Forget about Dryuary — it could be a Dryaprilmayjuneuly for outdoor dining.
Hundreds of New York City restaurants won’t be able to legally serve alcohol in their outdoor dining areas, possibly for months, due to a gap in the city’s effort to fast-track a backlog in permitting as the opening of season kicks off in mere days, legal experts warned.
The Department of Transportation will give "conditional approvals" to 600 restaurants to open roadway dining spaces — except there's one problem: the State Liquor Authority may not accept the interim permit and instead require a full DOT approval prior to issuing the state permit that is required before a drop can be drunk.
"It’s just a disaster," said Joseph Levey, a founding partner at Helbraun Levey, a hospitality and cannabis industry law firm. "That’s where you make your money. So very few, if any, places will even open outdoor without their alcohol [permit]."
According to a city portal, only 42 businesses, out of some 3,500 applications, have received a full DOT license to serve al fresco. DOT blamed that backlog on a "cumbersome" process legislated by the City Council (and signed by Mayor Adams), that added opportunities for lawmakers and unelected community boards to kill or stall applications.
The DOT in February announced its so-called conditional approval process to allow restaurants that have cleared a public hearing to set up next month — as long as they're through most of the application process. But that doesn't include the SLA approval, which has historically been difficult.
Outdoor dining without booze is "not worthless, but pretty close," said Levey, whose firms represents some 100 clients applying for outside permits. Establishments with DOT approval, but not the SLA seal of approval, have two choices: flout the rules or not bother to set up at all until they can pour drinks, he added.
"It’s probably an even split of people who are just going to roll the dice and those who are not going to do anything," he said.
The outdoor drinking game
In addition to the city's lengthy outdoor dining application process, restaurants and bars must file for an alteration for their state liquor license to serve patrons outside, according to an August SLA notice. But that SLA permit can only be obtained after the restaurant has received the city DOT's Dining Out NYC permit.
And for now, that ain't happening.
The SLA is still "assessing the impact" of DOT's conditional approval, according to liquor authority spokesperson Patrick Garrett, who said "additional guidance" will come after the SLA's full board meeting on April 2.
That's one day after the resumption of the roadway dining season — a date that has been on New Yorkers' calendars for more than a half-year.
The state body has received just 15 applications, 10 of which it rejected and five of which it approved.
Even though DOT will give about 600 out of 1,400 total roadway café applications provisional approval, it could take a month or two for restaurants to get the full approval — before beginning the 45-to-60-day process for SLA to issue the booze permit, according to guidance sent out by Levey's firm on Thursday.
That adds up to potentially four months of outdoor dining without booze — half of the April-November roadway dining season created Council Speaker Adrienne Adams — a lethal hit during key months, said one Brooklyn restaurateur.
"To survive the year we need to make our money in April, May and June," Charlotta Janssen, who runs Chez Oskar in Bedford-Stuyvesant. "After that it gets too hot, people are away."
Not everyone is sounding the death knell for springtime cocktails. Robert Bookman, an attorney for the New York City Hospitality Alliance, said he believes that state booze regulators may accept the temporary approval, given that they've been more lenient on businesses during the transition out of the Covid-era program.
"Our legal opinion is ... that any written approval from the municipality is sufficient for people to apply for their liquor license alteration," he said, adding that it took the SLA about 30 days to review two of his clients that had the full DOT permit.
Garrett, of the SLA, said the Albany officials review "most applications" within seven to 10 days.
The SLA gave businesses a 60-day window after the city permit approval to file their alteration request, which indicates the agency might let restaurants continue with business as usual until they get all the necessary paperwork, according to Bookman.
"We believe their [SLA's] advisory created a safe harbor that allowed them to continue to operate," he said. "There’s no reason why it shouldn’t continue this year."
But Levey doubted that the state would give its blessing to partially approved restaurants, only to then have to go back and check on them again after they get a full permit by the city.
"Who’s going to circle back and check all that work?" Levey said.
Advocates called on the city to get its act together.
"Sounds like the city has created a nightmare for business owners," said Sara Lind, co-executive director of Open Plans, which shares a parent organization with Streetsblog. "The city has got to figure out a way to make this right. We can’t expect already overburdened businesses to ride out these massive bumps in the road."
DOT spokesman Nick Benson touted the agency's effort to "cut thorough bureaucracy," but added that it is an essential fact of New York City life that no business can serve alcohol without an SLA permit.
"We are working with the State Liquor Authority and support these establishments having the ability to serve alcohol," Benson added.
