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CC Ordinance No. 21-2229 Urgency Ordinance Authorizing the Outdoor Operations of Qualifying Establishments (Restaurants, Wineries, Breweries, and Bars)_revised 8/22/23ORDINANCE N0. 21-2229 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING THE OUTDOOR OPERATIONS OF QUALIFYING EST ABLISHMENTS (REST AURANTS, 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 Governrnent Code, the Santa Clara County Director of Emergency Services proclaimed a local emergency throughout the County related to COVID-19; and WHERE AS, 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 WHERE AS, 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 inn 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 facffitated public health by allowing diners to feel safe while dining outdoors; and 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 readi 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 tohelp assistwith 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 COUNCu 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 dumg the Ordinance No. 21-2229 Page 3 COVID-19 pandemig 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 CO'AD-19 Industry Guidance: D'me-In Restaurants, as may be amended from time to time or any updated guidelines priblished by the DoH. 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 withirx 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 shan 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 consumphon 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 Cornrntu"'iity 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 shan be charged for such application. The permitis 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 fonowing 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 u"iless the permits are extended or conditionalIy extended by order of a new local order of emergeng or the City Council. This ordinance applies retroactively to all permits issued since October 1, 2020 and all SpecialTemporary 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.'l2.050 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 wen any oral and written testimony at the August 17, 2021 City Council meeting. SECTION5. TheCityCounciloftheCityofCupertinoheldadulynoticedpublicmeeting on August 17, 2021, and after considering an 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 decisiorr 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, dause,-or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 7. The City Council finds that adoption of this Ordinance is exempt from envitor'unental 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: Severabilitxl. 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 locaI emergency order, unless the Ordinance is otherwise extended or conditionally extended by the City Coincil 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 shan 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: Co. To the extent the provisions of this Ordinance are substantially the same as previous provisions of the Cupertino Municipal Code, these provisions shan be Otdinance No. 21-2229 Page 6 construed as continuations of those provisions and not as amendments of the earher provisions. INTRODUCED and ADOPTED as anurgency ordinance of the City of Cupertino at a meeting of the City Coin"icil held on August 17, 202I, by the following vote: Vote AYES: NOES: ABSENT: ABST AIN: Members of the City Council Chao, Moore, Wei, Willey None Paul None l'SIGNE-6:7-""""""'-'-""'- "' " "-"" '-""' i 2 O{3sh,a 2-/ IDa(rcy Paul, g-City of Cupertino I ... .._.. .......... _ ._.________.____ Date I _.l IATTEST':' """-"' --- I 2$<,y/zA7 I ia (,) jKirsten Squarcia, City Clerk Date APPROVED AS TO FORM: Chri:rtlAerD Jemew Aug 26, 2021 ) Christopher D. Jensen, City Attorney Date CC Urgency Ordinance 21-2229 (Outdoor Establishment Special Temp Dining Permit) Final Audit Report Created: BY: Status: Transaction ID: 2021-08-26 Cyrah Caburian (cyrahc@cupertino.org) Signed CBJCHBCAABAAK9qKzieTjE2akdnHRFjmPj5YEyEigl7d 2021-08-27 "CC Urgency Ordinance 21-2229 (Outdoor Establishment Speci al Temp Dining Permit)" History '5 Document created by Cyrah Caburian (cyrahc@cupertino.org) 2021-08-26-11:51:54 PM GMT- IP address: 64.165.34.3 [?-> Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021 -08-26 - I 1:52:58 PM GMT i@ 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 (:o+ Document emailed to Christopher D. Jensen (chrisj@cupertino.org) for signature 2021-08-27-0:10:39 AM GMT '5 Email viewed by Christopher D. Jensen (chrisj@cupertino.org) 2021-08-27 - 0:15:40 AM GMT- IP address: 104.47.74.126 C5'g Document e-signed by Christopher D. Jensen (chrisj@cupertino.org) Signature Date: 2021-08-27 - 0:16:27 AM GMT - Time Source: server- IP address: 4 36.24.42.212 0 Agreement completed. 2021-08-27 - 0:16:27 AM GMT STATE OF CALIFORNIA ) COUNTY OF SANTA CLAR_A ) CITY OF CUPERTINO ) I, KIRSTEN SQUARCIA, City Clerk and ex-officio Clerk of the City Council of the City of Cupertino, California, do hereby certify the attached to be a true and correct copy of Ordinance No. 21-2229 which was enacted on August 17, 2021, and that it has been published or posted pursuant to law (G.C. 40806). IN WITNESS WHE_REOF, I have hereunto set my hand and seal this__3rd dayof September 2021. !# KIRSTEN SQUARCIA, City Clerk and Ex-officio Clerk of the City Council of the City of Cupertino, California