Recently, a federal judge in Pittsburgh ruled that certain preventative actions taken by Governor Wolf during the early stages of the COVID-19 pandemic were unconstitutional.
U.S. District Judge William S. Stickman IV held Governor Wolf’s stay-at-home and business closure orders, as well as his indoor/outdoor gathering restrictions, violated the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Governor Wolf’s administration filed a motion to stay while appealing to the 3rd Circuit Court of Appeals in Philadelphia. On Tuesday, September 22, Judge Stickman denied the stay, asserting that the public’s interests would be harmed by allowing the unconstitutional measures to remain in place. However, the only restriction still in place are the limitations on indoor and outdoor gatherings; The Wolf Administration had already lifted the stay-at-home and business closure orders months before the filing of this lawsuit.
Regardless of Governor Wolf’s motion to stay being denied, and any potential result coming out of the 3rd Circuit, COVID-19 has severely impacted private businesses around the country, and they want answers. Private business owners are now asking, “What, if any, legal affect does this decision have on the operations of my business currently?”
Because the stay-at-home and business closures orders had already been lifted, this decision does not have any impact on current restrictions. Governor Wolf has either lifted or eased many of his past restrictions on private business, and it is important to note that this ruling does not bear any significance on what Governor Wolf and his administration are doing right now in their efforts to implement public health and safety polices. Businesses are allowed to remain open and should continue to adhere to Governor Wolf’s capacity restrictions and continue to enforce masking and social distancing requirements. Where possible, businesses may consider conducting their operations through teleworking.
What About Restaurants?
There is no doubt that restaurant and bar owners have felt months of extreme financial hardships because of Governor Wolf’s pandemic restrictions. However, there may be a light at the end of the tunnel: House Bill 2513 (“HB 2513”), which was approved by both the PA Senate and House of Representatives, would ease the restrictions on bar and restaurants by setting capacity for restaurants at a minimum of 50%. HB 2513 would also get rid of Gov. Wolf’s ban on bar services, allowing patrons to sit at the bar and order an alcoholic beverage without the requirement of ordering food. This comes just after Gov. Wolf announced that starting September 21, restaurants and bars could increase their capacity from 25% to 50% maximum. Gov. Wolf also implemented a self-certification process, which allows restaurants to return to 50% indoor dining capacity if they agree to comply with all of the other safety requirements and CDC guidelines. These self-certification agreements would obligate a restaurant to follow CDC guidelines and protocols through mask and social distancing mandates along with safety recommendations. HB 2513 is now on the desk of Gov. Wolf; however he has indicated that he plans to veto this bill and encourage restaurants to complete the certification process.
There have been many changes regarding COVID-19 restrictions and limitations, and as such, there sure to be confusion about the current legal obligations and rights of restaurants given the federal court’s Stickman decision. However, it is important to note that the Stickman decision is not binding on orders and mandates that are currently in place. If Gov. Wolf signs HB 2513, or the PA Legislature overrides his veto, the bill will loosen restrictions on restaurants by removing the 50% capacity limitation and the requirement that food be purchased with alcoholic beverages. If Gov. Wolf vetoes HB 2513 and the Legislature is unable to override his veto, then Gov. Wolf’s capacity restrictions and food purchase requirements will remain in place.
Currently, Pennsylvania is in the “green phase,” and the most important way to mitigate the spread of COVID-19 is to wear a mask and adhere to social distancing guidelines. All businesses may reopen during the green phase, and except for restaurants and bars, may increase occupancy to 75%. Restaurants and bars can open indoor dining up to 50% capacity. Indoor recreation can have up to 50% occupancy. Health and wellness operations can have up to 50% occupancy, but customers can only enter by appointment only. Entertainment businesses may have up to 50% occupancy as well. Business owners should continue to enforce the current restrictions and requirements, and rely on guidance from the CDC and state and local health agencies. Owners and staff should continue to exercise their best judgement to protect the health of patrons, staff, and their communities at large.
