MINUTES OF THE SPECIAL SARASOTA CITY COMMISSION MEETING OF JANUARY 6, 1998, AT 6:00 P.M. PRESENT: Mayor Gene Pillot, Vice Mayor Jerome Dupree, Commissioners Mollie Cardamone, David Merrill, and Nora Patterson, City Manager David Sollenberger, City Auditor and Clerk Billy Robinson, and City Attorney Richard Taylor ABSENT : None PRESIDING: Mayor Gene Pillot The meeting was called to order at 6 p.m. by City Auditor and Clerk Robinson in accordance with Article III, Section 9 (b) of the Charter of the City of Sarasota; and adjourned for lack of a quorum until 6:15 p.m. Mayor Pillot called the meeting to order at 6:15 p.m. City Auditor and Clerk Robinson gave the Invocation followed by the Pledge of Allegiance. City Attorney Taylor stated that the public hearing on proposed Ordinance No. 98-4028, regulating open-air dining, is a continuation of the first public hearing held on December 17, 1998; that the public hearing on proposed Ordinance No. 97-4007, regulating sidewalk cafes, is the second of two required public hearings. Mayor Pillot requested City Auditor and Clerk Robinson to explain the public hearing process. City Auditor and Clerk Robinson stated that at this time petitioners have 15 minutes to address the Commission and 5 minutes for rebuttal; that any citizen who has signed up to speak has 5 minutes. All individuals wishing to speak during the public hearings were requested to stand and were sworn in by City Auditor and Clerk Robinson. 1. CONTINUED PUBLIC HEARING RE: PROPOSED ORDINANCE NO. 98-4028, AMENDING ARTICLE VIII, ZONING CODE, TO REVISE THE DISTRICT REGULATIONS APPLICABLE TO OPEN-AIR DINING FACILITIES ON PRIVATE PROPERTY IN CONNECTION WITH RESTAURANTS PROVIDING THAT THE BUFFER REQUIREMENTS FOR OPEN-AIR DINING FACILITIES PERMISSIBLE BY SPECIAL EXCEPTION ON PROPERTY ABUTTING OR ACROSS AN INTERVENING STREET OR ALLEY FROM RESIDENTIALLY ZONED PROPERTY SHALL NOT BE SUBJECT TO A VARIANCE PROCEDURE; AMENDING SUCH BUFFER REQUIREMENTS TO CONSIST OF A SOLID WALL WITHOUT WINDOWS; BOOK 43 Page 15926 01/06/98 6:00 P.M. BOOK 43 Page 15927 01/06/98 6:00 P.M. DEFINING TERMS; SETTING FORTH REGULATIONS FOR THE HOURS OF OPERATION OF OPEN-AIR DINING FACILITIES MAKING FINDINGS AS TO NEED; REPEALING ORDINANCES IN CONFLICT; PROVIDING FOR THE SEVERABILITY OF THE PARTS HEREOF; ETC. (TITLE ONLY) - PASSED ON FIRST READING AS AMENDED TO: 1) APPLY REGULATIONS TO ESTABLISHMENTS WITH EXISTING WINDOWS AND DOORS, 2) PROVIDE FOR MODIFICATION OF MATERIAL FOR 6.5- FOOT-HIGH WALL BY PBLP OR COMMISSION, AND 3) REVISE HOURS OF OPERATION TO: (A) REQUIRE PATRONS TO VACATE GENERAL OPEN-AIR DINING FACILITIES AT 11 P.M. SUNDAY THROUGH THURSDAY AND AT 11:59 P.M. FRIDAY, SATURDAY, AND EVENINGS BEFORE HOLIDAYS, AND (B) REQUIRE PATRONS TO VACATE OPEN-AIR DINING FACILITIES LOCATED WITHIN 120 FEET OF RESIDENTIAL AT 11 P.M. SEVEN DAYS PER WEEK (AGENDA ITEM I) #1 (0090) through #2 (2353) Timothy Litchet, Manager of Building, Zoning and Code Enforcement, came before the Commission and stated that proposed Ordinance No. 98-4028 amends Article VIII, Zoning Code, setting forth regulations pertaining to open-air dining facilities on private property, and is initiated by the Administration to clarify the intent of the existing open-air dining ordinance and to provide for consistency with sidewalk cafe regulations. Mr. Litchet continued that proposed Ordinance No. 98-4028 will apply to the following zone districts: Commercial, Shopping Center (Csc-Neighborhood, CSC-Regional, CSC-Community) i Commercial, Tourist (CT) i Commercial, Neighborhood (CN) ; Commercial, General (CG) ; Commercial, Intensive (CI); Commercial, Residential Transition (CRT) - ; Commercial, Central Business District (C-CBD) i Commercial, Office Park (COP); Theater and Arts District (TAD) i and Commercial, Business Newtown (CBN) . City Attorney Taylor stated that proposed Ordinance No. 98-4028 applies to open-air dining facilities allowed as a special exception use on private property in the zone districts cited; that the regulations will not apply to open-air dining facilities allowed as ancillary permitted uses, e.g., at Sarasota Quay. Commissioner Patterson stated that the Agenda Request for proposed Ordinance No. 98-4028 references hours of operation requiring open-air dining service to cease between 11:59 p.m. and 6 a.m. but between 10 p.m. and 6 a.m. if the facility is within 120 feet of residentially zoned propertyi; that a special exception for open-air dining is required only if the use abuts or is within 120 feet of residentially zoned property; and asked if open-air dining facilities which do not abut or come within 120 feet of residentially zoned property can operate as a matter right? Mr. Litchet stated yes; that open-air dining is a permitted use in the Zoning Code. Commissioner Patterson asked when the 11:59 p.m. requirement would apply? Mr. Litchet stated that cessation of service would be required between 11:59 p.m. and 6 a.m. if an open-air dining facility is located further than 120 feet from residentially zoned property; that the 120 feet is measured from the actual area at which the open-air dining occurs to the nearest residentially zoned property. Commissioner Patterson asked if an open-air dining facility operating a substantial distance away from the boundary of a large piece of property which abuts or is across the street from residential would be subject to the 11:59 p.m. requirement?, Mr. Litchet stated yes. Commissioner Patterson stated that open-air dining facilities on property which does not abut residential have unrestricted hours of operation. Mr. Litchet stated that is correct. Commissioner Patterson asked when the 10 p.m. requirement would apply. Mr. Litchet stated that cessation of service would be required between 10 p.m. and 6 a.m. if an open-air dining facility is located within 120 feet of residentially zoned property. Commissioner Patterson asked if the 11:59 p.m. requirement would apply to an open-air dining facility which does not abut but is located around the corner and within 120 feet of residentially zoned property? Mr. Litchet stated that the 11:59 p.m. requirement would apply if the open-air dining facility is located a distance further than 120 feet from residentially zoned property. Commissioner Patterson asked for the requirement applicable to an open-air dining facility located within 120 feet but not directly across from a residence and on property which abuts residential? Mr. Litchet stated that the 10 p.m. requirement would apply if the open-air dining facility is within 120 feet and the property abuts residentially zoned property; that the language is consistent with the sidewalk cafe ordinance as originally drafted. BOOK 43 Page 15928 01/06/98 6:00 P.M. BOOK 43 Page 15929 01/06/98 6:00 P.M. Commissioner Patterson stated that Tommy Bahama's Tropical Cafe and Emporium (Tommy Bahama's), which is located on the corner of South Washington Drive and John Ringling Boulevard, was previously granted a special exception to allow 12 open-air dining seats on a specific portion of the property. Mr. Litchet stated that is correct. Commissioner Patterson stated that one side of Tommy Bahama's faces commercial and one side faces residential; and asked if a special exception is required to provide open-air dining on the side facing residential and, if so, which hours of operation would apply? Mr. Litchet stated yes; that the 10 p.m. requirement would apply since the actual open-air dining would take place within 120 feet of residentially zoned property. Commissioner Patterson asked if a special exception is required to provide additional open-air dining seats on either side of Tommy Bahama's? Mr. Litchet stated yes; that under the existing regulations, a 6.5-foot-high wall would be required on the side facing residentially zoned property; that under proposed Ordinance No. 98-4028, the wall could not have windows or doors which open. Commissioner Patterson stated that the definition in proposed Ordinance No. 98-4028 clarifies that an area with open doors and/or windows is considered an open-air dining facility and cannot be operated without a special exception; and asked how the regulation will apply to existing structures with sliding glass doors, etc.? Mr. Litchet stated that a retroactive provision has not been included; therefore, based on his interpretation, the proposed ordinance would apply only to new permits or new applications and not to uses already permitted or to applications filed prior to the effective date of Ordinance No. 98-4028. Commissioner Patterson stated that the City Attorney previously indicated the new regulations would apply to existing structures; and asked for clarification. City Attorney Taylor stated that the matter is not viewed as a land use issue in the sense of a potential inability to apply a zoning regulation or other regulations to a particular piece of property; that the owner either can or cannot open the windows; that proposed Ordinance No. 98-4028 states the windows cannot be open; that in his opinion, the City is not legally prevented from applying the prohibition to an existing establishment as of the effective date of the ordinance. Commissioner Patterson stated that the response provided by Mr. Litchet, who is responsible for interpreting the Zoning Code, differs from that provided by City Attorney Taylor; and asked how the regulations will be enforced once adopted? Mr. Litchet stated that the City Commission directs the Administration as to policy decisions regarding ordinances; that the City Attorney has indicated the language referencing completely enclosed structures and requiring closed doors, etc., can be applied to existing structures; that the provisions of proposed Ordinance No. 98-4028 will be enforced on existing structures if such policy direction is provided as part of the legislative action taken by the Commission. Commissioner Patterson asked if language will be added to proposed Ordinance No. 98-4028 if the Commission makes a policy decision that the provisions should be applied to existing sliding glass doors? City Attorney Taylor stated that in his opinion, the Commission could legally require windows and doors of an existing building at which an open-air dining facility is operated to remain closed if the ordinance is adopted as drafted; however, incorporating additional language in proposed Ordinance No. 98-4028 would eliminate any question as to the applicability of the provision. Commissioner Patterson asked if similar language is required in the noise ordinance? City Attorney Taylor stated that the issue will be reviewed and an answer provided before Thursday, January 8, 1998, the date scheduled for the second public hearing on proposed Ordinance No. 97-4019, regulating noise. Commissioner Cardamone stated that a "permitted use" is a use allowed in the Zoning Code; that a "permit" is applied for and issued for a fee. Mr. Litchet stated that is correct. Mayor Pillot stated that the public hearing for proposed Ordinance No. 98-4028 was opened and continued at the December 17, 1997, special City Commission meeting. The following people came before the Commission: Philip Dasher, 926 Boulevard of the Arts (34236), representing Marina Suites and 888 Condominium, distributed excerpts from the April 21, 1997, regular City Commission meeting referencing Commission support to incorporate restrictions on properties at Sarasota Quay into the open-air dining ordinance; and stated that Sarasota Quay abuts and is across an intervening street from BOOK 43 Page 15930 01/06/98 6:00 P.M. BOOK 43 Page 15931 01/06/98 6:00 P.M. residentially zoned property, El Vernona Condominiums; that the Quay is also directly across from Marina Suites; that residents surrounding the Quay Basin are not opposed to outdoor dining but to the outdoor drinking and related noise generated between 11:30 p.m. and 2:30 a.m. Mr. Dasher requested that language be added to proposed Ordinance No. 98-4028 to include restrictions for open-air dining facilities which abut or are across an intervening street, alley or waterway from residentially zoned property or which are within 250 feet of residentially zoned property as measured from seawall to seawall; and stated that similar restrictions have been incorporated into the proposed noise ordinances. Mr. Dasher continued that a 6.5-foot-high masonry wall will not be effective in all situations; that the buffering requirement should be considered and applied on a case-by-case basis; that requiring open-air dining to cease between 11:59 p.m. and 6 a.m. versus 10 p.m. and 6 a.m. could be supported; that the activities associated with late-night drinking, not dining, are the problem. Mr. Dasher further stated that as drafted, the 120-foot distance requirement does not apply to residences in the Commercial- Central Business District (C-CBD) Zone District, e.g., on Palm Avenue; that the language referencing "residentially zoned property" should be changed to "property zoned primarily for residential use"; that restrictions applicable to open-air dining at Sarasota Quay should be incorporated into proposed Ordinance No. 98-4028. Commissioner Cardamone requested a response from the City Attorney. City Attorney Taylor stated that proposed Ordinance No. 98-4028 addresses open-air dining facilities allowed by special exception and does not apply to permitted uses; that the open-air dining facilities at Sarasota Quay are not granted by special exception but operate as a matter of right under the Zoning Code; that the changes proposed by Mr. Dasher cannot be recommended as a review of open-air dining facilities permitted as a matter of right has not been conducted; that the chief complaint of residents in the Quay Basin has been amplified music; that, as currently drafted, proposed Ordinance No. 97-4019, regulating noise, prohibits the issuance of a permit for amplified sound on properties located within 250 feet from any use which is primarily residential; that language referencing properties located across an intervening waterway as measured from the mean high water line or seawall of both properties has been incorporated in proposed Ordinance No. 97-4019 to address the concerns at the Quay; that the Administration should be directed to develop standards, definitions, etc., in a separate ordinance if further regulation, e.g., on open-air dining facilities located across waterways is desired. Marlow Cook, 444 North Washinqton Drive (34236), representing St. Armands Residents Association, stated that proposed Ordinance No. 98-4028 amends existing open-air dining regulations in essential ways to create compatibility between commercial operations and residential areas in the CT Zone District; that Ordinance No. 93-3017, the existing open-air dining ordinance, makes clear no open-air dining shall take place when a facility abuts or is across from residentially zoned property; and referenced the following from Section 8-87, Zoning Code: Permitted principal uses and structures in the CT district shall be as follows: (1) Open-air dining facilities on private property in connection with restaurants provided that: (i) The property on which the open-air dining facility is located neither abuts nor is across an intervening street or alley from residentially zoned property. Mr. Cook stated that City Staff and the PBLP have worked hard in preparing proposed Ordinance No. 98-4028, which clarifies the language cited by incorporating revised definitions of open-air dining, distance from residential, and hours of operation; however, the questions raised by the Commission regarding the hours of operation indicate a sense of confusion. Mr. Cook referred to various preambles of proposed Ordinance No. 98-4028 referencing regulation of hours of operation at open-air dining facilities and to the following language incorporated under the Special Exceptions provisions for each of the applicable zone districts: Open-air dining facilities shall cease service of all food and beverages to patrons between 11:59 p.m. and 6 a.m. Provided, however, if the open-air dining facility is located within one hundred twenty (120) feet of residentially zoned property, as measured in a straight line from the nearest boundary of the open-air dining facility to the nearest property boundary of the residentially zoned property, the open-air dining facility shall cease service of all food and beverages to patrons between 10 p.m. and 6 a.m. Mr. Cook stated that the PBLP attempted to regulate the hours of operation for all open-air dining facilities; however, the language drafted was inserted under the Special Exception provisions for the zone districts, which seems inappropriate and should be corrected. BOOK 43 Page 15932 01/06/98 6:00 P.M. BOOK 43 Page 15933 01/06/98 6:00 P.M. Mr. Cook continued that imposing similar hours of operation in proposed Ordinance Nos. 98-4028, regulating open-air dining, and 97-4007, regulating sidewalk cafes, would provide for easier enforcement and should be considered. Thomas Dillon, 500 South Washinqton Drive, #4A, (34236) President, Kings Arms Condominium Association, stated that although he is the president of the Kingston Arms Condominium Association, his statements represent personal views; that St. Armands Circle is a wonderful place to live with a good ambiance, fine dining, and fine shops; that the area should not be further restricted; that enforceable noise ordinances already exist; that abusive loud music is not heard from his residence; that support is offered to the restaurateurs who provide jobs, pay taxes, and are good neighbors. Mr. Dillon asked if the 120-foot distance requirement will be measured from the perimeter of the property on which open-air dining is located or from the edge of the actual dining area? City Attorney Taylor stated that the measurement is 120 feet from residentially zoned property, as measured in a straight line from the nearest boundary of the open-air dining facility to the nearest boundary of the residentially zoned property. Mr. Dillon stated that, therefore, the measurement is taken from the dining area and not the perimeter of the property; and asked if a restaurant with an open door would be prohibited from offering outdoor dining? Mayor Pillot stated that questions are generally not entertained during a public hearing; however, hearing no objections, an answer from the Administration is requested. Mr. Litchet came forward and asked for clarification of the question. Mr. Dillon stated that the location from which the measurement is taken for open-air dining is not clearly understood, e.g., whether the entire restaurant, excluding the kitchen, would become the property line if the door remains open. Mr. Litchet stated that City Attorney Taylor was correct; that the measurement is taken from the area where the open-air dining occurs. Commissioner Cardamone stated that the distance will be measured from the position at which the tables are located to the nearest residentially zoned property when a restaurant positions tables on private property and offers open-air dining between the doors of the main restaurant and the sidewalk. Mr. Litchet stated that is correct. Mayor Pillot stated that the measurement is taken from the area where the open-air dining occurs, not from the property line. Mr. Dillon stated that he now has a better understanding of the provision. Hildegard Eckman, 551 South Washinqton Drive (34236), stated that her residence is located across the street from Tommy Bahama's; that residents are negatively impacted by the noise and rowdiness occurring during the later hours; that the hours of operation proposed in Ordinance No. 98-4028 are not supported; that requiring a cessation of service at 10 p.m. and vacation of the premises at 11 p.m., Sundays through Thursdays, and a cessation of service at 11 p.m. and vacation of the premises at 11:59 p.m. on Fridays and Saturdays, would be more appropriate; that the establishments would not have to close; that service of food and beverages could continue inside the restaurant; that the hours of operation for open-air dining facilities should coincide with those proposed in Ordinance No. 97-4007, regulating sidewalk cafes. Ms. Eckman continued that outdoor dining is not opposed; however, open-air dining facilities and sidewalk cafes should not be allowed in close proximity to residences; that the distance between the property line of Tommy Bahama's and the windows on her home is only 98 feet and 7 inches; that the distance between the exterior wall of Tommy Bahama's and her property line is only 63 feet and 7 inches; that the distance between the property line of Tommy Bahama's and her property line is only 58 feet and 7 inches. Ms. Eckman further stated that the noise pollution caused by open-air dining is extremely aggravating and affects residential neighbors both mentally and physically; that although only 12 seats were approved by a special exception granted when the property was occupied by the French Hearth, Tommy Bahama's currently has open-air dining on the ground level with tables and chairs serving 14; that a special exception petition has been filed to allow Tommy Bahama's to provide open-air dining on the second floor, an activity which already occurs when the sliding glass doors are left open and patrons migrate to the chairs and stools currently positioned on the balcony; that her privacy is continually invaded by patrons who socialize on the balcony, laughing and talking loudly; that dishes are constantly being cleared and stacked; that amplified music played inside the restaurant emanates through the open sliding glass doors; that the sliding glass doors should remain closed; that the slamming of car doors and loud talking of people congregating on the BOOK 43 Page 15934 01/06/98 6:00 P.M. BOOK 43 Page 15935 01/06/98 6:00 P.M. ground level is also disturbing; that residents should be able to have peace and quiet; that the distance between outdoor dining establishments and residential property should be at least 500 feet. Ms. Eckman requested that the Commission pass an ordinance to alleviate the referenced negative impacts on residents. Daryl J. Brown, Law Firm of Brown, Clark and Walters, P.A. 1819 Main Street (34237), representing the Sarasota Ouay, stated that based on the opinions rendered by the City Attorney and the Manager of Building, Zoning and Code Enforcement, as to outdoor dining at Sarasota Quay being a permitted use under the C-CBD Zone District, proposed Ordinance No. 98-4028 will not apply to the Quay; therefore, no additional comments are necessary. Steve Dore, 105 Sarasota Quay (34236), Property Manager for Sarasota Quay, deferred from speaking. Bruce Franklin, Principal, The ADP Group, 149 Cocoanut Avenue, East (34236), representing Michael's Fine Wine and Tasting Room and Morton's Market, stated that the majority of commercial uses in Southside Village are nonconforming; that Zoning Code restrictions and the inconsistency of existing storefront configurations with contemporary commercial space, e.g., on the east side of Osprey Avenue, make development difficult; therefore, attempts are being made to develop an overlay district which will respect the historic neighborhood commercial center and surrounding residential areas while providing opportunities and flexibility for redevelopment; that the hope is to incorporate an overlay district for Southside Village into the Land Development Regulations (LDRs). Mr. Franklin continued that proposed Ordinance No. 98-4028 was reviewed in consideration of the concept being pursued for Michael's Fine Wine and Tasting Room as well as the remodeling planned for Morton's Market; that the intent is to transform Morton's Market into an urban marketplace by: 1) remodeling the floor layout to incorporate specialty areas for bakery, seafood, meats, coffee, etc., and 2) potentially eliminating the mansard roof and providing open-air seating on the mezzanine level to create an area where patrons who purchase food and beverage at the counter can sit and enjoy a meal; that lack of service to the tables could be an argument against classifying the use as a restaurant; however, if the use were classified as a restaurant, a special exception would be required as the property is adjacent to as well as across the street from residentially zoned property, thus proposed Ordinance No. 98-4028 would apply. Mr. Franklin referred to Section 8-66 (h) of proposed Ordinance No. 98-4028 as follows and requested consideration of replacing the second reference to the term "property" with the term "open- air dining facility": (h) Open-air dining facilities on private property in connection with restaurants when said property abuts or is across an intervening street or alley from residentially zoned property Mr. Franklin stated that the open-air seating at Morton's Market is not proposed adjacent to the residential property to the west; that governmental regulations should be reduced wherever possible; that the special exception process should apply only if an open-air dining facility, not the property, abuts or is across from residentially zoned property. Mr. Franklin continued that proposed Ordinance No. 98-4028 also imposes a requirement for a 6.5-foot-high masonry wall without windows; that architecture should not be legislated; and suggested that the language be revised to provide for flexibility in exterior architecture, e.g., by allowing fixed glass windows or glazing. Commissioner Patterson stated that the 6.5-foot-high masonry wall requirement, which applies only to open-air dining facilities located on the side of a building facing residential property, would not apply to Morton's Market. Mr. Franklin stated that is correct; that the comment was generalized; that fixed glass would be effective if the intent is to preclude operable windows or doors which emit noise. Commissioner Patterson asked if a sidewalk cafe at Michael's Fine Wine and Tasting Room or an open-air dining facility at Morton's Market would measure within 120 feet of residential property? Mr. Franklin stated yes; that the outdoor seating at Michael's Fine Wine and Tasting Room and in front of Morton's Market is on public property and governed by the sidewalk cafe ordinance; that the Morton's Market building is constructed to the property line; therefore, an open-air dining facility established at Morton's Market would measure within 120 feet of residential property to the west. Mayor Pillot stated that the Administration clarified earlier that distance is measured in a straight line from the actual area in which the open-air dining occurs not from the property line. Mr. Franklin stated that revising the language as suggested would clarify the intent to measure from the open-air dining facility versus the property line. Mayor Pillot asked for comment from the City Attorney. BOOK 43 Page 15936 01/06/98 6:00 P.M. BOOK 43 Page 15937 01/06/98 6:00 P.M. City Attorney Taylor stated that proposed Ordinance No. 98-4028 was forwarded to the Commission after review and based on recommendations by the PBLP; that the suggested change is significant and may require further study; that a recommendation should be requested from the PBLP before the Commission considers changing the language as suggested by Mr. Franklin. Commissioner Patterson stated that hours of operation are imposed only when open-air dining facilities require a special exception; that eliminating the requirement for a special exception would provide for unrestricted hours of operation at an open-air dining facility at Morton's Market, which is of concern since a quiet residential neighborhood is nearby. Charles D. Bailey, Law Firm of Williams, Parker, Harrison, Dietz and Getzen, 200 South Orange Avenue, (34236) representing Tommy Bahama's Tropical Cafe and Emporium, stated that Tommy Bahama' 's, which has been open since February 1997, is located in the southwest quadrant of St. Armands at 300 John Ringling Boulevard; that a 12-seat special exception pre-dating occupancy of the building by Tommy Bahama's exists for the South Washington Drive frontage which is adjacent to residential property; that the main service area of the restaurant is on the second floor; that sliding glass doors on the second floor lead out to a balcony and are frequently open; that special consideration was given in the design of the air conditioning system to provide for proper ventilation in the restaurant while the sliding glass doors are open. Attorney Bailey continued that Tommy Bahama 's has received a series of unfavorable actions by the City including denial by the PBLP of a special exception request for additional outdoor dining seats, which was withdrawn by the petitioner prior to presentation to the Commission, denial of a sidewalk cafe permit, denial of a minor modification to the existing 12-seat special exception, denial of a building permit for enclosure of the second floor level, which was appealed to and recently upheld by the Board of Adjustment, and denial of a valet parking permit; that the referenced denials demonstrate the City's concern about a perceived problem with neighborhood compatibility. Attorney Bailey further stated that proposed Ordinance No. 98-4028, coupled with existing regulations, would impose an inordinate and disproportionate share of the burden on Tommy Bahama's in contrast with other restaurants on St. Armands Circle; that the provision mandating windows and doors be shut would destroy the tropical island atmosphere and ambiance created at Tommy Bahama's; that an investment was made to support the present configuration of the restaurant; that his client's vested rights should be protected; that application for a building permit to extend the restaurant configuration by enclosing the balcony was made last August when the regulations, as viewed by the petitioner, provided for windows which could be on sliders; that a difference of opinion between the petitioner and Mr. Litchet regarding interpretation of the regulation was the subject of the recent appeal heard by the Board of Adjustment; that Tommy Bahama's would like to assure the permit application, once resolved, is measured against the regulations in effect in August 1997 and not any potential, subsequent changes in the City's regulations. Attorney Bailey distributed copies of a sketch showing the appearance of a masonry wall constructed around the perimeter of the second floor balcony at Tommy Bahama's; and stated that an objection exists to imposing a requirement for a masonry wall on the second floor of buildings; that constructing a masonry wall on a wooden deck is architecturally challenging and would create an unsightly appearance at Tommy Bahama a's; that excluding an opportunity for a variance from the wall requirement is of concern; that the desire for the Commission versus the Board of Adjustment to control the decision-making process is understood; however, the PBLP should be allowed to determine when a wall is required since a wall will not be appropriate in every case; that an initial determination by the PBLP could be overruled by the Commission. Casey Gonzmart, 2025 East 7th Avenue (33605), representing the Columbia Restaurant and Cha Cha Coconuts on St. Armands Circle, stated that the Columbia Restaurant and Cha Cha Coconuts have operated open-air dining for nearly ten years, have not had any problems or complaints, and have been very successful; that background music has always been played with the doors of the restaurants open; that the music is similar to "elevator music" and played at a very low level so the residents are not affected. Mayor Pillot stated that his dining experience has been enhanced by background music provided the volume was low enough so a normal conversation could be held; and asked if retaining the background music at such a low volume is expected? Mr. Gonzmart stated yes; that the music is playing in the background, is not abusive, and will not affect Clients adversely; that the music is played to enhance the restaurant's environment and to help customers enjoy their dining experience. Mayor Pillot stated that the music should not be disturbing to the neighborhood if played low enough sO a normal conversation can be held over a table in the restaurant. Nick Ragni, Manager, Tommy Bahamas Tropical Cafe, 300 John Ringling Boulevard (34236), representing Tommy Bahama 's Tropical Cafe and Emporium, stated that the City's regulations are confusing as was evident earlier when Mr. Litchet and City Attorney Taylor provided differing responses to questions raised BOOK 43 Page 15938 01/06/98 6:00 P.M. BOOK 43 Page 15939 01/06/98 6:00 P.M. by Commissioner Patterson; that many people are having difficulty understanding the provisions of proposed Ordinance No. 98-4028. Mr. Ragni continued that Tommy Bahama's is successful in Naples and has no problems with nearby residents; that the restaurant in Sarasota was established and operates based on a tropical cafe theme; that Tommy Bahama 's was set up to fail by the City; that the sliding glass doors were viewed when the site was inspected by various City officials; that the owners were never told the sliding glass doors had to remain closed; that a substantial investment was made in developing the configuration of the restaurant, which initially included 30 open-air dining seats on the balcony under the roof line of the building; that the area under the roof line would have been enclosed during initial construction had the City's restrictions on use of the balcony been known; that consequently 30 seats have been lost; that Tommy Bahama's is willing to close the doors at a reasonable time; however, Closure of sliding glass doors at existing establishments on St. Armands Circle should not be required to correct previous mistakes made by the City; that the impacts on businesses which are attempting to improve the City should be considered; that proposed Ordinance No. 98-4028 should be redrafted. Commissioner Patterson asked if modifying the requirement for a 6.5-foot-high masonry wall to allow consideration of alternative materials by the PBLP would be a reasonable solution for Tommy Bahama ' s? Mr. Ragni requested clarification of the question. Commissioner Patterson stated that, hypothetically, the PBLP could approve fixed glass on the side of the building facing residences and sliding glass doors, required to close at 10 p.m.. on the side facing commercial property; that this would allow Tommy Bahama's to provide additional seating and a tropical view but not to open sliding glass doors toward the residents. Mr. Ragni stated that such a proposal has not been considered; however, fixed glass would not provide the same open-air ambiance which currently exists at the restaurant. Mr. Ragni continued that the only negative comments made to the Commission regarding Tommy Bahama's have been by representatives of the St. Armands Residents Association, whose comments are based on past history, and Ms. Eckman; that the significant efforts put forth by Tommy Bahama's to reduce impacts on the neighborhood have been successful and recognized by the majority of residents; that Ms. Eckman is the only resident who still has complaints. Commissioner Patterson stated that many residents attended and supported Ms. Eckman's plea at the Board of Adjustment hearing. Mr. Ragni stated that all the residents did not support the plea; that the Board of Directors of the St. Armands Residents Association, which is an entity separate from the actual residents, supported the plea. May Jang, 4619 Country Manor Drive (34233), representing the Florida Restaurant Association, stated that the Florida Restaurant Association represents the restaurant industry in Sarasota, which includes many small businesses; that the effect of proposed Ordinance No. 98-4028 on small businesses is not known but could be considerable; that City officials advise restaurant developers regarding regulations and requirements; that, currently, special exceptions or variances from the requirements are approved on a case-by-case basis, a provision which should not be excluded in the proposed ordinance. Ms. Jang continued that the hours of operation for open-air dining facilities should provide for cessation of service at 11:59 p.m. if the facility is located within 120 feet of residential property; that ceasing service at 10 p.m. on weekends is not feasible; that summer hours in Florida promote late- evening dining; that many patrons do not start dining until 8 p.m.i that noise should be addressed if noise is the issue; that proposed Ordinance No. 97-4019, regulating noise, should address many of the residents' concerns; that the report prepared by the Audio Engineer hired by the Restaurant Association to help alleviate noise impacts on residents will be forwarded to the Commission. Joseph Terrone, President, Florida Restaurant Association (FRA) Sarasota Chapter, and Co-Chairman of the Restaurant Task Force Committee, 1780 North Honore Avenue (34235), representing FRA and China Palace Express, stated that interpretations of provisions in proposed Ordinance No. 98-4028 have been confusing; that members of both the residential and business communities have indicated a willingness and desire to work toward a responsive solution; that the effects of the provisions should be reviewed more closely, and proposed Ordinance No. 98-4028 redrafted before adoption is considered. Mayor Pillot asked if a cessation of service requirement later than 10 p.m. on Friday and Saturday evenings would alleviate some of the Restaurant Association's concerns? Mr. Terrone stated yes; that, traditionally, restaurants gross higher profits and patronage is greater on Friday and Saturday evenings; however, the ambiance of St. Armands Circle attracts many international visitors who are on vacation and do not discern a difference between a weekday and weekend evening. BOOK 43 Page 15940 01/06/98 6:00 P.M. BOOK 43 Page 15941 01/06/98 6:00 P.M. Ned Parsekian, 460 North Washington Drive (34236), stated that the confusion regarding proposed Ordinance No. 98-4028 has been well documented; that differing regulations for open-air dining facilities and sidewalk cafes has contributed to the confusion; that uniformity between proposed Ordinance Nos. 97-4007, regulating sidewalk cafes, and 98-4028, regulating open-air dining, would provide for easier compliance by restaurateurs and enforcement by the City; that proposed Ordinance No. 98-4028 should be redrafted to eliminate confusion and to clarify the definitions; that not only average citizens but also attorneys and City personnel have had difficulty interpreting the provisions of proposed Ordinance No. 98-4028. Mr. Parsekian continued that comments in reference to statements made by representatives of Tommy Bahama's are necessary; that Tommy Bahama 's, in purchasing an existing building and applying for various permits, was assisted by an attorney, a planner, an architect, etc., all of whom were qualified and well versed in the City's regulations and requirements; that the PBLP reviewed various petitions and made valid interpretations of regulations; that claims the City has prevented Tommy Bahama's from successfully operating or setting a business up to fail are unfounded; that Tommy Bahama's did not lose 30 seats; that the 30 seats were never approved; that the French Hearth, when occupying the building at which Tommy Bahama's is currently located, had a solid wall, two floors high, with no sliding glass doors; that Tommy Bahama's, during the first phase of construction, added to the exterior a two-story plywood facade with struts every 14 inches; that the roof was extended 5 feet beyond the original roof line and sliding glass doors installed to create an outdoor deck area allowing for 30 additional seats; that the remodeled configuration enlarged and positioned the restaurant five feet closer to the residences while eliminating a buffering wall; that Tommy Bahama's has a nice facility, a great store, good food, and an appealing ambiance; however, the horrendous noise created by the restaurant affects the residents across the street; that complaints have been received from residents other than Ms. Eckman. Mr. Parsekian further stated that as a compromise and to provide for uniformity with the proposed sidewalk cafe regulations, the Board of Directors of the St. Armands Residents Association adopted a resolution in support of cessation of service at 10 p.m. and vacation of the open-air dining seats at 11 p.m. Jane Carrigan, President, St. Armands Residents Association, 101 North Adams Drive (34236), stated that proposed Ordinance No. 97-4019, regulating noise, prohibits amplified sound not in a completely enclosed structure between the hours of 10 p.m. and 7 a.m., Sundays through Thursdays, and between the hours of 11:59 p.m. and 10 a.m. Fridays, Saturdays and days prior to holidays; that the definition of a completely enclosed structure does not address the issue of restaurants' providing service to patrons seated outside while loud amplified music is being played inside; that a server must open a door to the interior restaurant a minimum of eight times to serve one table outside; that entering and exiting the interior restaurant is required to place, retrieve, and deliver drink orders and food orders, and to prepare and process payments, etc.; that the busboys enter and exit the restaurant while clearing and setting the tables; that the door to the interior restaurant will open 240 times or four times a minute, each hour, based on one seating per hour at 30 outdoor tables; that a booming bass sound, not a melody, emits through the door and is heard by the residents as this occurs. Ms. Carrigan continued that Charley's Crab, with both open-air dining and a sidewalk cafe, operates Sunday through Thursday until 10 p.m. and Friday and Saturday until 10:30 p.m. i that Cafe L'Europe, with a sidewalk cafe, operates only until 10 p.m. seven days a week; that live, loud, amplified music is played at the two restaurants which provide open-air and sidewalk cafe dining during later hours; that 252 residential homes completely encircle the 135 businesses on St. Armands Circle; that the Sarasota Herald-Tribune aptly stated the need for balance, fairness, and compromise; that the St. Armands Residents Association proposes all outdoor dining seats be vacated by 11 p.m. Linda Royall, 1520 Glen Oaks Drive East, #344C (34232), stated that the majority of comments have been from residents of St. Armands; that she enjoys walking St. Armands Circle whether for shopping, dining, or simple pleasure; that the ambiance of St. Armands Circle is of upscale fine dining and fine shops; that the residents' peace and quiet should be respected; however, pedestrians walking past restaurants with outdoor seating should not be required to stop and wait while a server delivers food and beverages; and asked who would be liable if the server drops a tray and a pedestrian slips or falls? Ms. Royall continued that the hours of operation proposed for open-air dining facilities and sidewalk cafes are confusing; that compatibility of restaurants with residences was fine several years ago; however, the privilege has been abused; that Charley's Crab and Columbia Restaurant are enjoyed; however, Cha Cha Coconuts attracts a younger crowd, is too loud, and does not provide fine dining; that establishments which attract the younger crowd and basically serve "munchies" should be confined to one quadrant of the Circle; that the volume of music played at Mango Bay is ridiculous. Ms. Royall further stated that the bushes which are growing wildly at the Swiss Coffee House could create a safety hazard; that a child could run out from behind the overgrown bushes and be struck by a vehicle. BOOK 43 Page 15942 01/06/98 6:00 P.M. BOOK 43 Page 15943 01/06/98 6:00 P.M. Ms. Royall stated further that the opening of a McDonald's in the center of St. Armands Circle would not be appropriate and should be prevented. Michael Furen, Attorney, Law Firm of Icard, Merrill, Cullis, Timm, Furen, and Ginsburg, 2033 Main Street (34237), representing the Gonzmart Family interests on St. Armands Circle, cited the following definition as drafted in proposed Ordinance No. 98-4028: Completely enclosed building means a building separated on all sides from adjacent open space or from other buildings by permanent roof and by exterior walls or party walls, pierced only by closed windows and normal entrance or exit doors. Such doors shall not be kept open except for normal ingress and egress. Attorney Furen stated that the last sentence of the general definition applying Citywide to all zoning districts is newly added and of concern; that both the Columbia Restaurant and Cha Cha Coconuts offer open-air dining by leaving sliding glass doors open during the day up to a certain hour at night; that the proposed amendment to the definition could result in varying interpretations; and asked for clarification on the record that the restaurants referenced or other facilities in the City with sliding glass doors would not be considered buildings not completely enclosed if the doors are left open during certain hours of the day to provide open-air dining. Mayor Pillot asked if certain hours are being referenced? Attorney Furen stated that based on the definition language stating "such doors shall not be kept open except for normal ingress and egress", an interpretation could be made that a restaurant is not a completely enclosed building if the sliding glass doors are open to create an open-air dining facility for several hours during the day; that such a significant and potentially serious issue should be clarified. Mayor Pillot requested comment from the City Attorney. City Attorney Taylor stated that deference will be given to the Manager of Building, Zoning and Code Enforcement for any suggestions or comments; however, the definition of completely enclosed building has been incorporated into both proposed Ordinance No. 97-4007, regulating noise, and proposed Ordinance No. 98-4028, regulating open-air dining, to conform with the general definitions section in the Sarasota City Code, which also defines an open-air dining facility as "a not completely enclosed building"; that the two definitions interrelate; and asked for confirmation from Mr. Litchet that a restaurant with interior operations, i.e., Columbia Restaurant, would be considered an open-air dining facility if the sliding glass doors remain open. Mr. Litchet stated that is correct; however, open-air dining at the Columbia Restaurant, which does not abut and is not adjacent to residentially zoned property, is a permitted use; therefore, restrictions on the hours of operation or other provisions of proposed Ordinance No. 98-4028 would not apply at that location. Attorney Furen stated that open-air dining is clearly a permitted use in the CT Zone District; that his concern is that the status of the building as a completely enclosed structure when the doors are closed not be destroyed if the restaurant is considered an open-air dining facility when the doors are open. City Attorney Taylor stated that the restaurant would be a completely enclosed building when the sliding glass doors are closed. There was no one else signed up to speak and Mayor Pillot closed the public hearing. City Auditor and Clerk Robinson entered the following documents into the record: Memorandum from Michael Taylor, Deputy Director of Planning and Development, to PBLP members dated October 29, 1997, regarding consistency of proposed Ordinance No. 98-4028 with the Sarasota City Plan. Minutes of the November 5, 1997, PBLP meeting. PBLP report of actions taken on November 5, 1997, made to the City Commission on December 1, 1997. Minutes of December 1, 1997, regular City Commission meeting. Minutes of December 8, 1997, special City Commission meeting. City Auditor and Clerk Robinson read proposed Ordinance No. 98-4028 by title only. City Manager Sollenberger stated that the Administration recommends passing proposed Ordinance No. 98-4028 on first reading. On motion of Commissioner Merrill and second of Vice Mayor Dupree, it was moved to pass proposed Ordinance No. 98-4028 on first reading. Commissioner Merrill stated that proposed Ordinance No. 98-4028 requires a 6.5-foot-high wall of masonry construction; that a BOOK 43 Page 15944 01/06/98 6:00 P.M. BOOK 43 Page 15945 01/06/98 6:00 P.M. wooden fence would not be appropriate; however, solid walls made of various material, e.g., Plexiglas or Styrofoam with stucco covering, provide sound buffering similar to that provided by masonry walls; that a change in language from "masonry wall without windows" to "solid wall without openings" should be considered. Vice Mayor Dupree asked if Tommy Bahama 's would have the option of positioning 30 seats on the balcony if the 6.5-foot-high wall requirement were met? City Attorney Taylor stated that the Zoning Code is interpreted by the Manager of Building, Zoning and Code Enforcement; that questions for clarification should be directed to Mr. Litchet, who was involved in drafting proposed Ordinance No. 98-4028 and initiated specific changes to address continuing problems experienced when attempting to apply the existing code to current situations, i.e., those pertaining to Tommy Bahama's. Mr. Litchet stated that he believes Tommy Bahama's was aware, when the initial building permits were issued, that the balcony could not be used for additional seating without approval of a special exception; that a special exception petition to allow placement of 30 seats on the second floor balcony was filed but subsequently withdrawn by Tommy Bahama's; that proposed Ordinance No. 98-4028 would require a special exception for use of the balcony without constructing a 6.5-foot-high wall; that a special exception would not be required if the balcony were incorporated as part of a completely enclosed building; that the existing regulations require a 6.5-foot-high masonry wall around open-air dining facilities; that the question raised by Tommy Bahama's was whether the requirement applied to the second floor level; that his ruling, which was upheld by the Board of Adjustment, interpreted the regulation as applying to open-air dining facilities regardless of the floor level; that proposed Ordinance No. 98-4028 clarifies that interpretation. Vice Mayor Dupree stated that a special exception will not be required if the balcony at Tommy Bahama's is enclosed with solid walls but will be required if the area remains open and is used for open-air dining. Mr. Litchet stated that is correct. Mayor Pillot stated that Attorney Bailey referenced retroactivity applicable to Tommy Bahama's; and asked if Tommy Bahama's enjoys any rights under retroactivity, e.g., in terms of open windows and doors? Mr. Litchet stated no, not in his opinion; that the building permit filed by Tommy Bahama 's has been denied; that the City regulations existing at the time of application would have applied if his ruling been overturned on appeal; however, the Board of Adjustment upheld his ruling; therefore, proposed Ordinance No. 98-4028, if adopted, would apply to future applications for building permits filed by Tommy Bahama's. Commissioner Merrill asked if a Styrofoam-based wall covered with stucco would be interpreted as a masonry wall? Mr. Litchet stated noi that a 6.5-foot-high wall made of material other than masonry may be acceptable; however, a masonry wall is interpreted as a block wall; that the language should be modified if the intent is to allow alternative materials. Commissioner Patterson asked if proposed Ordinance No. 98-4028 as drafted will cause previously constructed and existing sliding glass doors to remain closed, e.g., at Tommy Bahama's, Osteria, or other facilities adjacent to residential properties? Mr. Litchet stated that specific language should be incorporated into proposed Ordinance No. 98-4028 if the intent is to apply the regulation retroactively. City Attorney Taylor stated for clarification that the discussion at the December 17, 1997, regular City Commission meeting regarding applicability of the proposed ordinance to Tommy Bahama's was undertaken pending an appeal to the Board of Adjustment, which if successful, would have required the City to process the application as submitted; that the appeal process has since concluded with the Board of Adjustment 's upholding Mr. Litchet's ruling; that absent an appeal to and reversal of the City's decision by a court of law, proposed Ordinance No. 98-4028, once adopted, would apply to future applications for building permits submitted by Tommy Bahama's. On motion of Commissioner Patterson and second of Commissioner Merrill, it was moved to amend the motion by incorporating into proposed Ordinance No. 98-4028 language to: 1. ensure application is retroactive and applies to establishments with existing doors and windows 2. provide for PBLP and City Commission discretion to modify the materials or allow fully closed windows in lieu of a masonry wall Commissioner Patterson stated that the term "fully closed" versus 1 fixed" windows was used purposely to prevent the need for remodeling, e.g., at Osteria or Tommy Bahama's, if existing windows and sliding glass doors were kept closed and locked; that the requirement for a masonry wall, which provides a high level of sound proofing, should remain, but the PBLP or City Commission should have the ability to modify the wall material when deemed appropriate. BOOK 43 Page 15946 01/06/98 6:00 P.M. BOOK 43 Page 15947 01/06/98 6:00 P.M. Commissioner Patterson continued that Ms. Carrigan raised a valid issue; that amplified music played in a completely enclosed structure will escape each time the doors to the main restaurant are opened or closed to provide service to patrons seated at open-air dining facilities or sidewalk cafes; that proposed Ordinance No. 98-4028 applies only to open-air dining facilities allowed by special exception; that a mechanism by which to restrict the hours of operation at open-air dining facilities allowed as a permitted use should also be explored. City Attorney Taylor stated that a separate ordinance should be prepared if regulation of open-air dining facilities allowed as a permitted use is desired. Mayor Pillot asked if the City Attorney is comfortable with the motion as amended? City Attorney Taylor stated yes. Mayor Pillot requested that Attorney Bailey come forward; and asked if the motion to amend addresses the concerns expressed on behalf of Tommy Bahama's? Attorney Bailey stated no; that the amended language would require the two existing glass doors and any future sliding glass windows or doors at Tommy Bahama's to remain closed. Mayor Pillot stated that the intent of the motion to amend was misunderstood or the question would not have been asked. Commissioner Cardamone stated that her position regarding special exceptions has been expressed many times; that the City has no ability to revoke a special exception once granted, even if the property owner abuses the privilege provided; that issuing a permit, similar to that proposed for sidewalk cafes, would be preferred to allowing open-air dining facilities by special exception; that the open-air dining facility and sidewalk cafe ordinances should be consistent for ease in entorcement; that establishing a set closing time versus one time for cessation of services and another time for vacation of the premises should be considered. Commissioner Cardamone continued that most restaurant managers will not take dinner orders from customers who arrive, e.g., 15 minutes prior to the time the restaurant closes; that requiring the open-air dining facility to be vacated by 11 p.m. on weekdays and by 11:59 p.m. on weekends is suggested for discussion. Mayor Pillot stated that decision making on the operation of a restaurant should be left to the proprietor and not dictated by government; therefore, revising the hours of operation as suggested could be supported if the intent is to eliminate reference to cessation of service but to retain the proposed hours at which the premises must be vacated. Commissioner Patterson stated that the suggestion is supported; however, as currently drafted, proposed Ordinance No. 98-4028 requires vacation of the premises at 1 a.m. not 11:59 p.m. on weekends. Commissioner Merrill stated that eliminating reference to cessation of service and requiring general open-air dining facilities to be vacated at 11:59 p.m. and those located within 120 feet of residential to be vacated at 11 p.m. could be supported. Mayor Pillot stated that requiring the premises to be vacated at 11:59 p.m. in effect would require the taking of orders for prepared food to cease an hour earlier; that the hours at which the premises must be vacated, e.g., 11 p.m. at' open-air dining facilities within 120 feet of residential and 1:00 a.m. at general open-air dining facilities, should be retained as currently presented in proposed Ordinance 98-4028. Commissioner Cardamone stated that the PBLP recommended all patrons be required to vacate open-air dining seats no later than one hour after the required cessation of service, which at open- air dining facilities within 120 feet of residential is proposed at 10 p.m., thus resulting in an 11 p.m. requirement to vacate the premises. Mayor Pillot stated that the Commission should address the motion to amend before proceeding further with discussion on the hours of operation. Mayor Pillot restated the motion to amend as to incorporate into proposed Ordinance No. 98-4028 language to: 1. ensure application is retroactive and applies to establishments with existing windows and doors. 2. provide for PBLP and City Commission discretion to modify the materials or allow fully closed windows in lieu of a masonry wall. Mayor Pillot stated that government should not apply regulations retroactively unless the regulation is essential for health, welfare, and safety; that an argument could be made that applying the proposed provision to existing windows and doors is for the public welfare in terms of noise; however, he feels strongly the rules should not be changed mid-stream at the expense of the public, either commercial or residential interests; that pre- existing conditions in buildings should be allowed to continue and not be affected by regulations set forth in proposed Ordinance 98-4028. BOOK 43 Page 15948 01/06/98 6:00 P.M. BOOK 43 Page 15949 01/06/98 6:00 P.M. On motion of Mayor Pillot (who passed to gavel to Vice Mayor Dupree) and second of Commissioner Merrill, it was moved to strike from the motion to amend the first condition referencing retroactive application to establishments with existing windows and doors. Commissioner Patterson stated that striking the retroactive condition from the motion to amend will leave only the hope that Tommy Bahama's desire to place seating on the balcony will encourage construction of a perimeter wall; that residents will not be protected from noise emanating through open windows or doors; that she will not support the amendment. Commissioner Cardamone stated that the City Commission has, in the past, imposed regulations existing businesses have had difficulty dealing with, e.g., the adult use ordinances; that Mayor Pillot's concern is shared, but she will support the original motion to amend since the first condition is viewed as important to the neighborhood. Vice Mayor Dupree restated and called for a vote on the motion to strike from the motion to amend the first condition referencing retroactive application to establishments with existing windows and doors. Motion failed (3 to 2). Cardamone, no; Merrill, yes; Patterson, no; Pillot, yes; Dupree, no. Vice Mayor Dupree returned the gavel to Mayor Pillot. Mayor Pillot restated and called for a vote on the motion to amend by incorporating into proposed Ordinance No. 98-4028 language to: 1. ensure application is retroactive and applies to establishments with existing windows and doors. 2. provide for PBLP and City Commission discretion to modify the materials or allow fully closed windows in lieu of a masonry wall. Motion carried (4 to 1): Cardamone, yes; Dupree, yes; Merrill, yes; Patterson, yes; Pillot, no. On motion of Commissioner Cardamone and second of Commissioner Patterson, it was moved to amend the motion by modifying the hours of operation proposed for open-air dining facilities granted by special exception as follows: require the premises be vacated by 11 p.m. Sunday through Thursday and by 11:59 p.m. Friday, Saturday, and evenings before holidays, but by 11 p.m. seven days per week if the open-air dining facility is within 120 feet of residential. Commissioner Cardamone stated that proposed Ordinance No. 98-4028, as drafted, requires the cessation of service at 10 p.m. and the vacation of patrons at 11 p.m. if the open-air facility is within 120 feet of residential; that the motion eliminates the requirement for cessation of service; therefore, provides for an additional hour of service to patrons. City Attorney Taylor stated that the intent of the Commission is understood; however, alternative language may be required to prevent legal challenges; that any modifications made by the Commission will be incorporated and the language presented at second reading. Vice Mayor Dupree stated that the motion to amend extends the hour to which service can be provided on weekdays but limits further the hour to which open-air dining facilities can remain open on weekends; that restaurant representatives have indicated the majority of business occurs on Friday and Saturday evenings. Mayor Pillot stated that the motion to amend, which requires the open-air dining facility be vacated one hour earlier on weekends than the hours of operation currently drafted in the proposed ordinance, cannot be supported. Commissioner Cardamone stated that the motion to amend also provides for an additional hour of service to patrons at open-air dining facilities on week nights. Commissioner Patterson stated that all establishments on St. Armands Circle will not be affected; that a special exception is not required for open-air dining facilities located further than 120 feet from residential property; therefore, proposed Ordinance No. 98-4028 will not apply; that an open-air dining facility 300 feet from residential property can operate as a matter of right with no restrictions imposed on the hours of operation. City Attorney Taylor stated that is partially correct; that the special exception applies to open-air dining facilities on private property in connection with a restaurant when the property abuts or is across from residentially zoned property; however, the measurement of 120 feet is relevant only in determining which of the restricted hours of operations will apply to the special exception; that proposed Ordinance No. 98-4028, as drafted, imposes the following restrictions on the hours of operation at open-air dining facilities allowed by special exception: 1) cease service at 11 p.m. if within 120 feet of residential and at 11:59 p.m. if further than 120 feet from residential and 2) vacate patrons from the open-air seating one hour after the required cessation of service. BOOK 43 Page 15950 01/06/98 6:00 P.M. BOOK 43 Page 15951 01/06/98 6:00 P.M. Mayor Pillot stated that the motion to amend therefore reduces by one hour the time at which patrons are required to vacate the open-air dining facilities. City Attorney Taylor stated that is correct. Commissioner Merrill stated that the number of open-air dining facilities affected by proposed Ordinance No. 98-4028 is few; that his intent is to apply uniform hours of operation to all outdoor dining on St. Armands Circle. Commissioner Patterson stated that her intent is similar; that the image of servers' entering and exiting through doors of restaurants where bands are playing has convinced her of the need to impose hours of operation on all outdoor dining; that the hours of operation proposed in the motion to amend should also be applied to sidewalk cafes. Commissioner Cardamone agreed. Vice Mayor Dupree stated that the motion to amend can be supported if the intent is to set forth uniformity and clarity for businesses offering outdoor dining. Mayor Pillot stated that Commission action on proposed Ordinance No. 97-4007, regulating sidewalk cafes, cannot be guaranteed; therefore, there is no assurance the motion to amend will bring about uniformity for outdoor dining. Mayor Pillot called for a vote on the motion to amend the hours of operation set forth in proposed Ordinance No. 98-4028 by requiring the premises be vacated by 11 p.m. Sunday through Thursday and by 11:59 p.m. Friday, Saturday, and evenings before holidays, but by 11 p.m. seven days per week if the open-air dining facility is within 120 feet of residential. Motion carried (4 to 1): Cardamone, yes; Dupree, yes; Merrill, yes; Patterson, yes; Pillot, no. Mayor Pillot requested that City Auditor and Clerk Robinson proceed with the roll-call vote on the main motion to pass proposed Ordinance No. 98-4028 on first reading as amended to: 1. ensure application is retroactive and applies to establishments with existing windows and doors. 2. provide for PBLP and City Commission discretion to modify the materials or allow fully Closed windows in lieu of a masonry wall 3. revise hours of operation for special exceptions for open-air dining facilities on private property as follows: (a) General = vacate the premises by 11:00 p.m. Sunday through Thursday and by 11:59 p.m. Friday, Saturday, and evenings before holidays (b) Within 120 feet of residential vacate the premises by 11 p.m. seven days per week Motion carried (4 to 1): Cardamone, yes; Dupree, yes; Merrill, yes; Patterson, yes; Pillot, no. The Commission recessed at 8:50 p.m. and reconvened at 9:02 p.m... 2. SECOND PUBLIC HEARING RE: PROPOSED ORDINANCE NO. 97-4007, AMENDING ARTICLE VI OF THE ZONING CODE PERTAINING TO REGULATIONS FOR SIDEWALK CAFES; AMENDING DESIGN STANDARDS; PROHIBITING SIDEWALK CAFES ON PROPERTY WITHIN A CERTAIN DISTANCE OF RESIDENTIALLY ZONED PROPERTY OR PROPERTY USED FOR RESIDENTIAL PURPOSES IN SPECIFIED ZONES; DEFINING TERMS; SETTING FORTH APPLICATION REQUIREMENTS FOR PERMITS FOR SIDEWALK CAFES; SETTING FORTH EXCEPTIONS; AMENDING PERFORMANCE STANDARDS; AMENDING STANDARDS FOR THE REVOCATION OF PERMITS FOR SIDEWALK CAFES; SETTING FORTH HOURS OF OPERATION FOR SIDEWALK CAFES; PROVIDING FOR THE SEVERABILITY OF THE PARTS HEREOF; REPEALING ORDINANCES IN CONFLICT; ETC. (TITLE ONLY) = ADOPTED AS AMENDED TO REQUIRE PATRONS TO VACATE SIDEWALK CAFES IN THE CT ZONE DISTRICT AT 11 P.M. SUNDAY THROUGH THURSDAYS AND 11:59 P.M. FRIDAYS, SATURDAYS, AND EVENINGS BEFORE HOLIDAYS; REFERRED TO THE PBLP FOR A RECOMMENDATION THE CONCEPT OF MODIFYING AND EXTENDING THE HOURS OF OPERATION FOR SIDEWALK CAFES IF THE MAIN ESTABLISHMENTS HAVE NO INDOOR AMPLIFIED MUSIC (AGENDA ITEM II) #2 (2353) through #4 (2132) City Manager Sollenberger stated that this is the second of two required public hearings; that the first public hearring was held on December 17, 1997. Dennis Daughters, Director of Engineering/City Engineer, came before the Commission and stated that the criteria used to regulate interior restaurant seating has been reviewed as requested by the Commission. Mr. Daughters distributed an excerpt from the National Fire Protection Association (NFPA) Life Safety Code Handbook, page 252, showing figures of typical measurements taken for seating and tables; and stated that the aisle measurements differ based on the configuration of the tables; however, the basic Life Safety Code standard essentially requires a width of 36 inches between a seat BOOK 43 Page 15952 01/06/98 6:00 P.M. BOOK 43 Page 15953 01/06/98 6:00 P.M. and a table or between tables; that Staff previously recommended a width of 48 inches between tables. Mr. Daughters referred to and explained the following chart distributed and displayed on the overhead projector, referencing the number of seats currently permitted, actually existing, and which would be allowed based on the four-foot spacing requirement initially recommended by Staff and the Life Safety Code as proposed by the Commission: Business 4-foot Life Permitted Actual Spacing Safety Cafe L'Europe 20 16 20 22 Charley's Crab 16 18 18 18 Joffrey's Coffee & Tea 24 20 20 20 St. Armands Deli 10 12 8 8 Swiss Coffee House 25 25 23 14 Big Olaf Creamery 12 12 8 8 Cha Cha Coconuts 64 60 40 48 Barnie's Coffee & Tea 12 13 10 10 Loving Touches 16 0 0 0 Morty's Bagel Cafe 4 4 4 4 Ben & Jerry's 16 4 4 4 Columbia 32 28 20 20 TOTALS 251 212 175 176 Mr. Daughters stated that the estimates were prepared quickly and may not be totally accuratei however, the difference between the two measuring requirements is not substantial; that the Life Safety Code provides a better legal basis than the four-foot requirement; therefore, Staff recommends implementing the Life Safety Code as the measurement standard applied in determining the number of seats and tables allowed in the permit area of a sidewalk cafe. Commissioner Patterson stated that the four-foot requirement provides for 23 seats at the Swiss Coffee House whereas the Life Safety Code provides for only 14 seats; and asked the reason for the significant difference? Mr. Daughters stated that the majority of sidewalk cafes have a broader front and use a linear layout; that the Pyramid-shaped layout at the Swiss Coffee House is more restrictive. Vice Mayor Dupree asked the basis used in determining the estimated seats shown on the chart? Mr. Daughters stated that the actual seats are based on the number of seats commonly viewed at the sidewalk cafes; that the permitted seats are the number of seats referenced in the permit issued for the sidewalk cafe; that the Life Safety Code seats are based on an estimate prepared using criteria in the Life Safety Code Handbook. Mr. Daughters continued that standard criteria for determining seating at sidewalk cafes does not currently exist; that the number of seats allowed by sidewalk cafe permits has been based on the number of seats shown on the plans submitted with the application; that the number of seats reflected in the chart are estimates and could increase slightly higher if the seating layouts are reconfigured; that proposed Ordinance No. 97-4007 requires existing sidewalk cafes to comply with the Life Safety Code standard within 20 days of the effective date. Mayor Pillot stated that the Life Safety Code is used to determine interior restaurant seating; therefore, determining sidewalk cafe seating based on the Life Safety Code would provide for consistency. Commissioner Patterson asked if separation of tables based on the Life Safety Code will provide sufficient space within which servers can position a cart while serving patrons? Mr. Daughters stated yes; however, establishments utilizing large serving carts may lose the use of one table. Commissioner Cardamone asked how the permitted area is determined for sidewalk cafes? Mr. Daughters stated that proposed Ordinance No. 97-4007 would restrict the permit area to a portion of the right-of-way which is located between the adjacent private property line and three feet from the curb, excluding the 6-foot-wide sidewalk required for use by pedestrians. Commissioner Cardamone asked the estimated size of a permit area if the distance between the restaurant and the curb is 20 feet? Mr. Daughters stated that the permit area would be approximately 11 feet in width, providing 3 feet for the curb distance and 6 feet for the pedestrian sidewalk; however, the actual area occupied by the sidewalk cafe would be further restricted by the landscaping and clear zone requirements. City Attorney Taylor requested that the City's Building Official come forth to answer specific questions regarding application of the Life Safety Code within the City of Sarasota. David Waugh, Building Official, came before the Commission. Mayor Pillot asked if the Life Safety Code standard recommended for determining the number of seats permitted at sidewalk cafes BOOK 43 Page 15954 01/06/98 6:00 P.M. BOOK 43 Page 15955 01/06/98 6:00 P.M. is the same standard used in determining the number of seats permitted for interior restaurants? Mr. Waugh stated yes. Mayor Pillot opened the public hearing. The following people came before the Commission: Thomas Dillon, 500 South Washington Drive, South, Apartment #4-A, (34236), stated that the distance from the southern property line of Joffrey's Coffee & Tea to the nearest residential property on the northbound side is 115 feet as measured with a surveyor's wheel; that proposed Ordinance No. 97-4007 prohibits sidewalk cafes within 120 feet of residential property; that an official measurement should be taken since Joffrey's Coffee & Tea could be adversely impacted by the new regulations. Commissioner Patterson stated that official measurements were taken; that Staff previously advised the Commission the distance requirement would not affect establishments with existing sidewalk cafe permits and that all existing sidewalk cafe permits would be retained. Mr. Daughters came forward and stated that the map depicting the locations of existing sidewalk cafes on St. Armands Circle indicates Joffrey's Coffee & Tea is more than 120 feet from a residential property line; that the distance will be remeasured to assure accuracy. Martin Portnoy, 316 Arthur Drive, (34236), stated that St. Armands I residents are concerned about the problems caused by outdoor dining; and referred to the following hours of operation at restaurants on St. Armands Circle: Stop-Serving Time Cafe L'Europe 10:00 p.m. Charley's Crab 10:00 p.m. on weekends 10:30 p.m. on Fridays and Saturdays Columbia Restaurant 11:00 p.m. Mr. Portnoy stated that allowing service to continue until 12 midnight or 1 a.m. on the weekends does not seem appropriate; that the restaurants would not currently cease service at 10 p.m. or 11 p.m. if a demand for service past those hours existed. Mr. Portnoy continued that the booming bass sound emanating from Cha Cha Coconuts at 12:30 a.m. on December 28, 1997, a Sunday night, woke him; that he walked over to St. Armands Circle to determine where the sound was coming from; that the windows at Cha Cha Coconuts were closed, but the door was held open allowing the loud-volume music played inside to escape; that noise was not emanating from the Columbia Restaurant as the entrance door is not in a direct line with the music; that residents are subject to noise impacts each time the doors open to provide service to outdoor tables; that the hours of operation imposed in Ordinance Nos. 97-4007, regulating sidewalk cafes, and 97-4019, regulating noise, should be carefully considered by the Commission. Commissioner Patterson stated that constant opening and closing of doors could create an effect as if the doors are left open continually; that proposed Ordinance No. 97-4019, regulating noise, specifies doors must be closed at 10 p.m. on weekdays and 11:59 p.m. on weekends; that a 10 p.m. requirement for closed doors may be meaningless if service to outdoor tables will continue until 11 p.m.; and asked if extending the time for prohibition of amplified sound from 10 p.m. to 11 p.m. on weekdays, for consistency with the hours of operation imposed by proposed Ordinance No. 98-4028, regulating open-air dining, and providing consistent hours of operation for sidewalk cafes would be acceptable? Mr. Portnoy stated no; that residents would be subject to impacts from amplified music for longer periods. Commissioner Patterson stated that amplified music inside a completely enclosed structure will not be prohibited; that the doors to the restaurant where amplified music is played will continue to open and close until the time imposed for cessation of service to outdoor tables, either at open-air dining facilities or sidewalk cafes. Mr. Portnoy stated that revising proposed Ordinance No. 97-4019, regulating noise, to provide for doors to remain open until 11 p.m., which will guarantee a continuation of the noise impacts on residents to a later hour, is not viewed as a valid solution. Commissioner Patterson stated that 10 p.m. reservations at Cafe L'Europe have been made personally; that the stop-serving times referenced for various restaurants are probably a last seating time versus the closing time. Mr. Portnoy stated that the inquiry at Cafe L'Europe was for the stop-serving time; however, 10 p.m. may be the last seating time. Mr. Portnoy continued that hours of operation similar to those the Commission incorporated into proposed Ordinance No. 98-4028, regulating open-air dining, would be acceptable for sidewalk cafes; however, for clarification, the noise impacts created by open-air dining facilities and sidewalk cafes are not limited to noise made by people dining outside. BOOK 43 Page 15956 01/06/98 6:00 P.M. BOOK 43 Page 15957 01/06/98 6:00 P.M. Richard A. Clark, 422 South Washington Drive, (34236) and Bart Koford, 6907 Riverside Street, Circle, (34202), were no longer present in the Commission Chambers. Casey Gonzmart, 2025 East 7th Avenue (33605), representing the Columbia Restaurant and Cha Cha Coconuts on St. Armands Circle, stated that as a good neighbor, he has served on the City's noise task force and participated with the Police Department and neighbors in trying to determine the effect of the music from Cha Cha Coconuts on the neighborhood; that proposed Ordinance No. 97-4019, regulating noise, is a good, strong, enforceable ordinance; that further restrictions on diners or servers' entering and exiting a restaurant should not be imposed; that others may be requesting additional restrictions; however, incorporating additional, arbitrary restrictions into an ordinance which has already been passed on first reading would not be fair to the restaurateurs, the employees, or the citizens; that people should be able to go out late in the evening and enjoy themselves while dining; that restaurants are licensed and permitted to serve food until a reasonable hour; that operation of a sidewalk cafe is a privilege granted by the City; that the sidewalk cafe permit can and should be revoked if a business does not comply with City regulations; that the proposed noise ordinance provides for the issuance of citations if restaurants generate excessive noise; that the main issue raised by residents has been noise. Mr. Gonzmart continued that visitors and residents should not be prevented from dining in an outdoor setting; that Cha Cha Coconuts has successfully operated a sidewalk cafe for nearly ten years; that sidewalk cafes have been well received on St. Armands Circle; that Ordinance No. 94-3815, regulating sidewalk cafes, should be enforced; that restaurants should not be allowed to place carts within the area reserved for pedestrians or use public property other than the permit area. Mr. Gonzmart further stated that the staff of the Columbia Restaurant and Cha Cha Coconuts will enforce and comply with the provisions of proposed Ordinance No. 97-4019, regulating noise; that instructions by the police will be followed; that the City should move forward; that his desire is to ensure the neighbors, who are his customers, are happy. Mayor Pillot asked if Mr. Gonzmart is supporting adoption of proposed Ordinance No. 97-4007 as passed on first reading? Mr. Gonzmart stated that proposed Ordinance No. 97-4007 will reduce the number of seats at the Columbia Restaurant from 28 actual to 20 permitted and at Cha Cha Coconuts from 60 actual to 48 permitted; that such a drastic reduction in seating is not necessary and should be reconsidered; that the Commission was presented with a Downtown noise problem two years ago; that St. Armands residents have presented similar concerns about noise in the past several months; that proposed Ordinance No. 97-4019, regulating noise, will address resident concerns; that Columbia Restaurant is probably the largest restaurant on St. Armands Circle; that his position is one of having to defend his business and being ashamed of success, which is not the American way. Mr. Gonzmart continued that provided the required setbacks from the curb and sidewalk are met and the right-of-way is protected, the professionals should be allowed to decide the appropriate number of sidewalk cafe seats; that the management at the Columbia Restaurant and Cha Cha Coconuts voluntarily provide less seating than is currently allowed by the City; that customers enjoy the sidewalk cafes; that sufficient space is provided for pedestrian passagei that the Columbia Restaurant and Cha Cha Coconuts should be cited if pedestrian passage is blocked. Mayor Pillot stated that considerable respect exists for Mr. Gonzmart and the management at the Columbia Restaurant and Cha Cha Coconuts; that proposed Ordinance No. 97-4007 has been redrafted with the standard used to determine interior seating applied to sidewalk cafes; that providing for consistency seems appropriate. Mr. Gonzmart stated that the sidewalk cafe at Columbia Restaurant is permitted for 32 seats but actually has 28; that either of the two measurement requirements proposed would reduce the number of seats to 20; that a 30 percent reduction in seating is viewed as substantial. Mayor Pillot stated that Staff indicated the number of seats reflected in the chart were estimates and that the actual number of seats permitted based on the Life Safety Code could be higher; and asked if, ignoring the affect on seating, the concept of applying the Life Safety Code to both interior and outdoor seating is supported? Mr. Gonzmart stated that he commented at the first public hearing that the four-foot requirement recommended by Staff would be more restrictive than the standard applied to interior restaurant seating; that Staff's review of the Life Safety Code, as suggested, was appreciated; however, the Life Safety Code standard is more restrictive than the requirements currently in effect; that the City's permitting and operating procedures for sidewalk cafes have been followed; that the configuration of the permit area at the Columbia Restaurant was developed with assistance of a professional, local architect; that the City is now changing how the number of permitted seats will be determined; that the reason for further restriction on sidewalk cafe seating is not understood; that responsibility will be taken if violations of the current regulations are occurring; that the proposed reductions in seating are viewed as arbitrary and BOOK 43 Page 15958 01/06/98 6:00 P.M. BOOK 43 Page 15959 01/06/98 6:00 P.M. unjust; that the Columbia Restaurant will experience an unnecessary reduction from 32 to 20 permitted seats based on the Life Safety Code standard, which is his argument. Mayor Pillot stated that no insinuation of wrong-doing is being made; that his support for applying the Life Safety Code standard to sidewalk cafes was based on public safety; that regrets are offered if the Life Safety Code standard negatively affects the seating capacity at the Columbia Restaurant and Cha Cha Coconuts; that negative implications on the restaurants' operations are not intended; that the intent is to apply the same reasonable standard both inside and outside the restaurants. Mr. Gonzmart stated that the Commission's position is accepted; that the City made an effort to review the Life Safety Code, which, in conjunction with professional layouts, will provide consistent standards for restaurant seating; therefore, a restriction of sidewalk cafe seating based on the Life Safety Code standard will not be challenged by him, his management staff, or his attorneys; however, a reduction in the number of sidewalk cafe seats as well as the time to which patrons can be served will doubly affect his business and his ability to follow the American enterprise system of moving forward and offering a product. Mr. Gonzmart continued that the hours of operation approved by the Commission at the December 17, 1998, public hearing should not be changed; that proposed Ordinance No. 97-4019, regulating noise, once adopted and enforced, will protect residents from noise impacts; that Columbia Restaurant and Cha Cha Coconuts will continue to comply with the City's regulations; that the proposed regulations on outdoor dining will affect his livelihood; that less noise is wonderful; that fewer sidewalk cafe seats is not wonderful but is accepted; however, having less time to serve customèrs would be unfair. Mr. Gonzmart further stated that management at the Columbia Restaurant and Cha Cha Coconuts has been instructed to cooperate in being good neighbors; that any negatively affected residents are invited to present their concerns directly to him; that patrons, who often request the windows and/or doors be opened, should be allowed to enjoy the open air as long as no one is bothered; that Columbia Restaurant and Cha Cha Coconuts are located in the heart of St. Armands Circle; that neither restaurant abuts or is across from residential property; that the nearest residential property is 250 to 300 feet away; that proposed Ordinance No. 97-4019, regulating noise, should be adopted and the effects evaluated before the Commission considers further restrictions on the hours of operation for sidewalk cafes; that the issue is very important to him personally and to the City; that everyone should work together to improve the City. Commissioner Patterson stated that although the Columbia Restaurant and Cha Cha Coconuts have made an effort to comply with City regulations, neither the existing noise ordinance nor proposed Ordinance No. 97-4019 addresses bass tones, the sound most disturbing to residents; that the Commission is establishing a Blue Ribbon Commission on Noise and hiring a new noise consultant to address and develop regulations for measuring the specific problem caused by bass tones; that some of the restrictions effected in the interim may become unnecessary if the bass tones can successfully be addressed; and asked if a willingness exists to continue working with Staff towards a solution to regulate the bass tones? Mr. Gonzmart stated yes; that his service and resources are offered to the new task force being formed to address the bass tones issue; that efforts have been made to contain the bass tones produced by music played at The Patio, the lounge within the Columbia Restaurant; however, bass tones travel through closed doors and windows; that the Florida Restaurant Association has retained a consultant to assist all the restaurateurs in resolving the problem with bass tones, a problem which will not be resolved by restricting outdoor dining. Commissioner Patterson stated that restricting the hour to which outdoor patrons can be served will eliminate the need for constant opening and closing of the interior restaurant door, which allows the bass sound to escape. Mr. Gonzmart stated that the booming bass sound is heard by residents even when the windows and doors remain shut. Commissioner Patterson stated that the booming bass sound which was rattling a resident's windows at 1 a.m. over the weekend stopped once the doors at the restaurant were closed. Mr. Gonzmart stated that one band at The Patio has already been dismissed; that eliminating bands on a temporary basis could be considered until the bass tones issue is resolved; that prohibitions on outdoor dining should be imposed only to address outdoor not indoor problems. Vice Mayor Dupree stated that the reduction in permitted seating for the Columbia Restaurant and Cha Cha Coconuts will be significant; and asked if the preference is to eliminate the entertainment rather than lose sidewalk cafe seats? Mr. Gonzmart stated that bands at The Patio are causing a bass vibration which has not yet been identified; that the request is to allow the Columbia Restaurant to eliminate the problem temporarily by discontinuing the band and to continue working toward a permanent solution. BOOK 43 Page 15960 01/06/98 6:00 P.M. BOOK 43 Page 15961 01/06/98 6:00 P.M. Commissioner Cardamone that the Life Safety Code standard is applied inside all restaurants by State Statute; that the number of seats currently permitted for sidewalk cafes exceed what would have been allowed were the sidewalk cafe an interior restaurant; that the City's failure to apply the same standard indoors and outdoors may have been a mistake; that the Life Safety Code standard should be used to protect the City from potential liability; that the sidewalks are public property. Mr. Gonzmart stated that the Life Safety Code standard was established to assure escape from a building; that patrons can more easily escape from a sidewalk than from a building. John Monetti, 411 St. Armands Circle, (34236), representing the Columbia Restaurant, stated that the sidewalk cafe permit issued to the Columbia Restaurant provides for 32 seats; however, only 28 seats, which make the sidewalk cafe more comfortable and functional, have historically been set up in the permit area; that common sense prevailed over the legal restrictions; that restaurant expertise has been used to enhance guests dining experience and to self-regulate the permit area beyond what the City allowed; that the potential public perception regarding the cleanliness and tidiness of the permit area were considered and schedules rearranged to assure the front area of the Columbia Restaurant is cleaned up first each morning; that the entire front sidewalk, including the half without tables, is professionally pressure washed twice weekly; that the potential of tables being positioned too closely or extending into the right t-of-way has been addressed by drawing lines on the sidewalk designating the legal boundaries and instructing restaurant staff on the placement of the moveable tables; that staff is also keenly aware of the requirement to provide ample room for pedestrians to pass the sidewalk cafe unimpeded. Mr. Monetti continued that a positive response to outdoor dining has been received from the vast majority of the dining public, both residents and tourists; that recently only 4 tables were occupied in the enclosed main dining room of the restaurant while 22 tables were occupied on the patio portion of the restaurant; that visitors and residents enjoy dining in the open air, an opportunity which has been provided and become part of the overall positive impression of the Cityi that unnecessary, excessive restrictions should not be placed on businesses that do not require a special exception to provide outdoor dining. Mr. Monetti further stated that the rationale for the proposed restrictions on hours of operation is not understood; that an effective ordinance regulating noise will address potential noise impacts; that the realistic, practical, day-to-day effect on businesses should be considered; that patrons dine for approximately two hours; therefore, the front doors would have to close at 9 p.m. to assure an 11 p.m. vacation of the sidewalk cafe; that patrons, many of whom are on vacation and do not discern between weekdays or weekends, will not like the restrictions; that the restriction will become the patron's lasting impression of the City; that Columbia Restaurant's clientele expects and demands good service; that requesting patrons to move inside at 11 p.m. to enjoy dessert and coffee would be inappropriate. Mayor Pillot stated that the hours of operation were amended when proposed Ordinance No. 97-4007 was passed on first reading; and cited the following from Section 6-32(g) : (10) In the CT Zone District, the service of food and beverages in the permit area of a sidewalk cafe shall cease between 11:59 p.m. and 6:00 a.m., seven (7) days per week. All patrons of the sidewalk cafe shall vacate the permit area no later than 1:00 a.m. Mr. Monetti stated that the amended language providing for vacation of the permit area at 1 a.m. is acceptable; however, the Commission's earlier discussion indicating a desire to change the hours of operation for consistency causes concern; that the implication of an 11 p.m. requirement would be significant to the Columbia Restaurant as patrons would have to be told the most popular tables are not available after 9 p.m. Mayor Pillot stated that his support will continue for the hours of operation as currently drafted in proposed Ordinance No. 97-4007. Commissioner Patterson asked if the most popular tables are on private property or the sidewalk? Mr. Monetti stated that the most popular tables are on both private property and the sidewalk; that seven tables are on private property outside the front sliding glass doors; that patrons enjoy sitting by the railing or the window. Commissioner Patterson stated that proposed Ordinance No. 97-4007 regulates sidewalk cafes; that the requirement to vacate the permit area at a specific time would not require closure of the restaurant doors but that patrons move from the sidewalk onto private property. Mr. Monetti stated that the Commission expressed an intent to provide consistent hours of operation for all outdoor dining. Commissioner Patterson stated that providing consistent hours of operation makes sense, particularly since the opening and closing of doors seems to be causing problems; however, a separate ordinance in addition to proposed Ordinance Nos. 97-4007, BOOK 43 Page 15962 01/06/98 6:00 P.M. BOOK 43 Page 15963 01/06/98 6:00 P.M. regulating sidewalk cafes, and 98-4028, regulating open-air dining, would be required to impose hours of operation on open- air dining facilities operated without a special exception; that development of provisions to regulate bass tones may negate the need to provide consistent hours of operation for all outdoor dining; however, she supports changing the hours of operation for sidewalk cafes. Mr. Monetti stated that proposed Ordinance No. 97-4019, regulating noise, prohibits outdoor amplified noise after 10 p.m. on weekdays; that closure of the restaurant doors would be required at 10 p.m. if a band is playing; that outdoor dining should not have to cease if a band is not playing. Commissioner Patterson stated that the opening and closing of doors is only an issue if a band is playing; that imposing hours of operation on outdoor dining only if amplified music is offered in the main restaurant could be considered. Commissioner Merrill stated that a restaurant at Sarasota Quay installed double doors, which minimize the noise; and asked if sufficient space is available to install double doors at the Columbia Restaurant and Cha Cha Coconuts? Mr. Monetti stated that the entrance door at the Columbia Restaurant opens into a glassed atrium area; that alternative doors potentially could be installed. Commissioner Merrill stated that a requirement for no music or installation of double doors may compensate for the noise emanating through doors which are constantly opening and closing while service is provided to outdoor tables. Commissioner Patterson stated that Mr. Gonzmart appears to have a response. Mayor Pillot stated that hearing no objections, Mr. Gonzmart may return to the Commission table. Mr. Gonzmart came forward and stated that two doors existed at the Columbia Restaurant in previous years but were removed; that similar doors could be reinstalled. Commissioner Merrill asked if double doors could also be installed at Cha Cha Coconuts? Mr. Gonzmart stated that a double-door configuration could be created at Cha Cha Coconuts if required. Commissioner Cardamone stated that the installation of double doors will not resolve the problem created when the sliding glass doors at the Columbia Restaurant are open. Mr. Monetti stated that the sliding glass doors at the Columbia Restaurant currently remain open until the restaurant closes, which is 11 p.m.. when no band is playing, and are closed prior to the band's beginning to play, which is 10 p.m., on Sundays; that the doors are closed between 11 p.m. and 11:30 p.m. on Friday and Saturdays, which is during or after the band's first set. Commissioner Patterson stated that several residents have referenced a particular concern with noise issues on Sunday evenings. Mr. Monetti stated that proposed Ordinance No. 97-4019, regulating noise, should resolve some of the residents' concerns; that efforts have been made to address noise impacts on Sunday evenings; that apparently the issue has not been resolved; that suggestions are welcome. Commissioner Patterson stated that one resident reported the sliding glass doors were open recently at 1 a.m. on a Sunday night with the band playing. Mr. Monetti stated that the speaker referenced Cha Cha Coconuts, not the Columbia Restaurant. Commissioner Patterson stated that is correct. Mr. Gonzmart stated that the problem will be investigated. George Palermo, 1444 First Street, (34236), stated that some minor technical problems in proposed Ordinance No. 97-4007 are of concern; that the prohibition against electrical outlets in the parkway, which is the area between the sidewalk and the curb, sounds simple; however, the prohibition precludes any landscape or seasonal lighting and means unscrupulous vendors will use duct tape and extension cords to light the trees. Commissioner Patterson asked if lights are currently provided in the parkway? Mr. Palermo stated no; however, his primary concern is landscape lighting; that uplighting the palm trees and providing accent lighting, which illuminates the sidewalks, is desired by the Columbia Restaurant. Commissioner Cardamone stated that the prohibition against electrical outlets is to preclude sidewalk cooking. BOOK 43 Page 15964 01/06/98 6:00 P.M. BOOK 43 Page 15965 01/06/98 6:00 P.M. Mr. Palermo stated that the limitation is understood; however, the prohibition could be construed to mean any electrical device; that landscape lighting and seasonal lights should be allowed. Mr. Palermo stated that some confusion exists concerning the space required between parking stalls; that the language, which indicates every parking space requires a four-foot aisle, should be clarified if the intent, as stated by City Staff, is to require a four-foot aisle for every two parking spaces. Mr. Palermo continued that the purpose of the Life Safety Code is to ensure safe egress from buildings; that a number of tables and seats is not specified but dependent upon table types, aisle placements, egress, chair size, etc.; that exiting from a seating area to a grass area meets the intent of the Life Safety Code standard; that egressing to the sidewalk and to the three-foot buffer area between the tables and the vehicles meets the intent of the Life Safety Code standard; that design flexibility to position tables and choose table types providing good aisle widths should be allowed. Commissioner Patterson asked if proposed Ordinance No. 97-4007 precludes design flexibility? Mr. Palermo stated that the Life Safety Code standard has specific requirements which may not be feasible in areas not enclosed by walls. Commissioner Patterson stated that part of the intent of preventing placement of more tables in the permit area than normally would be allowed inside a restaurant is to prevent overcrowding whereby people who are standing between the tables with a beverage are pushed into the six-foot sidewalk; that restaurateurs incur significant expense in leasing interior space; that applying restaurant seating standards to sidewalk cafes, which is free space given by the City, makes sense and is not unreasonable; that right-of-way reserved for pedestrians should not be used to meet aisle requirements of the Life Safety Code; that additionally, a restaurant should not be able to overload the sidewalk so the intensity increases resulting in a lack of parking for the merchants; that St. Armands Circle should not bear more restaurant seating capacity than the roadways were built to accommodate; that the permit area should be reviewed as if enclosed space. Mr. Palermo asked if proposed Ordinance No. 97-4007 requires a restaurant to obtain a permit and move tables and chairs permitted inside to create a sidewalk cafe outside? Commissioner Patterson stated no; that the requirement referenced was included in the initial draft presented to the PBLP; however, as currently drafted, proposed Ordinance No. 97-4007 provides for additional seating outside without a requirement to decrease the available seating inside the restaurant. Mr. Palermo stated that the clarification is appreciated. City Attorney Taylor stated that for the record, the prohibition on electrical outlets at sidewalk cafes was included in Ordinance No. 94-3814; that the existing regulation provides for issuance through the Engineering Department of a permit for electrical connection for outdoor cooking; however, electrical outlets are prohibited in the permit area absent an exception permit for cooking purposes. Mayor Pillot asked if a permit can be obtained for seasonal lighting? City Attorney Taylor stated no. Commissioner Patterson asked if language providing for issuance of a permit for seasonal lighting could be incorporated into proposed Ordinance No. 97-4007 if deemed appropriate by the Administration? Mayor Pillot stated that the addition of such language is supported. Commissioner Cardamone stated that the concept of landscape lighting is positive; however, practical problems exist in running cords across sidewalks or providing underground wiring across large expanses of concrete. Commissioner Patterson stated that a permit could specify how the electrical outlet will be installed. Mayor Pillot stated that the conduit could be permanently installed and capped off; that a permit would allow activation. Commissioner Cardamone stated that conduits are probably in place for streetlights, etc. Mayor Pillot stated that there is a consensus of the Commission for the Administration to consider incorporating language into proposed Ordinance No. 97-4007 which would provide for issuance of permits for electrical outlets for seasonal or landscape lighting. City Attorney Taylor stated that the Commission is conducting the second public hearing on proposed Ordinance No. 97-4007; that the proposed change is relatively focused and could be made at a later date without requiring redrafting of the language this evening. BOOK 43 Page 15966 01/06/98 6:00 P.M. BOOK 43 Page 15967 01/06/98 6:00 P.M. Mayor Pillot stated that the intent was for the Administration to review and incorporate the proposed change at a later date and not to incorporate the change at this time. Ned Parsekian, 460 North Washington Drive, St. Armands (34236), stated that proposed Ordinance No. 97-4007, regulating sidewalk cafes, is different from proposed Ordinance No. 98-4028, regulating open-air dining, as the issue is regulation of the public right-of-way; that restaurants are granted a privilege to use the sidewalk, which is taxpayer owned; that more stringent regulation of public property versus private property is appropriate; that the hours of operation imposed for sidewalk cafes should be consistent with and not be less restrictive than those imposed for open-air dining facilities; that determining the number of tables permitted at sidewalk cafes based on the Life Safety Code standard is supported. Mr. Parsekian continued that regulation of amplified music is required; however, a significant difference exists between the sound created when microphones are used by a singer singing a blues or popular love song or an entertainer playing a piano and a band playing rock music, which requires amplification of several instruments; that the amplified rock music, which is not soft and mellow, occurs particularly late at night and is disturbing to residents who are attempting to sleep or read and to people simply strolling along the sidewalk on St. Armands Circle enjoying conversation, shopping, etc.; that more people are strolling and enjoying St. Armands Circle than are sitting at the Columbia Restaurant and Cha Cha Coconuts; that requiring restaurateurs to cease use the sidewalk after a certain hour is not unreasonable. Mr. Parsekian further stated that the Commission's intent to establish a Blue Ribbon Committee on Noise is encouraging; that hopefully amplified sound from a cafe singer can be distinguished from amplified sound from an electric guitar and drums. Maurice Richards, 204 North Adams Drive, (34236), stated that he is a resident of St. Armands Key and walks St. Armands Circle regularly; that the change on St. Armands Circle after 10 p.m. is interesting; that the issue is not outdoor dining; that the problem in the last two years has been outdoor drinking with snacks, which is not the restaurateurs' problem or their fault but rather a reflection of what society is doing; that more than one or two residents have complained of being awakened at 1:30 a.m.; that the booming bass and loud, rowdy noises coming from St. Armands Circle disturb residents' sleep; that residents do not complain about noise emanating from Cafe L'Europe or Charley's Crab, which have offered outdoor dining for many years, because the restaurateurs have taken the steps necessary to limit the noise before problems are created. Mr. Richards continued that the comments from representatives of the Columbia Restaurant and Cha Cha Coconuts are understood and appreciated; however, 251 single-family residential properties exist on St. Armands Key; that the noise emanating from the Columbia Restaurant and Cha Cha Coconuts is disturbing to many, which is the reason the City was requested to incorporate regulations for the CT Zone District into proposed Ordinance No. 97-4019, regulating noise; that the type of crowd recently drawn to St. Armands Circle has required an increase in police activities; that the police should not have to direct that tables be moved or noise be reduced. Mr. Richards further stated that his business which was owned for many years in another City was never cited by the police because issues were addressed before problems arose; that the business owners should take positive action when residents are disturbed during the late night or early morning hours; that Mr. Gonzmart indicated a band was fired; however, the band either was not fired or has been replaced by another band because the same noise continues; that the noise problems are destroying the ambiance on St. Armands Circle; that dining at the Columbia Restaurant as well as the other restaurants on St. Armands Circle is enjoyed; however, Cha Cha Coconuts is not his style. Mr. Richards requested that the Commission make decisions on the ordinances proposed to regulate sidewalk cafes, open-air dining, and noise for the "right" reasons and not based on comments of those who have spoken at Commission meetings, written letters, or telephoned requesting the decision be made "our way"; that the Commission's s decision may impugn on his rights or the rights of the Columbia Restaurant, Cha Cha Coconuts, or other businesses; however, regulation is required to protect the public interest. Commissioner Merrill asked if business tapers off on St. Armands Circle, e.g., after 9 p.m. on weekday evenings? Mr. Richards stated yes; that the restaurateurs realize and he agrees preferred seating is either on the sidewalk or within the open-air portion of the restaurant, but the restaurateurs have failed to address the noise from loud music which emanates and is disturbing to the residents and passersby. Commissioner Merrill asked if the open-air dining facilities and sidewalk cafes are full at 9:30, 10:30, or 11 p.m.? Mr. Richards stated no. Vice Mayor Dupree asked if children reside in the 251 residences on St. Armands? Mr. Richards stated yes, but very few; that approximately one third of the residences are not occupied year round. BOOK 43 Page 15968 01/06/98 6:00 P.M. BOOK 43 Page 15969 01/06/98 6:00 P.M. Vice Mayor Dupree asked if some residents are working people. Mr. Richards stated yes; that not disturbing the peace and quiet of residents after a certain hour is a common courtesy. Vice Mayor Dupree that residents are sensitive to the rights of business owners and business owners should be sensitive to the rights of residents. Mr. Richards agreed; and stated that noise emanates into the residential neighborhood; that some of the patrons are dining after attending the theater; however, the majority of patrons partake in late-night drinking, which was not common when his first home on St. Armands Key was purchased 13 years ago. Commissioner Cardamone stated that Mr. Richards writes logical and respectful letters; that meeting him in person is appreciated. Michael Furen, Attorney, Law Firm of Icard, Merrill, Cullis, Timm, Furen, and Ginsburg, 2033 Main Street (34237), representing the Gonzmart Family interests on St. Armands Circle, stated that the Gonzmart family has made efforts to address the residents' concerns; that Mr. Gonzmart participated on the City's noise task force and earlier expressed his desire to continue working toward a reasonable solution; that the opportunity to operate a sidewalk cafe is a privilege; however, privileges should be granted on a non-discriminatory basis on equal terms; that proposed Ordinance No. 97-4007 regulates hours of operation for sidewalk cafes located only in one particular area of Sarasota. Attorney Furen continued that several issues have been raised which require clarification; that reference was made to the need to reduce seating at the sidewalk cafes because of potential impacts on parking; that the argument that sidewalk cafes can double capacity with resultant increased parking has validity only if the assumption is made that the restaurants are operating, indoors and outdoors, at maximum capacity, which is unrealistic; that the argument has also been made that the restaurateurs are receiving a free benefit; that the restaurateurs, who are serving the tourists of the community in a district established to support the tourist industry, generate sales tax revenue, in which the City shares; that the tourists who frequent Sarasota to dine at the restaurants pay Tourist Development Tax, which comes back to the community; that the assertion the restaurateurs are obtaining a free benefit with no return to the community is not accurate. Attorney Furen further stated that to his surprise, Mr. Gonzmart came before the Commission and accepted a standard causing significant reductions in the sidewalk cafe seating at the Columbia Restaurant and Cha Cha Coconuts although the Life Safety Code realistically has no meaningful application to outdoor facilities; that Mr. Gonzmart also proposed a temporary elimination of the bands at the Columbia Restaurant until a solution to the bass tones issue is determined; that the only concession requested by Mr. Gonzmart was not to ruin the ambiance of outdoor dining at the Columbia Restaurant by further restricting the hours of operation at sidewalk cafes; that action by the Commission to further restrict the hours of operation would be unfair after the efforts made to reach a reasonable compromise solution; that the approximate 30 percent reduction in permitted sidewalk cafe seats at the Columbia Restaurant has been reluctantly accepted; that the time available to serve the tourists who contribute significant benefits to the community should not be decreased. Attorney Furen stated further that the opening and closing of doors has been raised as an issue; however, the issue does not seem logical; that members of a City task force who walked St. Armands Circle in June 1997 until about 10:30 p.m. visited 12 to 13 locations; that the doors of the Columbia Restaurant and Cha Cha Coconuts were open; that the decibels measured on the A- weighted scale (dBA) were in the high 70s or low 80s; that only 2 of the 11 task force members found most locations to have an unacceptable noise level from bands; that one additional member found the noise level specifically at one location to be unacceptable; that scientific studies have shown that noise bothers the rich more than the poor and also bothers older people more than younger people; that the scientific studies may or may not be valid; however, the Commission is requested to consider the conclusions of the scientific studies during deliberations. Jane Carrigan, 101 North Adams Drive, (34236), representing the St. Armands Residents Association stated that Ms. Mary Huettner, a resident who is not a member of the St. Armands Residents Association but who has attended the PBLP meetings on the proposed ordinances concerning open-air dining and sidewalk cafes, requested that the following letter be read into the record: My name is Mary Huettner. I live at 340 Jackson Drive on St. Armands. I'd like to describe what I see as I walk each night on the Circle, between 10 p.m. and 11 p.m., as it relates to "fine dining. We moved here 10 years ago from San Francisco and chose St. Armands because of fine dining within walking distance. We were also interested in late dining and have worked and lived in Europe over the years and continue to visit European cities one or two times per year as tourists. The scene each night varies somewhat because of the weather obviously and the day of the week. Monday and BOOK 43 Page 15970 01/06/98 6:00 P.M. BOOK 43 Page 15971 01/06/98 6:00 P.M. Tuesday are fairly quiet. The tempo increases from Wednesday through Saturday and remains busy even on Sunday evening. The first restaurants I encounter on my walk are Charley's Crab and then Cafe L'Europe. They are winding down inside and have a few diners finishing up outside. Next door to L'Europe is an entirely different scene at Cha Cha Coconuts. The crowd is just gathering, the music is hammering through the opened up front windows. The amplification of the thumping is ear splitting. Beer bottles are the main staples on the outdoor tables. Two burly guards are at the front door. They wore the letters "SECURITY" on the back of their T- shirts until a few months ago. The letters are no longer worn. I've seen them check I.D.S at the door. I don't know what else they do. If anyone, European or American is seeking fine dining, they would not look for it in here. The next outdoor facility is the Columbia. The indoor section faces the Circle. The restaurant there is also winding down. Most of the tables are empty. The outdoor section is around the corner and the late night action is just beginning here also. There is the outdoor sidewalk section, the outdoor patio section, the dance floor, the bar and the bandstand. The music is loud and thumping. There are two large guards here also at the doorway. The major point I would like to make is that later hours are not for the provision of fine dining. Late hours are for the purpose of disco operations. If the City is going to subsidize this scene 365 nights per year, then I think you should visit the sight at 11:00 p.m. or midnight some warm Saturday evening sO that you are aware of what you are subsidizing. Thank you, Mary Huettner Ms. Carrigan stated that one complaint is the inability to walk in some areas with open-air dining and sidewalk cafes; that the Life Safety Code standard discussed will decrease the number of permitted sidewalk cafe seats from 212 to 176; however, 58 more parking spaces would be required for the same number of sidewalk cafe seats in every other zone district in the City; that the Board of the St. Armands Residents Association passed a motion in support of requiring vacation of all outdoor dining seats by 11 p.m. Nancy Cook, 444 North Washinqton Drive, (34236), representing the Long-Range Planning Committee of the St. Armands Residents Association, stated that the Commission's decision to pass proposed Ordinance No. 97-4007 on first reading with the hours of operation amended to extend the time required for cessation of service from 10 p.m. to 11:59 p.m. and to provide for vacation of the permit area at 1 a.m. was surprising; that City Staff and the PBLP put forth great effort in developing the hours of operation recommended; that Ordinance No. 94-3814, regulating sidewalk cafes, which was adopted to encourage development and increase the economic status of St. Armands Circle, provided no protection to residents; that proposed Ordinance No. 97-4007 as initially drafted attempted to provide protection for the neighborhoods; that preservation of neighborhoods is a priority of the Commission; that balancing the public interests is required. Ms. Cook continued that the Zoning Code provides for parking lots in the Commercial, Tourist (CT) Zone District with minimal buffering requirements; that some of the parking lots on St. Armands are surrounded by private homes, the residents of which are directly impacted as patrons of establishments on St. Armands Circle enter and exit the parking lot; that the coming and going of vehicles at 1:30 a.m. interrupts residents' sleep; that sidewalk cafes utilize public property; that providing for the vacation of the permit area at 1 a.m. every night of the week is not a fair decision; that a limited amount of food is served at sidewalk cafes after 10 p.m., e.g., on a recent Sunday night only one of the tables in front of Cha Cha Coconuts had food; that the remainder of the tables had only drinks; that the sidewalk cafes become bars after 10 p.m.i that 12 sidewalk cafe permits have already been issued; that issuance of additional sidewalk cafe permits is anticipated; that allowing 12 or more outdoor bars to operate until 1 a.m. every night will change the atmosphere of the residential areas as well as the impression and image of the commercial area on St. Armands. Ms. Cook further stated that the Commission is requested to reconsider the hours of operation incorporated into proposed Ordinance No. 97-4007 when passed on first reading; that requiring the sidewalk cafes be vacated by 11 p.m. would provide for consistent hours of operation for outdoor dining; that the Commission's commitment to preserve neighborhoods should be honored. May Jang, 4619 Country Manor Drive, (34233), representing the Florida Restaurant Association (FRA) and Joseph Terrone, President, FRA, Sarasota Chapter, and Co-Chairman of the Restaurant Task Force Committee, 1780 North Honore Avenue (34235), representing the FRA and China Palace Express. BOOK 43 Page 15972 01/06/98 6:00 P.M. BOOK 43 Page 15973 01/06/98 6:00 P.M. Ms. Jang stated that proposed Ordinance No. 97-4007 regulating sidewalk cafes as passed on first reading should not be changed; that noise is the primary concern expressed by residents; that the Florida Restaurant Association hired an audio engineer who indicated corrective action is possible. Mr. Terrone stated that the booming bass sound is recognized as a problem; that the FRA hired a highly qualified audio engineer, who has done work for Superbowl Games, major concerts and Presidential events, to conduct a preliminary study, the results of which will be shared with the restaurateurs and the City; that some suggestions have been developed to eliminate the booming bass sound which is the predominant problem whether the doors are open or closed. Ms. Jang stated that the doors should be allowed to remain open as the booming bass sound can be resolved; and cited the following from the audio engineer's report: After reviewing the proposed statute on noise and its relationship to the FRA in the City of Sarasota, Florida, I have two recommendations. First, the standard measure of 75 dBA referenced to the A- weighting curve is an acceptable specification. If taken at the legal property line correctly as the ordinance specifies it provides for a pleasant amount of music at most clubs and can create a legal immunity between the FRA member and the complainer. Comment: Special bass traps and cost effective high frequency noise canceling technology can be voluntarily employed to eliminate the acoustical phenomenon that might still cause complaints, even though the club or restaurant has met or gone under the 75 dBA specification on noise. Large planes of concrete walls and bass horn shaped architecture can throw narrow beams of high and low sounds for miles . Ms. Jang stated that the audio engineer's full report will be presented to the Commission for review before the January 8, 1998, special Commission meeting at which proposed Ordinance No. 97-4019 will be considered; that the following is a summation of other comments made by the audio engineer: The octave-ban measurement method proposed by the City will require investment in expensive and complicated equipment and could generate a greater range of problems as training is required to operate the equipment and understand the complex physics of sound. Therefore, the octave-ban measurement method should be removed from proposed Ordinance No. 97-4019 regulating noise. Sound from music and noise differ since music travels in waves. Providing commercial music that is loud enough for restaurant patrons to enjoy while keeping the complaint level low will vary with each acoustically physical case. Mr. Terrone stated that bands could play at 75 dBA and still produce an intolerable bass tone; that FRA resources are committed and restaurateurs will continue working toward a solution to the problem. Ms. Jang stated that a solution to the bass tones should resolve the concern about the opening and closing of doors while patrons are served outdoors; therefore, a change in the hours of operation for sidewalk cafes is not necessary; that restaurateurs work long hours, 16 to 18 hours per day; that the average profit for the restaurant industry is 3 to 7 percent; that a solution to the noise problem will be found. Commissioner Cardamone asked if an industry figure for bar profits only is available? Ms. Jang stated that the industry figure for bar profits is not immediately available as the subject researched in the FRA profile was restaurants. Commissioner Cardamone stated that the profit is probably higher for bars. Ms. Jang stated that insurance premiums for bars are extremely expensive. Mayor Pillot asked if the 3 to 7 percent figure includes the profits from alcoholic beverages served at restaurants? Ms. . Jang stated yes; that copies of the FRA profile on the hospitality industry will be forwarded to the Commission. There was no one else signed up to speak and Mayor Pillot closed the public hearing. City Auditor and Clerk Robinson entered the following documents into the record: Memorandum from Michael Taylor, Deputy Director of Planning and Development, to the PBLP dated July 24, 1997, regarding consistency of proposed Ordinance 97-4007 with the Sarasota City Plan. BOOK 43 Page 15974 01/06/98 6:00 P.M. BOOK 43 Page 15975 01/06/98 6:00 P.M. Minutes of July 7, 1997, City Commission meeting regarding discussion of proposed Ordinance No. 97-4007. Minutes of the August 6, 1997, public hearing before the PBLP on proposed Ordinance No. 97-4007. Minutes of the October 1, 1997, PBLP meeting regarding discussion of proposed Ordinance No. 97-4007. Minutes of the November 3, 1997, City Commission meeting regarding PBLP report for proposed Ordinance No. 97-4007. Map prepared by City of Sarasota Engineering Department entitled "St. Armands Circle Sidewalk Cafes Proposed 120-foot Setback, I consisting of two pages Minutes of and all exhibits submitted at the December 17, 1997, public hearing on Ordinance No. 97-4007. City Auditor and Clerk Robinson read proposed Ordinance No. 97-4007 by title only. City Manager Sollenberger stated that proposed Ordinance No. 97-4007 has been amended to reflect Commission direction received at the first public hearing held on December 17, 1997; that the Administration recommends adoption of proposed Ordinance No. 97-4007 on second reading; however, based on the Commission discussion held during the public hearing on proposed Ordinance No. 98-4028, regulating open-air dining facilities, further discussion on the hours of operation imposed for sidewalk cafes may be appropriate. Commissioner Cardamone asked if the Police Department will be the department enforcing the sidewalk cafe regulations? Russell Pillifant, Deputy Chief of Police, Sarasota Police Department, came before the Commission and stated no. City Attorney Taylor stated that proposed Ordinance No. 97-4007 will be incorporated as part of the Sarasota City Code, violations of which constitute an offense potentially addressed by the police and prosecuted as a result of a citation issued; however, police enforcement of the City Code is not normal practice. Mayor Pillot asked if compliance with the sidewalk cafe regulations will be enforced by the Code Enforcement department? City Manager Sollenberger stated that Code Enforcement Inspectors have not been assigned to determine compliance of the sidewalk cafes on St. Armands Circle, e.g., at midnight; that enforcement will be appropriately assigned once the proposed Ordinance No. 97-4007 is adopted. Commissioner Cardamone stated that enforcement of proposed Ordinance No. 97-4007 should be assigned to one department; that allocating resources from various departments to determine compliance with the sidewalk regulations should be avoided. City Manager Sollenberger stated that determining compliance with regulations for sidewalk cafes ordinarily would be handled by Code Enforcement; however, assigning Code Enforcement personnel to monitor specific areas between 9 p.m. and 12 midnight may not be practical; therefore, assignment to the Police Department for enforcement of proposed Ordinance No. 97-4007 is likely. Commissioner Merrill asked if the proposed Ordinance No. 97-4007 as drafted allows for the positioning of tables directly adjacent to the location measured three-feet from the curb and to the edge of the four-foot-wide clear zone designated to provide pedestrian access through the permit area from parking spaces? Mr. Daughters came forward and stated yes; that tables could be located three feet from the curb; however, the four-foot-wide aisles will be designated for every two, not each, parking space. Commissioner Patterson asked if distance requirements from the grass areas or permit boundaries are imposed? Mr. Daughters stated no; that the back of a chair can be positioned directly adjacent to the edge of the defined permit area as if a wall existed. Commissioner Cardamone stated that comments were made in jest regarding the purpose of the Life Safety Code standards to provide for safe egress from a burning building and that escaping an outdoor area would not be as difficult; however, an area outside a restaurant with disorganized chairs and no access aisles could create a hazard when, during an emergency, 40 to 50 patrons attempt to escape from the restaurant through one door; and asked if, therefore, the placement of tables and chairs outside is just as important as placement of tables and chairs inside? Mr. Waugh came forward and stated yes; that safe egress from the center to the exterior of the permit area is necessary. Mayor Pillot asked if greater flexibility could be provided in determining the number of tables allowed at sidewalk cafe versus interior restaurants and the intent of Life Safety Code standards still met? Mr. Waugh stated that perhaps, since the boundaries of the permit areas do not have walls; however, quantifying the number of BOOK 43 Page 15976 01/06/98 6:00 P.M. BOOK 43 Page 15977 01/06/98 6:00 P.M. additional tables would be difficult since the permit areas are of different shapes and sizes; that applying the standards similarly for restaurants both inside and outside would be supported if the decision were his unilaterally. On motion of Commissioner Merrill and second of Commissioner Cardamone, it was moved to adopt proposed Ordinance No. 97-4007 on second reading with Section 6-32(g) (10) revised to read as follows: In the CT Zone District, all patrons of the sidewalk cafe shall vacate the permit area no later than 11 p.m. on Sunday through Thursday and 11:59 p.m. on Fridays, Saturdays, and evenings before holidays. Commissioner Merrill stated that comments heard regarding: 1) noise emanating from the interior restaurants each time the doors are opened to serve sidewalk cafe patrons and 2) service of meals tapering off and being replaced primarily by a service of alcohol in the later hours persuaded him to change his position regarding the hours of operation supported on first reading; that outdoor dining is enjoyed and sidewalk cafes are a wonderful amenity in the community; however, protecting neighboring residents from adverse impacts of noise generated at the sidewalk cafes is important; that consideration may be given to extending the hours of operation during the weeknights once the noise problems are resolved; however, in the interim, the proposed motion is viewed as the best compromise. Commissioner Cardamone stated that Commissioner Merrill's statements are supported. Commissioner Patterson agreed; and stated that, initially, imposing hours of operation on sidewalk cafes was not supported; therefore, supporting a cease in service at midnight was a compromise; that impacts from the opening and closing of restaurant doors while service is provided to sidewalk cafe patrons was not recognized as an issue until after proposed Ordinance No. 97-4007 was passed on first reading; that an effective manner in which to regulate or eliminate impacts from bass tones is required; that consideration may be given to extending the hours of operation on outdoor dining if a solution to the problem can be found; that suggestions made included installation of double doors and a provision for later hours if no bands are playing, enforcement of which would be difficult; that the restaurateurs may wish to consider the suggestions made by Ms. Jang and make efforts to resolve the problem independently; that neighborhood and Commission support for later hours of operation may be attainable if the restaurateurs can show no problem exists which needs to be regulated. City Auditor and Clerk Robinson stated that the time is now 11:29 p.m. On motion of Commissioner Cardamone and second of Commissioner Patterson, it was moved to extend the meeting past 11:30 p.m. to complete Agenda Item No. II. Motion carried unanimously (5 to 0): Cardamone, yes; Dupree, yes; Merrill, yes; Patterson, yes; Pillot, yes. Vice Mayor Dupree stated that noise from loud voices and exiting vehicles is also generated at the time patrons leave an establishment; that an equitable solution for both residents and businesses is desired. Mayor Pillot stated that opposition to outdoor dining, per se, has not been heard during the public hearings on the ordinances proposed to regulate noise, sidewalk cafes, and open-air dining facilities; that the majority of comments have focused on the disturbance of noise; that the proposed motion to limit the hours of operation on sidewalk cafes by an additional hour will eliminate some of the noise during that time; however, addressing the noise issues directly is preferable to regulating outdoor dining to address noise problems; that the second public hearing and adoption of proposed Ordinance No. 97-4019, regulating noise, is scheduled in two days on January 8, 1998; that consideration to limit the hours of operation on sidewalk cafes should be delayed until the effects of the noise ordinance, once adopted, can be reviewed; that business owners, i.e., Mr. Gonzmart, should be provided an opportunity to make good on commitments expressed; that he will not support the motion. On motion of Mayor Pillot (who passed the gavel to Vice Mayor Dupree) and second of Vice Mayor Dupree, it was moved to amend the motion by adding a provision allowing patrons to vacate sidewalk cafes at 1 p.m. seven days per week if no music is played. Commissioner Patterson asked for clarification of the term "no music" and if the reference is to amplified music? Mayor Pillot stated that "no music" refers to the type of music the City is attempting to regulate in proposed Ordinance No. 97-4019; that eliminating background music or a strolling violinist is not the intent. Commissioner Patterson stated that music played on a stereo is amplified; and asked if "background music" refers to music with no amplification? Mayor Pillot stated that background music, which is difficult for him to quantify but is addressed in the noise ordinance, refers to music that allows patrons to easily and comfortably carry on a conversation while enjoying dinner; that music produced by a vocalist, strolling violinist, or guitar player will enhance BOOK 43 Page 15978 01/06/98 6:00 P.M. BOOK 43 Page 15979 01/06/98 6:00 P.M. dining without causing a distraction to or waking up residents; that specific criteria could be determined if the motion to amend passes, the intent of which is to provide the opportunity for businesses owners to chose between providing service at the sidewalk cafe for an additional one or two hours or offering music, e.g., live bands. Commissioner Merrill stated that the concept of the motion to amend is supported; however, quantifying the type of music is necessary to provide for enforcement; that proposed Ordinance No. 97-4019, regulating noise, provides for music played at 75 dBA, which would be classified as loud if heard at a sidewalk cafe; therefore, an alternative standard, i.e., 60 dBA, would be required to measure the level of amplified music played inside an establishment adjacent to a sidewalk cafe. City Attorney Taylor stated that the enforceability of proposed Ordinance No. 97-4007 is of concern; that the Commission's discussion is heading in a direction of providing options not considered by the PBLP or during previous public hearings; that the development of standards to address the type of music allowed at or adjacent to sidewalk cafes should not be considered at such a late hour; that the Commission is advised to either take no action and return proposed Ordinance No. 97-4007 to the PBLP for a recommendation on applicable standards or to adopt proposed Ordinance No. 97-4007 as drafted with the intent of amending the ordinance at a later date Mayor Pillot asked if a standard of 60 dBA measured at the door of the interior establishment to which patrons enter and exit could be incorporated and the proposed ordinance adopted with the intent of amending the standard at a later date? City Attorney Taylor stated that defending a challenge would be difficult if an arbitrary dBA standard is incorporated; that the 75 dBA level proposed in the noise ordinance was determined based on documentation compiled in the record, including testimony by the sound expert hired to take sound measurements at various locations in the City. Mayor Pillot, as maker of the motion, and Vice Mayor Dupree, as seconder, agreed to substitute the motion to amend with a motion allowing patrons to vacate sidewalk cafes at 1 p.m. if no music is played at the sidewalk cafe or inside the adjacent establishment. Commissioner Cardamone stated that the main motion is supported; however, the motion to amend, which changes the complexion of the regulations proposed, will not be supported; that the Commission initially provided for sidewalk cafes in an effort to encourage and enhance business on St. Armands Circle at the request of business owners who desired to provide outdoor dining; that providing the use of public sidewalks for dining but not for the sale of goods was raised as an issue at the time by many merchants; that the atmosphere at the sidewalk cafes later in the evening has been referenced by several speakers; that the original sidewalk cafe ordinance was adopted to provide for outdoor dining not for outdoor bars; that an attempt should be made to adopt uniform hours of operation in the sidewalk cafe and open-air dining ordinances; that postponing a vote on the motion to amend would provide time for the Commission to consider potential ramifications of the action; however, her preterence is to adopt the main motion as presented by Commissioner Merrill and to consider separately at a future date alternative options suggested by the business owners, which may be supported by the residents once the noise issues are sufficiently addressed. Commissioner Patterson stated that the concept put forth by Mayor Pillot is intriguing; however, implication of the motion to amend is not clear; that the time at which no amplified music can be played is not specified, e.g., all evening, after 10 p.m., after 11 p.m.i that returning the issue to the PBLP for analysis and a recommendation would be more appropriate than the Commission's making the modification proposed at 11:45 p.m.i that she intends to make a substitute motion to refer the issue to the PBLP. Mayor Pillot stated that a substitute motion to refer the issue to the PBLP for analysis and a recommendation will be supported. With consensus of the Commission, the motion to amend was withdrawn by Mayor Pillot, as maker of the motion. Commissioner Cardamone stated that the Commission should vote on the main motion before considering a motion to refer the concept put forth by Mayor Pillot to the PBLP. Mayor Pillot restated the motion as to adopt proposed Ordinance No. 97-4007 with Section 6-32(g) (10) revised as follows: In the CT Zone District, all patrons of the sidewalk cafe shall vacate the permit area no later than 11 p.m. on Sunday through Thursday and 11:59 p.m. on Fridays, Saturdays, and evenings before holidays. Mayor Pillot requested that City Auditor and Clerk Robinson proceed with the roll-call vote. Motion carried (4 to 1) : Cardamone, yes; Dupree, yes; Merrill, yes; Patterson, yes; Pillot, no. On motion of Commissioner Patterson and second of Commissioner Merrill, it was moved to refer to the PBLP for a recommendation the concept of modifying and extending the hours of operation for sidewalk cafes if the main establishments have no indoor amplified music. BOOK 43 Page 15980 01/06/98 6:00 P.M. BOOK 43 Page 15981 01/06/98 6:00 P.M. Commissioner Patterson stated that authority should be granted for the PBLP to request preparation of an appropriate ordinance and to hold public hearings if the concept is viewed to have merit. Commissioner Cardamone stated that the business owners and residents should get together to discuss potential modifications for presentation to the PBLP. Mayor Pillot called for a vote on the motion. Motion carried unanimously (5 to 0): Cardamone, yes; Dupree, yes; Merrill, yes; Patterson, yes; Pillot, yes. 3. ADJOURN (AGENDA ITEM V) #4 (2132) Mayor Pillot adjourned the special meeting of January 6, 1998, at 11:55 p.m. 1 A GENE PILLOT, MAYOR ATTEST 6 T4 Billi : Aaber 6 + > BILLY E CROBINSON, CITY AUDITOR AND CLERK