§ 5-13 Temporary Outdoor Dining Structures.*
RCNY § 5-13
Editor's note: Pursuant to § 5 of the adopted rule (City Record 2/2/2024, eff. 3/3/2024), this section expires and is deemed repealed on November 1, 2025.
(a)Definition. The term “temporary outdoor dining setup” means outdoor dining facilities authorized to continue operating on the sidewalk and in the roadway pursuant to section 10 of local law number 121 for the year 2023, and operated pursuant to this section.
(b)Applicability. Pursuant to section 11 of local law number 121 for the year of 2023, temporary outdoor dining setups that do not comply with 34 RCNY § 5-11 relating to design requirements for sidewalk cafes and roadway cafes shall be removed by the earlier of November 1, 2024 or 30 days after a determination of the Department to grant or deny a revocable consent for such sidewalk cafe or roadway cafe. A restaurant operating a temporary outdoor dining setup that does not submit a petition for a revocable consent pursuant this chapter within five (5) months of the effective date of these rules shall immediately remove such temporary outdoor dining setup. Any temporary outdoor dining setup that is not removed shall be subject to penalties for the operation of a sidewalk cafe or roadway cafe without a license and revocable consent and may be removed in accordance with paragraph (1) of subdivision (d) of 34 RCNY § 5-12.
(c)Operation and Management.
(1)Maintenance. Temporary outdoor dining setups shall be kept clean, well-maintained, and clear of trash, debris, graffiti, vermin, food scraps, and unsanitary conditions. Operators of temporary outdoor dining setups located in the roadway shall also keep clean the area of the roadway extending one and one-half (1 1/2) feet distance beyond the temporary outdoor dining setup on all sides of such temporary outdoor dining setup.
(2)Hours of Operation. Temporary outdoor dining setups may operate only during the following hours and days: Sunday, 10 a.m. to midnight Monday, 8 a.m. to midnight Tuesday, 8 a.m. to midnight Wednesday, 8 a.m. to midnight Thursday, 8 a.m. to midnight Friday, 8 a.m. to midnight Saturday, 8 a.m. to midnight (3) Alcohol Consumption. No beer, alcoholic or spirituous liquors shall be served at a temporary outdoor dining setups, unless permitted by the New York State Liquor Authority.
(4)No Smoking. Smoking or using electronic cigarettes is prohibited within temporary outdoor dining setups pursuant to subdivision (c) of § 17-503 of the Administrative Code.
(5)Heaters. Heating units utilized in a temporary outdoor dining setup must comply with all applicable laws, rules, and regulations and must be approved for use in such temporary outdoor dining setup by the New York City Department of Buildings and New York City Fire Department. Such heating units shall only be located within the area of the temporary outdoor dining setup.
(6)Good Order. Operators of temporary outdoor dining setups shall be held strictly accountable for the maintenance of good order in the temporary outdoor dining setup and the proper conduct of their patrons, including the prevention of excessive congregation of such patrons within or immediately adjacent to such temporary outdoor dining setup. Operators of temporary outdoor dining setups must provide adequate service to maintain the tables in the temporary outdoor dining setup and the adjacent street in a manner that ensures good order and cleanliness.
(7)Accessibility. A temporary outdoor dining setup must be directly accessible to persons with physical disabilities. The design of such setup shall comply with applicable requirements of the Americans with Disabilities Act and rules promulgated thereunder, and applicable requirements of the New York City Building Code.
(8)Noise.
(i)A licensee must comply with the New York City Noise Control Code, Chapter 2 of Title 24 of the Administrative Code, as applicable, including all restrictions and prohibitions relating to unreasonable noise pursuant to subdivisions (a) and (a1) of § 24-218 of the Administrative Code.
(ii)No musical instruments or sound reproduction or amplification devices shall be operated or used within a temporary outdoor dining setup, except where authorized pursuant to a street activity permit issued pursuant to 50 RCNY Chapter 1.
(iii)Where practicable, the Department may refer community noise disputes to alternative dispute resolution through the Mediating Establishment and Neighbor Disputes NYC program (MEND NYC), or a successor program.
(9)Lighting. Lighting shall illuminate only within the temporary outdoor dining setup.
(10)Secure Cafe.
(11)Furnishing Zone. No portion of a temporary outdoor dining setup shall be located in the furnishing zone and no items associated with such temporary outdoor dining setup shall be placed or stored in the furnishing zone.
(12)Service. An operator of a temporary outdoor dining setup shall ensure that employees of the temporary outdoor dining setup serve patrons solely from within the perimeters of such sidewalk cafe or roadway cafe.
(d)Placement.
(3)Temporary outdoor dining setups shall be located at least fifteen (15) feet from a fire hydrant and at least eight (8) feet from a crosswalk.
(iv)A reflective strip must be located on each barrier, along the entire length of the outward-facing side of such barrier.
(e)Temporary outdoor dining setups must be used and occupied by the restaurant that erected them for outdoor dining. If not used and occupied for outdoor dining for thirty (30) consecutive days or more, they must be removed from the sidewalk and roadway by the restaurant. This includes the removal of outdoor dining setups that are not being used during the winter months. The Department may send a written notice to the owner to remove an unused setup from the street or sidewalk. If the owner does not remove the setup or utilize the setup for outdoor dining purposes within fourteen (14) days after such notice the Department may remove the setup to a place of safety and send notice of such removal to the owner of such restaurant if an address for such person is available. If the property is unclaimed it may be disposed of in accordance with the provisions of the personal property law relating to lost property. If the property has slight or no value the Department may provide for its immediate disposal after removal.
(f)The Department may order the removal of or remove any outdoor dining setup or other obstruction that the Commissioner determines is a danger to public welfare, safety, or energy system reliability, including for planned or emergency work. (Added City Record 2/2/2024, eff. 3/3/2024)
