If there is a dining area that is open to the sky for an eating and drinking establishment located on lower roof area of a building that is adjacent to a “partial floor,” of which said partial floor is not a penthouse because it is a portion of the building that is within the matter-of-right building height of the relevant zone [or allowed building envelope] and there is a “higher” roof above it, then the eating and drinking establishment’s open area can be approved as a matter of right [assuming that it is in a zone to allow such an eating and drinking establishment] and is therefore not subject to the BZA Special Exception penthouse requirement of Subtitle C § 1501.1(d).   

C-1501.1 A penthouse or rooftop structure may house mechanical equipment, or any use permitted within the zone, except penthouse space shall be restricted as follows:  

. . .(d) An eating and drinking establishment located within a penthouse habitable space, or on a rooftop deck on the highest roof of the building, shall only be permitted if approved by the Board of Zoning Adjustment as a special exception under Subtitle X, Chapter 9; or. . .