A petition for a revocable consent to establish and operate a sidewalk cafe shall be reviewed and approved in the following manner:
a. The petition shall be in such form as prescribed by the department. The petition shall include an accurate drawing depicting required clearances, the space to be occupied, and the locations of tables, chairs, barriers and other permitted objects. Such drawing may be developed by an architect, engineer, or other professional third party, or by the petitioner. The petition filed with the department shall be complete and accurate, as determined by the department, and the department shall, within 5 days of the filing of such complete and accurate petition, forward such petition by electronic mail to the president of the borough in which the cafe is proposed to be located, the speaker of the council and the council member in whose district the cafe is proposed to be located, for information purposes, and to the community board for the community district in which the cafe is proposed to be located, for review pursuant to subdivision b of this section.
b. The community board shall, not later than 40 days after receipt of such petition, either (i) notify the public of the petition, conduct a public hearing thereon and submit a written recommendation to the department and to the council or (ii) waive by a written statement its public hearing and recommendation on such petition and submit such statement to the department and to the council. The petitioner shall amend the petition if both the community board and the petitioner agree to modifications in writing. Such modifications shall be reflected in the written recommendations of the community board to the department and the council. If the community board submits a recommendation on a petition after the 40 day time period has expired, such recommendation may be accepted by the department at the sole discretion of the department.
c. 1. Except as provided in paragraphs 2 and 3 of this subdivision, within 20 days after the expiration of the period allowed for the filing of a recommendation or waiver by the community board pursuant to subdivision b of this section, the department shall (i) approve the petition for a sidewalk cafe, disapprove it or approve it with modifications; and (ii) file with the council any such 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 e and f of this section.
2. The department shall hold a public hearing on a petition for a sidewalk cafe if (i) a community board has submitted a recommendation to deny the petition; (ii) a community board has submitted a recommendation to approve such 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. If the department holds such a public hearing, within 30 days after the expiration of the period allowed for the filing of a recommendation or waiver by the community board pursuant to subdivision b of the section, or within 45 days after the expiration of such period when the department plans to combine the public hearing on the petition with the public hearing required on 1 or more additional petitions pursuant to paragraph 3 of this subdivision, the department shall (i) hold a public hearing on the petition pursuant to subdivision d of this section, (ii) approve the petition, disapprove it or approve it with modifications, and (iii) file with the council any such decision to approve or approve with modifications, together with the petition. Such approval or approval with modifications shall constitute final approval of the revocable consent subject to review by the council or mayor pursuant to subdivisions e and f of this section.
3. Where the department holds a public hearing pursuant to paragraph 2 of this subdivision, the department may hear 1 or more petitions at the same public hearing upon a determination that doing so is in the public interest.
d. At least 15 days prior to the date of a hearing held pursuant to paragraph 2 of subdivision c of this section, the department will give notice to the community board for the district in which the cafe is proposed to be located, to the president of the borough in which the cafe is proposed to be located and to the council member in whose district the cafe is proposed to be located. Not less than 5 calendar days prior to the date of any such hearing, notice of the hearing shall be published in the City Record and in the print or online edition of 1 newspaper of local circulation in the community where the cafe is proposed to be located.
e. At the next stated meeting after the date the petition is received by the council pursuant to subdivision c of this section the council may resolve by majority vote of all the council members to review the petition, except that if such meeting is scheduled to occur less than 3 days after such date, the council may so resolve at the following stated meeting. If the council does not so resolve, the approval or approval with modifications of the petition by the department shall be forwarded to the mayor pursuant to subdivision f of this section, unless, in accordance with subdivision g of this section, 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.
f. If the council resolves to review a petition pursuant to subdivision e of this section, the council shall hold a public hearing, after giving public notice not less than 5 days in advance of such hearing. The council shall take final action on the petition and shall file with the mayor its resolution, if any, with respect to the petition, except that if, in accordance with subdivision g of this section, 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, the council shall file its resolution with the department. Such filing of the resolution shall take place within 45 days of the filing of the petition with the council pursuant to subdivision c of this section. The affirmative vote of a majority of all the council members shall be required to approve, approve with modifications or disapprove the petition. Any modification by the council shall not affect the terms of any proposed revocable consent agreement which relate to term, compensation, revocability, exclusivity, security, insurance, indemnification, erection, operation, maintenance or removal of any structure, right of access by the city and rights of abutting property owners. If within the time period provided for in this subdivision, the council fails to act or fails to act by the required vote on a petition, the council shall be deemed to have approved the petition. If within the time period provided for in this subdivision, the council approves the petition with modifications, the petitioner shall accept such modifications within 15 days of such approval, or the council shall be deemed to have denied the petition.
g. 1. The term of the revocable consent, and the term of a renewal of such consent, shall be 1 license period and shall be concurrent with such license period.
2. The consent shall be upon such conditions as may be provided in the approval of the petition by the department, as such approval may be modified by action of the council pursuant to subdivision f of this section, but shall be revocable at any time by the department. The separate and additional approval of the mayor shall be necessary to its validity, unless the mayor has determined that separate and additional mayoral approval is not required for such petition or any category of such petitions.
h. A revocable consent for a sidewalk cafe, or a consent to operate a sidewalk cafe located on a sidewalk widening, shall provide for compensation to be paid annually to the city during the continuance of the consent. Compensation shall be equivalent to the product of the fee rate and the square footage of a sidewalk cafe. There shall be 4 sectors, as described on the website of the department, provided that sectors 3 and 4 shall only include the area south of and including 125th Street in the borough of Manhattan, and the fee rate for sector 1 shall apply to a minimum of 80 percent of the city. The fee rate for each sector shall be as follows:
Sector | Fee Rate |
1 | $6 |
2 | $10 |
3 | $18 |
4 | $31 |
i. 1. Notwithstanding subdivision h of this section, 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 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 this section takes effect.
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.
j. Notwithstanding subdivision a through g of this section, a petition for a consent to establish a sidewalk cafe located entirely on a sidewalk widening, as demonstrated to the satisfaction of the department, shall be reviewed and approved in accordance with the rules of the department.
k. Except as otherwise provided by section 19-160.6, a sidewalk cafe may not be operated prior to the approval of the consent therefor by the department pursuant to this section.
(L.L. 2023/121, 8/16/2023, retro. eff. 6/20/2023)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2023/121.