1. (a) Applicant means a business entity that is operating in New York State and has applied for benefits under this program.
2. (b) Average ending full-time employment shall be calculated as the average number of full-time equivalent positions employed by a business entity in an eligible industry between April 1, 2021, and August 31, 2021 or April 1, 2021 and December 31, 2021, whichever of these two periods the business entity selects.
3. (c) Average full-time employment shall mean the average number of fulltime equivalent positions employed by a business entity in an eligible industry during a given period.
4. (d) Average starting full-time employment shall be calculated as the average number of full-time equivalent positions employed by a business entity in an eligible industry between January 1, 2021, and March 31, 2021.
5. (e) Business entity shall mean a sole proprietor, partnership, limited liability company, or a corporation (C-Corp or S-Corp) with its own Federal employer identification number (FEIN), or in the case of a sole proprietor, a social security number.
6. (f) Certificate of tax credit means the document issued to a business entity by the department after the department has verified that the business entity has met all applicable eligibility criteria in this Part 280. The certificate shall specify the exact amount of the tax credit that a business entity may claim under this program.
7. (g) Commissioner shall mean the commissioner or acting commissioner of the Department of Economic Development.

8. (h) COVID-19 impacted food services sector means:

   1. (1) independently owned establishments that are located inside New York City and have therefore been subjected to additional restrictions on on-premises dining pursuant to guidance from the New York State Department of Health, under Executive Order 202, as amended, and are primarily organized to prepare and provide meals, and/or beverages to customers for consumption, including for immediate indoor on-premises consumption; and
   2. (2) independently owned establishments that are located outside of New York City in an area which was designated by the New York State Department of Health as either an orange zone or red zone pursuant to Executive Order 202.68 as amended, and for which such designation was in effect and resulted in additional restrictions on on-premises dining for at least 30 consecutive days, and are primarily organized to prepare and provide meals, and/or beverages to customers for consumption, including for immediate indoor on-premises consumption.
9. (i) Department shall mean the Department of Economic Development.
10. (j) Eligible industry means a business entity operating predominantly in the COVID-19 impacted food services sector as defined in subdivision (h) of this section.

11. (k) Independently owned means a business entity that is not:

    1. (1) a publicly traded entity or no more than five percent of the beneficial ownership of which is owned, directly or indirectly by a publicly traded entity;
    2. (2) a subsidiary; and
    3. (3) operated under a franchise or similar agreement which independently manages and controls the day-to-day operations of its own business through its ownership and management, without substantial influence by an outside entity that may have an ownership and/or financial interest in the management responsibilities of the small business.

12. (l) Independently owned establishments means, for the purposes of this part, full-service and limited service food and/or beverage establishments in the food services sector that are primarily organized to prepare and provide meals and/or beverages to customers for consumption and operate predominantly as and make significant accommodations for in-person dining, such as:

    1. (1) bars, taverns, nightclubs, or drinking places primarily engaged in preparing and serving alcoholic beverages for immediate on-premises consumption;
    2. (2) full-service restaurants primarily engaged in providing food services to patrons who order and are served while seated (i.e. waiter/waitress service) and paying after eating;
    3. (3) limited-service restaurants engaged in providing food services (except snack and non-alcoholic beverage bars) where patrons generally order or select items and pay before eating; and
    4. (4) breweries/wineries/cideries/distilleries/meaderies with a tasting room and for which on-premise sales represent at least 33 percent of gross receipts.
13. (m) Net employee increase means an increase of at least one full-time equivalent employee between the average starting full-time employment and the average ending full-time employment of a business entity; provided, however, that for purposes of calculating the tax credits in section 280.5 of this Part, net employee increase means an increase of at least one full-time equivalent employee between the average starting full-time employment and the average ending fulltime employment at an independently owned and operated establishment or establishments in a COVID-19 impacted food services sector. Provided further that if an eligible business entity has two or more locations, the net employee increase for purposes of calculating the tax credit shall be the lesser of the net employee increase for the business entity overall and the net employee increase at an independently owned and operated establishment or establishments in a COVID-19 impacted food services sector.
14. (n) Participant means an applicant that has submitted a complete application and been approved by the department to participate in the program.

For the purposes of this article: