Mayor de Blasio’s Open Restaurants Executive Order, Phase 2 & the Consumption of Alcohol

Found within the executive order signed today by NYC Mayor Bill de Blasio is an indication that alcohol consumption on the streets of the city would be allowed to the extent necessary to provide for the implementation and operation of the Open Restaurants Program. It would be this program for which he introduced Executive Order No. 125, helping to pave the way for outdoor restaurant dining. With NYC’s expected entry into Phase 2 Reopening on June 22, there have been voices far and wide demanding guidelines for restaurants seeking to take part in the Mayor’s “Open Restaurant Program.”

Titled, “Open Restaurants Program and the Expansion of Outdoor Seating in Phase 2,” it would set guidelines for all restaurants and bars looking to open during the city’s Phase 2 opening.

There’s a reason that the consumption of alcohol is the focus of this article.

In a nutshell:

The Mayor’s move paves the way for the continued consumption of alcohol whereas outdoor dining is concerned. The Governor in turn paved the way, through his own Executive Order, for the State’s Liquor Authority to punish any bar or restaurant which wasn’t complying with applicable laws. He would also state that bars are now responsible for those spaces in front of their establishments. The presumed takeaway from that is that they’ll be responsible for those individuals in front of their places of businesses who in turn (again, we presume) are not complying with COVID-19 guidelines.

Although, it’s still not clear if Booze To Go will still be an option and what, if any, continued concerns might exist with people drinking in public outside of an establishment’s set space and breaking the Open Container Laws. It’s also not clear to what extent the city would be able to, or willing, to enforce such laws.

The Mayor’s been under fire recently due to restaurant patrons congregating outside the city’s restaurants and bars along certain streets. Governor Cuomo would make a big deal of it this past weekend during his daily COVID-19 press briefing. He threatened restaurants with warnings of their losing their liquor licenses. He warned people drinking in public that they were liable of being fined for breaking the Open Container Law which prohibits the carrying of an open container in public.

“Don’t Make Me Come Down There,” stated one of his Twitter Posts. A tweet posted in response to a video displaying many people standing about on St. Mark’s Place. Many of whom were carrying containers and not wearing facial coverings.

For anyone unaware, state liquor laws were relaxed during the COVID-19 crisis allowing for the purchase of alcohol to go.

During his press briefing today, Mr. Cuomo stated that which can be found below. He would declare an expansion of the State Liquor Authority’s power to immediately close a business down &/or suspend their liquor license.

It’s quite possible that the Governor was more concerned about social distancing when he stated that bars were responsible for the spaces in front of their places of business. This would then expand upon the the establishment’s responsibilities and hold them accountable for those people not obeying the state’s guidelines and rules as they pertained to the COVID-19 crisis.

NY Senator Brad Hoylman recently issued a press release concerning that which the Governor was furious about. His concerns though revolved around the Open Container Laws. You can find it below near the bottom of this page.

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Governor Cuomo today:

“We’re going to take an added step where I’m going to increase the state’s enforcement capacity by executive order. Where violations of the rules and the regulations could allow State Liquor Authority to do an immediate suspension of an alcohol license, which means a bar or a restaurant that are violating the rules could have an immediate suspension of their license. Business that is violating the rules could have an immediate shutdown order.

I’m also signing an executive order that gives bars responsibility for the sidewalk, the outside area immediately in front of their premises and the state SLA will enforce that also. But I need local governments to do their part. As we go through the phases the responsibilities of the local governments increase. The state cannot do enforcement on these local issues all across the state. I would, we don’t have enough people. SLA doesn’t have enough investigators. We need the local governments to do their part. And I know nobody likes to be the bearer of bad news. It’s not bad news. When people follow the rules the infection rate stays down. That’s called good news. But local governments have to do their part.”

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Within the second page of the Executive Order signed by Mayor de Blasio

Section 1.

• 2. I hereby suspend the following provisions of the Administrative Code of the City of New York (“Adm.in. administration Code”) to the extent necessary to provide for the implementation, and operation of the Open Restaurants Program, subject to applicable guidance issued by the Department of Transportation, the Department of Health and Mental Hygiene, the New York State Department of Health, and the State Liquor Authority:

1. Code Section 10-125, relating to the prohibition of the consumption of alcohol on streets;

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Looking further, one finds Code Section 10-125 falling under Public Safety Laws which the Mayor’s Executive Order would suspend:

• • 10-125 Consumption of alcohol on streets prohibited. a. Definitions.

  Whenever  used  in  this  section,  the  following  terms are defined as

  follows:

1. 1. Alcoholic beverage. Any  liquid  intended  for  human  consumption

  containing  more  than  one-half  of  one  percent  (.005) of alcohol by

  volume.

1. 2. Public place. A place to which the public or a substantial group of

  persons has access including, but not limited to, any  highway,  street,

  road,  sidewalk,  parking  area,  shopping  area,  place  of  amusement,

  playground, park or beach  located  within  the  city  except  that  the

  definition  of  a  public  place  shall  not include those premises duly

  licensed for the sale and consumption  of  alcoholic  beverages  on  the

  premises  or  within their own private property. Such public place shall

  also include the interior of any stationary motor vehicle  which  is  on

  any highway, street, road, parking area, shopping area, playground, park

  or beach located within the city.

1. 1. No person shall drink or consume an alcoholic beverage, or possess,

  with  intent  to  drink  or  consume,  an  open  container containing an

  alcoholic beverage in any public place except at a block party, feast or

  similar function for which a permit has been obtained.

1. 1. Possession of an open container containing an alcoholic beverage by

  any person shall create a rebuttable presumption that  such  person  did

  intend to consume the contents thereof in violation of this section.

1. 1. Nothing in this section shall be deemed to prohibit the consumption

  of  an  alcoholic  beverage  in  any  duly  licensed establishment whose

  certificate of occupancy extends upon a street.

1. 1. Any person who  shall  be  found  to  have  violated  any  of  the

  provisions  of this section shall be punished by a fine of not more than

  twenty-five dollars ($25) or imprisonment of up to  five  (5)  days,  or

  both, or pursuant to the provisions of the family court act of the state

  of New York where applicable.