Just-Issued Pennsylvania and Allegheny County Orders Affect Restaurants and Bars Yet Again

As a result of the on-going novel coronavirus (“COVID-19”) pandemic, the restaurant and bar industry across the United States continues to be subject to new state and local orders affecting their operations. Most recently, in Pennsylvania on July 15, 2020, Gov. Tom Wolf issued a statewide order (the “July 15 Pennsylvania Order”) “directing targeted mitigation measures,” which took effect on July 16, 2020. On the heels of the July 15 Pennsylvania Order, the Allegheny County, Pennsylvania, Health Department (the “ACHD”), issued today, July 17, 2020, its own new order (the “July 17 ACHD Order”), rescinding a prior order and permitting restaurants and bars in the county to operate consistent with the July 15 Pennsylvania Order and other applicable law.

The July 15 Pennsylvania Order places further restrictions on the restaurant and bar industry. For example, it provides, in relevant part:

All bars are prohibited from conducting operations unless they offer sit-down, dine-in meals or take-out sales of alcoholic beverages. Alcohol only can be served for on-premises consumption when in the same transaction as a meal. All service must be at a table or booth; bar service is prohibited. Take-out sales of alcohol for the purposes of off-site consumption are permitted subject to any limitations or restrictions imposed by Pennsylvania law. For purposes of this Order, occupancy requirements shall be the following:

i. Limited to 25% of stated fire code maximum occupancy for indoor dining.
ii. A discrete indoor event or gathering within a bar is limited to 25 persons.

The July 15 Pennsylvania Order also places similar restrictions on “Restaurants & Private Catered Events.” For example, they are also “[l]imited to 25% of stated fire code occupancy for indoor dining.” The Order continues:

ii. All businesses in the retail food services industry, including restaurants, wineries, breweries, private clubs and bars, are permitted to provide take-out and delivery sales of food, as well as dine-in service in both indoor and outdoor seating areas so long as they strictly adhere to the requirements of the Guidance, as required by this Order, including the following:

a. Non-bar seating in outdoor areas (i.e., tables or counter seats that do not line up to a bar or food service area) may be used for customer seating.

b. Customers being served must be seated at a table.

c. The maximum occupancy limit includes staff.

iii. Social distancing, masking, and other mitigation measures must be employed to protect workers and patrons.

iv. Alcohol only can be served for on-premises consumption when in the same transaction as a meal. Take-out sales of alcohol for the purposes of off-site consumption are permitted subject to any limitations or restrictions imposed by Pennsylvania law.

The July 15 Pennsylvania Order, which supersedes any prior orders that conflict with the provisions of the most recent order, also addresses, among other topics, nightclubs, teleworking, and gyms and fitness facilities

By the July 17 ACHD Order, which is intended to “supplement, not replace,” any state order in place, including the July 15 Pennsylvania Order, ACHD Director Debra L. Bogen, M.D. rescinded her July 8, 2020 order. In its place, she directed, in relevant part:

Indoor and outdoor seating areas for sit-down, dine-in services at bars, restaurant, and private catered events shall be closed to the patrons by 11:00 PM. Take-out sales continue to be permitted after 11:00 PM, consistent with applicable Pennsylvania law.

Notably, the July 17 ACHD Order does not single out for any special treatment on-site alcohol consumption and sales.

Leech Tishman and the Caputo Law Office are continuing to represent a large and growing group of establishments, including restaurants, bars, and other liquor licensees, that are concerned about certain of Allegheny County’s recent orders addressing on-site alcohol consumption. Leech Tishman and the Caputo Law Office were featured in a Pittsburgh Business Times article about this effort.

Compliance with the recent July 15 Pennsylvania Order and the July 17 ACHD Order, which takes effect at 5:00 PM today, of course, is mandatory. To the extent an owner or manager of any affected establishment, or anyone else, has any questions or concerns about either of these orders, or any other applicable law or order in Pennsylvania or elsewhere, they should contact counsel. Leech Tishman has also just established a “Hospitality, Restaurant, and Bar COVID-19 Resource Center,” which may provide additional helpful information.

If you have any questions regarding the most recent Order or its implications on restaurants, please contact:

Steven D. Irwin at 412.261.1600 or sirwin@leechtishman.com

Michael H. Sampson at 412.261.1600 or msampson@leechtishman.com

Daniel P. Yeomans at 412.261.160 or dyeomans@leechtishman.com

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.

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 the Leech Tishman’s Cannabis Group. Michael is based in the Pittsburgh office.

Dan is an Associate with Leech Tishman and a member of the Litigation and Bankruptcy & Creditors’ Rights Practice Groups. Dan is based in Leech Tishman’s Pittsburgh office.

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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, Sarasota and Wilmington, DE.