There are a couple of components to your questions. Regarding authority to close streets temporarily to vehicle traffic, the city has broad authority to do so, especially during an emergency. Even in non-emergencies, code cities have broad authority to manage and regulate right of way—see, for example RCW 35A.11.020. Once your county enters into Phase II of the Safe Start COVID-19 recovery plan, we think the city could temporarily restrict certain rights-of-way so they are available only to pedestrians, non-motor vehicles and expanded outdoor restaurants pursuant to an order setting forth the public health and economic basis for doing so. Such an order should contain interim standards that address the circumstances and conditions that will govern the temporary use of the right-of-way.
Ordinarily, use of right-of-way requires the restaurant operator to pay a fee for the use of public property for restaurant purposes. However, under these emergency circumstances, the Washington Attorney General has released guidance that may provide the basis for local governments to incur expenditures (or forego revenue) in light of the COVID-19 emergency.
The Phase II guidance from the governor to restaurants and taverns authorizes outdoor seating at the same 50% capacity and under the same conditions and restrictions as indoor seating.
Consumption of alcohol in outdoor areas not previously authorized by the Washington Liquor and Cannabis Board (LCB) should be avoided, at least until there is guidance from the Board. The LCB has a COVID-19 webpage that summarizes steps taken by them in response to COVID-19. The LCB has not addressed this specific issue, although it has taken a number of actions, including allowing minors to sit in areas normally limited to individuals who are over 21 and allowing sales of beer, wine, and liquor for consumption off premises when purchased with take-out food orders. We are not aware of any proposals by the LCB to allow alcohol consumption in “new” outdoor seating areas. We recommend reaching out to the LCB directly for guidance.
At this time, we are not aware of any Washington cities or counties that have adopted orders to this effect although there is discussion, both in Washington and other parts of the country. Here are some recent articles on the topic:
- ‘Parklets’ eyed to aid Vancouver eateries, The Columbian, May 13, 2020
- Safely Reopening Retail Districts, American Planning Association, May 11, 2020
- Dining Out? Cities Allow Restaurants to Reopen with Seating in Streets, Parking Lots, Route Fifty, May 8, 2020
- Cities may allow restaurants, pubs to stretch patios into public space, The Globe and Mail, May 12, 2020