As Massachusetts continues to progress towards reopening, certain Executive Orders providing temporary relief for restaurants are set to expire when the state of emergency is lifted. Municipal action may be necessary to ease your local businesses’ transition to normal operations.
Governor Baker’s COVID-19 Order No. 35, § 4, issued June 1, 2020, gave municipalities authority to approve restaurants’ requests for expansion of outdoor table service, including expansion of the licensed premises, without going through the usual statutory permitting process. Many towns took advantage of this authority to permit restaurants to set up outdoor dining in unique settings, such as parking lots, right of ways, or sidewalks, to help these establishments navigate the financial difficulties of the pandemic, and to provide opportunities for on-site dining. The Governor’s Order also allowed local licensing authorities to approve an amendment to the description of the licensed premises for the purpose of permitting outdoor alcohol service. These approvals for outdoor table service and liquor license amendments were set to expire no later than November 1, 2020.
Subsequently, COVID-19 Order No. 50, § 1, issued September 10, 2020, allowed new approvals for expanded outdoor table service (including expansion of the licensed premises) or extension of approvals for outdoor table service granted under Order No. 35 to remain in effect until 60 days past the end of the state of emergency, at which time any approval automatically reverts back to its original status. Cities and Towns are authorized to modify or extend prior approvals to expire on a date sooner than 60 days after the cancelation of the state of emergency but cannot extend approvals past that date. Local licensing authorities can approve extensions and modifications of amended permits granted under Order No. 35 but cannot approve new requests. In addition, state laws that currently allow restaurants to sell beer, wine, and cocktails with takeout orders are set to expire when the state of emergency is lifted.
A municipality that would like to maintain the increased level of outdoor dining and beverage service after the state of emergency ends should review its common victualler and liquor licensing regulations to ensure that they support the continuation of these outdoor uses.
Municipalities may even wish to revisit their planning policies to further encourage the creative use of outdoor space, such as by cementing “shared streets” policies or expanding sidewalks where outdoor dining has been popular.
Cities and Towns should also be prepared to address the questions and concerns of business owners as the permits and licenses issued during the time of emergency expire. In anticipation of these concerns, it will be important to give clear, early notice to businesses with expanded permits or licenses that their permission will expire shortly after the state of emergency ends, and the businesses should begin the process of obtaining regular permits or licenses to avoid a gap in their operations.
Finally, note that certain measures, such as to-go cocktails, will once again be prohibited when the state of emergency is lifted unless the Legislature takes further action to extend these laws.