Phase Two: Roadmap to a Resilient Louisiana

New Openings and Additional Guidelines 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 June 8, 2020, and may be subject to change.

On June 5, 2020, Louisiana entered Phase Two: Roadmap to a Resilient Louisiana (the “Phase Two Order”).[1] The Phase Two Order adopts every major recommendation of Phase Two of the White House plan and includes the following parameters for business operations.


Essential Businesses under Version 3.1 of the federal CISA 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, water parks, splash pads, trampoline parks, contact sports, children’s indoor play centers, arcades, concert and music halls, and other similar businesses;
  • However, any of these businesses may submit a reopening plan with specific proposals for occupancy and sanitization to the State Fire Marshal (SFM), who may approve the plan and allow reopening (but with maximum 50 percent occupancy) or who may provide guidance for reopening in Phase Three.[2]

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.

Nonessential Businesses that have been allowed to operate under the previous Phase One Order[3] may remain open, now with 50 percent occupancy. The Phase Two Order further expands operations for certain Nonessential Businesses, including the following:

  • Shopping malls may now include food courts, following restaurant guidance.
  • Museums may now include children’s museums (no tactile exhibits).
  • Casinos and video poker establishments may use up to 75 percent of gaming positions at any one time, and all utilized gaming positions must be at least 6 feet apart, unless separated by physical barriers.[4]

The following types of Nonessential Businesses were required to remain closed under the Phase One Order but have been removed from the list of businesses that must remain closed under Phase Two and, thus, may now open to the public with 50 percent occupancy unless otherwise specified:

  • Bars and breweries that do not have LDH food permits.
    • Occupancy is limited to 25 percent.
    • These establishments must implement strict social distancing requirements.
  • Pool halls, bowling alleys, and other similar businesses[5]
    • Children must be accompanied by an adult
  • Personal care and grooming businesses​
    • Massage establishments, spas, and tattoo establishments must adhere to strict guidance from the Louisiana Department of Health (LDH).
    • Esthetician services must adhere to strict guidance from the Cosmetology Board.
  • Outdoor playgrounds and play centers​
    • Children must be accompanied by an adult.

While not expressly addressed in the Phase One or Phase Two Orders, the June 1, 2020 press release from the Office of the Governor includes event centers and wedding venues in the list of businesses that can open with 50 percent occupancy under Phase Two, as well as arcades and trampoline parks.[6]

The Governor’s June 1, 2020 press release further states that live entertainment is not permitted inside any building or indoor function.

Under the Phase Two Order, all employees and owners of open Nonessential Businesses must maintain social distancing between themselves and members of the public and wear face coverings when interacting with the public.

“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, coffee shops, bars, nightclubs, and micro-breweries

Occupant Capacity

  • Maximum building capacity during Phase Two for restaurants, cafes, coffee shops, micro-breweries, and bars with LDH food service certificates is 50 percent.  This may be determined by 1 person per 30 square feet of gross area.
  • Maximum building capacity during Phase Two for bars and nightclubs without LDH food service certificates is 25 percent.  This may be determined by 1 person per 60 square feet of gross area or 25 percent of the posted capacity by order of the SFM.
  • The capacity restrictions should be applied to individual rooms, not the overall facility.

Seating Arrangement Options

  • Option 1: Active Monitoring.​
    • Tables may be arranged to allow for 6 feet between persons or may be arranged 6 feet apart, measured from table edge to table edge, with back to back seating.
    • Management should allow for non-contact temperature checks.
    • Signage must be provided to notify patrons to not enter if they have any symptoms of COVID-19.
  • Option 2: Partitioning Tables.
    • Minimum 6-foot high partitions, screens, or fire-retardant or flame-resistant curtains may be placed between tables or seating arrangements.
    • Curtains or similar hanging furnishings will require daily cleaning.
  • Option 3: Strict Social Distancing.
    • Tables are arranged such that a minimum of 6 feet of distance between persons seated at other tables is maintained.
    • Where movement or seating between tables is not necessary, the tables shall be a minimum of 6 feet apart, measured from table edges.
    • Where movement between tables is necessary, or where one person is seated between tables, the tables shall be a minimum of 8 feet apart from table edges.
    • Where persons are seated at each table back to back, the tables shall be a minimum of 10 feet apart from table edges.
  • Sample seating layouts for each option can be found here.
  • Booth seating can continue to be fully utilized if separated by partitions with a height that exceeds the height of an average patron’s head. If not, they are subject to the spacing as provided above.
  • No more than 10 persons at a single table, and such should be members of same household.

Limitations /Prohibitions

  • Indoor live entertainment, which includes but is not limited to bands and karaoke, is not authorized in Phase Two. This limitation does not apply to disc jockeys or music played via speaker system.
  • Outdoor live entertainment, including singing or blown instruments, must allow for 6-foot distancing and 2-foot aisle between entertainment and audience.
  • The following remains prohibited: self-serve buffets and other common food service stations; interior waiting areas; dancing; and congregation in open areas of the establishment.

Movie Theaters

Occupant Capacity

  • The maximum building capacity during Phase Two is limited to 50 percent occupancy based on 1 person per every 2 seats provided, or 50 percent of the posted capacity of the SFM.[7]

Seating Arrangements

  • Seating must be assigned so that a minimum of 6 feet of distance between individuals and small groups is maintained.
  • Group seating must be limited to 10 people, and this should be limited to persons who are members of the same household.

Limitations/Prohibitions

  • Employee area capacity must be reduced to allow for 6-foot distancing between employees.
  • Physical contact between employees and customers is prohibited.
  • Interior waiting areas are prohibited. Waiting may be provided outside of the facility while following social distancing guidelines or persons shall wait in cars.
  • Gatherings in the building while entering, exiting, purchasing tickets, or moving about is prohibited.
  • Counter concessions and seated food service is allowed, but now subject to Phase Two Restaurants, Cafes, and Coffee Shops guidance which is outlined above and can also be found here

The Open Safely guidelines for Movie Theaters state that arcades “may operate under the guidelines provided for Arcades, Bowling Alleys, and Pool Halls.” At this time, no separate Open Safely guidelines have been issued for Arcades, Bowling Alleys, and Pool Halls. Further, as noted above, the Phase Two Order expressly states that arcades must remain closed but may submit a reopening plan to the SFM for approval. Presumably, arcades in movie theaters are subject to the same provision under the Phase Two Order.

Event Centers and Outdoor Event Venues

Only events controlled by invitations, ticket sales, or by reservations are included in Phase Two.

Occupant Capacity
The maximum capacity for any indoor event shall be subject to the following during Phase Two:

  • Indoor event centers shall be limited to a maximum of 250 persons or 1 person per 30 square feet of net useable floor area, whichever is less.
  • Fixed seating shall be reduced to 50 percent of normal capacity or to 250 seats, whichever is less.
  • The floor area used for exhibit booths shall be excluded from the net useable floor area for occupant capacity calculation.
  • The maximum capacity includes both attendees and staff.

Seating Arrangements

  • Seating, if provided, 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 10 people and should be limited to persons who are members of the same household.
  • Seating should not be allowed within 6 feet of aisles or above pedestrian entrance and exits (vomitoriums).
  • Events having a central speaker or with a central stage shall have assigned seating.
  • Where food service is provided, table seating shall follow the guidance provided for Restaurants, Cafes, and Coffee Shops, using the Option 3 seating arrangements outlined in that document.

Limitations/Prohibitions

  • Facilities may host multiple events only if separate egress and restroom facilities are provided for each event and are not shared with other event attendees.
  • Indoor live entertainment, which includes but is not limited to bands and karaoke, is not authorized in this phase. This limitation does not apply to disc jockeys or music played via speaker system.
  • Dancing is not expressly authorized in Phase Two. The SFM office did, however, explain that dancing between members of a household (e.g. bride and groom) is not prohibited.
  • Physical contact between staff and attendees is prohibited.
  • Buffet lines and common food lines are prohibited.

Pools (including hotel pools)

The Open Safely guidance applies to Controlled commercial swimming facilities (both private and public); Controlled recreational swimming facilities; Water fitness courses; Swim teams & lap swimming; and Swimming lessons.

Aquatic venues or swimming pools that are not able to continuously satisfy all “Controlled Recreational Swimming Facilities Criteria” shall be considered “Congregate Recreational Swimming Facilities” and are not included in Phase 2 guidelines.[8]

Controlled Swimming Facilities Criteria

  • A designated crowd manager shall be present to actively control and monitor users within the facility. Staff who are actively lifeguarding shall not also serve in this role.
    • Hotel 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). All other criteria will apply.
  • Unless participating with supervised swim lessons or swim team activities, minors under the age of 15 shall be accompanied by their parent/guardian who shall remain inside the facility at all times. The parent or guardian must be at least 18 years old.
  • Areas or attractions which create a line or potential for gathering shall be clearly marked to designate physical distancing guidelines.
  • In-water activities that could reasonably result in physical contact or less than 6 feet of distancing between patrons who live in different households shall not be allowed.
  • Water quality must meet all CDC guidelines and be regularly tested. Written records must be maintained by operators.

Occupant Capacity

  • The maximum capacity for aquatic venues and swimming pools during the Phase 2 period 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.

Social Distancing and Safety Rules

  • Hotels shall limit pool access to current guests only.
  • Table and chair set-ups shall follow the most current guidelines for Restaurants outlined above and also found here
  • Extra tables and chairs should be removed or made inaccessible.
  • Lounge chairs shall be spaced to allow patrons from different households to maintain at least 10 feet of space.
  • Seating shall not be allowed within 6 feet of the pool’s edge.
  • Group seating shall not exceed 10 people and should be limited to persons who are members of the same household.
  • Gatherings at entry/exit points and on the pool deck should be eliminated.
  • Lap swimming, swim teams, advanced stroke lessons, and water fitness programs are permitted, provided at least 6 feet of distance can be maintained between patrons at all times, other than while passing within designated lap lanes. For lap swimming, no more than 3 swimmers per 25-yard lane and no more than 6 swimmers per 50-meter lane shall be permitted.
  • In-water instruction, such as swimming lessons, shall be allowed in either a private (1:1) or semiprivate (2 or 3:1) format. Group swimming lessons (greater than 3 students to 1 instructor) are not permitted in this phase, unless all students are from the same household. Facilities hosting more than 1 set of private/semi-private lessons in the same venue shall leave at least 10ft of space between the sets.
  • Patrons should not wear face coverings or masks while in the water.

The Open Safely guidance for pools references Open Safely guidance for Amusement Parks, Sports Parks, Water Parks, Fairs, Festivals, or Carnivals, or similar activities for considered use of Water Parks and Water Play Aquatic Venues. To date, no such guidance has been published (presumably because these categories of Nonessential Businesses must remain closed under the Phase Two Order, as outlined above). 

Museums/Zoos/Aquariums

The following children’s museum activities are not included in this phase:

  • Hands-on (tactile) exhibits;
  • Birthday parties; and
  • Unsupervised food service.

Occupant Capacity

  • The maximum building capacity during the Phase Two period is limited to 50 percent of the building or fenced-in outdoor area.
  • This may be determined by 1 person per every 55 gross square feet; or 50 percent of the posted capacity by order of the State Fire Marshal.

Seating Arrangements

  • Seating, if provided shall be assigned so that a minimum of 6 feet of distance between individuals and small groups is maintained.

Prohibitions/Limitations

  • Groups shall not exceed 10 people and should be limited to persons who are members of the same household.
  • Employee area capacity should be reduced to allow for 6-foot distancing between employees.
  • Interior waiting areas shall be limited to the maximum number of persons that will allow for a 6-foot distance to be maintained between unrelated small groups. Waiting may be provided outside of the facility while following social distancing guidelines or persons shall wait in cars. Scheduled, ticketed attendance should be strongly encouraged.
  • Physical contact between employees and customers is not allowed.
  • Gatherings in the building while entering, exiting, or moving about is not allowed.
  • Hands-on activities are not allowed.
  • Group tours are not allowed.

Shopping Malls and Retail Stores

Enclosed shopping mall building owners or managers shall submit a reopening plan to the State Fire Marshal prior to opening under the Phase Two guidelines. The plan shall specifically identify the method of ensuring compliance with the “Occupant Capacity and Building Safety Rules,” management and staff requirements, and the cleaning requirements for the mall building that are outlined
here.

  • Retail stores (and other tenant spaces allowed to open during Phase Two) that are located within the mall building may reopen once the reopening plan is approved.
  • Retail stores with exterior entrances may open under the conditions in the Open Safely guidance for Shopping Malls and Retail Stores.
  • Food courts may open and operate in accordance with the Restaurants, Cafes, and Coffee Shops guidance which is outlined above and can also be found here

Occupant Capacity

  • The maximum capacity is limited to 50 percent of the total capacity of the mall building and 50 percent of the total capacity of each individual retail store, determined by::
    • One person per 60 square feet of the mall building area;
    • One person per 60 square feet of individual retail store area; or
    • 50 percent of the posted capacities by order of State Fire Marshal.[9]

Seating Arrangements

  • Seating areas and food court seating areas may operate under the guidance provided for Restaurants, Cafes, and Coffee Shops, using the Option 3 seating arrangements.

Prohibitions/Limitations

  • Common areas used for congregations and gatherings may open to the extent that will allow for a 6-foot distance to be maintained between unrelated small groups.
  • Interior waiting areas may open to the extent that will allow for a 6-foot distance to be maintained between unrelated small groups. Waiting may be provided outside of the facility while following social distancing guidelines or shall be in cars.

Open Safely also provides Phase Two Guidance for the following categories of businesses and/or facilities, which can be accessed here:

  • Places of Worship
  • Libraries
  • Businesses and Organizations
  • Fitness Centers
  • Salons, Barber Shops and Tanning
  • Tattoo, Massage, Esthetician
  • Outdoor Sports, Racing
  • Outdoor play centers/Playgrounds

Additionally, Open Safely includes checklists for management and staff, face covering guidance, steps for cleaning, and a sample seating layouts.  Businesses should follow the CDC guidance for proper cleaning and disinfecting here.

Louisiana ATC Phase Two Guidelines for Alcohol Permit Holders

On June 5, 2020, the Louisiana Office of Alcohol and Tobacco Control (“state ATC”) published Phase Two guidelines for all permit holders, including specific guidelines for restaurants, cafes, bars, nightclubs, and breweries. The guidance reiterates the requirements set forth in the Governor’s Phase Two Order, but the following clarifications are worth noting:

Alcohol delivery may continue in accordance with the law. Only businesses holding a valid alcohol delivery permit may delivery alcoholic beverages in conjunction with food. The ATC delivery guidance issued on March 17, 2020 remains in full effect until further notice.

Restaurants, cafes, and bars with LDH food permits, while now allowed to operate dine-in services at 50 percent capacity, may still continue to offer curbside or to-go services of food and sealed containers of beer, wine, and frozen specialty drinks. The sale of mixed cocktails to-go is prohibited.


Bars, nightclubs, and breweries without LDH food permits may open at 25 percent capacity with moderate social distancing requirements, but customers must remain seated at tables and not congregate in open areas of the establishment. (The Louisiana SFM has suggested that “bar games” – darts, corn hole, etc. – are permissible if social distancing is observed.)

The full ATC Notice and Open Safely guidelines can be found
here.

Guidelines for businesses in New Orleans continuing under Phase One

Outdoor Seating

As of May 18, 2020, the city has temporarily suspended enforcement of off-street parking requirements thru September 30, 2020 for restaurants and bars with LDH food service permits, meaning food service establishments can use private parking areas for outdoor seating without a separate permit, as long as the land used is privately owned or leased by the establishment.

The city will also issue temporary Sidewalk Use Permits (valid thru September 30, with no permit or use fees) in order to provide additional outdoor seating that is properly socially distanced.

These outdoor and sidewalk seating areas must still meet all ADA, SFM and legal requirements.

The state ATC will not require notice by New Orleans businesses who choose to obtain a temporary Sidewalk Use Permit with the city to expand outdoor seating.

ABO Permit Expiration and Renewal Filing Deadline Extended

The city has extended the deadline to file renewal applications for ABO permits to June 30. Current ABO permits are now valid until July 31.

The ATC has extended the deadline to renew state permits for Orleans Parish to June 30.

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] New Orleans Mayor Cantrell announced on Monday, June 1, 2020, that New Orleans would not be entering Phase Two with the rest of the state on June 5, 2020. Mayor Cantrell gave some indication that Phase One restrictions may be loosened for New Orleans once the state entered Phase Two, but to date, no further guidance has been issued. Accordingly, New Orleans businesses should continue to operate as they have under Phase One. Guidance for New Orleans businesses is included at the end of this article.
[2] The June 1, 2020 press release from the Office of the Governor specifies that arcades and trampoline parks may open under approved plans by the State Fire Marshal, but the language in the June 4, 2020 Phase Two Order provides that “any business” remaining closed under the Order may submit reopening plans.
[3] Nonessential Businesses allowed to operate under Phase One include restaurants, cafes, coffee shops, bars and breweries with LDH food permits; gyms and fitness centers; barber and beauty shops, hair and nail salons; movie theaters; casinos and racetracks (not open to spectators); museums, zoos and aquariums (no tactile exhibits).
[4] As under Phase One, casinos and video poker establishments must have approved reopening plans, including plans to use physical barriers, from the Louisiana Gaming Control Board prior to reopening. Likewise, racetracks must have approved reopening plans from the Louisiana Racing Commission prior to reopening.
[5] The June 1, 2020 press release from the Office of the Governor lists skating rinks with pool halls and bowling alleys as a category of businesses that can open under Phase Two.
[6] See note 2, supra.
[7] New Orleans originally limited movie theater capacity to 25 percent of permitted occupancy or 100 people, whichever is fewer and is continuing Phase One guidelines until further notice.
[8] Camps, day cares, and school groups which exceed 10 participants in one body of water shall be considered congregate recreational swimming and are therefore not included in Phase 2 guidelines.
[9] Shopping mall stores that are identified as “essential” or “critical” under the federal CISA guidelines are not subject to this 50 percent capacity restriction.

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