Louisiana Moves Into COVID-19 Phase 3; New Guidelines Released for Hospitality Industry

Richard Easterling, Special Counsel | richard.easterling@taylorporter.com
Katie Goodson, Special Counsel | katie.goodson@taylorporter.com
Erin Sayes Kenny, Partner | erin.kenny@taylorporter.com
Mike Walsh, Partner | michael.walsh@taylorporter.com

Please note this article and these rules are current as of September 14, 2020 and may be subject to change.

Phase Three of Resilient Louisiana

On September 11, 2020, Louisiana entered Phase Three of Resilient Louisiana (the “Phase Three Order”).[1]  The new order will be in place for 28 days, expiring on October 9, 2020.

Essential Businesses under Version 4.0 of the federal CISA (Cybersecurity & Infrastructure Security Agency) guidance that have been allowed to operate under the previous Phase One Order may still be open.

The following Nonessential Businesses shall remain closed to the public and members:

  • Carnivals, fairs and festivals, amusement parks, theme parks, locations with amusement rides, water parks, splash pads, trampoline parks, children’s play centers, [2] indoor playgrounds, concert and music halls, and other similar businesses.
     
  • Any of these businesses, however, may submit a reopening plan with specific proposals for occupancy and sanitization to the State Fire Marshal (SFM), who, upon consultation with the Louisiana Department of Health (LDH), may approve the plan and allow reopening, subject to maximum 50 percent occupancy.

While closed to the public, these businesses shall not be prohibited from conducting necessary activities such as payroll, cleaning services, maintenance, or upkeep, as necessary.

Bars, with or without a food service permit from LDH, may continue to engage in drive-thru or curbside pickup but shall remain closed to on-premise consumption of any food or drinks unless: (1) they are located in a parish that has a percent positivity of 5 percent or less for two consecutive weeks, and (2) the parish has affirmatively opted-in to allow for on-premise consumption.[3] 

Bars that are allowed to open for on-premise consumption shall meet the following requirements:

  • Occupancy shall not exceed 25 percent as set by the SFM, or 50 patrons, whichever is less.
  • Outdoor service is allowed but shall not exceed 50 patrons, in total.
  • Standing room capacity is prohibited.
  • Patrons must be seated at tables at all times, and seating must be socially distanced. Walk-up service at the bar is prohibited.
  • Patrons must be 21 years of age or older to enter the premise.
  • All service of alcoholic beverages shall conclude by 10:00 p.m.
  • All patrons shall be cleared from the building by 11:00 p.m.

Pursuant to the Phase Three Order, the following Nonessential Businesses that have been allowed to operate under Phase Two may remain open, now with 75 percent occupancy:[4]

  • Restaurants, Cafes, and Coffee Shops;
  • Beauty Shops, Salons, and Barber Shops;
  • Shopping Malls;
  • Churches and other faith-based organizations;
  • Gyms and Fitness Centers; and
  • “All other” businesses or organizations. 

Notably, the Phase Three Open Safely guidelines also specifically identify the following Nonessential Businesses as ones that may also operate with 75 percent occupancy:

  • Movie Theaters (75 percent or 1 person per every 1-1/2 seats provided);
  • Museums, zoos, and aquariums (75 percent or 1 person per every 35 gross square feet); and
  • Libraries (75 percent or 1 person per every 1-1/2 seats provided).

The following Nonessential Businesses must adhere to stricter occupancy guidelines as provided below.

  • Casinos, racetracks, and video poker establishments are limited to 50 percent capacity.
  • Event centers and reception halls are limited to the lesser of 50 percent capacity or 250 people unless further specified below by Open Safely guidelines.
  • Stadiums, sports complexes, or arenas hosting any athletic event, whether amateur or professional, shall not exceed 25 percent total occupancy.

The Phase Three Order further provides the following guidance regarding crowd size limitations.[5]

  • Crowd sizes shall not exceed 50 percent capacity as set by the SFM with a maximum of 250 people in any single indoor space; and
  • Crowd sizes shall not exceed 50 percent capacity as set by the SFM with a maximum of 250 people in any single outdoor space where individuals will be in close proximity to one another and unable to maintain strict social distancing of 6 feet apart from individuals who are not immediate household members.

Service and sale of alcoholic beverages for on-premise consumption shall only occur between 8:00 a.m. and 10:00 p.m. in restaurants, cafes, coffee shops, casinos, racetracks, video poker establishments, event centers, and reception halls.  The State ATC has clarified that bars may open at 5:00 p.m. and may sell and serve alcohol until 10:00 p.m.

Waiting areas, lobbies, or other areas where members of the public may congregate (except for bathrooms) in the Nonessential Businesses which may be open under Phase Three shall be closed to the public. Members of the public should be required to make reservations (where applicable) or wait outside, while maintaining social distancing or in vehicles.

The Phase Three Order provides additional information regarding the aforementioned businesses:

  • Restaurants, cafes, and coffee shops
    • All may continue drive-up or curbside service.
    • Those which operate buffet-style may provide dine-in service if a restaurant employee is stationed at the buffet to serve dine-in customers. All buffets or common food stations shall remain closed for the self-service.
  • Casinos, racetracks, and video poker establishments
    • Phase Two restrictions that require reopening plans to be submitted to the Louisiana Gaming Board or Louisiana Racing Commission prior to reopening are still in place.
    • Phase Two restrictions that prohibit more the 75 percent of gaming positions in use at one time are still in place.
    • Phase Two restrictions which require all utilized gaming positions to be at least 6 feet apart from one another unless separated by physical barriers also continue.
       
  • Athletic events
    • Alcohol sales are prohibited inside all stadiums, sports complexes, and arenas.
    • Face coverings are required for all attendees and spectators.

The mask mandate will stay in place under Phase Three, and the current order clearly states that it should apply statewide. There do not appear to be any exceptions for parishes without high incident rates which could previously choose to opt-out of the mask mandate. In addition to the existing list of individuals to whom the mask mandate does not apply, athletes who are participating in organized athletic abilities and individuals who are seeking to communicate with someone who has or is suspected of having a communication disorder do not have to wear face coverings.

“Open Safely” Guidance from the Louisiana State Fire Marshal for Nonessential Businesses

Additionally, the Louisiana State Fire Marshal (SFM), in conjunction with the Office of the Governor and the Louisiana Department of Health (LDH) has published Phasing Plans with requirements and restrictions for certain Nonessential Businesses. Business owners can register at www.OpenSafely.la.gov to receive this guidance. Registering for the Open Safely site is not required in order to reopen, but it is encouraged. The guidance includes (but is not limited to) the following businesses:

Restaurants, Cafes, and Coffee Shops, Bars, Nightclubs, and Micro-breweries

  • The 75 percent occupancy capacity for restaurants, cafes, and coffee shops may be determined by 1 person per 20 square feet of the dining area.
  • Indoor live entertainment, including but not limited to singing, wind-blown instruments, and karaoke, is prohibited. String and percussion instruments without singing and with social distancing between band members and audience is permitted.
  • Buffets shall not allow self-service. Employees may serve customers from a buffet with 1 employee assigned to no more than 5 food items, and 1 employee shall be provided for every 25 customers.
  • No more than 15 persons shall be seated at a single table, and such parties should be members of the same household.

Event Centers and Outdoor Event Venues

  • Where food service is provided, guidance provided for restaurants, cafes, and coffee shops must be followed.
  • Indoor live entertainment, including but not limited to singing, wind-blown instruments, and karaoke, is prohibited. String and percussion instruments without singing and with social distancing between band members and audience is permitted. For event centers and outdoor event venues, this limitation does not apply to disc jockeys or music played via speaker system.
  • Seating areas shall be provided for all proposed attendees in an arrangement that provides for social distancing as outlined below. Patrons shall remain seated and socially distanced as outlined below and shall not congregate in groups outside of immediate household members.
    • Indoor event centers shall be limited to a maximum of 250 persons, a maximum of 50 percent of the established capacity, and to 1 person per 30 square feet of net useable floor area, whichever is less.
    • Outdoor event centers shall be limited to a maximum of 250 persons in any single outdoor space where individuals who are not immediate household members are unable to maintain six feet between others.
    • Fixed seating shall be reduced to 50 percent of normal capacity or to 250 seats, whichever is less.
    • Table seating shall follow the Option 3 seating arrangements outlined in the guidance provided for restaurants, cafes, and coffee shops.
    • Seating shall be provided for all patrons and shall be accomplished so that a minimum of 6 feet of distance between individuals and small household groups is maintained.
    • Group seating shall not exceed 15 people and should be limited to persons in same household.

Movie Theaters

  • Group seating shall not exceed 15 people and should be limited to persons in same household.
  • Interior waiting areas shall be limited to a maximum of 15 persons, or to the maximum number of persons that will allow for a 6 foot distance to be maintained between unrelated small groups. Waiting may also be provided outside of the facility while following social distancing guidelines, or persons may wait in cars.
  • Where present, counter concessions and seated food service is allowed, but subject to Phase Three guidance for restaurants, cafes, and coffee shops.

Shopping Malls and Retail Stores

  • Maximum capacity is limited to 75 percent of the total capacity of the mall building, 75 percent of the total capacity of each individual retail store, and is subject to the social distancing requirements as outlined below:
    • 1 person per 45 square feet of the mall building area;
    • 1 person per 45 square feet of individual retail store; or
    • 75 percent of the posted capacities by the SFM (including both employees and customers).
  • Seating areas and food court seating areas may be operated under the guidance provided for restaurants, cafes, and coffee shops.

Swimming Pools and Aquatic Venues

  • Maximum capacity is limited to 1 person for every 60 square feet of available deck space within the aquatic venue.  The surface area of surrounding party rooms or other adjacent buildings, grassy areas, or the pool water surface shall not be included in the total available square feet for this purpose. Staff who work within the facility shall be included in the capacity.
  • Camps, day cares, pool parties, special events, and school groups which exceed 25 participants in 1 body of water shall be considered congregate recreational swimming and are therefore not included in Phase Three guidelines.
  • Hotels, apartments, HOA, and other low use facilities shall limit pool access to current residents/members only. These pools may qualify as Controlled Recreational Swimming Facilities without the requirement for a designated crowd manager if an access control system for the pool is utilized (such as a key system), and access is restricted to members only. All other criteria will apply.
  • The Open Safely guidelines should be reviewed regarding lap swimming, swim teams, swim lessons, water fitness programs, swim competitions, and water safety training.

Other Businesses or Organizations not prohibited from being Open to the Public

  • Maximum building capacity is limited to 75 percent of the normal established capacity with adaptations to the use of space and application of additional protective measures taken to support social distancing requirements as outlined below. Please note that capacity restrictions should be applied down to the individual room, not just overall facilities.
    • Maximum building capacity calculated as:
      • 75 percent of the posted capacity by SFM, or
      • 1 person per every 120 square feet of gross area
      • Exception: Where the two factors reduce the capacity to below 15 persons, a 15 person minimum is allowed.
    • Conference rooms shall be limited to a maximum of 15 persons, or to the maximum number of persons that will allow for a 6 foot distance to be maintained between unrelated small groups.
    • Break rooms shall be limited to the maximum number of persons that will allow for a 6 foot distance to be maintain between unrelated small groups.
    • Teleworking of employees should continue wherever and whenever possible.

Additional guidelines are offered at https://opensafely.la.gov/PublicLinks.aspx for the following categories:

  • Museums, zoos, aquariums;
  • Libraries;
  • Tattoo, Massage, and Esthetician services;
  • Beauty Shops, Salons, Barber Shops, and Tanning Salons;
  • Places of Worship; and
  • Fitness Centers and Health Clubs.

Louisiana ATC Phase Three Guidelines for Alcohol Permit Holders

On September 11, 2020, the Louisiana Office of Alcohol and Tobacco Control (“State ATC”) published Phase Three guidelines for all permit holders, including specific guidelines for bars, restaurants, restaurant conditional permits, event halls, crowd restrictions, and drive thru and curbside services.  The guidance reiterates the requirements set forth in the Governor’s Phase Three Order, but the following clarifications are worth noting:

Bars and other Class AG permit holders may only be open from 5:00 p.m. until 11:00 p.m., and they may offer tableside service only. Standing and bar service is prohibited. Tables shall be spaced in accordance with SFM social distancing guidelines. Live music is prohibited.

Businesses that have previously been issued a “Restaurant Conditional” permit by ATC are permitted to operate under the guidelines issued to restaurants under Phase Three.[6]  These permit holders may opt to surrender their conditional use permit to the ATC at any time. If said permit is surrendered, the business may only operate within the parameters listed for bars and may not reapply for a conditional restaurant permit should condition change. Other eligible establishments may apply for the conditional permit by submitting an application directly to the ATC. Said applicants are reminded that smoking is prohibited in restaurant establishments and are required to stop all alcohol sales at 10:00 p.m.

Restaurants, Conditional Restaurants, and Bars may continue to offer curbside or to-go services of food and sealed or factory-sealed containers of beer, wine, and frozen specialty drinks.  As such, the ATC encourages curbside services. Businesses are reminded that curbside services must be conducted in compliance with both state and local rules. The sale of single serving or mixed alcoholic drinks are prohibited unless otherwise allowed under local ordinances.

Additional resources:


The Taylor Porter Alcoholic Beverage Licensing and Related Enforcement Issues Practice Group continues to monitor the legal developments pertaining to COVID-19. Please let us know how we can help you navigate licensing and compliance issues during this unprecedented time.

FOOTNOTES

  • [1] On Thursday, September 10, 2020, Mayor Cantrell announced that the City of New Orleans would remain in Phase Two under all of the restrictions previously imposed, notwithstanding Governor Edwards’ announcement that the state would move into Phase Three on September 11. The Phase Two restrictions for New Orleans businesses can be found here. Note, however, that the hours for alcohol sales in restaurants and/or bars with conditional restaurant permits allowed under the state Phase Three Order – which are more restrictive than those imposed under Phase Two – do apply in New Orleans.
  • [2] Per the SFM’s previous interpretation and guidance of this restriction under Phase Two, this restriction does not apply to outdoor children’s play centers.
  • [3] Should any parish that opts-in then subsequently exceed 10 percent positivity for two consecutive weeks, bars in that parish shall then close for on-premise consumption, unless and until the percent positivity decreases to 5 percent or less for two consecutive weeks. As of September 11, 2020, the only parishes with a 5 percent or less positivity rate are Bienville, Jefferson Davis, Orleans, Plaquemines, and St. John. The next update on percent positivity will be provided on September 16, 2020.
  • [4] See below “Open Safely” Guidance for additional information regarding calculation of occupancy.
  • [5] The crowd size limitations do not apply to Essential Businesses or any Nonessential Businesses and organizations operating at 75 percent capacity.
  • [6] The ATC notification only specifically references the following guidelines issued to restaurants in reference to what Restaurant Conditional permit holders must also follow: increase of table service to 75 percent; prohibition of live music; prohibition of alcohol service after 10:00PM; and continuation of social distancing, requirement of masks, and implementation of sanitization protocols as provided by SFM and LDH.  Presumably, however, all other guidelines issued to restaurants under Phase Three would also apply to businesses with Restaurant Conditional permits.

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