Pandemic Regulatory FAQs
Originally Published : March 11, 2021
The good news caboose just keeps on rolling as we have some major uplifting developments for the hospitality industry. The Covid relief bill was signed today, exactly one year after the WHO declared a pandemic, and it’s the law of the land and we are all chomping at the bit to see what the process is going to look like and how we are going to get the cash money dollars into our hands.
Then, we are told that vaccine accessibility and distribution are ahead of schedule and that all adults will have access to a jab by the end of May. Then, it’s 70 degrees today and our Witch Hazel tree is already blooming and attracting bees. Then, we will be at 50% occupancy after St. Patrick’s Day. Then, Broadway is going to reopen and tourists are going to come back and that will not annoy us in the least.
Then, NYC will be full again with hungry, adventurous, breaded people and that will cap the greatest comeback an industry has ever made and we can all rejoice as we reflect over martinis about how much we endured and how we put our heads down and how we suffered loss, and how we mourned and then fought like hell and how we won! And then, the Mets will win the World Series and I will get on an ice floe and drift away a happy man.
And there are heroes in the struggle and in politics and in the industry that we must acknowledge and thank. Here is my list:
Andrew Ridgie – I swear that I hear or read Andrew’s name every day whether he’s been interviewed on WNYC or he’s being quoted in the NY Post or he’s telling us about his call with the Mayor or Governor or Senator Schumer. He has become an essential voice for the industry during this pandemic and he has been mixing it up and hustling every day for the industry. We need this guy in office!
Chuck and Nancy – both had the monumental task of cajoling and corralling their caucuses to get behind the Covid Relief Bill. Chuck had to get Bernie to agree with Manchin and Nancy had to keep the 200 plus Reps together as they used all of their political panache to push the Bill through the House and Senate. And they always said they stood with us and they proved it and thank you to both of them. And Chuck seems so much more confident these days doesn’t he?
Tom Colicchio – He used his celebrity chef status to get out there and tell our tale to anyone who would give him a platform. He was on TV every day and he was eloquent and convincing and sympathetic and he and NYC’s own Ivy Mix and Amanda Cohen and the IRC were tremendous on the political and media front throughout the year.
ROAR – everyone at ROAR has dedicated so much time and energy to the fight. Camilla, Adam, Sean, and all the members were a galvanizing and forceful voice in local and state politics and they just got in people’s faces and it was exciting to witness.
All of You – who work and own and operate and help and lobby and have spoken up for the hospitality industry this past year. You have all worked insane hours while risking your lives to provide nourishment to the masses and to protect your staff and your family and you have persevered and it’s a testament to the type of people you all are and it’s incredibly inspiring. I could not be more thankful for all of you.
Another hero of the movement, Mr. Joey Regs…..
My phone number has essentially served as a regulatory nightmare/emergency hotline over the majority of the last year. And while everyone has their own somewhat unique situation, there are some common threads. So, I figured I’d share some of the most popular questions that I’m getting right now, along with corresponding answers. Hopefully this will help, as we all shoot to successfully navigate our new normal.
Q: I understand indoor dining capacity is increasing next week – when exactly and by how much?
A: Friday, March 19th is the date that when we can finally enjoy a meaningful level of indoor dining. If you’re in NYC, that capacity number goes up to 50%. If you’re outside the City, you get to move to 75%.
Q: What’s the deal with food sales? Do I still have to sell food, to serve booze to a guest?
A: Yes. This has not changed, and likely will not for a while.
Q: What’s the deal with counter seating? Is that allowed now?
A: You have always been able to do this, you’ve just had to get creative to remain compliant. Plexi sheets, separating parties gets you there – while also complying with other State and City mandates, of course.
Q: Do we still have this curfew? Doesn’t the Governor realize that this cuts us off at the knees?
A: Yes, we still have the shitty, early curfew of 11:00 PM. And while I hope that this is the next restriction to fall away (and believe that it will be), I’m just not sure when that’s going to be yet. And as for the Governor’s thought process or judgment… well, I’ll just leave that there.
Q: The Open Restaurants program is great, but what happens after this year? Can I file a Sidewalk Café Application right now, in preparation?
A: We don’t know what the future holds for outdoor seating in NYC quite yet. HOWEVER, we do know that it will continue to exist in one form or another. And we also know that there is a very high likelihood that the old sidewalk café program (the one that pre-dated COVID, if you can remember back that far) is dead and gone. What we get in the future, promises to be much better, much easier and dare I say more user-friendly. Stay tuned for updates, as this process unfolds. As for filing anything right now? You can’t.
Q: I’ve been visited quite a few times by various City agencies, and they all seem to have different opinions about what I can and can’t be doing. Is there any centralized place for me to call for assistance in navigating this mess?
A: Contact the Mayor’s Office of Nightlife. While the Mayor doesn’t necessarily like to do things, his Office of Nightlife Director sure does. Ariel Palitz has been on the front lines of this nightmare, fighting for the industry, since this nightmare began. Feel free to contact her office if you need any assistance navigating the City’s bullshit.
Q: What is this new form of relief for restaurants in the new stimulus package? Is this like the PPP? How much can I get? How do I qualify?
A: $28.6 Billion (with a “B”) of the funds in the new stimulus package will be earmarked for hospitality businesses. And the money to be distributed will be in the form of a GRANT – not a loan, not a convertible loan, not a [potentially] forgivable loan. While the application has not been released yet, nor has the guidance, we do know some details. You will have to submit your 2019 tax returns and your 2020 tax returns. The Federal government will basically be cutting you a check for the difference between the two annual revenues (provided that 2020 is less than 2019), less however much $ you got in PPP funds. There are some limits here – $5MM per individual restaurant; $10 MM per restaurant group. So, for example, your restaurant did $5 MM in 2019; $1 MM in 2020 and got $500k in PPP funds, you’re getting a check for $3.5 MM. We’ve touched upon this before in our newsletters. Please pay attention to this program, and begin preparing for it (i.e. filing your tax returns for 2020). This could be the windfall that anyone who made it through this pandemic in the hospitality industry deserves.
Commercial Eviction Update by Maya Petrocelli Chair, Litigation Group
On March 9, Governor Cuomo finally signed the COVID-19 Emergency Protect Our Small Businesses Act of 2021 which established eviction and foreclosure protections for small businesses struggling due to the COVID-19 pandemic until May 1, 2021. The Act is effective immediately.
The legislation initially applies to New York state small businesses with under 50 employees or the owner of commercial real property with ten or less commercial units that demonstrate a financial hardship. However, per its website, the Governor has reached an agreement to expand the protection and the legislation will ultimately protect small businesses with 100 or fewer employees, and to any business with 500 or fewer employees that was closed to in-person operations by executive order or department of health directive for two or more weeks between May 15, 2020 and May 1, 2021. When the expanded legislation will be signed is not known, but we are hoping it will be passed in the coming weeks.
In the meantime, the current legislation states that if the commercial tenant delivers (through proper service) a “hardship declaration” notice to its landlord, it cannot be evicted until May 1, 2021 for nonpayment of rent or for holding over after the expiration of the lease. You should keep a copy of the signed form for your records. Please note thatthe law does not waive or excuse rent.
If an eviction proceeding has not yet been filed against you, and you have provided the landlord the hardship declaration, the landlord cannot start a new eviction proceeding until May 1, 2021. If your landlord has already started an eviction proceeding, you should return the hardship declaration to your landlord, the court or both and the lawsuit will be put on hold and rescheduled for at least 60 days.
As always, if you have any questions or need a copy of the Hardship Declaration form, please reach out to the Chair of our Litigation Group Maya Petrocelli at Maya.Petrocelli@helbraunlevey.com.
Lastly, thank you to everyone at HL who all continue to bust their asses to help our friends and clients in this industry that we have dedicated our careers to and that we love so much. Thank you!
As solo Jerry liked to say: I just want to stop, and thank you baby!