Patios and Pina Coladas: When a Regulation isn’t Really a Regulation

By Seth Daniel

When spring weather arrives, and things warm up, in Boston’s Back Bay, Fenway and South End, restaurant owners are primed to open up their patios for al fresco dining – as patrons clamor to break out of cabin fever and enjoy a meal as soon as the weather cooperates.

This week, at Bar Mezzana in the South End’s Ink Block, owner Jefferson Macklin was beginning to position his planters to lay out the two prime patio spaces that are a hallmark of his summer and early fall dining seasons. As he did so this year, however, he did it with a bit of relief – having learned this winter that one thorn-in-the-side regulation wasn’t really a regulation.

“God knows how it started, but I was very surprised to hear it wasn’t really a rule,” he said this week about the assumed rule of having to serve food with alcohol on outdoor patios. “These things seem to just come up and they’re self-perpetuating…We thought the rule was you had to serve food if you served alcohol on the patio. We understood there was no outdoor space where only alcohol was consumed. We have two patios, one off the dining room and one off the bar. We had to come up with a special menu for the smaller patio off the bar just for the season. It is smaller and wasn’t conducive to serving a full dinner. So, thinking this was a rule, we came up with a  menu of small plates to serve out there with alcohol because we thought that was required by the City. We didn’t know there was no regulation stating that, but I was thrilled when I heard it. I couldn’t believe it.”

For those restaurants with a patio, for decades it was understood that in order to serve patrons a cocktail or glass of wine, they had to also have food on the table. Many restauranteurs like Macklin had always heard that they could get in real trouble if patrons were outside drinking without food.

For a lot of restaurant operators, the internal joke was to put out the “fake bread” on patio tables for patrons who wanted to only drink, in hopes that would show goodwill to any inspector ready to cite them for allowing drinking without food.

It turns out, according to ISD Commissioner William Christopher, that there is actually nothing on the books that requires food on the table or prohibits patrons from drinking alcohol on the patio without food.

Talking to restaurant owners about a plethora of new initiatives at a meeting in February, Christopher called the presumed regulation “urban legend” that somehow started to be enforced.

“A lot of these stipulations people follow that aren’t spelled out on the liquor licenses are just urban legend,” he said during the meeting. “That’s where all of this kind of gets embarrassing. There was never an ordinance that said you couldn’t do that. It was one of those things that just grew and it got interpreted that way, but it was never an ordinance.”

Macklin, like most operators, was quite relieved that he could get rid of the special menu, and he didn’t have to put out the “fake bread” any longer; that he could use his barside patio as it was designed to be used.

He said there was probably a good reason in the past that such things were invented by inspectors or operators or both, but they don’t apply now. He said another rule he also learned about, which also wasn’t an actual rule, was the supposed Oct. 31 mandatory close-down date for patio dining.

“I learned that’s not there either,” he said. “That is driven by the liquor license and if your license says you can have a patio year-round, you can put a patio out in January if you want. So, there really isn’t a patio deadline either, and I’ve always thought that was the case everywhere I’ve worked.”

Christopher said the clarification is part of a larger effort requested by Mayor Martin Walsh to have ISD embark upon to cleaning up and clarifying the rules of operation for licensed establishments. One small, but unheralded, change they made was to eliminate the need to get a take-out license for restaurants. Previously, restaurants had to get their general license, called a Common Victualler, and also a separate take-out license with a separate fee. That has now been eliminated as a requirement from the zoning code, he said.

Other things are just simply not on the books, like the “fake bread” mandate.

“Mayor Walsh has instructed us to take a look through every regulation written,” he said. “There are a lot of great regulations and we’re not touching those. However, there are a lot of interpretive things that we are looking at. This one – there just was no ordinance to support it. It’s just interpretive.”

Macklin said he will look forward to being able to use the patio without the regulation, or supposed regulation, hindering him.

“We’re looking forward to a great summer season on the patio,” he said. “We’re thrilled to have the ability to have patrons off the bar side be able to have a drink on that patio without having the pressure of having to serve food there from a different menu. To the City’s credit, there is an effort to bring some sanity to some of these kinds of things.”

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