O.R.A: Detailed Information and Background

Why utilize Act 812 "Entertainment Districts" to create an Outdoor Refreshment Area in Fayetteville?

Originally, the intent behind the creation of an Outdoor Refreshment Area was the recognition it could positively contribute to the activity and economic vitality of Downtown Fayetteville. We want to enable event organizers the choice to allow patrons to consume alcohol outside of a beer garden and give businesses an opportunity to make sales to attendees for events that did not want to utilize an ABC Temporary Picnic Permit to source alcohol. We also want to test a regularly scheduled open consumption district and expansion of sidewalk cafés to explore ways to bring unique offerings to both residents and tourists. While these positive attributes still hold true, the coronavirus pandemic has changed staff’s “why” behind the need to utilize this tool.

Municipalities across the state have successfully implemented these districts, including Little Rock and El Dorado. Furthermore, dozens of municipalities across the country have ordinances that allow for various forms of public alcohol consumption. To view staff’s presentation on research of other cities’ Public Consumption Ordinances, please watch the October 8, 2019 City Council Agenda Session Presentation. (Presentation starts at the 57 minute mark).

Outdoor Refreshment Area In-Depth Presentation

The Department of Economic Vitality has recorded an in-depth that explores all facets of the proposed Outdoor Refreshment Area. You can view the presentation by clicking here.

COVID-19 and utilizing Act 812 as a tool to help restaurants, bars, and entertainment venues during prolonged social distancing measures

The pandemic has disproportionately impacted certain industry sectors, restaurants, bars, and performance venues are included in that category. Through the various necessary public health directives, private clubs were not given a chance to pivot or adapt through to-go sales in Arkansas. Given the prolonged impact to sales the pandemic has had and will continue to have due to reduced occupancy and consumer concerns, Act 812 can be a tool to help these businesses increase sales during this time.

The expansion of sidewalk cafés can increase occupancy for these businesses.Open air dining can allow for increased social distancing measures. Currently, Arkansas state law prohibits alcohol being served outdoors without fencing around the tables. This ordinance can eliminate that requirement for some businesses.

The regularly scheduled open consumption district can enable an increase in sales for these establishments. To-go sales will not only provide an additional revenue source for businesses, but also enable more social distancing by giving patrons the ability to consume alcohol while walking down sidewalks in a smaller area within the Outdoor Refreshment Area Boundary.

A great deal of uncertainty also exists for events. Traditional beer gardens do the very thing people cannot do right now - congregate in a small area. As events look to adapt and overcome these challenges, Act 812 can provide a new tool for them during a time of social distancing.

What does the new Outdoor Refreshment Area (O.R.A.) ordinance do?

Sidewalk Cafés:

Businesses within the O.R.A. boundary are able to apply for a Sidewalk Café permit to use sidewalks for outdoor seating and are not required to create a fence or barrier around their seating. Alcohol is allowed to be consumed at these sidewalk cafés and regular glassware can be used. Designated cups and physical identifiers are not required for sidewalk cafés.

The sidewalk café component has started. Businesses who hold a permit to serve alcohol within the Outdoor Refreshment Area boundary can now allow their patron’s to consume and possess alcohol at a sidewalk café without a physical barrier around it. Businesses who wish to utilize this aspect of the O.R.A can apply for a sidewalk café permit through Development Services.

Businesses located inside and outside of the Outdoor Refreshment Area Boundary who wish to expand outdoor dining service due to the pandemic can utilize a temporary rule change from the Arkansas Alcoholic Beverage Control (ABC) which allows for alcohol to be served in an expanded outdoor service area. To utilize the expanded outdoor service rule change, businesses can apply through Development Services utilizing the sidewalk café permit process as well. Following approval from the City, businesses are required to submit their plan and approved application from the City to the Arkansas Alcoholic Beverage Control division for their final review and approval.

To schedule a pre-application meeting for either or both of these items, please contact Becca Bertram the Operations & Customer Relations Manager or Andrew Harrison, the Development Coordinator for the City’s Development Services division.

Special Events:

Event Organizers have the option to request that event attendees not be required to limit their consumption of alcohol to the confines of a designated consumption area or "beer garden." If approved, event attendees would be able to consume alcohol outdoors anywhere within the event area (such as a closed street). Event Organizers have the option to allow businesses who serve alcohol and are located within the event area the opportunity to serve alcohol to event attendees, which could then be consumed within the event area. Furthermore, Event Organizers can partner with businesses within the event area so that businesses could be the sole source of alcohol for event attendees. Designated cups and physical identifiers would be required. Completion of a Notice of Proposed Closure for a O.R.A. event form would also be required. All special event applications would go through the same City review process, including the Fayetteville Police Department.

Given the charitable requirements of picnic permits, and to ensure event organizers can manage all aspects of their events, the choice should be given to the event organizer regarding open consumption in their event area and allowing surrounding businesses to sell drinks to go that could be consumed in the event area.

Limited Open Consumption District Pilot Programs:

A regularly scheduled open consumption district pilot program can be defined as allowing visitors or patrons to be able to purchase alcohol from a participating business and consume their beverage while walking down the sidewalks in a smaller defined area within the Outdoor Refreshment Area. Streets would not be required to be closed. This program would be piloted by City staff who have a series of requirements to meet in order to begin such a program:

The pilot program could take place until the sunset provision of January 30, 2021 (the sunset date will likely need to be extended. No long-term decisions pertaining to public consumption should be made until an assessment can be done to review the pilot program under conditions of “full capacity” with anchor institutions and downtown activity.)
Social distancing guidelines would be adhered to for the health of the public and businesses.
Before such a program would be activated, robust collaboration with businesses of all types within the chosen area, as well as anchor institutions such as the Walton Arts Center, Theatre Squared, the Fayetteville Public Library, and others shall be done.
21 days prior to the pilot program, businesses must be notified and signatures of approval obtained;
City staff will collaborate with the Fayetteville Police Department, businesses of all types, as well as anchor institutions to define an area for the pilot program.
City Council Members have the opportunity to appeal the pilot program and must be notified in advance;
Rules of the pilot program must be developed and distributed;
Boundary signage, informational materials will be in place.
Recycling/composting receptacles will be installed and utilized. The City will conduct ongoing assessments of the need for these receptacles. It is the Administration’s intent to be proactive as well as responsive to ensure the beauty of downtown is not negatively impacted nor are property owners impacted in a negative manner.
City will coordinate with the Fayetteville Police Department to ensure safety;
Designated cups and visible identifiers shall be used;
Public education will begin in advance of the pilot program to ensure awareness of the rules and public safety measures.

When will the City Council consider the Outdoor Refreshment Area ordinance and phasing plan?

The Outdoor Refreshment Area ordinance was adopted during the June 4, 2020 City Council meeting.

View the Outdoor Refreshment Area ordinance and Phasing Plan resolution here:

Outdoor Refreshment Area Ordinance Packet

Outdoor Refreshment Area Phasing Plan Resolution Packet

Phases of implementation:

The City recognizes the value of continuing to take a slow and steady approach to public alcohol consumption in Fayetteville. The Phasing Plan paces the rollout of different aspects of what is allowed within the O.R.A. This allows City staff and local businesses to conduct assessments of how things are going at each stage and make any changes if needed. City staff will also report to City Council at the end of each phase. Phasing allows Fayetteville to test new things and prove concepts to residents, businesses, and other stakeholders.

Click here to review the proposed phasing plan.

Project Background & Progression

What is Act 812?

Act 812 was passed by the Arkansas legislature in 2019. It allows cities to create temporary or permanent designated “entertainment districts” where the cities can create their own rules for public alcohol consumption. In order to utilize this law, cities must first designate an area as an “entertainment district.”

Click here to view Act 812

Fayetteville Entertainment District Background

At the October 15th meeting, the Fayetteville City Council granted staff’s request to table Item 2019-0452- Entertainment District Ordinance indefinitely. Staff requested the item be tabled without a set return date to allow for non-pressured time to work with local stakeholders. The original ordinance, introduced by staff at the August 20th meeting, aimed to utilize Act 812 to accomplish three goals:

Give businesses the option to have sidewalk cafés within City of Fayetteville right-of-way, in front of their business, where they could serve alcohol without building a physical barrier. Businesses would still be required to complete the sidewalk café permit in order to utilize a portion of the sidewalk in this manner.

Enable event organizers the option to allow open containers of alcohol to be consumed within closed streets, removing the requirement to have “beer gardens” or designated consumption areas. Event organizers would still be required to complete the special event permit, which is reviewed by city staff, including the Fayetteville Parking Division, Fayetteville Police Department, Fayetteville Fire Department, and ultimately the mayor.

Enable businesses, within an area of an approved special event permit requiring a street closure, the option to sell alcohol to event attendees who could then leave the establishment and consume the beverage within the event area. Businesses within a designated special event permit area would not be required to participate by selling alcohol for public consumption.

Working Together to Create a New Ordinance

In the months since the City Council tabled the entertainment district ordinance, staff has conducted expanded research on the topic of public alcohol consumption—exploring best practices from communities across the country. Staff has also engaged the business community, downtown stakeholders such as employers, and anchor institutions such as the Fayetteville Public Library, Theatre Squared, and the Walton Arts Center to explore their concerns and address them through possible mitigation strategies.

Multiple focus group sessions were held in November of 2019. You can view the findings from the focus group sessions here.

Staff also attended numerous Dickson Street Merchant meetings to maintain a bright line of communication with the stakeholders along the road and will continue to do so in the future. City staff also coordinated a great deal with the Fayetteville Police Department throughout the entire process, and their attendance, involvement, and expertise helped not only shape the ordinance included in this packet, but also helped mitigate many of the concerns held by local businesses. A key tenant of this ordinance is the understanding that there is a major difference between a rule and a law.

Following the draft of the ordinance and phasing plan being completed, staff presented the ordinance at the Dickson Street Merchants meeting on March 9, 2020. However, four days later our work on the issue came to an abrupt halt given the public health emergency from COVID-19 pandemic. In May, after weeks of work on the economic response to COVID-19, staff began to finalize the details of the ordinance and reengage partners. Given the pandemic, the phasing plan had to be altered. On May 11, 2020 City staff was able to present to the Dickson Street Merchants Association, the presentation was recorded and distributed to the organization’s membership.

What’s Changed from the Original Ordinance?

Enhanced Notification System: Event sponsors who wish to host a special event with specific approval for public consumption outside of a beer garden will have to complete the Notice of Proposed Closure for an Outdoor Refreshment Area event form. This new system will be developed by City staff and list the specific names of businesses within the closed area. The form will also ask if businesses plan on participating in the event by selling alcohol to attendees (if applicable- event organizers will have the choice to request) and collect other information that will be needed by both the event organizer and the Fayetteville Police Department. This new process will ensure each business is contacted in the closed area. City staff will also keep an updated contact list of businesses within the Outdoor Refreshment Area for use by event attendees. Work to begin collecting businesses preferred contact information will begin if the City Council chooses to adopt the ordinance.

Phasing Plan: At the recommendation of numerous businesses and stakeholders, a phasing plan has been developed to utilize 2020 to pilot various aspects of what Act 812 allows.

Laws on attendee and customer behavior aimed at protecting businesses: Participating businesses do have a great deal of responsibility when it comes to all aspects of the Outdoor Refreshment Area. While those responsibilities have not changed, language was added in section (D) Conditions for consumption of alcoholic beverages in public outdoor areas which reiterates and outlines the responsibilities and duties of customers and patrons of the district.

The premise of these additions allows for the Fayetteville Police Department to enforce customer violations of the rules of the district, which are in place to protect and increase safety of all businesses, their staff, and attendees. As examples: it would be a violation of City law for a customer to enter a bar with an open container of alcohol, give their beverage to another event attendee (regardless of age), create or distribute fraudulent visible identifiers, or remove alcohol from an establishment that is not participating in open consumption.

Cups and visible identifiers: Rather than designate that cups be branded with the specific business logo, staff is recommending they be branded with a logo of the district. The cups may also include a list of rules on them for attendees. The City, or in the future the designated entity assigned with the management of the district, will order the cups and visible identifiers. They will also work with the Fayetteville Police Department to establish a safe flow of these products to the businesses in order to reduce risk of duplication or fraudulent activity. Staff is also recommending that businesses be permitted to charge attendees for the designated cup to assist with covering the increased cost of participating in the program.

Limited Open Consumption District Pilot Program: This was added to allow the City to explore if open consumption with open streets is right for certain areas of Downtown Fayetteville.

Transportation Committee review of the Outdoor Refreshment Area Ordinance and Phasing Plan

On May 12, 2020 at the request of the Chairman, City staff presented the proposed ordinance to the Transportation Committee for the comments, review, and amendments. The Transportation Committee discussed how to make our City Streets more comfortable for pedestrian and bikes as well as enabling businesses to expand into a street or parking lot for potentially safer dining during the pandemic. The Outdoor Refreshment Area was discussed in how the City might integrate these two ideas. The Transportation Committee recommended the City Council adopt the Outdoor Refreshment Area ordinance with three amendments. The amendments from the Transportation Committee are shown below:

The committee recommended approval of the attached ordinance to the City Council with three amendments:

Amendment 1: Loosening of any restrictions to the limited open container consumption days of the week rather than only Sunday-Wednesday.
Amendment 2: Allowing parking lots, private parking lots, and right of way components such as parallel parking and travel lanes to be used as sidewalk café space or auxiliary parking when vehicular traffic patterns have been amended temporarily or otherwise.
Amendment 3: Include an emergency clause which would enable the ordinance to become law immediately after City Council passage.

The presentation can be seen here.