PA Restaurant Capacity Limits Increase, but Alcohol Sales Must Close by 10 P.M.
It’s been a difficult time for our friends and clients who own restaurants and bars in the Commonwealth given the constantly changing, inconsistent and in many cases unclear guidelines under which they have been forced to operate. However, some relief is on the way regarding PA restaurant capacity.
Based upon the September 8, 2020 guidance from Governor Wolf, starting September 21, 2020, Pennsylvania restaurants that choose to certify in the state’s new “Open & Certified” program will once again be permitted to increase indoor operating capacity to 50% of fire code maximum occupancy. While restaurants can elect to not certify and remain operating at 25% indoor capacity, the new guidelines come with a notable new restriction for all restaurants, certified or not: alcohol sales must now close by 10 p.m.
Initially, based on guidance previously issued on May 27, 2020, restaurants and bars were able to operate at 50% capacity; that was lowered to 25% capacity on July 16, 2020, and on that same date, the use of bar structures for food or beverage service, which had been previously reinstated, was once again no longer permitted.
Restaurants that wish to increase their indoor capacity to 50% on September 21 must complete an online self-certification process by October 5. As of today, the self-certification form is not yet available and likely will not be available until September 21, 2020. Once we learn the details of what the self-certification will require, we will share that with you. We do know that, as a minimum, it will require restaurant owners to submit the following for each restaurant location being certified:
- a statement that the restaurant owner has reviewed and agrees to follow PA’s current restaurant industry safety guidance;
- the restaurant’s maximum indoor occupancy number based on local fire code; and
- a statement that the owner understands that the certification is subject to penalties for unsworn falsification to authorities.
Restaurants that self-certify will appear in Pennsylvania’s new “Open & Certified” online database, which will be available to the public and searchable by location. This database is purportedly designed to help patrons make safer choices in their consumption of food and drink. In addition, certified restaurants will also receive “Open & Certified” window clings and other branded signage to put on display.
Enforcement of the 50% capacity limit is expected to begin October 5. According to the available enforcement guidance from the state, any business found to be in violation of the state’s health and safety requirements may have its certification revoked and will be removed from the Open & Certified database. Also, any business that continues to display certification materials after revocation may be subject to additional penalties.
Notably, it does not appear that this new guidance changes the current prohibition on food or beverage service at a bar structure, which became effective July 16, 2020, nor does the new guidance change the requirement that food must be served as part of alcohol sales. As such, bars and similar establishments that do not offer food service will still not be permitted to open under current guidelines. As this changes or further guidance becomes available, we will share it with you.
Restaurant owners should be mindful that all other health and safety measures under Governor Wolf’s Executive Order on July 15, 2020 and PLCB’s updated guidance on July 22, 2020 remain in effect.
Governor Wolf’s full announcement can be found here. The Commonwealth has also published a list of FAQs about the Open & Certified program here.
As has been the case since March, restaurant and bar owners should expect further changes, updates and walk backs as they continue to operate into the autumn and holiday season. As always, the attorneys of Gross McGinley, LLP are here to help you with any questions.
