Important Update on NYS Executive Order 202.52

Friday, July 17, 2020

New York State Governor Andrew Cuomo has issued Executive Order 202.52, effective Friday July 17, 2020.  Pursuant to the Executive Order, all licensed establishments with on premises privileges (e.g. restaurants, taverns, manufacturers with tasting rooms, etc.) are prohibited from serving alcoholic beverages unless such alcoholic beverage is accompanied by the purchase of a food item.  The food item must be consistent with the food availability requirement of the license under the New York State Alcoholic Beverage Control Law. 

While the initial media reaction to the Executive Order focused on its impact on bars, restaurants and similar on-premises establishments, subsequent review of the Executive Order has provided a clearer picture as to how it applies to manufacturing operations with on-premises privileges such as wineries, distilleries and breweries.

In its guidance on the Executive Order, the New York State Liquor Authority ("SLA") has advised that "[t]he purpose of the requirement that food be sold with alcohol is to permit outside and limited indoor dining (outside of New York City), with alcoholic beverages, while restricting the congregating and mingling that arise in a bar service/drinking only environment".

The SLA has provided the following guidance with respect to the Executive Order:

"Purchase of a food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law" shall mean that for each patron in a seated party, an item of food must be purchased at the same time as the purchase of the initial alcoholic beverage(s).

However, one or more shareable food item(s) may be purchased, so long as it/they would sufficiently serve the number of people in the party and each item would individually meet the food standard below.  

"A food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law" shall mean:

For manufacturers with on-premises service privileges: sandwiches, soups  or  other  such  foods, whether fresh, processed, pre-cooked or frozen; and/or food items intended to compliment the tasting of alcoholic beverages, which shall mean a diversified selection of food that is ordinarily consumed without the use of tableware and can be conveniently consumed, including  but  not limited to: cheese, fruits, vegetables, chocolates, breads, mustards and crackers.

According to the SLA, the Executive Order does not affect the ability of a manufacturer with off-premises privileges to sell any product to go to a patron at the licensed premises in a sealed original container without the accompaniment of a food item.

Clearly, the Governor's Executive Order will not affect the ability of manufacturers to continue sales for off-premises consumption.  However, sales for on-premises consumption will be significantly impacted.  The order mandates that the sale of alcoholic beverages for on-premises consumption must be accompanied by a food item.  Manufacturers having on-premises privileges must adhere to this requirement by ensuring that alcohol sales (for on-premises consumption) are accompanied by a food item consistent with the requirements of their licenses (e.g., sandwiches, soups, cheese, fruits, vegetables, chocolates, breads, mustards and crackers).  The Executive Order requires that a food item accompany the alcoholic beverage. 

What remains unclear is how the Executive Order impacts tastings held within on-premises tasting rooms.  The Executive Order appears to be targeted, at least in part, at limiting sales at customer bars.  Further guidance is necessary in order to fully understand how the Executive Order will impact tasting room operations.  In the meantime, manufacturers with on-premises privileges should take steps to comply with the Executive Order to avoid potential penalties.  These steps should include ensuring that tasting room alcohol sales are accompanied by food items.

Additional guidance will be provided as it becomes available. 

Should you have any questions, please do not hesitate to contact Zachary R. Benjamin at (315) 751-7322 or via email here.




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