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One Step Forward, One Step Back: PA Gov Dances Around COVID Rules for Restaurants

On Tuesday, September 8, Governor Wolf announced new COVID-19 mandates applicable to the state’s retail restaurants that eased some restrictions but imposed new ones and created many open issues. The good news is that beginning September 21, restaurants (which we assume also means breweries) can increase their indoor capacity to 50%. Restaurants and breweries will be required to submit to an online self-certification process as part of the “Open & Certified Pennsylvania Program” (the “OCP Program”). The Governor reported that this process can be found online beginning September 21, but it is unclear whether it will be an independent website or part of the PLCB+ system. There will be a specific e-mail (covidselfcert@pa.gov) to address any questions about the program.

The Open & Certified Pennsylvania Program

The OCP Program requires owners of restaurants to certify that they are familiar with the current industry guidance which is part of various COVID-19 orders already issued by the Governor and Dr. Rachel Levine, the Secretary of Health, concerning targeted mitigation efforts, some of which apply to all businesses and some of which apply uniquely to the foodservice industry. The certification is subject to penalties for unsworn falsification to authorities. It also appears you will be required to input your maximum indoor capacity based upon the fire code, i.e., you should take your fire code occupancy and multiply it by 50% to certify as to your maximum indoor occupancy. It is recommended that you research your occupancy based upon your local fire code rating. If you do not have a local fire code or another occupancy rating, we recommend that you input the maximum number of people who can be accommodated at tables that need to be six feet apart inside your facility. See, Guidance issued May 27, 2020, updated  July 15, 2020: Method 2. Once you complete the certification process, the Commonwealth will mail you OCP-branded materials, such as window clings and other signage displaying your certification. However, all restaurants will be permitted to begin 50% indoor seating capacity on September 21 as long as you complete the online certification process by October 5, i.e., you do not have to wait for your OCP-branded materials to be mailed to you.

Now the bad news. All alcohol sales must end at 10:00 p.m. We believe that this follows typical closing rules which allow sales to be completed by the designated time (10:00 p.m.), and the patrons will have an additional 30 minutes beyond 10:00 p.m. to consume their alcoholic beverages (as long as their meal remains at the table). We have recommended including dessert, such as a plate of cookies, as part of the meal to prolong the meal process. Our latest information indicates that the 10:00 p.m. sales restriction will not apply to take-out or delivery sales, but stay tuned. Also, the 10:00 p.m. restriction is effective regardless of whether you complete the OCP Program certification. There will be a FAQ released before September 21.

COVID-19 Rules for Pennsylvania Restaurants

Like beer flowing out of bar taps, the information received from the Governor’s press release is fluid. As soon as the Governor issued the press release, we interact with relevant state agencies in order to further define the information that has been disseminated from the press release. As more information becomes available, we will keep you updated. As mentioned above, you should expect additional orders to come from the Governor, the Department of Health, and/or the Pennsylvania Liquor Control Board.

©2022 Norris McLaughlin P.A., All Rights ReservedNational Law Review, Volume X, Number 255
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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
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