Yesterday, Governor Tom Wolf announced yet another modification of the terms by which restaurants and “bars” (more on those quotation marks in a minute) can operate under his “green” phase (I think that you can probably figure out the meaning behind those quotation marks). In addition to limiting indoor dining to 25% occupancy (great, but why not make it zero at this point?) and limiting indoor private events to a mere 25 people (wait, THAT’S still legal!?!), the order once again heroically targets the true villains of COVID-19, alcohol drinkers! Specifically, the order (the full text of which can be found here) states: “Alcohol only can be served for on-premises consumption when in the same transaction as a meal.”
If you are scouring the text of the full order to find the definitions of “meal” and “transaction” either before or after the ad damnum clause, I’ll save you the time — they’re not there.
Now, look: as it pertains to what we do, this modification doesn’t change much — we’re already firmly committed to outdoor-only eating and drinking. It’s just now, if you are going to join us for a drink, you’ll also have to get something to eat. Hopefully that won’t be too difficult, because we have great food and most of you already order something to eat when you join us anyways.
But there’s a bit of a “principle of the matter” issue here. And, lest you interpret my dripping contempt as an ill-conceived “don’t-tread-on-me” rant or think that we are lobbying for the ability to act irresponsibly, let me explain why this order misses the mark so badly and, more importantly, why missing the mark is so damn dangerous right now.
First, and most importantly, when a new regulation is so vaguely drafted that its loopholes or workarounds are more obvious than its intended prohibitions, it immediately becomes subject to abuse and impossible to enforce. What is a “meal?” When the order came down yesterday afternoon, one of our staff members aptly pointed out that we should invest in Utz stock, as the sale of bagged potato chips was about to go through the roof. Another wryly cried “the chips will stop the disease!” Their point is well taken. A “meal” will be a performative gesture in many establishments — something non-liquid and small that contains some amount of calories that is added to the tab so that a place can sell drinks. And the ambiguity of the word “transaction” will make it even easier to evade the presumed intent of this order. Does everyone at the table count in a “transaction?” So, if one person gets a “meal,” and pays the tab for a group of four, have we satisfied the meal and transaction requirement for the entire group? What if they order food to go but have a few drinks while they’re waiting? The food was part of that “transaction,” right? Frankly, based on the plain language of the order, I would argue that both of those situations satisfy the conditions of the law. But, other than helping us sell more food (thanks, Gov!) what have we really accomplished to mitigate the spread of COVID-19?
Second, let’s talk about the word “bars.” It’s trendy governance in the United States to blame the heinous surge of COVID-19 cases on “bars.” Forget the fact that federal, state, and local governments have been and remain embarrassingly behind on testing and contact tracing — it’s the bars! But, while the word “bar” may have some legal definition in many states, it does not in Pennsylvania. Food and beverage establishments do not choose to license as a “bar” or a “restaurant.” Instead, what you may colloquially consider to be a “bar” is almost certainly licensed as a “restaurant license” or a “hotel license” (or increasingly as a brewery, distillery, winery or storage facility). Ultimately Governor Wolf’s order applies the same restrictions to “bars” and “restaurants,” but beginning the order by restricting “bars,” a legal fiction in this Commonwealth, is telling. Who is he writing the order for? Certainly not Pennsylvanian enforcement agencies who scratched their heads when they saw the word “bar.” Perhaps, then, he is writing for a different audience. The headline of “Pennsylvania cracks down on bars” certainly fits the same narrative that other governors who opened their states too quickly are crafting for their own political cover. And Pennsylvania’s surge is even more embarrassing for a democrat who can’t help but boast in every press conference of his achievements in reopening Pennsylvania’s economy while keeping the virus in decline. If Wolf’s intention is to out-Cuomo Cuomo, he should know that Cuomo is not easily out Cuomoed. And now isn’t the time to waste time crafting policies that do very little but provide personal political cover.
And there are many other fine points that will put us and our staff in a weird spot. I doubt that Governor Wolf has ever worked in a restaurant, but if he had, he would realize that most people sit down, order a drink, and look at the menu. He would also realize that there are some people who will scan the menu, not find anything to their liking, and leave after their first drink. Can we let them? Must we chain them to their chair until they take a bite of food?
If you are at this point wondering why I have devoted another of my tireless screeds to denouncing a policy that is easily avoidable and doesn’t really change much of what we do, here’s why this all matters and why we personally care: enforcement. If we have any chance of avoiding another complete shut down, all establishments need to maintain safety protocols. The rules mean absolutely nothing if we don’t bother making people follow them. And we haven’t been.
Since July 1, the PLCB reportedly has investigated 6500 complaints of licensees. They issued 98 warnings and not a single citation. And I don’t blame them. The laws aren’t particularly artful. Moreover even the most jaded State Trooper certainly has a soft spot in her heart for struggling small businesses, and no one wants to be bring the final hammer down on a mom & pop that has been absolutely decimated by our flailing and incoherent response to COVID-19.
The addition of odder, vaguer, and more arbitrary rules will not ameliorate our enforcement issues. It will make them worse. We will force the food and beverage industry to jump through another set of hoops, to reset its aim once again on a constantly moving target, and it will cause more of us to fail. All the while, we never even bothered to enforce the first, most important, and really straight-forward requirement — occupancy (it’s easy — you, like, count the number of people in a place).
Governor Wolf, if you want to out-Cuomo Cuomo, you need smarter, stronger policies — not political performance art, which is exactly what this order is — and you need to enforce the reasonable policies you already have. If you want to keep Pennsylvania in the poorly-named “green” phase, the intellectually honest path forward is not to keep changing what it means to be green. It’s following your own plan and constantly monitoring the reproductive rate of the virus, then moving appropriate counties back to yellow or red when the virus is spreading from one person to more than one person (i.e., to use epidemiologist speak, when the R0 is above 1.0). It’s testing the hell out of your population, and quickly containing infected people and exposed people through lightning fast contact tracing (perhaps, we could temporarily use our alcohol tax contributions to fund more testing and contact tracing in Allegheny County).
That approach is the one the Germans are taking. It works. They had 276 new cases yesterday in a country of 80 Million people. Allegheny County added 246 new cases in a county of 1.2 Million people.
And in Germany, you can walk into any bar, restaurant, biergarten or bierhalle, and have a beer (if you want some bratwurst, that’s your decision).
