In a conference call Thursday, Gov. Andrew Cuomo said New Yorkers are “outraged” at bar and restaurant establishments where people are gathering together and not abiding by safety measures designed to limit the spread of the coronavirus. He said it is “a question of public health, and New Yorkers paid a dear price for COVID and they are equally upset with these violations.”
As such, Cuomo announced all restaurants and bars statewide would be subject to new requirements that they must only serve alcohol to people who are ordering and eating food, and that all service at bar tops must only be for seated patrons who are socially distanced by 6 feet or separated by physical barriers. It was noted that, under current law, only establishments that serve food are permitted to serve alcoholic beverages.
The New York State Liquor Authority has now released “Guidance On Requirement that Licensees With On-Premises Service Privileges Serve Food With Alcoholic Beverages”:
Pursuant to Executive Order 202.52, effective Friday July 17, 2020, all licensed establishments with on premises privileges (e.g. restaurants, taverns, manufacturers with tasting rooms, etc.) shall not serve alcoholic beverages unless such alcoholic beverage is accompanied by the purchase of a food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law.
The State Liquor Authority offers the following guidance:
This guidance applies to all licensed on premises establishments apart from those which do not require food as a condition of licensure (i.e., clubs, and bottle clubs), in addition, it applies to all licensed manufacturing establishments with on premises service privileges.
This guidance supersedes and therefore modifies the Authority’s “Guidance on Restrictions for Licensees and To-Go & Delivery Sales in Response to COVID-19 Outbreak” to the extent that off premises beer, or cider sales must now be accompanied by a food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law. All other provisions of such Guidance remain in full force and effect, including the ability of on-premises licensees to sell alcohol to go with the purchase of food consistent with Executive Order 202.3, as extended.
This modification does not affect the ability of a manufacturer with off premises privileges to sell any product to go to a patron at the licensed premises in a sealed original container without the accompaniment of a food item.
The purpose of the requirement that food be sold with alcohol is to permit outside and limited indoor dining (outside of New York City), with alcoholic beverages, while restricting the congregating and mingling that arise in a bar service/drinking only environment. Accordingly, this SLA Guidance defines the relevant terms in Executive Order 202.52 as follows:
“Purchase of a food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law” shall mean that for each patron in a seated party, an item of food must be purchased at the same time as the purchase of the initial alcoholic beverage(s).
However, one or more shareable food item(s) may be purchased, so long as it/they would sufficiently serve the number of people in the party and each item would individually meet the food standard below.
“A food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law” shall mean:
For manufacturers with on premises service privileges: sandwiches, soups or other such foods, whether fresh, processed, pre-cooked or frozen; and/or food items intended to compliment the tasting of alcoholic beverages, which shall mean a diversified selection of food that is ordinarily consumed without the use of tableware and can be conveniently consumed, including but not limited to: cheese, fruits, vegetables, chocolates, breads, mustards and crackers
For on premises retailers with a food availability requirement, including restaurants and taverns: sandwiches, soups or other foods, whether fresh, processed, precooked or frozen.
Cuomo said, “The concept here was bars and restaurants would be allowed to do outdoor dining. That is a dining situation. You go with several people; you sit at a table and you have a meal. That would limit the exposure to the people at that table and then the tables are socially distanced. That's if you're eating a meal – if you're not eating a meal and you're just drinking, then it's just an outdoor bar and people are mingling and they're not isolated and individual tables, and that's what we're seeing.”
He noted, "As we continue our science-based phased reopening, the number of hospitalizations and our rate of positive tests remain steady and low. But we need to remember our success fighting this virus is a function of our own actions. Mask wearing, social distancing and hand washing – basic as they may seem – are critical to controlling the spread of this virus. Especially now that we are seeing spikes in cases throughout the country, this is not the time to let up – especially on compliance enforcement. We know the prescription and we know it works – we just need to be smart and do it."