Few establishments have endured the BSA in order to obtain a special permit to allow dancing. One such establishment was the Red Rooster in Harlem, that received a special permit that was so onerous that the establishment was still unable to practically offer dancing in its downstairs space. Attached is a 602 page file of the nightmare which Red Rooster endured at the whims of the BSA. The BSA added so-called fire safety requirements not required by the FDNY, as one example. In the end, the basement space ended up with requirements for an extra room for patrons who might be waiting to attend the performances, despite the fact that the restaurant was located on a busy street. Even worse – the Liquor License Method of Operations for the Red Rooster was never changed to allow dancing.
Both prior to and after the 1989 revisions to the Zoning Resolution, Special Permits from the Board of Standards and Appeals or the City Planning Commission were used to provide a way to allow music and dancing uses otherwise prohibited or in certain districts. Special Permits are cumbersome, expensive, and time consuming to obtain and are of not meaningful utility.
Professor Chevigny amply describes the frustrating and useless nature of Special Permits in his book Gigs: Jazz and the Cabaret Laws in New York City at page 141 when discussing the background to the 1989 changes.
According to City Planning, the Board has received only five requests for such club permits, granting four, in the two and a half years before June, 1987; none in Manhattan, and none for music-only clubs. I thought I could see why; the process was arcane, expensive and unlikely to be successful in a great many cases.
Musicians and and venues opposed Special Permits, but, still, the 1989 amendments required Special Permits in certain commercial districts in Use Groups 6 and 12 for both music and dancing. As Professor Chevigny states at page 148:
The re-zoning of music had been precipitated by the musicians, who were relatively well-organized, rather than by the clubs themselves; thus the clubs hardly got a chance, before the formal hearings on the proposals, to explain how much beyond their capacities the special permit and licensing systems were.
Yet, after 1989-1990, it appears that Special Permits for dancing and music were not used in any significant way. [New restrictions were added in 1989 apparently with no input by dancers or venues that may wish to offer dancing. Chevigny at ]
Article VII: Administration Chapter 3 – 73-24 Special Permits by the Board of Standards and Appeals of the Zoning Resolution allows the Board of Standards and Appeals to issue special permit to allow dancing in certain districts. See also Uses Permitted by Special Permit. The ZR also provides for Special Permits by the City Planning Commission.
See § 73-24 Special Permits Uses for Eating or Drinking Places.
In the districts indicated, the following uses are permitted by special permit of the Board of Standards and Appeals, in accordance with standards set forth in Article VII, Chapter 3.
* * *
C1-1 C1-2 C1-3 C3
Eating or drinking establishments, including those which provide outdoor table service or have music for which there is no cover charge and no specified showtime, which have accessory drive-through facilities [PRC-B]
C1-1 C1-2 C1-3 C3
Eating or drinking establishments, including those which provide musical entertainment but not dancing, with a capacity of 200 persons or less, or outdoor table service, which have accessory drive-through facilities [PRC-B]
C1-1 C1-2 C1-3 C1-4 C2-1 C2-2 C2-3 C2-4 C3 C5
Eating or drinking establishments with entertainment but not dancing, with a capacity of 200 persons or less [PRC-B]
C3
Eating or drinking establishments with musical entertainment but not dancing, with a capacity of 200 persons or less [PRC-B]
C2 C3 C4* C6-4**
Eating or drinking establishments with entertainment and a capacity of more than 200 persons or establishments of any capacity with dancing [PRC-D]
C1 C2 C3 C4 C5 C6 C7 C8
For the period 2000 to 2018, applications to the BSA for such permits were reviewed. There were 47 special permit proceedings concerning dancing, of which many were extension of existing special permits. Most of the permits related to exotic clubs in Queens and the only identifiable social dancing permit application was for the Red Rooster in Harlem. The requirements for the Red Rooster were onerous and the establishment was required to set aside special rooms as waiting rooms and engage in special construction, and required special counsel, engineering reports and over a year to obtain a special permit. For whatever reasons, Red Rooster never amended its liquor license to mention dancing and indeed does not advertise dancing. Moreover, it uses the special rooms as storage. In other words, Red Rooster has not used the special permit, it appears. After all, the Chiasson cases provide constitutional protection to Red Rooster for music only performances.
See the following spreadsheet summarizing the applications. The process was to download from the BSA all applications available and to identify special permits.
Following is a 2017 letter from Red Rooster to the BSA outlining efforts since 2016 to obtain a special permit. The permit was obtained in 2018 after expensive remodelling to meet BSA demands, none of which related to the issue of dancing.
