Can the Restaurant Industry Survive Gov. Wolf’s Latest Round of Restrictions?
Business owners have by now heard about or read the order issued by Governor Wolf on July 15th which re-imposed or created new restaurant restrictions on the sale of food and alcohol in Pennsylvania. If you have not yet had a chance to read it, I have copied the press release from the Governor below.
These newly imposed restrictions are in some ways a substantial step backward for operators of bars, restaurants, breweries and distilleries, who have only been able to operate with outdoor seating for a little over a month. These make an already difficult path forward even more difficult.
Here are some of the more impactful changes:
- No bar-only establishments. In order to continue operating, an establishment must serve sit-down, dine-in meals or be serving take-out sales of alcohol;
- No seating at the bar. Bar seating is now absolutely prohibited. All service, both indoor and outdoor, must be at a table or booth. You should not permit customers to sit at a bar, even if you have partitions in place or if you have spaced out bar seats to be 6 feet apart;
- No alcohol purchases without a meal. Any alcohol served for on-premises consumption must be in the same transaction as a meal. This applies to both indoor and outdoor seating. The order does not define what constitutes a “meal,” nor does the liquor code. How much food a patron must order to constitute a meal is unknown, but it is safe to assume that some food must be purchased to be in compliance with this requirement.
- No occupancy greater than 25% or 25 people. Occupancy for indoor dining only is now limited to 25% of the stated fire code occupancy. This includes staff. Indoor events/gatherings may not exceed 25 persons, regardless of occupancy restrictions. The order does not reduce or otherwise limit outdoor seating capacity, except that bar seating would not be permitted outdoors.
- No admittance without a mask. Social distancing and masks are required. This is not a change, the Governor’s office previously made this a requirement, but it was again reiterated in his order. As a reminder, customers are required to wear masks when entering, exiting, or otherwise traveling throughout the restaurant or business. Customers may remove masks when seated. Employees and staff involved in the preparation of meals must wear masks at all times.
Restaurants should also be aware that the State Police Liquor Control Enforcement division has significantly increased its inspections throughout the state. They have made very public their efforts to conduct large scale inspections and ensure compliance with the current requirements. Thus far, they have only issued warnings and have tried to educate owners who are not in compliance.
At some point, the Bureau of Liquor Control Enforcement (BLCE) may decide to begin enforcement of these regulations and issue citations. In severe instances, they may even revoke liquor licenses. Hopefully, those efforts will be targeted at those “bad apples” that refuse or make no effort to comply with the current regulations.
Most establishments have done a phenomenal job complying with the ever-changing directives from the Governor, and those places will hopefully continue to receive warnings for any minor issues. However, if the increase in cases continues to trend upward, I would expect the state to take more aggressive enforcement action.
Like it or not, the restaurant and hospitality industry is perceived to be a significant reason for the uptick in cases. While some may disagree with this conclusion and believe it to be unfair, the reality is that a few bad actors in certain parts of the state have caused a target to be placed on the industry as a whole. Because of that, those in the restaurant industry need to be aware of the current requirements and be prepared in the event an inspection occurs by the BLCE.
If you have any questions about the new guidelines or in general, please don’t hesitate to contact your attorney.
FOR IMMEDIATE RELEASE
July 15, 2020
Wolf Administration Announces Targeted Mitigation Efforts in Response to Recent COVID Case Increases
Harrisburg, PA – Governor Tom Wolf and Sec. of Health Dr. Rachel Levine today signed new orders for targeted mitigation efforts in response to the recent rise in COVID cases, primarily in southwest Pennsylvania, but also in other counties in the state, influencing the decision for statewide mitigation efforts for bars and restaurants, gatherings and telework. The new orders take effect at 12:01 a.m., Thursday, July 16, 2020.
“During the past week, we have seen an unsettling climb in new COVID-19 cases,” Gov. Wolf said. “When we hit our peak on April 9, we had nearly two thousand new cases that day with other days’ cases hovering around 1,000. Medical experts looking at the trajectory we are on now are projecting that this new surge could soon eclipse the April peak. With our rapid case increases we need to act again now.”
The mitigation efforts included in the new orders from Gov. Wolf and Dr. Levine include:
Bars and Restaurants
All businesses in the retail food services industry, including restaurants, wineries, breweries, private clubs, and bars, are permitted to provide take-out and delivery sales of food, as well as dine-in service in both indoor and outdoor seating areas so long as they strictly adhere to the requirements of the guidance, as required by the order, including:
- Prohibition from conducting operations unless the facility offers sit-down, dine-in meals or is serving take-out sales of alcoholic beverages. All service must be at a table or booth; bar service is prohibited.
- Alcohol only can be served for on-premises consumption when in the same transaction as a meal.
- Take-out sales of alcohol for the purposes of off-site consumption are permitted subject to any limitations or restrictions imposed by Pennsylvania law.
- Non-bar seating in outdoor areas (e. tables or counter seats that do not line up to a bar or food service area) may be used for customer seating.
- Social distancing, masking, and other mitigation measures must be employed to protect workers and patrons.
- Occupancy is limited to 25 percent of stated fire-code maximum occupancy for indoor dining, or 25 persons for a discrete indoor event or gathering in a restaurant. The maximum occupancy limit includes staff.
- All nightclubs, as defined by the Clean Indoor Air Act, 35 P.S. § 637.2, are prohibited from conducting operations.
Other events and gatherings
Events and gatherings must adhere to these gathering limitations:
- Indoor events and gatherings of more than 25 persons are prohibited.
- Outdoor events and gatherings of more than 250 persons are prohibited.
- The maximum occupancy limit includes staff.
- Unless not possible, all businesses are required to conduct their operations in whole or in part remotely through individual teleworking of their employees in the jurisdiction or jurisdictions in which they do business.
- Where telework is not possible, employees may conduct in-person business operations, provided that the businesses fully comply with all substantive aspects of the business safety order, the worker safety order, and the masking order.
Gyms and fitness facilities
- All gyms and fitness facilities, while permitted to continue indoor operations, are directed to prioritize outdoor physical fitness activities. All activities must follow masking requirements as provided by the July 1 order, and must provide for social distancing requirements of persons being at least 6 feet apart, as well as being limited by any limitations related to gatherings.
Businesses and individuals in violation of these orders, issued pursuant to the authority granted to the Governor and the Secretary of Health under the law, including the Pennsylvania Disease Control and Prevention Law, could be subject to fines, business closure or other applicable enforcement measures.
Beginning with a spike in cases in Allegheny County in late June, Pennsylvania has seen cases continue to rise there and in other southwest counties, along with additional select counties in the state.
The state has identified three catalysts for case increases:
- First, some Pennsylvanians have been ignoring mask-wearing requirements and social distancing when they are visiting Pennsylvania bars and restaurants. There they are unknowingly spreading or picking up the virus.
- Second is out-of-state travel. Both by Pennsylvanians returning from travel to hotspot states, and travelers visiting our commonwealth from those hotspots.
- And third, a lack of national coordinationhas resulted in states in the south and west not committing to social distancing.
“The actions the governor and I are taking today are designed to be surgical and thus precise to prevent from repeating the cycle we saw in the spring,” said Dr. Levine. “We have gained a great deal of experience since the start of this outbreak and have learned from best practices from other states as well as counties right here in Pennsylvania.”
Gov. Wolf and Dr. Levine were joined via Skype by Dr. David Rubin, a general pediatrician and director of PolicyLab at Children’s Hospital of Philadelphia. Dr. Rubin and his colleagues developed a unique model, which tracks and projects COVID-19 transmission in real-time across more than 500 U.S. counties with active outbreaks. The model was built to observe how social distancing, population density, daily temperatures and humidity affect the number and spread of COVID-19 infections over time across a given county.
“Over the last few weeks, public health reporting and our team’s modeling work have uncovered incontrovertible evidence that the virus is sweeping quickly into the northeast region of the United States from the west and south—where there has been a failure in some states to practice vigilance in masking and social distancing—and that it has already begun its resurgence in Pennsylvania,” said Dr. David Rubin, a general pediatrician and director of PolicyLab at Children’s Hospital of Philadelphia. “We can halt this momentum in its tracks. Governor Wolf’s measures will help stop the continued spread of the virus into Pennsylvania and its surrounding states, which would threaten the reopening of schools and our economy in the coming months.”
Pennsylvanians should consider that even with indoor dining limited and bars closed for on-premises alcohol consumption, cocktails to-go are still permitted and there is no shortage of outdoor dining options.
Small gatherings of friends in the backyard or at a local park are permitted and children and families are encouraged to responsibility take advantage of one or more of Pennsylvania’s 121 state parks or other local outdoor fitness options, including at local gyms that are following social distancing protocols.
“Children can visit local playgrounds, community pools, and enjoy outdoor activities with family,” Gov. Wolf said. “We want people to spend time together, but to do so while practicing social distancing and wearing masks when required, such as any time you leave your home and are not participating in outdoor fitness.
“We have seen these efforts work during the first wave in the spring, and they will work again if we all do our part. Thank you to every Pennsylvanian for your continued patience and support. I know you are eager for life to get back to normal, and I am, too.”
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