The New York City Department of Transportation has published final rules regarding the open restaurant program.  Any restaurant that erected an outside dining structure or engaged in outdoor dining on a public road or street pursuant to prior rules must apply for revocable consent under the new regulations within five months of the new rules becoming effective (February 2, 2024) or remove any temporary outdoor dining setup.   

An application may be made by any food service establishment licensed by the New York City  Department of Health and Mental Hygiene (“DOHMH”) which has business frontage on the ground floor.  The application is self certifying and the restaurant may begin outdoor dining after the application has been filed and certified.  Applications are made on-line https://www.nyc.gov/html/dot/html/pedestrians/openrestaurants.shtml.  The program applies to dining establishments that seek to use City streets or sidewalks.  It does not apply to dining in an open area on privately owned outdoor space.  There is no fee to apply, but there are fees for the use of the city space.   Seating may only be used for the business of the food establishment.  A license or permit from the New York State Liquor Authority is required for the service of alcoholic beverages.  Information about how the Liquor Authority deals with the New York City open restaurant program is available at https://sla.ny.gov/instructions-continued-and-new-use-municipal-property.

Areas set aside under the open restaurant program must comply with the Americans With Disabilities Act.  All roadway seating must be used and occupied within thirty days of authorization. If the space is not used and occupied for any thirty-day period, it will be deemed abandoned and must be removed. 

There are many rules regarding size, location, barriers, signs, setbacks and materials.  Street structures may only remain during specified time periods. Those seeking to participate in the program should familiarize themselves with these rules. 

 ^{Keven Danow is an attorney representing members of all three tiers of the Beverage Alcohol Industry and member of the firm of Danow, McMullan & Panoff, P.C. 605 Third Avenue, New York, NY 10158.  (212 3703744). Website: thedanowgroup.com; email: kdanow@thedanowgroup.com. This article is not intended to give specific legal advice. Before taking any action, the reader should consult with an attorney familiar with the relevant facts and circumstances.}