Long Island business owners and residents are slowly getting used to a new way of life as restrictions on social distancing are relaxed. On June 6, 2020, Governor Cuomo issued Executive Order 202.38 permitting outdoor dining at restaurants subject to New York State Liquor Authority (“SLA”) regulations and Department of Health (“DOH”) guidance. The next day, the Governor explicitly limited permission for outdoor dining to those regions that had reached Phase 2 of reopening. On June 10, 2020, Long Island officially reached Phase 2 and local restaurant owners anxiously began to offer outdoor dining both on privately owned property and adjoining public sidewalks. Most local municipalities have streamlined the permitting process for outdoor dining areas in an effort to assist business owners and the local economy in the wake of Covid-19. In fact some municipalities have chosen to close public streets during certain evening hours to allow restaurants and bars to use those streets for outdoor dining. Nevertheless, restaurant owners must be diligent about following rules and regulations set forth by both local and State officials with respect to controls on outdoor dining and associated public gatherings.
Rules and regulations concerning outdoor dining currently fall into two categories with the first being those enacted as a result of Covid-19 and the second being those in effect prior to Covd-19. Regulations on outdoor dining specific to Covid-19 are geared towards social distancing and related public health concerns. Outdoor space can include an awning or roof but there must be two open sides for airflow. The tables in an outdoor dining space must be a minimum of six feet apart. If it is impossible for the tables to be six feet apart, barriers of at least five feet in height must be installed between the tables and those barriers cannot interfere with access to an emergency exit. Proper face coverings must be worn by restaurant employees at all times and patrons must also wear face coverings which can be removed while seated at an outdoor table. Additional DOH guidance can be found at outdoor dining guidelines NY.
Equally important to those rules and regulations related to Covid-19 are municipal regulations for outdoor dining that typically relate to zoning. Restaurant owners must be cognizant of their total permitted occupancy pursuant to an existing certificate of occupancy or certificate of completion. Municipalities will not allow the number of occupants in an outdoor space to exceed the legally permitted maximum indoor occupancy. This is true even if the proposed outdoor space can accommodate a larger number of occupants while abiding to social distancing requirements. The reason being that municipal zoning codes typically require off-street parking spaces based on the number of occupants in a particular building and/or outdoor space. While a restaurant may have a large outdoor dining area, which may even include a portion of a private parking lot, available parking for patrons is always is a concern. The need for available parking at restaurants will only become more prevalent as Long Island reenters Phase 3 as of June 24, 2020 and limited indoor dining, in addition to outdoor dining, is permitted at restaurants. Local code enforcement officers will likely be visiting restaurants to assure adherence to occupancy limitations and other safety issues. To that end, pedestrians must be able to utilize public sidewalks and easily access businesses adjoining restaurants.
Some local villages and towns are allowing restaurants to use public property for outdoor dining. Restaurant owners must review local requirements prior to using public space adjoining their private property. Any municipality allowing use of public property for outdoor dining is requiring an application along with adequate proof of liability insurance and where necessary written consent from adjoining property owners. The State Liquor Authority (“SLA”) is allowing service of alcohol in outdoor dining areas subject to certain restrictions which include service only to individuals sitting at a bar or table. People looking forward to participating in bar games, including darts and pool, will have to continue waiting until social distancing restrictions are further reduced. Moreover, restaurant owners must provide the SLA with an updated diagram depicting the outdoor seating within five business days of the expansion. Failure to abide with SLA regulations can result in monetary fines and license suspension. Additional information concerning SLA guidelines for outdoor dining can be found at SLA Guidance.