As the sun fades on another Maine summer and autumn rushes by, the appeal of outdoor seating at tasting rooms, bars, and restaurants starts to fade like our fall colors. Yes, there are space heaters and those fancy tables with fire pits in the middle of them, but all except the hardiest Mainer has limits for drinking a cold beer outside in frigid conditions. The good news is that Governor Janet Mills signed Executive Order 14 FY 20/21 on October 6, 2020 which, among other things, eases the restrictions on indoor seating.
Before the weather gets too frightful, Maine will start Phase Four of its Restarting Plan. As of October 13, 2020 restaurants were able to increase their indoor capacity to the lesser of “50% of the facility’s permitted occupancy limit or 100 persons.” If the COVID-19 cases stay in check, bars, breweries, and tasting rooms will be permitted to start inside service on November 2, 2020. Of course, as lawyers, we need to warn you to check the fine print. For example, these indoor occupancy limits apply only to “establishments that provide and require seating for all invitees.” In other words, the old days of walking around the bar or tasting room chatting with old friends and making new friends are not yet upon us. If people come inside, they need to be seated. Although there is a provision limiting occupancy to 50 for establishments that do not “provide and require” seating, the Bureau of Alcoholic Beverages and Lottery Operations (BABLO) does not interpret that as applicable to bars, breweries, and tasting rooms. Rather, bars, breweries, and tasting rooms re-opening for indoor service need to follow the checklist for seated services.
In addition, restaurants, bars, breweries, and tasting rooms cannot allow the increased occupancy limits if social distancing is not possible at those levels of occupancy. Specifically, COVID-19 Prevention Checklist Industry Guidance states that “if an establishment cannot accommodate the maximum occupancy limit and the physical distance requirements, occupancy must be further limited to allow for compliance with physical distance requirements.” To make matters more confusing, the converse may also be true – if you can socially distance 100% of your capacity, BABLO will still limit you to the lesser of 50% or 100 people. In other words, if an establishment’s capacity was 40 people pre-COVID-19 and the space was sufficient to seat all 40 people with 6 feet between tables, the limit under Phase Four is still 20 people. The bottom line is you are required to limit occupancy to less than 50% of your occupancy level if that is required for social distancing, you cannot have more than 50% of your occupancy limit even if it is possible with social distancing, and under no circumstances, can you have more than 100 inside.
The fine print also requires establishments to keep occupancy levels in mind while staffing the front of house. The occupancy limits include staff and guests with the exception of staff that do not enter into or exit the space. In other words, bar staff, wait staff, bussers, and other front of house staff count towards the occupancy limit. Kitchen staff are not included in the occupancy limits as long as they are not in the space where your guests gather.
One final word on capacity: For those hardy Mainers, outdoor service is still permitted. However, total capacity cannot exceed 200 (100 inside, if you have such capacity, and 100 outside). Again, these figures include staff who are entering and exiting the space.
Some may wonder why bars, breweries, and tasting rooms have to stay outside for an additional 20 days after restaurants can increase indoor capacity. According to BABLO's Winter Capacity FAQ, the 20-day period is for three purposes. First, public health officials want to be sure that new COVID-19 cases stay stable (so plan to reopen, but understand that a spike in cases could delay things). Second, there is concern for people interacting in close spaces, speaking loudly, with limited face covering. Finally, it is to allow for preparation, training, and other operational actions.
We do not have much control over the first issue, but people interacting indoors, and preparation, training, and operational actions are, to a certain extent, within the control of restaurants, bars, breweries, tasting rooms, and their staff. The good news is that the state has provided plenty of resources for navigating COVID-19 reopening. For example, Maine.gov has a number of resources and links to additional information. The COVID-19 Prevention Checklist Industry Guidance and BABLO’s Winter Capacity FAQ, both noted above with links, provide some good background and answers to your questions. For the many locations that will be reopening for indoor service for the first time, these are solid resources to start with. It is important for everyone from the most recent hire to the person with the most longevity to become familiar with the aforementioned Checklist Industry Guidance. Using the checklist will ensure that the establishment is compliant with the rules for reopening and, hopefully, keep it on track once reopened.
BABLO’s FAQs are also a good resource for dos and don’ts for reopening. For example, they explain what “seated service” means (“customers do not stand once served and stay seated with the group they came with. They do not move from table to table, stand consuming drinks or food, or stand listening to a speech or entertainment…..”). They offer advice on what is permitted: “food, beverages, education, or entertainment such as movies are served”. On the down side, they also provide examples of what is not permitted: “live singing or playing of brass (this makes trumpet-player me sad) or woodwind instruments, open dance floors, or otherwise allow[ing] congregation of people in a small space.”
The FAQs also offer some advice on dealing with mask use. This includes how to handle someone claiming to have a medical condition (offer alternative means of service as an accommodation, such as curbside service or delivery, but to not allow entry without a mask and not to ask for either the nature of the condition or proof of the condition). It also explains potential liability for asking a customer without a mask to leave (likely none, so long as you offer an accommodation such as offering a mask or face shield, take out, or other forms of service). Finally, it tells you that it is okay to call law enforcement if someone becomes belligerent over being asked to wear a mask (required face coverings in the executive order has the force of law).
In short, while we continue under the new normal and all of its difficulties, the good news is that we can likely start to move indoors as winter sets in. It is not perfect, and much of it will not be easy, but if we keep working together, hopefully things will look brighter in the spring.
Executive Order 14 FY 20/21
COVID-19 Prevention Checklist Industry Guidance
BABLO's Winter Capacity FAQ