Int 0290-1998

Be it enacted by the Council as follows: Section 1. Subdivision e of section 364 of the charter of the city of New York is amended to read as follows: e. Notwithstanding any provision of this charter or the administrative code, revocable consents to construct and operate sidewalk cafes shall be reviewed pursuant to subchapter [six] three of chapter [two] one of title [twenty] nineteen of the administrative code. � 2. Chapter 1 of title 19 of the administrative code of the city of New York is amended by adding a new subchapter 3 to read as follows: SUBCHAPTER 3 SIDEWALK CAFES � 19-181. Definitions. Whenever used in this subchapter: a. "Sidewalk cafe" shall mean a portion of an eating or drinking establishment, located on a public sidewalk, that is either enclosed or unenclosed. b. "Enclosed sidewalk cafe" shall mean a sidewalk cafe which is separated from pedestrian traffic by a structure 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 adjacent to an eating or drinking establishment which contains readily removable tables and chairs. d. "Public sidewalk" shall mean any surface between the property line and the curb including such surfaces above or below the grade of the curb. e. "Eating or drinking establishment" shall mean a public establishment where food or drink is served, sold and eaten or drunk on the premises. �19-182. Revocable Consent Required. a. A person owning or leasing an eating or drinking establishment upon property which abuts upon any street within the city on which a sidewalk cafe is permitted pursuant to the zoning resolution may establish and operate or continue to operate a sidewalk cafe upon the public sidewalk of such street, provided such sidewalk cafe is in an area immediately adjacent to such eating or drinking establishment and provided such person is granted a revocable consent for such sidewalk cafe by the department pursuant to this subchapter. Notwithstanding the foregoing, any sidewalk cafe located within a park or other property under the jurisdiction of the department of parks and recreation shall not be subject to the provisions of this subchapter. b. The department, consistent with the provisions of this subchapter, shall establish such rules as the department deems proper in respect to the granting of such revocable consents and the operation and maintenance of any sidewalk cafe including, but not limited to, regulation of hours of operation, noise levels, and design, including physical and siting criteria, to ensure good order and to prevent undue obstruction of the public sidewalk, which shall have the force and effect of law. The department, subject to the provisions of this subchapter, may approve a revocable consent based on such criteria as the department deems to be necessary to effectuate the purposes of this subchapter. c. No alteration permit or any other required permit for the construction, alteration or renovation of an enclosed sidewalk cafe shall be granted until a revocable consent is granted for such cafe pursuant to this subchapter. No revocable consent shall be granted for a sidewalk cafe which obstructs the means of egress from any portion of a building or for any unenclosed sidewalk cafe with an awning unless a permit therefor is issued by the department of buildings. No revocable consent shall be granted for a sidewalk cafe located in a historic district, on a landmark site or attached or adjacent to an eating or drinking establishment located in a landmark or an improvement containing an interior landmark except as provided in section 19-183. d. No revocable consent shall be transferred in any manner without the express written permission of the department. �19-183. Review and approval of petitions for revocable consents to establish and operate or continue to operate sidewalk cafes. A petition for a revocable consent to establish and operate or continue to operate a sidewalk cafe shall be reviewed and approved in the following manner: a. The petition shall be in such form as prescribed by the department after consultation with the landmarks preservation commission. A petition for a revocable consent to operate a sidewalk cafe must be submitted by the owner or lessee of the eating or drinking establishment and must include the written and duly acknowledged consent of (I) in the case of an unenclosed sidewalk cafe, the owner of the building in front of which the sidewalk cafe is to be operated and (ii) in the case of an enclosed sidewalk cafe, the owner of the building onto which the sidewalk cafe is to be attached. The petition shall be filed with the department which, within five days of the filing of such petition, shall forward copies thereof to the landmarks preservation commission for review pursuant to subdivision b of this section if the proposed cafe is located in a historic district, on a landmark site or attached or adjacent to an eating or drinking establishment located in a landmark or an improvement containing a landmark. For informational purposes, the department shall also forward copies of the petition, within five days of the filing of such petition, to the speaker of the council, to the council member in whose district the cafe is proposed to be located and to the borough president in whose borough the cafe is proposed to be located. b. The landmarks preservation commission shall indicate in writing to the department whether or not any petition forwarded for review requires a certificate of appropriateness within twenty days of the receipt of the petition. c. The department shall review the petition and, if the petition is incomplete or the landmarks preservation commission determines that the petition requires a certificate of appropriateness, the department, within thirty days of receipt of the petition, shall inform the petitioner as to what further information is necessary to complete the application or inform the petitioner of the requirement of a certificate of appropriateness and that review of the petition has been stayed until the information indicated is submitted or the certificate of appropriateness has been obtained. If the information is not received or a certificate of appropriateness is not obtained (I) in the case of an enclosed sidewalk cafe, within one hundred eighty days or (ii) in the case of an unenclosed sidewalk cafe, within ninety days, from the date the petitioner is informed that review of the petition has been stayed, such petition shall be deemed to have been withdrawn. d. If the department determines that no further information is required and no certificate of appropriateness is necessary or the information is received and the certificate of appropriateness is obtained within the prescribed time, the department shall forward the petition within five days of its determination to the community board for the community district in which the sidewalk 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 sixty days after receipt of such petition, either (I) notify the public of the petition in a manner specified by rules of the department, 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 forty-five days after the earlier of the filing of a recommendation or waiver by the community board or the expiration of the sixty-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, (iii) prepare a proposed revocable consent and (iv) file with the council any such decision to approve or approve with modifications, together with a copy of the proposed revocable consent. 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 a 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 petitioner shall give notice thereof by certified or registered mail to all persons who occupy ground floor frontage whether residential, commercial or other use, within fifty feet of either side and the owners of such properties along the same block front as the proposed cafe and the department shall give notice thereof 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 sidewalk cafe is proposed to be located and to the council member in whose district the sidewalk 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 a proposed revocable consent is received by the council pursuant to subdivision f of this section, the council may resolve by the majority vote of all the council members to review the proposed revocable consent or at any time within this period notify the department that the council does not intend to review the proposed revocable consent. If the council does not resolve to review the proposed revocable consent, the approval or approval with modification 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 proposed revocable consent 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 proposed revocable consent and shall file with the mayor its resolution, if any, with respect to the proposed revocable consent within fifty days of the filing of the proposed revocable consent 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 proposed revocable consent. Any modification by the council shall not affect the terms of any proposed revocable consent 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 proposed revocable consent, the action of the department shall be deemed to have been approved. I. The final revocable consent shall be prepared by the department and shall be for such term and upon such conditions as approved or approved with modification 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. Revocable consents for sidewalk cafes shall provide for fees to be paid annually to the city during the continuance of the revocable consent. Such fees shall be calculated pursuant to a formula established by rule, which shall apply uniformly to all consents for sidewalk cafes. �19-184. Penalties; seizure and forfeiture. a. Any person found to be in violation of any of the provisions of this subchapter or of any rules promulgated thereto by the department shall be liable for a civil penalty of not more than one thousand dollars. In the case of a continuing violation, each day's continuance shall be a separate and distinct offense. The civil penalties provided for in this subdivision may be recovered in a proceeding before the environmental control board. A proceeding to recover a civil penalty authorized to be imposed pursuant to this section shall be commenced by the service of a notice of violation by authorized employees of the department, the department of consumer affairs or the department of sanitation, which shall be returnable to the environmental control board. Such board, after due notice and an opportunity for a hearing, shall be authorized to impose the civil penalties prescribed in this section. b. The department shall revoke the revocable consent for an unenclosed sidewalk cafe, if the owner or lessee of such sidewalk cafe is found to be in violation on three or more occasions within a two-year period of those provisions or rules regarding the operation and maintenance of sidewalk cafes that concern (I) the area of the sidewalk that may be occupied by a sidewalk cafe, including the permissible number of tables and chairs, (ii) the days and hours of operation, (iii) the maintenance of order, noise levels, music and the use of sound systems, or (iv) the affixing of objects to the surface of a sidewalk. The provisions of this subdivision requiring revocation of consents shall not be construed as otherwise limiting the powers of the department to revoke a consent for a sidewalk cafe. Upon the revocation of a consent pursuant to this subdivision, the grantee of such consent shall be barred for a period of five years after the date of revocation from filing a petition for a new consent at the same location. c. In addition to the above prescribed civil penalties, in the event that any tables, chairs, furniture, equipment or any other obstruction are placed on the sidewalk without the specific approval of the department, any police officer or authorized employees of the department, the department of consumer affairs or the department of sanitation, upon service of a notice of violation upon the owner or lessee of the cafe, may seize such items. Any property seized pursuant to this subdivision shall be delivered into the custody of the department or other appropriate agency. A hearing to adjudicate the violation underlying the seizure shall be held before the environmental control board within five business days after the seizure and such board shall render a decision within five business days after the conclusion of the hearing. In the event that the environmental control board determines that there has been no violation, the property that was seized shall be released forthwith to the owner or lessee of the cafe or any person authorized by such owner or lessee to take possession of such property. In the event the environmental control board concludes that there has been a violation, the property that was seized shall be released upon payment of the civil penalty imposed for the violation underlying the seizure and the costs of removal and storage as set forth in the rules of the department. Where a proceeding relating to the violation underlying the seizure is pending before the environmental control board, the property shall be released upon posting of a bond or other form of security sufficient to cover the maximum civil penalty which may be imposed for such violation and the costs of removal and storage. Any property that has not been claimed by the owner or lessee of the cafe within ten business days after mailing by first class mail to such owner or lessee of notice of a determination by the environmental control board that there has been no violation shall be deemed by the department to be abandoned. Any abandoned property shall be disposed of by sale at public auction following notice by publication in the city record describing such property not less than ten business days prior to such sale. Such notice shall provide that the owner may reclaim such property until a date that shall be not sooner than ten business days from the date the notice is published. d. In addition to any other penalties, sanctions or remedies provided for in this section, property which has been seized pursuant to this section and all rights, title and interest therein shall be subject to forfeiture upon notice and judicial determination thereof if the owner or lessee of the cafe has been found liable on one or more prior occasions for placing tables, chairs, furniture, equipment or other obstruction on the sidewalk without specific approval of the department. Notice of the institution of the forfeiture action shall be served by first class mail to the address of the person from whom such property and equipment was seized and by publication in the city record describing such property or equipment. Any person with an ownership or security interest in such property may assert a claim in such action for satisfaction of such person's interest. Forfeiture pursuant to this subdivision shall be made subject to the interest of a person who claims an interest in the property where such person establishes that the placement of such property on the sidewalk without specific approval of the department was made without the knowledge of such person. The department, after judicial determination of forfeiture, shall, by public notice of no less than five days, sell such forfeited property at public sale. The net proceeds of such sale shall be paid into the general fund of the city. In any forfeiture action commenced pursuant to this subdivision, where the court awards a sum of money to one or more persons in satisfaction of such person's or persons' interest in the forfeited property, the total amount awarded to satisfy such interest or interests shall not exceed the amount of the net proceeds of the sale of the forfeited property after deduction of the lawful expenses incurred by the city, including the reasonable costs of removal and storage between the time of seizure and the date of sale. �3. Subchapter six of chapter two of title twenty of the administrative code is REPEALED. �4. This local law shall take effect immediately 1