You must order food but you don’t actually have to eat it or be required to pay for it. You can walk up to a bar or window and order food or drinks -- but only if the restaurant or tavern never offered table service in the first place.
And chips and pretzels count as food in brewery or winery tasting rooms, but not in bars or restaurants.
Those are among the “clarifications” issued late Tuesday by the State Liquor Authority in response to lingering confusion over two new rules announced last week by Gov. Andrew Cuomo.
On July 16, Cuomo had issued the two new directives (one in an executive order) aimed at containing the spread of the coronavirus in restaurants, bars tasting and similar businesses. One required the sale of food with any alcohol order, and the other appeared to prohibit walk-up service at bars.
The intent, according to Cuomo and the SLA, was to contain the kind of extended “mingling” at bars that happens when people are drinking but not sitting down to eat.
But in the six days between Cuomo’s announcement and Tuesday’s new “guidance,” the details weren’t always clear. Late Tuesday, the SLA issued the clarifications in the form of a Q&A, touching on some of the most frequently asked questions. (See more details below).
Lauren Monforte, a practicing lawyer who also owns Beer Belly Deli & Pub on Westcott Street, was glad to see some of her questions answered. She also welcomed the re-statement of the intent of the rules.
“As a lawyer you are trained to look at the language of the statute but also the purpose behind it,” Monforte said. “I think they have done a great job of laying out the purpose and putting the burden on bar owners to act responsibly. We have removed tables, limited operations, made expensive infrastructure investments for the safety of our staff and customers - all at the expense of profit but all for the greater good of public health. The SLA and the Governor are asking us to step up as members of the community and caretakers of a public good. I’m all for it.”
The new clarification from the SLA also came with a warning, seemingly aimed at some places that had put items like “Cuomo Chips” on their menus last week in reaction to the rules.
“As a restaurant and bar owner interested in continuing to assist in our shared public health goal, you should not be looking for ways to circumvent the dining or meal requirement nor the purpose behind it, as it jeopardizes the public health and the progress all New Yorkers have made,” the SLA guidance says. “Obvious efforts to circumvent will be treated as violations of the Executive Order."
While the alcohol-with-food rule got a lot of the attention in the past week, the issue of the walk-up bar service was especially troubling to many bars or tasting rooms, especially those that have never had table service. Some owners have said they might have to shut down rather than hire new employees to serve tables.
But the guidance issued Tuesday seems to let those businesses operate without creating new table service.
“Please note that while table service is generally required, if an establishment had no table service prior to now and continues to not have table service, the counter may be used for walk-up ordering,” the SLA guidance said.
This would appear to be the case for such businesses in Syracuse as The Blarney Stone on Tipperary Hill, Swallow’s on South Avenue and The Blue Tusk in Armory Square, all of which have operated with windows or counters for ordering..
But there are restrictions:
“(1) all patrons ordering and all employees taking orders must wear appropriate face coverings,” theSLA guidance reads. " ... (2) all patrons (who are of separate parties) that are ordering from the bar/counter must be spaced at least 6 feet apart ... (3) at no time shall more than 5 patrons be standing at the bar/counter at the same time, (4) markings shall be placed on the floor to indicate proper spacing, (5) once an order is made, patrons should either receive their food and/or drink then, or return to their table and wait until called to pick up their order, i.e., patrons should be at the bar/counter only to place, pay for, or receive an order.”
“This is really the big one,” said Paul Leone, director of the New York State Brewers Association. He had said the table service rule would create problems for brewery tasting rooms because they’d have to add staff and those employees serving tables could be a greater risk serving unmasked customers at tables than in one locations at the bar.
“This really removes the most problematic piece for our us,” he said of the breweries. “It removes a big obstacle.”
Here’s a look at some of the other SLA clarifications of the rules, from the Q&A format. Some of the answers have been edited for space. The guidance is targeted to owners an operators of bars, restaurants, etc., not to customers:
Q: I operate a restaurant or bar, and I understand that I must serve sandwiches, soups, or “other foods” when a patron orders an alcoholic beverage, can you tell me what constitutes “other foods?”
A. “Other foods” are foods which are similar in quality and substance to sandwiches and soups; for example, salads, wings, or hot dogs would be of that quality and substance; however, a bag of chips bowl of nuts, or candy alone are not.
As a restaurant or bar owner, in determining whether a particular item is substantial enough, please keep in mind the purpose of this policy: to ensure that patrons are enjoying a sit-down dining experience among a small group with drinks, i.e. a meal, and not a drinking, bar-type experience. A drinking, bar-type experience often involves or leads to mingling and other conduct that is non-compliant with social distancing and the use of face covering and is therefore not yet a safe activity during the current health emergency.
Q: I am a manufacturer (brewery, winery etc.) with on premises privileges (tasting rooms), do I need to make sandwiches, soups, and other similar foods available?
A: Only to the extent you have a separate on premises license (tavern, restaurant, etc.) at your manufacturing premises. If you have only a manufacturing license, you must provide patrons the ability to order, at a minimum, finger foods like chips, cheese and crackers, or pretzels.
Q: Must a patron order food with each alcoholic beverage ordered?
A: No, as long as food is ordered at the time of initial order of any alcoholic beverages that is sufficient in substance (see above) and is also of a quantity sufficient to serve the number of patrons who are present and being served alcohol.
Q: Can I use a food truck or other third-party business to fulfill the food requirement under this guidance?
A: No, if the ABC (Alcohol Beverage Control) Law requires that food be made available under your license, then that food must be available on your premises to be ordered – it cannot be delivered at the time or order, and a patron should not have to leave the premises to get it; additionally, the ABC Law prohibits a second business from operating on a licensed premises. A food truck may be located in an unlicensed parking lot area; however, if it becomes apparent that use of a food truck creates too much traffic and lack of social distancing (on the premises or at the truck), you should discontinue its use immediately.
Q: Can a patron order an item to-go and order an alcoholic beverage to drink while waiting?
A: No, that is not an on-premises dining experience. A takeout customer should be encouraged to call ahead and/or wait off the premises for his/her to-go order and leave with the food and drink, consistent with our guidance on takeout service since March 2020,
Q: Can a patron order only a dessert item along with an alcoholic beverage?
A: Yes, so long as the dessert item is a substantial item, such as a piece of cake/pie, an ice cream sundae, etc.; it should not be only a drink with whip cream, a cookie, a piece of candy, etc. As with all question as to the food standard, please keep in mind the purpose of this policy as described above.
Q: Must I sell an item of food to accompany the order or may I provide it as complimentary?
A: While a charge is not necessarily required for the food, you must have a record that food was ordered with drinks, so bills/checks need to reflect the food that was ordered and served. Further, you should not provide food that is shared among parties.
Q: Must I force customers to eat a food item?
A: Food must be ordered and served. We cannot require you to force someone to eat what they have ordered, but again, licensees are required to serve in a manner consistent with the purpose of this policy, and if customers are not at the premises to enjoy a sit-down dining experience, serving them alcohol is a violation. If it is evident to you that a patron intends to circumvent the policy, you should not continue to serve them.
Q: I understand that counter service is limited, does that mean that customers may not sit at my lunch counter or bar?
A: No, patrons may continue to sit at a bar or counter in the same manner as is required under the DOH (State Department of Health) interim guidances, e.g., parties of no more than 10, 6-foot distance between parties, etc.
MORE ON FOOD AND DINING RULES
Chips? Chips and salsa? Cuomo’s rules on food sales at bars still causing confusion
Cuomo threatens to reverse NY bar, restaurant reopenings if big crowds continue
Cuomo’s new booze rules: What bars can and can’t do (and do chips count as food?)
Some Upstate NY bars offering snarky food items in response to Cuomo order
No more alcohol without food at NY bars and restaurants, Cuomo says
Winery, brewery, and distillery tasting rooms: Open, but different
Don Cazentre writes for NYup.com, syracuse.com and The Post-Standard. Reach him at dcazentre@nyup.com, or follow him at NYup.com, on Twitter or Facebook.
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