By Alcoholic Beverage Licensing and Related Enforcement Issues Practice Team
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

Taylor Porter recently provided an update regarding Louisiana Gov. Edwards’ announcement that the state would remain in Phase Two until at least July 24. Further, Gov. Edwards announced that Phase Two has been modified to mandate the wearing of face coverings in public places, to close on-premise sales and service at all bars (with or without food permits), and to limit indoor social gatherings to 50 people total.

On July 13, 2020, the Governor’s formal signed Order, Proclamation No. 89 JBE 2020 (the “modified Phase Two Order”), was released, along with additional guidance for businesses from the Louisiana Office of Alcohol and Tobacco Control (ATC) and Office of State Fire Marshal (SFM). The following highlights the updated guidelines and restrictions from each of these agencies under the modified Phase Two Order.

Louisiana Mask Mandate under modified Phase Two Order

Every individual in the state must wear a face covering over the nose and mouth when inside a commercial establishment or any other building or space open to the public, whether indoor or outdoor, including public or commercial modes of transportation. This requirement does not apply to the following:

• Any individual who will not come in contact with any other individual (outside of the individual’s immediate household members) or who will be able to maintain strict social distancing of six (6) feet apart from any such individual;
• Any child under the age of 8; however, all children between the ages of 2 and 7 years old are strongly encouraged to wear a face covering;
• Any individual with a medical condition that prevents the wearing of a face covering;
• Any individual who is consuming food or drinks;
• Any individual seeking to communicate with someone who is hearing impaired;
• Any individual giving a speech for broadcast or to an audience; and
• Any individual temporarily removing his or her face covering for identification purposes.

Additionally, all businesses or organizations, including all offices of the State of Louisiana, its political subdivisions and all other government offices, shall require all persons who enter the premises to wear a face covering, unless:

• The individual is exempted for one of the above-listed reasons; or
• The business or organization is located in a parish that has opted out of the face covering requirements.
  • A parish only qualifies to opt-out if the parish has less than 100 new positive cases of COVID-19 per 100,000 people in the parish for the immediate preceding two-week cumulative period, as determined by Louisiana Department of Health (LDH). The governing authority for the parish must send written notice to the Director of the Governor’s Office of Homeland Security and Emergency Preparedness.

Citations shall be written only to businesses or organizations, other than religious organizations, that fail to enforce the requirement to wear face coverings. Businesses and organizations that rely on the representations of their customers, patrons, or employees regarding whether those persons qualify for an exception to the face covering requirement, shall not be deemed in violation of the Order.

The complete Proclamation No. 89 JBE 2020 (Additional Phase 2 Mitigation Measures) can be found here.

Louisiana ATC Guidelines for Bars (Class AG permit holders) 

All bars or businesses holding a Class A – General permit, with or without a food service permit from Louisiana Department of Health (LDH), must close effective today, July 13, for on-premise consumption. This means:

• No persons, other than employees, shall be permitted inside the bar establishment.
• Inside and outside dine-in food services are prohibited.
• Class AG permit holders are allowed to offer curbside or drive-thru services, including alcoholic beverages.
  • Businesses may only offer via curbside services beer and wine in a sealed container, or specialty frozen alcoholic beverages in a container with lid.
  • The sale of single serving or mixed alcoholic drinks is prohibited (unless such sale can be made in compliance with the state and applicable local open container laws).

The ATC has stressed that “curbside” means “curbside.” Businesses may not allow customers to enter the premise, even simply to pick up orders. Further, the ATC has advised that businesses should ensure that customers maintain social distancing while waiting for pick-up orders.

The full ATC Phase Two Update notice for Bars can be found here.

Updated Open Safely Guidelines from the Office of State Fire Marshal

Face Covering Order

It is the responsibility of a business to ensure all employees and customers are wearing face coverings when on the premises. The SFM recommends the following course of action:

• First, ask any patron not wearing a face covering to put one on.
• If the customer refuses the request while on the premise, the business should ask that the individual leave the premise.
• If the individual refuses to leave, a trespass violation may be enforced.

Businesses that fail to remedy concerns raised over the wearing of face coverings are subject to citation and/or applicable licensure revocation.

Restaurants, Cafes and Coffee Shops, Bars, Nightclubs and Microbreweries

• Face coverings over the nose and mouth must be worn by every individual inside the establishment (i.e., both customers and employees), whether indoor or outdoor, except while consuming food or drinks.
• Maximum building capacity remains 50% of normal established capacity (determined as one person per 30 square feet of gross area), but:
  • Bar areas of restaurants are only to be used for seating/serving purposes and service must include food. Social gatherings shall not be allowed in bar areas.
  • Bars, microbreweries and microdistilleries shall not allow on-site consumption of any food or drinks. (See ATC guidance.)

Event Centers and Outdoor Event Venues

• Face coverings over the nose and mouth must be worn by every individual inside the establishment, whether indoor or outdoor.
• Maximum Capacity (including attendees and staff):
  • Indoor event centers shall be limited to a maximum of 50 persons or one (1) person per 30 square feet of net usable floor area, whichever is less.
  • Outdoor events shall be limited to no more than 50 person in any single outdoor space where individuals who are not immediate household members are unable to maintain strict social distancing of six (6) feet between others.
• Fixed seating shall be reduced to 50% of normal capacity or to 50 seats, whichever is less.
• A minimum of one (1) crowd manager shall be provided for every 50 attendees. Crowd managers must be properly trained to control social distancing, to enforce mask wearing, and in evacuation procedures.

Pool Halls, Bowling Alleys, Skating Rinks and Arcades

• Applies to facilities whether currently reopened or with plans to reopen.
• Businesses in this category must submit a proposed reopening plan for approval by the SFM prior to reopening.
• Face coverings over the nose and mouth must be worn by every individual inside the establishment, whether indoor or outdoor.
• The maximum building capacity for these facilities is the stricter of the following (including patrons and employees):
  • A maximum of one (1) person per 30 square feet of net usable floor area.
  • 50% of the occupant capacity where posted by order of SFM.
  • No more than 50 people in any single indoor space at one time.
  • Where multiple separate rooms are within the establishment, a maximum capacity for the overall building shall not exceed 250 persons.
• A minimum of one (1) crowd manager shall be provided for every 50 attendees. Crowd managers must be properly trained to control social distancing, to enforce mask wearing, and in evacuation procedures.
• Shared items such as bowling shoes, skates and pool cues must be thoroughly cleaned and disinfected between each customer use.
• Confined common use spaces such as jump houses, ball pits, etc. where distancing between individuals and small groups is not practical, or where surfaces are subject to frequent touching and cannot be regularly sanitized, shall remain closed during Phase 2.
• Food service areas, if any, must comply with the Phase 2 guidelines for Restaurants, Cafes and Coffee Shops.

Other Amusements

• Applies to facilities whether currently reopened or with plans to reopen.
• Businesses in this category must submit a proposed reopening plan for approval by the SFM prior to reopening.
• Face coverings over the nose and mouth must be worn by every individual inside the establishment, whether indoor or outdoor.
• The occupant capacity for any event or venue in this category is limited to the following (including patrons and employees) and by the ability to maintain a minimum of six (6) feet of social distance between individuals and small groups:
  • Outdoor events and venues such as amusement parks, theme parks, sports parks, fairs and festivals, and carnivals shall be limited to the stricter of the following
    • No more than 50 persons in any single outdoor space where individuals who are not immediate household members are unable to maintain strict social distancing of six (6) feet from others.
    • One (1) person per 30 square feet of net usable area within the fenced-in or contained area.
  • Indoor venues, such as circuses, trampoline parks, and concert and music halls shall be limited to the stricter of the following:
    • A maximum of 50 persons in any single indoor space at the same time.
    • One (1) person per 30 square feet of net usable floor area (net usable area excludes floor area used for displays or attractions).
    • No more than 50% of the normal capacity as established by the Life Safety Code for the specific use of each space, or as posted by order of the SFM.
    • Fixed seating shall be reduced to 50% of normal capacity, or to 50 seats, whichever is less. Seating shall be assigned in a manner that will allow for six (6) feet of separation between unrelated groups.
  • Amusement rides:
    • Open-air seating arrangements shall allow for six (6) feet of separation between unrelated groups.
    • Enclosed rides shall limit occupancy only to related small groups of no more than six (6) persons.
  • Outdoor waterparks, splash pads and water play venues:
    • Maximum of 50 persons where strict social distancing of six (6) feet between individuals who are not of the same household cannot be maintained, or one (1) person for every 60 square feet of available deck space within the aquatic venue, whichever is less (net usable area excludes water surface area and area of attractions or other adjacent buildings).
  • Children’s indoor play centers and playgrounds:
    • A maximum of 50 persons in any single indoor space at one time, or one (1) person per 30 square feet of net usable space within the designated area, whichever is less (net usable area excludes the area of play equipment or attractions).
    • Minors under the age of 15 must be accompanied by a parent or guardian of at least 18 years of age. The parent or guardian must remain inside the facility at all times and is included in the maximum allowed capacity.
• A minimum of one (1) crowd manager shall be provided for every 50 attendees. Crowd managers must be properly trained to control social distancing, to enforce mask wearing, and in evacuation procedures.
• Confined common use spaces such as jump houses, ball pits, etc. where distancing between individuals and small groups is not practical, or where surfaces are subject to frequent touching and cannot be regularly sanitized, shall remain closed during Phase 2.
• Waterparks, splash pads and water play venues must follow Phase 2 guidelines for Swimming Pools and Aquatic Venues.
• Food service areas, if any, must comply with the Phase 2 guidelines for Restaurants, Cafes and Coffee Shops.
• Seating shall not be allowed within six (6) feet of the attraction or water’s edge.
• Group seating should be limited to persons who are members of the same household.
• Allow a minimum of 20 feet between rides, attractions and game set-ups to allow for circulation.

All Open Safely guidelines can be found here.

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.

DISCLAIMER: This article is for general information purposes only. Information posted is not intended to be legal advice.