Restaurant Capacity Requiring Restrooms May Be Reduced

By helbraunlevey on June 19, 2012 in Bars, Restaurants

Ten or Twenty, What’s the Difference? Probably More Than You Think.

Under existing New York law, restaurants with a seating capacity of twenty or more are required to provide customer restrooms. Recently, members of the New York State Senate introduced a bill that will change that number from twenty to ten.

Why? Your guess is as good as anyone’s (including the Senators who wrote the bill). The bill’s justification for the change simply states, “ten is a more reasonable number” without any further explanation.

You can read the full text of the bill here:

http://open.nysenate.gov/legislation/bill/S1336-2011

It is unclear what effect this law will actually have on restaurant’s that have a 10-20 seating capacity. Other New York laws require that all restaurants have employee bathrooms. The law allows that restroom to be shared with customers as long as the customer does not need to pass through a food preparation area to use it. In other words, the law won’t affect a restaurant if customers can access the existing employee bathroom in such a manner.

Most importantly, existing New York City restaurants were given special consideration. In NYC only, the new seating requirement will only apply to restaurants that open after the bill is passed. Before the bill is passed, any existing restaurant is “grandfathered in” and will be held to the twenty-seat rather than ten-seat minimum.  Outside of New York City, the new bill will apply to all restaurants regardless of when they opened.

While the grandfather exception does seem to favor existing restaurants in New York City, it could very well cause them unintended problems. The simple fact that the NYC Department of Health is the agency responsible for enforcing this law could prove problematic for restaurants affected by the new law.

We have fought numerous violations on behalf of restaurant’s with seating for less then twenty and were given clearly erroneous violations for not having a customer bathroom; and/or having an employee-only bathroom, not intended for customer use, that cannot be accessed without passing through a food prep area

Under the new bill, an inspector could make those same mistakes but with an added opportunity for error considering the grandfather clause. Does anyone in the industry really expect a NYC Dept. of Health inspector to follow the grandfather provision? It seems unlikely that an inspector would take the extra steps to verify when a restaurant with an 11-20 capacity initially opened.

Instead, it seems more probable that an inspector would simply write the violation without verifying such information and leave it to the restaurant to sort out at the Health Tribunal. We already see inspectors routinely do this when faced with violations that are uncertain on their face but could easily be verified. In this sense, the grandfather provision may actually cause more problems for such restaurants.

In light of these potential complications and lack of any stated or ascertainable justification to change the seating number; it appears that the bill will likely cause more headaches for restaurant owners in NYC.

Of course, that’s where we come in.

What can you do about the proposed change? Presently, the bill is in being considered by the NY Senate Health Committee and has not been calendared for any public comment period. However, you can easily contact your Senator (you don’t even have to know who it is) at this link: http://www.nysenate.gov/contact_form. Be sure to reference Bill No.: S01336.

It is especially important for all New York City residents and restaurant owners/operators to take notice that all of the bill’s sponsors are from New York City Districts. The main sponsor is Martin Dilan (District 17, Williamsburg, BK) and the co-sponsors are Kevin Parker (Dist. 21, Flatbush, BK); Ruben Diaz (Dist. 32, Soundview, BX); Ruth Hassell-Thompson (Dist. 36, Williamsbridge, BX)

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