Effective Thursday, June 4, 2020
Pursuant to the Governor’s order, effective Thursday, June 4, 2020, all licensees in regions that have entered phase 2 of reopening and which have on-premises service privileges under the Alcoholic Beverage Control Law (ABC Law) may, subject to the guidance below, resume outdoor, on-premises service of alcoholic beverages and/or food.
To aid in prevention of the spread of the coronavirus and assist businesses impacted by the current state of emergency, the Governor has ordered the Chairman of the State Liquor Authority (SLA) to promulgate guidance on a streamlined process for expansion of licensed premises for service of alcoholic beverages. This SLA Guidance shall continue until January 29, 2021 but may be extended or reduced depending upon the circumstances.
The State Liquor Authority offers the following Guidance:
Outdoor Consumption in Phase 2:
- Any consumption of food and/or beverage must happen in outdoor, open-air areas, without a fixed roof (besides a temporary or seasonal awning or cover).
- Food and/or beverages can only be consumed while seated at a table, bar, counter, or similar contrivance.
- All tables must be 6 feet apart; any seat at a bar, counter, or similar contrivance must be 6 feet apart.
- All staff of the licensed business must wear face masks at all times.
- All customers must wear face masks at any time they are not seated.
- Any consumption shall be subject to all other relevant executive orders, guidance promulgated by the Department of Health, and/or any other relevant agency guidance.
- It shall be part of the Licensee’s supervisory responsibilities under the Alcoholic Beverage Control Laws and Rules of the Authority to comply with this SLA Guidance and the Department of Health’s Interim Guidance for Outdoor Service; if unable to comply, it is the licensee’s obligation to discontinue outdoor service.
Outdoor Expansion of Premises in Phase 2:
- Section 99-d of the ABC Law, under normal conditions, governs the process for substantial alterations of a licensed premises. Pursuant to this Guidance, however, a licensee may, for the duration that this Guidance remains in effect, use any contiguous outdoor, open-air part of its existing premises for which it has control by deed, lease, management agreement, or other agreement of control (e.g., a municipal sidewalk cafe permit). Provided however that if a licensee’s existing license operates with stipulations restricting the use of outdoor areas, through a municipality or other entity, such licensee must submit a letter from such stipulating counter-party approving such additional outdoor use of premises.
- Any licensee that expands its premises pursuant to the immediately foregoing paragraph shall, within 5 business days of doing, so submit an updated diagram to the SLA at [email protected] - please include your license serial number in the subject line. Failure to do so shall subject a licensee to disciplinary charges for illegal extension of premises.
- Licensees are permitted to move any currently licensed point of sale as long as they note such movement on the diagram they submit pursuant to this Guidance; adding an extra point of sale (more than currently licensed) is not permitted without having an approved application to the SLA for an additional bar license.
- Should any municipality elect to make available to licensees any municipally owned lands (e.g. sidewalks, streets, etc.) which are beside, but not immediately adjacent to, the licensed premises for service of food and/or beverages (a “Municipal Extension”), and should such municipality want or expect the SLA to have jurisdiction over a licensee’s operations over such Municipal Extension, such municipality must submit to the SLA a plan for municipal outdoor dining areas on the following Municipality form and deliver to the SLA the written acceptance of responsibility for such Municipal Extension from each implicated licensee by also including the following Licensee Certification form. Service that occurs in a municipal dining area for which a municipality has not submitted a form and licensee written acceptance shall be outside the jurisdiction of the SLA.
- Licensees are not permitted to move points of sale onto municipal property, even with an approved Municipal Extension, under any circumstances.
A reminder: outside of this Guidance, the restrictions put in place by Executive Order 202.3 (as continued by subsequent executive orders) remain in effect; any licensed business found to be operating in violation of the Governor’s orders restricting on-premises service of alcoholic beverages, including the SLA Guidance with respect to take out and delivery service, shall face a monetary penalty (retail maximum of $10,000/manufacturer maximum of $100,000), and/or suspension, cancellation, or revocation of its license.
For additional detailed information, please visit the New York State Department of Health’s Interim Guidance for Outdoor Service
Q & A Regarding Outdoor Dining
OUTDOOR SERVICE BY LICENSEES
Q: I understand that in Phase 2 food and/or drink cannot be consumed under a fixed roof, and that I can only serve in open-air areas or under an awning or other temporary structure. What constitutes a fixed roof for this purpose?
A: A fixed roof for these purposes is any overhead structure covering an outdoor seating area that would not reasonably be viewed as temporary. This standard is from the Department of Health's interim guidance for outdoor food service and can be found here. Any questions on the standard can be directed to the Department of Health
Q: I understand that in Phase 2, I was unable to serve outdoors under a fixed roof, is that still true in Phase 3/4?
A: No, in Phase 3, the Department of Health has provided that outdoor service may occur under fixed and temporary roofs, so long as the area utilized is open on at least two sides.
Q: Can food and/drink be consumed while standing?
A: No, all consumption must be while seated at tables, bars, counters, or similar contrivances. This does not change regardless of phase.
Q: Regarding seats at a bar, can a group of patrons from the same party sit next to each other, or must they be separated by six feet?
A: Patrons from the same party may sit next to each other in bar areas or at communal tables, provided the party is 10 persons or fewer. Patrons of different parties must be separated by at least 6 feet whether at bar stools or communal tables.
Q: Are these outdoor guidelines limited to restaurants?
A: No, all licensed on-premises establishments (e.g. restaurants, bars, taverns, clubs, cafes, manufacturers with on-premises privileges, etc.) in Phase 2 regions may, subject to the guidance above, resume outdoor, on-premises service of alcoholic beverages and/or food.
Q: Can food and/or drink be consumed on a golf course?
A: Only as provided in the Guidance, e.g., outdoors, by patrons seated at tables, 6 feet apart, etc.
Q: As a liquor store, manufacturer, bar, restaurant, can I conduct tastings?
A: Yes, a tasting involves consumption of beverage that must be done consistent with the Department of Health’s interim guidance on outdoor food service (seated guests, proper spacing, use of face coverings, etc.) found here, any other applicable guidance/law, including the ABC Law and SLA guidances. The same rules apply for indoor service.
Q: I am a licensee that offers on premises service in a Phase 2/3/4 region, can I have dancing or offer bar games such as darts, pool, or cornhole?
A: No, under the Department of Health interim guidance for outdoor dining and indoor dining, all persons who are not already seated (e.g., waiting for food, or waiting to be seated), should be encouraged to wait in their vehicle and/or leave the premises. Congregating other than persons seated at tables is not permissible. Patrons should be standing only for necessary reasons such as use of restrooms, entering, and exiting.
Q: Where can I find DOH and other additional guidelines on reopening?
The DOH guidance on outdoor dining can be found here. Other relevant documents can be found, among other places, on the Governor’s New York Forward page here, and Empire State Development’s COVID resource page found here.
Q: Can I have live entertainment or a DJ in my outdoor dining area?
A: Restaurants and other on premises food and beverage establishments that have a license through the SLA are only allowed to offer on-premise music if their license certificate specifically allows for such activity (i.e., live music, DJ, recorded, etc.). A manufacturer that has an on premises license also must assure that its on premises license certificate specifically allows for the type of music it is offering. A manufacturer without a separate on premises license may offer music unless its license certificate specifically prohibits such music.
If offering music, indoors or out, all relevant aspects of the respective Department of Health guidance dining must be followed, e.g., patrons should not be standing except for necessary reasons (e.g., restroom, entering/exiting), standing patrons should wear face coverings, etc. Performers should be at least 12 feet from patrons.
Additionally, please note that only incidental music is permissible at this time. This means that advertised and/or ticketed shows are not permissible. Music should be incidental to the dining experience and not the draw itself.
All other forms of live entertainment, such as exotic dancing, comedy shows, karaoke etc., are not permissible currently regardless of phase.
Q: I operate under a club license that does not serve food, are we allowed to reopen under Phase 2/3/4 guidelines?
A: Yes, a club license does not require food service, and you may open consistent with the Department of Health’s interim guidance on indoor and outdoor food service (seated guests, 50% capacity indoors, proper spacing, use of face coverings, etc.), any other applicable guidance/law, including the ABC Law and SLA guidance.
Q: I am a bar/restaurant owner that has a method of operation that allows for live entertainment, e.g., exotic dancing, comedy shows, karaoke etc., can I provide live entertainment currently?
A: No, generally incidental music the only form of live entertainment which is permissible in a bar/restaurant setting currently (in any phase of New York Forward) - see above FAQ on live music. For further information on specific circumstances, please check with Empire State Development, and the following tool: https://www.businessexpress.ny.gov/app/nyforward.
Q: We have a large outdoor space, are weddings, parties and gatherings allowed under the outdoor guidelines?
A: Yes, provided the party is 10 persons or fewer in any phase 2 region, 25 persons or fewer in any phase 3 region, or 50 or fewer in any phase 4 regions, and provided the business follows SLA guidances and the Department of Health’s interim guidance on indoor or outdoor food service (seated guests, proper spacing, use of face coverings, etc.) found here, any other applicable guidance/law, including the ABC Law and SLA guidance. This means no dancing or other standing activities, generally.
Q: I am the owner of a restaurant/bar, may I offer trivia?
A: Yes, because this activity is done while seated at the patron’s table. Devices or other items may not be shared, and all patrons and employees must adhere to all SLA and DOH guidelines, e.g., patrons seated at all time except for entry, exit, use of restrooms, all employees wearing masks at all time, tables properly distanced, parties of no more than ten, etc.
LICENSEE EXPANSION OF PREMISES
Q: Should I file an alteration if I plan to use an expanded area permitted under this Guidance on more than a temporary basis?
A: Yes, you should file an alteration. You may still use that area in accordance with this guideline while the alteration application is pending by sending a diagram of the expanded area within 5 days.
Q: If I am expanding with authorization of the municipality onto municipal property that is immediately adjacent to my premises (a sidewalk cafe), do I need to do anything?
A: Yes, you must within 5 days of beginning use of such area submit a diagram to the SLA incorporating this area into your licensed premises.
Q: Should I consider other federal, state and local requirements (ADA, zoning, building, fire codes, etc.) as I expand my premises.
A: Yes, your expanded premises must still comply with all other relevant requirements under the law.
Q: If I am expanding on to municipal property that is beside, but not immediately adjacent to my premises, do I need to do anything?
A: Yes, you must contact your municipality regarding its filing of a Municipal Extension form before any expansion is permitted by the SLA. You should also provide your municipality with the completed certification form required for municipal applications.
Q: As a municipality, what must we submit to the SLA to create outdoor dining areas (Municipal Extensions) for alcoholic beverage consumption on municipal property (e.g., streets and sidewalks) which are beside, but not immediately adjacent to, an SLA licensed establishment?
A: The SLA wants this to be as streamlined as possible for businesses, municipalities, and the SLA. We want businesses to be able to extend their footprint for food and beverage service quickly and safely and we want to work cooperatively with municipalities to address any related health and safety issues. To that end, we’ve created a simple application process to create a partnership with municipalities creating outdoor dining areas on municipal property which requires only three items: (1) a supervision and control plan from the municipality, (2) a simple block plot diagram, and (3) a certification from the licensed businesses intending to operate on municipal property. Review of Municipal Expansion forms will be prioritized and reviewed expeditiously.
Q: As a municipality, can you tell us what you are looking for in the supervision and control plan we will be submitting to you?
A: Some best practices include: a description of how patron safety will be ensured and noise will be controlled (for example, through regular directed patrols by police and/or other municipal agencies and the erection of barriers between dining areas and vehicular traffic); proper delineation of areas provided for each licensee; consideration of hours permitted for outdoor operation; consideration of how and whether outdoor music will be permitted, etc.
Q: As a municipality, can we under our municipal extension plan make public lands available to a licensed on-premises business for alcoholic beverage service that are not in front of the licensed premises?
A: No, any area of expansion for alcoholic beverage service 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. A municipality may provide authorization to a licensee to use the public land immediately adjacent to the licensed premises (e.g. through a sidewalk cafe permit) without need to include such land in a municipal extension plan. However, any public land that a municipality authorizes a licensee to use that is not immediately adjacent (i.e., separated by a pedestrian thoroughfare), shall only be permitted by the SLA pursuant to a municipal extension plan. Please note the only area which may intervene between the public space being made available and the property line of the licensed premises is a pedestrian thoroughfare.
Q: As a municipality, what should the diagrams for our Municipal Extension area(s) look like?
A: A simple block plot diagram identifying the licensed establishments and the area(s) to which alcoholic beverage service would be extended for each licensed establishment will suffice.
Q: As a municipality, if we want to add more licensed businesses to our approved or pending Municipal Extension plan, what should we do?
A: You only need to submit the additional certification forms for those businesses, referencing the date the Municipal Extension plan was first submitted.
Q: My municipality has granted me a sidewalk/street permit in an area which is beside but not immediately adjacent to my licensed premises, do I need to do anything else if I want to serve alcoholic beverages in this area?
A: Your municipality must submit a Municipal Extension form for approval to the SLA, which should include the space it has provided to you (and any other licensee) along with your completed certification form.