Durham has a patio problem. To be more specific, it has a problem with a portion of the city ordinance that allows people to drink alcohol on restaurant and bar patios that are on public sidewalks. That portion of the ordinance doesn’t exist.

At a public forum last week, city officials introduced a potential solutionan amendment to the ordinance that authorizes businesses to set up tables, chairs and other seating on public sidewalks. Under the new rules, businesses that successfully apply for an outdoor dining permit could legally serve patrons who want to enjoy their booze outdoors.

However, the change is controversial because it applies only to restaurants, not private clubs.

Restaurants are defined by the state Alcohol Beverage Commission as a business that generates at least 30 percent of its gross receipts from the sale of food and non-alcoholic beverages. Businesses that don’t sell food but do sell alcoholic beverages are required to obtain a “private club” liquor permit.

In Durham, 33 businesses have active “private club” permits. If City Council approves the current draft of the amendment, these private clubs with patios that extend onto the public sidewalk won’t be allowed to apply for an outdoor dining permit.

City Attorney Patrick Baker, who led last week’s presentation of the proposed outdoor patio ordinance, said that the decision to exclude private clubs is due to the Durham Police Department concerns about potential problems with the combination of private clubs, alcohol and outdoor seating. A DPD spokesperson did not return calls seeking the specifics of the department’s concerns. But at DPD’s urging, and with the approval of Durham City Manager Thomas Bonfield, city staff will present the current version of the amended ordinance to City Council sometime in July, Baker said.

Even though downtown bar and restaurant customers have routinely imbibed on outdoor patios, those businesses technically have been breaking the law, Baker said. Until the recent uptick in downtown development, an outdoor dining permit was unnecessary. Now, the advent of restaurants with patios, including Toast, Dos Perros and Bull City Burger and Brewery, has prompted the city to revamp the ordinance.

Scott Ritchie, co-owner of Whiskey in downtown Durham, says he thinks the ordinance will actually discourage downtown development. “Personally, it makes me not want to reinvest in Durham, especially when I know that I can go 30 minutes east to Raleigh and not have a problem,” he says.

In warm weather, a significant amount of the Whiskey’s business is generated by patrons who prefer to drink on the front patio. By not accommodating Durham’s private clubs and bars, the city is denying it and other bars significant revenue, Ritchie says.

Private clubs aren’t the only businesses that will be excluded. Bars on Ninth Street with sidewalk patios would also be affected because the proposed ordinance applies only to those that are located on streets owned by the City of Durham. Any business located on a street owned by the state, such as Ninth Street, Baker said, will also be excluded from applying for an outdoor dining permit.

Durham City Councilman Mike Woodard, who attended last week’s meeting, assured business owners that the ordinance is “not a done deal.” “We can find a resolution that accommodates all parties here,” he said after the presentation.

A city ordinance does prohibit people from drinking from open containers of alcohol on public streets and sidewalks. However, Ray Richardson, an investigator with Durham County Alcoholic Beverage Control, says that enforcement of the law has been “purposefully lenient” while the city refines its own policy.

City Council could approve the amendment by the end of August. So enjoy a drink on your favorite patio while it’s still legal.

This article appeared in print with the headline “Sidewalk blues.”