Use of Outdoor Municipal Property under Recent Change in Law

 

Guidance as of June 30, 2022:

 

From June of 2020 until June of 2021, a Governor’s Executive Order allowed for the service of alcoholic beverages on contiguous and non-contiguous outdoor municipal property by SLA licensees with on premises retail privileges, subject to SLA guidance.

 

Under a law signed by the Governor on July 6, 2021, that service permission was extended for one year, until July 5, 2022.  Subsequently, a law signed by the Governor on June 30, 2022, extended that permission for three more years until July 5, 2025, as explained in this guidance.

 

Municipalities should take note that it shall be the responsibility of each municipality that makes municipal property available for these purposes to ensure that any structure thereon is built in compliance with all applicable local legal and other requirements, that reasonable and adequate traffic safety, public safety, access and other measures necessary to protect the public have been taken, and that the municipality is providing for enforcement of the foregoing.

 

Applicants for Use of Municipal Property:

  • All licensees* wishing to use municipal property pursuant to Chapter 165 of 2022, must take the following steps to incorporate the municipal property into their licensed premises:
    • ​​​​​​​A municipal notice must be sent by registered mail or hand delivered to the appropriate municipal entity pursuant to section 110-B of the ABC Law.  The notice may also be made via email, provided the municipality or community board elects to accept notices via email. The form and instructions can be found here.
    • ​​​​​​​After 30 days have passed from the date of the municipal notice, or if a municipality has waived notice, licensees should send an email to [email protected] with their main license serial number in the subject line.**  The email should include the following attachments:
      • ​​​​​​​(1) proof of receipt of the municipal notice or waiver thereof; and
      • ​​​​​​​(2)  a copy of the municipal permit or other written authorization providing permission to use the municipal property; and
      • ​​​​​​​(3) a block plot diagram showing the municipal property that has been incorporated into your licensed premises

 

* Licensees that have as a condition of their SLA license a prohibition against the use of outdoor space are not eligible for use of outdoor municipal property.  In order to utilize such space, such a licensee must apply for a change in method of operation and be approved.

 

 

 

Chapter 165 of 2022:

Section 1. Legislative intent. The intent of this act is to provide relief to holders of licenses issued under the alcoholic beverage control law with retail on-premises consumption privileges by allowing for the exercise of such privileges on contiguous and non-contiguous municipal public space.

    § 2. For purposes of this act:

    (a) "Licensee" shall mean the holder of a retail on-premises license issued under the alcoholic beverage control law or a manufacturing license issued under the alcoholic beverage control law that includes a privilege to sell and/or serve alcoholic beverages at retail for on-premises consumption on the licensed premises.

    (b) "Non-contiguous municipal public space" shall mean space that:

    (i) is located in front of, behind, or to the side of the licensed premises;

    (ii) is within the property boundaries of the licensed premises as extended out; or within the property boundaries of the two nearest adjacent properties;

    (iii) does not extend further than the midline of any public roadway;

    (iv) is separated from the licensed premises only by a pedestrian thoroughfare; and

    (v) otherwise complies with all applicable federal, state and local requirements.

    (c) "Contiguous municipal public space" shall mean space that:

    (i) is located in front of, behind, or to the side of the licensed premises;

    (ii) is within the property boundaries of the licensed premises as extended out; or within the property boundaries of the two nearest adjacent properties;

    (iii) otherwise complies with all applicable federal, state and local requirements.

    § 3. Upon application to the state liquor authority and with the authority's approval of such application, a licensee, in accordance with its license, may exercise its privilege to sell and/or serve alcoholic beverages at retail for on-premises consumption on contiguous municipal public space or non-contiguous municipal public space provided:

    (a) the municipality in which the licensed premises is located issues a permit or the responsible municipal regulatory body or agency issues written authorization to the licensee to sell and/or serve food and beverages on such contiguous municipal public space or non-contiguous municipal public space;

    (b) the licensee submits notice to the state liquor authority in the form of a copy of such permit or other written authorization;

    (c) the licensee submits notice to the state liquor authority in the form of a diagram depicting both the licensed premises and the contiguous municipal public space or non-contiguous municipal public space to be used by the licensee;

    (d) all new applicants for use of non-contiguous municipal space shall provide community notification to the municipality, including municipalities outside the city of New York, in a manner consistent with or required by subdivision 2 of section 110-b of the alcoholic beverage control law as required for the city of New York; and

    (e) use of any such space meets all applicable federal, state or local laws, rules, regulations, guidance, conditions or requirements.

    § 4. (a) Notwithstanding the provisions of section three of this act, a licensee, previously approved by the municipality, exercising its privilege to sell and/or serve alcoholic beverages at retail for consumption on contiguous municipal public space or non-contiguous municipal public space upon the effective date of this act shall be allowed to continue such use pursuant to this act.

    (b) Within ninety days, the licensee must provide notice to the state liquor authority pursuant to subdivisions (b) and (c) of section three of this act to indicate that the licensee will continue exercising its privilege to sell and/or serve alcoholic beverages at retail for consumption on such contiguous municipal public space or non-contiguous municipal public space.

    § 5. If at any time the municipality revokes, cancels or suspends or otherwise terminates the licensee's authorization to use such contiguous municipal public space or non-contiguous municipal public space, the licensee shall cease exercising its privilege to sell and/or serve alcoholic beverages at retail for consumption on such municipal public space.

    § 6. Violations of the provisions of section three, four or five of this act, or a violation of any provision of the alcoholic beverage control law or the rules of the state liquor authority taking place on contiguous municipal public space or non-contiguous municipal public space being used by such licensee shall be subject to the provisions of sections 118 and 119 of the Alcoholic Beverage Control Law.