Licenses and Revocable Consents for Sidewalk and Roadway Cafes*

RCNY tit. 34, ch. 5

in effect

34 RCNY § 5-01 Definitions.

§ 5-01 Definitions. For purposes of this chapter, the following terms have the following meanings: Administrative Code. The term “Administrative Code” means the Administrative Code of the City of New York. Barrier. The term “barrier” means an object placed on all sides of a roadway cafe, other than the side that fronts the restaurant, to protect patrons of a roadway cafe, that has a fully built interior wall and bottom to hold water or such other filler approved by the Department and that is removable. Clear Path. The term “clear path” means an unobstructed path on a sidewalk or sidewalk widening for pedestrian circulation. Commissioner. The term “Commissioner” means the Commissioner of Transportation, or their authorized designee. Consent. The term “consent” means an authorization, revocable at will, to an owner of real property or, with permission of the owner, to a tenant of real property to use the adjacent sidewalk widening to construct and operate a sidewalk cafe subject to the terms applicable thereto. Corrective action request or CAR. The term “corrective action request” or “CAR” means written notice by the Department that a condition created or maintained within a sidewalk cafe or roadway cafe is in violation of a provision of §§ 19-160 through 19-160.6 of the Administrative Code, these rules, or a term or condition of a license issued pursuant to this chapter, with a request that action be taken by the person to whom such notice is addressed to correct such condition. Department. The term “Department” means the Department of Transportation. Enclosed sidewalk cafe. The term “enclosed sidewalk cafe” means a sidewalk cafe that is constructed predominantly of light materials such as glass, slow-burning plastic or lightweight metal pursuant to a permit issued by the Department of Buildings. Fee rate. The term “fee rate” means the compensation to be paid per square foot to the city during the continuance of a revocable consent or a consent in an amount equal to the applicable sector rate, reduced, as determined by the Department, to account for factors including, but not limited to, the impact historical weather patterns may have on the operation of a sidewalk cafe or roadway cafe and any area of a roadway cafe occupied by barriers demarcating such cafe from the curb lane or parking lane. Floating parking lane. The term “floating parking lane” means a parking lane that is separated from the curb by a protected bicycle lane that is adjacent to the curb. Furnishing zone. The term “furnishing zone” means an area of a sidewalk that is parallel to the curb line and in which streetscape elements, such as street furniture and trees, are located. Ground floor. The term “ground floor” means the portion of a building that is visible from the street and directly accessible to the public from the street. Ground floor restaurant. The term “ground floor restaurant” means any ground floor premises that is operated pursuant to a food service establishment permit issued by the Department of Health and Mental Hygiene. Landmarks Preservation Commission or LPC. The term “Landmarks Preservation Commission” or “LPC” means the New York City Landmarks Preservation Commission. Overhead covering. The term “overhead covering” means a projection over a sidewalk cafe, other than an enclosed sidewalk cafe, or roadway cafe that is comprised of a support structure over which material is attached. Such overhead covering may provide weather protection or decoration and shall not be affixed to the building. Materials that may be used for an overhead covering include but are not limited to tensile fabric, retractable fabric, fabric panels, and rigid panelized sheet material (e.g., polycarbonate panels, panelized sheet metal panels, etc.). Petitioner. The term “petitioner” means a person or entity who submits a petition for a revocable consent for a sidewalk cafe or a roadway cafe, or an authorized representative of such person or entity. Revocable consent. The term “revocable consent” means a grant of a right, revocable at will, to an owner of real property or, with the consent of such owner, to a tenant of real property to use adjacent inalienable property of the City of New York to construct and to operate a sidewalk cafe or roadway cafe subject to the terms and conditions applicable thereto. Roadway. The term “roadway” means that portion of a street designed, improved, or ordinarily used for vehicular travel, exclusive of the shoulder and slope. Roadway cafe. The term “roadway cafe” means an open-air portion of a ground floor restaurant containing readily removable tables, chairs, and other removable decorative items, located in the curb lane or parking lane of a roadway fronting the restaurant and designed and operated pursuant to 34 RCNY §§ 5-02 through 5-12. Sector. The term “sector” means an area of the city, as determined by the Department, where the median annual rent charged for a square foot of a ground floor commercial premises, in accordance with information published by the Department of Finance pursuant to subdivision h of § 11-3101 of the Administrative Code, is similar. Sector rate. The term “sector rate” means a dollar amount determined by the Department for each sector, based on the median annual rent for a square foot of a ground floor commercial premises in such sector, as determined in accordance with the information published by the Department of Finance pursuant to subdivision h of § 11-3101 of the Administrative Code, or other similar data that the Department determines accurately reflects such median annual rent in such sector. Sidewalk. The term “sidewalk” means a portion of a street between curb lines, or lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians. Sidewalk cafe. The term “sidewalk cafe” means a portion of a ground floor restaurant that is located on a public sidewalk or sidewalk widening in front of the restaurant and that is designed and operated pursuant to 34 RCNY §§ 5-02 through 5-12. Sidewalk widening. The term “sidewalk widening” has the same meaning as in subdivision (f) of § 37-53, or a successor provision, of the zoning resolution of the city of New York. Street. The term “street” has the meaning ascribed thereto in subdivision 13 of § 1-112 of the Administrative Code. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-02 General Requirements.

§ 5-02 General Requirements. (a) Requirement for a License and Revocable Consent. Any person owning, leasing, managing or operating a ground floor restaurant upon property which abuts upon any street may establish and operate a sidewalk cafe upon the sidewalk or sidewalk widening of such street in an area immediately adjacent to its premises, or a roadway cafe upon the roadway adjacent to the curb in front of such ground floor restaurant, or both, provided that such sidewalk cafe or roadway cafe must be granted a license and a revocable consent by the Commissioner, and provided further that a sidewalk cafe located entirely on a sidewalk widening must be granted a license and consent for the use of such sidewalk widening as a sidewalk cafe by the Commissioner. (b) Enclosed Sidewalk Cafes. (1) Notwithstanding subdivision (a), no license shall be granted or renewed for the operation of an enclosed sidewalk cafe at any location other than a location where: (i) An enclosed sidewalk cafe had been constructed pursuant to a permit issued by the Department of Buildings and in accordance with Section 3111 of the New York City Building Code prior to March 16, 2020; and (ii) An enclosed sidewalk cafe was lawfully operated as such on March 16, 2020 or at any time within four years prior to such date. (2) Granting or renewal of any such license to operate an enclosed sidewalk cafe at such location shall be in accordance with subdivision (c) of 34 RCNY § 5-03. (c) Landmarks Preservation Commission Review. Approval by the Landmarks Preservation Commission of a license application is required where the petition for a revocable consent to operate a sidewalk cafe or roadway cafe includes work or improvements subject to the jurisdiction of the Commission. (d) Modification. An application to modify a license must be submitted in accordance with 34 RCNY § 5-03, and a petition to modify a revocable consent, with appropriate drawings, must be submitted in accordance with paragraph (2) of subdivision (c) of 34 RCNY § 5-04. Such application and petition shall be reviewed pursuant to the process set forth in subdivision (c) of 34 RCNY § 5-07, except that the Department shall hold a public hearing only when a licensee seeks approval (i) to increase the area of the sidewalk cafe or roadway cafe by ten (10) percent or greater, or (ii) to modify the location of a sidewalk cafe or roadway cafe. (e) Except where expressly prohibited by law, the Commissioner may, in accordance with §§ 19-160 through 19-160.6 of the Administrative Code, waive these rules, in the interest of public safety and convenience. (f) Compliance. A licensee must comply with all other applicable laws, rules, and regulations, including but not limited to the New York City Fire Code, New York City Building Code, New York City Health Code and the Department of Health and Mental Hygiene’s rules and regulations, as applicable. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-03 License Requirements.

§ 5-03 License Requirements. (a) Term. The term of a license granted pursuant to this chapter shall be four years. (b) Prohibition on Sale, Lease, or Transfer. A license to establish and operate a sidewalk cafe or a roadway cafe shall be personal to the applicant and may not be sold, leased or transferred. Such license shall not be deemed revoked by the sale or transfer of the lease or of title to the building or structure to which the sidewalk cafe or roadway cafe is related unless such sale or transfer materially alters the plans submitted for the license application or revocable consent. For purposes of this subdivision, “materially alter” shall mean to modify the location or increase the area of a sidewalk cafe or roadway cafe by ten (10) percent or more. (c) License Applications. An application for the granting of a license, or for renewal, modification, or assignment of a license, may be submitted electronically on the Department’s website and must include all materials required by the Department as set forth in these rules, including a completed application in a form prescribed by the Department and provided on the Department’s website. (d) License Application Fees. There shall be separate fees, as provided in this subdivision, for the granting and renewal of a sidewalk cafe license and a roadway cafe license. Such fees shall be non-refundable and are set forth in the chart below. Such license and license renewal fees shall be in addition to the amount required to be paid as compensation for a revocable consent, or renewal thereof, to establish and operate a sidewalk cafe or roadway cafe. Sidewalk Cafe Roadway Cafe Granting of license $1,050 $1,050 Renewal of license $1,050 $1,050 (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-04 Requirements for Revocable Consent for Sidewalk Cafes and Roadway Cafes.

§ 5-04 Requirements for Revocable Consent for Sidewalk Cafes and Roadway Cafes. (a) Term. The term of a revocable consent to operate a sidewalk cafe or roadway cafe shall be one license term (i.e., four years) and shall be concurrent with the term of the license granted pursuant to this chapter for the sidewalk cafe or roadway cafe. (b) Assignment or Transfer of a Revocable Consent. Revocable consents may not be assigned, transferred, or otherwise conveyed without the written permission of the Commissioner. (c) Petition Requirements. A petition for the granting of a revocable consent, or for a renewal, modification, or assignment of a revocable consent, may be submitted electronically on the Department’s website and must include: (1) Petition Form. An accurately completed petition form, which will be made available on the Department’s website, signed by the petitioner, who must be a person or entity permitted to operate the ground floor restaurant that occupies the premises immediately adjacent to the sidewalk and roadway areas for which the revocable consent is sought. (2) Site Plan and Drawings. A site plan comprised of an accurate drawing depicting required clearances, the space to be occupied, and the locations of tables, chairs, barriers and vertical elements in the form provided on the Department’s website. Where a sidewalk cafe or roadway cafe will be located in part on adjacent private property, the site plan must delineate the property line. Such drawings may be, but are not required to be, developed by an architect, engineer, or other professional third party. (3) Photographs. One or more photographs that show the entire area of or to be occupied by the sidewalk cafe or roadway cafe, and one or more photographs that show the area adjacent to the sidewalk cafe or roadway cafe, in the form provided on the Department’s website. (4) Property Owner Consent. Where the petitioner is not the owner of the property in front of which the sidewalk cafe or roadway cafe is located, written, signed and notarized consent of such owner or a representative of a property management company authorized to provide such consent on such owner’s behalf. Upon commencement of a new lease following a transfer of ownership of the building, the written, signed and notarized consent of the new owner or a representative of a property management company authorized to provide such consent on such owner’s behalf must be secured and filed with the Department. (5) Pest Control Plan. A certification from the petitioner that they have entered into a contract with a licensed pest control professional that includes pest control services for the sidewalk cafe or roadway cafe. (6) Additional Information. Any additional supporting materials or information requested by the Department, including any documents, information or materials necessary to register the revocable consent agreement with the Comptroller. (d) Additional Revocable Consent Requirements. Prior to executing the revocable consent agreement, the petitioner must submit proof of insurance and a security fee in the amounts and form set forth in the revocable consent agreement. (e) Renewal. Petitions for renewal of a revocable consent granted pursuant to this chapter must include all forms and materials required by subdivision (c) of this section, together with all supporting documents and correspondence, except that the consent of the owner is not necessary for the issuance of a renewal during the term of the lease for the premises, including any renewals of such lease. (f) Order of Priority. When two or more ground floor restaurants share the same sidewalk and roadway frontage, the ground floor restaurant that first submits a complete and accurate petition for a revocable consent pursuant to this chapter has priority for the operation of a sidewalk cafe or a roadway cafe in such frontage. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-05 Sidewalk Cafe Revocable Consent Review Process.

§ 5-05 Sidewalk Cafe Revocable Consent Review Process. (a) Department Notice. The petition filed with the Department must be complete and accurate, as determined by the Department. The Department will, within 5 days of the filing of a complete and accurate petition, forward such petition by electronic mail to the Borough President of the borough in which the sidewalk cafe is proposed to be located, the Speaker of the Council and the Council Member of the district in which the sidewalk cafe is proposed to be located, for information purposes, and to the Community Board for the community district in which the sidewalk cafe is proposed to be located, for review pursuant to subdivision (b). (b) Community Board Review. (1) No later than 40 days after receipt of such petition, the Board must either: (i) Notify the public of such petition, conduct a public hearing thereon, and submit a written recommendation to the Department, provided, however, the Department may at its discretion accept a written recommendation submitted, following a public hearing, more than 40 days after receipt of the petition; or (ii) Waive, by a written statement, its public hearing and recommendation on such petition in accordance with the requirements set forth in subdivision (b) of § 19-160.2 of the Administrative Code. (2) If a Community Board does not submit a written recommendation to the Department within 40 days of receipt of the petition, the public hearing and recommendation will be considered waived by such Board. (c) Department Review. (1) If a public hearing is not required to be held by the Department pursuant to paragraph (3) of this subdivision, within 20 days after the expiration of the period described in subdivision (b), the Department will: (i) Approve the petition for a revocable consent for a sidewalk cafe, disapprove it or approve it with modifications; and (ii) File with the Council any decision to approve or approve with modifications, together with the petition. Such approval or approval with modifications shall be final approval of the revocable consent unless the Council and Mayor act pursuant to subdivision (d) of this section. (2) If a public hearing is required to be held by the Department pursuant to paragraph (3) of this subdivision, within 30 days after the period described in subdivision (b), or within 45 days after such period if the Department plans to combine the public hearing on the petition with the public hearing required for one or more additional petitions, the Department will: (i) Hold a public hearing on the petition; (ii) Approve the petition, disapprove it, or approve it with modifications; and (iii) File with the Council any decision to approve or approve with modifications, together with the petition. Such approval or approval with modifications shall be final approval of the revocable consent unless the Council and Mayor act pursuant to subdivision (d) of this section. (3) The Department shall hold the public hearing when: (i) A Community Board has submitted a recommendation to deny the petition; (ii) A Community Board has submitted a recommendation to approve the petition with substantial modifications or conditions and the petitioner does not agree to adopt such modifications; or (iii) The Department has determined that such a hearing would be beneficial to address a concern about the effect of a sidewalk cafe at the proposed location. (4) During the Department’s review period, the Department will send the petition to city agencies whose operations may be affected by such petition for review and comment, including but not limited to the New York City Fire Department, the Mayor’s Office for People with Disabilities, and the LPC. (5) Upon the Department’s determination to disapprove a petition, the Department will notify the petitioner, and the petitioner may submit a written statement to the Department within ten (10) days of such determination. The Department will consider any comments set forth in a timely delivered written statement. If the Department affirms its decision to disapprove the petition, such disapproval shall be a final determination of the Department. (6) The Department may hear one or more petitions at the same public hearing upon a determination that doing so is in the public interest. (7) Department Notice of Public Hearing. (i) At least 15 days prior to the date of a hearing required to be held pursuant to paragraph (3) of this subdivision, the Department will give notice of such hearing to the petitioner, the Community Board for the district in which the sidewalk cafe is proposed to be located, the President of the Borough in which such cafe is proposed to be located and the Council Member of the Council district in which such cafe is proposed to be located. (ii) Not less than five (5) calendar days prior to the date of any such hearing, the Department will publish notice of the hearing in the City Record, and in the print or online edition of one newspaper of local circulation in the community where such cafe is proposed to be located. The petitioner shall bear the cost of publication in the print or online edition of such newspaper. (d) City Council and Mayoral Review. Upon receipt of such petition, the Council may resolve by majority vote of all the Council Members to review the petition in accordance with subdivisions (e) and (f) of § 19-160.2 of the Administrative Code. If the Council does not so resolve, the approval of the petition by the Department will be forwarded to the Mayor unless the petition, or the category of such petition, is one for which the Mayor has determined that separate and additional mayoral approval is not required. (e) Comptroller Registration. Upon approval of a petition, the Department will notify the petitioner that it petition has been approved and will file the revocable consent agreement with the Comptroller for registration pursuant to Section 328 of the City Charter. Upon notification that the revocable consent agreement has been registered, DOT will issue the license along with a copy of the executed revocable consent agreement to the petitioner. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-06 Revocable Consent Review Process for Sidewalk Cafe Located Entirely in Sidewalk Widening.

§ 5-06 Revocable Consent Review Process for Sidewalk Cafe Located Entirely in Sidewalk Widening. (a) Term. The term of the consent for a sidewalk cafe located entirely in a sidewalk widening is one license term (i.e., four years) and is concurrent with such license term. (b) Assignment or Transfer of a Consent. A consent may not be assigned, transferred, or otherwise conveyed without the permission of the Commissioner. (c) Petition Requirements. A petition for the granting of a consent, or for a renewal, modification, or assignment thereof, may be submitted electronically on the Department’s website and must include all materials required by subdivision (c) of 34 RCNY § 5-04, except that the site plan must also delineate the property line that separates the sidewalk from the sidewalk widening. (d) Sidewalk Widening Approval Process. Notwithstanding 34 RCNY § 5-05, a petition for a consent to establish a sidewalk cafe located entirely on a sidewalk widening, as demonstrated to the satisfaction of the Department, will be reviewed and approved pursuant to 34 RCNY § 5-07, except that a public hearing is not required. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-07 Roadway Cafe Revocable Consent Review Process.

§ 5-07 Roadway Cafe Revocable Consent Review Process. (a) Department Notice. The petition for a roadway cafe revocable consent filed with the Department must be complete and accurate, as determined by the Department The Department will, within 10 business days of the filing of a complete and accurate petition to operate a roadway cafe, forward such petition by electronic mail to the Council Member in whose district the roadway cafe is proposed to be located, and to the Community Board for the community district in which the roadway cafe is proposed to be located. (b) Comment Period. The Community Board and the affected Council Member may submit comments to the Department not later than 30 days after receipt of such petition. (c) Department Review. (1) Prior to granting a petition for a revocable consent to operate a roadway cafe, or for renewal of such a revocable consent, or for modification to the location of a roadway cafe or to increase the area of a roadway cafe by ten (10) percent or more, the Department will hold a public hearing. Notice of such hearing will be published by the Department at the expense of the petitioner in accordance with Section 371 of the Charter. (2) During the Department’s review, the Department will send the petition to other agencies whose operations may be impacted by such petition for review and comment. The Department will approve the petition, disapprove it, or approve it with modifications. (3) Notwithstanding the foregoing, the Department may deny a petition for a revocable consent to operate a roadway cafe without a hearing if, in the sole judgement of the Commissioner, the granting of such revocable consent would interfere with the use of inalienable property of the City (including but not limited to roadways and sidewalks) for public purposes or would otherwise not be in the best interest of the City. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-08 Temporary Authorization to Operate.

§ 5-08 Temporary Authorization to Operate. (a) Lapsed or Terminated Revocable Consent. Where an applicant for a license to operate a sidewalk cafe or roadway cafe submits a complete and accurate petition for a revocable consent to operate a sidewalk cafe or roadway cafe for which a revocable consent granted to another person has lapsed or was terminated, such applicant may operate the sidewalk cafe or roadway cafe at such premises pending the approval such petition, provided all of the following requirements are satisfied: (1) The plans for the cafe, submitted with the petition as required by paragraph (2) of subdivision (c) of 34 RCNY § 5-04, are the same as the plans for the cafe for which a revocable consent to operate was granted previously. (2) Where the petition is for an enclosed sidewalk cafe, the structure of such enclosed sidewalk cafe is the same as the structure of the enclosed sidewalk cafe for which a consent had been granted previously. (3) The petitioner makes a good faith effort to be granted a revocable consent to operate such sidewalk cafe or roadway cafe. The Department may, in its sole discretion, determine that the applicant has not made a good faith effort where the petition for a revocable consent has not been approved within one year from the date of submission due to the petitioner’s failure to submit information and materials requested by the Department. If such determination is made by the Department, the application will be deemed to have been withdrawn and the temporary authorization will be terminated. (4) The previously granted revocable consent has lapsed or was terminated no more than two years prior to the date of submission of the petition. (5) Where the previously granted revocable consent was terminated by the Department, such termination was not a result of non-compliance with the design requirements set forth in 34 RCNY § 5-11. (b) Comptroller Consent Pending Registration. Where the Department has approved a petition for a revocable consent to operate a sidewalk cafe or roadway cafe, the petitioner may operate such cafe pending registration of such revocable consent by the Comptroller, provided the following requirements are satisfied: (1) The Comptroller has consented to such operation of the sidewalk cafe or roadway cafe pending registration; and (2) Where the petition is for a revocable consent to operate a sidewalk cafe, the time for Council to resolve to review such petition has expired, or the Council has resolved to review such petition and has either approved such petition or has approved such petition with modifications and the petitioner has accepted such modifications. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-09 Annual Fee Rate Schedule.

§ 5-09 Annual Fee Rate Schedule. (a) A revocable consent for a sidewalk cafe or a roadway cafe, or a consent to operate a sidewalk cafe located on a sidewalk widening, granted pursuant to this chapter shall provide for compensation to be paid annually to the city during the continuance of the consent. Such annual compensation shall be equivalent to the product of the fee rate and the square footage of such sidewalk cafe or roadway cafe. (b) There are 4 sectors, as described on the website of the Department. The fee rate for each sector shall be as follows: Sector Sidewalk Fee Rate (per square foot) Roadway Fee Rate (per square foot) 1 $6 $5 2 $10 $8 3 $18 $14 4 $31 $25 (c) Enclosed Sidewalk Cafes. (1) A revocable consent for an enclosed sidewalk cafe shall provide for compensation to be paid annually to the city during the continuance of the consent at a rate identical to the rate required to be paid for such cafe as of March 16, 2020 pursuant to the rules of the Department of Consumer and Worker Protection in effect prior to the date these rules take effect, as provided in subparagraphs (i) and (ii) of this paragraph. Such rules establish two zones, and compensation to be paid annually depends on the zone in which an enclosed sidewalk cafe is located. Zone One encompasses all of the area of Manhattan south of, and including both sides of, 96th Street. Zone Two encompasses all of the areas of the City of New York not included within Zone One. The rates in effect as of March 16, 2020 are: (i) $5,378.13 for the first seventy (70) square feet plus $42.02 for every additional square foot of sidewalk space occupied by an enclosed sidewalk cafe in Zone One; and (ii) $4,033.60 for the first seventy (70) square feet plus $31.51 for every additional square foot of sidewalk space occupied by an enclosed sidewalk cafe in Zone Two. (2) On January 1, 2028, and every 4 years thereafter, the Department may increase or decrease such compensation for an enclosed sidewalk cafe in accordance with increases or decreases in the sector rate. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-10 Operation and Management Requirements.

§ 5-10 Operation and Management Requirements. Upon approval by the Department of a license granted pursuant to this chapter, a licensee must operate and manage all aspects of a sidewalk cafe or roadway cafe in accordance with this section. (a) Maintenance. (1) Sidewalk cafes and roadway cafes must be kept clean, well-maintained, and clear of trash, debris, graffiti, vermin, food scraps, and unsanitary conditions. A licensee must also keep clean the area of the roadway extending one and one-half (1 1/2) feet distance beyond any roadway cafe on all sides of such roadway cafe. (2) A licensee may not store trash within a sidewalk cafe or roadway cafe, except that in roadway cafes rigid receptables with tight-fitting lids as referenced in subdivision (b) of 16 RCNY § 1-02.4 are permitted. (3) If flooring is utilized as part of a roadway cafe, such flooring shall be lifted for cleaning on a regular basis, but not less than weekly. (b) Hours of Operation. Sidewalk cafes, other than enclosed sidewalk cafes, and roadway cafes 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 (c) Alcohol Consumption. No beer, alcoholic or spirituous liquors shall be served at a sidewalk cafe or a roadway cafe, unless permitted by the New York State Liquor Authority. (d) No Smoking. Smoking or using electronic cigarettes is prohibited within sidewalk cafes and roadway cafes pursuant to subdivision (c) of § 17-503 of the Administrative Code. (e) Advertising. No advertising sign, picture, flag, banner, side curtain or other device, including an illuminated or non-illuminated sign, shall be placed or painted on or affixed to any awning, screen or other appurtenance used in connection with a sidewalk cafe or roadway cafe, except that the name of the restaurant, the logo of the restaurant, the menu and information on the services provided by the restaurant, and the name and logo of any sponsors of the restaurant’s amenities may be painted, imprinted or otherwise displayed, in accordance with any applicable requirements of the New York City Zoning Resolution and the following requirements: (1) Names and logos shall be limited to ten (10) percent of the surface area of the surface on which they are displayed. (2) Names and logos may be painted onto barriers, or otherwise physically attached and secured to the barriers, provided that any signs attached to the barriers shall be no more than one (1) inch in depth. Menus and hours of operation may not be painted on or physically affixed to the barriers or any vertical screening. (3) On overhead coverings, umbrellas, and awnings, names and logos must be physically adhered to the fabric. (4) Any sign, picture, flag, banner, side curtain or other device used to display a name or logo may not be illuminated, flashing, or moving. (f) Heaters. Heating units utilized in a sidewalk cafe or roadway cafe must comply with all applicable laws, rules, and regulations and must be approved for use in such sidewalk cafe or roadway cafe by the New York City Department of Buildings and New York City Fire Department. Such heating units may only be located within the area of the sidewalk cafe or roadway cafe for which the revocable consent and license to operate such cafe has been granted. (g) Good Order. Every licensee shall be held strictly accountable for the maintenance of good order in the sidewalk cafe or roadway cafe and the proper conduct of their patrons, including the prevention of excessive congregation of such patrons within or immediately adjacent to such sidewalk cafe or roadway cafe. A licensee must provide adequate service to maintain the tables in the sidewalk cafe or roadway cafe and the adjacent street in a manner that ensures good order and cleanliness. (h) Accessibility. A sidewalk cafe and roadway cafe must be directly accessible to persons with physical disabilities. The design of such cafe 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. (i) Noise. (1) 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 (a-1) of § 24-218 of the Administrative Code. (2) No musical instruments or sound reproduction or amplification devices shall be operated or used within a sidewalk cafe or roadway cafe, except where authorized pursuant to a street activity permit issued pursuant to 50 RCNY Chapter 1. (3) 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. (j) Lighting. Lighting shall illuminate only within the sidewalk cafe or roadway cafe. (k) Secure Cafe. (1) During hours when a sidewalk cafe or roadway cafe is not operating, the licensee must secure all furnishing and decorative elements of such sidewalk cafe or roadway cafe, such as tables and chairs, using a cable or other locking system. Such secured furnishings or decorative elements may not impede or block access to utility infrastructure or assets (e.g., utility access covers, vent poles, control cabinets, etc.). (2) Umbrellas and overhead coverings, if utilized, must be secured during inclement weather, including high wind conditions or heavy snow events. (l) Furnishing Zone. No portion of a sidewalk cafe or roadway cafe shall be located in the furnishing zone and no items associated with such sidewalk or roadway cafe shall be placed or stored in the furnishing zone. (m) Service. A licensee must ensure that employees serve patrons solely from within the perimeters of such sidewalk cafe or roadway cafe. (n) Roadway Cafe Operating Season. (1) A roadway cafe shall not operate on any day from November 30 to March 31, inclusive. All barriers, furnishings and other decorative elements of a roadway cafe must be removed during such period except as authorized pursuant to paragraph (2) of this subdivision. (2) Notwithstanding paragraph (1) of this subdivision, a ground floor restaurant for which a revocable consent and license for a roadway cafe have been granted pursuant to this chapter may: (i) Occupy the area of the roadway cafe beginning on a date prescribed by the Department on its website that is earlier than March 31, for the purpose of setting up the roadway cafe prior to commencement of operation of the roadway cafe, provided that such date shall be no earlier than March 24 of each year; and (ii) Occupy the area of the roadway cafe until a date prescribed by the Department on its website that is later than November 30, for the purpose of disbanding the roadway cafe, provided that such date shall be no later than December 7 of each year. (o) Abandonment. A sidewalk cafe or roadway cafe must be used and occupied for outdoor dining. When not used and occupied for outdoor dining for thirty (30) consecutive days or more, except in accordance with subdivision (n) of this section, they must be removed from the sidewalk and roadway by the licensee. (p) License Availability. A licensee shall retain on the premises of a sidewalk cafe or roadway cafe a copy of the license issued for such cafe, and upon request by an employee of the Department or other city agency, shall make available such copy of such license for inspection. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-11 Design Requirements.

§ 5-11 Design Requirements. (a) Sidewalk Cafes. (1) Siting Requirements for Sidewalk Cafes other than Enclosed Sidewalk Cafes. (i) Open-Air. A sidewalk cafe, other than an enclosed sidewalk cafe, shall be open-air and shall contain only readily removable tables, chairs and other removable decorative items. (ii) Frontage. A sidewalk cafe, other than an enclosed sidewalk cafe, shall be limited to the sidewalk or sidewalk widening that is directly in front of the ground floor restaurant that is operating such sidewalk cafe. (iii) Clear Path. A clear path shall remain on the sidewalk or sidewalk widening in front of the ground floor restaurant operating a sidewalk cafe, other than an enclosed sidewalk cafe, after installation of such sidewalk cafe. (A) The minimum width of the required clear path shall be the greater of: 1. The width provided in the table below for the corridor category of the street on which the sidewalk cafe is located; or 2. Fifty percent (50%) of the width of the sidewalk, including any sidewalk widening. The corridor categories are set forth in the Department’s NYC Pedestrian Mobility Plan, which is available on the Department’s website. Corridor Categories Required Clear Path Global Corridors 12 Feet Regional Corridors 10 Feet Neighborhood Corridors 8 Feet Community Connectors 8 Feet Baseline Streets 8 Feet (B) Notwithstanding clause (A), on regional corridors, the minimum width of the required clear path shall be 8 feet where the following conditions are satisfied: 1. Maintenance of a 10-foot clear path after installation of such sidewalk cafe is not feasible; and 2. Such sidewalk cafe is located within an area where only small sidewalk cafes were permitted prior to the date these rules take effect, as shown on the Department’s website. (C) Notwithstanding clause (A), on global corridors, the minimum width of the required clear path shall be 8 feet for any sidewalk cafe adjacent to an arcade that provides at least 6 feet of an unobstructed path for the length of the block in accordance with the New York City Zoning Resolution. (D) The clear path is measured from the outer edge of the perimeter of the sidewalk cafe to the nearest element or object, including a pedestrian ramp, installed or affixed to the sidewalk between such perimeter and the nearest curb line, or if there is no such element or object, to the nearest curb line. (iv) Clearances. The following minimum distances are required between a sidewalk cafe, other than an enclosed sidewalk cafe, and the specified element or object: Element or Object Minimum Required Distance Subway Stair: Open End (Entry Side) 15 Feet Subway Elevator Entrance 10 Feet Exhaust Ducts 10 Feet MTA or FDNY Curb Cuts 10 Feet Edges of Street Tree Beds 8 Feet Mailboxes 8 Feet LinkNYC Kiosks, Wayfinding Kiosks, E-Charging Stations, Parking Meters; Select Bus Service Fare Machines 8 Feet Newsstands 8 Feet Streetlights 8 Feet Bus Stop Poles 8 Feet Fire Hydrants 8 Feet Bus Stop Shelters 8 Feet Traffic Signals 8 Feet Citi Bike/Bike Share Stations, Bike Corrals, Micromobility Stations 5 Feet Primary Building Entrances 5 Feet Curb Cuts 5 Feet Emergency Exit Hatches 5 Feet Subway Stair: Closed-End (non-entry) 5 Feet Subway Elevator: Non-Entry 5 Feet Siamese Connections and Standpipes 5 Feet Elevated Train Infrastructure (e.g., support beams, etc.) 3 Feet Transformer Vaults 3 Feet Vent Infrastructure (e.g., utility vent poles, ventilator grates, subway grates, etc.) 1 foot 6 inches (v) Covering Restrictions. A sidewalk cafe, other than an enclosed sidewalk cafe, shall not be located over or block any of the following: cellar and basement doors, freight elevators or service entrances, retail and non-primary building entrances, and building projections (including, but not limited to, stoops, steps, and stairs), provided that a sidewalk cafe may block or cover a cellar or basement door that is not a means of egress if such door is closed and is reinforced, the safety of which closed and reinforced door is certified by a registered design professional as defined in the New York City Construction Codes in the form prescribed by the Department on its website. (vi) Utility Infrastructure. Furniture or other decorative items of a sidewalk cafe, other than an enclosed sidewalk cafe, shall not be located within 1 foot 6 inches of manhole covers and shall not prevent access to any other utility infrastructure, including but not limited to control cabinets, utility poles, telecommunication pull boxes, and ground level boxes. (vii) Service. Furniture or other decorative elements of a sidewalk cafe, other than an enclosed sidewalk cafe, must be located to allow for service of patrons solely within the perimeter of such sidewalk cafe. (2) Material Requirements for Sidewalk Cafes other than Enclosed Sidewalk Cafes. (i) Perimeter demarcation. The perimeter of a sidewalk cafe, other than an enclosed sidewalk cafe, shall be clearly and visibly demarcated by a removable and self-supporting base wall, railing, planter, fence, or stanchion and rope, which shall be no higher than two (2) feet and six (6) inches, exclusive of any shrubbery and/or planting. Such perimeter demarcations shall not be affixed to the sidewalk. (ii) Flooring. A sidewalk cafe, other than an enclosed sidewalk cafe, shall be level with the sidewalk. No platforms, flooring, or other ground coverings (e.g., rugs, artificial turfs, etc.) are permitted. (iii) Furnishings. The furnishing of the interior of a sidewalk cafe, other than an enclosed sidewalk cafe, must consist solely of lightweight and easily moveable tables, chairs, and decorative accessories. No furnishing element shall be permanently affixed to the sidewalk. (iv) Awnings, Overhead Coverings, and Umbrellas. (A) An awning, overhead covering, or umbrella utilized in a sidewalk cafe, other than an enclosed cafe, must be easily removable, comprised of fire-resistant grade materials, and wind resistant. (B) Such an awning shall be no lower than eight (8) feet from the ground and must not exceed a maximum height of ten (10) feet. Such an overhead covering or umbrella shall be no lower than seven (7) feet from the ground and must not exceed a maximum height of ten (10) feet. (C) Such an awning, that is physically attached to a building, must comply with the New York City Building Code and the requirements of the Landmarks Preservation Commission, as applicable. (D) Such an awning or overhead covering may not extend beyond the perimeter of the sidewalk cafe except for awnings that are in compliance with the New York City Building Code. Documentation demonstrating compliance with the New York City Building Code must be made available to Department personnel upon request. (E) All such umbrellas and overhead coverings must have a weighted base, and any stand or other structure utilized for the purpose of providing support for an overhead covering or umbrella shall be of sufficient size and strength to maintain the umbrella or overhead covering, made of durable materials, and free of defects. (v) Lighting and Electrical Connections. Lighting of a sidewalk cafe, other than an enclosed sidewalk cafe, shall be outdoor rated, properly secured, protected and lightweight. Any lighting shall be directly connected to the ground floor restaurant’s power source, shall be located within the perimeter of such sidewalk cafe, and shall not exceed 10 feet in height. No connections shall be made to any type of City electrical equipment or attached to any City property, including street trees. All electrical work shall comply with the applicable requirements set forth in the Department’s rules and the New York City Electrical Code. (vi) Fire Escape Stairs. No element of a sidewalk cafe, other than an enclosed sidewalk cafe, including any overhead covering, awning or umbrella, shall cover, block or be affixed to any fire escape stairs or other components of a fire escape. (b) Roadway Cafes. (1) Siting Requirements. (i) Frontage. A roadway cafe shall be limited to the portion of the roadway that is directly in front of the ground floor restaurant that is operating such roadway cafe. (ii) Permitted Locations. (A) A roadway cafe may only be located within: 1. Parking spaces, including metered and non-metered spaces, commercial parking, alternate side parking spaces, angled parking spaces where approved by the Department in accordance with clause (C) of this subparagraph, and spaces with seasonal restrictions, regardless of timing of such restrictions, including No Standing during posted months; and 2. Truck Loading Only, Loading Only, Hotel Loading, and No Parking zones. (B) Notwithstanding clause (A) of this paragraph, a roadway cafe may not be located, in whole or in part, within: 1. Part-time or full-time travel lanes, including bicycle lanes, bus lanes and No Standing, No Standing during posted hours, or No Stopping zones; 2. Bus stops; 3. Parking spaces reserved for specified vehicles authorized by permit; or 4. Dedicated use parking spaces as described in 34 RCNY § 4-08(a)(3)(i), except as listed in clause (A)(2) of this subparagraph. (C) In accordance with clause (A) of this subparagraph, a roadway cafe may be located within one or more angled parking spaces subject to approval by the Department. Where a petition is for a roadway cafe that is located wholly or partially within an angled parking space, the Department may, except where expressly prohibited by law, modify the requirements set forth in this subdivision where necessary to promote vehicular and pedestrian traffic safety, including but not limited to providing appropriate clearances from the travel lane and adjacent parking spaces, and preserving sight distance. (iii) Clearances. The following minimum distances shall be maintained between the roadway cafe and the specified element or object, except as otherwise specified herein: Element or Object Minimum Required Distance Subway Entrance: Open End (Entry Side) 15 Feet Fire Hydrant 15 Feet Subway Elevator Entrance 10 Feet MTA or FDNY Curb Cuts 10 Feet Curb Cuts 5 Feet Emergency Exit Hatches 5 Feet Subway Stair: Closed-End (non-entry) 5 Feet Subway Elevator: Non-Entry 5 Feet Bus Stop Pole: Non-Approaching Side 5 Feet Citi Bike/Bike Share Stations, Bike Corrals, Micromobility Stations located in the roadway 5 Feet Drainage Infrastructure (Catch Basins/Rain Gardens) 5 Feet Elevated Train Infrastructure (e.g., support beams, etc.) 3 Feet Transformer Vaults 3 Feet Vent Infrastructure (e.g., utility vent poles, ventilator grates, subway grates, etc.) 1 Foot 6 Inches Thermoplastic Markings 6 inches (iv) Dimensions. (A) The maximum length of a roadway cafe or portion of a roadway cafe, as described in clause (E) of this subparagraph, shall be 40 feet. (B) The maximum width of a roadway cafe shall be eight (8) feet, provided that the Department may require a roadway cafe to be less than eight (8) feet where necessary to address a safety concern based on roadway width, roadway geometry (e.g., number of traffic lanes, the presence and composition of bicycle lanes and parking lanes, etc.), or proximity to an intersection, or to facilitate the traverse of emergency vehicles on such roadway. (C) Notwithstanding any contrary provision of this chapter, a 15-foot emergency travel lane must be maintained on every roadway, provided that the Department may permit an emergency travel lane width of less than 15 feet upon the issuance of a letter of no objection from the New York City Fire Department. The New York City Fire Department will issue such letter to the Department, or deny the request, within 30 days of receipt of the request from the Department. However, if such response is submitted later than 30 days, such response may be accepted by the Department at the sole discretion of the Department. (D) Minimum distance between roadway cafes. 1. For roadway cafes that are the maximum of 40 feet in length, there shall be a minimum distance of six (6) feet between the perimeters of adjacent roadway cafes. A roadway cafe that is a maximum of 40 feet in length shall maintain a minimum of four and a half feet (4’6”) distance from the boundary of the extension of the perimeter of the ground floor restaurant. 2. For roadway cafes that are less than 40 feet in length, there shall be a minimum distance of three (3) feet between the perimeters of adjacent roadway cafes. A roadway cafe adjacent to another roadway cafe shall maintain a minimum of a one foot, 6-inch (1’ 6”) distance from the boundary of the extension of the perimeter of the ground floor restaurant. 3. If there is no adjacent roadway cafe at the time such roadway cafe is approved and an adjacent roadway cafe is subsequently installed, each roadway cafe must maintain the required minimum distance upon the installation of the new roadway cafe. Such minimum distance shall remain unobstructed for emergency access and shall not be used for storage, including containers to store trash. (E) Portions of a roadway cafe. Where the frontage of a restaurant is greater than 40 feet in length, the restaurant may install additional portions of a roadway cafe in accordance with this paragraph, provided that each such portion is no greater than 40 feet in length. Where a portion of a roadway cafe is the maximum 40 feet in length, there shall be a minimum distance of six (6) feet between the perimeters of each adjacent portion. Where adjacent portions of a roadway cafe are both less than 40 feet in length, there shall be a minimum distance of three (3) feet between the perimeters of each adjacent portion. Such minimum distances shall remain unobstructed for emergency access and shall not be used for storage, including containers to store trash. (v) Street Trees. No element of a roadway cafe shall encroach upon or attach to a street tree bed or canopy of a street tree. A street tree shall not be cut, pruned, or removed except as authorized pursuant to a tree work permit from the New York City Department of Parks and Recreation. (vi) Distance from Marked Crosswalks. The distance between the perimeter of a roadway cafe and a crosswalk shall be a minimum of: (A) Twenty (20) feet, where the nearest vehicular travel lane parallel to a roadway cafe provides for the direction of traffic to be approaching the intersection; and (B) Eight (8) feet, where the nearest vehicular travel lane parallel to a roadway cafe provides for the direction of traffic to be exiting the intersection. (vii) Distance from Unmarked Crosswalks. The minimum distance between the perimeter of a roadway cafe and the curb line of a street intersecting with the street on which the roadway cafe is located shall be twenty (20) feet. (viii) Floating Parking Lanes. Roadway cafes located in a floating parking lane shall be limited to the width of the legal parking area and shall not be located, in whole or in part, within a bicycle lane. Notwithstanding subparagraph (ii) of paragraph (1) of subdivision (b) of this section, roadway cafes may abut but not cover any thermoplastic markings utilized as a buffer. (ix) Signage Visibility. Any element of a roadway cafe, including decorative plantings, located within fifty (50) feet of any regulatory or warning signs, including but not limited to signage indicating Stop, Yield, One-Way, Wrong Way, Do Not Enter, Pedestrian Crossing, School Crossing and Speed Limit, shall be no greater than 46 inches in height. (x) Utility Infrastructure. Furniture or other decorative items of a roadway cafe shall not be located within one and half feet (1’ 6”) of manhole covers and shall not prevent access to any other utility infrastructure, including but not limited to control cabinets, utility poles, telecommunication pull boxes, and ground level boxes. (xi) Service. Furniture or other decorative elements of a roadway cafe must be located to allow for service of patrons solely within the perimeter of such roadway cafe. (2) Material Requirements. (i) Barriers. (A) Barriers shall be maintained on all sides of a roadway cafe except the side fronting the ground floor restaurant and shall not be affixed to the roadway. (B) Barriers shall be between thirty (30) inches and forty-two (42) inches in height, not including the height of any plantings above such barrier. Barriers shall be at least four (4) inches in width. (C) Only water-filled barriers are permitted, except alternate fill materials may be used where approved by the Department. Each barrier shall be filled with a minimum of 150 pounds of fill per linear foot of barrier length. (D) Barriers must be interconnected. (E) Any cladding on a barrier must be securely fastened or affixed to the barrier. (F) A reflective strip of a minimum of four (4) inches in width must be located on each barrier, along the entire length of the outward-facing side of such barrier. (G) As an alternative to compliance with clauses (B) through (F) of this subparagraph, a barrier may comply with barrier specifications posted on the Department’s website which allow for alternate materials that match or exceed the safety of the requirements set forth in these rules. (ii) Flooring. (A) If flooring is utilized as part of a roadway cafe, such flooring shall: 1. Be durable, lightweight, easily removable, mold-resistant, elevated from the ground level to allow for drainage, and removable to allow for cleaning; 2. Be flush with the curb line, except a roadway cafe located on a slope shall be flush with the curb line to the greatest extent feasible; 3. Be compliant with applicable requirements of the Americans with Disabilities Act and rules promulgated thereunder, and accessibility requirements of the New York City Building Code, as applicable; 4. Maintain a six (6) inch covered channel between the curb and base of such flooring to allow for drainage and water flow along the roadway. (B) Where flooring is not utilized as part of a roadway cafe, such roadway cafe must provide a ramp that complies with the Americans with Disabilities Act and any rules promulgated thereunder and the New York City Building Code, as applicable. (C) No other ground coverings (e.g., rugs, artificial turfs, etc.) are permitted. (iii) Furnishings. The furnishing of the interior of a roadway cafe shall consist solely of lightweight easily moveable tables, chairs, and decorative accessories. (iv) Vertical Screenings, Overhead Coverings, and Umbrellas. (A) If utilized, vertical screenings, overhead coverings, and umbrellas shall be easily removable, comprised of fire-resistant grade materials, wind resistant, and shall not extend over the perimeter of the roadway cafe. (B) An overhead covering or umbrella shall be no lower than seven (7) feet and shall not exceed a maximum height of ten (10) feet from the base or floor of the roadway cafe. (C) Vertical screening is permitted only on the roadway-facing side of the cafe between the barrier and six (6) feet above the base or floor of the cafe, provided that clear visibility is maintained. Plantings, lattice panels or clear plexiglass that maintain clear visibility are allowed. Opaque screening is prohibited. Vertical screening shall not be affixed to the outward facing side of a barrier. (D) All umbrellas and overhead coverings must have a weighted base. Any stand or other structure utilized for the purpose of providing support for an overhead covering or umbrella shall not be affixed to the outward facing side of a barrier and shall be of sufficient size and strength to maintain the umbrella or overhead covering, made of durable materials, and free of defects. (v) Lighting and Electrical Connections. Lighting shall be outdoor rated, properly secured, protected and lightweight. Wires for electrification shall be connected above-head, and may not be connected on or near the ground or within street tree beds. No connections shall be made or attached to any electrical equipment or other property owned or controlled by the City, including street trees. Electrical connections shall be at least fourteen (14) feet above the sidewalk and eighteen (18) feet above the roadway. All electrical connections shall comply with the applicable requirements set forth in the Department’s rules and the New York City Electrical Code. (Added City Record 2/2/2024, eff. 3/3/2024)

34 RCNY § 5-12 Enforcement.

§ 5-12 Enforcement. (a) Corrective Action Request (CAR). (1) If the Commissioner finds that any licensee has, for the first time, violated (i) any provision of §§ 19-160 through 19-160.6 of the Administrative Code; (ii) any of these rules; or (iii) any of the terms and conditions of the license, the Commissioner shall notify such licensee of such violation and request that action be taken to correct such violation within 30 days and shall afford such licensee an opportunity to protest the Commissioner’s finding in a manner set forth in these rules. (2) A CAR may be served by mail or by e-mail on the licensee responsible for the condition which requires correction at the address or e-mail address for such person contained in the records of the Department. (3) Any corrective action required by the CAR must be performed within thirty (30) days of the issuance of the CAR unless such issuance is protested as provided herein. If the corrective action required by the CAR is not performed within thirty (30) days of the issuance of the CAR and such issuance is not protested, the Department may issue a summons for an uncorrected condition upon reinspection. (4) Protest. (i) Within fourteen (14) days after the date of service of the CAR, the respondent may protest the issuance of the CAR by submitting such protest in writing to the Department at the location or address as specified on its website and on the CAR. If the respondent fails to timely protest the CAR and the Department issues a summons for an uncorrected condition, the respondent may be issued a summons for failing to respond to the CAR in a timely manner. (ii) Protests will be reviewed by the Department and a final determination regarding the protest will be made within a reasonable period of time. (iii) If a protest is denied, any corrective action required by the CAR must be performed within thirty (30) days after the date of such denial. If the corrective action required by the CAR is not performed within thirty (30) days of such denial, the Department may issue a summons for an uncorrected condition upon reinspection. (b) Administrative summons. Administrative summons issued by the Department shall be returnable to the Environmental Control Board. The Office of Administrative Trials and Hearings, acting pursuant to section 1049-a of the New York City Charter, has the power to impose the civil penalties prescribed by § 19-150 of the Administrative Code in accordance with the rules of such agency. (c) Suspension and Revocation. (1) In addition to any other authorized enforcement procedures, the Commissioner may, after providing notice of intent to suspend or revoke a license and an opportunity to be heard in accordance with paragraph (2), suspend or revoke a license to operate a sidewalk cafe or roadway cafe and order the removal of such sidewalk cafe or roadway cafe for 3 or more violations of the same provision of Subchapter 1 of Chapter 1 of Title 19 of the Administrative Code or these rules within a 2-year period, or for any 6 or more violations of any provision of such subchapter or these rules within a 2-year period. The Department will provide notice to the licensee of the Department’s intent to suspend or revoke the license of such licensee no later than 30 days prior to such suspension or revocation. (2) Opportunity to Be Heard. (i) A licensee noticed by the Department with regard to the suspension or revocation of such licensee’s license may request in writing an opportunity to be heard. Such request must be received no later than thirty (30) days following the date of the Department’s notice to the licensee that the license may be suspended or revoked. Where the Department does not receive a written request for an opportunity to be heard within such time, the Department may revoke or suspend the license. (ii) Process. (A) Where the licensee submits a timely request for an opportunity to be heard, the Department will schedule a date and time, no later than 30 days from the date on which the Department received such request, for such opportunity to be heard, in person at the Department’s offices, regarding the suspension or revocation. (B) The licensee may request, in writing, copies of any evidence relied upon by the Department in determining that the license should be suspended or revoked. Such request must be received by the Department no later than 14 days prior to the date of the opportunity to be heard. The Department will provide a copy of such evidence by mail or electronic mail, as specified by the licensee in its request, no later than 7 days prior to the date of the opportunity to be heard. (C) Requests for rescheduling by the licensee of the opportunity to be heard must be received by the Department no later than 48 hours prior to the originally scheduled date. If the Department approves the request for rescheduling, a new date will be scheduled within 14 days of the original date. (D) The licensee may provide affidavits in support of its position, submitted prior to or at the opportunity to be heard, and may bring witnesses in support of their position to the opportunity to be heard. The Department may also supply affidavits or witnesses. Any affidavits or witnesses will not be subject to cross-examination. (E) The hearing will be conducted by an employee of the Department designated by the Commissioner and the opportunity to be heard will be transcribed or recorded by the Department. (F) The Commissioner’s designee will (1) review the Department's decision to issue the notice of intent to revoke or suspend the license, and (2) provide an opportunity for the licensee to present reasons and evidence in support of the challenge to the suspension or revocation. The Commissioner’s designee will issue findings of fact and a recommendation following the opportunity to be heard. (G) Within 30 days of the hearing, the Commissioner or the Commissioner’s designee, who will be an employee of DOT other than the employee who conducted the hearing and issued the recommendation pursuant to clause (F) of this subparagraph, will issue a final decision regarding the suspension or revocation. Such final decision will set forth the findings of fact and recommendation of the employee who conducted the hearing and will accept, reject or modify such recommendation. The Department will send such final decision to the licensee via mail or electronic mail within 5 days of issuance of such final decision. Such final decision will constitute a final agency determination that is subject to review by a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules. (3) Notwithstanding any inconsistent provision of this section, the suspension or revocation of a license shall be waived if, upon the submission of satisfactory proof, the Department determines that the person or persons who committed the violations which are the basis for the suspension or revocation acted against the licensee’s instructions in committing such violations. (d) Removal. (1) Operating without a License. The Commissioner may order the removal of any furniture, equipment, structure or other obstruction used in connection with the operation of an outdoor dining area on the sidewalk or in the roadway by a person that is not licensed to operate a sidewalk cafe or roadway cafe pursuant to § 19-160 of the Administrative Code and has no other lawful right to operate an outdoor dining area on such sidewalk or in such roadway. (2) Noncompliance. The Commissioner may order the removal of any furniture, equipment, structure or other obstruction placed on the sidewalk or roadway by a licensee where such furniture, equipment, structure or other obstruction is inconsistent with any of the requirements set forth in these rules. (3) Commissioner’s Order. (i) An order pursuant to this subdivision will be served personally or by mail to the person and address contained in the records of the Department. The person to whom such order is directed has an opportunity to be heard within five (5) business days after a timely request for such opportunity is received by the Department. A request must be made within the time and in the manner directed on the order. If, after considering the written objections of the respondent, the Commissioner affirms the order, the action required by the order shall be completed within a reasonable period of time, as set forth in such order, after notice of such determination is mailed to the respondent. (ii) Where such order has not been complied with within a reasonable period of time as set forth in such order, officers or employees of the Department or the Police Department may remove such furniture, equipment, structure or other obstruction from the sidewalk or the roadway and convey them to a place of safety. (iii) Where the Department has an address for the person to whom such order was directed, within five (5) days of removal, the Department will mail to such person notice of such removal and the manner in which such furniture, equipment, structure or other obstruction may be claimed. In any notification served personally or mailed pursuant to this section, the Department will include a statement of the right to sell, dismantle, destroy or otherwise dispose of such furniture, equipment, structure, or other obstruction within thirty (30) days after removal if such property is not claimed. (iv) Any furniture, equipment, structure, or other obstructions removed pursuant to this section will not be released until the removal charge and storage fee of two thousand five hundred dollars ($2,500) has been paid or a bond or other security for such amount has been posted. (v) Any furniture, equipment, structure, or other obstructions that is not claimed will be sold at public auction after having been advertised in the City Record for a period of ten (10) days. In the alternative, any such property may be used or converted to use for the purpose of any city, state, or federal agency, or for charitable purposes, upon consultation with the appropriate city agencies. (vi) The procedures outlined in the preceding subdivisions of this section do not apply to furniture, equipment, structures, or other obstructions determined by the Department to be without worth or value. The Department may immediately dispose of such property at disposal points or places designated by the New York City Department of Sanitation. (4) Nothing in this section is intended to alter or affect the power of the Commissioner to order the immediate removal of or remove any obstruction from the sidewalk or roadway or the immediate correction of any violation that the Commissioner determines is a danger to public welfare, safety, or energy system reliability, including planned or emergency work, parades, marathons, or other special events. (e) Liability of Subsequent Licensees. (1) Any violation for operating an unlicensed sidewalk cafe or unlicensed roadway cafe will be included in the number of violations by any subsequent licensee at the same place of business unless such subsequent licensee provides the Department with adequate documentation in accordance with subdivisions (a) and (d) of § 19-160.5 of the Administrative Code, demonstrating that such licensee acquired the premises or business through an arm’s length transaction and that the sale or lease of such sidewalk cafe or roadway cafe was not conducted, in whole or in part, to avoid the effect of violations on such premises or business. (2) A subsequent licensee is liable for violations by a prior licensee unless such subsequent licensee provides the Department with adequate documentation in accordance with subdivision (d) of § 19-160.5 of the Administrative Code. (Added City Record 2/2/2024, eff. 3/3/2024)

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-147804Fetched: 10/24/2026