HomeMy WebLinkAboutCAO-14-012 - Downtown Patio Encroachment Policy _ Staff Report
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REPORT TO: Finance & Corporate Services Committee
DATE OF MEETING: February 24, 2014
SUBMITTED BY: Rod Regier, Executive Director of Economic Development
(519)741-2200 ext. 7506
PREPARED BY: Monika Grau, Downtown Business Development Officer
(519)741-2200 ext. 7066
WARD(S) INVOLVED: 9 & 10
DATE OF REPORT: February 11, 2014
REPORT NO.: CAO-14-012
SUBJECT: Downtown Patio Encroachment Policy
RECOMMENDATION:
That Council Policy 1-1205 be amended in the form shown in the appendix attached to
Report CAO-14-012, making minor modifications to the Downtown Patio Encroachment
Policy.
That the City's Fees and Charges Schedule be amended to establish a two-tiered Patio
Encroachment Fee, whereby patios with an occupancy of 10 or fewer be charged $100
and patios with an occupancy of 11 seats or more be charged $319.
BACKGROUND:
Through Council Policy 1-1205, the City permits the use of City owned sidewalks in Downtown
Kitchener for outdoor patios, provided the patio operators enter into an encroachment
agreement with the City and pay the associated licensing fee. This includes the approval of a
patio plan/layout that meets various design requirements as specified in the policy. Included in
the Council Policy is a section containing the `Agreement Conditions and Execution' which form
the basis for the actual encroachment agreement.
As part of the Downtown Kitchener Action Plan 2012-2016, the City is committed to growing the
cafe/patio culture in the core through business friendly policies [Action 1(a)(iv)]. In 2013, the
City implemented a streamlined approval process and enabled encroachment agreements to be
issued on a perpetual basis. In 2014, a comprehensive review of the Outdoor Patio
Encroachment Policy 1-1205, as well as the City's outdoor patio encroachment agreement, was
undertaken by staff in consultation with Legal Services and the Downtown BIA. The goal of the
review was to ensure the patio program results in high quality patio operations, while at the
same time, does not create unnecessary road blocks that prevent new patios from starting up.
In 2013, the City issued 9 encroachment agreements in total. Of these, 3 had a seating
capacity of 11 or more, and 6 had a seating capacity of 10 or less.
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REPORT:
Based on the comprehensive review, staff have concluded the following:
1) Only minor modifications to Council Policy 1-1205 are needed; and,
2) The current licensing fee is prohibitive for small patio operators.
1) MINOR MODIFICATIONS TO THE PATIO POLICY
The following is a summary of the proposed minor changes to Council Policy 1-1205.
Fencing —Change to the Minimum Fence Height
The Alcohol and Gaming Commission of Ontario (AGCO) recently reduced the minimum
required fence height for a patio serving alcohol from 42" (1.067m) to 36" (0.9m). Staff
recommend modifying the City's minimum height requirement accordingly to ensure consistency
between organizations.
Use of Glassware vs Plastic/acrylic/paper Dinnerware and Cutlery
Presently a new patio operator who anticipates a ratio of alcohol sales to all other sales in
excess 50% may not use glassware. This policy was intended to ensure that patios that
primarily serve alcohol do not become unruly and potentially dangerous to passing pedestrians.
However, this policy could prove difficult for a high quality operator who does not wish to serve
food and drinks in paper or plastic cups. As such, staff recommend modifying the policy to
permit the use of glassware, but that the Manager of Licensing reserves the right to prohibit
glassware should complaints be received regarding poor behaviour on the patio.
Code of Conduct Clause
Historically, the BIA ran a program whereby licensed establishments were to post a code of
conduct sign next to their liquor license. As the BIA is no longer undertaking such an initiative,
staff recommend deleting this clause from the Policy. Code of conduct rules, however, are still
contained within the Encroachment Agreement and are often included as part of the operator's
Liquor Licence, and can still be enforced if necessary.
Smoking By-law and Smoke-Free Ontario Act
The Regional Municipality of Waterloo has a By-law regulating smoking in public places in the
Regional Municipality of Waterloo. This By-law regulates smoking within outdoor patios.
Currently, the Region's Smoking By-law does not prevent smoking on a patio; however, the
Region has recently endorsed changes to Provincial Legislation (Smoke-Free Ontario Act). To
protect people from exposure to second hand smoke in public areas, this legislation may include
restaurant patios. The Region may eventually incorporate non-smoking sections into Regional
By-laws prohibiting smoking on outdoor patios. As such, staff recommend modifying the policy
to ensure operators comply with all smoking bylaws (current or future).
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Perpetual Agreements
As per Staff Report CAO-13-006, outdoor patio encroachment agreements can now be issued
on a perpetual basis to patio operators, as long as they are in compliance with the Outdoor
Patio Encroachment Policy. As such, staff recommend adding a clause into the Council Policy
clarifying the terms of the perpetual agreement.
Modifications to the Encroachment Agreement
The above noted Council Policy changes will also be reflected in the standard encroachment
agreement. In addition, the following minor changes will also be made:
i) As not all businesses have rear loading access, staff recommend modifying the clause
that states "all deliveries are made to the rear door" to "all deliveries are made to an
appropriate loading zone";
ii) A statement will be added requiring all planter boxes be of a size and shape that makes
them difficult to be knocked over or easily moved; and,
iii) The clause stating that "tables, chairs and umbrellas" are to be maintained in good
condition will be changed to "patio furnishings".
2) LICENSING FEE
The current patio encroachment Licencing Fee is $319.00 per year, regardless of the number of
seats. Staff have heard from multiple businesses that this fee is cost prohibitive where the patio
only accommodates a small number of seats. Operators simply do not feel they will recoup the
cost of the fee to justify operating a patio, and thus the fee may be prohibiting the establishment
of new patios. In 2013, and in order to promote new patios, the BIA rebated the licensing fee for
all operators.
As such, staff recommend moving to a two-tier fee structure, based on the size and number of
seats. If the outdoor seating capacity is 10 or less, then a proposed fee of$100.00 would apply.
If the outdoor seating capacity is 11 or greater, then the current fee of$319.00 would apply.
In 2014, the Downtown Kitchener BIA will be initiating a beautification grant program whereby
the BIA will provide grants to assist with the startup of new patios (to assist with the purchasing
of furnishings, fencing, planters, etc.). Reducing the fee, in concert with the BIA grant, should
encourage significant growth in new outdoor patios.
ALIGNMENT WITH CITY OF KITCHENER STRATEGIC PLAN:
Dynamic Downtown — outdoor patios are a key ingredient to a lively and dynamic downtown.
Outdoor patios are one of the areas identified as part of an Amazing King Street Experience,
under the core areas of focus within the Downtown Kitchener Action Plan 2012-2016.
FINANCIAL IMPLICATIONS:
This report recommends modifying the Fees and Charges Schedule to create a two-tiered
system for patio encroachment fees. Based on 2013 operators, this would result in a loss of
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$1,314 in revenue. However, it is anticipated that a number of new, smaller patios will be
established in 2014, decreasing the net difference. In the long term, facilitating a significant
increase in the number of licensed patios should result in minimal financial impact to City
revenues, if not an increase. Staff estimate that there are upwards of 20+ restaurants operating
on downtown City streets who currently do not have a patio. As this review was undertaken in
early 2014, the recommended two-tiered system was not included in the 2014 Comprehensive
Fee Review.
COMMUNITY ENGAGEMENT:
The need for more outdoor patios was identified during the public consultation leading up to the
development of the Downtown Kitchener Action Plan (Fall of 2011).
CONCLUSION:
That the Outdoor Patio Encroachment Agreement be amended to reflect the proposed minor
changes to Council Policy # I-1205, and that the City introduce a two-tiered fee structure for
patio encroachments.
ACKNOWLEDGED BY: Jeff Willmer, CAO
APPENDIX— Draft Revised Council Policy I-1205
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COUNCIL POLICY RESOLUTION
POLICY NUMBER: 1-1205 DATE: APRIL 29, 1991
REPEALED & REPLACED: MARCH 7, 2011
AMENDED: MARCH 4, 2013
POLICY TYPE: STREET
SUBJECT: OUTDOOR PATIO ENCROACHMENTS
POLICY CONTENT-
Purpose-
The City, through its Official Plan and Economic Development Strategic Plan,
strongly promotes downtown vitality. The use of city property including
downtown sidewalks for restaurant patios and cafes directly contributes to
building a dynamic streetscape. Patios that are safely constituted, accessible,
and well operated play a significant role in creating vibrant streets and enhancing
the pedestrian experience.
Requirements
All applicants wishing to operate or make changes to an outdoor patio on City
property must submit a complete to-scale patio plan and details of any proposed
alternatives to fencing to the City's Manager of Downtown and Community
Development or delegate (the "Manager").
The Manager shall review each application and ensure that each patio plan is
satisfactory to the City's Chief Fire Prevention Officer or delegate. The Manager
shall also determine whether the proposed patio plan shows:
a) a minimum of 1.83 metres (6 feet) clearance between the patio and any
other obstruction to provide sufficient space for pedestrian movement;
b) patio limits that are clearly defined by either physical barriers such as
fencing or flower pots or surface delineation such as paving stones;
C.) �e79heFe patie iRte d_P_dc tG h-aye a line eF th-at iF iyill ho oPr_1AC;Pd
by a forme of _At fni 1r f00t_ in heigh+-7
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where the patio is intended to have a liquor licence that it will be
enclosed by a fence of at least 0.9m (3 feet) in height;
d) a minimum 1.2 metre (3.94 feet) wide clear pathway provided for egress
from the business; and
e) that at least 10% of the patio's tables and chairs will be barrier free and
accessible.
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POLICY NUMBER: 1-1205
POLICY TYPE: STREET
SUBJECT: OUTDOOR PATIOS — ENCROACHMENT AGREEMENT
Where an alternative to fencing is proposed, the Manager shall review the
proposal to ensure that the alternative barriers are-
a) proposed for a patio on which alcohol will not be consumed;
b) of a clearly visible colour that contrasts with the street's surface material
(such as black);
c) at least four feet high (in the case of planters such height may be
calculated by combining the height of the planters and the protruding plant
material);
d) fixed or difficult to move;
e) of satisfactory materials; and
f) not, in the opinion of the City's Director of Operations and Director of
Transportation Planning (or delegates thereof), barriers that would create
a hazard.
If any of the above criteria are not met, the Manager shall work with the
appropriate staff and the applicant to determine whether a satisfactory solution
can be reached.
Delegated Approval Authority
The Manager is hereby delegated authority to approve an application for an
outdoor patio encroachment agreement provided:
a) the applicable conditions set out under the Requirements subtitle in this
policy have been met or that any discrepancies have been resolved to the
satisfaction of the appropriate staff; and
b) the Kitchener Downtown Business Improvement Area, the Manager of
Licensing, and the Director of Enforcement have been notified of the
application and have not requested that the matter be referred to Council.
Notwithstanding anything else herein, the Manager may at any time refer an
outdoor patio encroachment agreement application to Council for consideration.
Agreement Conditions and Execution
Where the Manager or Council has approved an outdoor patio encroachment
application, the Mayor and Clerk are authorized to execute the outdoor patio
encroachment agreement and any amendment thereto provided such are in
accordance with this policy and said agreement is satisfactory to the City
Solicitor.
Outdoor patio encroachment agreements and amendments thereto shall be in a
form approved by the City Solicitor and unless otherwise approved by the City
Solicitor, each outdoor patio encroachment agreement shall, as applicable,
include provisions that:
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POLICY NUMBER: 1-1205
POLICY TYPE: STREET
SUBJECT: OUTDOOR PATIOS — ENCROACHMENT AGREEMENT
a) any necessary building permits have been obtained prior to installation;
b) the regular patio season runs from the date set by the Manager of
Maintenance and Operations on an annual basis until October 31St of each
year with extensions as approved by the Manager of Maintenance and
Operations;
c) insurance and indemnification provisions will be to the satisfaction of the
Risk Manager from the Waterloo Region Municipalities Insurance Pool
excepting that only $2,000,000 in general liability insurance shall be
required;
d) the right to encroach will cease upon 24 hours' notice from the City that
removal of the encroachment is required;
e) the licensee ensures that its patio complies with relevant legislation and
municipal by-laws including the Ontario Health Protection and Promotion
Act, the Liquor Licence Act, and the Accessibility for Ontarians with
Disabilities Act;
f) items within the patio may be positioned by operators at their discretion
provided that any concerns of the Manager respecting placement be
addressed to his/her satisfaction, necessary clearance is maintained
around any Siamese connections to the satisfaction of the City's Fire
Department, the occupancy load is not exceeded, means of egress is
maintained, and at least 10% of seats remain accessible;
g) sidewalk signs or other obstructions not be placed within the minimum 1.2
metre (3.94 feet) wide clear pathway provided for egress from the
business;
h) the licensee keeps the patio and surrounding areas free from garbage or
refuse including cigarette butts, hand sweeps the sidewalk in the area of
the patio, and in the case of a divided patio shall also be responsible for
cleaning and clearing the sidewalk area between the different portions of
the patio;
i) where planter boxes are used as a barrier that the preferred plantings will
be of bright colours;
j) the licensee keeps the sidewalk abutting the patio free and clear of
obstructions;
k) the licensee imposes a dress code requiring shoes and shirts and display
a dress code sign where the Manager of Licensing has determined that
the dress code has not been appropriately imposed;
1) the licensee ensures that patron behaviour is reasonable and where
needed will hire the necessary security personnel to monitor patron
behaviour;
m) the licensee not allow patrons to loiter within and around the patio limits;
R) 1iGeRcoo Inihn h-c rent h-ad a r»tie b ro cn_-rd--avc°a rent -abide by a
MGRti-tiy--rratie ref air-Ah9l s-ales to gFess FefFesh.m.°rles (iRnl61diRit feed
th '1RdFieG) o}f,, -5,010/ nr locc -And aRY linor�c cn�co�ye
Magee r-1IG2 to de se shall F i giro that feed -Anr! beye-Fag to
KITCHENER Page 3 of 5 MARCH 2013
5 - 7
POLICY NUMBER: 1-1205
POLICY TYPE: STREET
SUBJECT: OUTDOOR PATIOS — ENCROACHMENT AGREEMENT
-h P_ r__t-:)A CS aim°c(d Wit- tiR the r»tie area are sepyed i 1ciRg plaGtiGiaGryliGipap°r
glasses, 0;
GIir�r�epwar° and G61tleFy
a licensee who uses glassware within the patio area must do so in a
safe fashion, avoiding hazardous situations, and is subject to the
discretion of the Manager of Licensing, who may revoke the usage of
glassware within the patio area;
o) the licensee ensures bicycles or animals are not attached to the patio
barriers; }�,
APT the lin°r�c°° pests a GGPY orthe Fo+ahllchmP_RtG GOde
of C;E)R l i lGt n°vF Fri the liq 199 Ili.°nn° f9F the patie if ran° is ebtaoRed; Delete
q) the licensee posts a sign inviting comments on the patio to be made to the
City in a location satisfactory to the Manager of Licensing;
r) the licensee ensures that open umbrellas do not protrude beyond the patio
in a manner that creates a hazard in the opinion of the City's Manager of
Maintenance Operations;
s) the licensee ensures that any umbrellas on the patio do not have any
advertising on them other than the business name and/or logo;
t) the items within the patio including furniture be to the satisfaction of the
City's Manager;
u) the licensee complies with any restrictions placed upon the operation of
the patio by the City;
v) the licensee not be permitted to use chain link fencing and that the use of
fencing that is black or of a colour that matches the colour scheme of the
business while providing a contrast to pavement surfacing materials be
stated as a preference;
Lei\ if smeki is n°rmi t��the eperro� shall m�L° r en-hl° �nrtc � titl:
�crrrrr cra �r�urr�rrarccT rru�� vrc�r
asttJfii�ctttlTrvrti-e MaaRageFte mrr_ize-modeFse impaGtG GR ReighhGWriRit
b si.pesses and pedectri-ARc-,0 and
the operator shall abide by the Regional Municipality of Waterloo By-
law, and if smoking is permitted, the operator shall make reasonable
efforts to the satisfaction of the Manager of Licensing to minimize
adverse impacts on the neighbouring businesses and pedestrians;
and
x) that failure to comply with a direction of the Manager of Licensing to
correct any violation of the agreement within 48 hours may result in the
right to encroach ceasing.
Perpetual Agreements
The City of Kitchener may choose to issue a perpetual patio encroachment
agreement based on the patio operator's previous performance.
While the City of Kitchener issues patio encroachment agreements on a
perpetual basis, the City of Kitchener reserves the right to revoke the
agreement if the operators do not comply with the Requirements.
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POLICY NUMBER: 1-1205
POLICY TYPE: STREET
SUBJECT: OUTDOOR PATIOS — ENCROACHMENT AGREEMENT
Prior to opening a patio in a given year, the operator must do all of the
following:
1) Pay licensing fee;
2) Provide proof of insurance;
3) Meet all Requirements of this policy as applicable (e.g. all patio
fencing and planters are in place, including movement of
bollards); and
4) Receive confirmation of the opening date from the Manager (i.e.
Opening date is to be determined by the Manager and the
operator shall not begin to operate the patio before the operator
has received confirmation from the Manager).
The City reserves the right to revoke the perpetual patio encroachment
agreement if certain requirements are not to the satisfaction of the
Manager.
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