The ability to create or expand outdoor seating during the COVID-19 pandemic has been a key element of many breweries’ ability to offer on-premises services to their customers. Governor Cuomo and the New York State Liquor Authority (SLA) helped facilitate those expansions by creating a temporarily streamlined process to expand licensed premises to provide for, or expand, outdoor seating areas. As we appear to be approaching the light at the end of the tunnel with respect to the pandemic, breweries with on-premises privileges that have created or expanded outdoor areas, and desire to make those expansions permanent, need to plan for the eventual expiration of the temporary expansion by submitting an application for alterations as soon as possible.
The Temporary Expansion Guidance
Last summer, just as Governor Cuomo announced that parts of New York State were entering Phase 2 of reopening, SLA issued guidance on outdoor expansion of licensed premises, among other reopening guidance (the Guidance). The Guidance provides that “a licensee may, for the duration that this Guidance remains in effect, use any contiguous outdoor, open-air part of its existing premises for which it has control by deed, lease, management agreement, or other agreement of control (e.g., a municipal sidewalk café permit),” so long as those areas comply with applicable health guidance and directives regarding capacity and spacing limitations. The Guidance also allows licensees to temporarily relocate currently licensed points of sale to these outdoor areas.
Moreover, the Guidance created a streamlined process for these temporary expansions, requiring only that the licensee submit an updated diagram to SLA by email within five days of commencing use of the expanded area, rather than the usual application process of seeking alteration of a premises. By operation of Executive Order 202.98 the Guidance is extended through April 6, 2021 (and is likely to be extended again); however, at some point, as conditions improve in New York State, the Guidance will expire, and, absent approval for a permanent expansion, a brewery operating under the Guidance may suddenly find itself unable to continue using these outdoor areas.
How to Make Expansions Permanent
Like restaurants and bars, many breweries have come to consider outdoor seating and dining to be an integral part of their ongoing operations and therefore may want to make those expansions permanent. As stated above, this will require licensees to file an application for permission to make alterations with SLA in order to use any expanded area permitted under the Guidance on more than a temporary basis, and especially after expiration of the Guidance.
SLA has indicated that, as long as a licensee has timely submitted its updated diagram pursuant to the Guidance, it may still use the area while its alteration application is pending, presumably even after the Guidance expires. Nevertheless, given the long processing time currently being experienced with respect to virtually all SLA applications, and the current uncertainty regarding how much longer the Guidance will remain in effect, licensees interested in making their expansions permanent should file such application as soon as possible, but certainly before the expiration of the Guidance.
In addition, it is important to note that, if a previously moved point of sale is being utilized for the expanded area, or the licensee wishes to add an additional point of sale within the expanded area, an Additional Bar application will also need to be filed with SLA before the Guidance expires.
Business continuity continues to be in the spotlight statewide and Bond, Schoeneck & King has been able to assist operators in all sectors with current guidance related to COVID-19 through its Essential Resources for Business. Bond is able to advise and assist operators on their obligations, filing requirements and ongoing compliance with SLA.
