The Future of Outdoor Dining and Its Impact on Live Music

Chino Pons (left) performs in Baby Brasa's roadside cabana on Friday and Saturday nights

New York Governor Andrew Cuomo signed legislation on July 6 that will allow restaurants to continue using public spaces like sidewalks and streets for outdoor dining for another year. First granted under an executive order by the governor in June 2020, the new law allows restaurants to continue using these public spaces for recovery from the economic downturn resulting from the COVID-19 pandemic.

In 2020, the governor's executive order allowed restaurants and bars to serve their patrons food or beverages on-premises in outdoor space while their indoor capacity was limited. Specifically, these establishments were permitted to expand the licensed premises to public space such as sidewalks or closed streets, subject to reasonable limitations and procedures set by the State Liquor Authority and the safety and supervision plans of the local municipality.

With the conclusion of the declared Disaster Emergency, the executive orders had to be codified by the state legislature to remain in effect or rely on other existing regulatory power of a state agency. In this case, the legislation was necessary to allow the state Liquor Authority the discretion to continue the use of this space without prior approval. Introduced on April 23, the New York Senate passed S.6353-A on June 3, the State Assembly passed A.7733 on June 7, and the governor signed it into law on July 6.

Benny Benack (left) and band outside the Terremoto Coffee Room on July 10; the venue does not have indoor space for live music (photograph by Seth Okrend) 

Restaurant usage of outdoor public space must meet all federal, state, and local laws, rules, and guidance, according to the signed legislation. Restaurants must also have a temporary use permit from the municipality, which is tasked with ensuring the public space is used in a safe, orderly manner. New applicants must provide community notification in a manner consistent with the state Alcoholic Beverage Control Law.

"As we build New York back better than it was before, it's important that we learn from the past and capitalize on those efforts that helped so many of New York's small businesses survive amid the global pandemic," Cuomo said. "By extending the much-needed lifeline that allowed restaurants to use outdoor public spaces for seating during the pandemic, New York is ensuring that these small businesses will be able to continue to use these spaces as they work to rebuild and support the revitalization of the Empire State."

Kid Krill at Marshall Stack on July 8; although still seated at an open window, he faced the indoor audience

NYC's Open Restaurants

On a local level, New York City Mayor Bill de Blasio's administration is working on making permanent its Open Restaurants program. Early in the 2020 COVID-19 ban on indoor dining, de Blasio launched Open Restaurants as an emergency executive order, allowing pandemic-shuttered restaurants to serve food and beverages to seated customers at sidewalk and roadside tables without imposing rent or fees on the landlords or businesses. The Open Restaurants program suspended numerous outdoor dining regulations, including zoning rules that limited where sidewalk cafes can be located, giving thousands of restaurants immediate clearance to place tables and chairs on sidewalks and roadways. Consequently, more than 2,500 restaurants participated in outdoor dining that would have been ineligible or limited under sidewalk cafe regulations. The total number of restaurants with outdoor seating reportedly increased from 1,200 to more than 11,000 -- nearly half of all restaurants in the city.

The Department of City Planning’s amendment, which entered public review on June 21, will permanently remove many of the pre-pandemic restrictions and create a more streamlined Open Restaurants program. Restaurants still must adhere to regulations set by the Department of Health, the Department of Buildings and other agencies, but the Department of Transportation will oversee the promulgation of outdoor dining. DOT may require new safety protocols, limit the number of seats, and dictate regulations on how the structures must be built.

Grady Tesch and his band Momentum have moved further inside Rue-B, playing more towards the indoor than the outdoor audience

Musicians have moved further back from the window at the Anyway Café, including El Diablo (above) on June 30

The municipal government also has a new incentive for extending Open Restaurants. Discussion has begun on how the city can profit from the loss of 8,000 parking spaces and its collection of fines. The city may begin charging fees for the use of public space.

A new administration will control City Hall beginning on January 1. No one knows how the new mayor and his cabinet will reshape Open Restaurants. The State Liquor Authority and the city’s departments of buildings, fire, health, planning and sanitation will input their concerns. Changes in zoning laws and applications for sidewalk cafés will stir controversy mainly at the community board level. If city officials and community boards cannot agree on proposed changes that would make permanent the Open Restaurants program, the initiative may terminate in December 2022.

At the Ear Inn, musicians perform indoors on Monday nights, including the Jake Walker Trio on July 5; the EarRegulars (not pictured) perform outdoors on Sunday afternoons

Collette Astle indoors at the Red Lion on June 28; the venue no longer hosts outdoor music

Live Outdoor Entertainment

Early in the pandemic, Cuomo permitted restaurants to provide "incidental" live music for their outdoor diners. The East Village Social and Marshall Stack were among the pioneers of this movement in New York City, although the East Village Social ended this practice quickly. As the popularity of live music increased, local musicians approached restaurants and asked if they could play for tips. Thus began the new tradition of musicians performing inside by an open window to customers seated outside.

At that time, venues were prohibited from advertising their shows or charging admission. Customers needed to be seated and order a food item in order to purchase alcoholic drinks. Even the musicians were required to observe social distancing from their audience.

With the easing of restrictions, shows now can be advertised, tickets are being sold, barriers between entertainers and customers have vanished, and life seems to be much like it was, except that outdoor music remains far more prevalent than it was pre-pandemic. Neither the senate, the assembly or the governor's version of the bill addressed the future of live outdoor entertainment at bars, cabarets or restaurants.

With no guidance from the state or the municipal government, it appears that at least for another year, musicians can perform outdoors, or indoors to outdoor audiences. The trend seems to be moving in the opposite direction, however. As indoor dining resumed and capacity limitations increased, many musicians have moved further inside. Musicians at the Anyway Café, Caravan of Dreams, Groove, Marshall Stack and Rue-B, for instance, increasingly face indoor diners rather than performing through an open window. The Red Lion long ago abandoned the outdoor option altogether and moved its musicians totally indoors. Joey Bats Café, Pinky's Space and the Terremoto Coffee Room all have no space for indoor entertainment but, even so, the frequency of outdoor performances has decreased at these venues.

Escalation Horns on Bleecker Street on June 30

Brass bands, on the other hand, are proliferating. They tend to stop at sidewalk cafés, play two songs, collect tips, and move on to the next restaurant. Despite their nomadic routines, residents have registered complaints.

"A couple of weeks ago, one woman came up to us and said she was on some neighborhood board and that they 'hate us,'" Craig McGorry, saxophonist of Escalation Horns told The Manhattan Beat. "She repeated it about two more times.

More than likely, the resident's ire was not directed to Escalation Horns in particular, but to all the many roving brass bands that stroll through the new outdoor restaurant rows in the area. The complaints also may not be exclusively about live music, but about all the mounting street activity as citizens emerge from quiet pandemic isolation and populate the streets with various forms of celebration.

"We do not stay long, so does not seem like it should be much of an issue," McGorry continued. "I am not sure how I would feel if I lived in that area. I think I would welcome the music. It is New York City and I feel like you have to expect the unusual."

Marley at Union Square Park on June 26

Even before restaurants began hosting live music, many musicians brought their instruments to the parks and played for tips. In recent months, the New York Police Department and the Department of Parks and Recreation randomly have been stopping musicians without permits from performing with amplification. Because the enforcement is erratic, musicians continue returning to the parks. The beat goes on.

Mat Kastella at Tompkins Square Park on July 7

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The Manhattan Beat covers New York City's live music developments as they happen. All photographs are by Everynight Charley Crespo, except when noted otherwise. For a list of Manhattan venues that are presenting live music regularly, swing the desktop cursor to the right and click on the pop-up tab "Where to Find Live Music." For a listing of upcoming concerts for live audiences, visit The Manhattan Beat's July 2021 calendar.