UPDATE: A new order became effective May 29th moving some counties to the Green Phase and providing additional guidance to businesses in those counties. Click here for an article specifically addressing the Green Phase.
This article was written by a 2020 graduate of Vermont Law School who is not yet licensed in the state of Pennsylvania and reviewed by Attorney Joshua Prince. The information included below is done so for educational purposes and should not be construed as legal advice.
Like the answer to so many questions we are all facing right now, the answer to this one is unclear. The purpose of this article is to give you some information you need to evaluate your circumstances. There are numerous factors you should consider in deciding whether or not to open, including, but not limited to, liability, insurance, safety precautions, and more. This article will only address how the Governor’s orders affect ranges to date. As our readers are surely aware of Governor Wolf’s Stay-at-Home order by this point, I will specifically address where shooting ranges fit into the Red-Yellow-Green-Phase system being deployed. At the moment of this publishing, there are 37 counties in Yellow Phase, with 12 more to follow on May 22. At this time, there are no counties in Green Phase (at least pursuant to Governor Wolf’s approval), meaning if it is not yet yellow, it is still red.
What do the different phases mean for ranges? Under the original stay-at-home order, all businesses not considered “life sustaining” were ordered to close, and those businesses must remain shuttered under the Red Phase. The Governor’s list of industries and whether they are allowed to be open is based upon the North American Industry Classification System (NAICS). The Governor’s list is roughly 5 pages long and at its most detailed level only gets as specific as listing the industry groups, none of which immediately identify ranges. However, shooting ranges are used as an illustrative example of NAICS code 713990, found on the bottom-half, of page four, of the Governor’s list – “Other Amusement and Recreation Industries.” This industry group, and therefore shooting ranges, are arguably not permitted to continue physical operations under the Red Phase.
Under the Yellow Phase (you can follow this link to see which counties are currently in the Yellow Phase), the Governor’s Guidance for Businesses explains that all businesses, except those specifically excluded, are permitted to conduct in-person operations. The Governor’s Process to Reopen Pennsylvania explains that indoor recreation, health and wellness facilities, personal care services, and all entertainment (such as casinos and theaters) remain closed. While shooting ranges are not in the same NAICS industry group as any of those example businesses, they are under the “Arts, Entertainment, and Recreation” sector of the “Leisure and Hospitality” industry. As all “Entertainment” is to remain closed under the Yellow Phase, ranges are seemingly captured.
This is not to say that there is no hope, as there is another NAICS code that arguably applies to shooting ranges. NAICS code 813319 addresses “Other Social Advocacy Organizations.” Businesses in this category address issues or advance social causes including, but not limited to, firearms safety, and an example business includes “Firearms advocacy organizations.” Referring again to the Governor’s list, we see that near the bottom of page four, Social Advocacy Organizations are permitted to continue in-person operations under the original order and therefore the Red and Yellow Phases. Whether a range could be considered a social advocacy organization would be a heavily fact dependent analysis, involving looking to things like: the specific organizing documents of the business (certificate of organization/incorporation, bylaws, operating agreement, etc.), the activities of the business as a whole, if it business actually advocates for the social cause and anything else law enforcement or a court might consider. As an additional anecdote supporting the opening of ranges in Yellow Phase counties, the PA Game Commission is reopening their ranges on state game lands in those counties as they transition to the Yellow Phase. The PAGC is however leaving their ranges in Red Phase counties shuttered.
Beginning May 1st, golf courses and marinas were specifically exempted from closure orders and allowed to reopen, despite falling into the same NAICS industry group as shooting ranges.
It is very important to understand that there are no clear rules, guidelines, or judicial decisions on this topic. Given Governor Wolf’s threats of enforcement as covered previously by our blog, the risk exists that the state or local government may not agree, and you may have to make the arguments in court. For these reasons, Attorney Joshua Prince drafted an amendment to HB 2440 that passed out of the House today. Titled the “Hunting, Firearm, and Ammunition Life-Sustaining Business Act,” if enacted, consistent with Article 1, Sections 21 and 25 of the Pennsylvania Constitution, it would make all shooting ranges, sportsman clubs, hunting facilities and firearm and ammunition product manufacturers, retailers, importers and distributors life sustaining businesses that “shall never be shuttered or limited in their ability to produce, provide, sell or otherwise offer firearms, ammunition, firearm accessories, component parts of firearms, ammunition and firearm accessories, and all services, training, safety and practiced related to firearms and hunting.” Please contact every Pennsylvania Senator, especially your own, and demand that they enact HB 2440 as passed by the House!
Remember, ranges are frequently small businesses and they are struggling right now too. It is important for us to support each other during these trying times. If you are interested in reopening your range and would like to set up a consult with an attorney to discuss in more detail your options and risks, contact us to set up a consultation.