Insurgent restaurant house owners: Why some Pa. institutions are defying COVID orders
Rick Voight is taking the coronavirus pandemic seriously, so when he recently stopped at a Carlisle-area diner for a quick takeout lunch, he was surprised by what he encountered.
Inside the restaurant, the East Pennsboro Township man said a majority of customers and staff were not wearing masks, including kitchen staff. About five to six mask-less customers huddled around a cash register to pay their bills.
“These people were totally oblivious, and as we are standing there, not a blessed one of those people had any protective covering,” Voight said. “I felt uncomfortable, to be honest with you.”
What Voight said bothers him the most is how establishments violate orders and seemingly get away with it. He understands restaurants want to stay open but questions if it’s worth ignoring the rules to put the health of customers in jeopardy.
“There has to be a degree of punishment like fines. You hit people in their pocketbooks,” Voight said.
Across Pennsylvania, concerns by residents like Voight are bringing to light questions about how much teeth Gov. Wolf’s COVID mandates hold, especially as some restaurants adhere to guidelines while a handful blatantly defy orders. Some restaurant owners say they are fed up with the state’s changing guidance.
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Since March, Pennsylvania’s restaurant industry has faced a roller coaster of orders including reduced occupancy levels, an 11 p.m. booze sales cutoff, ban on bar seating and social distancing.
In November, restaurants and bars were ordered to close early on one of the biggest bar nights of the year, the day before Thanksgiving Day. Then in December, Wolf banned indoor dining for three weeks over the usually lucrative holiday season.
Officials stress only a handful of owners in the state are ignoring orders, some publicly flouting the fact and others taking a quieter, less passive stance. Reasons vary from political motives to survival as a means to pay employees.
“There are some places open 100% and they had just had enough,” said Dave Christensen, a retired liquor control enforcement officer who now consults restaurants in Pennsylvania. “They say I need to make money. I need to open up.”
“If they don’t, they’ll go belly up, that’s why,” Christensen added.
So far, penalties and fines have done little to deter some business owners. Obviously, restaurants such as diners and pizza shops operating without liquor licenses have less on the line to lose, compared to their counterparts with licenses which can be revoked.
“It’s actually unconstitutional, it’s illegal. We aren’t breaking any laws, these are just mandates,” said Mike Mangano, assistant manager of his family’s Taste of Sicily restaurant in Palmyra.
Wolf has been sympathetic to the restaurant industry but has stressed the mitigation efforts are designed to slow the spread of the virus and eliminate strains on the health care system. In late December, he said the temporary dine-in ban, though admittedly painful, was necessary in light of a sharp rise in coronavirus cases and hospitalizations.
At the time, new daily coronavirus case count were spiking at about 10,000 per day. Over the past week, new cases have ranged from 3,000 to 5,000.
While Wolf has faced criticism by some, the state’s response has been praised by some health officials including former White House coronavirus response coordinator Deborah Birx.
“I never give anyone an A, but I think they’re close to a B-plus, A-minus range, a really terrific job,” she said last fall.
A web of state agencies oversees enforcement. The Pennsylvania Department of Agriculture handles retail food inspections, while State Police Bureau of Liquor Control Enforcement deals with the liquor code and the Pennsylvania Department of Health with pubic safety.
Local authorities also play a role. Yet at the same time, several county district attorneys have said they won’t take immediate action on businesses that defy the governor’s orders. Dauphin County District Attorney Fran Chardo said in May prosecution would only occur in extreme circumstances.
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The Department of Agriculture has cracked down on dozens of establishments, publishing weekly reports listing closure notices associated with lack of mask use to breaking occupancy rules. The Department of Health, has filed injunctions in Commonwealth Court against at least 50 restaurants.
Meanwhile, since July liquor enforcement officers have conducted 72,000 compliance checks and issued 2,244 warnings and 702 notices of violation to noncompliant businesses. If a business repeatedly ignores orders, it faces fines, court appearances and possible closure or liquor license suspension.
“What I can tell you is there is much discussion and varying degrees of enforcement taking place and it’s not consistent,” said Theodore J. Zeller III, an Allentown attorney specializing in liquor law.
‘We need to make a living’
At Tony’s Pizzeria in Highspire, co-owner Krista Koons-Barone recently taped a sign to the front door: “MASKS. Cause Daddy Wolf says I need this sign on my door!”
“I’m just tired of him every week, every other week making some new rule or mandate,” Koons-Barone said about Wolf. “I just feel it’s a game, it’s a joke for him. It’s just tiresome. It’s overwhelming. It’s just frustrating.”
Koons-Barone said she’s willing to take the risk and remain open despite receiving two closure placards from the Department of Agriculture, one for violating the December temporary indoor dining ban and another for breaking dine-in occupancy limits.
Owners like Koons-Barone say they are taking a stand because they fear the restrictions and lack of financial help will push them to permanently lock their doors. They believe the industry has been unfairly singled out and question how big box stores and supermarkets are permitted to operate with fewer restrictions.
Health experts say exposure in retail stores is often less than 15 minutes and shoppers wear masks, whereas diners sit for extended periods of time to eat meals.
In Pennsylvania, about 45% of restaurant owners indicated in a recent survey it is unlikely they will still be in business in 60 days if there is no relief in sight, according to the Pennsylvania Restaurant & Lodging Association. Struggling restaurant owners in the state have emphasized the need for reforms and financial assistance.
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Tony’s Pizzeria was also flagged for lack of mask use and mandatory signage requesting customers to wear masks. Koons-Barone, who doesn’t have an attorney, said they received court orders and she is awaiting a court date.
She said tables in the restaurant are spaced six feet apart and she sanitizes more than big box stores do.
“I literally feel like I’m being harassed by them,” Koons-Barone said. “I’m a very small establishment. It’s not like Hersheypark where thousands of people run through here every day.”
Shannon Powers, spokeswoman for the Department of Agriculture, said establishments found out of compliance have the opportunity to fix the problem on the spot. However, even when given the chance, Powers said not every establishment is willing to comply.
The department’s health inspectors oversee COVID-19 mitigation at retail food establishments across the state, with exception to 140 municipalities and six counties that have their own health inspectors. Some visits are part of regular inspections, others are complaint-driven.
A Pennsylvania COVID Inspection Dashboard, searchable by city, county and zip code, lists whether restaurants have faced violations.
“There are certainly businesses that are disregarding the mitigation orders in place, despite being ordered to close,” Powers said.
Some are paying the price. Recently, the Crack’d Egg restaurant in Brentwood outside of Pittsburgh followed a judge’s ruling to close after it repeatedly defied orders to enforce mask wearing. Allegheny County Common Pleas Judge John McVay ruled in favor of the county, saying its health department and the governor’s orders are constitutional.
Owner Kimberly Waigand has said she will continue to fight. A “Free the Egg” GoFundMe page has been created to raise money to help Waigand and husband, Donald, pay for legal expenses.
“We’re going to keep up the good fight,” Waigand said on a Facebook post. “It is not over.”
One of the most outspoken restaurants, Taste of Sicily, is operating with two closure notices for defying the state’s temporary indoor dining ban. It is open at 100% occupancy and ignoring the state’s mask mandate and social distancing.
“It’s very simple, because we need to make a living, we need to pay our bills,” Mangano said.
Last May, the restaurant gained notoriety when it reopened its dining room during the state’s “yellow phase.” While they have been criticized by some for their extreme stance, the owners have been outspoken about defying the state’s orders, sharing updates on the restaurant’s Facebook page to more than 29,000 followers.
Mangano said business at the 2-year-old restaurant has been good and they are weighing future expansion plans. People view them as an inspiration, he said, for taking a stand against “a tyrannical governor who has taken his power and what he can do to the extreme.”
Mangano said they are working with an attorney and don’t plan to pay any fines. After receiving citations for violating the governor’s orders, the owners went to court last fall where Magisterial District Judge Carl Garver said Taste of Sicily was unconstitutionally cited and didn’t have to pay fines.
The family encourages other Pennsylvania restaurants to copy what they are doing, mainly remain open at 100% and be polite to public servants when they come in to fine or serve paperwork, Mangano said. Some restaurant owners listen, but Mangano admitted the majority are not as bold.
“It’s unfortunate that your average everyday American and moreso your businesses don’t know their rights, and that is a sin and a shame,” Mangano added.
It’s too early to know what the legal ramifications could be for restaurants who fight COVID-19 guidance.
When clients ask Christensen if they should open at 100%, he explains the consequences and leaves the decision to them. In his opinion, the state’s mandates don’t have much teeth because they are mandates, not law. In fact he said when a licensee is cited, the paperwork reads “mask mandate” and doesn’t provide a code number because it’s not the law.
“The more the licensees fight it and the more licenses that win the more the state will say, ‘I can’t do this anymore.’ Good court decisions in favor of licensees is what we need,” he said.
However, the establishments he consults – ones with liquor licenses – have more to lose than non-licensed food businesses. The licenses come at a price, some on the high end for as much as $500,000 or more.
Zeller, the attorney, said it’s going to take time to play out as cases move through the court system.
Last fall, a federal judge ruled that several actions taken by Wolf early in the coronavirus pandemic were unconstitutional. Pittsburgh-based U.S. District Judge William S. Stickman IV found Wolf’s stay-at-home and business closure orders, along with restrictions limiting indoor and outdoor gatherings, to be unconstitutional.
Now the administration is appealing the ruling, which means it heads to the U.S. Court of Appeals for the Third Circuit and inevitably could land in the U.S. Supreme Court.
Zeller noted many legal inconsistencies related to COVID mandates stem from the fact restaurants have differing views on their civic duties, while enforcement agents struggle with what they are supposed to enforce and not enforce.
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If anything, he suggested constitutional challenges against the governor’s orders have not been adjudicated. Those could focus on the governor’s powers and rational basis for getting rid of a bar stool and not a restaurant seat, cutting off bar service at 11 p.m. and the idea food is required with purchase of alcoholic beverages, Zeller said.
“It has created wide ranging emotions and actions across the commonwealth,” he said.
Some businesses are following a philosophy they are part of the community and need to do what’s best for everyone in order to be safe, Zeller said. On the other hand, he noted are the owners who insist the mandates are unconstitutional and they don’t have to follow them.
“For every person who is loud and proud about those orders, there are three or four who are quietly happy,” he said.
Chuck Moran, executive director of the Pennsylvania Licensed Beverage and Tavern Association, agrees the majority of the state’s restaurant and bar owners are following orders. Many of those who aren’t seem to have a political agenda, he noted.
“I’ve gotten on some of these Facebook posts and to me it looks like it is very politicized. Who knows what will happen in the months moving forward as we move away from the Trump years into the Biden years,” Moran said.
Moran said the association is educating its members about the consequences related to defying the orders, including potential loss of licenses.
State Police spokesman Ryan Tarkowski said the Pennsylvania Liquor Control Board is informed of violations and, depending on the infraction, could suspend an establishment’s liquor license. Further enforcement, he added, could put the business’s license at risk.
During a recent House Commerce Committee meeting, John Longstreet, president and CEO of the Pennsylvania Restaurant & Lodging Association, said 95 percent of restaurants have tried to follow guidance from the governor and Centers for Disease Control and Prevention. Longstreet noted they are out of business if they make someone sick.
He also noted that daily updates on the association’s website provide information on everything from proposed legislation to help restaurants to grants and reopening guidelines.
“Remember, restaurants have been in the business of serving people safely as long as food as been served. They already have more sanitation requirements on them than any retail business out there,” he said.
There is no excuse for restaurants to ignore safety protocols such as mask wearing, Longstreet said, adding he views other mandates such as the indoor dining ban differently. In those cases, he said financially strapped owners and employees say they have no choice.
“The people really hurt by the governor’s order are front of the house employees – bartenders, waiters and hosts. They all of a sudden have no income and most of their income comes from tips anyway,” he said.
Recognizing his employees needed paychecks over the holidays, Shelby Reitz, co-owner of 230 Cafe in Highspire, said they defied the indoor dining ban. Doing so resulted in an injunction notice from the state.
However, after informing the Department of Agriculture the cafe has switched to takeout only, Reitz said they received another letter informing them the case had been dismissed. Reitz said fatigue is setting in for the industry.
“Honestly, I think we are all over it and moving forward and doing what we need to do,” he said.
Unfortunately, Longstreet admitted the mandates do create an uneven playing field, and he’s sympathetic to those who are at a disadvantage.
“I don’t blame those people for being upset with the guys who remained open,” he said.
Angelo Karagiannis, owner of Zembie’s Tavern in Harrisburg, expressed his frustration over having to shut down the bar’s dining room in December. Some of his employees who complained it was unfair they were unable to make money, while competitors abandoned the governor’s orders.
For Karagiannis, the decision boiled down to protecting his liquor license, even as he watched regular customers go to other establishments. Some of the mandates and enforcement haven’t always been straightforward, he said.
He questions how a four-sided tent passes as outdoor dining or why a bar following safety protocols has to close at midnight. Still, he said he can’t be too upset by some of the industry reaction.
“I admire them because they did what they did. I don’t think they should lose their license for what they did or get slapped with fines,” Karagiannis said. “But there should be some kind of penalty.”