operating an outdoor cafe.
No signs shall be permitted in the area of the outdoor cafe except signs on the awnings complying with the Zoning Ordinance of the Borough of East Rutherford Code.
No tables, chairs or other equipment in the outdoor cafe shall be attached, chained or in any manner affixed to any tree, post, sign, curb or sidewalk or property of the Borough of East Rutherford within or near the licensed area.
Any umbrellas or awnings used in connection with an outdoor cafe shall provide a minimum clearance of seven feet from its lowest point to the sidewalk grade.
At the end of the license period, or if the license is temporarily or permanently suspended or revoked, the licensee will, at its own cost and expense, vacate the sidewalk space and promptly remove any property placed thereon; and restore the sidewalk to a safe condition, consistent with its condition prior to the use by the licensee under the license. If the licensee fails to comply with this subsection after five days' written notice, the Borough shall have the right to remove any property on the sidewalk and make any necessary repairs. The licensee shall, upon demand, reimburse the Borough for all cost relating to, such action.
[Amended 7-17-2012 by Ord. No. 2012-07]
The licensee shall not direct or permit to be directed to or from the area occupied by the outdoor cafe any bell, chime, siren, whistle, loudspeaker, public address system, radio, sound amplifier or similar device.
No outdoor cafe shall open for business prior to 7:00 a.m. nor remain open for business after 10:00 p.m., provided that an outdoor cafe may remain open for business until 11:00 p.m. on a Friday or Saturday night. All persons occupying the outdoor cafe shall vacate the same no later than 11:30 p.m. Areas must be cleaned as needed at the time the business is closed and at the beginning of each business day, but not later than 9:00 a.m., 10:00 p.m. weekdays, Friday and Saturday 11:00 p.m. No consumption prior to 11:00 a.m.
No smoking shall be permitted in an outdoor cafe.
The operator shall comply with all other ordinances of the Borough.
The Borough retains the right to temporarily suspend an outdoor sidewalk cafe license to allow for construction activity, utility repairs, special events or for any reason deemed appropriate.
No alcoholic beverage service or consumption of alcoholic beverages are permitted by any licensee under this section.
The sidewalk area upon which an outdoor cafe has been authorized to operate pursuant to this section shall not constitute premises duly licensed for the sale and consumption of alcoholic beverages to serve or permit to be consumed alcoholic beverages at any outdoor sidewalk cafe licensed under this section upon completion of license procedures required by state law.
Alcohol service or consumption not accompanying food service is not permitted.
No alcohol beverage may be consumed in an outdoor cafe prior to 11:00 a.m.
Any license issued hereunder is issued solely as a revocable license, which shall be subject to revocation or suspension by the Mayor and Council for failure of any licensee to comply with this chapter or for violation of any other applicable federal, state, county or municipal law, regulation or ordinance. Any license issued hereunder is issued upon the express understanding that the licensee obtains no property right thereunder nor any interest in the continuation of said license. It shall be considered a violation of this chapter for any person to operate an outdoor cafe after the suspension or termination of the applicable license.
In addition to the powers of suspension or revocation as set forth above, the Borough reserves the right to modify, suspend or revoke any license on five days' written notice if the Borough determines that pedestrian traffic is, in fact, impeded or made unsafe because of the operation of the outdoor cafe or because of any other safety issue which the Borough determines adversely affects the Borough because of such operation. The license may also be suspended or revoked on five days' written notice in the event the Borough determines that it is necessary to utilize the area or any part thereof for the maintenance or installation of underground utilities. In the event of any emergency, which emergency is certified by the Borough Administrator, the license may be suspended or revoked without notice.
Upon a determination by an officer or employee of the Borough charged with the responsibility for enforcing the provisions of this section that a licensee has violated one or more of such provisions, such officer or employee shall give written notice to the licensee to correct such violation within 24 hours of the receipt of such notice by the licensee. In the event that the licensee fails or refuses to correct such violation within such period, the licensee's outdoor sidewalk cafe license shall thereupon and automatically be suspended.
Upon suspension of such license, the licensee, upon written request, shall be entitled to a hearing before the Mayor and Council within 14 days of the date of its request.
Any person who shall violate any of the provisions of this chapter shall, upon conviction, be punished by a fine not to exceed $500 or by imprisonment in the county jail for a period not to exceed 30 days, or by both such fine and imprisonment; and each violation of any of the provisions of this chapter and each day there is a violation thereof shall be deemed and taken to be a separate and distinct offense.
The Borough Construction Official shall be responsible for licensing and the collection of fees.
This section shall be enforced by the Borough Construction Official, the Police Department, the Board of Health as to the Sanitary Code, the Superintendent of Public Works as to trash, litter and recycling regulations, the Fire Safety Official, the Construction Official or any other Borough Official as designated by the Mayor and Council.