On Aug. 3, 2023, the New York City Council passed a recently revised bill that will allow restaurants to continue to offer patrons outdoor dining year-round, something that became commonplace during the pandemic thanks to the emergency outdoor restaurants program. The now-permanent legislation permits restaurants outdoor dining options, including year-round sidewalk dining or dining in roadways. However, restaurants that choose the roadway option will only be allowed to host guests on New York City streets 8 months out of the year: April through November. Any structure built in a roadway for dining must be deconstructed in the winter and reconstructed again in the spring.
The law provides that restaurants can offer outdoor dining between 10 a.m. and 12 a.m. For the first time, restaurants will have to pay fees based on their outdoor dining spaces’ location and square footage, with restaurants in Manhattan south of 125th Street facing higher rates.
Restaurants will be permitted a phase-in period to comply with the new law until November 2024. During this time, restaurateurs will have to either update or create dining spaces that comply with new regulations and ensure their licensing and permits are current.
The Department of Transportation (DOT) has only outlined the above regulations so far (the allotted from frames of dining and square-footage fees), but more are certainly soon to come. The New York City Council does affirm that these other regulations, soon to be established by the DOT, will “create more orderly and uniform regulation of outdoor dining that provides reliable consistency for restaurants and neighborhoods alike.”
Restaurateurs will also be happy to know that while restaurants will have to pay fees to host diners outside based on square footage, the legislation does make it much easier for them to apply for outdoor dining with the city by reducing the required application process and timelines for approval from city entities. Not only that, but this new legislation also lowers the overall cost of participation, making it more affordable and less “bureaucratically prohibitive” than the previous COVID-19 outdoor dining licensing scheme — so long as restaurants lawfully apply for a license and submit a petition for a revocable consent by the DOT’s soon-to-be specified deadline. This deadline will be announced by the Department of Transportation on their Dining Out site.
More neighborhoods — and the restaurants in them — will be eligible to participate in the new outdoor dining program thanks to zoning changes established by the New York City Council in 2022. These changes will now include the Gowanus and SoHo/NoHo neighborhoods in outdoor dining eligibility.
The one thing to note regarding this bill’s arrival is that any current sheds or dining structures that do not comply with regulations set by the DOT must be taken down within 30 days of determination or by Nov. 1, 2024, whichever comes first. The New York City DOT will announce these new regulations on their Dining Out website soon and finalize them in late 2023 or early 2024.
All we know so far is that the updated regulations will no longer allow enclosed structures and will address the following, according to the official Dining Out website:
- Sitting Requirements, such as how far facilities must be from street objects like crosswalks to allow uninterrupted pedestrian sidewalk spacing and more.
- Material Requirements, such as the material and dimensional components restaurants can make these setups from (e.g., barriers, flooring, vertical elements such as umbrellas and awnings).
- Operational Requirements, including how restaurants are permitted to use these setups, cleanliness, storage, hours of operation, seasonality, and rules addressing amplified sound.
The legislation is new, but we will continue to track its progress. The foregoing is not intended to be comprehensive or constitute legal advice. If you would like to address your specific circumstances or would like more information, feel free to call us at (212) 625-8505.
For now, the following resources have the most current information and address many of the questions restaurant owners may have in the coming months. Check out these links for more information:
Dining Out NYC – The official website for New York City’s outdoor dining programs.
Dining Out NYC FAQ – This page addresses nearly every aspect of this new bill, from timelines to eligibility and the application process. If you expand the “fees” section, you can find the rates of the new square-footage fees and the licensing fee, too.