Proposed Outdoor Dining Rules Leave Diners Out in the Rain

"Do you want a side shower with that burger?"

Enclosed restaurant structures in the roadway will be banned under new outdoor dining rules officials proposed Thursday — to the alarm of restaurant owners who worry flimsier set-ups won’t withstand Big Apple weather. 

Draft regulations released on Thursday would allow only roadside dining structures with a screen “cover” or umbrellas up to six feet tall facing the street — in contrast to the fully or nearly enclosed al fresco set-ups sprinkled across the city since 2020.

“These are going to be ramshackle things with crappy tops on them, which are going to be as unsightly and as rat filled as anything that was before,” warned Jim Morrison, owner of The Exley cocktail bar in Williamsburg.

“They’re going to be stuff that blows around in the storm. What’s that going to look like with a tarp or an umbrella?”

The proposed rules come after the City Council paved the way for a scaled-back seasonal outdoor dining program in May. The Council's legislation took months of negotiations to get over the finish line, with officials ultimately agreeing to reduce the time restaurants can use the curb for dining from year-round to just eight months, April through November.

The latest proposals frustrated restaurateurs and bar owners, who told Streetsblog the proposed structures won't hold up as well in a city with ever-more frequent — an unpredictable — inclement weather.

Mathias Van Leyden, the owner of the French restaurant Loulou in Chelsea, shelled out $200,000 for his three flower-adorned, enclosed outdoor dining sheds, he said — and he won't spend another fortune to satisfy the new rules.

“You’re saying they cannot be enclosed? I’m not going to change that. They can go F— themselves, that’s how I feel,” said Van Leyden. 

Mayor Adams said in a statement that the city will take feedback from the restaurant industry, trade groups and community organizations.

"We are taking the lessons of the temporary pandemic-era program — what worked, what didn’t, and what we can improve — and assemble the ingredients for the nation’s largest and best outdoor dining program," Hizzoner punned. "This public engagement period will allow us to refine the recipe and deliver a delicious final product."

The mayor has railed against some dilapidated or abandoned outdoor dining structures, but several of the novel setups had intricate and award-winning designs — including one structure Adams personally sledge-hammered at a press event after it became disused.

The Council's long-delayed law stated the new structures should be "open-air," but left it to the Adams administration to set more specific parameters. That's already created an entirely new niche market of design companies that plan to offer subscription-style services to set up, remove, and store structures under the new program.

Proposed rules also include guidelines sidewalk cafes, which the law allows to remain operational year-round. 

All roadway structures allowed under the pandemic-era program must come down by November 2024 — or if they go unused for 30 consecutive days, according to the proposal rules.

Another proposed rule would require restaurants keep outdoor dining at least 20 feet away from a crosswalk. State law requires 20 feet without parking around every intersection — a street safety design known as daylighting — but the city has long exempted itself from the rule to allow for more car parking. It is unclear what restaurants on street corners should do about that rule.

Department of Transportation spokesman Vin Barone said enclosed sheds can reduce visibility and are a "safety concern," and that keeping the intersections clear will allow the agency to daylight intersections "where appropriate."

The rep added that the new rules require the setups to be filled with water, which makes them both easier to move and prevents rats from burrowing in the sand or dirt-filled barriers that line current sheds.

The maximum allowed size for roadway cafes will be 40-by-8 feet, about the length of two parking spaces. Restaurants will have to buy four-year licenses and pay the city an annual charge, or "consent fee," for the space. 

The proposed cost of a four-year license would be $1,050 for each sidewalk and roadway cafe, with annual fees ranging from $6 to $31 per square foot of sidewalk space, and between $5 and $25 in the roadway. Officials claim the fees match up with the average rent for ground floor commercial spaces.  

For the largest permitted roadway cafe of 320 square feet, the yearly charges would range from $1,600 and $8,000 — well above what it costs to park a car or two in that space, which is largely free.

The Exley, the north Brooklyn cocktail bar, has an enclosed structure that has become a popular gathering spot. Morrison, the owner, worries that a new setup will be less safe for his patrons.

“Our guests sit in our structure year-round, all weather, because it’s tidy, it’s within the bounds that it should be, it’s constructed solidly, it’s safe and it’s beautiful,” said Morrison. "[The proposed outdoor dining] is not going to be safe for them in any inclement weather. It’s sort of half-measures that are going to leave us [with] something worse."

The public has 30 days to comment, after which officials expect to finalize and adopt the rules by the end of the year. Businesses will apply through an online portal; once approved, they will have 30 days to comply with the new rules.

DOT will hold a virtual hearing on Nov. 20 at 10 a.m. To tune in, click here. To speak on the rules, you must sign up by Nov. 17 by emailing rules@dot.nyc.gov or calling (212) 839-6500.

Members of the public can submit comments to DOT through the NYC rules website at rules.cityofnewyork.us, or mail comments to Michelle Craven, Assistant Commissioner, Office of Cityscape and Franchises, New York City Department of Transportation, 55 Water Street, ninth Floor, New York, NY, 10041.

Comments can also be faxed to 212-839-9685.