New York State Liquor Authority
Guidance On Requirement that Licensees With On-Premises Service Privileges Serve Food With Alcoholic Beverages
Effective Friday, July 17, 2020
Pursuant to Executive Order 202.52, effective Friday July 17, 2020, all licensed establishments with on premises privileges (e.g. restaurants, taverns, manufacturers with tasting rooms, etc.) shall not serve alcoholic beverages unless such alcoholic beverage is accompanied by the purchase of a food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law.
The State Liquor Authority offers the following guidance:
- This guidance applies to all licensed on premises establishments apart from those which do not require food as a condition of licensure (i.e., clubs, and bottle clubs), in addition, it applies to all licensed manufacturing establishments with on premises service privileges.
- This guidance supersedes and therefore modifies the Authority’s “Guidance on Restrictions for Licensees and To-Go & Delivery Sales in Response to COVID-19 Outbreak” to the extent that off premises beer, or cider sales must now be accompanied by a food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law. All other provisions of such Guidance remain in full force and effect, including the ability of on-premises licensees to sell alcohol to go with the purchase of food consistent with Executive Order 202.3, as extended.
- This modification does not affect the ability of a manufacturer with off premises privileges to sell any product to go to a patron at the licensed premises in a sealed original container without the accompaniment of a food item.
- The purpose of the requirement that food be sold with alcohol is to permit outside and limited indoor dining (outside of New York City), with alcoholic beverages, while restricting the congregating and mingling that arise in a bar service/drinking only environment. Accordingly, this SLA Guidance defines the relevant terms in Executive Order 202.52 as follows:
- “Purchase of a food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law” shall mean that for each patron in a seated party, an item of food must be purchased at the same time as the purchase of the initial alcoholic beverage(s).
- However, one or more shareable food item(s) may be purchased, so long as it/they would sufficiently serve the number of people in the party and each item would individually meet the food standard below.
- “A food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law” shall mean:
- For manufacturers with on premises service privileges: sandwiches, soups or other such foods, whether fresh, processed, pre-cooked or frozen; and/or food items intended to compliment the tasting of alcoholic beverages, which shall mean a diversified selection of food that is ordinarily consumed without the use of tableware and can be conveniently consumed, including but not limited to: cheese, fruits, vegetables, chocolates, breads, mustards and crackers
- For on premises retailers with a food availability requirement, including restaurants and taverns: sandwiches, soups or other foods, whether fresh, processed, precooked or frozen.
Q & A
Q: I operate a restaurant or bar, and I understand that I must serve sandwiches, soups, or “other foods” when a patron orders an alcoholic beverage, can you tell me what constitutes “other foods?”
A: “Other foods” are foods which are similar in quality and substance to sandwiches and soups; for example, salads, wings, or hotdogs would be of that quality and substance; however, a bag of chips bowl of nuts, or candy alone are not.
As a restaurant or bar owner, in determining whether a particular item is substantial enough, please keep in mind the purpose of this policy: to ensure that patrons are enjoying a sit-down dining experience among a small group with drinks, i.e. a meal, and not a drinking, bar-type experience. A drinking, bar-type experience often involves or leads to mingling and other conduct that is non-compliant with social distancing and the use of face covering and is therefore not yet a safe activity during the current health emergency. The spikes/resurgence of COVID-19 cases that this has caused in other states is something that New York must avoid at all costs.
As a restaurant and bar owner interested in continuing to assist in our shared public health goal, you should not be looking for ways to circumvent the dining or meal requirement nor the purpose behind it, as it jeopardizes the public health and the progress all New Yorkers have made. Obvious efforts to circumvent will be treated as violations of the Executive Order.
Q: I am a manufacturer with on premises privileges, do I need to make sandwiches, soups, and other similar foods available?
A: Only to the extent you have a separate on premises license (tavern, restaurant, etc.) at your manufacturing premises. If you have only a manufacturing license, you must provide patrons the ability to order, at a minimum, finger foods like chips, cheese and crackers, or pretzels.
Q: Must a patron order food with each alcoholic beverage ordered?
A: No, as long as food is ordered at the time of initial order of any alcoholic beverages that is sufficient in substance (see above) and is also of a quantity sufficient to serve the number of patrons who are present and being served alcohol.
Again, the purpose of this policy is to ensure that patrons are enjoying a sit-down dining experience, and not a drinking or bar-type experience which often tends to be problematic from a public health perspective.
Q: Can I use a food truck or other third-party business to fulfill the food requirement under this guidance?
A: No, if the ABC Law requires that food be made available under your license, then that food must be available on your premises to be ordered – it cannot be delivered at the time or order, and a patron should not have to leave the premises to get it; additionally, the ABC Law prohibits a second business from operating on a licensed premises.
A food truck may be located in an unlicensed parking lot area; however, if it becomes apparent that use of a food truck creates too much traffic and lack of social distancing (on the premises or at the truck), you should discontinue its use immediately.
Q: Can a patron order an item to-go and order an alcoholic beverage to drink while waiting?
A: No, that is not an on-premises dining experience. A takeout customer should be encouraged to call ahead and/or wait off the premises for his/her to-go order and leave with the food and drink, consistent with our guidance on takeout service since March 2020 which remains unchanged, and with DOH’s interim dining guidance.
Q: Can a patron order only a dessert item along with an alcoholic beverage?
A: Yes, so long as the dessert item is a substantial item, such as a piece of cake/pie, an ice cream sundae, etc.; it should not be only a drink with whip cream, a cookie, a piece of candy, etc.
As with all question as to the food standard, please keep in mind the purpose of this policy as described above.
Q: I have a club license under the ABC Law, must I serve food to my patrons in accordance with this guidance?
A: No, a club licensee is not required to make food available under the ABC Law. Please look at your license certificate to ensure your license is in fact a “club” license under the ABC Law and not instead a tavern, restaurant, or other type of license. If food is available at your club, you are encouraged to serve it in accordance with the SLA Guidance in furtherance of its public health policy.
Q: Must I sell an item of food to accompany the order or may I provide it as complimentary?
A: While a charge is not necessarily required for the food, you must have a record that food was ordered with drinks, so bills/checks need to reflect the food that was ordered and served. Further, you should not provide food that is shared among parties.
Q: Must I force customers to eat a food item?
A: Food must be ordered and served. We cannot require you to force someone to eat what they have ordered, but again, licensees are required to serve in a manner consistent with the purpose of this policy, and if customers are not at the premises to enjoy a sit-down dining experience, serving them alcohol is a violation. If it is evident to you that a patron intends to circumvent the policy, you should not continue to serve them.
Q: I understand that counter service is limited, does that mean that customers may not sit at my lunch counter or bar?
A: No, patrons may continue to sit at a bar or counter in the same manner as is required under the DOH interim guidances, e.g., parties of no more than 10, 6-foot distance between parties, etc.
Please note that while table service is generally required, if an establishment had no table service prior to now and continues to not have table service, the counter may be used for walk-up ordering under the following restrictions: (1) all patrons ordering and all employees taking orders must wear appropriate face coverings, pursuant to DOH’s interim guidance, (2) all patrons (who are of separate parties) that are ordering from the bar/counter must be spaced at least 6 feet apart, pursuant to DOH’s interim guidance, (3) at no time shall more than 5 patrons be standing at the bar/counter at the same time, (4) markings shall be placed on the floor to indicate proper spacing, (5) once an order is made, patrons should either receive their food and/or drink then, or return to their table and wait until called to pick up their order, i.e., patrons should be at the bar/counter only to place, pay for, or receive an order.