§ 19-5. Display of goods on pavement, walks, etc., prohibited.

(a)

It shall be unlawful for any merchant or other person to place on any pavement, walk or sidewalk within the city any articles of merchandise or things of any kind whatsoever, except as allowed by permit or ordinance.

(b)

[Definitions.] When used in this section, the following words shall have the following meanings:

(1)

Maintenance: The immediate cleaning and sweeping of any trash, food, debris, liquid, broken glass or other trash to be placed in trash receptacles.

(2)

Permittee: The recipient of a sidewalk café/decor permit under the terms and provisions of this section.

(3)

Restaurant: A building or room devoted primarily to the preparation and service of food for pay, and which holds all applicable licenses required to operate as a such.

(4)

Right-of-way: Land in which the state, the South Carolina Department of Transportation (SCDOT), or the City of Myrtle Beach owns the fee or has a right-of-way easement devoted to or required for use as a transportation facility or street.

(5)

Sidewalk: That portion of the right-of-way which is located between the curb line or the lateral line of a street and the adjacent property line and which is intended for use by pedestrians.

(6)

Sidewalk café: A use located on a public sidewalk which is associated with and abutting to a licensed restaurant or food establishment where food and/or beverages are delivered for consumption. It is characterized by tables and chairs and may be shaded by awnings if permits for such awnings have been issued. A sidewalk café must be in compliance with all DHEC (South Carolina Department of Health and Environmental Control) rules, regulations, and standards.

(7)

Sidewalk decor: The placing or locating of chairs, benches, and/or potted living plants on the sidewalk adjacent to a licensed business, for the purpose of beautifying the right-of-way. No objects other than chairs, benches, and potted living plants are included in the definition of "sidewalk decor."

(8)

Street: That portion of a right-of-way improved, designed or ordinarily used for vehicular traffic or parking.

(c)

[Sidewalk cafés.] Sidewalk cafés and sidewalk decor will be allowed, by permit only, in the following designated areas only, as indicated on the attached Exhibit A [attached to Ordinance No. 98-05 and to Ordinance No. 2007-77]:

(1)

Both sides of 9th Avenue North between Nance Plaza, and Broadway Street.

(2)

The West side only of Nance Plaza.

(3)

The East side only of Broadway Street between 9th Avenue North and Oak Street.

(4)

The East side only of Oak Street between Broadway Street and 8th Avenue North.

(5)

Both sides of 8th Avenue North between Oak Street and Kings Highway.

(6)

Both sides of Main Street between Oak Street and Kings Highway.

(7)

The South side only of Main Street between Broadway Street and Oak Street.

(8)

Both sides of Broadway Street between US Highway 501/Main Street and 4th Avenue North.

(9)

Sidewalks within C-6 Zones.

(d)

Sidewalk café/decor permit application.

(1)

Application for a permit to place sidewalk decor and/or to operate a sidewalk café shall be made at the office of Myrtle Beach Construction Services. Such application shall include, but not be limited to, the following information:

(i)

Name, address and telephone number of the applicant;

(ii)

Name, address and operating hours of the place of business to which the application applies;

(iii)

A copy of a valid city business license. In the case of a restaurant, the number of chairs to be utilized for the sidewalk café must be included in the number of chairs authorized by the license;

(iv)

A copy of current certificate of insurance in the amounts and categories required by subsection 19-5(h) of this section;

(v)

A scale drawing showing the layout and dimensions of the existing sidewalk area and adjacent private property, proposed size and location of clear pedestrian pathway, proposed location, size and number of tables, chairs, planters and plants, location of doorways, location of trees, sidewalk benches, trash receptacles, and any other sidewalk obstruction either existing or proposed within the pedestrian area;

(vi)

Photographs, drawings or manufacturer's brochures fully describing the appearance of all proposed tables, chairs, planters, or other related objects;

(vii)

Text copy as it will be shown on the pavers or brass plaques described in subsection 19-5(g)(7) of this section;

(viii)

Photographs showing the current storefront, adjacent sidewalk, adjacent buildings, and current streetscape.

(ix)

Applications from businesses located on 9th Avenue North, Oak Street, or Main Street or any other street located within the state highway system shall include an approved encroachment permit from the South Carolina Department of Transportation (SCDOT).

(2)

Applications shall be reviewed for compliance with city ordinances and must be approved by the Myrtle Beach Department of Construction Services.

(3)

Acceptance of the sidewalk café/decor permit by the applicant shall operate as consent to the health, fire, police and building officials of the city and state to inspect the sidewalk café for continued compliance with the terms and conditions of this section and any federal, state, county, or local law, ordinance or regulation affecting the same.

(e)

Sidewalk café/decor permit fee.

(1)

The annual permit fee for establishing or maintaining sidewalk decor or a sidewalk café shall be $500.00.

(f)

[Standards and criteria—Application review.] The following standards and criteria shall be used in reviewing the application:

(1)

No items other than enclosures permitted pursuant to subsection (f)(10), tables, chairs, benches, speakers, outdoor umbrellas, misters, portable heaters, and/or potted plants shall be permitted to be placed or otherwise located on the sidewalk. All other items are prohibited.

(2)

Sidewalk decor and sidewalk cafés are restricted to the abutting sidewalk frontage of any street of the licensed business to which the permit is issued.

(3)

All items are to be located in the sidewalk area immediately adjacent to and abutting the restaurant or business of the permittee. No items are to be placed in the area between the city landscaping.

(4)

Items shall be placed in such a manner that a minimum of four feet of the sidewalk width is maintained at all times as an unobstructed pedestrian path. This minimum distance shall be measured from the city landscaping, trash receptacles, benches, utility poles, or other obstructions closest to the front of the nearest building, or, in the case where there are no other obstructions, from the curb. In no way may recesses in the sidewalk café/decor frontage be used to satisfy this unobstructed width requirement. This four-foot clear pedestrian way shall be free of any landscaping, benches, trash receptacles, tables, chairs, plants, poles, and any other item that would interfere with adequate pedestrian movement. In areas of congested pedestrian activity, the city manager is authorized to require a wider pedestrian path, as he or she deems necessary. In all cases the pedestrian way shall be established to comply with all requirements of the Federal Americans With Disabilities Act.

(5)

No items will be permitted within five feet of a pedestrian crosswalk or handicap ramp.

(6)

To ensure safe ingress and egress, all items shall be placed in such a manner that a sidewalk area at least 44 inches wide, or the width of the exit doors, whichever is greater, is maintained at all times as an unobstructed path that leads from all doors, or any other building exit, to the unobstructed pedestrian path described in subsection (3) above.

(7)

Left intentionally blank.

(8)

Tables, chairs, plants and planters provided within the allowable area shall be of quality design, materials, size, elevation, and workmanship to ensure the safety and convenience of users and pedestrians.

(9)

Plants and planters shall not be placed in such a way as to obstruct the view into, nor to cover more than 25 percent, of any display window.

(10)

The sidewalk café/decor area may be open to the adjacent walks, or may be enclosed or partially enclosed by fences, lattice, railings, ropes, or barrier of any type, as approved by the community appearance board.

(11)

No part of the sidewalk café/decor area shall encroach upon any part of the sidewalk frontage of any adjacent premises, right-of-way, or alley.

(12)

All tables, chairs, and planters permitted to be placed on the sidewalk shall be fire-retardant, pressure treated or manufactured of fire resistant material.

(13)

Restrooms for a sidewalk café shall be provided in the adjoining indoor restaurant and the café seating shall be counted in determining the restroom requirements and impact fees of the indoor restaurant.

(14)

Only one menu board shall be permitted per outdoor café, and its maximum size shall not exceed four square feet, and is not to be considered as part of any signage package or permit.

(15)

No vending machines of any kind shall be permitted in the sidewalk area.

(16)

Artificial illumination of sidewalk cafés shall be no greater than one foot candle at the perimeter of the sidewalk café area. Illumination source, location, wattage, foot candles, and illumination range shall be shown on the permit. The only permitted sources of artificial illumination shall be:

(i)

Candles placed on tables only; and/or

(ii)

Lighting fixtures permanently, affixed onto the exterior, made to comply with chapter 6 article XII (lighting and glare) of the Code of Ordinances.

(17)

The sidewalk café/decor area shall be at the same elevation as the adjoining sidewalk. Paint, grass, artificial turf, carpets, platforms, or any other surface cover or treatment of any kind are prohibited from being placed upon any area of the sidewalk.

(18)

No permit will be issued for the use of any sidewalk which is within the state highway system until a permit has been obtained by the applicant from the state department of transportation.

(g)

Liability and insurance.

(1)

The permittee shall agree to indemnify, defend, save and hold harmless the city, its officers and employees from any and all claims, liability, lawsuits, damages and causes of action which may arise out of this permit, or the permittee's activity on the demised premises.

(2)

The permittee shall agree to provide and maintain during the permit period, at its sole expense, the following insurance:

(i)

A comprehensive, broad form commercial general liability insurance policy providing a combined single limit of liability of $1,000,000.00 per occurrence for bodily injury and property damage. The city shall be named as an additional insured on the policy and an endorsement shall be issued reflecting this requirement.

(ii)

The policy shall be issued by a company licensed in the state and acceptable to the city.

(iii)

The policy shall be further endorsed to provide the city 30 days written notice prior to any cancellation, non-renewal or material change in the coverage provided. The cancellation of any policy provided in compliance with this subsection shall have the immediate affect of suspending the permit until a new policy complying with the provisions of this subsection is filed with the city.

(iv)

The permittee shall provide for approval by the city's risk manager an original certificate of insurance as evidence that the above requirements have been met prior to commencing operations. Failure to comply with these requirements shall cause a suspension or revocation of the permit.

(3)

Insurance requirements as described in subsection (2) above shall be effective for the duration of the sidewalk café/decor permit.

(h)

[Additional conditions.] In addition to the standards and criteria described in subsection 19-5(g), the permit shall contain the following conditions:

(1)

The encroachment permit is temporary and may be denied, suspended, or revoked, without refund of permit fee, for any conduct which is contrary to the provisions of section [chapter] 19 of this Code or for conduct of the business in such a manner as to create a public nuisance, or constitute a danger to the operator's or public's health, safety, or welfare.

(2)

No property right is created by this section. This provision shall be in bold face type and all capital letters on-the permit. Subject to the city's police power, the permittee shall have exclusive use of the delineated area, and the delineated area is to be considered as an extension of the permittee property interest, whether fee simple or leasehold, for purposes of obtaining insurance for easement, and uniform code enforcement and the business operation, including sale of alcohol, beer and wine, of the permittee. The city may revoke the permit at any time for cause with 30 days notice, with right to a hearing before the city council.

(3)

Each permit shall be effective for a maximum of one year and will coincide with the term of the permittee's current business license. Each permit is subject to annual renewal with the approval of the construction services department. The annual permit fee described in subsection 19-5(f) shall coincide with the permit dates, and shall not be prorated for unused time.

(4)

The permit issued shall be personal to the permittee only, and shall be non-transferable.

(5)

Left intentionally blank.

(6)

The city may require the temporary removal of sidewalk items when street, sidewalk, or utility repairs necessitate such action.

(7)

The code inspector or his designee, or the police or fire departments may cause the immediate removal or relocation of all or some items in emergency situations. The city and its officers and employees shall not be responsible for items relocated during emergencies.

(8)

The permit shall be specifically limited to the area shown on the scale drawing attached to and made a part of the permit.

(9)

The permittee shall be responsible for preserving the four-foot clear pedestrian area at all times. The permittee shall take necessary action to assure that its use of the sidewalk in no way interferes with sidewalk users or limits their free unobstructed passage. The city may require relocation of tables, chairs and other objects at any time for safety or pedestrian flow considerations.

(10)

The permittee agrees to clean every table immediately after use. The sidewalk area covered by the permit and the sidewalk and right-of-way immediately adjacent to it, and all tables, chairs, plants and planters allowed by the sidewalk café/decor permit shall be maintained in a neat and orderly appearance at all times by the permittee, including the clearing of all debris as needed during the day, again at the close of each business day and at any other time as determined by the city.

(11)

The permittee is strictly accountable for maintenance, safety, good order, and the proper legal and moral conduct of its patrons.

(12)

The presetting of tables with decorative items, utensils, glasses, napkins, condiments and the like is permitted; provided that their weight is sufficient to prevent them from being blown off the tables by the wind.

(13)

Music, voice, sound, and noise of all kinds are regulated by section 14-62 of the Myrtle Beach Code.

(14)

All tables, chairs, plants, planters, or any other items, or parts of items shall be readily removable, and shall not be leaded, cemented, nailed, bolted, power riveted, screwed in, attached, chained, or in any manner affixed, even in a temporary manner, to any sidewalk, curb, building, tree, post, sign, public bench, trash receptacle, or any other fixture within or near the permitted area.

(15)

No additional outdoor seating authorized herein shall be used for calculating seating requirements pertaining to location of, applications for, or issuance of a liquor license for any establishment; nor shall it be used as the basis for computing required seating for restaurants and dining rooms, or as grounds for claiming exemption from such requirements under the provisions of any city ordinance or state law.

(16)

The permit covers only the public sidewalk. Outdoor items located on private property will be governed by other applicable regulations.

(17)

No food storage, preparation, fire, or fire apparatus, other than table candles, shall be allowed in the permitted area or any other area of the public sidewalk.

(18)

No sidewalk area shall be used for the display, sale, bartering, trade, storing or taking of orders for goods, wares, merchandise, articles, or items, except:

(i)

A sidewalk café may serve food and beverages prepared or stocked for sale at the adjoining indoor restaurant; and

(ii)

A licensed greenhouse or florist may display plants to be purchased from its adjoining business.

(19)

Pursuant to section 14-1(c)(1), the sale, service or consumption of any alcoholic beverage or alcoholic beverages or alcohol in any form, by any permittee, permittee's agent, permittee's employee, or consumer is prohibited outside the defined boundaries of the permitted area described in (d)(1)(v) above.

(20)

Items, other than those permitted in (f) (1), shall not remain on the sidewalk over night. Hours of operation of the sidewalk café shall be limited to the hours of operation of the associated restaurant, as indicated on the sidewalk café permit.

(21)

Upon the issuance to Myrtle Beach of a "Hurricane Watch" or a "Hurricane Warning" by The National Weather Service the permittee shall forthwith remove and place indoors all tables, chairs, planters, and other equipment or items located on the sidewalk.

(22)

At all times, the permittee must comply with all other local ordinances and state or federal laws and regulations, including but not limited to health rules, laws and regulations.

(23)

The issuance of a permit does not grant or infer vested rights to use of the area by the permittee. The city retains the right to deny the issuance of a permit or the renewal of a permit for any reason.

(i)

Denial, revocation or suspension of permit; removal and storage fees; emergencies.

(1)

The provisions of this section shall be enforced by the Myrtle Beach Department of Construction Services.

(2)

Upon denial of the permit, the construction services department shall give written notice of such action to the permittee.

(3)

The approval of a sidewalk café/decor permit is conditional at all times. A sidewalk café/decor permit shall be denied, revoked or suspended, with no refund of any permit fee, if it is found that:

(i)

Any necessary business or health permit has been suspended, revoked, or canceled; or

(ii)

The permittee does not have insurance which is correct and effective in the minimum amount described in subsection 19-5(h); or

(iii)

The permittee exceeds the approved square footage by placing any additional tables, chairs, etc., beyond the approved area; or

(iv)

Changing conditions of pedestrian or vehicular traffic cause congestion necessitating removal of the sidewalk items. Such decision shall be based upon findings of the city that the minimum four-foot pedestrian path is insufficient under existing circumstances and represents a danger to the health, safety, or general welfare of pedestrians or vehicular traffic; or

(v)

The permittee has failed to correct violations of this article or conditions of the permit within 24 hours of receipt of the city's notice of same delivered in writing to the permittee.

(4)

In the event the permittee fails to remove any tables, chairs, and other objects within 24 hours of receipt of the city's notice of denial, revocation or suspension, the city many remove said objects. The permittee shall be responsible for the expenses incurred by the city for the removal and storage of said objects.

(5)

If the city believes that a permittee has engaged in or is engaged in conduct warranting the suspension or revocation of the permit, the permittee shall be served via certified mail or hand delivery, at the business address that is disclosed on the permit application, a written administrative complaint which affords reasonable notice of facts or conduct which warrant the intended action. The complaint shall state actions required to eliminate the violation, if any, and the date by which such violations must be eliminated.

(Code 1980, § 3-1-6; Ord. No. 98-05, § 3, 1-13-98; Ord. No. 2007-77, 12-11-07; Ord. No. 2010-17, 2-9-10)

Footnotes:

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Editor's note— Exhibit A, referenced above, is not set out herein, but is on file and available for inspection in the city offices.