Section 20-223
§ 20-223 Definitions. Whenever used in this subchapter:
a. "Sidewalk cafe" shall mean a portion of a restaurant operated under
permit from the department of health and mental hygiene, located on a
public sidewalk, that is either an enclosed or unenclosed sidewalk cafe.
b. "Enclosed sidewalk cafe" shall mean a sidewalk cafe which is
constructed predominantly of light materials such as glass, slow-burning
plastic or lightweight metal.
c. "Unenclosed sidewalk cafe" shall mean a space on the sidewalk which
contains readily removable tables and chairs.
Section 20-224
§ 20-224 License required. a. Any person owning, leasing, managing or
operating a restaurant under permit from the department of health and
mental hygiene upon property which abuts upon any street within the city
may maintain or operate upon the sidewalk of such street in an area
immediately adjacent to its premises, a sidewalk cafe, provided that
such sidewalk cafe shall be granted a license and a revocable consent by
the commissioner.
b. The commissioner, consistent with the provisions of this subchapter
and the applicable provisions of the zoning resolution, shall establish
such rules, regulations, terms and conditions as the commissioner deems
proper in respect to the granting and issuance of such licenses and
revocable consents, priorities or rights between applicants for a
license covering the same space, and operation (including hours of
operation, provided that no such rule, regulation, term or condition
shall prevent licensed sidewalk cafes from operating during the hours of
10:00 a.m. through 12:00 a.m. daily or shall allow licensed sidewalk
cafes to operate before 10:00 a.m. on Sundays) and maintenance of any
sidewalk cafe, to ensure good order and to prevent undue obstruction of
the sidewalk, which shall have the force and effect of law. A license to
operate a sidewalk cafe shall be issued after the review and approval of
a petition for a revocable consent to construct and operate such
sidewalk cafe pursuant to the provisions of section 20-225, 20-226 or
20-227 of this subchapter. The operator of a sidewalk cafe under license
from the commissioner shall cause the boundary of the area licensed as a
sidewalk cafe to be marked in a manner prescribed under rules
promulgated by the commissioner.
c. No license shall be granted for an enclosed sidewalk cafe until an
alteration permit or any other required permit is issued by the
department of buildings. No license shall be granted for a sidewalk cafe
located in a historic district, on a landmark site or attached or
adjacent to a landmark or an improvement containing an interior landmark
without the required approval of the landmarks preservation commission.
No license shall be granted for an unenclosed cafe which obstructs the
means of egress from any portion of a building nor for any unenclosed
cafe with an awning unless a permit therefor is issued by the department
of buildings.
d. The fee for such license shall be at the rate of five hundred and
ten dollars for a two-year license. Such license fee shall be in
addition to any fee imposed, pursuant to rules of the commissioner, upon
approval of a petition for a revocable consent, or a renewal of such
revocable consent, to construct and operate a sidewalk cafe or any other
applicable fee.
e. A licensee must provide waiter or waitress service to patrons in
the sidewalk cafe if alcohol is served. If no alcohol is served at the
restaurant, a licensee must provide adequate service to maintain tables
in the sidewalk cafe and the adjacent sidewalk in a manner that ensures
good order and cleanliness.
f. The license shall be personal to the applicant and may not be sold,
leased or transferred and shall be deemed revoked by the sale or
transfer of the lease or of title to the building or structure to which
the sidewalk cafe is related.
Section 20-225
§ 20-225 Review and approval of petitions for revocable consents to
construct and operate enclosed sidewalk cafes which do not require
special permits. A petition for a revocable consent to construct and
operate an enclosed sidewalk cafe which does not require a special
permit modification pursuant to the zoning resolution shall be reviewed
and approved in the following manner:
a. The petition shall be in such form as prescribed by the department.
The petition shall be filed with the department which, within five days
of the filing of such petition, shall forward copies thereof to the
department of city planning, the department of environmental protection
and the landmarks preservation commission for review pursuant to
subdivision b of this section. The department shall forward copies of
the petition, within five days of the filing of such petition, to the
speaker of the council and to the council member in whose district the
cafe is proposed to be located, for informational purposes.
b. The agencies to which the petition has been forwarded shall review
the petition and shall indicate any objections to such petition,
including any determination by the landmarks preservation commission
that the petition requires a certificate of appropriateness, by filing
written comments with the department of city planning within twenty-one
days of the receipt thereof. The failure of an agency to indicate its
objections within the prescribed time to the department of city planning
shall be construed to mean that such agency has no objections.
c. If no objections to such petition are filed within the twenty-one
day period prescribed in subdivision b of this section, the department
of city planning shall forward the petition within five days after the
close of such period to the community board for the community district
in which the cafe is proposed to be located, and such board shall review
such petition pursuant to subdivision e of this section.
d. If any objections exist, including any objections by the department
of city planning, the department of city planning shall inform the
petitioner of the objections and that review of the petition has been
stayed until the objections indicated are resolved. If the objections
are not resolved within six months from the date the petitioner is
informed that review of the petition has been stayed, such petition
shall be deemed to have been withdrawn. If the objections are resolved
within the prescribed time, the department of city planning shall
forward the petition within five days of such resolution to the council
member in whose district the cafe is proposed to be located and to the
community board for the community district in which the cafe is proposed
to be located, and such board shall review the petition pursuant to
subdivision e of this section.
e. The community board shall, not later than forty-five days after
receipt of such petition, either (i) notify the public of the petition
in a manner specified by the city planning commission, conduct a public
hearing thereon and submit a written recommendation to the department
and to the council or (ii) waive by a written statement its public
hearing and recommendation on such petition, and submit such statement
to the department and to the council.
f. Within thirty days after the expiration of the forty-five day
period allowed for the filing of a recommendation or waiver by the
community board, the department shall (i) hold a public hearing on the
petition, (ii) approve the petition, disapprove it or approve it with
modifications, and (iii) file with the council any such decision to
approve or approve with modifications, together with the petition. If
within the time period provided, the department fails to take the
actions on a petition provided for in the preceding sentence, the
petition shall be deemed to have been denied. For a period of not less
than fifteen calendar days prior to the date of such public hearing, the
petitioner shall post notice of the public hearing in a place
conspicuous to public view at the location of the proposed sidewalk
cafe. At least fifteen days prior to the date of such hearing, the
department shall give notice to the community board for the district in
which the cafe is proposed to be located, to the president of the
borough in which the cafe is proposed to be located and to the council
member in whose district the cafe is proposed to be located. Not less
than five calendar days prior to the date of any such hearing, notice of
the hearing shall be published in the City Record and in one newspaper
of local circulation in the community where the cafe is proposed to be
located. No other notice requirements shall apply to hearings for
revocable consents for sidewalk cafes.
g. Within twenty days of the date the petition is received by the
council pursuant to subdivision f of this section, the council may
resolve by the majority vote of all council members to review the
petition. If the council does not so resolve, the approval of the
petition by the department shall be forwarded to the mayor for approval
pursuant to subdivision i of this section.
h. If the council resolves to review a petition pursuant to
subdivision g of this section, the council shall hold a public hearing,
after giving public notice not less than five days in advance of such
hearing. The council shall take final action on the petition and shall
file with the mayor its resolution, if any, with respect to the petition
within fifty days of the filing of the petition with the council
pursuant to subdivision f of this section. The affirmative vote of a
majority of all the council members shall be required to approve,
approve with modifications or disapprove the petition. Any modifications
by the council shall not affect the terms of any proposed revocable
consent agreement which relate to term, compensation, revocability,
exclusivity, security, insurance, indemnification, erection, maintenance
or removal of any structure, right of access by the city and rights of
abutting property owners. If within the time period provided for in this
subdivision, the council fails to act or fails to act by the required
vote on a petition, the council shall be deemed to have approved the
petition.
i. The consent shall be for such term and upon such conditions as may
be provided in the approval of the petition by the department, as such
approval may be modified by action of the council pursuant to
subdivision h of this section, but shall be revocable at any time by the
department. The separate and additional approval of the mayor shall be
necessary to its validity.
j. Consents for sidewalk cafes shall provide for fees to be paid
annually to the city during the continuance of the consent. Such fees
shall be calculated pursuant to a formula established by rule or by
local law, which shall apply uniformly to all consents for enclosed
sidewalk cafes. The department shall file with the council a written
recommendation for a formula to be used to calculate such fees.
Section 20-226
§ 20-226 Review and approval of petitions for revocable consents to
operate unenclosed sidewalk cafes which do not require special permits.
A petition for a revocable consent to operate an unenclosed sidewalk
cafe which does not require a special permit modification shall be
reviewed and approved in the following manner:
a. The petition shall be in such form as prescribed by the department.
The department shall forward copies of the petition, within five days of
the filing of such petition, to the speaker of council and the council
member in whose district the cafe is proposed to be located, for
information purposes, and to the community board for the community
district in which the cafe is proposed to be located, for review
pursuant to subdivision b of this section.
b. The community board shall, not later than forty-five days after
receipt of such petition, either (i) notify the public of the petition,
conduct a public hearing thereon and submit a written recommendation to
the department and to the council or (ii) waive by a written statement
its public hearing and recommendation on such petition and submit such
statement to the department and to the council. The petitioner shall
amend the petition if both the community board and the petitioner agree
to modifications in writing. Such modifications shall be reflected in
the written recommendations of the community board to the department and
the council.
c. The department shall hold a public hearing pursuant to subdivision
d of this section and approve the petition, disapprove it or approve it
with modifications within thirty days of the expiration of the
forty-five-day period allowed for the filing of a recommendation by the
community board. If within the time period provided, the department
fails to take the actions on a petition provided for in the preceding
sentence, the petition shall be deemed to have been denied. Within the
thirty-day time period provided for in this subdivision, the department
shall file with the council any such decision to approve or approve with
modifications, together with the petition.
d. The department shall hold a public hearing on each petition prior
to approving, approving with modifications or disapproving the petition.
For a period of not less than fifteen calendar days prior to the date of
such public hearing, the petitioner shall post notice of the public
hearing in a place conspicuous to public view at the location of the
proposed sidewalk cafe. At least fifteen days prior to the date of the
hearing, the department will give notice to the community board for the
district in which the cafe is proposed to be located, to the president
of the borough in which the cafe is proposed to be located and to the
council member in whose district the cafe is proposed to be located. Not
less than five-calendar days prior to the date of any such hearing,
notice of the hearing shall be published in the City Record and in one
newspaper of local circulation in the community where the cafe is
proposed to be located. No other notice requirements shall apply to
hearings for revocable consents for sidewalk cafes.
e. Within twenty days of the date the petition is received by the
council pursuant to subdivision c of this section, the council may
resolve by majority vote of all the council members to review the
petition. If the council does not so resolve, the approval of the
petition by the department shall be forwarded to the mayor for approval
pursuant to subdivision g of this section.
f. If the council resolves to review a petition pursuant to
subdivision e of this section, the council shall hold a public hearing,
after giving public notice not less than five days in advance of such
hearing. The council shall take final action on the petition and shall
file with the mayor its resolution, if any, with respect to the petition
within fifty days of the filing of the petition with the council
pursuant to subdivision c of this section. The affirmative vote of a
majority of all the council members shall be required to approve,
approve with modifications or disapprove the petition. Any modification
by the council shall not affect the terms of any proposed revocable
consent agreement which relate to term, compensation, revocability,
exclusivity, security, insurance, indemnification, erection, maintenance
or removal of any structure, right of access by the city and rights of
abutting property owners. If within the time period provided for in this
subdivision, the council fails to act or fails to act by the required
vote on a petition, the council shall be deemed to have approved the
petition. If within the time period provided for in this subdivision,
the council approves the petition with modifications, the petitioner
shall accept such modifications within fifteen days of such approval, or
the council shall be deemed to have denied the petition.
g. The consent shall be for such term and upon such conditions as may
be provided in the approval of the petition by the department, as such
approval may be modified by action of the council pursuant to
subdivision f of this section, but shall be revocable at any time by the
department. The separate and additional approval of the mayor shall be
necessary to its validity.
h. Consents for sidewalk cafes shall provide for fees to be paid
annually to the city during the continuance of the consent. Such fees
shall be calculated pursuant to a formula established by rule or by
local law, which shall apply uniformly to all consents for unenclosed
sidewalk cafes. The department shall file with the council a written
recommendation for a formula to be used to calculate such fees.
i. An unenclosed sidewalk cafe may not be opened or operated prior to
the approval of the consent therefor by the department pursuant to this
section.
Section 20-227
§ 20-227 Review and approval of petitions for revocable consents to
construct and operate sidewalk cafes which require special permits.
Notwithstanding the provisions of any other section of the charter or
code, a petition for a revocable consent to construct and operate a
sidewalk cafe which requires a special permit modification pursuant to
the zoning resolution shall be reviewed and approved in accordance with
the provisions of sections one hundred ninety-seven-c and one hundred
ninety-seven-d of the charter and shall require the approval of the
department. The consent shall be for such term and upon such conditions
as may be provided in the approval of the department but shall be
revocable at any time by the department. The separate and additional
approval of the mayor shall be necessary to its validity. The consent
shall provide for fees to be paid annually to the city during the
continuance of the consent. Such fees shall be calculated pursuant to a
formula established by rule or by local law pursuant to section
20-225(j) or section 20-226 (h).
Section 20-227.1.
§ 20-227.1. a. Any person found to be operating an unlicensed sidewalk
cafe shall be liable for a civil penalty of at least two hundred and not
more than one thousand dollars for the first violation, at least two
hundred and not more than one thousand dollars for each additional
violation occurring on the same day; and at least five hundred and not
more than two thousand dollars for the second violation and each
subsequent violation at the same place of business within a two-year
period. For purposes of this section, any violation for operating an
unlicensed sidewalk cafe shall be included in determining the number of
violations by any subsequent license holder at the same place of
business unless the subsequent license holder provides the department
with adequate documentation demonstrating that the subsequent license
holder acquired the premises or business through an arm's length
transaction as defined in subdivision f of this section and that the
sale or lease was not conducted, in whole or in part, for the purpose of
permitting the original license holder to avoid the effect of violations
on the premises.
b. Any holder of a license found to be operating a sidewalk cafe in
violation of this subchapter, the terms and conditions of such license
and/or a revocable consent or rules promulgated by the commissioner
pursuant to this subchapter, shall be liable for a civil penalty of at
least two hundred and not more than one thousand dollars for the first
violation, at least two hundred and not more than one thousand dollars
for each additional violation occurring on the same day; and at least
five hundred and not more than two thousand dollars for the second
violation, and at least one thousand and not more than four thousand
dollars for each subsequent violation at the same place of business
within a two-year period. In addition, for a third violation occurring
on a different day and all subsequent violations occurring on different
days at the same place of business within a two-year period, any person
licensed to operate a sidewalk cafe at such place of business shall be
subject to suspension or revocation of his or her sidewalk cafe license
for such place of business. For purposes of this section, any such
violation by any license holder at a place of business shall be included
in determining the number of violations by any subsequent license holder
at the same place of business unless the subsequent license holder
provides the department with adequate documentation demonstrating that
the subsequent license holder acquired the premises or business through
an arm's length transaction as defined in subdivision f of this section
and that the sale or lease was not conducted, in whole or in part, for
the purpose of permitting the original license holder to avoid the
effect of violations on the premises. A sidewalk cafe license shall be
suspended or revoked at the same hearing at which a person is found
liable for a third violation or subsequent violations at the same place
of business within a two-year period.
c. A proceeding to recover any civil penalty authorized pursuant to
the provisions of subdivisions a or b of this section shall be commenced
by service of a notice of violation which shall be returnable to the
adjudication division of the department. Such notice shall contain a
statement that any hearing for a third violation or subsequent
violations of this subchapter, the terms and conditions of a license
and/or a revocable consent or rules promulgated by the commissioner
under this subchapter at the same place of business within a two-year
period shall also constitute a hearing for the suspension or revocation
of a license.
d. The penalties provided by subdivisions a and b of this section
shall be in addition to any other penalty imposed by any other provision
of law or rule promulgated thereunder.
e. In addition to any other enforcement procedures authorized by this
subchapter or any other provision of law or rule, the commissioner after
notice and a hearing shall be authorized to order that any sidewalk cafe
and the restaurant of which it is a portion be sealed for a period not
to exceed thirty consecutive days. Such notice may be included with
notice of any hearing for a second violation for operating an unlicensed
sidewalk cafe as provided in subdivision a of this section, or a third
violation of this subchapter, the terms and conditions of a license
and/or a revocable consent or rules promulgated by the commissioner, as
provided in subdivision b of this section. For purposes of this
subdivision, any such violations at a place of business shall be
included in determining the number of violations by any subsequent
license holder at the same place of business unless the subsequent
license holder provides the department with adequate documentation
demonstrating that the subsequent license holder acquired the premises
or business through an arm's length transaction as defined in
subdivision f of this section and that the sale or lease was not
conducted, in whole or in part, for the purpose of permitting the
original license holder to avoid the effect of violations on the
premises. The procedures provided for in subdivisions c and e through j
of section 20-105 of this title shall apply to an order by the
commissioner for sealing of a sidewalk cafe and the restaurant of which
it is a portion.
f. For purposes of this section, "arm's length transaction" means a
sale of a fee or all undivided interests in real property, or lease of
any part thereof, or a sale of a business, in good faith and for
valuable consideration, that reflects the fair market value of such real
property or lease, or business, in the open market, between two informed
and willing parties, where neither is under any compulsion to
participate in the transaction, unaffected by any unusual conditions
indicating a reasonable possibility that the sale or lease was made for
the purpose of permitting the original licensee to avoid the effect of
violations on the premises. The following sales or leases shall be
presumed not to be arm's length transactions unless adequate
documentation is provided demonstrating that the sale or lease was not
conducted, in whole or in part, for the purpose of permitting the
original licensee to avoid the effect of violations on the premises:
(1) a sale between relatives;
(2) a sale between related companies or partners in a business; or
(3) a sale or lease affected by other facts or circumstances that
would indicate that the sale or lease is entered into for the primary
purpose of permitting the original licensee to avoid the effect of
violations on the premises,
g. Notwithstanding the provisions of subdivisions a or b of this
section, the suspension or revocation of a license for a subsequent
offense shall be waived if, upon the submission of satisfactory proof,
the commissioner determines that the person or persons who committed the
violations which are the basis for the suspension or revocation acted
against the licensee's will in committing such violations.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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