[HISTORY: Adopted by the Mayor and Council of the Borough of Rockaway 10-11-2012 by Ord. No. 16-12. Amendments noted where applicable.]
The purpose of this chapter is to permit, subject to the terms and conditions of this chapter and all applicable related ordinances, daytime and early evening outdoor dining on private property and sidewalks adjacent to local food and eating establishments for the enjoyment of patrons without disturbing the immediate neighborhood or pedestrian traffic. The regulations established by this chapter are intended to promote and protect the public health, safety and general welfare of the residents of the Borough. These general purposes shall include, among others, the following specific purposes:
To ensure that adequate space will be provided for emergency access to the establishment and for pedestrian circulation through areas where outdoor dining is permitted and to ensure adequate access to adjoining properties and businesses.
To encourage the establishment of outdoor dining areas as one means of developing a pleasant and distinctive community atmosphere.
As used in this chapter, the following terms shall have the meanings indicated:
- ADJACENT BUILDING
- The building whose principal facade fronts on the outdoor cafe.
- ON-SITE CAFE
- An outdoor cafe located entirely on private property.
- OUTDOOR CAFE
- A dining area with tables and chairs located outside the walls of a building housing a restaurant.
- Any individual, partnership, corporation, limited liability company, association, or other legal entity.
- A commercial establishment where food and drink (including alcoholic beverages, if properly licensed) are prepared and served in a ready-to-consume state.
- SIDEWALK CAFE
- An outdoor cafe located in whole or in part on a public sidewalk.
Subject to the terms and conditions of this chapter, upon obtaining a license from the Borough Zoning Officer as provided herein, any person may operate an outdoor cafe within the Borough of Rockaway, in any zone in which a restaurant use is permitted, on private property or a sidewalk adjacent to an existing restaurant lawfully operated by such person. The establishment of an outdoor cafe pursuant to this chapter shall not require the holder of said license to apply for site plan approval or to acquire any new and/or additional parking as a result of the grant of said license and the operation of an outdoor cafe.
[Amended 12-13-2012 by Ord. No. 26-12]
Notwithstanding any other provisions of this chapter, any on-site cafe for which site plan approval has been granted by the Land Use Board shall not be required to obtain an annual license as required herein and shall not be subject to the restrictions of this chapter, except as otherwise required by said site plan approval.
Any restaurant that is not a principal permitted use in the zoning district in which it is located may continue an outdoor cafe that is a preexisting nonconforming use, as defined in the Municipal Land Use Law (MLUL), or previously approved by the Borough of Rockaway Land Use Board. No outdoor cafe may be licensed hereunder if it represents an unlawful expansion of a nonconforming use, as determined by the Borough of Rockaway Land Use Board, in which event a variance must be obtained.
An outdoor cafe must be located contiguous to and directly in front of a restaurant as hereinabove defined. The term "directly in front of" shall confine the outdoor cafe to the area represented by an extension of each side of the adjacent building or portion of the adjacent building occupied by the restaurant (whichever is smaller) projected directly to the curbline immediately in front thereof. No outdoor cafe may be located in a rear yard or side yard. An on-site cafe must be located on a preexisting hard, level, man-made surface, such as concrete, asphalt or pavers. Elevated decks, porches, verandas and the like shall not qualify for licensing under this chapter and shall require site plan approval. Restaurants located on corner lots may locate an outdoor cafe in either of the two front yards of the lot (but not both) and may use the sidewalk space fronting either side of the restaurant (but not both) for sidewalk cafe operations.
Notwithstanding any other provision of this chapter, an outdoor cafe licensed hereunder may not exceed 250 square feet in total area. The square footage of an outdoor cafe shall be measured from the facade of the building so that there is no gap between the building and the cafe.
Application for the license required hereunder shall be made to the Zoning Officer and shall be signed by the applicant. The application shall contain the following information:
The name, residence address and telephone number of each individual, owner or partner of the applicant. If the applicant is a limited liability company, the name, residence address and telephone numbers of all members and the name of the managing member, if any, shall be provided. If the applicant is 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 shall be provided. If the applicant is a nondomestic corporation, the same information as for a domestic corporation plus the name, residence address and telephone number of the managing officer for service of process within the State of New Jersey shall be provided and a copy of the qualification of said nondomestic corporation to conduct business in the State of New Jersey shall be submitted with the application.
Any trade, corporate, business or fictitious name under which the applicant intends to do business pursuant to this article.
The address and description of the place where the applicant intends to establish or operate an outdoor cafe, including a designation of the proposed outdoor cafe as an "on-site cafe," "sidewalk cafe," or both.
A statement of the maximum seating capacity of the outdoor cafe and of the restaurant located in the adjacent building. A minimum of 10 square feet per seat is required for each table in the outdoor cafe. The number of tables may not exceed six.
The name and address of the owner of the adjacent building.
The written authorization and approval the owner of the adjacent building.
The applicable fee.
A copy of a valid food establishment license issued by the Borough of Rockaway Health Department.
If applicable, a copy of the liquor license and diagram of the licensed premises issued to the establishment.
If the applicant is the owner of the adjacent building, proof from the Borough of Rockaway Tax Collector that taxes and assessments have been paid through the current quarter.
Three sets of a proposed layout plan containing scaled drawings clearly illustrating the actual dimensions of the outdoor cafe to be utilized, and the building, street, and sidewalk upon which it fronts and on or adjacent to which it is to be located and the number, type of materials, color and location of all tables, chairs, umbrellas or other furnishings or fixtures intended to be located in the outdoor cafe. The perimeter of the outdoor cafe shall be defined and set off by a portable-type enclosure, which shall be illustrated on the layout plan and which may include live plantings. The physical delineation shall separate the area to be used as an outdoor cafe from the pedestrians traversing the adjacent sidewalk. The perimeter enclosure shall not contain doors or windows nor air conditioning or heating equipment and shall be open at all times to the air from a height of not more than three feet. Awnings and umbrellas without any form of lettering, marking or advertisement are permitted. The scaled drawings shall also illustrate the following:
The location of any doors leading from the restaurant to the outdoor cafe. No such doors may be obstructed in any manner.
The number of feet and location of unobstructed space permitting free passage of pedestrian traffic around or through the outdoor cafe, and the number of feet from the curb or from a parking area.
The location of all fire hydrants, parking meters, utility poles, benches, handicap ramps, street furniture, trees and any other fixtures permanently located on the sidewalk in front of the restaurant or within 10 feet thereof on either or any side.
The type and location of any proposed lighting fixtures for the outdoor cafe. Outdoor lighting shall be permitted only to the extent required to provide safe pedestrian flow and passage. Small individual table lighting is encouraged.
The name and address of the person who prepared the layout plan.
The Zoning Officer shall review the application for completeness and compliance with the terms of this chapter. If the application is complete, the Zoning Officer shall act upon the same within 15 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 Zoning Officer shall 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. The Zoning Officer may also refer the application to the Chief of Police, the Fire Marshal, Health Officer, and the appropriate Uniform Construction Code Inspector(s) for their review and recommendation.
A license for a sidewalk cafe shall not be issued unless the applicant has furnished the following to the Borough:
A maintenance agreement pursuant to which the applicant, in consideration of the issuance of the license, shall agree, at the option of the Borough, either to repair at its sole cost and expense any damage caused to the sidewalk by the operation of the sidewalk cafe, or to reimburse the Borough in full for all costs and expenses incurred by it in making any such repairs. The agreement shall also provide that at the end of the license period, or in the event that the license is temporarily or permanently suspended or revoked, the applicant shall vacate the sidewalk space and remove any property placed thereon at its own cost and expense. Failure to do so on five days' written notice shall grant the Borough the right to remove any property on the sidewalk. The applicant shall reimburse the Borough for the cost of removing and storing the same. The Borough may require a bond to be filed by the applicant in an amount to be determined by the Borough to secure the applicant's financial obligations under the maintenance agreement.
An indemnification agreement pursuant to which the applicant, in consideration of the issuance of the license, shall agree to forever defend, protect, indemnify and save harmless the Borough, its officers, agents and employees, from and against any and all claims, causes of action, injuries, losses, damages, expenses, fees and costs resulting from injury to person(s) or property as a direct or indirect result of the operation of the sidewalk cafe or for injury to person(s) or property occurring on the premises occupied by the sidewalk cafe.
The applicant shall provide to the Borough a certificate of insurance evidencing that it is covered by general liability insurance, which shall conform to the following requirements:
The policy shall be a comprehensive general liability policy, with coverage limits of at least $2,000,000 each occurrence and aggregate to satisfy all claims arising from bodily injury or property damage as a direct or indirect result of the operation of the sidewalk cafe.
The policy shall be issued by an insurance company duly authorized to transact business in New Jersey and shall name the Borough of Rockaway, 1 East Main Street, Rockaway, New Jersey 07866, its agents, officers, servants, representatives and employees as additional insureds.
The insurance coverage required by this chapter shall at all times be maintained for the full amount. The policy of insurance required by this section shall contain a clause obligating the company issuing the same to give not less than 30 days' written notice to the Borough Clerk before cancellation or amendments of any of the terms thereof. 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 sidewalk cafe covered thereby until a new policy complying with the provisions of this section is filed with the Zoning Officer and a letter in writing confirming the new effective date of the license is issued by the Zoning Officer.
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 canceled the insurance company shall 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.
As a condition of the issuance of an outdoor dining license, the Borough may require the applicant to bring sidewalks into conformity with Borough requirements pursuant to Chapter 217, Streets and Sidewalks, of the Code of the Borough of Rockaway, or the improvement of the area of outdoor cafe and the immediate vicinity to make the same safe for the public.
If the applicant has complied with all requirements for the issuance of a license, the Zoning Officer shall issue a license strictly subject to the terms and conditions of this chapter. Such license shall allow the operation of an outdoor cafe on any day of the year and shall be renewed annually during the month of January.
The license is personal to the applicant, and any change or transfer of ownership of the applicant shall terminate the license and shall require a new application and a new license in conformance with all of the requirements of this article.
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, article or regulation affecting the same. The licensee is required to display the license prominently in the front window of the adjacent building, facing the outdoor cafe.
Any license issued hereunder is issued solely as a revocable license, which shall be subject to revocation or suspension by the Borough for failure of any licensee to comply with this article or for violation of any other applicable federal, state, county or municipal law, regulation or article. 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 unlawful for any person to operate an outdoor cafe without the applicable license or 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 10 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 that the Borough determines that it is necessary to utilize the sidewalk area or any part thereof for a public purpose, for the maintenance or installation of underground utilities or for any other reason related to municipal functions. In the event of an emergency, which emergency is certified by the Borough Clerk, the license may be suspended or revoked without notice.
The outdoor cafe shall be operated and maintained by the same person who operates and maintains the related restaurant of which the outdoor dining area is a part and an extension. Service in the outdoor cafe shall be provided by persons engaged or employed for that purpose, and shall be furnished to seated patrons only. Food service shall be available at all times in which the outdoor cafe is open for business.
All food and drinks served or consumed at an outdoor cafe shall be prepared and stored in the interior of the restaurant. No heating or cooking of food shall be permitted in outdoor cafes.
The number of patrons served in the outdoor cafe shall be limited to the maximum number indicated on the outdoor cafe license. No persons other than those being served and restaurant personnel shall be within the outdoor cafe area except for those persons passing through the outdoor cafe area to enter or exit the adjacent building.
No outdoor cafe shall be open for business prior to 7:00 a.m. nor remain open for business after the closing of the restaurant in the adjacent building, but in no event later than 10:00 p.m. All persons occupying the outdoor cafe shall vacate the same no later than 10:30 p.m. All equipment, tables, chairs, umbrellas, etc., pertaining to the outdoor cafe shall be removed from the outdoor cafe and secured within the confines of the adjacent building if the outdoor cafe is not used for a period in excess of 10 consecutive calendar days.
Each licensee is responsible for keeping the area of the outdoor cafe and the adjacent walks, streets and other areas free and clear of any debris or litter occasioned by the cafe. Areas must be cleaned as needed and at the time that business is closed and at the beginning of each business day, but not earlier than 7:00 a.m. The surface of the outdoor cafe shall be washed and kept free of all debris. All foreign substances shall be removed from the sidewalk surface.
No furniture, apparatus, decoration or appurtenance used in connection with the operation of the outdoor 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. A minimum of three feet of unobstructed paved surface must be available for pedestrian movement, including the unimpeded passage of emergency responders and handicapped individuals, around or through the outdoor cafe.
No furniture, apparatus, decoration or appurtenance used in connection with the operation of a outdoor cafe shall be located in such a way that the paved sidewalk for the exclusive use of pedestrians (the "required pedestrian passageway") is less than one-half the width of the paved sidewalk or three feet, whichever is greater, nor shall any such furniture, apparatus, decoration or appurtenance project or protrude into, on or above the required pedestrian passageway; provided, however, that awnings and outdoor umbrellas may extend not more than one foot beyond the enclosure delineating the outdoor cafe but the bottom edge of the same must be not less than seven feet above the adjacent sidewalk. In the case of an outdoor cafe that abuts a private parking lot, the required pedestrian passage shall be maintained between the edge of the parking lot and the surface on which the outdoor cafe is located.
Tables, chairs and umbrellas shall be uniform and complementary in color, materials and style and without any form of lettering, marketing or advertisement. No picnic-style tables are permitted. No tables, chairs or other equipment used in the outdoor cafe shall be attached, chained or in any manner affixed to any building, tree, post, sign, curb, sidewalk or other structure or equipment or property of the Borough within or near the licensed area.
All equipment used in connection with the operation of an outdoor cafe must be anchored and/or weighted down in such a manner to prevent them from dislodging and injuring pedestrians or damaging vehicles.
Heat lamps, fire pits, chimineas, and other outdoor fireplaces or heating devices as well as air-conditioning fans or cooling devices are prohibited.
No vending machines of any kind are permitted within an outdoor cafe.
No refuse containers shall be permitted on a public sidewalk.
Smoking is prohibited in all outdoor cafes.
State and local health, safety and sanitation regulations applicable to restaurants generally shall also apply to outdoor cafes, including without limitation the applicable requirements of the New Jersey Sanitary Code, N.J.A.C. 8:24-1 et seq., and N.J.S.A. 24:15-1 et seq.
The licensee must comply with the restaurant requirements as to restroom facilities under the Uniform Construction Code, unless exempt therefrom.
Noise shall be kept at such a level as to comply in all respects with the provisions of the Borough Code. Music and any form of entertainment are prohibited.
The outdoor area upon which an outdoor cafe has been authorized to operate pursuant to this chapter may constitute premises duly licensed for the sale and consumption of alcoholic beverages; provided that the related restaurant of which the cafe is a part and of which it is an extension is so licensed; and provided further that specific approval has been obtained from the Borough for the extension of the alcoholic beverage consumption license to the outdoor cafe. Such approval shall be separate from, and must be obtained in addition to, the license to operate an outdoor cafe pursuant to this chapter.
Patrons of an outdoor cafe that does not have a liquor license to sell alcoholic beverages on the outdoor area upon which the outdoor cafe has been authorized to operate pursuant to this chapter may consume alcoholic beverages provided by such patron (BYOB), subject to the requirements of Chapter 91, Alcoholic Beverages, Article III, Drinking in Public Places, of the Code of the Borough of Rockaway.
The provisions of this chapter shall be enforced by the Rockaway Borough Zoning Officer, the Rockaway Borough Health Department or a member of the Police Department or the Fire Marshal. Upon a finding by the Zoning Officer, Health Department or a member of the Police Department or the Fire Marshal that a licensee has violated any provision of this section, the applicant shall be given notice to correct said violation. Upon failure to immediately correct said violation, the Rockaway Borough Zoning Officer may revoke the license to operate an outdoor cafe. Upon the revocation of such license, the licensee shall be entitled to a hearing before the Mayor and Council within 30 days, upon notice thereof, provided that a hearing is requested by the licensee in writing, within five days of revocation of the license.
Any person, firm or corporation violating any of the provisions of this chapter shall, upon conviction thereof, be punishable by one or more of the following: by a fine of not less than $100 nor more than $2,000; by imprisonment not exceeding 90 days; or by a period of community service not exceeding 90 days, all in the discretion of the Court.