[HISTORY: Adopted by the City Council of the City of Gardner 3-21-2022 by Ord. No. 1648. Amendments noted where applicable.]
The meaning of words in this chapter shall be as follows:
The Building Commissioner, Building Inspector or alternate
Building Commissioner or their designee.
A food service operation that is operated from a moveable
vehicle, portable structure, or watercraft; has the capability of
changing location.
Any restaurant where food or refreshments are served or consumed
outside of the main building on either private property or on the
public right-of-way, immediately in front. The term "outdoor cafe"
does not apply to mobile food operations.
A table and chairs placed outside of any building for use
by the public and/or employees of the person placing the table for
eating food prepared at another location.
Any individual, partnership, association, firm, company,
corporation, department, agency, group, or public body.
That area of the public right-of-way reserved for pedestrian
traffic from the curb to the front line of the building.
A.
It is unlawful for any person to establish or operate an outdoor
cafe on the sidewalks of the City of Gardner unless the person holds
a currently valid license issued pursuant to the terms of this chapter
and owns or rents the premises adjacent to the outdoor cafe. Any license
holder operating an outdoor cafe on the sidewalks of the City of Gardner
may only do so from May 1 to September 30 each year in which the license
is held.
B.
Any commercial food establishment may, with a license from the Building
Commissioner, place outdoor tables and chairs for the use of its employees
or the public for the consumption of food or beverages prepared by
the food establishment.
A.
If the cafe is located within or on the sidewalk, it shall be located
adjacent to the premises which operates it and may extend to the curb
line in front of the premises. The person operating the outdoor cafe
must maintain an unobstructed paved surface for pedestrian traffic
as determined by the Building Commissioner.
B.
When located on private property, outdoor cafes must be adjacent
to the premises to which the outdoor cafe is accessory but may be
located in front of, on the side of and/or to the rear of the premises.
Such cafes shall be required to maintain an unobstructed paved surface
a minimum of 48 inches' clear width for pedestrian traffic as
determined by the Building Commissioner. Any relief from this requirement
may be sought from the Architectural Access Board (AAB).
Any person may apply to the Building Commissioner. The application,
signed by the applicant, shall contain the following information:
A.
The name, residence address and telephone number of each person having
an ownership interest in the operation of the activity, including
the names of the managers or officers of a limited-liability company;
if a corporation, the names, residence addresses and telephone numbers
of the corporation and the name of the person authorized to accept
service of process within the Commonwealth of Massachusetts.
B.
A copy of a doing-business-as certificate if the applicant will operate
the business under a business or fictitious name.
C.
The address and description of the premises where the applicant intends
to establish or operate an outdoor cafe.
D.
The name and address of the person owning the premises, if other
than the applicant, and the signed consent of the owner of the premises
for the operation of the outdoor cafe.
E.
Two sets of a proposed layout sketch clearly illustrating the number
and location of all tables, chairs, umbrellas or other furnishings
or fixtures intended to be located in the outdoor cafe. The sketch
must show the perimeter of the area to be used and the area of unobstructed
space permitting free passage of pedestrian traffic around or through
the outdoor cafe. The perimeter may be set off by a portable-type
enclosure, which may include line plantings. The plan shall also show
the following:
F.
An application fee in the amount of $75 shall be submitted with the
application.
The Building Commissioner will review the application for completeness,
compliance with this chapter and compliance with other applicable
laws and regulations, including those enforced by the Gardner Board
of Health. If the application is complete, the Building Commissioner
will act upon the same within 30 business days of the submittal of
the application. If the application is incomplete, the Building Commissioner
will notify and inform the applicant as to how the application is
incomplete.
If the application complies with this chapter, the Building
Commissioner shall issue a license to run concurrently with the establishment's
certificate of inspection, subject to the terms and conditions of
this chapter. The Building Commissioner may impose reasonable terms
and conditions on the license and may promulgate regulations relating
to licenses granted under this chapter. The regulations shall be filed
with the City Clerk.
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 new application and a new license meeting the requirements
of this chapter.
Acceptance of the license by the applicant shall operate as
a consent to inspection of the premises by the health, fire, police
and building officials of the City for the purpose of determining
compliance with the terms and conditions of this chapter and other
applicable federal, state, or local laws or regulations.
The Building Commissioner may not grant a license to any person
to operate an outdoor cafe, on City property, until and unless such
person files with the Building Commissioner or his or her designee
a written indemnification and hold harmless agreement indemnifying
the City of Gardner, its officers, agents, servants and employees
from any or all claims, damages, judgment costs or expenses, including
attorney's 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.
A.
The Building Commissioner may not grant a license to any person to
operate an outdoor cafe until and unless such person files with the
Building Commissioner or his or her designee a copy of a comprehensive
general liability policy issued to such person by a public liability
insurance company authorized to do business in the Commonwealth of
Massachusetts, affording the coverages set forth below in the amounts
so specified. Such insurance policy shall name the City of Gardner,
95 Pleasant Street, Gardner, MA 01440, its agents, officers, servants,
and employees as additional insured with respect to the operation
and maintenance of the outdoor cafe in the following amounts: general
liability, $1,000,000 each occurrence/$3,000,000, general aggregate.
B.
The insurance coverage required by this chapter shall at all times
be maintained for the full amount. The policy of insurance required
by this chapter to be filed with the Building Commissioner or his
or her designee shall contain a clause obligating the company issuing
the same to give not less than 30 days' written notice to the
City Clerk before failing to renew or canceling the policy or amending
any of the terms thereof. The cancellation, termination or nonrenewal
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 chapter is
filed with the Building Commissioner or his or her designee.
A.
Any license issued hereunder may be revoked or suspended by the Building
Commissioner for noncompliance with this chapter or any term or condition
of the license or for violation of any other applicable federal, state,
or municipal law or regulation. Any license issued hereunder is issued
upon the express understanding that the licensee obtains no property
right or interest in the continuation of said license.
B.
In addition to the powers of suspension or revocation as set forth
above, the City reserves the right to modify, suspend or revoke any
license on 10 days' written notice if the City determines that
pedestrian traffic is made unsafe because of the operation of the
outdoor cafe. The license may also be suspended or revoked on 10 days'
written notice in the event that the City 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 an emergency, which emergency
is certified by the Building Commissioner, the license may be suspended
or revoked without notice.
C.
If the license is suspended or revoked, the licensee will, at his
or her own cost, vacate the sidewalk space and promptly remove any
property placed thereon. Failure to do so within five days shall grant
the City the right to remove any property from the sidewalk, and the
licensee shall reimburse the City's cost of removal and/or storage.
Each licensee is responsible for keeping the area of the outdoor
cafe and the adjacent walks and streets free and clear of any debris
or litter resulting from the operation of the cafe. The area must
be cleaned as needed and at the beginning and end of each business
day.
Parking for the licensee must still meet all requirements of Chapter 675 of the City Code.
If the applicant is the holder of an alcoholic beverage control
license pursuant to the laws of the Commonwealth of Massachusetts,
it shall be the applicant's responsibility to cause the alcoholic
beverage control license to be amended to include the premises utilized
for outdoor cafe purposes in order to serve alcoholic beverages therein.
For holders of an alcoholic beverage license, to the extent there
is any conflict between this chapter and the rules and regulations
of the Board of License Commissioners or the ABCC, the latter will
control.
No outdoor cafe shall remain open for business after 2:00 a.m.
All persons occupying the outdoor cafe shall vacate the same no later
than 2:00 a.m.
The license shall be displayed in a conspicuous place on the
premises.
All provisions of this chapter are severable. If for any reason
any provision of this chapter is held to be invalid, the validity
of the remainder of the article shall not be affected.
