In September, the FDNY took the unprecedented step of allowing restaurants to utilize propane gas heaters outdoors throughout the winter, a never-before-allowed measure meant to help restaurants stay open in the colder months during the pandemic. The move was lauded at first, but as of mid-November, less than 3 percent of NYC’s 10,800 restaurants certified for outdoor dining have obtained the proper permits to run propane heating systems on their properties, fueling concerns that extensive safety requirements have made it next to impossible for NYC restaurants to use propane gas heaters as a winter lifeline.
As of November 15, the FDNY had received just 535 attestations — initial applications that require restaurants to submit compliant site plans, among other steps — from operators looking to use propane heaters, department spokesperson Frank Dwyer tells Eater. Of those initial applications, only 242 have gone on to obtain a certificate of fitness, which must be secured within three weeks of submitting an attestation. The certificate of fitness involves passing an FDNY exam on how to properly use and store propane gas tanks for the heaters.
An additional 38 people have passed the exam and are in the process of receiving their official certificates of fitness, and “the department is continuing to work through the remaining attestations with the other businesses,” Dwyer says.
But only 242 restaurants — or about 2.2 percent of the 10,800 restaurants certified for outdoor dining this year — were fully certified by November 15, a month after the fire department released its propane heater use regulations and opened up applications for permits.
In the same time period, 172 restaurants have been cited for violations related to unauthorized propane heater use, according to the FDNY. None of the cited restaurants have been fined, Dwyer says, but propane tanks have been confiscated from at least 111 restaurants due to improper use or storage. The department will return the propane tanks after the restaurant demonstrates compliance, according to Dwyer, but none of the penalized restaurants have reclaimed their tanks yet. The most common violations have included inaccurate site plans, failure to submit an attestation, and a lack of fire extinguishers on-site.
The FDNY’s low permitting rate comes in the midst of criticism that restaurateurs have levied at the department over how difficult it is to follow the rules for on-site propane heaters in NYC. The New York Post reported in early November that some restaurateurs stocked up early on propane heaters — welcoming the city’s September announcement that the heaters would be allowed outdoors — only to abandon them after the FDNY’s stringent rules for use were released in mid-October.
The regulations included keeping the heaters at least five feet away from outdoor diners at all times, a difficult task when there’s limited real estate on the city’s sidewalks for outdoor dining setups. One Upper West Side restaurateur told the Post that he spent $1,000 buying outdoor propane heaters that he tossed aside after looking over the FDNY regulations.
The propane storage rules are also extensive, restaurateurs say, deterring many from applying for the permits. The 20-pound propane cylinders that typically fuel outdoor heaters have to be stored in an above-ground, street-accessible, outdoor enclosure that’s at least 10 feet away from any building on an adjoining lot — a challenge for most NYC restaurateurs.
“Propane storage is a very serious matter and needs to be regulated properly for the safety of all New Yorkers, including customers, businesses, residents, and first responders,” Dwyer says of the FDNY’s propane regulations. “The fire department has worked to strike a balance between critical safety regulations and the temporary needs of the restaurant industry.”
For the operators who met all the requirements, some say they faced enforcement issues early on. An executive at a major Manhattan restaurant group, who requested anonymity for fear of backlash from the FDNY, says that the group spent about $15,000 buying propane heaters, plus another $5,000 to $10,000 per restaurant per month for propane delivery services to meet the FDNY’s storage requirements. After they secured the necessary permits and started using the propane heaters, inspectors showed up with more requests, such as asking the company to resubmit entire site plans if the heaters were a couple feet off from where they were designated when the company submitted its attestation.
In one instance, FDNY inspectors showed up to one of the group’s restaurants three separate times in one day to repeatedly say that propane tanks couldn’t be stored on-site overnight. Restaurant staff said each time that a propane delivery service was coming to pick up the tanks. On the last visit, the inspectors inexplicably made staff blow out every candle that was lit inside the restaurant, the executive says. In another instance, one of the group’s restaurants was reprimanded for only putting out a couple of propane heaters on a day that was less busy, because the number of heaters in use didn’t match the location’s full-blown site plan.
“If we’re struggling as a major restaurant group, I can only imagine how the smaller mom-and-pops are doing,” the executive says.
Some independent restaurant owners have forgone propane altogether in favor of electric heaters due to the FDNY’s regulations, but that comes with its own set of headaches. Romeo Regalli of Ethiopian spot Ras Plant Based in Crown Heights recently purchased six to seven electric heaters for about $1,500. He estimates that it will cost another $15,000 to $20,000 to outfit the restaurant’s outdoor seating with the proper structure and wiring support for the heaters. Those costs don’t include the electricity bill, which will likely skyrocket once the heaters are in use.
There’s also the chance that the city’s regulations for heated outdoor setups could change after Ras’s heaters are installed, Regalli says, similar to what happened over the summer when the Department of Transportation kept shifting outdoor dining buildout rules. Any future rule changes would mean more money spent to stay in compliance.
And then there’s the possibility that outdoor dining might shut down altogether — following a potential incoming ban on indoor dining — as the city stares down a resurgence of COVID-19, rendering the expensive heaters and buildout useless.
“We can’t win in this situation,” Regalli says. “It has been frustrating to say the least.”