News Releases

7/2/2014 - Ordinance 14-10739 Sidewalk Dining and Consumption

ORDINANCE NUMBER 14-10739

AN ORDINANCE AMENDING CHAPTERS 5 AND 35 OF THE CITY CODE BY AMENDING SECTIONS 5-25, 35-36, 35-40.2 AND ESTABLISHING CHAPTER 35, ARTICLE XII, TO ADDRESS PLACEMENT OF CERTAIN ITEMS ON THE PUBLIC SIDEWALK IN THE C-4 CENTRAL BUSINESS DISTRICT AND TO GOVERN SIDEWALK DINING IN THE LEE DISTRICT.

 BE IT ORDAINED by the Governing Body of the City of Salina, Kansas:

Section 1.  Section 5-25 of the Salina Code is hereby amended to read as follows:

Sec. 5-25.  Consumption on specified property owned by the city.
Pursuant to K.S.A 41-719(d):

(1) It shall be lawful to drink, or consume alcoholic liquor at the following locations and areas, at times and places authorized by the rules and regulations adopted for such locations’ operation:

(a) Within the confines of the Salina Bicentennial Center, and on the grounds and parking lots under city ownership surrounding the Salina Bicentennial Center, located in Kenwood Park;
(b) Within the confines of the Smoky Hill Museum, located at 211 West Iron Avenue;
(c) Within the confines of the portion of Memorial Hall leased to Community Access Television of Salina, located at 410 W. Ash; and
(d) Within a sidewalk dining area, as defined within chapter 35, pursuant to a sidewalk café license agreement executed by the city commission.

(2) Only in association with a special event approved by the city manager, with or without conditions, based upon the information contained in a written application on a form provided by the city and consideration on the basis of criteria established by resolution of the governing body, it shall be lawful to drink or consume alcoholic liquor within the boundaries of the following locations:

(a) Jerry Ivey Park;
(b) Bill Burke Park;
(c) The East Crawford Recreational Area;
(d) The Municipal Golf Course; and
(e) Those areas within the Lee District owned by the city and not requiring a special event temporary permit pursuant to section 5-24.

Section 2. Section 35-36 of the Salina Code is hereby amended to read as follows:
Sec. 35-36. Prohibited.
It shall be unlawful for any person to obstruct or encroach upon any sidewalk, street, avenue, alley or other public property, unless otherwise authorized in accordance with this chapter.

Section 3.  Section 35-40.2 of the Salina Code is hereby amended to read as follows:
Sec. 35-40.2. Use of public sidewalk in C-4 central business district for placement of movable flower pots, planters, bicycle racks and business-hours-only placement of moveable signs and outdoor furniture.
If any owner of a building constructed without setback from an abutting public sidewalk, plaza or arcade in the C-4 central business district requests a permit for use by the owner or the owner's tenant of the abutting sidewalk, plaza or arcade for the placement of movable flower pots, movable planters, moveable bicycle racks, and/or business-hours-only placement of movable signs and/or movable outdoor furniture, the city manager's designee may grant such a permit following review and recommendation by the Lee District design review board, based upon administrative regulations recommended by the city manager and adopted by the city commission. A moveable sign for which a permit is obtained pursuant to this section shall be exempt from any other sign permit requirements.

Section 4.  Article XII of Chapter 35 of the Salina Code is hereby established to read as follows:

ARTICLE XII.  SIDEWALK CAFES

Sec. 35-261. Definitions. 
As used in this article, unless the context clearly indicates otherwise, the following words and phrases shall have the meanings ascribed to them in this section:

(1) Adjoining sidewalk or plaza means the area of sidewalk or plaza located within the area defined by the projection of the angle of the exterior walls of a restaurant building.  If a restaurant building has adjoining sidewalk or plaza on connecting sides, the area between the two resulting segments of adjoining sidewalk or plaza may be included in the “adjoining sidewalk or plaza” for purposes of determining the sidewalk dining area.

(2) Applicant means the owner of a restaurant who has filed with the city an application for a sidewalk café license agreement.

(3) Application means the completed city form and any accompanying documentation filed with the city by the applicant for the purpose of obtaining a sidewalk café license agreement.

(4) Extended sidewalk or plaza means the area of sidewalk or plaza connected to and uninterruptedly extending from the adjoining sidewalk or plaza.

 

(5) Lee District means that area associated with Salina Business Improvement District No. 1 designated by the governing body from time to time as “the Lee District.”

(6) Licensee means the owner of a restaurant authorized under this article to use sidewalk and/or plaza for sidewalk dining pursuant to a sidewalk café license agreement.

(7) Plaza means any uncovered city-owned real property or public right-of-way designated for pedestrian public use and not motor vehicle traffic or parking.

(8) Restaurant shall have the same meaning as provided in section 42-755.

(9) Sidewalk dining means the consumption of food, beverages (including, but not limited to, alcoholic liquor beverages or cereal malt beverages), or both, by patrons of a restaurant outdoors on a specific area of a sidewalk and/or plaza set aside for that purpose.

(10) Restaurant building means the building in which a restaurant is located within the Lee District.

(11) Sidewalk café license agreement means the agreement between the city and the owner of a restaurant stating the terms under which the owner of the restaurant may utilize the sidewalk dining area for sidewalk dining.

(12) Sidewalk dining area means that portion of the adjoining sidewalk or plaza and, if applicable, the extended sidewalk or plaza which has been approved by the city for sidewalk dining pursuant to a sidewalk café license agreement.

(13) Unobstructed walkway means the area of sidewalk and/or plaza to remain open for unobstructed pedestrian traffic between the sidewalk dining area and street curb, permanent plantings, permanent street lighting, or other permanent obstructions.

Sec. 35-262. Sidewalk café license agreement required; sidewalk dining prohibited outside of the Lee District. 
No owner or manager of a restaurant shall permit sidewalk dining without first obtaining a sidewalk café license agreement.  No sidewalk café license agreement shall be issued for an establishment that does not meet the definition of “restaurant” or for a restaurant located outside of the Lee District.

Sec. 35-263. Sidewalk café license agreement fees. 

(a) Application fee. Each applicant seeking to obtain a new sidewalk café license agreement shall pay a non-refundable fee to the city clerk in an amount determined pursuant to section 2-2.  Such fee shall be paid regardless of whether an applicant has obtained an executed sidewalk café license agreement in the past. 
(b) Renewal fee.  Following approval of a sidewalk café license agreement, a licensee shall pay a non-refundable annual renewal fee to the city clerk in an amount determined pursuant to section 2-2 prior to renewal of the sidewalk café license agreement pursuant to section 35-267.

Sec. 35-264. Applications.
An application for a sidewalk café license agreement shall contain, without limitation, the following information:

(a) Applicant’s name and the names of any other persons or entities who own and/or operate the restaurant for which applicant is submitting the application, as well as such persons’ email address(es), business address(es), business telephone number(s) and mailing address(es).

(b) The name of the manager of the  restaurant for which the application is being submitted, his or her telephone number, mailing address, and email address.

(c) Written permission of all owners of record (including all equitable owners, if any) of the real property upon which the applicant’s restaurant is located.

(d) If the applicant seeks to offer sidewalk dining on extended sidewalk or plaza, written permission of all owners of record (including all equitable owners, if any) and all tenants, if any, of the real property that immediately abuts or adjoins the extended sidewalk or plaza.

(e) A copy of a certificate of insurance, in accordance with section 35-268, establishing that the applicant has procured appropriate liability insurance and that such insurance is current.

(f) A copy of the applicant’s current food establishment license.

(g) A sidewalk café license agreement signed by the applicant.

(h) Whether the applicant desires to serve food only or whether the applicant wishes to serve alcoholic liquor and/or cereal malt beverages in addition to food.

(i) An attached site plan showing:

i. Property lines and, if applicable, any building setbacks of the subject property;

ii. An elevation drawing;

iii. A note setting forth the square footage of the sidewalk dining area;

iv. A drawing or diagram showing the seating configuration, umbrellas and other objects within the sidewalk dining area and all surface obstructions within 15 feet of the proposed sidewalk dining area;

v. A drawing or diagram showing the width of unobstructed walkway abutting or adjoining the sidewalk dining area;

vi. Size, location, style, design, and color of all fences or other structures serving as barriers or boundary markers for the proposed sidewalk dining area; 

vii. Points of access to the sidewalk dining area; and

viii. Points of access to the restaurant building and any other building immediately adjacent to the proposed sidewalk dining area.

(j) The applicant’s signature and the date of signature.

Sec. 35-265.  Application approval or denial.

(a) Review by Lee District design review board.  An application for a sidewalk café license agreement shall be referred by the zoning administrator to the Lee District design review board for review.  The Lee District design review board shall review such application within a reasonable time thereafter.

(b) Recommendation to city commission; city commission review.  After reviewing an application, the Lee District design review board shall submit a written recommendation to the city commission, which may adopt, modify or reject the recommendation of the Lee District design review board, or may return the application to the Lee District design review board for further consideration together with a statement specifying the basis therefor.  If the city commission chooses to approve an application, subject to its modifications, if any, and to execute the sidewalk café license agreement, the application shall be incorporated into the sidewalk café license agreement.

(c) Criteria for review and recommendation. 

i. Review.  The Lee District design review board shall review all applicable evidence regarding the sidewalk dining area, existing and proposed structures, neighboring uses, street access, pedestrian traffic circulation, utilities, drainage, the proposed operation, and such other evidence as deemed appropriate.

ii. Standards.  The Lee District design review board shall issue a recommendation in relation to each specific application based upon specific written findings of fact taking into consideration the particular evidence presented to it, in order to determine whether the proposed sidewalk café license agreement complies with the following criteria:

1. The proposed sidewalk café license agreement complies with all applicable provisions of this article or administrative regulations adopted pertaining to sidewalk dining;

2. Sidewalk dining on the sidewalk dining area will contribute to the welfare of the public by increasing the vibrancy and appeal of the city in the Lee District;

3. Sidewalk dining on the sidewalk dining area will not cause substantial injury to the value of other property in the neighborhood in which it is located; and

4. The location and size of the sidewalk dining area with respect to unobstructed walkway in the immediate vicinity of the sidewalk dining area will not unreasonably impede pedestrian traffic.

(d) Denial authority. 

i. The above notwithstanding, the Lee District design review board is authorized to deny an application if one of the following conditions are satisfied by mailing a notice of denial to the applicant at the applicant’s address provided in the application, stating the reason for the denial and that the applicant has the right to appeal such denial:

1. The application is incomplete;

2. The applicant does not meet the definition of a “restaurant” as provided by section 35-261 above;

3. The proposed use of the sidewalk and/or plaza in the application will not comply with this article or regulations adopted pursuant to this article; or

4. The applicant has had a sidewalk café license agreement terminated by the city for any reason within two years prior to submission of the application.

Provided, however, that if the sole basis for denial is an incomplete application, the Lee District design review board may allow the applicant additional time to complete the application.

 

ii. If the Lee District design review board denies an application, the applicant may appeal the denial to the city commission by filing a notice of appeal in the office of the city clerk on a form provided by that office.  The notice of appeal must be filed within 14 calendar days of the date of the board’s decision and shall state the basis for the appeal.  The city commission shall review such denial within a reasonable time thereafter and may affirm or overrule the denial of the Lee District design review board, may approve the sidewalk café license agreement with additional conditions, or may return the application to the Lee District design review board for further consideration together with a statement specifying the basis therefor.

Sec. 35-266.  Sidewalk café license agreement; term.

(a) Content.  Upon approval of an application for a sidewalk café license agreement, a sidewalk café license agreement shall be executed in a form provided by the city, which, without limitation, shall contain the name and mailing address of the licensee, a statement of terms and conditions consistent with this article, and the term of the sidewalk café license agreement.

(b) Term.  A sidewalk café license agreement shall be effective on the date of execution and shall expire at midnight on the subsequent May 1.

Sec. 35-267.  Sidewalk café license agreement renewal; denial.

(a) Renewals. 

i. Payment of fee and certificate of insurance. The Lee District design review board shall grant an annual renewal of a sidewalk café license agreement then in effect for an existing or reduced sidewalk dining area, upon submission by licensee to the city clerk of a renewal application form, along with payment of the renewal fee and submission of a certificate of insurance establishing that the applicant has procured appropriate liability insurance and that such insurance is current, in accordance with section 35-268, unless as otherwise provided in subsection (b) below. 

ii. Payment deadline. Payment of the renewal fee and submission of a certificate of insurance must be delivered to the city clerk by February 1.  If a licensee fails to make the renewal payment and/or to provide an adequate certificate of insurance by February 1, the licensee must pay a $50 penalty prior to March 1 to be eligible for an annual renewal of a sidewalk café license agreement, in addition to satisfying other renewal requirements under this section.  No payments or certificates of insurance shall be accepted for renewal purposes after March 1.

(b) Denial authority. 

i. Grounds. The Lee District design review board shall not grant an annual renewal and shall mail a notice of denial to the licensee at the licensee’s address shown on the renewal application, stating the reason for the non-renewal and that the licensee has the right to appeal such non-renewal, if:

1. The licensee has failed to pay the appropriate renewal fee and/or has failed to submit to the city clerk the requisite certificate of insurance by the deadlines set forth above;

2. The city has received a written objection or notice of withdrawal of permission from an owner of record (including any equitable owners) or any tenants of real property whose permission is required pursuant to section 35-264(d); or

3. The city commission has directed that such renewal shall not be issued.

ii. Effect.  If the Lee District design review board does not grant a renewal, the sidewalk café license agreement shall terminate on May 1.

(c) Appeals.

i. City commission hearing.  If the Lee District design review board declines to renew a sidewalk café license agreement, the licensee may appeal the decision of the Lee District design review board to the city commission by filing a notice of appeal in the office of the city clerk, on a form provided by that office.  The notice of appeal must be filed within 14 calendar days of the date of the board’s decision and, and such written request shall state the basis for the appeal.  The city commission shall review the Lee District design review board’s decision within a reasonable time thereafter and may affirm or overrule the decision of the Lee District design review board, may renew the sidewalk café license agreement with additional conditions, or may return the issue of renewal to the Lee District design review board for further consideration together with a statement specifying the basis therefor.

ii. Pendency of appeal.  The term of the sidewalk café license agreement shall be extended during the pendency of any appeal to the city commission under this section, provided that the basis for the Lee District design review board’s decision is not based, in whole or in part, upon the licensee’s failure to submit to the city clerk the requisite certificate of insurance. 

Sec. 35-268.  Sidewalk dining conditions.
A licensee shall, without limitation, comply with the following provisions:

(a) Compliance.

i. Compliance with sidewalk café license agreement.  The licensee shall comply with all terms of the sidewalk café license agreement. 

ii. Compliance with applicable law.  The use of the sidewalk dining area for sidewalk dining shall be in conformance with zoning law governing the real property upon which the licensee’s restaurant is located, laws governing service of food and beverages, laws governing alcoholic liquor and/or cereal malt beverages, the provisions of this article or administrative regulations adopted pursuant thereto, and any other law pertaining to sidewalk dining or a licensee’s use of sidewalk and/or plaza.

iii. Limited use. The use of the sidewalk dining area shall be limited to sidewalk dining as part of the business of the licensee’s restaurant.  Without limitation, food preparation, mixing alcoholic liquor beverages or cereal malt beverages, and tending bar is not permitted in the sidewalk dining area.

(b) Square footage of sidewalk dining area.  The sidewalk dining area shall not exceed two hundred square feet in area, unless the city commission otherwise approves the application and executes the sidewalk café license agreement specifically authorizing a larger sidewalk dining area. 

(c) Incorporation of site plan.  The site plan submitted with the licensee’s application shall be incorporated into the sidewalk café license agreement as a description of how the licensee may occupy and modify the sidewalk dining area, subject to any modification by the city commission as a precondition of entering into the sidewalk café license agreement.

(d) Alcoholic liquor and cereal malt beverages.

i. Compliance with alcohol and cereal malt beverage laws and regulations.  A licensee may serve seated patrons and a licensee’s seated patrons may purchase, possess, and consume alcoholic liquor and/or cereal malt beverages within the sidewalk dining area in accordance with chapter 5 of this code and other applicable law, including, but not limited to Kansas alcoholic beverage control regulations on serving alcoholic liquor and/or cereal malt beverages in the sidewalk dining area.

ii. Limited hours of sale.  A licensee shall not serve alcoholic liquor or cereal malt beverages in the sidewalk dining area after 10:00 p.m. or before 9:00 a.m. on any day.  In no event shall this subsection be construed to expand the permitted hours for sale of alcoholic liquor or cereal malt beverages beyond what is otherwise permitted under chapter 5 of this code and other applicable law.

iii. Barrier required. Licensees cannot serve alcoholic liquor and/or cereal malt beverages within the sidewalk dining area unless the sidewalk dining area is separated from the unobstructed walkway by a barrier that conforms to applicable law, including, but not limited to Kansas alcoholic beverage control and city administrative regulations concerning such barriers, if any.

(e) Maintenance costs. Licensees shall be responsible for all construction and maintenance costs associated with installing barriers or any other improvements that may be necessary to develop and maintain the sidewalk dining area in accordance with the terms of this article or any administrative regulations adopted pursuant to this article.

(f) Liability and insurance.

i. Insurance. 

1. Type and amount of coverage.  A licensee shall carry an insurance policy that insures a licensee in an amount not less than $500,000 per single incident for any liability associated with the failure of a licensee, its officers, employees, agents, servants, invitees, patrons or contractors, to exercise reasonable care and diligence in the use of the sidewalk and/or plaza during the term of its sidewalk café license agreement and for as long as a licensee continues to occupy sidewalk and/or plaza following termination of its sidewalk café license agreement.  Failure of a licensee to comply with these requirements shall not be construed as a waiver of these requirements or provisions and shall not relieve the licensee of liability.

2. Rating.  All insurance policies shall be issued by insurance companies rated no less than A- VII in the most recent “Bests” insurance guide, and admitted in the state of Kansas.  All such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. 

3. Certificate of insurance.  A licensee shall provide the city with a certificate of insurance listing the city as the certificate holder and evidencing compliance with the insurance requirements in this article and in the sidewalk café license agreement.  The city has the right to require complete certified copies of all insurance policies procured by a licensee pursuant to this article and its sidewalk café license agreement, including any and all endorsements affecting the coverage required hereunder.  The certificate of insurance shall also require the insurance carrier to notify the city at least thirty (30) days in advance of any change in terms and conditions of the policy, including cancellation for any reason, and in advance of any expiration of the policy term.

ii. Indemnification.  To the fullest extent permitted by law, a licensee shall defend, indemnify and hold harmless the city, its agents, representatives, officers, officials and employees from and against all claims, damages, losses and expenses (including but not limited to attorney fees and court costs) attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property, including loss of use resulting therefrom, to the extent that such claims, damages, losses, and expenses relate to, arise out of, or are alleged to have resulted from the acts, errors, or omissions of a licensee, its officers, employees, agents, servants, invitees, patrons, and contractors to construct, maintain, or use the sidewalk dining area, and for as long as a licensee continues to occupy sidewalk and/or plaza following termination of its sidewalk café license agreement.

(g) No representation by the city.  The city makes no representations with respect to the sidewalk dining area or its condition.  A sidewalk café license agreement grants a licensee a contractual license to use sidewalk and/or plaza in the sidewalk dining area in its present condition, “as is,” without any warranties, representations, or assurances from the city.

(h) Removal of fixtures.  The city may require, at any time and for any reason, the temporary removal of any fixtures or objects placed on the sidewalk and/or plaza for a reasonable period of time.  Licensees shall be responsible for any costs incurred in the removal of fixtures and shall, at the city’s option, return the sidewalk and/or plaza to city pavement standards.  If, at the time that removal is required, the licensee is no longer the tenant of the real property on which the restaurant that used the sidewalk dining area was located, then the owner(s) of record of the real property on which the restaurant that used the sidewalk dining area was located shall be responsible for any costs incurred in removing the fixtures and in returning the sidewalk and/or plaza to city pavement standards.

(i) Sidewalk café license agreement maintained at the restaurant.  A licensee shall retain a copy of the executed sidewalk café license agreement on the real property upon which the licensee’s restaurant is located, and shall make such sidewalk café license agreement readily accessible for viewing by city personnel.

(j) Sidewalk café license agreement non-assignable.  Licensees shall not attempt to transfer, assign, sublet or convey any rights in the sidewalk dining area that are given to a licensee pursuant to a sidewalk café license agreement.
 

(k) Sidewalk café license agreement confers no real property rights on licensees.  While a licensee may control the sidewalk dining area to the extent necessary to conduct activities authorized by this article or a sidewalk café license agreement, a licensee shall not be considered to be a real property tenant or lessee.  Nothing in this article and regulations adopted pursuant thereto, or a sidewalk café license agreement, shall be construed to convey any interest in the real property comprising the sidewalk dining area except a contractual license.

Sec. 35-369.  Violations and termination of sidewalk café license agreement.

(a) Violations and cure period. 

i. Violation notice.  Whenever the zoning administrator has grounds to believe there has been a violation of this article, administrative regulations adopted pursuant to this article, or the sidewalk café license agreement, a written notice of violation and order to cure (“notice and order”) shall be served upon the licensee according to subsection (d). 

ii. Cure period.  The notice and order shall provide information sufficient to reasonably allow the recipient to determine the nature of the actions required to cure the violation and shall specify a reasonable time period to cure the violation.

(b) Continued operation contrary to public interest.  If the zoning administrator determines that continued sidewalk dining on a sidewalk dining area is contrary to the health, safety, and welfare of the public, a written notice of this finding shall be issued to the licensee (“termination notice”), which shall provide the date upon which the sidewalk café license agreement shall be terminated.  A sidewalk café license agreement that is terminated under this subsection shall not terminate less than 30 days from the date of the termination notice.

(c) Form.  The notice and order or termination notice, as applicable, shall:

i. Identification. Include a description of the subject sidewalk dining area sufficient for identification.

ii. Basis.

1. In the case of a notice and order, include a statement of the nature of the violation and references to relevant laws, ordinances, regulations, and/or sidewalk café license agreement provisions with sufficient information that would reasonably allow the recipient to determine the nature of the violation to allow a licensee to cure the violation; or

2. In the case of a termination notice, include a detailed explanation for the finding of the zoning administrator as to why continued sidewalk dining on the subject sidewalk dining area is contrary to the health, safety, and welfare of the public.

iii. Timing.

1. In the case of a notice and order, include a deadline for a licensee to cure a violation that allows a reasonable time to take the actions required, and include a statement that failure to comply with the notice and order may result in the city terminating its sidewalk café license agreement; or

2. In the case of a termination notice, include a statement of when the sidewalk café license agreement will be terminated, which shall not be less than 30 days from the date of the termination notice.

iv. Right to appeal hearing. Inform the recipient of the notice and order or termination notice of the right to an appeal hearing before the city commission if the recipient files a written request for hearing within fourteen days from the date of issuance listed on the notice and order or termination notice.

(d) Service. A notice and order and/or termination notice may be served by regular mail to the address indicated in the sidewalk café license agreement.

(e) Termination by city.  In addition to any provisions in the sidewalk café license agreement, if the licensee fails to cure a violation in the period of time designated in the notice and order, or the date designated within the termination notice has passed, then the sidewalk café license agreement then in effect shall be terminated, unless an appeal hearing has been filed with the city commission, in which case the sidewalk café license agreement shall terminate according to the order of the city commission.

(f) Termination by licensee.  If a licensee discontinues use of the sidewalk dining area as constructed and maintained at the location depicted on the site plan or provides written notification of the same to the zoning administrator, the licensee’s sidewalk café license agreement shall terminate.

(g) Responsibilities upon termination.

i. Removal of obstructions. If a sidewalk café license agreement is terminated for any reason by any party, a licensee shall remove all objects, including but not limited to fixtures and furniture, that occupy the sidewalk dining area under the sidewalk café license agreement, and shall restore the sidewalk and/or plaza in and surrounding the sidewalk dining area to city pavement standards.  Such removal and/or restoration shall occur prior to termination of the sidewalk café license agreement.

ii. Failure to remove or restore.  If the licensee fails to remove objects or fails to restore the sidewalk and/or plaza according to subsection (i) above, then the city may remove such objects and restore the sidewalk and/or plaza in addition to any other applicable remedies.  In the event that the city removes such objects or restores the sidewalk and/or plaza following termination, the city shall be able to assess all costs associated with such action, including, but not limited to reasonable costs associated with repairing sidewalk that may be damaged in such removal, according to the provisions of section 31-206, and all amendments thereto, except that it shall be sufficient for the city to serve notice of costs by regular mail to the address indicated on the sidewalk café license agreement.

(h) Appeals.

i. City commission hearing.  A licensee may appeal a notice and order or a termination notice by filing a notice of appeal in the office of the city clerk on a form provided by that office.  The notice of appeal must be filed within 14 calendar days from the date of issuance listed on the notice and order or termination notice and shall state the basis for the appeal.  The city commission shall review the findings of the zoning administrator within a reasonable time thereafter and may affirm (with or without modification) or overrule the determinations of the zoning administrator.

ii. Pendency of appeal.  The term of the sidewalk café license agreement shall be extended during the pendency of any appeal to the city commission under this section, provided that the zoning administrator’s findings are not based, in whole or in part, upon the licensee’s failure to maintain requisite insurance coverage. 

iii. Time extension.  Should the city commission issue a ruling adverse to the licensee, the city commission shall afford the licensee a reasonable period of time to cure the violation in the case of a notice and order appeal, or to make necessary arrangements prior to termination of the sidewalk café license agreement, in the case of a termination notice appeal.  In the case of a notice and order appeal, if the licensee fails to cure the violation within the time specified by the city commission, the sidewalk café license agreement shall terminate.

(i) Additional and alternative remedies.  In addition to or as an alternative to remedies provided in this article or the sidewalk café license agreement, the city may cause to be instituted any appropriate proceeding at law or in equity to restrain, correct or abate any violation of the provisions of this article or of any order or direction made pursuant thereto.

Sec. 35-370.  Policy and regulations.
The city manager is authorized to propose administrative regulations regarding sidewalk café license agreements and sidewalk dining as the city manager deems necessary for public safety and welfare for adoption by resolution of the city commission.  All licensees shall comply with all regulations adopted pursuant to this article.  Failure to comply with such regulations shall be grounds for the issuance of a notice and order pursuant to section 35-369, and possible termination of the sidewalk café license agreement.

Sec. 35-371.  Prior sidewalk license agreements remain effective.  All license agreements executed prior to June 23, 2014 regarding use of sidewalk and/or plaza for sidewalk dining shall remain effective according to the provisions of such license agreements.

Sec. 35-372.  City’s rights to execute other license agreements unaffected.  Nothing in this article shall be construed to limit the city’s right to execute license agreements outside the Lee District or to execute license agreements not relating to sidewalk dining in the Lee District.

Sec. 35-373.  Severability.  If any section, clause, sentence, or phrase of this article is found to be unconstitutional or is otherwise held invalid by any court of competent jurisdiction, such finding shall not affect the validity of any remaining provisions of this article.
Secs. 35-374--31-390.  Reserved.

Section 5.  Summary of ordinance for publication.  This ordinance shall be published by the following summary:

Ordinance No. 14-10739 Summary
 On June 23, 2014, the City of Salina, Kansas, passed Ordinance No. 14-10739.  The ordinance amends Chapter 5, Article II, Section 5-25, Chapter 35, Article III, Sections 35-36 and 35-40.2, and establishes Chapter 35, Article XII of the Salina Code.  The amendment of section 35-40.2 relates to the placement of signs, flower pots, planters and bicycle racks on public sidewalks in the C-4 central business district and the remaining amendments provide for and govern sidewalk dining in the Lee District.  A complete copy of the ordinance is available at
www.salina-ks.gov or in the office of the city clerk, 300 W. Ash Street, free of charge.  This summary is certified by the city attorney.

Section 6.  Effective date.  This ordinance shall be in full force and effect from and after its adoption and publication by summary once in the official city newspaper.

        Introduced: June 9, 2014
        Adopted:  June 23, 2014

        Aaron K. Householter, Mayor
[SEAL]

ATTEST:

Shandi Wicks, CMC, City Clerk

Certification of Publication Summary:

______________________________
Greg A. Bengtson, City Attorney