Regulatory requirements could present a challenge for restaurants hoping to offer outdoor seating.
At the board of selectmen’s meeting on Monday, May 18, Associate Town Counsel Irie Mullin said most restaurant owners will need to amend their alcoholic beverage and common victualler licenses to serve food and drinks outside.
Allowing outdoor service has been discussed as a way to help restaurants adapt during the COVID-19 pandemic.
“As it stands right now, each premises that serves alcohol, their license is tied to a designation of premises,” Ms. Mullin said. “If that changes, if it goes from the interior of the structure to, for example, also include the property’s lawn, that would have to be modified for a change in the license, which would go in front of the board of selectmen.”
If approved by the board, the amended license would be sent to the Alcoholic Beverages Control Commission for approval. The ABCC is processing applications in an expedited fashion, which can take five to seven days, Ms. Mullin said, adding that there is pending legislation related to alcoholic beverage control licensing that could speed up the process.
Most restaurants planning to add outdoor seating will need to go before the board of selectmen to amend their common victualler license to reflect a new floor plan.
“Common victualler licenses will likely be required for any and all attempts to have outdoor seating, unless their floor plan already includes an outdoor area,” Ms. Mullin said. “There is, for example, one restaurant on Main Street that does have an outdoor patio on private property that is within their common victualler license.”
If the changes require an alteration to a special permit from the planning board or a special permit from the zoning board of appeals, it will require a public hearing. In addition, she said, if a business does not have a special permit due to its age and is expanding a preexisting non-conformity, it would need a special permit.
“That would have to go through a hearing process,” Ms. Mullin said. “Under existing state law, the hearing process is protracted. There is notice to abutters, which requires a certain period of notice, and then the hearing is scheduled. The board has to hear the matter and then issue a decision on it. I would anticipate there would be several of these types of petitions, so there will be a logistical issue there.”
Restaurants considering using their parking lots for outdoor seating need to consider the zoning regulations, as well.
“There is going to be a certain number of required spaces per seat, and if you are going to take away parking, it raises the question of if you have enough parking for those seats,” Ms. Mullin said.
Action from the state could grant business owners a reprieve from these regulations.
Chairwoman Megan E. English Braga said, “We’re really hoping for a relaxation of those regulatory requirements, so that there might be some flexibility and discretion really granted more at the municipal level to allow for the potential of some of these things.
“We know we don’t have that right now,” she said, “but it sounds like something that may be coming, either from the executive or the legislative branch, which would really address what you’re noting, the practical hurdles, which are significant.”
Ms. English Braga said restaurant owners should examine their permits now and see what steps would need to be taken to amend those permits.
Ms. Mullin said the state might take steps to expedite the amendment process.
“Our colleagues across the state, other towns and cities, are facing the same problem, and it does seem, from the armchair, that it would be a great thing to be address through an executive order,” Ms. Mullin said.
In addition, state Representative Dylan A. Fernandes (D-Falmouth) confirmed that legislation regarding outdoor seating and liquor licenses is going before the Legislature.
The board voted to direct Town Manager Julian M. Suso to send a letter to Governor Charles D. Baker Jr. asking for regulatory relief and a more-flexible permitting process.
Noting a suggestion from Falmouth Chamber of Commerce president Michael Kasparian, Selectman Douglas C. Brown said the town could consider installing picnic tables on the Falmouth Public Library lawn.
“People can go to the restaurants, buy their food, take it out and sit at a picnic table,” Mr. Brown said. “You can get that sense of community and you’re sort of dining out. There would be, I think, a limited liability on the town’s part because it’s a public space anyway.”
Assistant Town Manager Peter Johnson-Staub said, “It is one of the more practical things we can address without a whole lot of hurdles. To clarify what it would be, it would just be a public picnic table anyone could use, including for take-out from local restaurants.”
The picnic tables would need to be cleaned after each use, he said.
“Hopefully, the chamber or the restaurants that are right there on Main Street can partner to provide some staffing so that can take place,” Mr. Johnson-Staub said.
Selectmen also discussed the possibility of closing Main Street to vehicular traffic, which would help enable restaurants and businesses to sell their wares outside. Mr. Suso said not all Main Street businesses support the proposal.
“What we heard in that meeting with the chamber is a significant number of downtown businesses are opposed to a closure of Main Street,” he said. “I had not heard that previously. It was not the majority, but I’m told it was a significant number.”
Ms. English Braga said “the divide tends to be restaurant and retail shops, which are facing different challenges.”
“As a board, we’ve received some correspondence from individuals who are retail owners who are very concerned about any type of closure, because their communication is they really depend on street traffic and people driving by, who weren’t maybe going to necessarily spend time on Main Street, that kind of window shopping, seeing it and stopping,” Ms. English Braga said.
In lieu of a full closure of Main Street, Mr. Suso said some business owners suggested that Main Street could be closed at a specific time of day or on select days of the week.
Police Chief Edward A. Dunne said this is doable, but comes with challenges.
“It usually takes us about an hour to an hour and a half [to close Main Street], and we still end up towing four to eight cars, depending on the length of the closure,” Chief Dunne said.
Closing Main Street requires significant police manpower. “When we close the full length of Main Street, it will take seven officers and a supervisor to do that, and then we have to make a determination of what we are going to use for barriers,” Chief Dunne said. “When it is just a temporary closure, we probably want to use DPW trucks.”
Mr. Suso also discussed the potential of making Main Street one-way, but noted the town has not fully reviewed this suggestion.
“Having read a few concerns by retail owners, there was a significant stress on maintaining parking spaces in front of each of respective businesses,” he said. “The suggestion was maintaining the two-way flow.”
In addition, he said, changing Main Street to a one-way street would present some public safety challenges on Katharine Lee Bates Road.
Selectmen will discuss the matter further at a future meeting.
“We have a lot of great options available, but the biggest challenge is one we don’t control, which is some of the relief from the time-intensive piece of some of those regulatory issues,” Ms. English Braga said.