The Governor’s New Shutdown Order – Considerations for Restaurants

The Governor has once again chosen to hit restaurants and liquor license holders. This time he’s hit them at their most critical time of the year. From talking with dozens of restaurant and bar owners, if you close now, you will likely end up bankrupt and/or permanently closed.  My analysis has not changed. I continue to believe that the Governor’s and Department of Health’s Orders are unenforceable and the Courts have agreed and found businesses not guilty. I can go on for hours as to why these orders are unconstitutional an unenforceable, but the key points are these:

1. Only the PA legislature can make the law. The Governor cannot create new law and the PA legislature does not back the governor. The PA legislature has not made any changes to the law that would allow for enforcement of the Governor’s orders. Nothing in the existing law allows for enforcement of these orders. Department of Health Orders are only enforceable if you have an outbreak of COVID at your home or business. If you have an outbreak, I will tell you to shut down until the outbreak has been resolved. 
2. You have a fundamental right under the U.S. and Pa. Constitutions to run a business. If the Governor wants to restrict that right, he can only do so narrowly and for a limited time. The neverending emergency that essentially closes your business is unconstitutional.

During the previous shutdown, dozens of businesses publicly defied the orders. Those include Taste of Sicily, Round the Clock Diner and Fay’s Country Kitchen. All of them are still open today. No one has lost their license or business. In terms of bars, there have been 14 day suspensions, but no one has lost their liquor license. Tunnelton Inn is fighting their liquor license suspension and PLCB has indicated that they want to withdraw that suspension. 

Local politicians have overwhelmingly stated that they will support businesses who do not comply with the past orders. 

Restaurant owners are required to comply with the food code. Liquor License holders are required to abide by the liquor code. I expect you to follow those. There are no surprises. Those codes have been in effect for decades with only occasional changes.  

If you choose to stay open, you may wish to consider the following, understanding that the facts and circumstances relative to every business are different and that you should consult with your attorney in relation to what, if any, action your business should take and how to respond to the new Order and its relative enforcement: 

1. Make sure that your food code compliance and liquor code compliance is excellent. Do not give the government any room to cite you for something else.
2. Clean thoroughly. Make sure that your tables, chairs, bathrooms, door handles, etc. are regularly cleaned. Keep a log to show that the cleaning is regularly occurring.
3. Keep in regular contact with your staff. If someone shows symptoms, send them home until they get a negative test.
4. Make a plan. If a government official comes in to your business, make sure the staff knows who is responsible for dealing with the official
5. Be polite and respectful to the government official. I have found that 90% of them are sympathetic to your position. Do not argue. The government official has been told by their supervisor what to do and likely has no discretion. Do not offer more information than necessary. It is perfectly acceptable to tell them that you want to handle this through your attorney. Tell the official that this will all be addressed in court. DO NOT LIE. Lying to a government official can be a separate offense. A lie to a government official can destroy other defenses you may have.
6. If the government official wants to inspect, inform him/her that you will be video recording the inspection. The official must let you record and will be under pressure to find other violations. You may also want to consider posting signs on the doors coming into your establishment that the premises are under video and audio surveillance.
7. Promptly review any citations or other documents you get.
8. Keep calm. Remember that we are all in this together. You have thousands of other businesses that support you.
9. Stick together. There is strength in numbers. If another business is going to court, do your best to support them by showing up to the hearing.
10. Make sure your voice is heard. Call, fax and e-mail your state representatives and senators. Make sure that they understand the gravity of the situation. The PA legislature is not in session again until January. It is very unlikely that they will take any action this month. However, they can take action in the future to make sure that no one is penalized for remaining open. The support of a state elected official can also be huge if your case goes to court. 
11. Find out the local law enforcement position. Overwhelmingly local police and county District Attorneys have stated that they will not enforce the Governor’s orders. It wouldn’t hurt to check in with them again to make sure that their position has not changed.
12. Communicate with me and with each other. The state does not do a good job of giving details of its enforcement plan. I am looking for patterns in enforcement so that I can let businesses know what to expect. If you are contacted by a government official, let me and other businesses know so that they can be prepared.  

If you or your business want legal advice on your rights under Governor Wolf’s new Order or desire representation relative to a citation for violating the Order, contact us today to discuss your rights!