Court’s Ruling, However, Unlikely to Affect Orders Regulating Restaurant Occupancy During Pandemic
Following its ruling that certain of Pennsylvania’s COVID-19-related orders violated the U.S. Constitution, the U.S. District Court for the Western District of Pennsylvania yesterday denied Pennsylvania Governor Tom Wolf’s request that the court stay that earlier judgment pending an appeal.
Addressing “some of the measures taken by … [Gov.] Wolf and Pennsylvania Secretary of Health Rachel Levine … to combat the spread of the novel coronavirus,” – and even acknowledging that those actions were “well-intentioned” and intended “to protect Pennsylvania from the virus” – U.S. District Court Judge William S. Stickman IV cautioned at the outset of his September 14, 2020 Opinion that “good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge.”
Specifically, in County of Butler v. Wolf, No. 2:20-cv-677 (W.D. Pa. Sept. 14, 2020), the Court considered the Commonwealth’s “restrictions on gatherings; and … the orders closing ‘non-life-sustaining’ businesses and directing Pennsylvanians to stay-at-home” (footnote omitted). More specifically, the Court focused on the Governor’s and Secretary of Health’s orders directing that “indoor events and gatherings of more than 25 people are prohibited, and outdoor events and gatherings of more than 250 people are prohibited.”
In a full and decisive victory for the plaintiffs, the Court declared:
(1) that the congregate gathering limits imposed by [the Commonwealth’s] mitigation orders violate the right of assembly enshrined in the First Amendment [to the U.S. Constitution]; (2) that the stay-at-home and business closure components of [the Commonwealth’s] orders violate the Due Process Clause of the Fourteenth Amendment [to the U.S. Constitution]; and (3) that the business closure components of [the Commonwealth’s] orders violate the Equal Protection Clause of the Fourteenth Amendment [to the U.S. Constitution] (footnote omitted).
Following the Court’s well-publicized ruling, Gov. Wolf asked the federal district court to stay its ruling pending an appeal to the U.S. Court of Appeals for the Third Circuit.
Judge Stickman’s response was swift and unequivocal. “While Defendants contend that they have a strong likelihood of success on appeal for several reasons, the Court holds that the record does not support their position,” Judge Stickman wrote in a September 22, 2020 Memorandum Order.
The federal district court judge also rejected the contention that the absence of a stay would result in irreparable harm. Indeed, he concluded that “not only does the record not support the suggestion of immediate and irreparable harm if Defendants may not impose numeric limitations on certain gatherings, but their actions actually show the opposite – that they do not believe that gatherings exceeding their numeric caps will necessarily cause such harm.”
Prior to the Court’s September 22 ruling, Gov. Wolf made clear that he planned to appeal the district court’s September 14 ruling to the Third Circuit. In the meantime, however, the Court’s ruling will take effect. Governor Wolf himself already has “acknowledged that the judge’s ruling does lift the prohibition of mass gatherings of people.”
Neither the Court’s September 14 Opinion nor its September 22 order, however, appear to have any effect on the Commonwealth’s COVID-19-related orders limiting restaurant occupancy to 25- or 50-percent. In fact, in footnote 2 of his September 14 Opinion, Judge Stickman explicitly explained that the plaintiffs did “not challenge components of [the relevant] orders which permit the businesses to open subject to certain restrictions, such as percentage occupancy limits.” Therefore, he explained further that his “opinion does not impact those components of [those] orders.”
Indeed, the Court drove that point home by favorably comparing such occupancy restrictions with those orders it deemed unconstitutional. For example, in his most recent ruling, Judge Stickman took “judicial notice of the fact that effective September 21, 2020, Defendants have issued orders increasing the indoor dining occupancy limitations to 50% of the establishment’s occupancy requirements.”
“Thus,” he continued, “the record shows that under Defendants’ own orders, and with their blessing, the people of the Commonwealth may gather in workplaces, offices, stores, restaurants and other businesses limited only to a percentage of occupancy.”
Similarly, in his September 14 Opinion, Judge Stickman wrote: “The imposition of a cap on the number of people that may gather for political, social, cultural, educational and other expressive gatherings, while permitting a larger number for commercial gatherings limited only by a percentage of the occupancy capacity of the facility is not narrowly tailored and does not pass constitutional muster.”
As such, it would appear that nothing in either of the recent rulings would in any way affect any such occupancy restrictions at this time. Accordingly, businesses, such as restaurants and bars, subject to any such order(s) would be well advised to continue to abide by the order(s).
Leech Tishman is continuing to monitor all COVID-19-related developments, including those particularly affecting the restaurant, bar, and hospitality industry, in Pennsylvania and across the United States. Information about various orders, enforcement efforts, and other developments can be found at the firm’s on-line Hospitality, Restaurant and Bar Industry COVID-19 Resource Center.
If you have any questions regarding the most recent announcement or its implications on restaurants, please contact:
Mike is a Partner at Leech Tishman and Chair of Leech Tishman’s Insurance Coverage Group. He is also a member of the firm’s Litigation Practice Group and Co-Chair of Leech Tishman’s Cannabis Group. Michael is based in the Pittsburgh office.
Steve is a Partner with Leech Tishman and a member of the Corporate, Employment & Labor and Litigation Practice Groups. He also is Chair of the Government Relations Group. Steve is based in the Pittsburgh office.
Leech Tishman’s Facebook Page: https://www.facebook.com/leechtishman
Leech Tishman’s Twitter: https://twitter.com/leechtishman
Leech Tishman’s Company Page on LinkedIn: https://www.linkedin.com/company/leech-tishman
Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, cannabis, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Philadelphia, Sarasota and Wilmington, DE.