[HISTORY: Adopted by the Council of the Township of Montclair 12-18-2012 by Ord. No. O-12-65. Amendments noted where applicable.]
Alcoholic beverages — See Ch. 74.
Consumption of alcohol in public — See Ch. 127.
Noise — See Ch. 217.
Signs — See Ch. 277.
Streets and sidewalks — See Ch. 297.
Editor's Note: This ordinance superseded former Ch. 276, Sidewalk Cafes, adopted 5-13-1997 by Ord. No. 97-16, as amended.
The Township Council of Montclair has determined that the establishment of sidewalk cafes permitting dining will promote the public interest by creating an attractive pedestrian environment for its businesses during the day and night and will foster a pleasant and distinctive ambience within the Township. The purpose of this chapter is to establish the appropriate regulations to license and regulate this activity in order to ensure that the health, safety and welfare of the Township is protected.
As used in this chapter, the following terms shall have the meanings indicated:
- ADJACENT BUILDING
- The building whose principal facade fronts on the sidewalk where the sidewalk cafe is or is proposed to be located.
- Movable cafe partitions shall be provided which shall separate the sidewalk cafe from the pedestrian passageway. Said partition shall be no less than 30 inches in height and shall not exceed 36 inches in height, and the design of the partition shall clearly delineate the pedestrian passageway. The partition shall be appropriate to the facade of the building. The partition and all tables and chairs shall be removed from the sidewalk at the close of business each day.
- Any individual, partnership, corporation, association or other entity.
- PRINCIPAL FACADE
- That portion of the facade of a building which fronts on a street.
- A. For sidewalks measuring 15 feet or less from the principal facade to the curb: the sidewalk cafe shall be located immediately adjacent to the principal facade. In no case shall the sidewalk cafe extend so far as to leave less than six feet for pedestrian traffic (area which is unobstructed by trees, light poles, trash receptacles, parking meter posts, planters and similar structures).
- B. For sidewalks measuring over 15 feet, the pedestrian passageway shall be located immediately adjacent to the principal facade, and the seating area of the sidewalk cafe shall begin beyond the passageway.
- C. At least a six-foot unobstructed passageway shall be provided for pedestrian traffic (area which is unobstructed by trees, light poles, trash receptacles, parking meter posts, planters and similar structures) at all times.
- D. Sidewalk cafes shall only be permitted in front of an operating retail food establishment preparing food and beverages on premises. In those situations where an operating retail food establishment is located on a corner, both the front and the side street area of the retail food establishment may be utilized, following the above stipulations for sidewalk width.
- REQUIRED PEDESTRIAN PASSAGEWAY
- An area of sidewalk, parallel to the principal facade, unobstructed by trees and light poles, trash receptacles, parking meter posts, telephone booths and similar structures. The location of a required pedestrian passageway shall adhere to the definition of "projections" above, dependent upon the width of the sidewalk.
- RETAIL FOOD ESTABLISHMENT
- The establishment actually located within the adjacent building for which a current retail food establishment inspection certificate has been issued by the Department of Health, and shall include, by way of example, a restaurant, hotel, coffee shop, tearoom, dining room, cafeteria, luncheonette, soda fountain, sandwich shop, delicatessen and the like.
- The paved surface provided for the exclusive use of pedestrians in the public right-of-way and situated between and extending from any building to the curb of any street (excluding therefrom any unpaved area).
- SIDEWALK CAFE or CAFE
- The utilization of sidewalk space beyond the building line to accommodate the serving of food and drink to patrons of a restaurant or retail food establishment preparing food and beverages on premises, which space is unenclosed and does not have walls. It shall consist of tables and chairs set in front of the restaurant or retail establishment.
No person shall operate a sidewalk cafe within the Township of Montclair without first obtaining a sidewalk cafe license and satisfying all of the requirements of this chapter. Licenses shall be renewed annually in accordance with § 276-8.
The Township of Montclair shall issue such license upon the adherence to all conditions set forth in this chapter and all applicable Township and state laws and regulations.
The Township of Montclair reserves the right to revoke the license of any sidewalk cafe licensee who, upon the expiration of 10 days after receipt of notice from the Township of Montclair or its agents of a violation of state law or any of the requirements set forth in this chapter, fails to abate the violation.
The Township of Montclair expressly reserves the right to require the removal of all sidewalk cafes or other projections or encumbrances upon any street, sidewalk or public easement which are improperly constructed or maintained.
An application for an initial sidewalk cafe license or a renewal license shall be accompanied by an annual operation fee in the amount of $150 for sidewalk cafes seating 12 or fewer patrons and an annual operation fee in the amount of $250 for sidewalk cafes seating over 12 patrons. For sidewalk cafes which extend a distance greater than four feet from the principal facade and have greater than three tables/six seats, an additional sidewalk use fee of $1.25 per square foot of outdoor dining area will be assessed. For the first year following the passage of this chapter, the sidewalk use fee shall be waived for any applicant who provides proof that he/she has purchased cafe partitions at a reasonable cost to comply with this chapter. The Township shall issue the sidewalk cafe license upon adherence to all conditions set forth in this chapter and all applicable Township and state laws and regulations. Renewal applications and license fees must be received by the Health Department no later than January 31 of the year preceding the year for which the license is issued. A late fee of $50 will be assessed for renewal applications received after January 31, and $100 for those received after February 28.
All changes in ownership shall require a new application and license with payment of the fee provided herein.
Each applicant for a sidewalk cafe license shall submit and file an initial application form with the Health Department, together with five copies of a cafe plan (as defined below), and the appropriate fee. The application shall set forth:
The term "cafe plan" shall mean a plan setting forth the following information, and such other additional information, if any, as may be deemed necessary and subsequently requested by the Township:
Identification of the adjacent building and properties immediately adjacent to such building.
A scaled drawing of the proposed design and location of the sidewalk cafe; all temporary structures, equipment and apparatus to be used in connection with its operation, including actual square footage of the dining area, partitions, tables (size included), chairs, planter, lighting and electrical outlets (if any); provisions for the storage of such structures, equipment and apparatus; proposed signage; and the location of any fire hydrant, plug or standpipe, utility pole, parking meter station, telephone booth or other permanent fixture between the adjacent building and the curb, including a clear indication of the presence of the required pedestrian passageway. Accessory items such as signs, hostess desk, service stations and other items associated with the sidewalk cafe shall not be permitted on the sidewalk outside the designated boundary of the cafe. The plan shall be drawn to scale but need not be professionally drawn.
A statement of the seating capacity of the proposed sidewalk cafe and of the existing retail food establishment actually operated by the applicant in the adjacent building.
Cafes with size constraints making it unreasonable to comply with the partition requirements may apply for a waiver of such. Approval of the waiver is at the discretion of the Health Department.
The Health Department shall refer the cafe plan to the Fire Official, Uniform Construction Code Official, and Housing and Zoning Officer, who shall review such cafe plan, verify whether there are any outstanding code violations for the retail food establishment (i.e., zoning, property maintenance, building and fire codes) and provide a written recommendation based upon the plan's compliance with §§ 276-3 and 276-8 of this chapter to the Health Department within five business days.
Applications for renewal of (previously approved) sidewalk cafes which have no changes from the initial application may submit a license renewal form, updated insurance information and annual fee only.
If no outstanding violations exist, the Health Department shall approve or disapprove the cafe plan no later than 10 business days from the date of submittal of a complete application and plan.
No sidewalk cafe license shall be issued unless the licensee shall have first filed adequate proof that the following insurance requirements have been provided:
The following wording must appear on the insurance certificate: "The certificate holder (Township of Montclair) is included as an additional insured as respects losses arising solely from the operation of the sidewalk cafe."
Ten days' written notice of cancellation must be provided to the Township.
Insurance in force must be written by a company licensed to do business in the State of New Jersey and rated A or better by A.M. Best Rating, and the certificate shall so state: "Rated by A.M. Best Rating."
Minimum coverage requirements are:
General aggregate: $1,000,000.
Products and completed operation aggregate: $1,000,000.
Personal and advertising injury: $1,000,000.
Each occurrence: $1,000,000.
Fire damage (any one fire): $50,000.
Medical expense (any one person): $5,000.
Workers' compensation: statutory requirements.
No sidewalk cafe license shall be issued unless the licensee shall have first executed and filed with the Health Department an indemnification agreement pursuant to which the licensee, in further consideration of the issuance of the license, shall agree to forever defend, protect, indemnify and save harmless the Township of Montclair, its officers, agents and employees, from and against any and all claims, causes of action, injuries, losses, damages, expenses, fees and costs, including attorneys' fees, arising out of or which may arise out of the licensee's operation of such sidewalk cafe.
All sidewalk cafe licenses shall be issued for a one-year period, beginning March 1 and ending February 28.
Licenses may be renewed annually by the filing of an annual application.
The Township may temporarily suspend a sidewalk cafe license if access to the sidewalk is needed in connection with public work to be performed in the area.
A sidewalk cafe authorized and operating pursuant to this chapter shall comply with all of the following rules and regulations and such others as may be adopted from time to time by ordinance of the Township Council:
The cafe shall be operated and maintained in accordance with the cafe plan as finally approved and by the same person who operates and maintains the abutting retail food establishment.
The placement of furniture, apparatus, decoration or appurtenances used in connection with the operation of the sidewalk cafe in relation to any fire hydrant, plug or standpipe permanent fixture shall be approved by specific written authorization of the Fire Official based upon his or her review of the cafe plan.
No furniture, apparatus, decoration or appurtenance used in connection with the operation of the 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 sidewalk cafe shall be located in or project or protrude into the required pedestrian passageway, and such encumbrances shall not pose a safety hazard to the general public.
Any table service provided at the sidewalk cafe shall be provided by persons engaged or employed for that purpose and shall be furnished to seated patrons only. Table service is not required, and retail food establishments that do not provide table service may operate sidewalk cafes in which patrons carry their food from inside the premises to tables located in the sidewalk cafe.
The sidewalk area utilized by the sidewalk cafe shall be kept clean and free of litter and shall be washed as necessary. Covered trash receptacles shall be provided and maintained (emptied) by the retail food establishment operator.
Noise shall be kept at such a level as to comply in all respects with the provisions of applicable ordinances. Exterior lighting shall be directed onto the sidewalk cafe and shall not intrude on adjacent residential properties.
Sidewalk cafes shall be permitted to operate only from 7:00 a.m. until 11:00 p.m.
Within 30 minutes after the closing of the restaurant, the licensee shall cause to have removed from the sidewalk all partitions, furniture, trash receptacles, apparatus, decorations and appurtenances, and any other material or items used in connection with the operation of such cafe. All such materials and items shall be stored in a safe and secure location approved by the Fire Chief and shall not be stored in food preparation or food storage areas.
No food may be prepared or stored in the sidewalk cafe or outside the adjacent building.
The license shall comply with all other ordinances of the Township of Montclair.
The sidewalk area upon which a cafe has been authorized to operate pursuant to this chapter may constitute premises duly licensed for the sale and consumption of alcoholic beverages; provided, however, that the related restaurant of which the cafe is a part is so licensed; and provided, further, that specific approval has been obtained pursuant to New Jersey alcoholic beverage control regulations for extension of the alcoholic beverage consumption license to the sidewalk area. Such approval shall be separate from, and must be obtained in addition to, the license to operate a sidewalk cafe pursuant to this chapter.
Retail food establishments which do not have a license to sell alcoholic beverages within their premises but are legally permitted to allow patrons to carry onto and consume alcoholic beverages inside the establishment (BYOB) shall also be permitted to allow patrons to carry onto and/or consume alcoholic beverages on any sidewalk area duly licensed as a cafe hereunder.
Upon determination by the Health Department that a licensee has violated one or more of the provisions of this chapter, the Department may 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 sidewalk cafe license may thereupon be revoked. Any licensee cited for three or more violations of this chapter, even if corrected, may have his or her license revoked.
Any person aggrieved by any action of the Health Department, in the denial or revocation of a sidewalk cafe license, shall have the right to appeal to the Township Manager. The appeal shall be taken by filing with the Health Department, within 30 days after the notice of the action complained of has been served personally upon the licensee, or mailed, postage prepaid, to the licensee at the address given by the licensee on the application form, a written statement setting forth fully the grounds for appeal. The Health Department shall set a time and place for the appeal, which, in the case of a license revocation, shall be no later than five business days after the appeal is filed, at which time the Township Manager shall conduct a hearing and affirm, modify or reverse the action appealed from.
Any person who violates any provision of this chapter shall, upon conviction thereof, be punished by a fine not exceeding $2,000, imprisonment in the county/municipal jail for a term not exceeding 90 days, or a period of community service not exceeding 90 days, or any combination thereof as determined by the Municipal Court Judge. Each day on which a violation of an ordinance exists shall be considered a separate and distinct violation and shall be subject to imposition of a separate penalty for each day of the violation as the Municipal Court Judge may determine.