Struggling with significant operational restrictions and staggering economic losses, Pennsylvania restaurants received some good news recently when Pennsylvania Gov. Tom Wolf announced that, starting September 21, 2020, restaurants in the state would be able to operate at 50-percent indoor capacity so long as they satisfied certain conditions.

Specifically, according to the Governor’s office, to operate at the increased occupancy level, restaurants will have to “commit to strictly complying to all public health safety guidelines and orders through a self-certification process.”

Restaurants that complete the self-certification process will be able to operate at 50-percent occupancy indoors instead of at the 25-percent limit currently imposed in the Commonwealth. “Social distancing, masking, and other mitigation measures must [still] be employed to protect workers and patrons,” the Governor emphasized. “Further, starting September 21 restaurants that have alcohol sales will close alcohol sales at 10:00 PM.”

Additionally, according to the Governor’s office, “Restaurants that self-certify will appear in the Open & Certified Pennsylvania searchable online database of certified restaurants across the state. Consumers will be able to access this database and find certified businesses in their area ….” Additional detail about the online database has yet to be announced.

Closely tracking suggestions offered in Allegheny County, Pennsylvania, by Leech Tishman, the Caputo Law Office, and a large group of establishments, including restaurants, bars, and other liquor licensees that the two law firms represent, Gov. Wolf outlined the certification process:

The self-certification documents and information about the Open & Certified Pennsylvania program can be found online starting September 21 and will contain the following:

  • A list of requirements contained in the current restaurant industry guidance and enforcement efforts;
  • A statement that the owner has reviewed and agrees to follow these requirements;
  • The business’ maximum indoor occupancy number based on the fire code; and
  • A statement that the owner understands that the certification is subject to penalties for unsworn falsification to authorities.

Also consistent with another suggestion offered by Leech Tishman, the Caputo Law Office, and their clients, the Governor’s office explained that “restaurants that self-certify will be mailed Open & Certified Pennsylvania branded materials, such as window clings and other signage designating their certification, which they can display for customers and employees.”

The Governor’s recent announcement also directed that “[a]ny restaurant that wishes to increase to 50 percent indoor capacity on September 21 must complete the online self-certification process by October 5.” He further advised that “[b]usiness owners should keep a copy of the self-certification confirmation they will receive by e-mail.”

Gov. Wolf also offered that “[r]estaurant owners with additional questions about the self-certification program can contact [email protected].” Restaurateurs with questions or concerns, or who require assistance in completing the certification, should also consider consulting legal counsel.

Be aware: The Governor did advise that the self-certification process will proceed in tandem with on-going enforcement efforts across the Commonwealth. He explained:

The self-certification will be used as part of ongoing enforcement efforts conducted by Department of Agriculture and Pennsylvania State Police Bureau of Liquor Control Enforcement, and will be shared with the departments of State, Labor & Industry and Health, and other enforcement agencies. Restaurants operating at 50 percent capacity will have their self-certification status checked as part of ongoing enforcement by these agencies starting on October 5, and will focus on educating businesses. The commonwealth will continue its measured approach to easing restrictions, keeping the rest of the targeted mitigation tactics specific to the food retail industry in place as restaurants increase capacity to 50 percent (emphasis added).

Enforcement efforts are already taking place across the Commonwealth – as well as across the United States. In Allegheny County, for example, more than one establishment has already been cited for failing to follow COVID-19-related operating directives. Accordingly, all establishments – no matter at what occupancy level they are ultimately able to operate – should continue to carefully adhere to any and all applicable state orders and other guidance.

To that end, establishments will also want to pay attention to any county-imposed restrictions, as the Wolf Administration has stated it “supports local officials who choose to maintain additional restrictions.”