OCEAN CITY — It took considerable debate, but resort officials this week decided to meet virtually every day if necessary to expedite the approval process for local businesses seeking to use public property for outdoor seating.
Last week, Gov. Larry Hogan announced a relaxation of some of the restrictions under stage one of his recovery plan including an allowance for outdoor dining at businesses with all other current directives in place including proper distancing of tables, the wearing of masks and other sanitation and hygiene measures effective 5 p.m. last Friday. As a result, those businesses with existing outdoor seating capabilities were allowed to immediately open those areas with the other directives in place for the weekend.
Another group of resort businesses without pre-existing outdoor seating areas were also allowed to creatively find ways to accommodate outdoor seating on their own private property, in parking areas or other outdoor areas, for example. Those businesses were required to submit multi-layered, multi-agency applications to use their private property for outdoor seating, but essentially got the green light to open at 5 p.m. last Friday while their applications were being processed.
Those layers include the town’s zoning department, the Ocean City Fire Marshal’s Office, the Worcester County Health Department and the Worcester County Board of License Commissioners. Essentially, if the business had submitted an application, it was give the go-ahead to open its modified outdoor seating area last weekend. For the record, 44 of those businesses have submitted applications and are up and running with outdoor seating.
A third and more complicated group are those businesses seeking to utilize public property to accommodate outdoor seating such as public sidewalks or portions of the public right-of-way. Because those situations come with insurance and liability issues, public access, ADA compliance and fire safety issues among others, the Mayor and Council late last week decided not to rubber-stamp those applications and promised to revisit the issue during Monday’s regular meeting to expedite the process.
On Monday, City Manager Doug Miller outlined some guidelines and criteria for allowing private businesses to utilize public property to accommodate outside seating. For example, no alcohol would be allowed on the beach or Boardwalk and no commerce could be conducted on the beach. Public sidewalks could be used as long as ADA access is maintained. Businesses could not use the travel portion of a street, but some parallel parking spaces could be used under certain circumstances.
Miller also outlined a handful of requirements that had to be met before an application could be considered. For example, the restaurant owner would have to provide proof of insurance and indemnify the town from any liability for business conducted on public property. Access to fire lanes and hydrants have to be maintained. The business operation, including tables and chairs, for example, would have to be removed each night at the close of business and other activities such as normal deliveries cannot be impeded.
With the guidelines and requirements laid out, Miller said the big remaining question is who would have the final say on approvals. He pointed out the multi-agency application process for those businesses utilizing their own private property were already being handled by staff, but questioned if the Mayor and Council wanted final approval for those seeking to use public property.
“These are our concerns,” he said. “The direction we’re seeking from you tonight is if the Mayor and Council review and approve each application, or if the staff should follow the guidelines and make decisions.”
Councilman Dennis Dare suggested the Mayor and Council hold the final decision on approvals for using public property after a recommendation from the staff.
“I think the staff should develop the criteria and review the applications, then forward a recommendation to the Mayor and Council for approval,” he said. “Let the policy makers make these approvals. Each application will be different and there are probably exceptions to each and every one of them.”
Councilman Tony DeLuca said there should be a sense of urgency to get the public property applications approved with the calendar flipping over to June this week. He pointed out Delaware already went back to allowing limited indoor seating this week despite lagging behind Maryland on reopening plans over the last few weeks.
“Everything we can do right now, we should do,” he said. “Sussex County opened indoor seating today and people can walk across Route 54 and sit down and eat at a restaurant, and Sussex County’s numbers are higher than ours. We should do everything we can to support the businesses.”
Councilman Matt James agreed and said staff can review and approve the applications faster than a weighty full Mayor and Council approval process.
“We should help people out as much as possible right now,” he said. “We should continue to do that until they get back to full capacity. I think staff level approval is fine with the criteria spelled out. If we see something we don’t like, we can address it. It takes us as a group so long to get things done sometimes.”
Council Secretary Mary Knight agreed, pointing out the success of those businesses that reopened last weekend with modified outdoor seating on private property.
“I agree with staff review,” she said. “People are ready and willing to do this now. By 5 p.m. last Friday, there were so many doing outside dining and they were doing a great job with it.”
However, some on the council remained adamant about final approval coming from the Mayor and Council. Mayor Rick Meehan pointed out the elected officials were responsible for what happens on public property in the resort.
“I think the final decision should be made by the Mayor and Council,” he said. “Public officials tend to look at things a little differently than maybe staff would. The public areas are our domain and that’s our responsibility. We’re going to be the ones getting the calls like ‘who let that happen?’ or ‘who approved that?’ because there will inevitable be some complaints.”
However, James continued to push for an expedited staff review and approval for the applications.
“If we set the guidelines, I don’t understand why we don’t let the staff approve them,” he said. “Most of these things are cut and dried.”
Council President Lloyd Martin said however the applications were approved, they would still be subject to strict review.
“It’s basically a conditional use,” he said. “The permit can be pulled if they aren’t policing their areas. I think 99% will do the right thing. They are getting the opportunity to get open and start making money.”
Councilman Mark Paddack made a motion for amended outdoor seating permits on private property to be handled by staff as has been the case thus far, with requests to use public property reviewed and approved by the Mayor and Council. James continued to object to Mayor and Council approval, citing turnaround time issues. He also said it appeared to be an ego issue for some with the Mayor and Council holding sway over every application.
“The amount of time it’s going to take to get this body to review and approve these things is going to be too long,” he said. “People are losing their livelihoods. We should let staff do it. If there are any problems, we’ll hear about it quickly.”
Another issue was the timing for the approval process. Reviews and approvals by the Mayor and Council would be conducted in a public, albeit virtual, forum and there are time limitations for advertising public meetings. Knight questioned if those limitations could be waived under the current circumstances.
“Can’t we waive the 24-hour requirement under these challenging times?” she said. “With these virtual meetings, we can pull things together quickly if a request came in.”
City Solicitor Heather Stansbury cautioned against deviating from the 24-hour advertising period. Dare said the council could meet virtually on Thursday to review the current applications, then schedule to meet every business day if necessary as a means to get around the 24-hour requirement.
“What if we meet at 4 p.m. on Thursday to handle this first batch, then schedule to meet every business day at 4 p.m. to handle new requests,” he said. “Just schedule the meetings. If there aren’t any applications, then the meeting can be cancelled.”
For the record, as of Monday, only three applications for utilizing public property had been received including two requesting to use a portion of the sidewalk on Wicomico Street and one requesting to use part of the right-of-way on 16th Street. James said that number will almost certainly go up and continued to push for staff review and approval.
“These first three will significantly increase when the public finds out this is an option,” he said. “People need to plan and they need to order and staff appropriately. The staff is more than capable to make these decisions with the guidelines we provide.”
Paddack took exception to James’ earlier comments about it being an ego issue and stuck to his original motion.
“It has nothing to do with egos,” he said. “We all want everybody to get open. “I agree we need to move this forward. If the request is on private property, let it roll. If it’s on public property, it should come back to the Mayor and Council.”
Miller said the town’s approval for modified outdoor seating was only part of a larger approval equation.
“Remember, it’s not just us,” he said. “We have to coordinate with the health department and the liquor board. There are a lot of moving parts to this.”
After considerable debate, the council voted 5-2 with James and DeLuca opposed to have applications for outdoor seating on public property come before the full Mayor and Council for approval with the first batch being heard during a meeting on Thursday at 4 p.m., which would allow those businesses, if approved, to get up and running immediately.
The council also voted to schedule a meeting each business day at 4 p.m. to consider new applications for the use of public property for outdoor seating until such time as they are no longer needed. If there isn’t an application scheduled for review on any given day, that meeting would be cancelled.
