Roadway dining will be allowed under the new program but only seasonally. Sidewalk and roadway cafes must have removable furniture and equipment, instead of the dining shed structures that caused much controversy over the past few years. Image Credit: NYC DOT
After a year and a half since the bill was introduced, the Council finally votes to create a permanent outdoor dining program. On August 3, 2023, the City Council voted to approve Int 31-C, which establishes a permanent outdoor dining program. The program will allow sidewalk cafes to operate annually and roadway cafes to operate seasonally, with removable furniture and decor replacing solid dining shed structures. The program follows the temporary outdoor dining program that removed barriers for restaurants to incorporate outdoor sidewalk and roadway dining during the pandemic. The bill was sponsored by Council Member Marjorie Velázquez, Chair of the Committee on Consumer and Worker Protection.
Background
Prior to the pandemic, the long and rigorous process of opening a sidewalk cafe was conducted through the Department of Consumer and Worker Protection. The process was expensive and took a long time. There were also zoning limitation on where sidewalk cafes could operate. As a result, prior to the pandemic, there were just over 1,100 sidewalk cafes citywide.
During the beginning months of the pandemic when indoor dining was unsafe, emergency executive orders allowed for the creation of a temporary program which effectively circumvented the approvals process with the Department of Consumer and Worker Protection. Restaurants were allowed to operate sidewalk and roadway cafes and did not have to pay a license fee or go through a lengthy approval process, only needing to comply with basic safety and design rules from the Department of Transportation, which operated the temporary program. As a result, over 12,000 restaurants operated sidewalk and roadway cafes across the city. The program is credited with saving over 100,000 jobs and thousands of businesses. However, since the temporary program only existed because of emergency executive orders, a permanent program would need to be established to keep outdoor dining once the emergency executive orders expired.
To create a permanent program, a zoning text amendment needed to be approved to remove the geographic restrictions on where sidewalk cafes could go. That amendment was passed in February 2022. Next, the City Council would need to pass legislation – what would be Int. 31 – to transfer the authority of overseeing the sidewalk cafe program to the Department of Transportation. Following that, the Department of Transportation and other impacted city agencies would need to pass administrative rules relating to the sidewalk cafe program.
The City Council originally held its public hearing on Int. 31 in February 2022. While many praised the temporary outdoor dining program’s impact on saving jobs, both elected officials and community members had a variety of concerns about outdoor dining. Many had quality of life concerns relating to the dining shed structures that took up space on sidewalks and on streets, bringing noise, trash, and pests. Others questioned the ability of the Department of Transportation to handle a program of this size, citing the Department’s failure to respond to enforcement complaints. More expressed concerns about a “one-size-fits-all” approach in a city with a variety of neighborhoods.
A year and a half later, after months of negotiations and delays from lawsuits, the City Council was finally ready to vote on the bill.
The Bill
Int. 31-C allows sidewalk cafes to operate year-round, and permanently allows roadway cafes to operate seasonally from April through November. Unlike the temporary program, the new program does not allow for permanent dining structures like the sheds that resulted in many quality of life complaints. Instead, restaurants will need to use removable tables, chairs, and decor. While agency rules have not yet been determined, restaurants will be required to do things like keeping the spaces for their sidewalk and roadway cafes clean.
Restaurant owners will need to get a license and revocable consent to operate sidewalk and roadway cafes. There will be separate fees for sidewalk and roadway cafes; each license will cost $1,050 for a license period of four years. The license cannot be sold, leased or transferred. The revocable consent shall be paid annually and is based on what sector the restaurant is in. There will be four sectors across the city, with annual prices ranging from $5 to $25. Most restaurants will only have to pay $5 for a revocable consent.
Restaurant owners will need to provide accurate drawings showing the space to be occupied and locations for furniture, barriers, and other objects. Transportation will forward the application to the connected Borough President, Council Member and community board. Community boards will have 40 days to hold a public hearing or waive its public hearing. Transportation will hold a public hearing on the application if the community board rejects it or submits a conditional approval with substantial modifications that the restaurant owner does not agree to, or if the agency feels a hearing will be beneficial to address a concern about the location. Transportation has within 20 days of the filing of a community board recommendation to decide on the petition and send it to the City Council, which may hold a public hearing on the application or vote to approve or deny the petition.
Restaurants in historic districts or landmarked buildings will also need to obtain approval from the Landmarks Preservation Commission, which will have ten business days after receiving an application to issue a decision.
Restaurants operating a sidewalk or roadway cafe without a license can face a fine of $500 for the first violation and $1,000 for second and subsequent violations. Transportation can issue corrective action requests for license holders who fail to comply with program rules and can order that furniture, equipment or other materials be removed. Restaurants with three or more violations within a two year period may have their licenses suspended or revoked after an opportunity to be heard.
Current participants from the temporary program can continue to operate their outdoor dining programming, as long as they apply for a license and submit a petition for a revocable consent on or before a date to be determined by the Department of Transportation, which will be three months or less from when the agency rules go into effect.
The Vote
Thirty-four council members voted to approve the bill. Eleven council members voted no, including Council Members Charles Barron, Eric Bottcher, David Carr, Robert Holden, Christopher Marte, Darlene Mealy, Vickie Paladino, Lincoln Restler, Althea Stevens, Inna Vernikov and Kalman Yeger. Six council members were absent.
The bill will be sent to Mayor Eric Adams and the Department of Transportation and other agencies will begin the administrative rule-making process, which will include public hearings.
Mayor Adams stated, “This bill preserves the best parts of the temporary program and eliminates the worst. We will create a vibrant, clean, and safe streetscape; give restaurants the clarity they need to continue serving their customers; and make New York City the best outdoor dining city in the world. I’m grateful to the restaurant owners, community leaders, and everyday New Yorkers who’ve fought for this program for years, and to Councilmember Marjorie Velázquez and the City Council for their partnership to ‘Get Stuff Done.’”
Council Member Velázquez stated, “Outdoor dining has been embraced as a creative solution to address the economic crisis. We have spent the past year negotiating and modifying the bill to be as inclusive and equitable as possible, meeting the needs of the different types of restaurants and eateries across our city. This was not a one-size-fits-all bill, and that’s the beauty of it. I am proud to have advocated for our small businesses throughout this process and look forward to seeing them thrive.”
Andrew Rigie, Executive Director and Rob Bookman, Counsel, of the NYC Hospitality Alliance, stated, “We’re thrilled the City Council has passed this historic permanent outdoor dining program, including sidewalk cafes and streeteries. The new law will cut the red tape and fees for restaurants to participate when compared to the overly restrictive pre-pandemic sidewalk café licenses, which excluded so many restaurants throughout the five boroughs from offering al fresco dining.”
By: Veronica Rose (Veronica is the CityLaw fellow and a New York Law School graduate, Class of 2018.)
CC: Stated Meeting, Int. 31-C, August 3, 2023.