Portsmouth Ordinance Chapter 4 Section 4.101 adopts the U.S. Food and Drug Administration 2009 Food Code, which prohibits live animals from the premises of a food establishment (6-501.115) with some exceptions such as service animals. However, Section 4.102 allows a food service establishment to apply to the regulatory authority for a variance (6-501.115) from the rules for Outdoor Dining Areas on an annual basis, provided alternatives put into place will be equally protective of the public’s health, and ensures that the objective or intent of the rule is accomplished.
The decision to allow dogs in Outdoor Dining Areas requires careful consideration. Many patrons do not wish to share dining space with dogs for various reasons which include: allergic reactions, fear, or some find it distasteful. It can also be difficult to predict how dogs may react to unfamiliar persons or other dogs, particularly in a food environment. Persons can be and have been bitten due to dog fights that have occurred in Outdoor Dining Areas. Additionally, dogs carry many diseases and pests transmissible to humans and other dogs. Many restaurant owners simply don’t want the liability or the additional duties required of their staff to accommodate dogs. However, establishments that wish to offer this type of experience to their patrons may apply for a variance in compliance with the following minimum conditions. It continues to be the responsibility of Licensees/Restaurant Owners to ensure the health and safety of all staff and patrons at all times, including above and beyond these conditions as necessary.
An establishment that elects to allow dogs at Outdoor Dining Areas must adhere to the following variance conditions:
- The variance is for dogs only and shall not apply to any other animals or pets.
- No food or drinks may be prepared, and no storage of food or ice is allowed in the Outdoor Dining Area.
- Service Dogs have priority at all times. If necessary or requested by the owner of a service dog, any and all other dogs must clear the area that is affecting or interfering with the service dog.
- Dogs must not impede any person with disabilities.
- Dogs may not be within seven (7) feet of any entrances/exits to any buildings.
- A sign easily visible to the public, shall be posted at the entrances to Outdoor Dining Areas notifying all patrons that “Dogs Are Allowed in This Outdoor Dining Area”. Additionally, “No Dogs, Except Service Dogs Allowed” signs shall be posted at the entrance to the interior of the restaurant. Establishment owners are responsible for posting and maintaining signage at all times throughout the terms of the variance granted.
- A sign or signs informing employees of their responsibilities and cleaning/incident procedures shall be posted on the premises in a manner conspicuous to staff.
Outdoor Dining Area Design
- Outdoor Dining Area surfaces shall be constructed of materials that are smooth, durable, non-absorbent and easily cleanable. No sand, dirt, sawdust or like materials shall be approved.
- All table and chair surfaces in the Outdoor Dining Area shall be non-porous and easily cleanable.
- All dog waste shall be placed in a fly-tight, cleanable container without holes or openings, used only for dog waste, located within the Outdoor Dining Area and disposed of outside of the food establishment in an appropriately covered waste receptacle. At no time shall animal waste be brought into the facility for storage or disposal.
- Separate cleaning equipment (Mop, Bucket & Supplies) shall be used to clean the Outdoor Dining Area, and shall be stored separate from the mop, bucket, and supplies used for indoor cleaning, and away from kitchen, food prep and food storage areas. Equipment may not be stored outdoors. Mop water shall be discarded in a toilet, NOT the shared kitchen mop sink, a storm drain, or onto the ground.
- Dog access is only allowed through exterior patio entrance(s). Dogs shall not pass through an indoor area of a restaurant to access the Outdoor Dining Area.
Operations and Cleaning
- The Outdoor Dining Area shall be swept clean at the close of each day of operation, and debris swept up, collected and discarded properly, not swept onto the street or adjacent areas. After food business employees perform routine daily cleaning and maintenance of these areas, they are required to properly wash their hands in the bathroom hand sinks and again at proper area hand sinks as they return to food handling/storage/service areas.
- The Outdoor Dining Area must be continuously maintained free of visible dog hair, dog dander, and other dog-related waste or debris. Fecal, vomit, urine or blood incidents must be cleaned and sanitized immediately by the party having control over the dog, or another person not involved in the preparation and/or service of food, using animal-safe and environmentally-safe cleaners provided by the Establishment.
- Establishment owners are required to train employees what to do when they are concerned about a dog’s behavior or condition of health.
- Employees shall not touch, pet, or otherwise handle any dog while serving food or beverages or handling tableware. If incidental contact with a dog occurs, the employee shall immediately wash their hands before proceeding to any other task.
- Dog owners must comply with all Portsmouth Ordinances as they refer to pet canines. All Dogs must be vaccinated against rabies and maintain current vaccination status per NH RS 436:100, and wear current registration/ license/rabies vaccination tags on their collar.
- All dogs shall wear a collar or harness, (or be in an enclosed pet carrier) at all times and shall be kept on a short leash and remain in the control of the customer at all times. Dogs shall be confined to the immediate Outdoor Dining Area where the customer having control of the dog is seated.
- Dogs may not present a tripping hazard.
- Dogs shall remain on the ground at all times when in the Outdoor Dining Area and not be allowed on any seat, chair, patron’s lap, table, countertop, or similar surface in the Outdoor Dining Area. Dogs shall not be allowed to drool on such surfaces.
- Dogs shall not be given any food, even dog food, while in the Outdoor Dining Area, but may be given water in a single serve, disposable container in compliance with local ordinances. Dogs shall not be allowed to have any contact with reusable utensils, serving dishes, tableware, or other food service equipment used in the preparation or service of food.
- Dogs shall not disturb other guests in the outdoor dining area.
- All incidents pertaining to dogs such as fights, human bites, bites of other dogs, suspected animal abuse or neglect, shall be reported to the Portsmouth Police Department, 603-436-2145.
A separate, seasonal variance shall be issued upon approval of a variance request. Approval of a variance does not guarantee of future approvals. A variance shall be issued after the variance request has been received and approved, the Outdoor Dining Area and ancillary areas (such as storage of cleaning materials and equipment, trash can placement) have been inspected, and all areas are found in compliance with the variance requirements. A variance is non-transferrable, and will be suspended or revoked if the Establishment’s food service license is suspended or revoked.
The variance shall be valid from April 15 – November 15. However, the variance may be revoked at any time if complaints or inspections find the Outdoor Dining Area is not compliant with the approved variance terms or issues arise that are not addressed within the variance. If at any time an illness or injury arises due the presence of dogs in an Outdoor Dining Area with an approved variance, the variance will be deemed insufficient to protect public health and be suspended immediately.
Establishments that allow dogs or other live animals into the establishment or in outdoor dining areas without a valid variance, or establishments allowing dogs or other live animals onto the premises after a variance has been suspended or revoked, may be subject to further legal action including fees, fines and suspension of their food service permit.
Outdoor Dining on City Property - Sidewalk Cafe Permit Holders
The Licensee of Establishments on City property (holding an “Service Area Agreement”), must have express permission from the City Legal Department to apply for a variance and shall at all times during the terms of this variance, maintain and provide general liability insurance that includes dogs on the premises, and alcohol service liability insurance coverage of not less than $1,000,000, covering all activities under the Service Area Agreement and the Variance Requirements for Allowing Dogs in Outdoor Dining Areas that is granted. The City shall be named as an additional insured on all policies. All such policies shall be approved by the City Legal Department in advance of the Licensee’s occupancy of the area, and in advance of variance approval, and shall meet all terms, conditions and specifications as the Legal and Health Departments may elect to set forth.