Self-Certification for Increased Seating & An Unconstitutional Shutdown? – What This Means for Restaurants

September 25, 2020
Aaron K. Zeamer

Given all the crazy twists and turns over the past few months, I keep thinking that things cannot get more difficult or confusing for folks in the hospitality industry…

Clearly, I need to stop saying that. It somehow keeps getting worse.

To say this has been an interesting couple of weeks is a pretty serious understatement. Hopefully, this post can provide some guidance and explanation on increasing to 50% capacity, completing self-certification, and understanding what the recent court ruling may mean for your business.

Self-Certification for Restaurants to Operate at 50% Capacity

Let’s start with the Governor’s announcement from last week and an update to my previous post, Increased Occupancy for Restaurants – Finally Some Relief, Sort of….  The PA Department of Community and Economic Development, who will be involved in the self-certification process for restaurants to operate at 50% capacity, released an updated FAQ. I could probably spend the rest of this post detailing the additional information in just that FAQ, but there are some other important topics to cover. Please take a moment to read that FAQ and contact your attorney with more specific questions.

My biggest advice right now related to this increase to 50% capacity is this:

You should plan to increase to 50% indoor capacity starting September 21, but you DO NOT HAVE TO COMPLETE THE SELF CERTIFICATION UNTIL OCTOBER 5TH. 

I would encourage you to wait until October 5th to complete that certification process.  There are still so many questions and so much uncertainty about what that certification will look like and how it will be used.  You can still begin operating at 50% capacity starting September 21st, even if you do not complete the certification right away.  However, you must have it completed by October 5th to continue beyond that date at 50% capacity.

I am encouraging a “wait and see” approach until we know a little more.  With the way things have gone recently, who knows what could change between now and October 5th?

Federal Judge’s Ruling that Wolf’s Coronavirus Restrictions Were Unconstitutional Is Not What You Think

Moving on to the issue that has generated the most headlines this week: the Opinion from Judge William Stickman IV, a federal court judge in western Pennsylvania, declaring Governor Tom Wolf’s coronavirus shutdown unconstitutional on the grounds that it violated the 1st and 14th amendments of the U.S. Constitution.

I have heard about, been forwarded, and otherwise made aware of a LOT of rumors on social media about what this decision means.  Please be careful about what information you rely on in making changes to your business practices right now.  While the decision appears to be good news, in reality, it will have almost no impact on what you can do in the short term.  I say that for a few reasons.

1. The Appeal Is in Process

The Governor’s Office has already announced that it will appeal the decision and seek a stay (a fancy legal term for suspension of the decision) pending the outcome of that appeal.

2. There Have Been Contradictory Rulings by Other Federal Court Judges

While we may cheer the outcome of the decision, there have been two other decisions already issued by other federal court judges on very similar issues that were dramatically different. They came to the opposite conclusion about the constitutionality of the Governor’s actions.

I don’t pretend to be a constitutional scholar, but it does appear to me that Judge Stickman applied a very different analysis to reach his decision. I am not confident it will ultimately hold up.  It may, but my guess is that it will have to be sorted out by the 3rd Circuit Court of Appeals or even the US Supreme Court.

As you can imagine, that ultimate resolution is many months away.

3. The Decision Has a Narrow Scope

The other reason that I would not change your current operations based on this decision is that, by the Judge’s own words, his decision is relatively narrow.  Keep in mind that this decision stems from a lawsuit that was filed months ago, long before the Governor issued some of the more recent orders.

This case really only challenges:

  • the stay at home orders the Governor issued
  • the business waivers that were granted, and
  • the restrictions on large gatherings.

The last piece is the only one that impacts the hospitality industry (i.e., the current restriction preventing indoor gatherings of more than 25 people or 250 people outdoors).  Even if that were lifted, the 25% capacity limitation, the hours restrictions, and others that dramatically impact many bars, restaurants, and hotels, would remain in place.

Urge Your Representative to Pass House Bill 2513

Let’s revisit the issue of House Bill 2513.  You will recall that that was the Bill that would

  • force restaurants back to a minimum of 50%
  • allow for bar seating to resume, and
  • remove the restrictions that require food to be purchased in order to purchase alcohol.

So why am I harping on this Bill?  It is, in many ways, the clearest path forward for the industry in PA and should get all of our support.  It is currently working its way through the Senate.

If you have any questions about any of the Governor’s current orders, the recent Court Opinion, or anything else affecting your business, contact the attorneys at Russell Krafft & Gruber, who would be happy to talk through it with you.

Aaron Zeamer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He practices in a variety of areas, including Business Law and Liquor License matters. Aaron works frequently with commercial real estate agents, brokers, restaurant and bar owners, breweries, distilleries, and wineries to facilitate the sale and transfer of PA liquor licenses.