23-20 - ALCOHOLIC BEVERAGES, SIDEWALK CAFÈS, ALCOHOL OPEN CONTAINER

Ordinance NO. ORD-23-20

BY THE COUNCIL BAGEANT, CLEGG , HALLYBURTON, SANCHEZ, THOMSON AND WOODINGS

AN ORDINANCE ENACTING A NEW CHAPTER 16 TO TITLE 1, BOISE CITY CODE, ENTITLED “EMERGENCY TEMPORARY SUSPENSION AND AMENDMENT OF PROVISIONS OF BOISE CITY CODE TITLE 3, CHAPTER 3, (ALCOHOLIC BEVERAGES), TITLE 3, CHAPTER 4 (SIDEWALK CAFÈS), AND TITLE 5, CHAPTER 2, SECTION 10 (ALCOHOL OPEN CONTAINER)”; SETTING FORTH THE AUTHORITY, PURPOSE AND SCOPE OF THIS CHAPTER; PROVIDING DEFINITIONS; SUSPENDING CERTAIN PROVISIONS OF BOISE CITY CODE TITLE 3, CHAPTER 4 REGARDING THE PERMITTING REQUIREMENTS OF SIDEWALK CAFES; AMENDING PROVISIONS OF BOISE CITY CODE TITLE 3, CHAPTER 3, AND TITLE 3, CHAPTER 4, REGARDING THE RENEWAL OF SIDEWALK CAFÉ PERMITS AND ALCOHOL BEVERAGE LICENSES; AMENDING BOISE CITY CODE SECTION 5-2-10 TO ALLOW CERTAIN BUSINESSES TO TRANSPORT OPEN CONTAINERS OF ALCOHOL FROM THEIR MAIN BUSINESS PREMISES TO THEIR PERMITTED AND LICENSED TEMPORARY OUTDOOR PATIO SPACES ACROSS SIDEWALKS AND OTHER PUBLIC PLACES; PROVIDING FOR AN APPLICATION PROCESS MANAGED BY THE CITY CLERK'S OFFICE TO PROCESS, GRANT OR DENY TEMPORARY SIDEWALK CAFÉ SPACES OR EXTENSIONS TO EXISTING SIDEWALK CAFES AND EXTENSIONS TO EXISTING ALCOHOL PREMISE LICENSES; PROVIDING AN AUTOMATIC SUNSET PROVISION AND DATE; PROVIDING PENALTY PROVISIONS; PROVIDING FOR A WAIVER OF THE READING RULES; APPROVING A SUMMARY OF THE ORDINANCE; AND PROVIDING AN EFFECTIVE DATE.

WHEREAS, the health and safety of all citizens of the city of Boise City ("City") is the greatest priority and is of the utmost importance of the Mayor and City Council; and

WHEREAS, the coronavirus ("COVID-19"), is a respiratory disease caused by the SARS-CoV-2 virus, which is a new strain of coronavirus that had not been previously identified in humans and can easily spread from person to person, which can result in serious illness or death thereby threatening widespread and severe damage to life or property thereby creating an "emergency" as defined by Idaho Code § 46-1002; and

WHEREAS, on March 11, 2020, the World Health Organization declared the worldwide outbreak of COVID-19 a pandemic, and on March 13, 2020, the U.S. President, Donald Trump, issued an emergency declaration for the country in response to the increasing number of COVID-19 cases with the United States, which is still in effect; and

WHEREAS, on March 13, 2020, Idaho Governor, Brad Little, signed a Declaration of Emergency for the state of Idaho, in response to concerns that cases of COVID-19 were imminent in Idaho; and

WHEREAS, on March 16, 2020, Boise City Mayor, Lauren McLean, declared a local disaster emergency in the City, in accordance with Idaho Code title 46, Chapter 10 (Disaster Preparedness Act), due to the threat that COVID-19 posed to the health and welfare of the City's residents; and

WHEREAS, on March 17, 2020, the Boise City Council ratified and extended the Declaration of Emergency; and

WHEREAS, on April 7, 2020, the Boise City Council adopted an ordinance enacting a new Boise City Code Title 1, Chapter 15, (Emergency Powers), which set forth the authority, purpose, and intent of the adopted emergency powers to address the threat of COVID-19; and

WHEREAS, beginning on March 25, 2020, Governor Little, by way of the Idaho Department of Health and Welfare Orders of the Director, issued the first of multiple statewide orders to protect the health, safety, and welfare of the citizens of Idaho; and

WHEREAS, on April 30, 2020, Governor Little and Idaho Department of Health and Welfare ("Dept. of Health and Welfare") Director, Dave Jeppesen, issued the "Stay Healthy Order" effective as of 12:00 a.m. May 1, 2020, implementing Stage 1 of the Governor's Idaho Rebound plan, and which can be found on the website: rebound.idaho.gov. The Stay Healthy Order included a four-stage plan to reopen Idaho and its economy, based on specific criteria being met before Idaho advances to the next stage of reopening. The Idaho Division of Public Health and the Governor's Coronavirus Working Group review the criteria every two weeks to assess the criteria and determine whether the state should move forward, remain in, or move back a stage; and

WHEREAS, on May 16, 2020, Governor Little and Dept. of Health and Welfare Director Jeppesen, issued the "Stay Healthy Order" implementing Stage 2 of the Governor's Idaho Rebound plan, and which can be found on the website: rebound.idaho.gov, which continued to provide restrictions and guidelines for businesses to adhere to social distancing and sanitation requirements; and

WHEREAS, on May 30, 2020, Governor Little and Dept. of Health and Welfare Director, Dave Jeppesen, issued the "Stay Healthy Order," implementing Stage 3 of the Governor's Idaho Rebound plan, and which can be found on the website: rebound.idaho.gov, which continues to provide restrictions and guidelines for businesses to adhere to social distancing and sanitation requirements; and

WHEREAS, on June 11, 2020, Governor Little and Dept. of Health and Welfare Director, Jeppesen, issued the "Stay Healthy Order," implementing Stage 4 of the Governor's Idaho Rebound plan, and which can be found on the website: rebound.idaho.gov, which continues to provide restrictions and guidelines for businesses to adhere to social distancing and sanitation requirements; and

WHEREAS, the Department of Health and Human Services, Centers for Disease Control and Prevention ("CDC"), and the White House recommend practices to prevent the person-to-person spread of COVID-19, including, social distancing and wearing face masks in public settings; and

WHEREAS, on June 22, 2020, Central District Health ("CDH") Director, Russ Duke, issued an order regarding quarantine and restrictions, which was reissued on June 26, 2020, with minor amendments; and

WHEREAS, as of June 22, 2020, test results at both City wastewater treatment facilities showed an increased presence of SARS-CoV-2 virus in the wastewater units per liter; and

WHEREAS, on June 23, 2020, Mayor McLean issued Public Health Emergency Order No. 20-09, (Closure of Bars, Group Size Limitation; and Airport and Public Meeting Restrictions), which was later amended and reissued on June 25, 2020 ("Amended Emergency Order 20-09), to provide clarity regarding which entities were required to close, and regarding new public meeting requirements; and

WHEREAS, on July 4, 2020, Mayor McLean issued Public Health Emergency Order No. 20-10, requiring face coverings to be worn in public within the City; and

WHEREAS, on July 14, 2020, CDH issued an order which requires face coverings to be worn in all public places in Ada County when others are present and six feet physical distancing cannot be maintained; and

WHEREAS, as of July 15, 2020, CDH has reported a significant daily increasing in number of confirmed COVID-19 cases in Ada County, thereby indicating significant person-to-person community spread; and

WHEREAS, on July 15, 2020, Mayor McLean issued Public Health Emergency Order No. 20-11, which repealed and replaced prior orders 20-09 and 20-10, and which among other requirements, continued to order bars closed, bike bars closed, face coverings to be worn in public, and social distancing; and

WHEREAS, on May 19. 2020, Boise City Council adopted Resolution No. 202-20, which resolved that the City would work with other community stakeholders and governmental agencies to seek opportunities to allow private businesses to use public rights-of-way as part of their business premises and directed City staff to review licensing and permitting requirements for use of such public spaces to determine which requirements may be dispensed with temporarily; and

WHEREAS, under Idaho Code section 50-301, the City has the authority to exercise all powers and perform all functions of local self-government in city affairs that are not in conflict with the general laws or the constitution of the state of Idaho; and

WHEREAS, under Idaho Code section 50-302, the City is empowered to make all such ordinances, bylaws, rules, regulations, and resolutions not inconsistent with the laws of the state of Idaho as may be expedient, in addition to the special powers in this act granted, to maintain the peace, good government and welfare of the corporation and its trade, commerce and industry; and

WHEREAS, under Idaho Code section 50-903, the City is empowered to revise and codify ordinances of a general and permanent nature and to make such changes, alterations, modifications, additions, and substitutions therein as the City deems best; and

WHEREAS, the Mayor and City Council recognize that these small businesses are of vital importance to our economy and our recovery efforts, and they are essential to safely and successfully reopen our City; and

WHEREAS, the Mayor and City Council of the City of Boise recognize that local businesses, particularly bars and restaurants, have suffered due to the effects of the COVID-19 pandemic, which required many of them to cease all in-person operations, including in-person dining service; and

WHEREAS, Boise and other cities throughout the country are exploring avenues to temporarily permit businesses to increase their outdoor footprint to safely accommodate customers and to adequately protect their workforce while maintaining physical and social distance, and while remaining in compliance with federal, state and local laws; and

WHEREAS, due to the COVID-19 pandemic, many individuals have stayed at home, and numerous businesses have encouraged telework, which has resulted in a decrease in motorized traffic on our public streets; and

WHEREAS, the Idaho State Police, Alcohol Beverage Control Unit has authorized Cities to expand the licensed area of eating and drinking establishments that serve alcohol beverages on a temporary basis to address the requirements and guidelines of the Stay Healthy Order.

THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO:

Section 1. That Boise City Code Title 1, shall be, and hereby is, amended to add a new chapter, 16, to read as follows:

CHAPTER 16

EMERGENCY TEMPORARY SUSPENSION AND AMENDMENT OF PROVISIONS OF BOISE CITY CODE TITLE 3, CHAPTER 3, (ALCOHOLIC BEVERAGES), TITLE 3, CHAPTER 4 (SIDEWALK CAFÈS), AND TITLE 5, CHAPTER 2, SECTION 10 (ALCOHOL OPEN CONTAINER)

Sections:

1-16-1: LEGAL AUTHORITY:

1-16-2: PURPOSE:

1-16-3: SCOPE:

1-16-4: DEFINITIONS:

1-16-5: TEMPORARY SUSPENSION AND AMENDMENT OF CERTAIN SIDEWALK

CAFÉ PROVISIONS:

1-16-6: TEMPORARY AMENDMENT TO ALCOHOL LICENSES:

1-16-7: TEMPORARY EXCEPTION TO OPEN CONTAINER PROVISIONS:

1-16-8: APPLICATION PROCESS FOR TEMPORARY EXPANSION OF PREMISES:

1-16-9: SUNSET PROVISION:

1-16-10: PENALTY:

1-16-1: LEGAL AUTHORITY:

Article XII, Section 2 of the Idaho Constitution, and Idaho Code sections 50-304 and 50-606 authorize the city of Boise City ("City") to pass ordinances granting certain powers to the Mayor related to public health emergencies.

Idaho Code sections 50-301 and 50-307 authorize the City to regulate occupations and businesses within the City. Additionally, Idaho Code sections 50-302, 50-314, and 49-208 authorize the City to adopt ordinances, rules, and regulations for the general welfare and safety of the public and to regulate, limit and control traffic and parking within its boundaries.

1-16-2: PURPOSE:

The City desires to assist businesses licensed to sell alcohol by the drink through the difficulty of having their establishments closed pursuant to citywide emergency health orders based on the COVID-19 pandemic. Restaurants and bars have been particularly hard struck throughout this pandemic by state and local emergency orders, which have either closed the inside of their retail establishments from patrons or significantly reduced the number of patrons allowed within their premises. Consequently, many of these businesses have suffered devastating economic losses and have been forced to lay-off employees.

To provide some relief to these businesses, the City shall temporarily suspend certain provisions of Boise City Code Title 3, Chapter 4, (Sidewalk Cafes) pertaining to permit and licensing requirements. This emergency chapter also temporarily amends certain provisions of Title 3, Chapter 3, (Alcoholic Beverages), Title, 3, Chapter 4, (Sidewalk Cafes), restricting the renewal of sidewalk café permits and alcoholic beverage licenses from including temporary expansions or permissions granted in accordance with this chapter. Lastly, this chapter shall temporarily amend Boise City Code section 5-2-10, to permit certain businesses to transport open containers of alcohol from their licensed premises to their temporary, nonabutting sidewalk café spaces across sidewalks or other public places.

1-16-3: SCOPE:

This emergency chapter shall automatically expire upon the sunset date, as provided within this chapter. The special exceptions and provisions provided in this chapter are temporary. They shall expire at the sunset date or upon the lifting of emergency orders restricting bars and restaurants, whichever comes first. Nothing in this chapter grants any licensee a permanent property or license interest in the temporary, special exceptions and provisions provided herein.

1-16-4: DEFINITIONS:

For the purposes of this chapter, the following terms, phrases, words, and derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. Words used throughout this chapter, but not defined herein, shall have their plain, ordinary, and common meaning. Words in any gender shall apply to the feminine, masculine and neuter genders.

ALCOHOLIC BEVERAGE: Any beverage containing alcohol which is a product of the distillation of any fermented liquor, or synthetic ethyl alcohol, including beer, wine, spirits, or any liquid containing alcohol, beer, wine or spirits.

CITY: The City of Boise City, Idaho.

CITY CLERK'S OFFICE: The Office of the City Clerk of the City or its designee.

PARKING SPACE: The area on or adjacent to the roadway in which to stop, stand, or park a vehicle which may be designated by lines or other markings. No parking space, for the purposes of this chapter, shall exceed the maximum size of ten (10) feet wide by twenty (20) feet long.

PREMISES: The business building in or grounds on which the service and sale of any alcoholic beverage by the drink are authorized under Boise City Code Title 3, Chapter 3, and pursuant to Idaho Statute.

PUBLIC PLACE: An area to which the general public has an unrestricted right of access and that is generally open or used by the public, regardless of whether it is publicly or privately owned (e.g., sidewalks, parking lots, plazas, etc.)


SIDEWALK: That portion of a public right-of-way, which is between the curb lines and the adjacent property lines which is improved and designed for and is ordinarily used for pedestrian travel.

SIDEWALK CAFE: An outdoor dining or sitting area of a retailer as permitted under Boise City Code Title 3, Chapter 4, that is contiguous to the retailer's premises, and is located in whole or in part on a sidewalk and containing removable tables, chairs, barriers, planters or related appurtenances.

1-16-5: TEMPORARY SUSPENSION AND AMENDMENT OF CERTAIN SIDEWALK

CAFÉ PROVISIONS:

A. Authority: Subject to the authority granted to the City Clerk's Office by this temporary, emergency ordinance, the below-cited portions of the following sections of Boise City Code ("B.C.C.")Title 3, Chapter 4, Sidewalk Cafes, are suspended during the term of this chapter:

1. B.C.C. section 3-4-4(A), which states in relevant part: "The application must be executed by the applicant and filed with the Clerk not less than thirty (30) days prior to the date the applicant intends to begin operating a sidewalk café." Under the authority granted by this chapter, the City Clerk's Office shall not require applications for temporary sidewalk cafes or amendments to existing sidewalk café permits to be filed thirty (30) days in advance of the date the applicant intends to begin operating a sidewalk café.

2. B.C.C. section 3-4-4(B), which states "Where an application is filed less than thirty (30) days prior to the operation of a sidewalk café, the applicant may execute a waiver of procedural appeal rights in order to allow for the consideration of the granting of a sidewalk café permit. A waiver of procedural appeal rights is not a guarantee or promise that the permit can or shall be processed or granted. The filing fee is not refundable in any case." Under the authority granted by this chapter, the City Clerk's Office shall not require a waiver to consider the issuance of a temporary sidewalk café permit or a temporary amendment to an existing sidewalk café permit filed less than thirty (30) days prior to the date the applicant intended to begin operating a sidewalk café. Additionally, the City Clerk may waive the application fee for a sidewalk café.

3. B.C.C. section 3-4-4(C), which states in relevant part: "The application shall be … accompanied with the permit fee herein required." Under the authority granted by this chapter, the City Clerk's Office may waive the application fee for a sidewalk café.

4. B.C.C. section 3-4-6(D)(7)(a) requiring denial of a permit application unless: "7. An applicant proposing to offer alcoholic beverages: a. Abuts or is contiguous to the on premises retailer in which the beverage is prepared for consumption, sanitation, and related services are performed." Under the authority granted by this chapter, the City Clerk's Office may grant a temporary sidewalk café permit or a temporary amendment to an existing sidewalk café permit to allow for the use of nonabutting sidewalk café space.

5. B.C.C. section 3-4-6(D)(7)(b), requiring denial of a permit application unless: "7. An applicant proposing to offer alcoholic beverages: b. The boundaries of the sidewalk cafe … in which alcoholic beverages are consumed is through the retail establishment abutting or contiguous to the sidewalk café." Under the authority granted by this chapter, the City Clerk's Office may grant a temporary sidewalk café permit or a temporary amendment to an existing sidewalk café permit to allow for the use of nonabutting sidewalk café space.

6. B.C.C. section 3-4-6(D)(8)(a), requiring denial of a permit application unless: "8. The detailed diagram or description of the premises accompanying the application reflects: a. That none of the sidewalk café furnishings, tables, chairs, or barriers are closer than eight feet (8') from the curb. If no curb, the edge of the pavement, where street trees or parking meters are installed." Under the authority granted by this chapter, the City Clerk's Office may grant a temporary sidewalk café permit, or a temporary amendment to an existing sidewalk café permit to allow for the use of nonabutting sidewalk café space closer than eight feet (8') to the curb or the edge of the pavement. However, any sidewalk café space shall obey all A.D.A. sidewalk accessibility requirements as set forth in Code.

7. B.C.C. section 3-4-7, which states "Each application for a sidewalk café shall be accompanied by the required nonrefundable permit fees in an amount established by the City Council and listed on the most current City Clerk license fee schedule along with: A. Any fee imposed by P.D.S. for review for a zoning certificate. B. Any fee imposed by Building Department for occupancy permit." Under the authority granted by this chapter, the City Clerk's Office may waive the application fee for a sidewalk café, including any fees imposed by P.D.S. or the Building Department for the review of zoning certificates and occupancy permits.

B. Authority: Subject to the authority granted to the City Clerk's Office by this temporary, emergency ordinance, B.C.C. section 3-4-9 shall be temporarily amended during the term of this chapter to add the following language at the current end of this section:

"Notwithstanding any language to the contrary, all applications for a renewal of a sidewalk café permit, and continuation of such permit pending City Clerk action on the renewal application, shall not include any temporary sidewalk café space or temporary amendments to an existing permit granted under this chapter."

C. Any temporary sidewalk café permits or temporary amendments to existing sidewalk cafes permits granted under this chapter, shall not exceed the dimensions of the permitted space for such temporary sidewalk cafés as determined by the City Clerk's Office.

1-16-6: TEMPORARY AMENDMENT TO ALCOHOL LICENSES:

A. Authority: Subject to the authority granted to the City Clerk's Office by this temporary, emergency ordinance, B.C.C. section 3-3-9 shall be temporarily amended during the term of this chapter to add the following language at the current end of this section:

"Notwithstanding any language to the contrary, all applications for a renewal of an alcoholic beverage license, and continuation of such license pending City Clerk action on the renewal application, shall not include any temporary amendments to that existing license granted under this chapter."

B. All City-granted temporary amendments to existing licensed premises are made with the permission of the Idaho State Police, Alcohol Beverage Control Bureau ("A.B.C."). The City Clerk's Office is temporarily authorized by A.B.C. to grant temporary, noncontiguous expansions to existing licensed alcohol premises within the City.

C. Any temporary expansion to the applicant's existing licensed alcohol premises shall not exceed the dimensions of the permitted space for such temporary expansion to the licensed premises as determined by the City Clerk's Office.

1-16-7: TEMPORARY EXCEPTION TO OPEN CONTAINER PROVISIONS:

A. Authority: Subject to the authority granted to the City Clerk's Office by this temporary, emergency ordinance, B.C.C. Section 5-2-10 shall be temporarily amended during the term of this chapter to add a new subsection E, which shall read:

"E. Temporary Exception: The provisions of this section shall not apply to the possession of alcoholic beverages being transported across sidewalks or other public places by an employee of an alcohol licensed premises with a temporary sidewalk café permit or a temporary amendment to an existing sidewalk café permit as issued under B.C.C. Title 1, Chapter 16. This exception is solely to allow the employees of a licensed retail establishment to transport alcoholic beverages from its premises to nonabutting temporary sidewalk café spaces in an expedited manner."

B. The above amendment to B.C.C. Title 5, Chapter 2, is temporary and shall automatically expire with the end of the term of this chapter.

1-16-8: APPLICATION PROCESS FOR TEMPORARILY EXPANDED PREMISES:

A. Authority of City Clerk's Office: The City Council authorizes to the City Clerk's Office to process, grant, or deny all applications for temporary sidewalk café permits or to amend existing sidewalk café permits and licensed premises for the sale of alcohol by the drink under the provisions of this chapter.

B. Application Process: An application for a temporary sidewalk café permit or a temporary amendment to an existing sidewalk café permit and licensed premises for the sale of alcohol by the drink shall be made to the City Clerk in the form and manner as prescribed by that office.

C. Temporary Amendment to Permit and License: An application to expand an existing sidewalk café permit and premises of an alcohol licensed premises granted under the provisions of this chapter, shall be reflected as a temporary amendment to such permit and license. All granted temporary sidewalk café permits or temporary amendments to existing sidewalk café permits and alcohol licenses shall expire automatically on December 31, 2020, or sooner by ordinance.

D. Application Denial: Whenever the City Clerk's Office denies an application under this chapter, the Clerk shall specify in writing the reasons for denial, and the actions, if any, that the applicant could take to successfully reapply for the temporary expansion to the applicant's City-issued sidewalk café permit and alcohol license. An appeal of the denial of an application under this chapter shall be governed by the procedures set forth in Boise City Code Title 3, Chapter 1A.

1-16-9: SUNSET PROVISION:

The special exceptions provisions provided in this chapter shall expire automatically on December 31, 2020, unless terminated, modified, or extended by ordinance before that date.

1-16-10: PENALTY:

A. Every violation of this chapter shall constitute a general misdemeanor, and every person deemed guilty thereof, upon conviction, subject to penalty as provided in section 1-4-1 of this Code.

B. Suspension or Revocation: Any licensee violating the provision of this chapter may, in addition to the penalties prescribed by law as punishment for a misdemeanor, be subject to the suspension or revocation of the licensee's City-issued sidewalk café permit, alcohol license, or both, following the procedures set forth in Boise City Code Title 3.

Section 2. That pursuant to the affirmative vote of one-half (1/2) plus one (1) of the members of the full Council, the rule requiring two (2) separate readings by title and one (1) reading in full be, and the same is hereby, dispensed with, and accordingly, this Ordinance shall be in full force and effect immediately upon its passage, approval and publication.

Section 3. The Summary of this Ordinance, a copy of which is attached hereto as Exhibit A, is hereby approved.

ADOPTED by the Council of Boise City, Idaho, on July 30, 2020.

APPROVED by the Mayor of the Boise City, Idaho, on July 30, 2020.

APPROVED:


Lauren McLean, Mayor

ATTEST:

Lynda Lowry, Ex-Officio City Clerk