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State Licenses and Permits

November 2023, State Licenses and Permits Committee

127 West 28th Street (between 6TH and 7TH Avenues), New York, NY 10001, Fortuna Hotel Chelsea LLC dba Hotel Hayden, application for alteration of existing on-premises liquor license

At the regularly scheduled monthly Community Board Five meeting on Thursday, November 09, 2023, the following resolution passed with a vote of 32 in favor; 0 opposed; 1 abstaining:

WHEREAS, Fortuna Hotel Chelsea LLC (“Applicant”), has notified Community Board Five of its intention to apply to alter its existing on-premises liquor license for a full-service restaurant, patio and rooftop lounge within a limited-service hotel at 127 West 28th Street (between 6th and 7th Avenues), New York, New York, 10001 known as the Hotel Hayden (the “Premises”); and

WHEREAS, The Premises consist of three primary areas:

1. A ground-floor Lobby Restaurant of 1500 square feet with a full kitchen and menu with One (1) patron bar, 13 tables, 26 chairs and 10 bar stools with a capacity of 23 people in the bar area and 80 people in the dining room;
2. A Patio of 900 exterior square feet with 5 tables and 12 chairs; and
3. A Rooftop of 1,200 square feet with One (1) patron bar, 10 tables, 15 chairs, and 13 bar stools with a capacity of 74 people; and

WHEREAS, The purpose of the alteration is to substitute the owner of the hotel as the licensee replacing a former tenant who had a history of at least 30 noise complaints to the NYPD between February 2020 and May 2021 when they ceased operation leaving the Premises vacant; and

WHEREAS, Applicant intends to retain a third-party manager of the Premises as a co-licensee, such manager represented by Joshua Berman, current operator of Royale, a restaurant/bar with an outdoor patio on the Lower East Side; and

WHEREAS, Applicant has agreed that Applicant shall:

1. Operate the Lobby Restaurant exclusively as a full-service restaurant with table service only, except for limited private events as described below, and closing hours of no later than 12:00 AM Sunday through Wednesday and 1:00 AM Thursday through Saturday;
2. Operate the Patio with table service only, no private events, and closing hours of 10:00 pm Sunday through Thursday and 11:00 pm Friday and Saturday;
3. Operate the Rooftop as a restaurant/bar with no private events and hours as follows:

1. Any areas that are fully enclosed shall be treated as indoor space with hours no earlier than 11:00 AM daily and no later than 12:00 AM Sunday through Wednesday and 1:00 AM Thursday through Saturday, after which the Rooftop will be closed to all patrons.  The enclosure must be tested by the Acoustical Consultant identified in Item (9) below in order to ensure that it complies with NYC Noise Code, including the requirement that noise emanating from the Premises shall not exceed 42 dBA as measured in any dwelling unit receiving the noise and the acoustic study promptly provided to CB5;
2. Any areas that are not fully enclosed shall be treated as outdoor space with hours no earlier than 11:00 AM daily and no later than 10:00 pm Sunday through Thursday and 11:00 pm Friday and Saturday.

1. Operate no part of the Premises as a nightclub at any time, which includes but is not limited to offering bottle service, dancing, and promoter-driven entertainment;
2. Limit private events to the holiday season and at most 3 times per week and operate private parties with the same terms, conditions and provisions of this agreement, including but not limited to hours of operation, noise limits, and prohibition of any amplified sound;
3. Direct smokers in front of the Premises away from neighboring residential apartment buildings and not allow smoking on the Rooftop at any time;
4. Ensure music is played at a background level only and only during operating hours in the Lobby Restaurant and Rooftop and no later than 10:00 pm every night in the Patio;
5. Not incorporate a DJ or live music in any part of the Premises, except for limited private events in the Lobby Restaurant, and never on the Patio or the Rooftop at any time;
6. Retain a qualified, New York City Department of Environmental Protection-approved Acoustical Consultant, provide their full report to CB5, and follow through with their recommendations for installing a sound system and soundproofing that will be in compliance with the New York City Noise Code;
7. Install a limiter that restricts all speakers from being operated at above-recommended levels, and allow access to this limiter only to management and never to staff or outside DJ’s;
8. Prohibit dancing at the Premises at all times except for the Lobby Restaurant in connection with private events;
9. Retain an adequate number of qualified security personnel in the Lobby, Patio and Rooftop at least 10:00 pm to 6:00 am Wednesday through Sunday, bearing in mind that certain times of day, days of the week, and special events will require increased security;
10. Not apply for a sidewalk cafe without first coming before CB5 for approval;
11. Not use a velvet rope admission policy at any time;
12. Ensure that patrons occupy the Patio and enter and leave the Premises in a peaceful, quiet, and respectful manner at all times; discourage patrons from speaking loudly in the Patio or in front of the Premises after 10:00 pm; direct patrons away from smoking, loitering, or congregating outside the Premises and nearby residences at all times; discourage vehicular traffic in front of the Premises by prohibiting vehicles from standing longer than necessary; and keep the area outside the Premises clear and clean at all times;
13. Arrange for private garbage pick-up and store garbage in containers in conformance with Department of Sanitation requirements and in a manner so as to not attract vermin or otherwise cause a disturbance or an annoyance to neighbors;
14. Ensure that neighboring residents’ quality of life is not negatively impacted, and work diligently and immediately with CB5 to cure any issues impacting quality of life;
15. Strictly comply with the method of operation as stated herein and not change the method of operation of the Premises unless prior approval is granted by CB5 in writing and approval is obtained by the New York State Liquor Authority as required by law; and
16. Meet with neighbors and CB5 if requested and provide a 24-hour telephone number hotline to a live manager or owner to immediately address any complaints from the community during all hours of operation, which number shall initially be (212) 335-0402 (Joshua Berman); and 

WHEREAS, Should the Applicant ever contemplate a transfer of a controlling interest in the ownership or management (“transfer” being deemed to include a change in control of an entity or the transfer of a majority interest in an entity), such transferring party shall notify CB5 of such intent and shall require any potential transferee to agree to the conditions and stipulations contained herein; and

WHEREAS, Should Morris Moinian ever contemplate a transfer of a controlling interest in the Applicant so that he does not have a controlling management interest in the Applicant (“transfer” being deemed to include a change in control of an entity or the transfer of a majority interest in an entity), notice shall be given to CB5 before such transfer is made and any transferee shall be required to agree to the conditions and stipulations contained herein; and

WHEREAS, These agreements, stipulations and conditions will be incorporated into the Method of Operation as part of the liquor license alteration application submitted by Applicant to the New York State Liquor Authority, a copy of which shall be simultaneously submitted to CB5; and

WHEREAS, Members of the public appeared and commented regarding this application at a public meeting held at the hotel on August 23, 2023 and at the hearing held at the regularly scheduled CB5 SLAP meeting on November 1, 2023and the comments and concerns of the community were taken into consideration in negotiating these conditions and stipulations therefore be it; therefore be it

RESOLVED, That Community Board Five recommends denial of the application by Fortuna Hotel Chelsea LLC to alter its existing on-premises liquor license for a full-service restaurant, patio and rooftop lounge within a limited-service hotel at 127 West 28th Street (between 6th and 7th Avenues), New York, New York, 10001 known as the Hotel Hayden unless the above conditions are adhered to and are incorporated into the method of operation of the State Liquor Authority application.