July 5, 2020

Volume X, Number 187

July 03, 2020

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July 02, 2020

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Critical Compliance Tips from Pennsylvania Liquor Control Board’s Guidance for On-Premise Sales During COVID-19 Crisis

As we outlined in our post last week, Governor Wolf issued guidance for retail food and alcohol businesses in green counties (permitted to have 50% of capacity inside and outside dining) and yellow counties (permitted to have 50% of capacity outside dining beginning on June 5).

Following up on Governor Wolf’s guidance, the Pennsylvania Liquor Control Board (“PLCB”) issued guidance on Friday evening regarding inside and outside food and alcohol service for the green counties that had entered that stage on Friday morning. Although this guidance only applies to green counties, it does provide a glimpse of what the policies may be for yellow counties that can resume outside service on June 5.

We do expect the PLCB to issue further guidance for yellow counties on or after its meeting on June 3 and will update this post accordingly. At least some issues, such as “do I need to file an extension application to serve on unlicensed outside areas” have been answered and solutions exist as are outlined below (see to-go sales). Additionally, all conditions outlined in our post from last week and the Governor’s guidance must be adhered to.

Does This Guidance Apply to All Licensees?

Initially, there was concern that Governor Wolf’s guidance did not apply to all licensees. The PLCB stated it does apply to manufacturers and other retail licensees, which we expect to continue for yellow counties.

Indoor Service

In green counties, indoor service is permitted under the following mandatory restrictions:

  • Seating is limited to the lesser of 50% of stated fire capacity or 12 persons per 1,000 square feet. For example, if you have a fire capacity of 60 persons and you have a building that is 2,000 square feet, you may have no more than 24 customers (2,000/1,000 = 2; 2 x 12 = 24, which is less than the 30 customers based on fire capacity).

  • On-premises consumption of food is required to be offered, which is a requirement for most licenses to operate, but is not required to be ordered in conjunction with alcohol to permit the service of alcohol (including but not limited to restaurant, hotel, eating place, breweries, taprooms, and brewpub licensees).

  • A party of customers must be at least six feet apart or separated by physical barriers.

  • No standing in bar areas and alcohol service is limited to table or bar service (customer must be seated) and no more than four customers with a common relationship (family, for example) may sit together at a bar (not separated by six feet, but separated by six feet from other customers). We do not expect enforcement to be taken for businesses that do not question the common relationship, because it is not defined in any guidance.

  • Face coverings are required for every customer but may be removed when seated.

Outdoor Service

In green counties (and likely yellow counties when further guidance is issued), outdoor seating in both licensed and unlicensed areas is permitted. Outdoor service is subject to the same restrictions stated above for indoor service, including, but not limited to, no more than four customers together at bar seating and six feet or physical barrier between customers. In addition, outside service should follow the below requirements:

  • If the outside area is licensed, the service of food and alcohol is permitted. If the outside area is not licensed, the service of food is permitted but not alcohol. As stated above, we expect the PLCB to offer a solution to this for extending to unlicensed areas, but we do not have that yet and the current process of extending licensed premises can take more than 30 days for retail licensees due to the posting requirements. Breweries and taprooms are exempt from posting requirements and, as a result, those extension applications get approved more quickly.

  • If the outside area is not licensed, the licensee can continue selling beer, wine or spirits to go (if currently permitted to do so under a Wine Expanded Permit or the new “drinks-to-go” law) and the customer can carry the products to its table and the service of food would still be permitted at that table.

How About Special Occasion, Off-Premises Catering, Exposition, and Farmer’s Market Permits?

The PLCB reminds licensees that these permits can still be issued, but all requirements for using those licenses are still required. That is all the PLCB said, but this leads us to believe that these permits may be used in accordance with this guidance and Governor Wolf’s guidance, so long as they are used in a green county (if inside or outside) or a yellow county (if outside beginning on June 5). These permits have been a target of enforcement during the COVID-19 Crisis and it is advisable to have your plans vetted to ensure compliance prior to utilizing any permits.

©2020 Norris McLaughlin P.A., All Rights ReservedNational Law Review, Volume X, Number 153

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About this Author

Theodore Zeller Attorney Norris Law Firm
Member

Theodore J. Zeller III has extensive experience in liquor law, regulatory licensing, commercial transactions, real estate transactions, and litigation.

Chair of the firm’s Liquor Law Practice Group, Ted was lead counsel in a beer rights case brought against the world’s largest brewers and is now General Counsel to D.G. Yuengling & Son, Inc.

Ted’s lobbying efforts helped change various laws under the Pennsylvania Liquor Code. In 2010, Ted testified before the Senate Law and Justice Committee on behalf of Yuengling Brewery concerning House Bill 291, which addresses the...

(484) 765-2220
Matthew B. Andersen Corporate Business & Liquor Law Attorney Norris Mclaughlin Law Firm Pennsylvania
Associate

Matthew B. Andersen concentrates his practice on business law and liquor law.

In his liquor law practice, Matt works with all tiers of the alcohol industry, advising manufacturers, retailers, and wholesalers.  Matt assists breweries, distilleries, wineries, wholesalers, distributors, restaurants, and hotels on obtaining and transferring liquor licenses, obtaining state and federal manufacturing permits and licensing, complying with federal/state liquor regulations and laws, providing transactional counseling, and defending citations and protests before the Pennsylvania Liquor Control Board.  He is experienced in drafting and negotiating distribution agreements between alcohol manufacturers and distributors to assist manufacturers in expanding the reach of their brands.  Additionally, Matt has worked with nonprofit organizations and event planners on obtaining temporary alcohol permits for various events.  Matt takes pride in helping new and veteran alcohol businesses navigate the complex regulatory framework of state and federal liquor laws, as well as helping them establish and grow their brands on a state and national level.

Matt has presented at numerous events held by the Brewers of Pennsylvania trade organization on subjects such as U.S. Food and Drug Administration compliance for alcohol manufacturers, legal updates affecting the industry members, and general compliance.  Additionally, he has presented to a local and national audience on Pennsylvania, New Jersey, and Federal laws affecting brewery and distillery businesses.  In addition to presentations, Matt is a frequent contributor to Norris McLaughlin’s Liquor Law Blog, Legal Liquor, and has been quoted by various newspapers and publications on liquor-related matters.

As a business lawyer, Matt is involved in the day-to-day legal counseling of businesses, formation of business entities, general contract matters, drafting of agreements between partners, corporate restructurings, lending, and shareholder disputes. Additionally, he has experience to assist his business and liquor clients in real estate matters, such as property acquisition, leasing, and zoning and land use issues.

Matt’s liquor law and business law practices often coincide in the legal counseling of start-up businesses entering the alcohol industry.  He frequently advises clients from the idea stage to the operational stage of their alcohol business and is well versed in discussing the issues that come up in between.  Whether it is, among other things, entity selection, drafting operational business documents, lease review, real estate acquisitions, zoning issues and alcohol licensing/permitting, he can assist you in turning your ideas into a successful business.  Matt takes great pleasure in assisting dreamers, no matter what age, in preparing their business for future success.

484-765-2307