[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:
A.
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.
B.
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:
The building whose principal facade fronts on the outdoor
cafe.
An outdoor cafe located entirely on private property.
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.
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]
A.
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.
B.
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.
A.
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.
B.
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:
A.
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.
B.
Any trade, corporate, business or fictitious name under which the
applicant intends to do business pursuant to this article.
C.
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.
D.
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.
E.
The name and address of the owner of the adjacent building.
F.
The written authorization and approval the owner of the adjacent
building.
G.
The applicable fee.
H.
A copy of a valid food establishment license issued by the Borough
of Rockaway Health Department.
I.
If applicable, a copy of the liquor license and diagram of the licensed
premises issued to the establishment.
J.
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.
K.
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:
(1)
The location of any doors leading from the restaurant to the outdoor
cafe. No such doors may be obstructed in any manner.
(2)
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.
(3)
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.
(4)
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.
(5)
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.
[Amended 9-8-2022 by Ord. No. 18-22]
A.
A license for a sidewalk cafe shall not be issued unless the applicant
has furnished the following to the Borough:
(1)
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.
(2)
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.
B.
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:
(1)
The policy shall be a comprehensive general liability policy, with
coverage limits of at least $1,000,000 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.
(2)
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.
(3)
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.
(4)
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
Heat lamps, fire pits, chimineas, and other outdoor fireplaces or
heating devices as well as air-conditioning fans or cooling devices
are prohibited.
K.
No vending machines of any kind are permitted within an outdoor cafe.
M.
No refuse containers shall be permitted on a public sidewalk.
N.
Smoking is prohibited in all outdoor cafes.
O.
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.
P.
The licensee must comply with the restaurant requirements as to restroom
facilities under the Uniform Construction Code, unless exempt therefrom.
Q.
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.
R.
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.
S.
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.
