The owner of a new business in downtown Marietta has apparently fallen victim to a municipal ordinance that prohibits obstructions on city sidewalks without prior city council approval.
Jane Tumas-Serna, who opened the Wild Rivers tea room and art studio with her daughter, Laura Serna-Maytorena, in December, was cited twice this month for putting tables and chairs on the walk in front of the business without obtaining a permit.
"But our chairs were not obstructing anyone, and tables and chairs are part of our business as a tea room," Tumas-Serna told members of council's streets and transportation committee Wednesday.
According to current city code, section 521.04 (c), "No person shall place, deposit or maintain any merchandise, goods, material or equipment upon any sidewalk so as to obstruct pedestrian traffic thereon except for such reasonable time as may be actually necessary for the delivery or pickup of such articles. In no case shall the obstruction remain on such sidewalk for more than one hour. Except that this section shall not be applicable to racks or holders for the exhibition, display and sale of newspapers when so located that they do not substantially obstruct pedestrian traffic or cause congestion upon the sidewalk."
Anyone found in violation of that section of the city code is deemed guilty of a minor misdemeanor.
Tumas-Serna said on May 24 and 29 city police had issued citations at her business because she had placed tables and chairs on the sidewalk in violation of the city code.
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The penalty on each citation is a fine of $5 to $50 plus court costs of $95.
But Tumas-Serna countered that another portion of the city code, 722.02 (a), says merchants can "sell merchandise, wares, goods, foods, periodicals or other articles on the sidewalk located immediately adjacent to the front of their business so long as pedestrian movement is not unduly hindered thereby."
"We've been very careful to keep out of the way of pedestrians," she said.
Tumas-Serna said the two sections of city code seem to be contradictory.
"Downtown vendors don't know if they're in compliance or not," she said.
City safety-service director Jonathan Hupp said Tumas-Serna had initially gone to the city offices May 16, asking if she could put tables and chairs on the sidewalk in front of Wild Rivers. He said a letter was sent, notifying her that the tables and chairs should not be placed on the sidewalk, but the furniture was still seen on the walkway for days afterward.
Tumas-Serna said she assumed the law provided a grace period of several days before the business would have to comply.
Downtown merchants can obtain a variance by requesting permission from city council to place tables and chairs on sidewalks in front of their businesses. If permission is granted, the merchant pays the city a permit fee of $150 plus $1 for every additional year requested.
"We've never said 'no' to anyone that I know of who requested a permit so far," said Councilman Tom Vukovic, D-4th Ward, adding that the sidewalk ordinance was developed to promote pedestrian safety on narrower downtown sidewalks.
"We just want to protect the city's right of way-we don't want to have to fine our downtown merchants," he said.
But Vukovic said the process of obtaining a permit from council to place tables and chairs on city sidewalks could be easier.
"Apparently there's no form a merchant can fill out, requesting a permit," he said. "I would have thought administratively we would have developed a form that could be filled out to make this more user-friendly."
Vukovic said he had asked city development director Andy Coleman to come up with a draft form that could be used by merchants. The form would also include a reference to the city code governing the placement of tables, chairs or other obstructions on city sidewalks.
Councilman Mike McCauley, D-2nd Ward, said in the past the procedure has always been for a business to submit a letter of intent to council, then bring in a drawing indicating where any chairs, tables, benches, or other items would be located on the sidewalk.
"I think this is just a failure in communication," he said.
Streets and transportation committee chairman Denver Abicht, D-at large, asked Tumas-Serna to submit a drawing showing where her tables and chairs would be located so that council could consider her request for a permit during the next regular council meeting slated on June 6 at 7:30 p.m. in the community building at Lookout Park.
In other business Wednesday, city engineer Joe Tucker recommended entering into an agreement with Transystems Real Estate Consulting Inc. of Cleveland for right of way acquisition services related to the city's Seventh, Pike and Greene intersection upgrade project.
Cost of the services would not exceed $49,785.
Tucker also recommended entering into an agreement with consultant Jennings R. Bradford of Hurricane, W.Va., for professional services related to the preparation of the project development process for right of way acquisition services for the same intersection project at a cost of $6,425.
The committee members agreed to move forward with Tucker's recommendations.