What defines a restaurant, as opposed to a bar?

Laws for selling and serving alcohol on Oahu are enacted by the Legislature, then enforced by the Honolulu Liquor Commission and sometimes the Honolulu Police Department.

For a business that serves alcoholic drinks, navigating those laws and understanding if and how they are affected by COVID-19 emergency orders can mean the difference between opening for business and staying shuttered at least until mid-December.

The experience of Club 939 owner Stewart Shirasu illustrates how difficult this can be.

Shirasu has refashioned “Hawaii’s premier gentleman’s club” into a restaurant, from a nightclub featuring nude dancing. Club 939 reopened Oct. 14, upgrading his menu with food from Hoku Cafe next door, and passed a liquor commission inspection about two weeks ago. The club was shut down for 24 hours and incurred a $500 liquor commission fine when the city was still in Tier 1 of its reopening plan, because a hostess was sitting with customers (Tier 2 makes this legal, as people from different households can sit at the same table).

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“Changing into a restaurant is a matter of survival,” Shirasu said. “No business would agree to close for four months … What we’ve done is try to reopen as a restaurant, following all the restaurant restrictions and protocols.”

But when he first sought advice, Shirasu said, the liquor commission told him to contact the city for clarification about rule changes, and the city told him to contact the liquor commission.

“Then I did have a phone conversation with someone at the liquor commission when asking about reopening as a restaurant,” Shirasu said. “I was told that it is up to the individual owners — and, this is a quote, ‘to interpret the rules ourselves and decide how to proceed.’ ”

This is how the city describes bars and nightclubs at its website, oneoahu.org: “Establishments that are primarily engaged in the serving of alcoholic beverages for consumption by guests on the premises regardless of whether food is served.”

This is how the same site defines restaurants: “Restaurants are establishments that serve food prepared on site and have 30% of their revenue from (food) sales.”

To remain open now, a bar would have to be able to pass inspection as a restaurant if visited by investigators.

Before COVID-19 and the emergency orders, the liquor commission went by Hawaii Revised Statute 281-31, which lists 17 classifications of businesses that have alcohol on the premises. The classifications include stores, restaurants, dispensers (generic bars), breweries and BYOB establishments.

“The liquor license type does not determine the kind of business of an establishment,” the liquor commission said in written responses to questions about switching classifications. “All licensees must operate within their specific class, kind and category.”

Kind refers to type of liquor sold; categories define standard bars, as well as those that offer music, dancing, hostesses, etc.

The statute does indicate, however, that some movement between classifications can be permitted. Thus, with commission approval, a bar could possibly reposition itself as a restaurant without applying for a new license.

At least some parts of the statute seem to be superseded by COVID-19 emergency orders, Shirasu said. But which parts are affected can be unclear.

So Shirasu put yellow tape around 939’s three dancing stages and every other table. When patrons arrive, after they pass a temperature check, they pay an $8 or $11 cover charge that includes a $5 discount from the upgraded food menu. All employees and customers wear masks, except when eating and drinking.

Other alcohol-serving establishments also reopened as restaurants, including several known more for nude dancing than food. They include Club Femme Nu, which offers food from the adjacent Seoul Garden BBQ Restaurant.

Other bars that serve food remain closed, despite having food-service permits and safety placards from the State Department of Health. The owners of these businesses say guidelines are not specific, and food issues should be decided by the Health Department.

“The sad part about it is you can have a green placard from the Health Department and it doesn’t matter,” said Bill Comerford, owner of four Honolulu bars, two of which are now closed permanently. When the bars were allowed to open last summer, Comerford started selling hot dogs and a few other items at all four bars.

He admits food proceeds were not close to 30% of revenue. But, normally, that calculation is made annually, not after a few weeks. “It can be very selective and arbitrary,” Comerford said.

Shirasu acknowledges that 939 offers private “VIP dining” — food plates shared by a patron and a hostess that cost $300 and up — which might not be conducive to social distancing. But, he said, it is safer than the alternatives some people choose when nightclubs are closed for months.

“The mayor seems to think by closing bars people will stop socializing. He’s plain wrong. They’re renting hotel rooms, renting houses and having big parties, they’re being pushed to unregulated gatherings,” Shirasu said. “People going to parties are not checking their temperatures, not social distancing.”