PURCHASING AND LICENSING COMMITTEE
The city of Duluth does ordain:
Section 1. That Section 45-103 of the Duluth City Code, 1959, as amended, be amended to read as follows:
Sec. 45-103. Application--fee.
Before the city council shall give consideration to any ordinance granting a permit to an owner of real estate abutting on a public street allowing such owner to make concurrent use of such portion of a street not physically being so used or occupied by the public that a concurrent use would inconvenience the public use, the applicant for such a permit shall file with the city clerk an application, in writing, and accompany the same with a fee set in accordance with Section 31-6(a) of this Code, which shall cover the cost to the city of investigating and processing such application. If the application is denied, no part of the fee shall be refunded. If the application is approved, the applicant shall pay to the city clerk the cost of publication of the ordinance granting the concurrent use permit and no such ordinance shall be effective until such publication costs have been paid by the applicant. Any concurrent use permit must comply with the convenient use standard of this Section. Any concurrent use permit related to premises licensed for sale or dispensing of an alcoholic beverage must comply with the standards set out in Chapter 8 of this Code, or its successor.
Section 2. That Section 8-54 of the Duluth City Code, 1959, as amended, be amended to read as follows:
Sec. 8-54. License not effective beyond space for which granted; exceptions--concurrent use permit.
(a) Licensed premises. No license shall be effective beyond the compact and contiguous space named therein for which the same was granted. If any part of the serving area of the licensed premises is outside of a fully enclosed building, that part must comply with all the conditions set out in Section 8-54(b) or (c) or (d) that apply to the area. In addition, at the time of application or at any time an outdoor area is licensed, its operation is subject to the power of the chief of police to approve the operation, set hours of operation, set days of operation, based upon an administration review and application of uniform regulatory criteria established by the police department, which pertains to public safety, convenience, compliance with laws, neighborhood conditions, noise, parking and health. Licensed premises shall include the entire parcel of land on which the establishment is located; provided, however, that no sales or service shall take place outside the designated serving areas approved by the city council in the licensing procedure unless such sales and/or service is authorized on a temporary basis for a special event by city council resolution and shall be subject to any conditions and limitations the council deems appropriate. Before any temporary service area is authorized, the licensee shall make application, accompanied by the appropriate fee and including a diagram of the proposed area, the time and date of the event, and fencing and security measures to be taken, to the city clerk. Thereafter, the alcohol, gambling and tobacco commission shall review the matter and make any recommendation it deems appropriate to the city council. The fee for temporary expansions shall be set in accordance with Section 31-6(a) of this Code for the first day of the event and for each day thereafter. If the application is denied, all but a portion of the fee, set in accordance with Section 31-6(a) of this Code, shall be refunded to the applicant. No temporary expansion of service area shall be granted for a period of time greater than three consecutive days;
(b) Concurrent use permit for licensed premises. If any part of a licensed premises is located upon an area for which a concurrent use permit has been issued to the licensee under Section 45-103, or its successor, the use of that permitted area, and the concurrent use permit conditions, shall comply with the following:
(1) The area may be part of the licensed premises only if no privately-owned property is reasonably available to the licensee that could be used, instead, as an outdoor licensed premises;
(2) The licensee has a food and beverage service establishment license under M.S.A. Sec. 157.16, subd. 3(d)(3)(i) or (ii), or subd. 3(d)(4) and subd. 3(d)(6) or (7), and whatever food service is available anywhere else in the licensed premises is available in the permitted area;
(3) No alcoholic beverage can be served, consumed, or possessed in the permitted area by any person unless he or she is seated at a table;
(4) The permitted area shall not exceed 500 square feet in area, must have an impervious surface, must, when in use, have an approved continuous perimeter barrier or fence. The fence must be approved by city clerk, police chief, and the building official as meeting administrative criteria as to safety, security, regulated access, and restricted means to transfer alcoholic beverages on or off the premises. The design, appearance, lighting, decoration, signage and use of the facility shall be reasonably compatible with the surrounding area, as determined by the chief administrative officer, or his/her designee;
(5) The permitted area shall be capable of being constantly observed by serving or security personnel of the licensee. Licensee shall furnish a minimum staff of one person for a permitted area of up to 20 patron capacity, and one additional staff for each additional unit of up to 20 patron capacity;
(6) The permitted area shall leave at least a six foot wide area of sidewalk that is not subject to the concurrent use permit;
(7) Any other restrictions set by the city council or in the concurrent use permit;
(c) Licensed premises outdoors on private property. If any part of the licensed premises is on privately-owned property that is not subject to an ownership or easement interest of the city of Duluth, or any other government, and that part of the licensed premises is not an “indoor area” as defined in M.S.A. Sec. 144.413, subd. 1(a), or its successor, then the use of that part of the licensed premises shall comply with all of the following:
(1) Any condition or limitation imposed by any law, ordinance, government regulation, code, license, or permit, including restrictions on configuration or use that are set by the city council by ordinance or resolution;
(2) That part of the licensed premises shall not exceed in area the area of the rest of serving area of the licensed premises;
(3) That part of the licensed premises shall have an improved surface suitable for all weather pedestrian traffic, must, when in use, have a continuous perimeter barrier or fence. The barrier or fence must be approved by city clerk, police chief, and the building official as meeting administrative criteria as to safety, security, regulated access, and restricted means to transfer alcoholic beverages on or off the premises. The appearance, lighting, signage, visual barriers of the facility shall be reasonably compatible with the surrounding area, as determined by the chief administrative officer or his/her designee;
(4) Any food service available anywhere in the licensed premises shall be available in that part of the licensed premises. Every type of seating for dining anywhere on the licensed premises shall be available on that part of the licensed premises. In that part of the licensed premises, no alcoholic beverage shall be served, consumed or possessed by any person unless he or she is seated at a table;
(d) Pre-existing uses. Outdoor areas that were included in a licensed premises on January 1, 2008, shall be allowed to continue as a nonconforming use under, and subject to, Section 50-14, to remain in the same configuration and subject to the same restrictions of use, including hours of operation, as existed at that date, subject, however, at all times to the government’s police power to control a license, and sanction activities at establishments that dispense alcoholic beverages, as provided by any law, including (a) above.
Section 3. That this ordinance shall take effect 30 days after its passage and publication.
POLICE/ATTY BFB:nmj 3/19/2008
STATEMENT OF PURPOSE: This ordinance establishes regulations for the operation of any business that allows alcohol in an area, such as a street or sidewalk, that it occupies under a concurrent use permit.