Raleigh's New Outdoor Seating Ordinance: What Local Businesses Need to Know

"51 Complaints involving Calls for Service to RPD and Complaints to City Staff
- One of the reasons cited in the Raleigh City Council's August 11, 2015 presentation on the proposed Raleigh Outdoor Seating Ordinance - dubbed by locals as the "Save the Patio" campaign.  

Like it or not, the Raleigh City Council passed the Outdoor Seating Ordinance, causing concern for many Raleigh restaurants and bars and their loyal patrons.  Because this will impact most of Raleigh's nightlife, here is a summary of what you need to know:

Outdoor Seating Permits Required:

If you are an "Eating Establishment," "Food Business,"  or "Private Club,"  you must apply for an outdoor seating permit if you wish to use City sidewalks.  

  • Eating Establishments ("EEs") are defined as "any establishment engaged in the business of regularly and customarily selling food and non-spiritous liquor, to be consumed on the premises." EEs include restaurants, cafeterias, cafes, lunch stands, grills, snack bars, fast-food, and drug stores with lunch counters.  See revised §12-2121(a)(2) of Raleigh City Ordinance. 
  • Food Businesses ("FBs") are defined as "an establishment engaged in the business of regularly and customarily selling food and non-spiritous liquor, primarily to be consumed off the premises." FBs include groceries, drugstores, and convenience stores. See revised §12-2121(a)(3) of Raleigh City Ordinance. 
  • Private Clubs ("PCs") are defined as "an establishment that is organized and operated solely for a social, recreational, patriotic, or fraternal purpose and that is not open to the general public, but is open only to the members of the organization and their bona fide guests as set forth in G.S. §18B-1000."  See revised §12-2121(a)(4) of Raleigh City Ordinance. 

Only the property owner can apply for the Outdoor Seating Permit (so if you are leasing property, you will need to talk to the property owner before applying).  Also, if you are in a multi-floor building, the first floor will always have the right of first refusal and you must have direct access to the sidewalk in order to apply for the permit/ use the sidewalk for seating.  In other words, if you are not on the first floor but you have direct access to the sidewalk (a la The Hive), be nice to your first floor neighbors. 

Applications must include things such as a scaled drawing of the proposed outdoor seating area, hours of operation, evidence of a valid insurance policy with minimum liability of $1M, an indemnity statement to hold the City of Raleigh harmless, and all permits applicable to your establishment.  There is also a $300 permit fee.  A copy of the application can be found here.

Outdoor Seating Hours & Other Restrictions

Hours of Operation:   If your business is closed, your outdoor seating must be closed too.  You can allow patrons to dine and drink outside until 1am on Fridays and Saturdays and 12:00am on all other days of the week.  You can still serve alcohol until 2am- it just has to remain inside the establishment. 

Boundaries:   If you allow alcohol in your outdoor seating area, you must clearly show the boundaries of the seating area so people do not wander with their beers into "public" territory.  You must also post signs at all "designated exit points" that clearly state it is illegal to remove alcohol from the specific outdoor seating area.  You as the establishment (and those that operate it) are responsible for any alcohol that makes its way outside of these boundaries. 

Pedestrian Right of Ways:  Pedestrian clearances are also mandated under the new ordinance.  You must have a 5 foot wide (unobstructed) pedestrian corridor at all times through the "public right of way."  If your are located on Fayetteville Street, as many of you are, your unobstructed pedestrian corridor must be 7 feet wide.   There is also a chance additional restrictions may apply under the Americans with Disabilities Act and the NC Building Code. Talk to your attorney for more information.

Occupancy:   Occupancy of outdoor seating areas are based on actual seating capacity and must comply with the Maximum Floor Area Allowances under Table 1004.1.1 of the NC Building Code.  Outdoor Seating areas cannot include cash registers, minibars, tents, or similar appurtenances.  

I got the Permit, Now What?

Outdoor Seating Permits are valid for one-year and expire on June 30th of each year.  Renewal applications must be received no later than June 30th.  These permits are NOT assignable.  This means if the establishment changes ownership, the permit follows the Permit Holder and may be rendered invalid.  The new ordinance defines a "change in ownership" to include "any change in the ownership of shares in a privately held corporation, [the] sale of all or part of a sole proprietorship, or any change in the membership of any form of [LLC]."  If you are publicly traded, an acquisition of more than 10% of stock also equates to a "change in ownership."   Talk to an attorney if you are unsure whether this applies to you. 

Violations

Now for the stuff you really care about: what happens if I don't comply.  Violations can lead to a $100 penalty for first time offenders, $500  penalty + suspension for 30 days for second time offenders, and revocation for 12 months for third time offenders. 

The full text of the new ordinance can be found here.