CC Ordinance No. 21-2229 Urgency Ordinance Authorizing the Outdoor Operations of Qualifying Establishments (Restaurants, Wineries, Breweries, and Bars) Pursuant to a Special Temporary Outdoor Dining Permit ORDINANCE NO. 21-2229
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AUTHORIZING THE OUTDOOR OPERATIONS OF QUALIFYING
ESTABLISHMENTS (RESTAURANTS, WINERIES, BREWERIES,AND BARS)
PURSUANT TO A SPECIAL TEMPORARY OUTDOOR DINING PERMIT
WHEREAS, the City Council adopted Urgency Ordinance No. 20-2207 on June 5,2020 to
protect the public health and facilitate outdoor business operations Citywide in response
to COVID-19; and
WHEREAS,the adopted ordinance expired upon the termination of the County's Shelter-
in-Place Order and the State's Blueprint for a Safer Economy,which removed restrictions
including physical distancing, capacity limits for all business sectors, and looser mask
mandates; and
WHEREAS, on February 3, 2020, and pursuant to Section 8630 of the California
Government Code, the Santa Clara County Director of Emergency Services proclaimed a
local emergency throughout the County related to COVID-19; and
WHEREAS, on March 4, 2020, California Governor Gavin Newsom declared a State of
Emergency to make additional resources available, formalize emergency actions already
underway across multiple state agencies and departments, and help the state prepare for
a broader spread of COVID-19; and
WHEREAS, on March 11, 2020, the City Manager for the City of Cupertino ("City")
declared a local emergency throughout the City related to COVID-19; and
WHEREAS, on March 17, 2020, the Council ratified and continued the City Manager's
declaration of a local emergency; and
WHEREAS, the State, County, and local emergency proclamations are still in effect with
no date certain of when they will be lifted; and
WHEREAS, during the COVID-19 emergency, businesses that serve food or beverages
onsite and indoors increase the risk of COVID-19 transmission, endangering public
health and safety; and
WHEREAS, restaurants,wineries,breweries, and bars can serve food or beverages onsite
and reduce the risk of COVID-19 transmission by serving food or beverages outdoors;
and
WHEREAS, food and beverage service establishments constitute an important segment
of the Cupertino economy and sales tax base for the City; and
WHEREAS, many businesses have been significantly impacted due to the prolonged
period of COVID-19 restrictions, and the temporary outdoor dining operations to reduce
Ordinance No.21-2229
Page 2
regulatory requirements and facilitate business activities in outdoor areas have provided
critical assistance to allow business to reopen, remain open, and expand outdoor
operations to help facilitate economic recovery during the local emergency and have
facilitated public health by allowing diners to feel safe while dining outdoors; and
i
WHEREAS, as of July 29,2021, there are a total of 4,064 known cases of the Delta variant
in California; and
WHEREAS,as of August 2,2021,there are a total of 298 known cases of the Delta variant
in Santa Clara County; and
WHEREAS, not all Santa Clara County residents have full vaccination status, since
approximately 78% of Santa Clara County residents have been fully vaccinated as of July
30, 2021, and with public health officials estimating that approximately 85% of a region
would need full vaccination status to reach herd immunity; and
WHEREAS, on August 2, 2021, health officials in several Bay Area counties, including
Santa Clara County, reinstated a mask mandate for all indoor settings to reduce the
spread of COVID-19 amid a surge of recent cases;and
WHEREAS, indoor dining still poses a higher risk than outdoor dining in contracting
COVID-19 due to confined spaces and the ability of higher viral loads to be exchanged
indoors; and
WHEREAS,extending the temporary outdoor dining permit program until 90 days after
the termination of the local emergency order will reduce the threat of the spread of
COVID 19 and allow businesses to continue to utilize outdoor dining operations with
reduced regulatory requirements to help assist with needed economic recovery as a result
of COVID-19; and to mitigate the potential health threats posed by the highly
transmissible COVID-19 Delta variant;
NOW,THEREFORE,THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES
ORDAIN AS FOLLOWS:
SECTION 1. For purposes of this ordinance, a qualifying establishment means any
restaurant, winery, brewery, or bar that will be allowed to operate in compliance with
reopening protocols of the State of California and Santa Clara County.
SECTION 2. Cupertino Municipal Code ("CMC") Section 19.60.050, Land Use Activity,
permits restaurants to provide outdoor seating outside of a closed atrium or patio
without a use permit, if such seating is limited to twenty percent of the indoor seating
and the restaurant is otherwise in compliance with CMC Chapter 19.124, Parking
Regulations. However, in order to allow qualifying establishments serving meals and
accompanying beverages onsite to continue to operate in a safe manner during the
Ordinance No.21-2229
Page 3
COVID-19 pandemic, the City Council hereby temporarily suspends this requirement,
provided the operator obtains a Special Temporary Outdoor Dining Permit and complies
with the following requirements:
A. The guidelines as published by the California Department of Health ("DoH") in
its COWD-19 Industry Guidance:Dine-In Restaurants,as may be amended from time
to time or any updated guidelines published by the DoH.
I
B. Any guiding document related to requirements from the Santa Clara County
Public Health Department.
C. The total amount of seating for each establishment shall be limited to the occupant
load permitted under the original certificate of occupancy for the tenant space.
D. All seating shall be spaced to allow adequate social distancing.
E. A floor plan will be required to verify outdoor seating areas are configured in a
manner to:
1. Only be located along the frontage of the qualifying establishment.
2. Provide an accessible path of travel to the new outdoor seating area(s)
compliant with the latest adopted edition of the California Building Code.
3. Not encroach into any existing egress and/or accessible paths of travel to allow
for comfortable flow of pedestrian traffic.
4. Not be located within six feet of crosswalks or within the required staging area
in front of fire hydrants.
F. If the applicant is requesting to utilize privately owned parking spaces for outdoor
seating, the number of spaces used shall not be more than 50% of the maximum
occupant load of the establishment. Utilized parking spaces shall be adjacent to
the business.
G. No food preparation shall be allowed outside.
H. No permanent fixtures are allowed.
1. Temporary barriers,not affixed into the ground or other objects for support, {
are allowed if required by Alcoholic Beverage Control ("ABC") for the
consumption of alcoholic beverages outside.
2. Temporary umbrellas not affixed into the ground or other objects are
allowed. No signage is allowed on the umbrellas.
I. No seating or service is allowed within the public right-of-way without first
obtaining an encroachment permit from the Department of Public Works.
J. Operations must comply with any requirements imposed by the Building
Department, Santa Clara County Fire Department, Environmental Services
Department, and Public Works Department. If conditions proposed by various
Ordinance No.21-2229
Page 4
departments conflict,the Director of Community Development shall decide which
ones to attach to the application.
K. City of Cupertino Business License.
L. A property manager of a shopping center may apply for a permit for their tenants
as a joint application subject to the requirements as outlined above.
SECTION 3. A qualifying establishment may apply for a Special Temporary Outdoor
Dining Permit by applying to the Community Development Director,on a form prepared
by the City.The application shall be accompanied by any additional information required
by the Community Development Director to ensure compliance with the adopted
requirements.No application fee shall be charged for such application.The permit is non-
transferable, and only the qualifying establishment for which the temporary outdoor
operations permit was issued shall be permitted to operate under the permit.
The Special Temporary Outdoor Dining Permit may be approved, conditionally
approved, or denied at the discretion of the City. Approval of the permit is contingent
upon the operation of the qualifying establishment following the reopening protocols of
the State of California and Santa Clara County, and a determination that public health
and safety of the City will not be threatened. The Director of Community Development
may impose any conditions to ensure the above. A Special Temporary Outdoor Dining
Permit does not create any property interest, and the Community Development Director
may revoke a Special Temporary Outdoor Dining Permit issued pursuant to this
ordinance at any time and for any reason. The Special Temporary Outdoor Dining
Permits shall expire 90 days after the termination of the local emergency unless the
permits are extended or conditionally extended by order of a new local order of
emergency or the City Council. This ordinance applies retroactively to all permits issued
since October 1,2020 and all Special Temporary Outdoor Dining Permits approved under
Urgency Ordinance No. 20-2207 shall be automatically reinstated and remain in effect
pursuant to the terms of this Ordinance.
SECTION 4. The City Council hereby finds, determines, and declares that this urgency
ordinance is adopted by at least four-fifths of the City Council pursuant to California
Government Code Section 36937 and CMC Section 2.12.050 and is necessary because
there is a current and immediate threat to the public health, safety and/or welfare and a
need for immediate preservation of the public peace,health, or safety that warrants this
urgency measure,which finding is based upon the facts stated in the recitals above,all of
which are deemed true and correct,as well any oral and written testimony at the August
17, 2021 City Council meeting.
SECTION 5.The City Council of the City of Cupertino held a duly noticed public meeting
on August 17, 2021, and after considering all testimony and written materials provided
Ordinance No.21-2229
Page 5
in connection with that meeting introduced this ordinance and waived the reading
thereof.
SECTION 6. If any section, subsection, sentence, clause, or phrase of this Ordinance is
for any reason held to be invalid or unconstitutional by a decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council hereby declares that it would have passed
this Ordinance and each and every section, subsection, sentence, clause,-or phrase not
declared invalid or unconstitutional without regard to whether any portion of the
Ordinance would be subsequently declared invalid or unconstitutional. I
SECTION 7. The City Council finds that adoption of this Ordinance is exempt from
environmental review under the California Environmental Quality Act(CEQA)pursuant
to CEQA Guidelines section 15061(b)(3), because it can be seen with certainty that
temporarily extending certain permit approvals and application processing timelines for
a limited period of time will not have a significant effect on the environment.
SECTION 8: Severability.
Should any provision of this Ordinance, or its application to any person or
circumstance, be determined by a court of competent jurisdiction to be unlawful,
unenforceable or otherwise void, that determination shall have no effect on any other
provision of this Ordinance or the application of this Ordinance to any other person or
circumstance and, to that end, the provisions hereof are severable.
SECTION 9: Effective Date.
This urgency Ordinance shall take effect immediately upon adoption as provided
by Government Code Section 36937 and CMC Section 2.12.050 and shall expire 90 days
after the termination of the local emergency order, unless the Ordinance is otherwise
extended or conditionally extended by the City Council or extended by a new local order
of emergency.
SECTION 10: Certification.
The City Clerk shall certify to the passage and adoption of this Ordinance and shall
give notice of its adoption as required by law. Pursuant to Government Code Section
36933, a summary of this Ordinance may be published and posted in lieu of publication
and posting of the entire text.
SECTION 11: Continyily.
To the extent the provisions of this Ordinance are substantially the same as
previous provisions of the Cupertino Municipal Code, these provisions shall be
Ordinance No. 21-2229
Page 6
construed as continuations of those provisions and not as amendments of the earlier
provisions.
INTRODUCED and ADOPTED as an urgency ordinance of the City of Cupertino
at a meeting of the City Council held on August 17, 2021,by the following vote:
Vote Members of the City Council
AYES: Chao,Moore, Wei, Willey
NOES: None
ABSENT: Paul
ABSTAIN: None
SIGNED:
/36/ze z/
Date
Darcy Paul,Mh r
City of Cupertino
ATTEST:
Date
Kirsten Squarcia, City Clerk
APPROVED AS TO FORM:
Cl nkolvhw 0 Jeefel Aug 26, 2021
Date
Christopher D.Jensen, City Attorney
CC Urgency Ordinance 21 -2229 (Outdoor
Establishment Special Temp Dining Permit)
Final Audit Report 2021-08-27
Created: 2021-08-26
By: Cyrah Caburian(cyrahc@cupertino.org)
Status: Signed
Transaction ID: CBJCHBCAABAAK9gKzieTjE2akdnHRFjmPj5YEyEigl7d
"CC Urgency Ordinance 21-2229 (Outdoor Establishment Speci
al Temp Dining Permit)" History
`') Document created by Cyrah Caburian (cyrahc@cupertino.org)
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Document emailed to Araceli Alejandre (aracelia@cupertino.org)for approval
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6a Document approved by Araceli Alejandre (aracelia@cupertino.org)
Approval Date:2021-08-27-0:10:37 AM GMT-Time Source:server-IP address:73.170.27.253
C' Document emailed to Christopher D. Jensen (chrisj@cupertino.org)for signature
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dQ Document e-signed by Christopher D. Jensen (chrisj@cupertino.org)
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® Agreement completed.
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