Reopening Restaurants During the Pandemic

During the first two months of the COVID-19 pandemic, the public has largely stayed at home and non-essential businesses have closed their doors in response to emergency orders and public health concerns.  As the days become progressively warmer, our vigilance of self-isolation becomes increasingly challenged.  We are drawn outdoors to reestablish social connections, but struggle to understand how we can do so while respecting social distancing.  For many, a return to normalcy includes restaurant dining, but the prospect elicits fear of contracting an invisible virus from sitting in close proximity to others in closed spaces (the “Diners’ Dilemma”).

For restauranteurs, the economic consequences of the Diners’ Dilemma are grave.  In an industry of extremely limited profit margins, the survival of restaurants is inextricably linked to cash flows based upon seating and serving a known quantity of patrons daily.  Proposals to maintain social distancing in existing spaces and limit seating to 25% to 40% is a non-starter.  While large corporate restaurants may be able to weather a 6 to 12-month disruption, the prognosis for small business owners is less optimistic.

Local governments look to restaurants as an important contributor to the local economy. Our municipalities have come to rely more heavily on local restaurants among a decreasing number of small businesses in our communities, both as anchors in generating foot traffic to support small retail in our downtown areas, but also as critical sources of tax revenues.

Until the COVID-19 pandemic subsides, there are few options for resolving the Diners’ Dilemma.  The public will not dine out in the absence of social distancing and the restaurateur cannot decrease tables in the existing space and stay in business.  While closed, the restaurant’s ability to continue to pay taxes is severely limited.  In the current state, it’s a lose, lose, lose situation for diners, restauranteurs and municipalities.

Any strategy to address the Diners’ Dilemma must (i) comply with relevant executive orders for re-opening (ii) be legally compliant with relevant laws such as the Alcoholic Beverage Control (“ABC”) Act (N.J.S.A. 33:1-1 et seq) and the Municipal Land Use Law (“MLUL”) (N.J.S.A. 40:55D-1 et seq.); (iii) provide for the administration of clearly established standards; and (iv) embrace measures to minimize the risks to public health sufficient to persuade the public to return to restaurants.

On March 16, 2020, Governor Murphy directed restaurants to suspend on-premises consumption of food and beverages[1]. On June 3, 2020, Governor Murphy issued an Executive Order authorizing [Food or Beverage Establishments][2]  to provide in-person service at [outdoor] areas designated for food and/or beverage consumption both on restaurant property (including but not limited to parking lots and areas currently designated for outdoor dining), as well as shared spaces, such as sidewalks, streets, and parks (“Outdoor Dining Areas”).[3]

The Executive Order sets forth the prerequisites to in-person service at Outdoor Dining Areas:

a.   Ensure all areas designated for food and/or beverage consumption are in conformance with applicable local, State, and Federal regulations;
b.   Limit capacity to a number that ensures all patrons can remain six feet apart from all other patrons at all times, except for those patrons with whom they are sharing a table;
c.   Satisfy all standards issued by DOH [Department of Health]…;[4]
d.   Ensure that tables seating individual groups is six feet apart in all directions and that individual seats in any shared area that are not reserved for individual groups, such as an outdoor bar area, are also six feet apart in all directions;
e.   Prohibit patrons from entering the indoor premises of the food or beverage establishment, except to walk through such premises when entering or exiting the food or beverage establishment in order to access the outdoor area, or to use the restroom;[5]
f.   Require patrons to wear a face covering while inside the indoor premises of the food or beverage establishment, unless the patron has a medical reason for not doing so or is a child under two years of age; and
g.   Prohibit smoking in any [Outdoor Dining Areas] designated for the consumption of food and/or beverages. The requirement that food or beverage establishments impose this prohibition shall automatically sunset once food or beverage establishments are permitted to offer in-person service in indoor areas. Id.

The ABC division announced on June 2, 2020 that it is in the process of reviewing its rules to authorize an extension of restaurant premises to permit alcohol service to such outdoor spaces.

New Jersey municipalities are uniquely positioned to assess requests by Food or Beverage Establishments to expand their service in a way that comports with public safety.  Certain New Jersey municipalities have adopted emergency zoning ordinances[6] as a means of temporarily expanding outdoor dining to Outdoor Dining Areas[7].  Some utilize temporary site plan approvals, as the means of assessing the individual circumstances of each restaurant to ensure compliance with the local and state requirements. Others are adopting ordinances[8] and resolutions[9] that implement such temporary measures administratively, significantly reducing the time for enactment and administration This, in conjunction with clear direction as to application requirements, is essential to ensuring decisions can be made quickly.

On June 9, 2020, Governor Murphy lifted the stay-at-home order authorizing indoor gatherings to 25% percent of capacity not to exceed 50 people. This, and the expansion of outdoor dining are important measures for restaurants as they reopen their doors.

Critical to the success of safe social distancing dining will be the implementation on the ground by municipal officials and restaurants on a case by case basis.  Zoning offices are being tasked with potentially insurmountable challenges in the review of applications among multiple restaurants with limited available outdoor space.  Such spaces should be equitably divided among those Food or Beverage Establishments that can “feasibly use it.”[10]  Such a standard suggests that zoning offices assess potential restaurant demand for limited available public spaces and allocate such space as opposed to adopting a first come first served approach. Applicants are well advised to ensure their representatives have the requisite experience to navigate such challenges when seeking temporary site plan approval.

Zoning offices will also be challenged to consider applications of restaurants seeking access to public spaces that are not suitable as Outdoor Dining Areas.  Application denials will result in direct and significant negative economic impact to the livelihoods of such restauranteurs and their employees. The need to insulate such decisions from political pressures are critical to ensuring public health concerns are served.

In addition, Zoning offices may be challenged to meet the demand for expedited approvals by restaurants seeking to maximize operations during warmer months, and its obligation of assessing the suitability of such expanded use.  Zoning offices are well versed in the impacts of even temporary uses to the public and environment such as noise, emergency services, traffic, and environmental impacts.  The time required to assess such impacts in certain locations will conflict with the need for rapid approvals.  To that end, applicants should ensure they retain counsel having the requisite expertise to address such matters to expedite review and approval.

The success of even a partial reopening of our restaurants also requires assurance to the public of compliance with the measures put in place to protect public health.  The publics’ failure to comply with the provisions of the Executive Order including but not limited to wearing masks and social distancing requirements is a disorderly persons’ offense under the laws of the State of New Jersey.[11]  Municipalities should enact ordinances requiring such measures, penalties for non-compliance, enforcement authority and consistency in enforcement to demonstrate its commitment to the success of the initiative.  Restaurants will be on the front line of having to ensure social distancing is maintained and that proper protective masks are worn.  Those having found themselves in public spaces during the first two months of the COVID-19 pandemic recognize the psychology of group-think in disregarding social distancing and face masks.  It is incumbent on municipalities and restauranteurs to consistently enforce such measures to restore public confidence.

Over the past century, Winne Banta has established an unrivaled Municipal Land Use Law practice, providing counsel to municipal planning and zoning boards and assisting clients in securing municipal land use approvals.  Its land use attorneys have extensive experience securing site plan approvals.  Please call (201) 487-3800 to discuss reopening your restaurant or small business to begin the process of economic recovery.


[1]

Executive Order 104 (March 16, 2020). See also, Executive Order 107 (March 21, 2020).

[2]

Restaurants, cafeterias, dining establishments, and food courts, with or without a liquor license, bars, and all other
holders of a liquor license with retail consumption privileges.

[3]

ID

[4]

Health and safety standards issued by the Commissioner of the DOH pursuant to Emergency Health Powers Act.

[5]

Individuals placing orders, paying for orders and picking up orders are permitted indoors, provided they wear face masks.

[6]

N.J.S.A. 40:74-4.

[7]

See, Borough of West Cape May Ordinance No. 581-20.

[8]

City of Hoboken Ordinance No. 20-385, see also, Hoboken Outdoor Expansion Strategy.

[9]

Lawrence Township (Mercer) proposed Resolution June 16, 2020 Town Council Agenda.

[10]

ID

[11]

ID