On June 4, 2020, the New York State Liquor Authority (SLA) issued guidance to licensees in regions of the state of New York that have entered Phase 2 of the state’s reopening plan in response to the COVID-19 health emergency (“SLA Guidance”). The SLA Guidance applies to licensees that possess on-premises service privileges under New York’s Alcoholic Beverage Control Law (“ABC Law”), and it permits these licensees to resume outdoor, on-premises service of alcoholic beverages and food. The SLA Guidance, summarized below, shall remain in effect until July 6, 2020 and may be extended or reduced depending on the circumstances. It specifically provides guidance on how outdoor consumption shall be implemented and how licensees may expand the licensed premises into outdoor spaces, and it also includes a question and answer (Q&A) section that provides guidance to municipalities seeking to extend licensed premises.
The consumption of food and alcoholic beverages must occur in outdoor, open-air areas without fixed roofs, and patrons are required to be seated at tables, bars, counters, or similar contrivances. The Q&A section provides that a fixed roof is any overhead structure covering an outdoor seating area that would not reasonably be viewed as temporary. Awnings or covers that are temporary or seasonal are therefore permitted. Social distancing measures must be implemented – tables must be six feet apart, and all seats, except for those at tables, must be six feet apart. Customers must wear face masks any time they are not seated while staff of the establishment must wear face masks at all times. The SLA Guidance must be complied with in addition to any other relevant executive orders and governmental guidance or regulations.
Outdoor Expansion of Premises
Under normal circumstances, the process set forth in the ABC Law would govern a licensee’s application to alter its licensed premises. However, the SLA Guidance now allows the licensee to use any contiguous outdoor, open-air part of the existing premises that it controls by deed, lease, management agreement, or other agreement of control. A licensee whose existing license operates with stipulations restricting the use of outdoor areas, whether imposed by a municipality or other entity, is required to submit a letter from such entity approving of the additional outdoor use of the premises.
In all circumstances, a licensee that expands the premises must submit to the SLA an updated diagram of the premises within five business days of the expansion. This includes expansion onto municipal property immediately adjacent to the licensed premises, which would include a sidewalk cafe. Any movement of currently licensed points of sale must be noted on the submitted diagram. The SLA Guidance, however, does not permit the addition of more points of sale than currently licensed without a separate application for an additional license. Further, under no circumstances may a licensee move a point of sale onto municipal property, even with an approved “Municipal Extension,” which is discussed further below. Licensees must also remain compliant with all other local and state requirements, including, but not limited to, zoning, building, and fire codes.
A municipality may choose to make available to licensees municipally owned lands that are beside, but not immediately adjacent to, the licensed premises. This is known as a “Municipal Extension,” and a municipality that wants or expects the SLA to have jurisdiction over a licensee’s operations over such Municipal Extension must apply to the SLA by submitting the following items: (1) a supervision and control plan; (2) a simple block plot diagram; and (3) a certification from the licensed business intending to operate on municipal property. The certification that must accompany a Municipal Extension application requires that the licensee acknowledge the municipal property that will temporarily become part of the licensed premises, and that the licensee will supervise the extension area in accordance with the ABC Law as if it were part of the licensed premises.
The SLA is prioritizing review of these applications. The area of expansion must be in front, behind, or to the side of the licensed premises and within its property boundaries as extended straight out and perpendicular to the street or sidewalk fronting the building. Further, the only area that may intervene between the public space made available and the property line of the licensed premises is a pedestrian thoroughfare. In a downtown storefront setting with a sidewalk along the storefront, this would permit service at tables along the curb, as distinguished from immediately adjacent land that may already be included in a sidewalk café or street permit.
New York City has also taken steps to accommodate outdoor dining. On June 18, 2020, New York City Mayor Bill de Blasio issued an Executive Order directing the Department of Transportation to establish an “Open Restaurants Program” to expand outdoor seating options for restaurants, bars and other establishments. Mayor de Blasio’s Executive Order also suspends certain provisions of the City’s Administrative Code, Rules, and Zoning Resolution to ease restrictions and requirements for outdoor service and consumption of food and liquor.
Gibbons also recently published a blog post on the New Jersey Division of Alcoholic Beverage Control’s special ruling regarding expansion of licensed premises through the issuance of a COVID-19 Expansion of Premises Permit. Gibbons continues to monitor developments in this space and will provide updates as this crisis continues to unfold.