§ 19-160.5 Violations; penalties for a sidewalk or roadway cafe.
AC § 19-160.5
a. Any person found to be operating an unlicensed sidewalk cafe or unlicensed roadway cafe shall be subject to civil penalties as described in section 19-150 and enforcement pursuant to section 19-151. For purposes of this section, any violation for operating an unlicensed sidewalk cafe or unlicensed roadway cafe shall be included in determining the number of violations by any subsequent license holder at the same place of business unless the subsequent license holder provides the department with adequate documentation demonstrating that the subsequent license holder acquired the premises or business through an arm's length transaction as defined in subdivision d of this section and that the sale or lease was not conducted, in whole or in part, for the purpose of permitting the original license holder to avoid the effect of violations on the premises. b. Any holder of a license to operate a sidewalk cafe or a roadway cafe license shall be subject to the civil penalties described in section 19-150 and enforcement pursuant to section 19-151 where such holder is found to be operating such cafe in violation of: (i) any provision of section 19-160 through 19-160.6 or any rule promulgated thereunder, (ii) the terms or conditions of such license, or (iii) the terms or conditions of a revocable consent to operate such cafe. c. In addition to any other enforcement procedures authorized by this subchapter, the department may, after providing notice and an opportunity to be heard, suspend or revoke a license to operate a sidewalk or roadway cafe and order the removal or sealing of such sidewalk or roadway cafe for 3 or more violations of the same provision of this subchapter or rules of the department promulgated under this subchapter within a 2 year period; or any 6 or more violations of any provision of this subchapter or rules of the department promulgated under this chapter within a 2 year period. d. For purposes of this section, a subsequent license holder shall be liable for violations by a prior license holder unless the subsequent license holder provides the department with adequate documentation demonstrating that the subsequent license holder acquired the premises or business through an arm's length transaction and that the sale or lease was not conducted, in whole or in part, for the purpose of permitting the original license holder to avoid the effect of violations on the premises. For purposes of this subdivision, the term "arm's length transaction" means a sale of a fee or all undivided interests in real property, or lease of any part thereof, or a sale of a business, in good faith and for valuable consideration, that reflects the fair market value of such real property, lease or business in the open market between 2 informed and willing parties, where neither party is under any compulsion to participate in the transaction, unaffected by any unusual conditions indicating a reasonable possibility that the sale or lease was made for the purpose of permitting the original licensee to avoid the effect of violations on the premises. The following sales or leases shall be presumed not to be arm's length transactions unless adequate documentation is provided demonstrating that the sale or lease was not conducted, in whole or in part, for the purpose of permitting the original licensee to avoid the effect of violations on the premises: 1. a sale between relatives; 2. a sale between related companies or partners in a business; or 3. a sale or lease affected by other facts or circumstances that would indicate that the sale or lease is entered into for the primary purpose of permitting the original licensee to avoid the effect of violations on the premises. e. Corrective action request. Notwithstanding subdivision b of this section, if the department finds that any holder of a license to operate a sidewalk cafe or roadway cafe has violated for the first time (i) any provision of section 19-160 through 19-160.6 or any rule promulgated thereunder, or (ii) the terms or conditions of such license, the department shall notify such license holder of such violation and request that action be taken to correct such violation within 30 days and shall afford such licensee an opportunity to contest the department's finding in a manner set forth in rules of the department. Nothing in this subdivision prohibits the department from issuing a notice of violation for any such violation that has not been corrected within such 30 days. f. Notwithstanding any inconsistent provision of this section, the decision to suspend or revoke a license shall be waived if, upon the submission of satisfactory proof, the department determines that the person or persons who committed the violations which are the basis for the suspension or revocation acted against the licensee's instructions in committing such violations. g. The commissioner may order the removal of any furniture, equipment, structure or other obstruction used in connection with the operation of an outdoor dining area on the sidewalk or in the roadway by a person that is not licensed to operate a sidewalk cafe or roadway cafe pursuant to this subchapter and has no other lawful right to operate an outdoor dining area on such sidewalk or in such roadway or where any furniture, equipment, structure or other obstruction placed on the sidewalk or roadway by a licensee is inconsistent with criteria or design for such area as set forth in the rules of the department. Such order shall be served in the manner provided by the rules of the department and shall afford the person to whom such order is directed an opportunity to be heard in accordance with such rules. Where such order has not been complied with within a reasonable period of time as set forth in such order, officers or employees of the department or the police department may remove such furniture, equipment, structure or other obstruction from the sidewalk or the roadway and convey them to a place of safety. Where the department has an address for the person to whom such order was directed, within 30 days of removal, the department shall mail to such person notice of such removal and the manner in which such furniture, equipment, structure or other obstruction may be claimed. Such furniture, equipment, structure or other obstructions shall not be released until all removal charges and storage fees have been paid or a bond or other security for such amount has been posted. Any furniture, equipment, structure or other obstructions that are not claimed shall be disposed of in accordance with applicable law and the rules of the department. Nothing in this section is intended to alter or affect the power of the commissioner to immediately remove any obstruction from the sidewalk or roadway that the commissioner determines is a danger to public welfare, safety, or energy system reliability, including planned or emergency utility work. (L.L. 2023/121, 8/16/2023, retro. eff. 6/20/2023) Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2023/121.
