The Record-Review – The official newspaper of Bedford and Pound Ridge, New York


County cracks down on outdoor dining rules


The sidewalk patio outside Willy Nick’s is completely shut down this week during the peak of the summer season when it’s usually bustling at lunch and dinner.


What is supposed to be the peak of the outdoor dining season in Katonah has turned into the height of frustration for some restaurant owners in the hamlet, as well as for customers unable to dine al fresco at several of their favorite spots this summer.

The frustration stems from the fact that the Westchester County Department of Health last fall began enforcing a decades-old policy about the seating capacities of eateries. Each restaurant has a maximum number of seats permitted based on septic usage, according to the health department, but local restaurateurs — many that have been offering outdoor seating during the warm weather months for decades — said they were surprised to learn recently that the county’s capacity figures include both indoor and outdoor seats.

“The county has never enforced these rules and now, in the worst economy in 40 or more years, they are choosing to do so, and it’s stripping away business,” said Jeff Goodwin who, along with Andy Vitrone, owns Willy Nick’s restaurant and Wm. Nicholas & Co. gourmet market.

“We don’t have a problem with rules,” Mr. Goodwin explained. “We do everything they ask us to do but now, seemingly out of nowhere, they’re doing this. It’s mind boggling, and we’re not the only restaurant that counts on this little window of a patio season to make our margin for the year. This is hurting business in a big way now, but will have a major impact over the long term.”

The owners removed the tables and chairs from the small sidewalk patio outside Willy Nick’s on Katonah Avenue, and the few café tables and chairs that were very popular on the porch of Wm. Nicholas at 19 Edgemont Road have been replaced with park-like benches.

“Customers walk up to both places, and once they find out they can no longer sit at a table outside, many of them just walk away,” Mr. Goodwin said. “Closing the patio will result in staff reductions and will take a huge chunk out of our business when we were counting on it most. This policy enforcement will drive restaurants and other businesses out of Katonah, and I don’t think people will realize how serious this is until there are tumbleweeds rolling through town.”

But this week, Peter DeLucia, the county’s assistant commissioner of public health, said that the policy has been “on the books forever,” and shot down any suggestion that the health department is trying to hurt restaurants or any other business.

“We’re not looking to harm businesses in any way, shape or form,” Mr. DeLucia said. “But we are charged with enforcing the sanitary code, which is intended to protect both businesses and their customers.”

At the Katonah Restaurant it’s been a case of musical chairs this summer as the owners and wait staff regularly rearrange furniture to accommodate diners wishing to eat inside or at outdoor tables, while still keeping under the seating capacity. When not being used, outdoor chairs are secured with bicycle chains so that customers don’t grab them and sit at one of the restaurant’s half-dozen sidewalk tables, thereby inadvertently exceeding the capacity.

“What the county is doing doesn’t make sense, but we’re complying with it,” said owner Mike Simos. “We made changes to the layout of the restaurant so that we can close off a section inside when customers want to sit outside. What’s most confusing is that we’ve been operating with outdoor seating for years, and the health department didn’t have any problem with it. Now, during the economic downturn and when restaurants, like any other small businesses, are really struggling, the county does this. It’s hurting business, and it has cost at least three jobs here this summer. It’s terrible.”

The Town of Bedford grants permits for outdoor seating, but the total capacity is determined by the county. Bedford Supervisor Lee Roberts said at a town board meeting earlier this year she agrees with residents and restaurant owners that outdoor seating in Katonah adds to the unique character and charm of the hamlet, but pointed out that it’s a county policy and it’s the county health department’s job to enforce the existing regulations.

Mr. DeLucia said that while the policy has been in place for decades, his department did change the wording on restaurant permits this year to clarify that the capacity covers both indoor and outdoor seating. But he said that health inspectors aren’t targeting eateries with outdoor dining areas.

“The health department is not opposed to outdoor bistro-style seating and, in fact, it’s the municipality that allows outdoor seating,” Mr. DeLucia said. “But if Bedford tells a restaurant it could have 25 outdoor seats, that number has to be subtracted from its inside seats in order to comply with the total capacity.”

Mr. DeLucia pointed out that while the warm weather months are busy for restaurants with outdoor seating, the late spring, summer and early fall are also busier than other times of the year for health inspectors. “Those same inspectors who are checking food establishments are also checking summer camps, pools and other facilities that only operate in summer, so they’re busy at this time of year, too,” he said. “Could that be a reason they didn’t detect the outdoor seating in the past? Maybe. But just because it wasn’t previously detected doesn’t mean the seating is legal.”

The assistant commissioner of public health also stressed that inspectors aren’t sent out to look at outdoor dining spots in the summer. “That’s not the case and, in fact, inspectors would only visit a business if there was a complaint, to conduct a follow-up stemming from a previous inspection or violation, or if there were a change of owner or a change of use,” Mr. DeLucia said. “We’re not going out to see if we can catch someone who might be exceeding their capacity by having more outdoor seating.”

Some eatery owners griped about the health department’s calculations themselves, saying the estimated figures used to determine septic capacity and water usage aren’t up to date or indicative of actual use.

“My landlord put in a new septic system that can handle three times what the restaurant generates, yet our seating capacity hasn’t been adjusted,” said Mr. Simos, whose family has owned restaurants in the hamlet for more than 40 years. “Their numbers aren’t based on what’s actually going on in our restaurants.”

Mr. Goodwin voiced a similar point. “The county acts as if we fill every seat all the time, and we don’t,” he said. “Maybe once or twice a week, we’d have every seat on the patio filled for a few hours, and that’s a big maybe.”

Mr. DeLucia, however, said that a restaurant or any other business throughout the county can apply for an adjusted seating capacity through the health department’s engineering bureau, but cautioned that there are other determining factors weighed besides the size of the business’s septic system.

Both Mr. Goodwin and Mr. Vitrone said county health inspectors have never raised the issue of outdoor seating in the 23 years they’ve owned Wm. Nicholas and the dozen years they have owned Willy Nick’s.

“We counted on that patio dining when we bought the business 12 years ago, and there has been outdoor seating where Willy Nick’s is for 37 years without any issue,” Mr. Goodwin said. “What they’re doing is so anti-merchant and anti-business. We provide jobs, we pay taxes, and if we can’t do that anymore, it will hurt not only us but this town and its residents. We provide a quality product, and always have, and that adds to the cache of Katonah. There’s also a trickle-down effect for other businesses. It’s a serious issue that I suspect will only escalate.” 

Although Mr. DeLucia said it’s taking place everywhere in the county where there are septic systems rather than sewers, some of the local restaurant owners said they believe the new enforcement by the county might be the result of pressure from the New York City Department of Environmental Protection.

“We sit on the city’s water supply, and they have made claims that we’re contaminating the water supply with septic leaching into the ground,” Mr. Goodwin said. “They’re targeting restaurants about this issue because they can. The county holds our license, so it’s something they can control. The county can’t go into people’s homes and say stop taking 40-minute showers or stop leaving your leaky toilets running 24 hours a day without fixing them. So they choose to come after restaurants and other businesses.”

Mr. Simos said he also wonders whether the sudden enforcement is a result of pressure from the city and its DEP. “It could be a power play in the push for sewers in Katonah and we’re caught right in the middle,” he said. “You just hope that it doesn’t go on to the point that it drives people out of business.”

While other restaurants and food shops in town, including the Blue Dolphin, Peppino’s and the newly opened Tazza Café, are dealing with the policy enforcement by limiting their outdoor seating like the Katonah Restaurant has been doing, the owners of Willy Nick’s said they are opting to keep their sidewalk patio closed indefinitely.

“It hurts, because we have a very small window to count on that outdoor dining,” Mr. Goodwin said. “But what’s most frustrating is the county has never enforced this, and we can’t see why they can’t just let it go for the few weeks outdoor seating is in play.”

Mr. Vitrone said he couldn’t help but wonder what prompted the sudden turnaround by the county. “We have always done our best to be in compliance, because that’s important to how we run our business,” he said. “But this is running our business and other businesses into the ground. And why, after the policy was ignored for years and years, decades and decades, inspection after inspection — why did it go from being overlooked to becoming such a priority? There seems to be more to it than meets the eye.”

The affected restaurant owners said they haven’t had time to consider how to proceed, including whether to reach out to County Legislator Peter Harckham or other elected officials to see if some kind of remedy could be worked out.

Mr. DeLucia said the health department is always willing to meet with a resident or business owner to discuss a specific problem or issue. “We can certainly see how it would be frustrating for a restaurant operator to be told they can’t have outdoor seating, especially in the summer when they’re counting on that,” he said. “We’re always open to meeting with a restaurant or business owner to see if their specific situation can be addressed. But we also have to work within the law, the state and county sanitary codes, and all other regulations. We’re willing to work with a business, but we can’t just put the law and health codes aside.”

The hamlet’s restaurant owners said they are still trying to digest what’s happened this summer. “We’ll look at our options, but for now we’ll comply, even if that means our business suffers a very big hit,” Mr. Goodwin said. “Even if something can be done eventually, this looks like it’s a lost summer.”

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