Municipalities cannot regulate heat, humidity and bugs but they can regulate restaurants not complying with outdoor dining guidelines as part of New York’s phased reopening.
Restaurants across the state were prohibited from serving patrons on-premises when COVID-19 hit, with carryout, curbside and delivery services being the only options. Now, as regions of the state enter phases 2 and 3, outdoor dining is permitted under strict guidelines and indoor dining is subject to restrictions.
James P. Horan of Poughkeepsie (Wallace & Wallace) and Wade Beltramo of Albany (NYCOM) discussed the various changes to State Liquor Authority license provisions on a recent CLE Webinar “Restaurant Re-openings: A Local & State Government Perspective.”
Six regions have entered phase 3, which allows gatherings of up to 25 people. The Capital Region enters phase 3 today. The Long Island and the Mid-Hudson regions are in phase 2 while New York City is in phase 1.
Updated guidance from June 8 defines “outdoor space” as an open-air space designated for the consumption of food and/or beverage, which may have a temporary or fixed cover with at least two open sides for airflow. Tables with seats must be at least six feet from any other table, seat or patron. Outdoor capacity is limited to the number of tables that can be safely and appropriately arranged, but, wherever distancing is not feasible between tables, physical barriers at least five feet high may be erected.
Horan noted that the guidance is inconsistent as it calls for six feet between tables with seats in one place and then six feet between tables elsewhere.
“I think it would be hard for a lot of municipalities to ensure six feet from pedestrians on sidewalks,” said Horan. “There has to be some demarcation between the public areas and the service/licensed establishments.”
Horan also said that as restaurants expand their outdoor eating, “The needs of other businesses and residents on the street must be considered.” He explained that a restaurant expanding could prevent a neighboring retail shop from providing curbside pickup. “The impact of parking and emergency access to all businesses on the street must be considered when looking at closing a street for outdoor dining.”
Beltramo discussed the State Liquor Authority guidance on outdoor expansion. It is applicable to regions in phase 2 and is effective through July 6 but may be extended.
Governor Cuomo’s executive order 202.3 allows restaurants to provide curbside service for alcoholic beverages and outdoor consumption, which can lead to trash and sanitation issues.
Under phase 3, indoor dining and bars may open at half capacity and outdoor expansion may continue. Social distancing must be maintained.
According to Governor Cuomo, there have been 25,000 complaints about businesses reopening but not complying with the guidelines. Beltramo stressed that the State Liquor Authority has limited enforcement capability despite the governor discussing “stepped up SLA enforcement.” Police may be reluctant to enforce guidelines and court facilities are limited.
Beltramo suggests cutting the businesses some slack if they are really trying to comply. “I think there are some instances where I’d feel pretty confident being the prosecutor and others where I would be confident as the defense attorney.”