Chicken wings are food, allowed as menu option for New York state alcohol service rule

Food and Drink

NEW YORK, NEW YORK – OCTOBER 10: Chicken wings on display during Elvis Duran’s Taste of New York presented by Intrinsic Wines hosted by Elvis Duran and the Z100 Morning Show at Food Network & Cooking Channel New York City Wine & Food Festival presented by Capital One at Pier 97 on October 10, 2019 in New York City. (Photo by Noam Galai/Getty Images for NYCWFF)

ROCHESTER, N.Y. (WROC) — New York state’s rule requiring a food order for alcohol service to be allowed caught many by surprise, and left business owners with a lot of questions.

Things got more complicated when stories and videos were shared online over the weekend that claimed Gov. Andrew Cuomo said a regional staple, chicken wings, didn’t count as a “substantive” food option. A New York State spokesperson later clarified what the governor said.

Regardless, those stories were false. Chicken wings are on the list of approved foods and are allowed in regards to menu items that constitute alcohol service.

MORE | Rochester-area restaurant owner on new rules: ‘I don’t want to be in this business anymore’

According to a Q&A on the New York State Liquor Authority’s website:

Q: I operate a restaurant or bar, and I understand that I must serve sandwiches, soups, or “other foods” when a patron orders an alcoholic beverage, can you tell me what constitutes “other foods?”

A: “Other foods” are foods which are similar in quality and substance to sandwiches and soups; for example, salads, wings, or hotdogs would be of that quality and substance; however, a bag of chips bowl of nuts, or candy alone are not.  

More Q&A with the NYSLA:

Q: I am a manufacturer with on premises privileges, do I need to make sandwiches, soups, and other similar foods available?

 A: Only to the extent you have a separate on premises license (tavern, restaurant, etc.) at your manufacturing premises.  If you have only a manufacturing license, you must provide patrons the ability to order, at a minimum, finger foods like chips, cheese and crackers, or pretzels. 

 Q: Must a patron order food with each alcoholic beverage ordered?

A: No, as long as food is ordered at the time of initial order of any alcoholic beverages that is sufficient in substance (see above) and is also of a quantity sufficient to serve the number of patrons who are present and being served alcohol.

Again, the purpose of this policy is to ensure that patrons are enjoying a sit-down dining experience, and not a drinking or bar-type experience which often tends to be problematic from a public health perspective.  

Q: Can I use a food truck or other third-party business to fulfill the food requirement under this guidance?

A: No, if the ABC Law requires that food be made available under your license, then that food must be available on your premises to be ordered – it cannot be delivered at the time or order, and a patron should not have to leave the premises to get it;  additionally, the ABC Law prohibits a second business from operating on a licensed premises.

A food truck may be located in an unlicensed parking lot area; however, if it becomes apparent that use of a food truck creates too much traffic and lack of social distancing (on the premises or at the truck), you should discontinue its use immediately.  

Q: Can a patron order an item to-go and order an alcoholic beverage to drink while waiting?

A: No, that is not an on-premises dining experience.  A takeout customer should be encouraged to call ahead and/or wait off the premises for his/her to-go order and leave with the food and drink, consistent with our guidance on takeout service since March 2020 which remains unchanged, and with DOH’s interim dining guidance.

Q: Can a patron order only a dessert item along with an alcoholic beverage?

 A: Yes, so long as the dessert item is a substantial item, such as a piece of cake/pie, an ice cream sundae, etc.; it should not be only a drink with whip cream, a cookie, a piece of candy, etc.

As with all question as to the food standard, please keep in mind the purpose of this policy as described above.  

 Q: I have a club license under the ABC Law, must I serve food to my patrons in accordance with this guidance? 

 A: No, a club licensee is not required to make food available under the ABC Law. Please look at your license certificate to ensure your license is in fact a “club” license under the ABC Law and not instead a tavern, restaurant, or other type of license. If food is available at your club, you are encouraged to serve it in accordance with the SLA Guidance in furtherance of its public health policy.

Q: Must I sell an item of food to accompany the order or may I provide it as complimentary?

 A: While a charge is not necessarily required for the food, you must have a record that food was ordered with drinks, so bills/checks need to reflect the food that was ordered and served. Further, you should not provide food that is shared among parties.

Q: Must I force customers to eat a food item?

 A: Food must be ordered and served.  We cannot require you to force someone to eat what they have ordered, but again, licensees are required to serve in a manner consistent with the purpose of this policy, and if customers are not at the premises to enjoy a sit-down dining experience, serving them alcohol is a violation. If it is evident to you that a patron intends to circumvent the policy, you should not continue to serve them.

Q: I understand that counter service is limited, does that mean that customers may not sit at my lunch counter or bar?

 A: No, patrons may continue to sit at a bar or counter in the same manner as is required under the DOH interim guidances, e.g., parties of no more than 10, 6-foot distance between parties, etc.  

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