Is Outdoor Dining Over?

New regulations are here. Restaurants are trying to make sense of them.

For New York City restaurateurs who want to keep operating their streeteries, it’s go time. Any businesses that participated in the temporary Open Restaurants program have until August 3 to file for a new permit. Last week, the website Streetsblog reported that only 23 restaurants (yes, fewer than two dozen) have public hearings scheduled for their own roadside-dining setups. Advocates of outdoor dining say it’s proof that the process has now become too onerous for operators: They’ll have to rebuild their structures to meet specific parameters and take them down from December through the end of March. Only a privileged few will have the means to participate in the new program. This, the thinking goes, is the beginning of the end. In reality, like everything that involves restaurants and bureaucratic red tape, it’s complicated.

“I cannot believe that number,” says Patrick Bozeman, an owner of Greenpoint’s Chez Ma Tante, when I tell him about the 23 restaurants. This summer, he has taken on a side gig to help a few other restaurateurs who are applying for permanent outdoor dining. The city requires that owners submit drawings detailing what their outdoor spaces will look like; as an interior designer, Bozeman is able to more quickly and accurately mock up the drawings. So he agreed to do the work for a few friends: the guys behind the Commodore and the owners of Ops and Leo. (He has since had to turn down others who have asked; he no longer has time.) In May, the Commodore II, the newer Manhattan location of the bar, submitted its application. “We still haven’t heard feedback,” Bozeman says. The Commodore’s owners say there’s no word yet on how long it will take but that September would be a best-case scenario. (Another restaurateur, John Nguyen of Banh, says the city got back to him after three weeks and that he needs to make some changes to his application before final approval. He did the application and drawings himself.)

The codification of outdoor dining comes with some other new rules and changes. Dining sheds are a thing of the past, as enclosed structures are now banned. Floors must be removable and elevated, to allow for drainage, and water-filled barriers are now required. There’s also the cost. Owners are on the hook for a $1,050 fee to cover a four-year permit in addition to a fee per square footage that varies (from $5 to $31) depending on location in the city. (And some owners just don’t like the idea of structures that must be temporary by design. “It takes away from you being able to invest into the charm,” says Alex Oropeza, a co-owner of Bolivian Llama Party in Sunnyside.) Along with the petition form, applicants must submit a certification showing they have a contract with a pest-control company, photographs of the area, and a site plan with drawings depicting the proposed sidewalk or roadway café. To help with the process, some restaurateurs have been turning to architects, lawyers, and expediters.

The Commodore’s owners are working with a fixer, someone whom Bozeman describes as a “DOH walk-through guy,” who has also reviewed his drawings. “He’s been a great resource because I’ve sent in my drawings and he’s pushed back and said, ‘You have to show every hatch, every little detail, every signpost on your drawing,’” Bozeman says. The expediter has provided feedback that he says he might have only otherwise gotten after hearing back from the Department of Transportation, the city agency handling outdoor dining. “There is a barrier to this process, because most restaurants do not have someone in-house,” he says. “Because what they’re asking you to show is very specific, and a napkin sketch is not going to get you there.”

The low number of applicants, it turns out, is misleading: It doesn’t include pending applications or businesses that have applied for sidewalk-café permits, which do not require a public hearing except in certain cases. A representative for the DOT says “hundreds of applications” have been filed (that is still a fraction of the 12,000 permits that the city issued, by early 2022, during the temporary program) while many owners say they’re running down the clock, waiting until the last possible moment to apply to avoid any future confusion or changes.

“You feel that you can’t wait — and then you feel like it’s so uncertain that you should wait, because things are going to change,” explains Alex Raij, who is applying for her Cobble Hill restaurants, La Vara and Saint Julivert. “You don’t know how much expertise you need. You don’t know if getting this architect is going to give you a better possibility, and their fees are really, really expensive.”

Several restaurateurs argued that the new parameters make the program less equitable — half of the 12,000 permits issued for Open Restaurants were for restaurants in the outer-boroughs, where sidewalk cafés were much rarer before the pandemic — and while some agree that they should have to pay for winter storage, the feeling is that very small businesses will have more difficulty navigating the new rules: They may not have the funds for off-season storage, much less the money to hire an architect or expediter. There is also a language barrier, as the application is currently available only in English and Spanish. “The application is not as easy as I thought,” Maxi Lau, who runs Maxi’s Noodle in Flushing, says. “It’s a lot of specific directions and paperwork. No offense, but if someone isn’t all that good in the English language … they’re kinda screwed.”

In Fort Greene, Walter’s has outdoor seating that’s always packed, and the restaurant doesn’t want to disrupt its setup any earlier than necessary. “I’m guessing most people are doing what we’re doing and they’re waiting as long as possible to file,” co-owner Danny Minch says. They’re waiting because, once the city approves the application, they’ll have a month to take down the existing structure. (There’s some confusion here, too: While this is detailed, somewhat unclearly, on the DOT’s Dining Out website, a rep says that as long as owners meet the August 3 deadline, they’ll “be able to keep their existing setups in place for the remainder of the season.”) Minch, however, is betting that it’ll take the city a few months to approve his application, allowing him to ride out the rest of this season until Walter’s will be required to take down its structure anyway. “As much as I would love to talk shit about the city,” he says, “they have made the guidelines fairly simple.”