Is Self-Certification Right for Your Bar or Restaurant?

Pennsylvania’s bars and restaurants appear to be headed for yet another change in the way they are permitted to operate their businesses. In our update last week, located here, we provided information regarding Governor Wolf’s September 17, 2020 Order, which created a self-certification program for bars and restaurants as a pathway  to expand indoor capacity limits and requiring alcohol sales to close by 11:00 PM. Now, less than a week later, the Pennsylvania General Assembly has passed House Bill 2513 to replace and loosen the restrictions placed on the restaurant and bar industry under the serial orders that have been issued by the Governor. So, if you’re a bar or restaurant owner, should you self-certify?

House Bill 2513

If signed into law, HB 2513 would revise Pennsylvania’s bar and restaurant restrictions as follows:

• Bars and restaurants would be permitted to operate at 50% capacity for indoor dining by following the CDC and Pennsylvania’s social distancing guidelines or maintaining physical barriers.
• The requirement for food to be served with alcohol sales would be lifted; and
• Bar service and the use of bar seating for both food and alcohol sales would be permitted.

How House Bill 2513 impacts PA’s self-certification process

Notably, HB 2513 does not require bars and restaurants to go through, and in turn comply with, the self-certification process created under the Governor’s September 17, 2020 Order as a condition to access 50% capacity. Additionally, while the bill does not appear to disturb the 11:00 p.m. cutoff for alcohol sales under the Governor’s previous order, the bill does contain a provision that would prevent Governor Wolf from issuing any further orders prohibiting bar service or requiring food service with alcohol.

It is also important to note that the operating restrictions contained in the Governor’s Order and HB 2513 are separate and distinct from the gathering restrictions that were recently struck down in federal district court on September 14, 2020, and which will be discussed in a separate article.

While Governor Wolf has vowed to veto HB 2513, the bill was passed with a vote of 145-56 in the House and 43-6 in the Senate, exceeding the two-thirds majority that would be needed to override any veto by the Governor.  If such veto override occurs, House Bill 2513 will become law, and it will be the standard by which bar and restaurant owners will have to conduct themselves.

Is self-certification right for your bar or restaurant?

With the relaxed restrictions now pending on Governor Wolf’s desk, bar and restaurant owners who have not already self-certified under the Governor’s September 17, 2020 Order should weigh the cost and benefits of either going through the self-certification process to begin operating at 50% capacity immediately or forgoing the extra 25% operating capacity in the interim while HB 2513 remains pending.

As part of that cost-benefit analysis, restaurant and bar owners should note that HB 2513’s only requirement to operate at 50% indoor dining capacity is to either:

(1) maintain CDC and Pennsylvania social distancing guidelines, or

(2) maintain physical barriers.

On the other hand, the self-certification process requires bars and restaurants to certify compliance with all public health and safety measures included in the CDC’s Health Guidelines for Restaurants and Bars, PA’s Worker Safety Order, and PA’s Safety Guidelines for Businesses. It is important to note that the enforcement mechanisms and possible penalties for both of these paths are not yet fully developed, adding further uncertainty.

For now, restaurant and bar owners should continue to expect further changes and updates. As always, the attorneys of Gross McGinley, LLP are here to help you with any questions.

Attorneys Jason A. Ulrich, Thomas E. Reilly, Jr. and Ross Ramaley practice in Gross McGinley’s Business Services Group, providing legal counsel to regionally and nationally-held businesses.