Edward’s unenclosed sidewalk café restaurant located at 136 W Broadway in Manhattan. Image credit: CityLand.
Operating a sidewalk café requires a public review process and approval from the city. Summer is here and many restaurants open sidewalk cafés to give people a breath of fresh air while enjoying a meal. To operate a sidewalk café, the business must have a food service establishment permit and each year the business must pay consent fees, which are essentially a “lease” for use of the sidewalk space.
A sidewalk café is an extension of a restaurant located on a public sidewalk. There are three types of sidewalk cafés: enclosed, unenclosed, and small unenclosed. This article will focus on the process to obtain a license for an unenclosed and small-unenclosed sidewalk café. An unenclosed café means there is no permanent or semi-permanent enclosure. Unenclosed cafés can be broken down easily and contain readily removable tables and chairs. A small-unenclosed sidewalk café contains no more than a single row of tables and chairs next to the building. For a small-unenclosed café the tables and chairs can occupy no more than 4 feet, 6 inches of the public sidewalk. Only restaurants on the ground floor are allowed to have sidewalk cafés.
If there is going to be alcohol/beer/wine service, a removable barrier is required by the New York State Liquor Authority to separate your licensed space from the public sidewalk. If there is no alcohol, there a barrier is not required. According to Heather Kirk, Senior Licensing Clerk at Helbraun & Levey LLP, there are benefits to having barriers because it ensures that chairs and tables are not rearranged or flow out onto the public sidewalk. Barriers help signify what space is operated by the business and provide a clear line so that pedestrians are also not encroaching on the café space. Restaurant owners sometimes use removable planters as barriers to “beautify” the space and appeal to guests.
All sidewalk cafés must maintain a minimum clear path of eight feet starting from the curb. If there were obstructions or sidewalk furniture, the eight foot measurement would start at the closest point of that obstruction. Obstructions or sidewalk furniture include trees, mailboxes, bike racks, pay phones, or public benches. There are other clear path regulations that have to be considered. For example, a café must be 15 feet from a subway entrance and ten feet from a fire hydrant. If you are going to operate a sidewalk café on an intersection street, it must maintain a nine-foot clear path. Heather Kirk recommends that it is best to use a licensed New York City architect with sidewalk café experience when considering a space for a café.
A business must obtain a sidewalk café license and revocable consent to operate on a public sidewalk. “Revocable consent” is a term used to describe an agreement made by the City allowing a person to maintain a structure on the City’s sidewalks. Owners must file a petition form for a revocable consent to the City. Department of Consumer Affairs issues a revocable consent to operate a sidewalk café and the City retains the right to revoke the sidewalk café at any time.
Business owners are permitted to operate a sidewalk café upon approval from Consumer Affairs. Consumer Affairs cannot accept applications for a license that does not meet the zoning requirements. Zoning plays a huge role in what type of café you have and there are restrictions that limit where cafés can be located. Business owners must also have personal and property liability insurance for the sidewalk café at all times.
Business owners submit all license application requirements to Consumer Affairs for a preliminary review. The license application process for unenclosed sidewalk café’s includes small unenclosed. License application requirements include the basic license application, sales tax identification number, business certificate, current food service establishment permit, substitute form W-9, and more documents which can be found here. The preliminary review may take up to five days. During this time, Consumer Affairs will tentatively schedule a public hearing at a future date, 30-45 days from the preliminary review. Owners must also be cleared of debts owed to the City before Consumer Affairs can issue you a license. Consumer Affairs will check for any outstanding fees or fines owed to City agencies, including the Department of Finance and Environmental Control Board.
Tiny’s unenclosed sidewalk café located at 135 W Broadway. Image credit: CityLand.
Within 5 days of the filing of the application, Consumer Affairs will then provide copies of the application for review to the local Community Board, City Council, Landmarks Preservation Commission (if the space is landmarked), Mayor’s office, and Comptroller’s office. But, only the Mayor’s office and Comptroller will sign off on the application.
During Community Board review, the Community Board will almost always call the applicant in for a committee and full board meeting to discuss the application, proposed hours of operation, business model, business history, amount of sidewalk space overall vs. how much is being used by the café, etc. Meanwhile, Consumer Affairs holds a separate public hearing, which may or may not overlap the Community Board’s review period. Consumer Affairs keeps a fairly strict timeline and if for some reason the Community Board meeting was postponed, Consumer Affairs still moves forward to their next step. The same goes for City Council, but there have been instances where City Council had called in an application after it had gone through and been approved.
The process overall takes about four to five months. Once the process is complete, Consumer Affairs will mail the license document, required complaint sign and a copy of the consent agreement within three to five days. All applicants must prominently display their Consumer Affairs Sidewalk Café license in the window or doors that look onto the street, so that inspectors, the public, and the local community will all be aware of the correct operating conditions. The required complaint sign must also be displayed so that any member of the public will know where to write or call about any problems with the café.
Sidewalk café’s may be open till midnight Sunday through Thursday and may be open till 1:00 am on Friday and Saturday. The complete operating hours can be found here. To apply for a sidewalk café license click here.
By: David Mateen (David is a CityLaw Intern and a New York Law School Student, Class of 2019.)