Political Winds Knock Out Drinks to Go and Temporary Extensions in Pennsylvania

The Pennsylvania COVID-19 emergency declaration really changed how alcohol was sold and regulated over the last 16 months. While there were significant limitations on restaurants, several benefits helped the hospitality industry pivot to other income sources. Under the original series of declarations made by Governor Wolf, licensees could not sell food or alcohol for on-premises consumption and, incrementally, occupancy was eventually permitted but remain limited.

JUNE 18, 2021, UPDATE REGARDING TEMPORARY EXTENSIONS

Based on our recent submissions to the Pennsylvania Liquor Control Board for permanent extensions of these COVID-19 temporary outdoor areas either previously approved or filed immediately prior to the June 15 termination of the Governor’s Emergency Declaration, it appears that the Board is continuing to grant authority to licensees to continue their use of these extended areas pending investigation by the Board.

Temporary Extensions in Pennsylvania

The Pennsylvania Liquor Control Board also took certain steps to help restaurants cope with the ramifications of the pandemic. These steps included waiving the safekeeping requirements for licensees who were no longer able to offer on-premises consumption of food on their premises, waiving certain late fees associated with the filing of applications, and implementing a fast-track procedure to process applications for temporary extensions of licensed areas to include outside service areas throughout Pennsylvania. There was also the passage of Act 21 of 2020, which allowed for the sale of mixed drinks to go by certain retail licensees, but all these benefits were tied to the emergency declaration.

Emergency declarations from the COVID-19 pandemic have been hotly debated across the United States, and certainly, Pennsylvania has had its fair share. Pennsylvania went so far as to offer a constitutional amendment that allowed the legislature to limit any emergency powers of the governor. As soon as that passed and the vote was certified, the legislature flexed its muscles and ended the emergency declaration. Unfortunately, this jeopardized many of the special benefits that were helping the hospitality industry recover. On the evening of June 15, the Pennsylvania Liquor Control Board notified all licensees that many of the benefits tied to the emergency declaration were now terminated because the emergency declaration has been terminated.

Resuming Operations in Hospitality Industry

Now, the hospitality industry must return to the rules that governed pre-pandemic operations as follows:

• Pre-pandemic food, seating, square footage, and health permit requirements for licensees.
• Retail licensees that wish to sell malt or brewed beverages for off-premises consumption must also make malt or brewed beverages available for consumption on the licensed premises. Similarly, holders of wine expanded permits that wish to sell wine for off-premises consumption must also make wine available for consumption on the licensed premises.
• All sales of mixed drinks to go authorized by Act 21 of 2020 must cease now that the emergency declaration is terminated.
• The procedures adopted by the Board to expedite the process for licensees that want to temporarily extend their licensed premises to include additional outside areas will no longer be in effect, and those areas are no longer considered licensed. Licensees that wish to continue to use these outside areas must immediately file an application to extend their licensed premises to include those areas, along with the appropriate fee. A decision on whether to allow the use of those areas during the pendency of the application will be made on a case-by-case basis by the Board. Now that restaurants must file applications for formal extensions, local Pennsylvania zoning laws may be implicated.
• The Board had previously indicated that time in safekeeping status, while the emergency declaration was in effect, would not count against the time limits on safekeeping status set forth by the Liquor Code, i.e., the Board had stopped the safekeeping “clock” on March 6, 2020. With the end of the emergency declaration, time in safekeeping will again count against the time limits on safekeeping status set forth by the Liquor Code. All license-holders with licenses in safekeeping will be notified of the safekeeping dates applicable to them.

Political Winds in Pennsylvania

The most frustrating part of the rules surrounding the emergency declarations and their impact on the hospitality industry has been the lack of advance notice of rule changes. While it is fair to debate appropriate safety and mitigation measures in a pandemic, the hospitality industry at least deserved the courtesy of advance notice of any shutdowns. Unfortunately, although political winds changed, the irony is that legislators critical of Governor Wolf’s orders have now caused the termination of benefits to the hospitality industry with little to no advance notice just like the governor’s. It is expected that Pennsylvania State Police, Bureau of Liquor Control Enforcement will first warn licensees of potential violations for serving on outside premises that are no longer licensed or selling drinks to go before issuing citations, but the Pennsylvania Liquor Control Board’s notice went into effect immediately last evening.

For information about national and state liquor law matters or general manufacturing and distribution advice, please contact our Liquor Law, Licensing, Manufacturing, and Distribution Practice Group: Liquor Law Department Chair Theodore J. Zeller III, Esquire (tzeller@norris-law.com); David C. Berger, Esquire (dberger@norris-law.com) for Pennsylvania and New Jersey retail and manufacturing licensing; or contact our offices at 610-391-1800.