On June 4, the New York State Liquor Authority (SLA) issued guidance to allow the expansion of any licensee’s existing outdoor premises for serving alcoholic beverages on an expedited basis during COVID-19.
The guidance permits the expansion to any contiguously owned or licensee-controlled outdoor, open-air part of a licensee’s existing outdoor space. Licensees with control of the existing outdoor premise by deed, lease, management agreement, or another agreement of control—like a municipal permit—may apply for expansion via an email submission to the SLA. If agreements or stipulations restrict the use of a licensee’s outdoor premises, the licensee must submit a letter from the stipulating counter-party approving the expanded outdoor use. All licensees must submit an updated diagram of the expanded premises to the SLA within five business days of altering its premises.
Municipalities may also make municipal-owned lands available for outdoor service of food and beverages that are beside but not immediately adjacent to existing licensed premises (a municipal extension). The municipality must notify the SLA of its plan for municipal outdoor dining areas and deliver written acceptance of responsibility for the municipal extension from each implicated licensee. Forms are provided on the SLA website.
Failure to comply with the application procedures may result in disciplinary charges for the illegal extension of outdoor premises. This guidance expires July 6, but may be extended or reduced depending upon the circumstances.
While the guidance permits licensees to expand premises and beverage service, all licensees operating under Phase 2 of reopening in New York State must continue to comply with SLA requirements on outdoor dining and existing executive orders to aid in the prevention of COVID-19. For example:
- Any consumption of food and beverages must happen in outdoor, open-air areas without a fixed roof (besides a temporary or seasonal awning or cover).
- Food and beverages can only be consumed while seated at a table, bar, counter, or similar contrivance.
- All tables must be six feet apart; any seat at a bar, counter, or similar contrivance must be six 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 will be subject to all other relevant executive orders, guidance promulgated by the Department of Health, and any other relevant agency guidance.
The licensees must ensure compliance. Any licensee found in violation will face a monetary penalty (retail maximum of $10,000 and a manufacturer maximum of $100,000) and suspension, cancellation, or revocation of the liquor license.
For additional information, please see the NYS Department of Health’s Interim Guidance for Outdoor and Take-Out/Delivery Food Services During the COVID-19 Public Health Emergency.
If you have any questions regarding the content of this alert of require assistance complying with this or any other SLA matter, please contact Corey Auerbach, partner, at cauerbach@barclaydamon.com; Katie Markert, counsel, at kmarkert@barclaydamon.com; or another member of the firm’s Hotels, Hospitality & Food Service Team.
We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.