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.
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.
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.
For information regarding national and state liquor law matters or general manufacturing and distribution advice, please contact our Liquor Law, Licensing, Manufacturing, and Distribution Practice Group: Liquor Law Department Chair Theodore J. Zeller III, Esquire (firstname.lastname@example.org); David C. Berger, Esquire (email@example.com) for Pennsylvania and New Jersey retail and manufacturing licensing; or contact our offices at 610-391-1800.
The information contained in this post may not reflect the most current developments, as the subject matter is extremely fluid and constantly changing. Please continue to monitor this site for ongoing developments. Readers are also cautioned against taking any action based on information contained herein without first seeking advice from professional legal counsel. For more topics related to COVID-19, visit our Coronavirus Thought Leadership Connection.