SR 10-25-2022 11A
City Council
Report
City Council Meeting: October 25, 2022
Agenda Item: 11.A
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To: Mayor and City Council
From: Rick Valte, Public Works Director, Public Works
Subject: Santa Monica Permanent Parklet Program
Recommended Action
Staff recommends that the Council review the additional information City staff included
in the staff report concerning wastewater fees, outdoor heaters, canopies, and parklet
size under the Parklet Program and provide comments.
Executive Summary
Following a two-year Santa Monica Outdoors Pilot Program (“Pilot Program”) for
parklets on public streets, implemented to support local businesses through the COVID-
19 pandemic, on June 28, 2022, the City Council adopted a comprehensive permanent
parklet program (“Parklet Program”) to activate public spaces for community enjoyment
and economic recovery while also maintaining public safety and recovering
maintenance, administration, and improvement costs.
In response to Council direction on September 27, 2022, that staff return with additional
information concerning certain aspects of the Parklet Program, this report provides
additional information about the following four characteristics of the Parklet Program:
• Wastewater fees (applicable only if new seats are added for outdoor dining in
addition to seats originally approved by City for operation of the eating
establishment)
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• Outdoor heaters (State law prohibits them under canopies and tents and must be
placed 5 feet from canopies or tents)
• Canopies or tents will require full review and approval by Building and Safety to
account for wind load and required foundation. Pursuant to California Fire Code
603.4, propane heaters are prohibited inside of tents, canopies and membrane
structures regardless of flame rating.
• Parklet size limitations (industry standard of 2 parking space maximum)
The Parklet Program requirements, and its fees and charges to recover maintenance,
administration, and improvement costs, became effective September 30, 2022,
synchronous with the expiration of the pilot program permits and associated license
agreements that supported the Pilot Program.
Background
The Pilot program permits, and associated license agreements, for use of the public
right-of-way for outdoor dining expired on September 30, 2022, for approximately 70
parklets located in the City’s Downtown and neighborhood commercial corridors. The
comprehensive Parklet Program that City Council adopted on June 28, 2022, includes
design requirements for parklets, imposition of fees and charges to defray the City’s
costs in administering the program and use of public property, and guidelines for the
construction of accessible parklets to comply with the Americans with Disabilities Act
(“ADA”). (Attachment A)
Under the Parklet Program, eligible businesses operating parklets under the Pilot
Program (SMMC Chapter 6.40) who wish to continue operating their parklet, may
receive provisional permits and enter into licensing agreements with the City provided
that such businesses:
(1) Submitted a completed application in compliance of SMMC Chapter 6.42 by
September 15, 2022; and
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(2) Transition to a non-provisional parklet permit no later than February 28, 2023, as
set forth in the administrative regulations.
If businesses wish to continue providing outdoor dining services in the public right-of-
way, they also have the option to participate in the sidewalk dining program that existed
prior to the pandemic pursuant to SMMC Section 9.31.200 “Outdoor Dining and
Seating”.
Discussion
The Pilot Program has transitioned parklets from a City-managed pilot located on Main
Street starting in 2015, to a lifeline for struggling businesses from 2020 to 2022 during
the COVID-19 pandemic, to now becoming a popular feature of Santa Monica’s outdoor
lifestyle. The Parklet Program focuses on creating a sustainable policy and fee
framework to support local businesses, maintain public safety, and recover City
maintenance and improvement costs. The Parklet Program also aims to better align the
proliferation of parklets with adopted City policy for enhanced pedestrian experiences in
the City’s commercial areas.
On September 27, 2022, Council requested additional information about some aspects
of the City’s administration of the Parklet Program, as a few businesses raised concerns
about the program’s fees, standards, and guidelines for the construction of parklets on
the City’s public right-of-way. These concerns include:
• Wastewater Fees. The City imposes a one-time fee for net new seats that are
added for outdoor dining, that are in addition to seats previously approved by City
for operation of an eating establishment. This is a long-established practice
(since 1968) and provides for unforeseen capacity upgrades and maintenance of
Santa Monica’s and Los Angeles’ sewer infrastructure. Concerns have been
expressed that the cost for adding net new seats to a restaurant location are too
high. The City’s wastewater capital facility fees were determined to be
reasonable per the Water and Wastewater Capital Facility Fee Study that was
adopted by City Council on November 24, 2020, under Resolution No. 11308
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entitled “A Resolution of the City Council of the City of Sana Monica Revising the
Wastewater Capital Facility Fee” (“Resolution”).
• Outdoor Heaters. State law prohibits the use of propane heaters beneath
overhead canopies or umbrellas. Concerns were raised about this prohibition
because outdoor heaters were previously allowed under canopies during the
pandemic. An interpretation of the California Fire Code language was made in
early 2020, allowing propane heaters under tents with certain conditions. In
December of 2020, the State Fire Marshal issued an official interpretation,
clarifying that the California Fire Code prohibits the use of propane heaters under
all tents, canopies and membrane structures. (Attachment B) As a result, Santa
Monica modified its regulations to comply with the current Fire Code.
• Parklet Size Limitation. Parklets are restricted to 2 parking spaces maximum,
which is a common standard across many jurisdictions. Concerns were
expressed by businesses who built much larger parklets during the emergency
orders. Staff estimates that there are approximately 8 parklets out of nearly 70
that utilize more than 2 parking spaces.
This report provides additional detail on the three items listed above.
Wastewater Fee Structure
Wastewater Capital Facility (One-time)
Restaurant - Sit Down (Full Service) $1,358.49 per seat
Restaurant - Sit Down (Fast Food) $1,132.08 per seat
Note that the wastewater fee is a one-time fee that carries over even if operators change (Water Resources tracks
payment of the one-time fee), can be offset with existing seating, and is offset by credit for fees already paid for
existing sidewalk dining. Fees are subject to change annually.
The City Council has consistently taken a strategic approach to setting future water and
wastewater rates that balances a concern for keeping costs affordable to our community
while adequately investing in long-term water quality, reliability, and sustainability. As a
recognized leader for its environmental and water conservation policies, the City has
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championed a variety of initiatives designed to provide a sustainable community to its
residents and businesses. In 2020, City Council adopted the five-year water and
wastewater rate structure and capital facility fee structure aimed to maintain high-
quality, reliable water and wastewater collection services, reduce the City’s reliance on
imported water supplies, and maintain adequate reserve levels to ensure continuity of
water and wastewater system operations.
Water and wastewater capital facility fees include “connection fees” and “capacity
charges.” California Government Code Section 66013 defines a “capacity charge” as a
one-time “charge for public facilities in existence at the time a charge is imposed or
charges for new public facilities to be acquired or constructed in the future that are of
proportional benefit to the person or property being charged, including supply or
capacity contracts for rights or entitlements, real property interests, and entitlements
and other rights of the local agency involving capital expense relating to its use of
existing or new public facilities.” (emphasis added.) The imposition of a capacity charge
on customers increasing their service requirements on the water and/or wastewater
systems ensures that these customers pay their fair share of existing utility asset costs,
plus the costs of new facilities needed to serve them. The capacity charge is calculated
based on the standards established by the American Water Works Association and
considers projected customer growth, value of existing assets, and value of planned
assets. As a result, future customers requiring additional capacity or service would enter
as equal participants, along with current customers, regarding their financial
commitment and obligations to the utilities.
The capacity charge was determined to be reasonable per the Water and Wastewater
Capital Facility Fee Study that was adopted by City Council in 2020 under the
Resolution referenced above. The wastewater capital facility fee proceeds are used to
fund capital investments in the wastewater system, which include unforeseen capacity
expansion of the wastewater collection system or future design and construction of
planned facilities and upgrades to maintain system reliability. The wastewater capital
facility fees are applicable for outdoor dining programs based on the following:
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• The City’s assessment of capital facility fees to outdoor dining operators that: (1)
seek a City permit and license to operate outdoor dining in the public right-of-
way; and (2) propose to increase the number of restaurant seats for outdoor
dining is consistent with California Government Code section 66013, industry
best practice, the City’s Resolution that sets wastewater fees, California case
law, and the City’s past practice.
• As stated in the Resolution, the last paragraph of Section 1 provides that,
“[w]henever a user of the sewer system causes a significant increase of either
the flow or strength of sewage discharged to the system, even though there may
be no change in land use, an additional Wastewater Capital Facility may be
imposed.” Based on studies conducted by and guidelines set by the City of Los
Angeles, the wastewater strength from restaurants are typically 3-4 times higher
than residential wastewater. The higher wastewater strength from restaurants
taxes the wastewater infrastructure significantly more as the higher strength
requires more treatment capacity in comparison to residential wastewater (lower
strength) for the same volume of wastewater treated.
• As the outdoor dining program serves as an extension of the existing restaurant
that is a part of a building, the net increase in total number of seats added
through the program would result in an increase of wastewater generated per
seat added and the resulting wastewater is discharged through the building’s
sewer lateral and into the City’s sewer system. The allocation of capacity for the
additional wastewater flows from the building represents the amount of capacity
allowable to the customer for system engineering and planning purposes,
regardless of how much of the capacity is actually used by the customer as the
City has no authority over how the business operates and when wastewater
flows are generated.
• The wastewater capital facility fee paid for by the customer is permanent
regardless of if the restaurant seat is indoors or outdoors. If the customer no
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longer operates the outside portion (e.g., parklet) of the seats, the customer still
owns the capacity and could move the seats inside, to the sidewalk, and/or to a
private patio as long as it complies with all other codes and regulations (e.g., fire
code on capacity).
• Wastewater capital facility fees have historically been assessed to restaurants
based on their footprint, operations (e.g., full service versus fast food), and/or
number of restaurant seats (indoor and outdoor). As the City of Santa Monica is
a contracting agency to the City of Los Angeles’ Amalgamated System, it must
follow the City of Los Angeles’ methodology and sewerage generation factors in
charging wastewater capital facility fees. The City of Los Angeles’ sewerage
generation factors and sewerage facility charge (or capital facility fee) were first
established in 1968 and 1970, respectively.
Under the City’s outdoor dining program, as a condition for using the City’s public right-
of-way for outdoor dining (e.g., parklets and sidewalk dining), the City requires that
outdoor dining operators comply with standards and licensing requirements that were
adopted by the City to maintain public safety and recover maintenance, administration,
and improvement costs. Under this program, for those outdoor dining operators that
seek to increase the seats, in addition to the seats that the City originally approved for
their eating establishments, thereby triggering capacity fees, the City is considering a
payment plan that would be included in their license agreements for the payment of
capacity fees. To qualify for a payment plan, an outdoor dining operator must:
• Pay the City of Los Angeles fees that are charged to the City of Santa Monica for
treatment of wastewater (roughly 20% of the total capacity fee for restaurants)
prior to the City’s issuance of a license agreement.
• Amortize payments of the remaining capacity fee (Santa Monica’s portion) over a
2-year period to be paid in monthly installments. A two-year payment plan
would be consistent with SMMC Section 6.42.020(a), which provides that parklet
permits are valid for an initial period not to exceed two years and may be
renewed for successive two-year periods.
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• Should the 2-year payment period pose a hardship on the customer, the
customer could submit a hardship waiver and have the option to pay up to a 5-
year period based on the hardship demonstrated. The 5-year payment is the
maximum pay period as it aligns with the City’s wastewater rate study cycle and
infrastructure planning periods that are completed on 5-year cycles. A payment
period beyond 5 years would impact wastewater rates.
• Should a parklet operator, or City, terminate the license agreement prior to the 2-
year license term, no capacity fees will be owed from the date of termination.
The payment plan option being offered by the City is similar to the practice by
neighboring cities, including Culver City. Culver City’s outdoor dining program requires
the City of Los Angeles’ wastewater capital facility fee to be paid up front and offers a
payment plan for up to 12 months for the remaining portion of the wastewater fee. The
City of Los Angeles’ outdoor dining program requires all wastewater fees (sewerage
facility charge) to be paid all up front.
Of the 73 applicants who have applied for a parklet permit under the Parklet Program
(SMMC Chapter 6.42), only five businesses have informed the City that they will add net
new seats as part of their parklet operations. This equates to a total of 94 net new
seats. Assuming the net new seats are for full-service ($1,358.49 per seat), this equates
to a one-time fee of approximately $128,000 across multiple businesses. It should be
noted that the number of net new seats on the application forms are self-reported by
applicants and have not yet been verified by City staff. Therefore, it is possible that the
number of overall net new seats for eating establishments may increase as Public
Works conducts field inspections. Additionally, parklet operators should be aware that
increasing occupancy or seating area may trigger additional code regulations or impacts
that would require Building and Safety review, such as potentially affecting accessibility
requirements (e.g., compliant path dimensions) and requiring increased restroom
plumbing fixtures.
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Use of Outdoor Heaters
During the 2020 era of the pandemic when the Pilot Program was quickly implemented,
overhead canopies and outdoor heaters were permitted by the City’s Fire Department,
which was consistent with many jurisdictions across California. Subsequently, in
December 2020 Cal Fire issued an official interpretation of California Fire Code 603.4 to
clarify that propane heaters are prohibited inside of tents, canopies and membrane
structures regardless of flame rating (CCR Title 19, Division 1 §332.(a) Flame
Resistance) (Attachment B). Fire staff and the parklet team began messaging this
change in regulation as early as January 2021 and updated the “Do’s and Don’ts” guide
in September 2021 to reflect the prohibition on combustible (propane) heaters inside
outdoor covered areas. Due to limited staff resources, it has been challenging to
enforce this requirement.
Current regulations for propane heaters require an annual hazard control permit from
the Fire Department. Permit holders are allowed a maximum of one additional tank to
be stored without additional State reporting requirements. Consistent with State law,
propane heaters are not permitted inside structures and must be placed at least 5 feet
away from any tent, canopy or membrane structure. Propane heaters must also
maintain a 6 feet clearance, both vertically and horizontally, from any street tree.
Canopies
• Solid roofs and overhead trellises are discouraged in Parklets due to the added
complexity in applicable regulations and potential impacts to City infrastructure.
Erecting a roofed structure requires a building permit, which involves securing a
licensed structural engineer to provide structural design and foundation details of
how structure will be attached to the right-of-way. Prevalent modification or
disturbance the right-of-way is not a preferred option for Public Works.
• Parklets with overhead canopies/tents must have plans prepared by a licensed
professional and require full review and approval by Building and Safety to
account for wind load and required foundation.
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• Umbrellas are permitted and must be between 7 and 10 feet tall and cannot
extend past the perimeter of the parklet or obstruct visibility into the parklet. For
example, they must not be angled or bent in a way that obstructs visibility into the
parklet. Umbrellas cannot cover or obstruct any street tree’s branches or leaves
from being exposed to sunlight or rain. No part of a street tree should be
compromised by the use of umbrellas or any elements of a parklet.
Parklet Size
The current parklet program allows a maximum of two parking spaces (approximately
320 square feet) per business. Standardizing parklet size citywide is more cost-efficient
and manageable for City staff across many departments, including management of
Public Works projects, Department of Transportation capital projects, and considers the
operations of neighboring businesses that are not parklet operators. The two-space
maximum is a standard across many jurisdictions (but not all), as demonstrated in the
below table:
Municipality # of Spaces Permitted
San Francisco 2
Long Beach 2
Seattle 2
West Hollywood 3
Culver City 3
Los Angeles 2
The two-space maximum is intended to facilitate various modes of transportation and
better accommodates the various demands for curb space such as:
• Managing and maintaining reliable transit services, as private vehicles frequently
block bus stops and impact transit service when proximate curb space is
otherwise unavailable;
• Deliveries or curbside pick-up and drop-off at designated loading zones for
businesses, which often results in illegal and unsafe parking when curb space is
unavailable;
• Safe path of travel for bicyclists or scooter users, who too often encounter
vehicles blocking the bike lane; and
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• More easily allows for City maintenance and public works projects within the
public right-of-way, such as tree trimming, utility improvements, sidewalk repair,
compliance with ADA requirements, and other ongoing capital improvement
projects.
Moreover, a two-parking space limitation eliminates, or greatly reduces, the burden on
City staff time necessary to resolve neighbor disputes and complaints concerning the
parklet operators’ use of the public-right-of way in front of neighboring businesses,
which frequently occurred during the temporary Pilot Program. The permanent parklet
program is staffed only by a .5 FTE Public Works inspector, which is insufficient to
address the volume of complaints and dispute mediation that is generated by parklets
that reside on neighboring storefront spaces, in addition to other customer service
requests such as maintenance, site cleaning, noise, and parklet application
management.
If a parklet operator’s frontage space is not directly in front of the parking space, or if
more than half of such a space is in front of a neighboring tenant or property owner
space, the parklet operator is required to obtain written consent from the neighboring
tenant, or property owner, for approval of their parklet application. If the neighboring
ground floor space is vacant, the parklet operator is required to obtain written consent
from the property owner or, owner’s agent, to operate their parklet on the public-right-of-
way in front of a neighboring tenant. This is similar to a process used by the City of San
Francisco in administering their parklet program for neighbor consent. If a new
neighboring tenant, or property owner, moves in after a parklet has been approved, the
new neighboring tenant or property owner will have an opportunity to deny the use of
the public-right-way space during the renewal period, which will occur every two years
pursuant to SMMC Section 6.42.020(a).
Currently, approximately 8 parklets out of a total 70 parklets exceed the two-space
maximum.
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Financial Impacts and Budget Actions
There is no immediate financial impact or budget action necessary as a result of the
recommended action.
Prepared By: Peter James, Chief Operations Officer
Approved
Forwarded to Council
Attachments:
A. Adopting SMMC Chapter 6.42 Establishing a Permanent Parklet Program (Web
Link)
B. CAL FIRE Official Interpretation -December 2020
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CAL FIRE - Office of the State Fire Marshal
Information Bulletin 20-007
Issued: December 15, 2020
Use of Heaters in Temporary Tents & Awnings
The use of tents and membrane structures have become prevalent within the State Blueprint
for a Safer Economy for outdoor dining, beverage service, and events when such businesses
are required to operate outdoors. CAL FIRE - Office of the State Fire Marshal (OSFM)
encourages expedited approval of designated facilities and operations but reminds everyone
that the California Code of Regulations Title 19 and Title 24 continue to remain in effect.
Given the critical nature of the COVID-19 pandemic outbreak, OSFM is providing expedited
certification of tents, permitting tent and/or fabric manufacturers to field label tents after
contacting the Office of the State Fire Marshal, and permitting tents to be field treated by a
State Fire Marshal certified flame-retardant General Applicator.
The OSFM provides statewide fire prevention regulations for the use of tents, awnings, or other
fabric enclosures. Below are some important elements of the statues and regulations.
Approval of Temporary Tents, and Membrane Structures:
Based on the size of tent, a permit from the local fire department, or OSFM on state property,
may likely be required. In addition to these regulations, all state and local public health
directives shall also be followed.
Tent and Membrane Structure Materials
California regulations require that all tents manufactured, sold, rented, or used be made from
nonflammable material or material treated with a flame-retardant chemical approved by OSFM.
Title 19 CCR §1171
Each section of the top and sidewalls of large tents (ten or more occupants) shall have the
State Fire Marshal seal of registration label. Small tents (nine or less occupants) may have a
registration label meeting the provisions of CPAI-84; otherwise the State Fire Marshal seal of
registration label is required. Title 19 CCR §335
Fuel-Fired Heating Appliances
Any heaters with open flame, open flame elements, or exposed heating elements are
prohibited from being used inside a tent structure. Title 19 CCR §317. Per manufacture
recommendations, these types of appliances should only be used in open outdoor space areas
with plenty of air flow.
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Packet Pg. 1068 Attachment: CAL FIRE Official Interpretation -December 2020 (5401 : Outdoor Dining Program Updates)
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Information Bulletin 20-007 (Continued)
Examples of fuel fired appliances include:
Liquefied petroleum gas shall not be stored or used in connection with any tent unless the
storage containers, equipment, fittings, appliances, placement, use, and operation comply with
Title 19 CCR §325.
Forced air heaters may be used to heat tents and membrane structures as these units are
positioned on the outside of a tent with heat pumped in through a duct under the sidewall of the
tent. Examples are provided below:
Electric heating appliances
Portable electric heating appliances shall be listed for its specific use and labeled by an
approved testing laboratory. All appliances shall be used per the appliance’s listing for its
approved location and use type. Portable electric heating appliances must also be equipped
with a tip-switch cutoff and have concealed heating elements. Heating appliances shall be used
in accordance with Title 19 CCR §3.17 and California Electric Code (CEC) Chapter 424.
Code References for Location and Use of Tents, Canopies, and Membrane Structures:
The State Fire Marshal shall prepare and adopt rules and regulations establishing minimum
requirements for the prevention of fire and panic in connection with the use of tents, awnings,
or other fabric enclosures. Health and Safety Code Section 13116
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Packet Pg. 1069 Attachment: CAL FIRE Official Interpretation -December 2020 (5401 : Outdoor Dining Program Updates)
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Information Bulletin 20-007 (Continued)
Outdoor spaces created on public property must have a permit issued for Temporary
Membrane Structures and Tents. The fire code official shall issue a permit and inspect tents,
canopies and membrane structures covering an aggregate area of 400 square feet or more.
2019 CFC §105.6.47
A building permit from the Building Department is required for membrane structures for use
exceeding 180 days. 2019 CFC §105.3.1
NFPA 701 may be applied when recognized by the authority having jurisdiction. Title 19 CCR
§1.09
Tents, canopies, and membrane structures shall not be installed within 20 feet of buildings
unless approved by the fire code official. 2019 CFC §3103.8.2
Tents, canopies, and membrane structures shall be installed a minimum of 20 feet from parked
vehicles or internal combustion engines. Title 19 CCR §312
There shall be a clearance of not less than 3 feet between the fabric sides of a tent, canopy or
membrane structure and all contents located inside the tent, canopy, or membrane structure.
2019 CFC §3107.8
Extension cords serving a tent, canopy or membrane structure must be protected by a Ground
Fault Circuit Interrupter (GFCI) and must be protected from damage. CEC Table 400.4
Tents and their appurtenances shall be adequately roped, braced, and anchored to withstand
the elements of weather and prevent against collapsing. Documentation of structural stability
shall be furnished to the fire code official. 2019 CFC §3103.9
Means of egress shall always be maintained. Title 19 CCR §3.11
Flammable vegetation, materials and combustible waste is not permitted within 50 feet of the
tent or membrane structure. Title 19 CCR §326
Smoking shall not be permitted in tents. Approved “No Smoking” signs shall be conspicuously
posted. Title 19 CCR §316
Portable fire extinguishers shall be provided. Title 19 CCR §319
Generators and other internal combustion power sources shall be separated from tents,
canopies, or membrane structures by a minimum of 20 feet and shall be isolated from contact
with the public by fencing, enclosure, or other approved means. All generators must be
bonded and grounded. 2019 CFC §3107.16
Liquids having a flash point below 200°F shall not be stored in any tent nor less than 50 feet
from any tent. Title 19 CCR §324
For more information please visit our website http://osfm.fire.ca.gov
For assistance in obtaining an approved OSFM Certificate of Registration for tents and flame
retardant material assistance, please contact Deputy Patricia Setter, OSFM Flame Retardant
Program Coordinator at (916) 597-5703 or email: patricia.setter@fire.ca.gov.
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Packet Pg. 1070 Attachment: CAL FIRE Official Interpretation -December 2020 (5401 : Outdoor Dining Program Updates)