Double Trouble: Compliance While Trying to Rebuild Business Is the Dual Challenge
On September 30th, New York City joined the rest of New York State. It, too, is allowed limited indoor dining. Yet, as of this writing, this gain is at risk of slipping away. The Governor and the Mayor have already imposed new dining restrictions reminiscent of Phase 3, applicable to certain areas of the City. In the face of this uncertainty, restaurant owners, their employees and patrons’ lives “are as shaky as a fiddler on the roof!”
New York State issued Indoor Food Services Guidelines pursuant to Executive Order 202.61. Although some of these Guidelines apply only to New York City, restaurants throughout the state would be wise to follow them.
While most of the provisions set forth in the Guidelines are easy to understand, the issue of when and how music may be made available at restaurants has caused confusion. The Liquor Authority provided clarification in memoranda of law filed in two recent cases: Independent Venue Association v. Bradley, Case No. 20-cv- 6870 (United States District Court for the Southern District of New York New York) and Sportsmen’s Tavern LLC v. New York
State Liquor Authority, Case No. 809297/2020 (Erie County Supreme Court).
In both cases, the Authority distinguished from music in restaurants incidental to the eating experience, and music in concerts and other events in which the entertainment is the main patron draw. Because entertainment events draw large crowds that tend to arrive and leave at substantially the same time with people remaining for long periods of time, they have the potential to become “super spreader” events and are banned.
On the other hand, when music is not the primary draw but is incidental to the dining experience, it does not create a high risk of contagion and is permitted. The First Amendment only protects the advertisement of legal conduct, and the Authority warns restaurants not to advertise illegal events. Legal incidental music may be advertised.
Licensees must be careful. Only those restaurants whose method of operation already allows music may provide incidental music, and the Authority may act harshly against a licensee who attempts to use the incidental music policy as a loophole to turn a restaurant into an illegal concert hall.
The Guidelines require restaurants to practice social distancing. Until further notice, indoor capacity in New York City is limited to 25% of the maximum occupancy exclusive of employees. (For restaurants outside New York City the restriction is 50% of maximum occupancy.)
Because all of the guests at a wedding, social gathering or similar event know each other and can be expected to intermingle, indoor occupancy for social gatherings is further limited to the lesser of permissible percentage of maximum capacity or 50 people.
It is important to note these occupancy restrictions address indoor dining. There is no similar restriction on outdoor dining, except to the extent (i) the occupancy has been limited by a governmental agency, such as the fire department, (ii) that which is necessary to comply with social distancing, and (iii) the event and social gathering restrictions discussed above.
The Guidelines have numerous other requirements that licensees in the City must follow. For example, restaurants may not seat or serve anyone at a bar. All patrons must be seated and served at tables. All service must cease at 12 AM (midnight) and may not resume until 5:00 AM.
Other requirements include required notices, violation reporting, employee and patron screening, social distancing, patron contact tracing, face coverings and air ventilation.
Both a complete outline and a relatively concise summary of the guidelines can be found at governor.ny.gov.