On March 22, 2020, Governor Cuomo issued an executive order that closed all non-essential businesses in New York State (the "Order"). In connection with the Order, New York City restaurants were forced to reduce their operations to pick-up and delivery only. On June 8, 2020, New York City entered into Phase I of the New York State reopening plan. It is anticipated that sometime between June 22, 2020 and the beginning of July, 2020, New York City will enter into Phase II. During Phase II, restaurants will not be allowed to serve patrons indoors, but will be permitted to commence service to patrons outdoors. In the past, restaurants have only been allowed to serve patrons outdoors after obtaining a sidewalk café permit pursuant to zoning regulations issued by the New York City Department of Consumer Affairs ("DCA"). The outdoor café permit process is typically expensive, burdensome, time consuming and subject to zoning restrictions and community board approval. However, a bill has been introduced at the New York City Council (the "Bill") that will allow restaurants to apply for a Temporary Outdoor Space Dining Permit (a "Permit") to serve patrons outdoors by utilizing sidewalks, pedestrian plazas, streets, parking lots and other public/private owned spaces.
The application process for a Permit has not yet been finalized, but pursuant to the Bill, an application submitted to DCA would need to: (i) identify a location for proposed outdoor service as specified by the New York City Department of Transportation, or a sidewalk where a sidewalk café would be permitted under the City's zoning regulations, and (ii) include a proposed layout that would allow workers and patrons to observe New York City Department of Health and Mental Hygiene guidelines (which guidelines are not yet available, but which will address: (a) social distancing, (b) protection of health and safety of patrons and workers and (c) cleaning). Each Permit would include the specific location and square footage of the open space to be used as a temporary outdoor dining area.
The intent of the Bill is to streamline and expedite the permitting process for restaurants to begin safely serving patrons. Accordingly, no fees will be charged by the City in connection with the application for a Permit, and Permits will not be subject to the typical zoning restrictions or community board approval. Once a restaurant has obtained a Permit, it will be permitted to serve food and drinks to outdoor patrons in the area outlined in the Permit until the later of: (i) the date when the Order has been lifted and (ii) October 31, 2020.
Sheppard Mullin Richter & Hampton's New York Real Estate and Land Use Group is closely monitoring developments in connection with the Bill and will be available to assist restaurants and property owners in preparing and submitting their Permit applications once the Bill becomes law.
Originally published June 16, 2020
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