[Adopted 4-14-2021 by Ord. No. 8/21; amended in its entirety 4-27-2022 by Ord. No. 5/22]
WHEREAS, on February 5, 2021, Governor Murphy signed P.L. 2021,
c. 15, which, among other things, expands opportunities for restaurants,
bars, distilleries, and breweries to provide outdoor dining, in response
to the COVID-19 public health emergency;
WHEREAS, P.L. 2021, c. 15, also mandates extension of the expiration
date of all COVID-19 expansion permits issued by the Director pursuant
to the provisions of Special Ruling No. 2020-10 until November 30,
2022, or the date on which indoor dining resumes without capacity
limitations, whichever is later; and
WHEREAS, the Town of West New York (the "Town") previously adopted
regulations to expand outdoor dining accommodations and licensing
of outdoor cafes for restaurants and food establishments located in
business, residential, commercial, and industrial zones throughout
the Town of West New York in response to COVID-19 related restrictions
and capacity limitations implemented throughout the state; and
WHEREAS, the Town seeks to amend its outdoor dining regulations
to restrict the use of parking spaces and to expand the use for outdoor
cafes located on the sidewalk of an adjacent structure:
For the purpose of this article, the following terms shall be
defined within this section as follows:
Any food/beverage establishment or restaurant that serves
food/other refreshments upon the sidewalk immediately in front of
the food/beverage establishment or restaurant or upon the sidewalk
in front of the lot immediately adjacent to the food/beverage establishment
or restaurant, provided that the adjacent lot and the food/beverage
establishment or restaurant have the same owner.
The area within the public right-of-way reserved for pedestrian
traffic from the curb to the front line of the food/beverage establishment
or restaurant.
It shall be unlawful for any person, firm, partnership, corporation,
association, or organization of any kind (hereinafter collectively
referred to as "person") to create, establish, run, maintain or otherwise
operate an outdoor cafe upon the sidewalks within the Town of West
New York or upon private property, unless such person shall hold a
currently valid license issued pursuant to the terms of this article.
The fee shall be $250 annually for the issuance of a license to operate
an outdoor cafe in the Town of West New York.
In addition to securing a license, a person may be required
to secure informal site plan approval from the Planning Board or the
Building Official. Such informal site plan approval will be the determination
of the Building Official and/or the Town Administrator.
A.
When located within the public right-of-way, outdoor cafes shall
be located on the public sidewalk directly in front of the restaurant/food
establishment to which the outdoor cafe is accessory. Outdoor cafes
may also be located on the sidewalk directly in front of a lot that
is immediately adjacent to the restaurant/food establishment, provided
that the restaurant/food establishment and the adjacent lot are owned
by the same person/entity. For purposes of administering this provision,
the term "directly in front of' shall be construed to mean the
area represented by an extension of each side of the restaurant/eating
establishment extending out to the curbline immediately in front of
the establishment. These outdoor cafes shall be required to maintain
a clear and unobstructed pathway designated to accommodate pedestrian
traffic that is at least 60 inches wide, located on the public sidewalk,
around or through the outdoor cafe space.
B.
On-street license add-on. Outdoor cafes are not permitted to be located
or operated on any street area or parking lot area within the Town
of West New York.
C.
When located on private property, outdoor cafes may be located in front of, on the side of, and/or to the rear of the eating establishment to which the outdoor cafe is accessory so long as they are located in the areas as defined previously in this article. Such cafes shall be located on the property containing the eating establishment and/or within the public right-of-way as permitted by Subsection A above. In the case of outdoor cafes that are located on properties containing multiple tenants, such cafes shall not be permitted to be located in front of, on the side of and/or to the rear of any other establishment on the same property unless both the property owner(s) and/or other tenant(s) give their consent in writing prior to the issuance of the license for the outdoor cafe. Such consent shall be valid only for the term specified in the consent or for the term of the license, whichever is less, and such consent shall be required to be renewed prior to renewal of the license. Such cafes shall be required to maintain an unobstructed impervious finished surface for pedestrian traffic at least 60 inches wide around or through such outdoor cafe.
Application for license required hereunder shall be made to
the Construction Code Official 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, or, if a domestic corporation, the names, residence
addresses and telephone numbers of the directors and officers owning
a 10% or greater interest in the corporation and the chief operating
executive of the corporation, and, if a nondomestic corporation, the
name, residence address and telephone number of the managing officer
for service of process within the State of New Jersey and a copy of
the qualification of said nondomestic corporation to conduct business
in the State of New Jersey.
B.
A copy of the trade, corporate, business or fictitious name upon
which the applicant intends to do business pursuant to this article.
C.
The address and description of each place 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 consent of the owner of the premises to
the application.
E.
Three sets of a proposed layout plan containing scaled drawings clearly
illustrating 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 by a portable-type enclosure, which may include live
plantings. The enclosure shall define the perimeter of the area to
be used as an outdoor cafe and shall be separate from the designated
walkway for pedestrian sidewalk traffic. The enclosure shall not contain
doors, windows, 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 or outdoor umbrellas extending over the enclosure are
permitted so long as the minimum height from the ground to the underside
of the umbrella or awning is 72 inches. The scaled drawings shall
also illustrate the following:
(1)
The location of any doors leading from the eating establishment 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 each outdoor
cafe.
(3)
The location of the place where any food or drink is intended to
be prepared.
(4)
An illustration of the enclosure or protective barrier separating
the eating and serving area of each outdoor cafe from pedestrian traffic.
(5)
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 eating establishment
or within 10 feet thereof on either or any side.
(6)
The type and location of any proposed outdoor lighting and fixtures.
(7)
Name, address, block and lot of all uses within 200 feet on either
side of the property, including types of uses, and, in the case of
mixed-use building, the location and type of use for each level within
the mixed-use building.
(8)
Seating capacity of the existing restaurant and the proposed outdoor
dining area and compliance of the restaurant with the parking requirements
of the Town of West New York.
F.
The annual application fee shall be $250.
The Town of West New York prohibits the operation of any outdoor
cafe that extends onto a public street, an area designated for street
parking or on any public or private parking lot. As of the effective
date of this article, all on-street dining licenses previously issued
by the Town of West New York prior to this article shall be deemed
invalid. The Town of West New York will not consider any on-street
license add-on requests included with an application for a license
to operate an outdoor cafe after the effective date of this article.
The Construction Code Official will review the application for
completeness and compliance with the terms of this article. If the
application is complete, the Construction Code 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 Code 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 article.
A.
If the application complies with the article, the Construction Code
Official shall issue a license strictly subject to the terms and conditions
of this article.
B.
In computing the number of off-street parking spaces required for
restaurants with outdoor dining area, the outdoor dining area and
its seating capacity shall be subject to any applicable health, building
and Fire Department codes and requirements as may be required by law
and ordinance. However, where such outdoor seating represents a relocation
of indoor seating such that there will be no increase in the overall
seating capacity of the restaurant, such areas shall not be included.
The license is personal to the applicant, and any change or
transfer of ownership of the outdoor cafe license shall terminate
the license and shall require a new application for a license in conformity
with all requirements set forth within this article.
Acceptance of the license by the applicant shall operate as
a consent to the health, fire, police and building officials of the
Town to inspect the outdoor cafe for continued compliance with the
terms and conditions of this article and any federal, state, county
or local law, article or regulation affecting the same.
No license to operate an outdoor cafe issued pursuant to this
article shall be granted to any person until and unless such person
has filed with the Construction Code Official a statement agreeing
to indemnify and hold harmless the Town of West New York, its agents,
servants, representatives or 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 due to any personal
injury, including death, or damage to property 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.
No license required by this article shall be granted to any person
to operate an outdoor cafe until such person shall have first filed
with the Construction Code 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 amount so specified. Such insurance
policy shall name the Town of West New York, 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:
B.
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 shall be filed with the Construction Code Official
and shall contain a clause obligating the company issuing same to
provide no less than 30 days' written notice to the Town Clerk
before cancellation or amendments of any of the terms within the policy.
Notice of cancellation shall not relieve the company issuing such
policy from 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 Code
Official and a letter in writing confirming the new effective date
of the license is issued by the Construction Code 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 for 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.
Any license issued hereunder is issued solely as a revocable
license, which shall be subject to revocation or suspension by the
Construction Code Official 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
after the suspension or termination of the applicable license, or
to utilize any parking space area; violators shall be subject to fines
of up to $1,000 for each violation. Each day an outdoor cafe or parking
space area is utilized without the applicable license or add-on is
a separate violation.
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 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, not later than 9:00 a.m. Sidewalks shall be washed and
maintained daily and kept free of all debris. All foreign substances
shall be removed from the sidewalk surface. No menu-type podiums or
advertisement boards and/or any reception-type stands shall be permitted
to be placed on the sidewalk.
No vending machines of any kind are permitted on the exterior
of any building an outdoor cafe.
No signs shall be permitted in the area of the outdoor cafe
except signs on the awnings complying with the Sign Ordinance[1] of the Town. Outdoor umbrellas located in the outdoor
cafe shall be exempt from the Sign Ordinance of the Town of West New
York.
In addition to the powers of suspension or revocation as set
forth above, the Town reserves the right to modify, suspend or revoke
any license on 24 hours' written notice if the Town determines
that pedestrian traffic is, in fact, impeded, made unsafe because
of the operation of the outdoor cafe or because of any other safety
issue which the Town determines adversely affects the Town because
of such operation. The license may also be suspended or revoked on
10 days' written notice in the event that the Town 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 Town Administrator,
the license may be suspended or revoked without notice.
If the applicant is the holder of an alcoholic beverage control
license pursuant to the laws of the State of New Jersey, it shall
be the applicant's responsibility to cause the alcohol beverage
control license to be amended to include the premises utilized for
outdoor cafe purposes in order to serve alcoholic beverages therein.
Alcoholic beverages shall not be the primary or sole item to be sold
in the outdoor cafe.
Outdoor cafes shall be permitted to operate from May 1 through
October 20. The license, when issued, shall be valid for the calendar
year in which it is issued.
No tables, chairs, benches or other equipment used 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 Town of West New York
within or near the licensed area. All outdoor items must be removed
daily at the close of business or no later than 10:00 p.m.
The licensee agrees that at the end of the license period, or
in the event that the license is temporarily or permanently suspended
or revoked, the licensee will at his own cost and expense vacate the
sidewalk space and promptly remove any property placed thereon. Failure
to do so on five days' written notice shall grant to the Town
the right to remove any property on the sidewalk, and the licensee
agrees to reimburse the Town for the cost of removing and storing
the same.
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 be open for business prior to 8:00 a.m.
nor remain open for business after 10:00 p.m. All persons occupying
the outdoor cafe shall vacate the same no later than 10:00 p.m.
No food or drinks served or consumed at outdoor cafes located
either on public or private property shall be prepared or stored other
than in the interior of the eating establishment. Table service is
required at restaurants only.
The Town of West New York shall issue a permit certificate upon
payment in full of the appropriate annual fee and compliance by the
applicant of the prerequisites set forth in this article. The licensee
is required to display the permit certificate prominently in the front
window, facing towards the sidewalk of the establishment. Failure
to properly display the requisite permit certificate shall result
in suspension or termination of the license by order of the Town of
West New York Town Administrator.
A.
An outdoor dining facility license shall be valid only through October
20 of a given year.
B.
A new outdoor dining facility license must be obtained for each year.
C.
An outdoor dining facility license may not be transferred in any
way.
D.
The license shall be displayed in a conspicuous place on the premises
prior to the use of the outdoor dining facility.
A.
"Smoking" shall mean the burning of, inhaling from, exhaling the
smoke from, or the possession of a lighted cigar, cigarette, pipe
or any other matter or substance which contains tobacco or any other
matter that can be smoked, or the inhaling or exhaling of smoke or
vapor from an electronic smoking device.
B.
Smoking shall be prohibited in all restaurants, food establishments
and outdoor cafes as defined herein. No-smoking signs or the international
no-smoking symbol (consisting of a pictorial representation of a burning
cigarette enclosed in a red circle with a diagonal red line through
its cross section) shall be clearly, sufficiently and conspicuously
posted at such outdoor restaurants and cafes. The signs shall be clearly
visible to the public and shall contain letters or a symbol that contrasts
in color with the sign, indicating that smoking is prohibited therein.
The sign shall also indicate that violators are subject to a fine.
C.
Enforcement of this article shall be within the authority of the
Police Department, Fire Department and Health Department of the Town
of West New York.
D.
Any person who violates any provision of this article shall be subject
to a fine of not less than $250 for the first offense, $500 for the
second offense and $1,000 for each subsequent offense.
The conduct of outdoor dining pursuant to a license issued under
this section shall be subject to and inclusive of all of the following
restrictions and requirements:
A.
Outdoor dining may only be in districts zoned for business, designated
in the Town of West New York, Construction Code Official and/or the
appropriate authority.
B.
The outdoor dining area must be clearly defined and limited by way
of a barrier, such as fencing, landscaping, a wall or as approved
by the Town of West New York.
C.
The outdoor cafes must not block, obstruct and/or inhibit pedestrian
traffic on public sidewalks. Pedestrian traffic must have a clear,
open and unobstructed right-of-way between the closest edge of the
outdoor dining tables and the curbline of the sidewalk. Such pedestrian
access shall have a minimum width of the greater of 10 feet or 1/2
of the sidewalk's width, but no less than six feet. There shall
be a minimum of six feet between the building and the front property
line in order for the dining area to be approved.
D.
Any outdoor dining area shall have adequate buffering from adjacent
buildings or sites consisting of landscaping and/or fencing. If the
outdoor dining area abuts residentially zoned land, the outdoor dining
area shall be located a minimum of five feet from the common property
line.
E.
Property owners shall not place anything in an alleyway, path, or
walkway or set up tables in such a manner as to block, obstruct, or
inhibit access to such alleyways, paths, or walkways.
F.
Outdoor dining facility owners, employers, and employees shall not
block, obstruct, or inhibit a building's entrance/egress. It
shall be unlawful to block or obstruct in any manner the clear width
of any exit's discharge passageway, as determined by the clear
width opening of the entrance/egress door(s). The exit's discharge
passageway shall proceed directly to the street.
G.
Only tables, chairs, umbrellas, and receptacles for garbage and recyclables
are permitted within the outdoor dining area.
H.
Outdoor dining facility owners, employers, and employees shall not
place any table, chair, sign, umbrella or other item in such a manner
as to block or obstruct any municipal sign receptacles for garbage
and recyclables, public hydrants, or other public amenity.
I.
Outdoor dining facility owners, employers, and employees must provide
for the disposal of garbage and recyclables. Public receptacles for
garbage shall not be used.
J.
The outdoor dining area and surrounding sidewalk and property areas
shall be kept clean from any and all litter during hours of operation.
K.
All customers must be seated in the outdoor dining area during their
patronage. Outdoor dining facility owners, employers, and employees
are prohibited from serving drivers or passengers of all vehicles.
L.
All food preparation shall be indoors in the regular kitchen area
of the retail food establishment.
M.
Any outdoor dining facility serving alcohol products in the outdoor
dining area shall be required to do so only in connection with food
service at tables. Alcohol service and/or consumption at the outdoor
dining facility is subject to further regulations more fully described
herein.
N.
All outdoor food service is subject to the regulations contained
in Chapter 12 of the New Jersey Sanitary Code.
O.
There must be absolutely no offensive odor emanating from the outdoor
dining facility and/or outdoor dining area due to food preparation,
handling, spoilage, and/or litter.
P.
Outdoor dining facility owners, employers and employees are prohibited
from using public utility hookups.
Q.
All sound and video systems are prohibited within the outdoor dining
area. The licensee shall not direct or permit to be directed to or
from the outdoor dining area any bell, chime, siren, or whistle. All
noise emanating from the outdoor dining area shall be kept at such
a level as to comply in all respects with the provisions of applicable
ordinances.
R.
Smoking shall be prohibited within and around the outdoor dining
area. Such areas shall be marked by a sign indicating the prohibition
of smoking.
S.
No signs of any nature shall be permitted in the outdoor dining area,
except as previously expressed.
T.
Outdoor dining may commence May 1 and may continue through October
20.
U.
Permissible hours of operation shall be from 8:00 a.m. to 10:00 p.m.
V.
The outdoor dining areas must be cleared and washed daily by 10:00
p.m.
W.
All Sanitary Code, alcoholic beverage requirements, and all other
laws and regulations shall apply to the outdoor seating unless specifically
excluded.
X.
The Town of West New York retains the right to temporarily suspend
license to operate an outdoor cafe to allow for construction activity,
utility repairs, special events, or any other appropriate reason as
determined by the Mayor and Board of Commissioners. Reasonable advance
notice must be given to the affected outdoor dining facility licensees.
Y.
All tables, chairs, and other materials must be removed from the
sidewalk except during hours of operation. All tables, chairs and
other materials must be kept within the areas permitted by the outdoor
dining license, and the sidewalk must be washed and/or swept daily.
Z.
If there are to be any chairs or tables placed on top of any basement
access hatches or Bilco-type doors, such doors and openings shall
be inspected, and certification provided to the Building Department
with the application identifying the structural integrity of such
areas as sufficient to adequately handle the weight.
