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NYS Liquor Authority explains what does, does not constitute as food in Q&A

When Governor Andrew Cuomo announced new restrictions on bars and restaurants for serving alcohol – it drew criticism from many owners and operators.

Some went to great lengths to meet the requirements, but new guidance from the State Liquor Authority points to a hole in some establishments’ plans.

One new point, raised in a Q&A session (below) is that a bag of chips does not constitute ‘food service’ for drinks.

A bag of chips, a bowl of nuts and candy aren’t enough to be considered “other foods” for purposes of the order, according to state officials.

Counties have been implementing stronger enforcement of social distancing and mask guidelines. Cuomo said it’s up to counties to enforce the state’s guidance on bars and restaurants.

Check out the full question and answer portion released by the State Liquor Authority:

Q: I operate a restaurant or bar, and I understand that I must serve sandwiches, soups, or “other foods” when a patron orders an alcoholic beverage, can you tell me what constitutes “other foods?”

A: “Other foods” are foods which are similar in quality and substance to sandwiches and soups; for example, salads, wings, or hotdogs would be of that quality and substance; however, a bag of chips bowl of nuts, or candy alone are not.

As a restaurant or bar owner, in determining whether a particular item is substantial enough, please keep in mind the purpose of this policy: to ensure that patrons are enjoying a sit-down dining experience among a small group with drinks, i.e. a meal, and not a drinking, bar-type experience.  A drinking, bar-type experience often involves or leads to mingling and other conduct that is non-compliant with social distancing and the use of face covering and is therefore not yet a safe activity during the current health emergency.  The spikes/resurgence of COVID-19 cases that this has caused in other states is something that New York must avoid at all costs.

As a restaurant and bar owner interested in continuing to assist in our shared public health goal, you should not be looking for ways to circumvent the dining or meal requirement nor the purpose behind it, as it jeopardizes the public health and the progress all New Yorkers have made.  Obvious efforts to circumvent will be treated as violations of the Executive Order.

Q: I am a manufacturer with on premises privileges, do I need to make sandwiches, soups, and other similar foods available?

A: Only to the extent you have a separate on premises license (tavern, restaurant, etc.) at your manufacturing premises.  If you have only a manufacturing license, you must provide patrons the ability to order, at a minimum, finger foods like chips, cheese and crackers, or pretzels.

Q: Must a patron order food with each alcoholic beverage ordered?

A: No, as long as food is ordered at the time of initial order of any alcoholic beverages that is sufficient in substance (see above) and is also of a quantity sufficient to serve the number of patrons who are present and being served alcohol.

Again, the purpose of this policy is to ensure that patrons are enjoying a sit-down dining experience, and not a drinking or bar-type experience which often tends to be problematic from a public health perspective.

Finger Lakes Partners (Billboard)

Q: Can I use a food truck or other third-party business to fulfill the food requirement under this guidance?

A: No, if the ABC Law requires that food be made available under your license, then that food must be available on your premises to be ordered – it cannot be delivered at the time or order, and a patron should not have to leave the premises to get it;  additionally, the ABC Law prohibits a second business from operating on a licensed premises.

A food truck may be located in an unlicensed parking lot area; however, if it becomes apparent that use of a food truck creates too much traffic and lack of social distancing (on the premises or at the truck), you should discontinue its use immediately.

Q: Can a patron order an item to-go and order an alcoholic beverage to drink while waiting?

A: No, that is not an on-premises dining experience.  A takeout customer should be encouraged to call ahead and/or wait off the premises for his/her to-go order and leave with the food and drink, consistent with our guidance on takeout service since March 2020 which remains unchanged, and with DOH’s interim dining guidance.

Q: Can a patron order only a dessert item along with an alcoholic beverage?

A: Yes, so long as the dessert item is a substantial item, such as a piece of cake/pie, an ice cream sundae, etc.; it should not be only a drink with whip cream, a cookie, a piece of candy, etc.

As with all question as to the food standard, please keep in mind the purpose of this policy as described above.

Q: I have a club license under the ABC Law, must I serve food to my patrons in accordance with this guidance? 

A: No, a club licensee is not required to make food available under the ABC Law. Please look at your license certificate to ensure your license is in fact a “club” license under the ABC Law and not instead a tavern, restaurant, or other type of license. If food is available at your club, you are encouraged to serve it in accordance with the SLA Guidance in furtherance of its public health policy.

DiSanto Propane (Billboard)

Q: Must I sell an item of food to accompany the order or may I provide it as complimentary?

A: While a charge is not necessarily required for the food, you must have a record that food was ordered with drinks, so bills/checks need to reflect the food that was ordered and served. Further, you should not provide food that is shared among parties.

Q: Must I force customers to eat a food item?

A: Food must be ordered and served.  We cannot require you to force someone to eat what they have ordered, but again, licensees are required to serve in a manner consistent with the purpose of this policy, and if customers are not at the premises to enjoy a sit-down dining experience, serving them alcohol is a violation. If it is evident to you that a patron intends to circumvent the policy, you should not continue to serve them.

Q: I understand that counter service is limited, does that mean that customers may not sit at my lunch counter or bar?

A: No, patrons may continue to sit at a bar or counter in the same manner as is required under the DOH interim guidances, e.g., parties of no more than 10, 6-foot distance between parties, etc.

Please note that while table service is generally required, if an establishment had no table service prior to now and continues to not have table service, the counter may be used for walk-up ordering under the following restrictions: (1) all patrons ordering and all employees taking orders must wear appropriate face coverings, pursuant to DOH’s interim guidance, (2) all patrons (who are of separate parties) that are ordering from the bar/counter must be spaced at least 6 feet apart, pursuant to DOH’s interim guidance, (3) at no time shall more than 5 patrons be standing at the bar/counter at the same time, (4) markings shall be placed on the floor to indicate proper spacing, (5) once an order is made, patrons should either receive their food and/or drink then, or return to their table and wait until called to pick up their order, i.e., patrons should be at the bar/counter only to place, pay for, or receive an order.

Finger Lakes Partners (Billboard)