The governmental orders by layer
Between March 2020 and September 2021 a restaurant, bar, caterer or food-service operator in the United States operated inside five layers of orders: the federal layer (the national and public health emergencies as predicates, the Defense Production Act orders on the food supply, the entry and border orders, the conveyance order and the OSHA emphasis program); the fifty-one State-level regimes that closed, capped, timed and conditioned on-premises service; the metropolitan orders of mayors, county judges and health officers that closed earlier, reopened later and re-tightened sooner than the States; the sector regulators, above all the alcoholic-beverage regulators and the labor and workplace-safety agencies, whose instruments were license and workplace conditions on the revenue functions; and the counterparty orders on suppliers, customers, venues, schools, transit and courts. Beneath all five lay the standing duties of statute and rule that bound every operator whether or not an order named it, set out in this section as the standing duties. This section identifies each layer by instrument, date and exhibit; the quarters section places the instruments in the six quarters; the Library indexes them.
The scale of the orders is stated here in the units of the public sources and not as a count of the instruments relied on. The Centers for Disease Control and Prevention reported that "[d]uring March 1-May 31, 42 states and territories issued mandatory stay-at-home orders, affecting 2,355 (73%) of 3,233 U.S. counties," and that "[m]ost jurisdictions issued multiple orders during the observation period."9 Ballotpedia, relying on Council of State Governments data, counted 2,065 executive orders of governors and State agencies between February 2020 and June 29, 2020, excluding county and city orders.10 The Department of Health and Human Services' State and county policy-order dataset records 4,218 policy-order entries between March 23, 2020 and August 31, 2021, a count of coded policy actions rather than of distinct orders.11 The COVID Analysis and Mapping of Policies project catalogued more than 20,000 policy measures at the United States national and State level between January 2020 and June 2022 and reported that "[a]mong U.S. state and national policies, 95% were issued prior to November 23, 2021."12 On July 2, 2021, thirty-five States had emergency declarations in force and nine had statewide face-covering requirements in force, airborne-transmission controls on every indoor public setting; on September 21, 2021, twenty-five and eleven.13 The Bureau of Economic Analysis attributed the second-quarter 2020 collapse of gross domestic product to "the response to COVID-19, as 'stay-at-home' orders issued in March and April were partially lifted in some areas of the country in May and June," and the Comptroller General attributed the same collapse to "stay-at-home orders" by name.14 The Library's own counts are stated on the scale page as what they are, instruments indexed by The COVID Project, and not as a measure of the orders that existed.
The federal layer
The federal layer fixed the predicates on which every State and local emergency power rested, governed the industry's food supply, its imported inputs, its travelling customers and its commuting workforce, put its two NAICS codes under programmed inspection from March 12, 2021, and kept several of its instruments in force on every day of the third quarter of 2021; the closure of the dining room itself was the work of the States and the cities, whose instruments follow.
The predicates
The Secretary of Health and Human Services determined on January 31, 2020 that a public health emergency existed nationwide and renewed the determination through the period, on July 19, 2021 "effective July 20, 2021," and again October 15, 2021.15 The President declared a national emergency by Proclamation 9994 on March 13, 2020 and continued it on February 24, 2021: "the national emergency declared on March 13, 2020, and beginning March 1, 2020, must continue in effect beyond March 1, 2021."16 Neither declaration is relied on as an order limiting commerce; each is the predicate that authorized the binding instruments and each is a public record that the Service's letters do not mention.
The orders of 2020
The Families First Coronavirus Response Act required every employer of fewer than 500 employees, which is nearly every restaurant, to provide paid sick time from April 1 through December 31, 2020 to any employee "subject to a Federal, State, or local quarantine or isolation order related to COVID-19" or "caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed" (WF, HR).17 Executive Order 13909 of March 18, 2020 invoked the Defense Production Act for health and medical resources, and Executive Order 13917 of April 28, 2020 delegated the Act's allocation power over "meat and poultry in the food supply chain" and directed the Secretary of Agriculture "to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA" (KT).18 The entry proclamations suspended the entry of non-citizens from China, Iran, the Schengen Area, the United Kingdom, Ireland and Brazil from January through May 2020 and remained in force, consolidated and extended by Proclamation 10143 of January 25, 2021 and Proclamation 10199 of April 30, 2021, until Proclamation 10294 revoked them effective November 8, 2021 (CB).19 The Department of Homeland Security limited land-border crossings from Canada and Mexico to essential travel from March 21, 2020 by monthly notices, renewed on June 23, July 22, August 23 and September 22, 2021 (Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257), the June notice "in effect at 12 a.m. Eastern Daylight Time (EDT) on June 22, 2021 and ... until 11:59 p.m. EDT on July 21, 2021, unless amended or rescinded," and, for vaccinated travelers only, lifted November 8, 2021 (CB, KT).20 The CDC's residential eviction moratorium ran from September 4, 2020, was extended to July 31, 2021, and was re-imposed for high-transmission counties from August 3, 2021 (WF, CB).21
The orders of 2021
On January 29, 2021 the CDC ordered that "[p]ersons must wear masks over the mouth and nose when traveling on conveyances into and within the United States" and that "[a] conveyance operator transporting persons into and within the United States must require all persons onboard to wear masks for the duration of travel," effective 11:59 p.m. February 1, 2021 and in force through the third quarter of 2021; the Transportation Security Administration enforced it on every bus, rail and transit operator by Security Directive 1582/84-21-01, superseded by -01A (effective May 12, expiring September 13, 2021) and -01B (announced by the Administration August 20, 2021; effective September 14, 2021, to January 18, 2022), and on every airport by Security Directive 1542-21-01, which required that "authorized representatives, tenants, and vendors wear a mask at all times in or on the airport," the airport concessionaire being such a tenant; the order and its directives are an airborne-transmission control imposed on every conveyance and transportation hub, on operators, employees, tenants, vendors and passengers alike, and carried by the operator's duty to require compliance and the airport operator's duty to ensure it (WF, TO, CB).22 By its amended order of January 25, 2021, effective January 26, the CDC prohibited "the introduction into the United States of any aircraft passenger departing from any foreign country" without a negative pre-departure test or documentation of recovery (CB).23 On March 12, 2021 OSHA issued a National Emphasis Program whose targeted-industry appendix lists "722511 Full-Service Restaurants" and "722513 Limited-Service Restaurants," and on July 7, 2021 it revised and re-issued the program with the same two codes, "effective for no more than 12 months from the effective date" (HR, OP, DR, KT).24 On June 21, 2021 OSHA published the COVID-19 Healthcare Emergency Temporary Standard, which governs the hospitals, nursing homes and home-health agencies that are the industry's institutional food-service customers and its counterparties (BQ, KT).25 On March 11, 2021 Congress enacted section 3134.26
The fifty States
Every State and the District of Columbia closed on-premises food and beverage service between March 15 and April 6, 2020, forty-nine States and the District by statewide order and South Dakota by municipal ordinance under the Governor's employer directive (Ex. SD-009); every State reopened it only in steps, at fixed percentages of the fire-code occupant load, under mandatory spacing, party-size, hours and seated-service conditions and under the workplace infection-prevention and exposure-control requirements (screening, sanitation and face coverings) that the reopening orders attached to every dining room; twenty-odd States re-closed or re-capped indoor dining in the winter of 2020-21; the statewide caps ended between May 13, 2020 (Wisconsin, by judicial decision) and December 1, 2021 (Hawaii), with Rhode Island's dining rules running to August 31, 2021; and in the third quarter of 2021 the States of the Pacific and the Northeast, and the largest cities of the South and Midwest, reinstated indoor face coverings, an airborne-transmission control on staff and patrons alike, and conditioned entry on vaccination. Each State's page in the Library carries its full row with exhibit numbers; this section names the lead instruments by region.
The Northeast
New York ordered every restaurant and bar to "cease serving patrons food or beverage on-premises" at 8:00 p.m. on March 16, 2020, permitted outdoor dining in Phase Two regions from June 4-8 and indoor dining at 50 percent outside New York City from June 12, kept indoor dining in the City closed until September 30, 2020 and then capped it at 25 percent, required alcohol to be served only with food from July 17, 2020, imposed a 10:00 p.m. closing statewide from November 13, 2020, closed the City's indoor dining again from December 14, 2020 to February 12, 2021, stepped the City to 35, 50 and 75 percent between February 26 and May 7, 2021, ended the percentage caps May 19, 2021 and the indoor curfew May 31, and let the to-go alcohol privilege lapse June 25, 2021.27 New Jersey confined restaurants to takeout and delivery from 8:00 p.m. March 16, 2020 (EO 104 ¶ 9; EO 107 ¶ 8), permitted outdoor dining June 15 and indoor dining only from September 4, 2020 at 25 percent, seated only, kept bars closed with the dining rooms to September 4, 2020 and then barred bar seating until May 7, 2021 (EO 183, Ex. NJ-034; EO 194, Ex. NJ-037; EO 238, Ex. NJ-046), prohibited indoor service between 10:00 p.m. and 5:00 a.m. from November 12, 2020 (EO 194), stepped to 35 percent February 5 and 50 percent March 19, 2021, and ended its spacing rules and its public face-covering requirement, the last of its general exposure-control conditions, May 28, 2021, while its telework and worksite rules (EO 192, carried by EO 242 ¶¶ 2-3 and EO 243) ran into 2022.28 Pennsylvania closed dine-in service statewide March 16-19, 2020, reopened it at 50 percent in the green phase from May 29, cut it to 25 percent with "bar service is prohibited" from July 16, raised it to 50 percent with a self-certification and an 11:00 p.m. alcohol cutoff from September 21, closed indoor dining entirely from December 12, 2020 to January 4, 2021, restored bar service April 4, 2021 and ended the limits May 31, 2021 with its face-covering requirement, the last of its exposure-control conditions, running to June 28.29 Massachusetts prohibited on-premises consumption from March 17, 2020 (Order No. 5), permitted outdoor table service June 8 and indoor table service June 22 under mandatory sector rules, ordered every licensed premises to close "not later than 9:30 PM" with a nightly alcohol-sales ban from November 6, 2020 to January 25, 2021 (Order No. 53), capped seating at 25 percent from December 26, 2020 and 40 percent from February 8, 2021, and rescinded the orders May 29, 2021.30 Connecticut confined restaurants to takeout from 8:00 p.m. March 16, 2020 (EO 7D § 2), reopened outdoors May 20 and indoors at 50 percent June 17, imposed 50 percent, parties of eight and mandatory closing times from November 6, 2020 (EO 9K), barred alcohol without food continuously until 11:59 p.m. May 20, 2021 (EO 12B), and extended its remaining orders to September 30, 2021 by EO 13 with a face-covering requirement for unvaccinated persons indoors from August 5 (EO 13A), an airborne-transmission control placed on every indoor public setting.31 Rhode Island, Vermont, New Hampshire and Maine closed dining rooms March 16-18, 2020, reopened them in May and June at 50 percent or less, re-tightened in November 2020 (Rhode Island's Pause at 33 percent with bar areas closed; Vermont's 10:00 p.m. bar and social-club closure; Maine's 9:00 p.m. closing; New Hampshire's face-covering order, one of the exposure-control conditions of its winter regime), and ended their caps between May 7 and June 30, 2021, with Rhode Island's Department of Health dining rules in force to August 31, 2021.32
The South
Texas closed dine-in and bar service at 11:59 p.m. March 20, 2020 (GA-08), reopened restaurants at 25 percent May 1, 50 percent May 22 and 75 percent June 12, returned them to 50 percent and closed every bar on June 26, 2020 (GA-28 ¶¶ 6-7), permitted bars to reopen at 50 percent from October 14 only in counties whose judges opted in through the Alcoholic Beverage Commission and only outside high-hospitalization trauma service areas (GA-32), and lifted the limits March 10, 2021 (GA-34); its GA-38 of July 29, 2021 preempted local face-covering and vaccination mandates, and the Commission's own notices made the Governor's orders license conditions enforced by thirty- and sixty-day suspensions.33 Florida capped restaurants at 50 percent and closed bars deriving more than half their revenue from alcohol on March 17, 2020 (EO 20-68), suspended on-premises food consumption statewide March 20 (EO 20-71), reopened at 25 percent May 4 and 50 percent May 18 and June 5, closed bars again by the Department of Business and Professional Regulation's Emergency Order 2020-09 from June 26 to September 14, 2020, lifted State caps September 25, 2020 (EO 20-244) while barring local governments from going below 50 percent, suspended all local caps May 3, 2021 (EO 21-102), and from July 1, 2021 barred every business from requiring vaccination documentation of patrons (s. 381.00316).34 Georgia closed bars at noon March 24 and dine-in service at 6:00 p.m. April 3, 2020, reopened dine-in April 27 at ten patrons per 500 square feet under mandatory measures, reopened bars June 1 at 25 persons or 35 percent of capacity, carried "shall implement" measures for restaurants and bars in every order to June 30, 2021, and on August 19, 2021 suspended inconsistent local COVID-19 ordinances (EO 08.19.21.03).35 Louisiana confined restaurants to takeout and closed bars March 17, 2020 (30 JBE 2020), reopened dine-in at 25 percent May 15 and 50 percent June 5, closed every bar to on-premises consumption from July 13 to September 11, 2020 (89 JBE 2020), returned to Modified Phase 2 on November 25, 2020 with bars closed indoors and alcohol to 11:00 p.m. (168 JBE 2020), lifted capacity limits March 31, 2021 and all conditions May 26, 2021 (93 JBE 2021), and reinstated from August 4, 2021 the indoor face-covering requirement on every patron and staff member except while eating or drinking, an airborne-transmission control imposed on the dining room and the bar alike (137 JBE 2021, renewed to October 27).36 Maryland, Virginia, the District of Columbia, North Carolina, South Carolina, Kentucky, Tennessee, Alabama, Mississippi, Arkansas, Oklahoma, West Virginia and Delaware closed dining rooms between March 16 and March 25, 2020 (Mississippi's and Oklahoma's statewide closures following on April 3 and April 1 after county-level and ten-patron orders of March 24-25), reopened them between April 27 and June 22 at 25 to 50 percent, imposed alcohol cutoffs of 10:00 or 11:00 p.m. in the summer and autumn of 2020 (South Carolina's EO 2020-45, North Carolina's EO 153, Virginia's Sixth Amended EO 67, Maryland's November 20 order, Alabama's Emergency Rule 20-X-6-.20ER, Mississippi's EO 1511), closed indoor dining or imposed curfews in the winter (Kentucky's EO 2020-968 from November 20, North Carolina's EO 181 from December 11, Virginia's EO 72 from December 14, the District's Mayor's Order 2020-127 from December 23, Delaware's 10:00 p.m. closure from December 14), and ended their general restrictions between September 30, 2020 (Tennessee's seated-only rule) and June 11, 2021 (Kentucky, EO 2021-386, Ex. KY-049), with Virginia's ending May 28, 2021, Delaware's business duties running to 12:01 a.m. July 13, 2021 (through July 12) (Ex. DE-038; Ex. DE-040) and Maryland's alcohol authorizations to July 1, 2021.37
The Midwest
Illinois suspended on-premises consumption at 9:00 p.m. March 16, 2020 (EO 2020-07 § 1), reopened outdoors May 29 and indoors June 26 at parties of ten and 25 percent standing areas, closed bars and restaurants at 11:00 p.m. and then suspended indoor service region by region from August 18 to November 4, 2020, imposed Tier 3 statewide with no indoor consumption from November 20, 2020 to January 15-February 4, 2021, ended its limits June 11, 2021 and reinstated universal indoor face coverings August 30, 2021, with the employer's duty to enforce them on its staff (EO 2021-20; EO 2021-22), occupational-health and airborne-transmission controls on every indoor public place.38 Ohio closed restaurants and bars to carry-out and delivery at 9:00 p.m. March 15, 2020, reopened outdoors May 15 and indoors May 21 under the Dine Safe Ohio Order, cut off on-premises alcohol sales at 10:00 p.m. by Liquor Control Commission emergency Rule 80 from July 31 to November 29, 2020, imposed a 10:00 p.m. curfew from November 19, 2020 to February 11, 2021, and rescinded its orders June 2, 2021.39 Michigan closed dine-in service at 3:00 p.m. March 16, 2020 (EO 2020-9), reopened at 50 percent June 8, closed indoor bar service in establishments over 70 percent alcohol sales July 1 and statewide July 31, 2020, closed indoor dining under the Department of Health and Human Services' Gatherings and Face Mask Orders from November 18, 2020 to January 31, 2021, capped it at 25 and 50 percent with 10:00 and 11:00 p.m. closings through the spring, and ended the limits June 22, 2021.40 Minnesota closed on-premises service at 5:00 p.m. March 17, 2020 (EO 20-04), reopened outdoors June 1 and indoors at 50 percent June 10, closed all on-premises service from 11:59 p.m. November 20, 2020 (EO 20-99), permitted outdoor service only from December 18 (EO 20-103) and kept indoor service closed to January 10, 2021, reopened at 50 percent with a 10:00 p.m. close January 11, and lifted its limits May 27, 2021.41 Indiana, Iowa, Wisconsin, Missouri, Kansas, Nebraska, North Dakota and South Dakota closed or confined dining rooms between March 16 and April 6, 2020 (South Dakota by local ordinance and a statewide employer directive rather than a closure), reopened them in May and June at 50 percent with seated service and spacing, re-tightened in November 2020 (Iowa's 10:00 p.m. closure with its group-size and face-covering conditions, the exposure-control conditions of its November proclamation, Missouri's St. Louis County closure and Columbia curfew, Nebraska's six-foot and seated-service measures, North Dakota's 50 percent and 10:00 p.m. mandate), and ended their general restrictions between May 13, 2020 (Wisconsin, by judicial decision) and April 6, 2021 (Indiana), with Missouri's EO 20-05 on restaurant food sales running to August 27, 2021 and the Kansas City, St. Louis, Johnson County and Wyandotte County indoor face-covering orders of July and August 2021, airborne-transmission controls on every indoor place of public accommodation, carrying the region's third quarter.42
The West
California ordered every resident to stay home March 19, 2020 (EO N-33-20 with the State Public Health Officer's order), permitted dine-in service in variance counties from May 12, closed bars and indoor dining statewide on July 13, 2020 ("Bars, pubs, brewpubs, and breweries, whether operating indoors or outdoors, shall be closed across the state") and closed indoor gyms, worship, non-critical offices, personal care and malls in the thirty-two Monitoring List counties, placed every county on the Blueprint tiers from August 31 (Purple, outdoor dining only; Red, 25 percent indoors; bars closed in both), imposed a 10:00 p.m. curfew from November 21 and the Regional Stay at Home Order's takeout-only rule from December 6, 2020 to January 25, 2021, ran the tiers again to June 15, 2021, and from July 28, 2021 required face coverings of unvaccinated patrons and staff indoors and put every business to the choice of vaccination verification, self-attestation or universal masking, workplace infection-prevention and exposure-control requirements that stood beside Cal/OSHA's readopted emergency standard on every restaurant workplace.43 Washington prohibited on-site consumption March 16, 2020 (Proclamation 20-13), reopened at 50 percent in Phase 2 counties in June, closed bars to indoor service July 24-30, 2020, ordered that "Restaurants and Bars are closed for indoor dine-in service" from November 18, 2020 to January 11, 2021, capped indoor dining at 25 and then 50 percent with alcohol cutoffs to June 30, 2021, and ordered every patron and worker to wear a face covering indoors from August 23, 2021 (Secretary of Health Order 20-03.4), an airborne-transmission control that the Department of Labor and Industries made a rule of every workplace.44 Oregon prohibited on-premises consumption from 5:00 p.m. March 17, 2020 (EO 20-07), reopened county by county from May 15, ordered takeout only "inside or outside" from November 18 to December 2, 2020, prohibited indoor dining in its highest-tier counties from December 3, 2020 under EO 20-66, ended its framework June 30, 2021 (EO 21-15), and ordered face coverings indoors for staff and patrons from August 13, 2021 (OAR 333-019-1025), with the operator's duty to ensure compliance and to post the rule, an exposure-control requirement that Oregon OSHA renewed the same day in its workplace rule.45 Nevada prohibited dine-in service from 11:59 p.m. March 20, 2020 (Directive 003), reopened at 50 percent May 9, closed bars in Clark, Washoe and other counties from July 10 to August 20, 2020 (Directive 027), imposed the Statewide Pause at 25 percent with reservations and parties of four from November 24, 2020 (Directive 035), stepped to 35 and 50 percent in February and March 2021, and ordered universal indoor face coverings in substantial- and high-transmission counties from July 30, 2021 (Directive 047), an airborne-transmission control that Gaming Control Board Notice 2021-71 carried to every gaming licensee's bars and restaurants as a duty to ensure that employees, patrons and guests complied.46 Hawaii closed bars March 17 and confined restaurants to off-premises consumption from March 25, 2020, reopened under county tier orders through 2021, and on August 10, 2021 ordered that patrons "remain seated with their party" with six feet between groups, "No mingling," face coverings "except when actively eating or drinking" (the order's exposure-control conditions on every room) and, for the class that "includes bars, restaurants, gyms, and social establishments," that "indoor capacity is set at 50%," an order in force to November 12, 2021 and succeeded by EO 21-08 to December 1, 2021; Honolulu's Safe Access Oahu required proof of vaccination or a negative test for entry to every restaurant and bar from September 13, 2021.47 Colorado, Arizona, New Mexico, Utah, Idaho, Montana, Wyoming and Alaska closed dining rooms between March 17 and March 25, 2020, reopened them in May at 50 percent or less, re-tightened in November 2020 (Colorado's Level Red closing indoor dining on the Front Range from November 20; New Mexico's no-dine-in order of November 16 and Red-county closures from December 2; Arizona's continued sub-50-percent cap; Utah's 10:00 p.m. bar closures; Montana's 50 percent and 10:00 p.m. close; Wyoming's 10:00 p.m. closure; Anchorage's indoor-dining closure from December 1), and ended their general restrictions between May 22, 2020 (Alaska's State layer, Ex. AK-098; Anchorage's municipal orders ran to May 3, 2021, Ex. AK-079) and July 1, 2021 (New Mexico), with Montana's ending January 15, 2021, Colorado's alcohol-takeout order running to July 8, 2021, Arizona's outdoor-premises order running "until further notice," and New Mexico's universal indoor face-covering order returning August 20, 2021, an airborne-transmission control imposed beside its mandatory COVID-Safe Practices.48
The winter re-tightening and the 2021 transition
Between November 13 and December 23, 2020, indoor dining was closed by order in California, in four of its five regions under the Regional Stay at Home Order (Southern California and the San Joaquin Valley from 11:59 p.m. December 6, Greater Sacramento from December 10, the Bay Area from December 17, to January 25, 2021), after its 10:00 p.m. curfew from November 21, and in Washington, Oregon's highest-tier counties, Minnesota, Michigan, Illinois, New Mexico, Kentucky, Pennsylvania (December 12-January 4), New York City, Colorado's Front Range, Anchorage and St. Louis County, and curfews, alcohol cutoffs and reduced caps were imposed in Massachusetts, New Jersey, Connecticut, Rhode Island, Vermont, Maine, Maryland, Virginia, North Carolina, Ohio, Iowa, Nebraska, North Dakota, Utah, Montana, Wyoming, Arkansas, Delaware, Texas (GA-32's trauma-service-area rollbacks) and the District of Columbia; on January 4, 2021 the Kaiser Family Foundation counted seven States newly closed to indoor dining, twenty-two under new service limits and sixteen with bars closed.49 The transition out of the caps began in 2020 in the States whose statewide layers lapsed early (South Dakota, April 28; Wisconsin, May 13; North Dakota, May 22; Kansas, May 26; Florida, September 25; Tennessee, September 30), resumed in January and February 2021 (Montana, January 15; North Dakota, January 18; Nebraska, January 30; Iowa, February 7; Arkansas, February 26) and ran from March 2021 (South Carolina, March 1 and 5; Texas, March 10; Arizona, March 5 and 25; Mississippi, March 3; Oklahoma, March 12; Wyoming, March 16; Alabama, April 9; Georgia, April 8; Indiana, April 6; Colorado, April 16; West Virginia, April 20; Utah, May 4) through May (Florida's local caps, May 3; New Hampshire, May 7; North Carolina, May 14; Maryland, May 15; New York's caps, May 19; Connecticut, Delaware, Rhode Island and the District, May 20-21; Maine, May 24; Louisiana, May 26; Minnesota, May 27; Virginia and New Jersey, May 28; Massachusetts, May 29; Pennsylvania, May 31) to June (Ohio, June 2; Kentucky and Illinois, June 11; Vermont, June 14; California, June 15; Michigan, June 22; New York's to-go privilege, June 25; Oregon and Washington, June 30) and beyond (New Mexico's mandatory COVID-Safe Practices from July 1; Colorado's D 2020 011 to July 8; Delaware's business duties to 12:01 a.m. July 13; Washington's Liquor and Cannabis Board allowances to July 31; Massachusetts' outdoor allowances to August 15; Missouri's EO 20-05 to August 27; Rhode Island's dining rules to August 31; Hawaii to December 1, 2021).50
The preemption States
Texas (GA-38, July 29, 2021), Florida (EO 20-244's 50 percent floor from September 25, 2020; EO 21-102 and s. 252.38(4) from May 3, 2021; s. 381.00316 from July 1, 2021), Georgia (EO 08.19.21.03), Arizona (EO 2020-12 from March 23, 2020; EO 2021-06 from March 25, 2021, Ex. AZ-037; EO 2021-09 and EO 2021-18 on vaccination-proof and employee mandates, Ex. AZ-040; Ex. AZ-045), Iowa (HF 847 §§ 29-30, Ex. IA-046, on local face-covering rules; HF 889, Ex. IA-047, on vaccination proof), Montana (HB 702), North Dakota (HB 1465) and Utah (S.B. 195) limited local authority during 2021.51 In those States the third quarter of 2021 is carried by the federal layer, by the sector regulators (Texas SB 968 as a Commission permit condition; Florida's s. 381.00316 as a limitation on how a business may condition service), by the county and city orders issued notwithstanding preemption and litigated (Dallas County's August 11-16 orders; Bexar County's EO NW-21; Harris County's school order; Atlanta's and Savannah's July 26-28 orders), and by the counterparty orders on schools, courts, transit and health facilities.52
The largest metros
The largest cities closed dining rooms before their States did, reopened them later, re-tightened them sooner and, in August and September 2021, were the first to reinstate indoor face coverings, as an airborne-transmission control on staff and patrons, and to condition entry on vaccination. Each metro's page in the Library carries its row; the lead instruments follow.
New York City closed restaurants and bars to on-premises service by Emergency Executive Order No. 100 on March 16, 2020, required employers to reduce in-person workforces by 50 and then 100 percent (EEOs 102 and 103), created the Open Restaurants Program by EEO 126 on June 18, 2020 and kept it in force through the third quarter of 2021, ran travel checkpoints and a hotel quarantine rule from August 2020, and by EEO 225 on August 16, 2021 barred every covered entity from admitting any patron, employee or contractor "without displaying proof of vaccination," with penalties from September 13, 2021.53 Los Angeles County's Health Officer closed dining rooms March 16, 2020, suspended outdoor dining from November 25, 2020 to January 29, 2021, reinstated universal indoor face coverings from 11:59 p.m. July 17, 2021 ("this Order reinstates masking by all, regardless of vaccination status"), an airborne-transmission control on every indoor public setting, and on September 17, 2021 ordered bars, breweries, wineries, distilleries, nightclubs and lounges to verify the vaccination status of patrons and employees from October 7, 2021.54 Chicago's Commissioner of Health issued Public Health Order 2020-1 in March 2020, a 9:00 p.m. liquor-sales cessation order, Tier 3 layering orders in the autumn of 2020, the Eighth Amended Order 2020-9 in force through the third quarter of 2021, and Public Health Order 2021-1 of August 20, 2021 requiring that any individual "regardless of vaccination status" wear a mask "when indoors in any public place," an airborne-transmission control carried by a signage duty on every business; Cook County's Order 2021-10 followed August 23 and Oak Park's order August 6.55 Dallas County's Judge issued the Stay Home Stay Safe order March 22, 2020, a 25 percent reopening order with mandatory health protocols in May, the Local Health Authority's bar-closure order of July 24, 2020 "until rescinded," and indoor face-covering orders on August 11, 12 and 16, 2021 notwithstanding GA-38; Harris County's Judge issued the Stay Home, Work Safe order March 24, 2020 and the Health and Safety Policy and Face Coverings orders of 2020, which required every business to adopt a health and safety policy providing for face coverings.56 Philadelphia's Order No. 2 of March 22, 2020 closed dining rooms, its Fall/Winter Order prohibited indoor dining from November 20, 2020 to January 15, 2021 and required telework "unless impossible," its Full Reopening Order of June 15, 2021 ran through the third quarter with the August 12, 2021 amendment requiring face coverings in "[a]ny indoor setting, unless a business operating at the setting requires everyone on site to be vaccinated and has instituted a reasonable procedure for confirming vaccination status," an exposure-control requirement that put every operator to a choice between universal face coverings and vaccination verification, and its Board of Health adopted a health-care-worker vaccination regulation August 12, 2021, effective August 16.57 Boston's Public Health Commission ordered the modified Phase 2 Step 2 rollback from December 16, 2020 to March 1, 2021 and, from 8:00 a.m. August 27, 2021, ordered face coverings on every person indoors "including but not limited to retail establishments, restaurants, bars, performance venues, social clubs, event spaces," an airborne-transmission control on the room and on the bar as a bar, with the rule that "[p]atrons standing or ordering at the bar must be masked"; its Licensing Board issued the implementing advisory August 23.58 San Francisco's Health Officer ordered residents to shelter in place March 16, 2020, reinstated indoor face coverings from 12:01 a.m. August 3, 2021 in coordination with eight Bay Area counties, and required proof of vaccination for indoor dining and bars from August 20, 2021.59 New Orleans imposed a Modified Phase Two bar closure December 30, 2020, an indoor face-covering mandate July 31, 2021 and a vaccination-or-test requirement for indoor dining, bars, gyms and event venues from August 16, 2021 (enforced from August 23); Jefferson Parish followed with a face-covering proclamation August 3.60 Honolulu's Emergency Order 2021-09 (July 2, 2021; effective July 8) capped indoor social gatherings at twenty-five, its EO 2021-10 of August 23 tightened them, and its EO 2021-11 (Safe Access Oahu) barred every restaurant and bar from admitting a patron without proof of full vaccination or a negative test from September 13, 2021.61 St. Louis City's Health Commissioner ordered indoor face coverings July 26 and August 30, 2021, and St. Louis County's order of July 26 was litigated under RSMo 67.265; Kansas City's Order 21-01 (July 30; effective August 2) and Ordinances 210694 and 210853 of August 19 and September 23, Jackson County's health order of August 6-9, Johnson County's Board of Health Order 001-21 (August 5; effective August 9) and Wyandotte County's order of August 5 covered both sides of the Kansas City metropolitan area.62 Seattle's Mayor capped third-party delivery commissions at 15 percent by Civil Emergency Order, King County's Health Officer ordered face coverings at large outdoor events on September 2, effective September 7, 2021, and, on September 16, 2021, ordered verification of vaccination for entry to restaurants and bars from October 25, 2021.63 Atlanta's Mayor ordered indoor face coverings July 28, 2021 and Savannah's July 26 (suspended as to businesses by the Governor's order of August 19); Boulder County's Public Health Order 2021-08 required face coverings indoors from September 3, 2021, and Denver's Executive Director ordered vaccination of personnel of listed entities August 2, 2021; Cleveland's Cuyahoga County Executive ordered face coverings August 3, 2021; Columbus's EO 2021-01 and Ordinance 2388-2021 of September 10-14, 2021; Minneapolis's Emergency Regulation 2020-13 on outdoor operations ran to September 30, 2021 and its 15 percent delivery-commission cap through the period; Maricopa County's face-covering regulations of June 2020 and Tucson's Ordinance 11869 of August 13, 2021; Montgomery County's indoor-dining suspension of December 15, 2020 and the Montgomery and Prince George's County indoor face-covering orders of August 7-8, 2021; and Mecklenburg County's Board of Health rule of August 18, 2021 (effective August 31) and its revised rule of September 8 complete the metro layer.64 Each face-covering order named in this paragraph is described in this analysis as what it was: a workplace infection-prevention and exposure-control requirement imposed on the operator, its staff and its patrons, of which the face covering was one control, carried, where the instrument so provided, by the operator's duty to enforce it, to exclude the unmasked and to post the rule and, in the vaccination-proof jurisdictions, by a verification duty at the door.
The sector regulators
The alcoholic-beverage regulators wrote the Governors' and health officers' orders into the liquor license, then suspended the licenses of operators who disobeyed; the labor and workplace-safety agencies made the reopening conditions binding workplace law; OSHA targeted the industry's two NAICS codes for programmed inspection from March 12, 2021. These instruments are conditions on the revenue functions and they outlasted the general restrictions.
The alcohol regulators
The regulators' notices, advisories, releases and announcements cited in this section are the regulators' own communications implementing the Governors' and health officers' orders and the licensing statutes; they are cited as the record of how those orders were carried into the liquor license and enforced against licensees, with the orders themselves cited beside them, and they are not relied on as orders. Where a regulator acted by emergency order, emergency rule, special ruling or administrative order (the Florida Department's Emergency Orders 2020-09 and 2020-10, Ex. FL-036 and Ex. AGY-ST-ALCOHOL-053; the Alabama Board's Emergency Rules 20-X-6-.20ER and .21ER, Ex. AL-028 and Ex. AL-035; Ohio's emergency Rule 80, Ex. OH-031; the New Jersey Division's Special Ruling 2020-10 and Administrative Order 2021-01, Ex. AGY-ST-ALCOHOL-035 and Ex. AGY-ST-ALCOHOL-041; the Texas Commission's emergency amendment of 16 TAC § 50.28, Ex. AGY-ST-ALCOHOL-003; Colorado's Emergency Regulations 47-302(F) and 47-1102 (Ex. AGY-ST-ALCOHOL-110)), the instrument is an order in the statute's words and is treated as one. The Texas Alcoholic Beverage Commission announced its implementation of GA-08's closure and the Governor's to-go waiver in its notice of March 19, 2020, warned licensees on June 17, 2020 that a first violation of the Open Texas checklists would bring a thirty-day suspension and a second sixty days, suspended the permits of twelve, seventeen and eight bars in successive sweeps recorded in its releases (an administrative judge affirmed), administered GA-28's requirement that a bar requalify as a restaurant through a food-and-beverage certificate and an affidavit of gross receipts, gatekept GA-32's county opt-in reopening from October 14, 2020 to March 10, 2021, and from June 16, 2021 enforced as a permit condition Senate Bill 968's prohibition on requiring proof of vaccination (Ex. TX-032), reminding licensees of it on August 11, 2021.65 The New York State Liquor Authority's guidance effective 8:00 p.m. March 16, 2020 carried Executive Order 202.3's closure, the food-with-alcohol condition and the 10:00 p.m. to-go cutoff (Executive Orders 202.52 and 202.74, Ex. NY-033 and Ex. NY-037) to every licensee through annotations to January 29, 2021, its summary suspensions closed bars in April and July 2020, and its May 19, 2021 non-congregate guidance restated for licensees, as conditions of service under the executive orders then in force, the distancing, face-covering and vaccination-status requirements (workplace infection-prevention and exposure-control requirements of which the face covering was one) until the executive orders expired June 24-25, 2021.66 The New Jersey Division of Alcoholic Beverage Control implemented EO 107 by Advisory Notice 2020-03, created the COVID-19 expansion-of-premises permit (over 2,300 issued) by Special Ruling 2020-10, implemented EO 183's 25 percent indoor dining by AN 2020-08 and EO 194's 10:00 p.m. close and bar-seating ban by AN 2020-10, and extended the expansion permits to November 30, 2022 by Administrative Order 2021-01 on its finding that indoor dining had not resumed without capacity limitations.67 Florida's Department of Business and Professional Regulation closed every vendor deriving more than 50 percent of revenue from alcohol by Emergency Order 2020-09 from June 26 to September 14, 2020 and issued emergency suspension orders against named vendors; its Emergency Order 2020-10 reopened bars at "fifty percent of the facility's indoor capacity" with "bar service to seated patrons."68 California's Department of Alcoholic Beverage Control directed on-sale licensees on March 16, 2020, in its guidance implementing the Governor's and the State Public Health Officer's orders, to "cease exercising those privileges immediately," issued seven Notices of Regulatory Relief from March 19, 2020 to March 1, 2021 (the seventh "during the current state of emergency"), defined a "meal" for the food-with-alcohol condition on June 10, 2020 and placed every licensee on the Blueprint tiers from August 31, 2020.69 The Massachusetts Alcoholic Beverages Control Commission's advisory series carried the Governor's COVID-19 Orders to every licensee, the legal force lying in the Governor's orders enforced through the license: the closure (to June 8, 2020), the food-with-alcohol and gathering conditions (August 11, 2020), the 9:30 p.m. mandatory closing (November 6, 2020), the rollback (December 13, 2020), the 40 percent step (February 8, 2021), the end of restrictions (May 29, 2021) and the continuation of outdoor table service, authorized by COVID-19 Order No. 50 (Ex. MA-030), to August 15, 2021, sixty days after the state of emergency ended (Ex. AGY-ST-ALCOHOL-091), with Chapter 20 of the Acts of 2021 § 19 carrying the outdoor approvals thereafter and § 1 extending the takeout allowance of Chapter 53 of the Acts of 2020 § 13 to May 1, 2022 (Ex. MA-051; Ex. MA-053).70 Illinois' Liquor Control Commission warned licensees in its releases that under the regional mitigations "failure to abide by the new mitigation efforts could result in immediate enforcement action against their license," Iowa's Alcoholic Beverages Division announced on September 18, 2020 that every licensee was required to complete a sworn compliance checklist attesting to the measures of the Governor's proclamation and imposed a twenty-one-day suspension, Oregon's Liquor Control Commission warned in its guidance that "any activity relating to the consumption of alcohol could result in administrative sanctions, including immediate suspension of the license," Arizona's Department of Liquor Licenses and Control implemented Executive Order 2020-43's closure of series 6 and 7 bars at 8:00 p.m. June 29, 2020, Colorado's Liquor Enforcement Division adopted Emergency Regulations 47-302(F) and 47-1102 (Ex. AGY-ST-ALCOHOL-110), Alabama's Board bound every licensee to the State Health Officer's orders by Emergency Rule 20-X-6-.21ER and cut off alcohol at 11:00 p.m. by Rule 20-X-6-.20ER, Ohio's Liquor Control Commission cut off sales at 10:00 p.m. by emergency Rule 80, and the alcohol-to-go authorizations of Kentucky, Maryland, Colorado, Missouri, Vermont, Rhode Island, Pennsylvania, Texas and Washington, each a suspension of a licensing statute for the duration of an emergency, marked by their own end dates how long the emergency regime ran.71
The labor and workplace agencies
Virginia's Safety and Health Codes Board adopted the first State COVID-19 emergency temporary standard on July 15, 2020 (effective July 27), made it permanent January 27, 2021 and amended it September 8, 2021, binding "every employer, employee and place of employment" in the Commonwealth; Cal/OSHA's COVID-19 Prevention Emergency Temporary Standards, adopted November 19, 2020 and readopted June 17, 2021, required every restaurant to maintain a written prevention program, to exclude cases and unvaccinated close contacts with pay and to offer testing; Oregon OSHA's all-workplace rule OAR 437-001-0744 took effect November 16, 2020, became permanent May 4, 2021 and had its face-covering requirement renewed August 13, 2021; Washington's Department of Labor and Industries made violation of the Governor's proclamations a workplace violation by WAC 296-800-14035 from May 26, 2020, readopting it for the November 18, 2020 dining closure and for the August 23, 2021 indoor face-covering order; Michigan's MIOSHA emergency rules of October 14, 2020 required daily screening and remote work where feasible until June 22, 2021 and produced a citation against a restaurant; Nevada OSHA restated each Directive's dine-in measures as mandatory and enforced them; New Jersey's EO 192 of November 5, 2020 imposed worksite face coverings, distancing and screening, a workplace infection-prevention and exposure-control regime enforced by the Department of Labor and Workforce Development and carried into the third quarter of 2021 by EO 242 ¶ 3 and EO 243; and New York's HERO Act required every private employer to adopt an airborne infectious disease exposure prevention plan by August 5, 2021, with every plan activated September 6, 2021.72 OSHA's National Emphasis Program of March 12, 2021 and its revision of July 7, 2021 named full-service and limited-service restaurants among the targeted industries for programmed inspection.73
The gaming regulators
Where a bar or restaurant sits inside a casino or holds a video-poker license, the gaming regulator's order is the order that closed it: the Nevada Gaming Control Board's Industry Notice 2020-28 governed restaurants in gaming properties in Phase One and its Notice 2020-52 implemented Directive 027's bar closures; the Louisiana Gaming Control Board's order of March 16, 2020 disabled every video poker device in every bar, restaurant, truck stop and hotel in the State for sixty-three days.74
The standing duties
Beneath those five layers lay standing law binding every operator whether or not an emergency order named it: the communicable-disease control acts, the safe-workplace statutes, the order-violation offenses, the sanitary codes and the liability shields. Each is an order from an appropriate governmental authority: a statute or rule that commands conduct is an order; a legislature, a health department and a labor or safety agency are each such an authority; and the pandemic directives gave each standing command its content. The layer is set out here for eight States (Texas, Ohio, Arizona, North Carolina, Pennsylvania, West Virginia, California and Florida); the fifty-one-jurisdiction table is on the duties page.75
The first layer is the orders already cited, whose operating conditions were the measures the Service calls voluntary. Texas: "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy" (Ex. TX-021), and GA-29's "Every person in Texas shall wear a face covering ... when inside a commercial entity," an airborne-transmission control on server and patron (Ex. TX-022). Ohio: restaurants "permitted to reopen ... so long as all workplace safety standards are met" (Ex. OH-020). Arizona: every business that "serves the public or is an employer shall develop, establish and implement policies based on guidance from" the CDC, the Department of Labor, OSHA and ADHS (Ex. AZ-019), and ADHS "requires" restaurants to "Operate with less than 50% occupancy" and "Require staff to wear masks" (Ex. DUT-AZ-014). North Carolina: establishments open to the public "must follow" the Core Signage, Screening, and Sanitation Requirements (Ex. NC-011). Pennsylvania: in-person operations "provided that the businesses fully comply with all substantive aspects of" the Secretary's safety orders (Ex. PA-008; Ex. PA-010; Ex. PA-011). West Virginia's "limitation on indoor seating occupancy of 50%" (Ex. WV-033; Ex. DUT-WV-025) and "shall require compliance ... and shall enforce" (Ex. WV-051), California's "must" in the modifications designated under its May 7, 2020 order (Ex. CA-015 ¶ 2; Ex. DUT-CA-014, for their form) and Florida's "so long as" (Ex. FL-027) are the same command. Where these orders recommended, they said so: the Texas, Florida and North Carolina clauses ("should"; "guidance and not enforceable under section 252.47"; "strongly encouraged") are recommendations, compulsory only through the instruments below.76
The second layer is standing law commanding the same conduct without any emergency order. Texas states the duty on the person: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease." (Health and Safety Code § 81.002, Ex. DUT-TX-001.) Behind it stand control measures and a Class B misdemeanor and third-degree felony for disobedience (Ex. DUT-TX-002; Ex. DUT-TX-005; Ex. DUT-TX-006), the Disaster Act's offense (Ex. DUT-TX-012) and Labor Code section 411.103's command of a workplace "reasonably safe and healthful" (Ex. DUT-TX-013). North Carolina: "All persons shall comply with control measures ... prescribed by the Commission," "person" including a corporation, and the Commission's rule making the CDC's "Guidelines and recommended actions" the "required control measures" (Ex. DUT-NC-001; Ex. DUT-NC-002; Ex. DUT-NC-007). Ohio: "No person shall violate any rule ... or any order the director or department of health issues under this chapter to prevent a threat to the public caused by a pandemic" (R.C. 3701.352, 3701.81(C), Ex. DUT-OH-004; Ex. DUT-OH-005; Ex. DUT-OH-007; Ex. DUT-OH-013). California, Arizona, Florida and West Virginia punish disobeying a health or emergency order as a misdemeanor (Ex. DUT-CA-003; Ex. DUT-CA-007; Ex. DUT-AZ-007; Ex. DUT-FL-001; Ex. DUT-FL-008; Ex. DUT-WV-005), and Pennsylvania as a summary offense punishable by fine and imprisonment in default (Ex. DUT-PA-001; Ex. DUT-PA-007); their safe-workplace statutes command the same (Ex. DUT-CA-009; Ex. DUT-AZ-008; Ex. DUT-NC-005; Ex. DUT-WV-011; Ex. DUT-PA-006). The general duty clause commanded a place of employment "free from recognized hazards" (29 U.S.C. § 654(a)(1), Ex. DUT-FED-001), enforced by citation from September 2020 (Ex. FED-088; Ex. DUT-FED-067; Ex. DUT-FED-073; Ex. LAW-487), and California and North Carolina added COVID-19 workplace rules (Ex. CA-023; Ex. CA-024; Ex. DUT-NC-009).77
The second layer's oldest command is the sanitary code, enforced by license and closure: Texas declares a public health nuisance any "restaurant, food market, bakery, other place of business ... that is not constantly maintained in a sanitary condition" and commands the "immediate closing" of an offending establishment (Ex. DUT-TX-016; Ex. DUT-TX-018); Arizona's is in nearly the same words (Ex. DUT-AZ-011; Ex. DUT-AZ-012); the other six condition every food-service license or permit on sanitary operation (Ex. DUT-OH-015; Ex. DUT-CA-015; Ex. DUT-FL-010; Ex. DUT-NC-011; Ex. DUT-PA-013; Ex. DUT-WV-016); and West Virginia's reopening guide, compulsory through Executive Order 40-20's operating clause, threatened license suspension (Ex. DUT-WV-018; Ex. WV-034; Ex. DUT-WV-026).78
The third layer is the liability shields, where legislatures said what a business owed. Texas protects a business in every action commenced from March 13, 2020 unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease" (Ex. DUT-TX-014; Ex. DUT-TX-015); Florida immunizes only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance" (Ex. DUT-FL-012); Arizona presumes good faith only for "reasonable policies related to the public health pandemic" (Ex. DUT-AZ-010). North Carolina and West Virginia set a culpability floor without a compliance clause: North Carolina a duty of "reasonable notice of actions taken" to reduce transmission (Ex. DUT-NC-006), West Virginia protection for "Actions taken in response to" orders, recommendations and guidelines (Ex. DUT-WV-013; Ex. DUT-WV-014). Ohio's shield says an order, recommendation or guideline "shall neither create nor be construed as creating a duty of care" (Ex. DUT-OH-020) and leaves the statutes above untouched. California and Pennsylvania enacted no shield: California presumes want of due care from violation of "a statute, ordinance, or regulation of a public entity" (Ex. DUT-CA-013), and Pennsylvania's Governor vetoed the shield bill because "Providing immunity for a business that does not rigorously comply with public health orders does not ensure the safety of the public" (Ex. DUT-PA-011; Ex. DUT-PA-012, legislative history). In all eight States the premise is the same: compliance with the governmental health standards was what a restaurant owed; the restaurant that spaced its tables, screened its staff, sanitized its kitchen and masked its servers was complying, not choosing.79
The counterparties
The orders that reached this industry's suppliers, customers, venues, schools, transit systems and courts are orders "limiting commerce, travel, or group meetings" in the statute's words, and under the United States' own admission a business "may be suspended 'due to' a government order addressing a third party."80
Suppliers
Executive Order 13917 and the CDC-OSHA guidance it incorporated governed every meat and poultry plant from April 28, 2020; Michigan's Department of Health and Human Services ordered testing of agricultural and food-processing employees; the land-border notices confined Canadian and Mexican crossings to essential travel through the period; the entry proclamations and the pre-departure testing order governed imported labor and inputs; and in July 2021 the Census Bureau found that 51.4 percent of accommodation and food-service establishments reported domestic supplier delays.81
Customers
The stay-at-home orders confined the industry's customers to their homes: New Jersey's EO 107 ¶ 2 ("All New Jersey residents shall remain home or at their place of residence unless they are ... 2) obtaining takeout food or beverages"), California's EO N-33-20, New York's PAUSE order, Illinois' EO 2020-10 and their counterparts in thirty-nine other jurisdictions, with the Notice's own list naming the type.82 The telework mandates emptied the office districts on which lunch and after-work trade depends: Pennsylvania's "[u]nless not possible, all businesses are required to conduct their operations in whole or in part remotely" (July 15, 2020) and "[u]nless impossible" (November 23, 2020), Minnesota's "[a]ny worker who can work from home must do so," New Jersey's EO 107 ¶¶ 10-11 and EO 192, Philadelphia's telework requirement to May 31, 2021, Michigan's MIOSHA Rule 5(8) ("The employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely").83 The curfews fixed the hours of trade: Ohio's 10:00 p.m. stay-at-home curfew, California's Limited Stay at Home Order, North Carolina's EO 181, Virginia's EO 72, Massachusetts' Order No. 53, and the tribal and territorial curfews.84 The travel quarantines removed the tourist and business traveler: Hawaii's fourteen-day quarantine of every arrival from March 26, 2020, converted to Safe Travels testing October 15, 2020 and continued through 2021; New York's travel advisory and quarantine (EO 205); Pennsylvania's travel order; North Dakota's confinement order; Alaska's, Maine's, Vermont's and Rhode Island's arrival rules; and Puerto Rico's arrival testing from July 3, 2020.85 The gathering caps and venue closures ended the banquet, the reception and the event: New Jersey's EO 104 ¶ 7 closed casino floors, racetracks, gyms, theaters, concert venues and nightclubs at 8:00 p.m. March 16, 2020; New York's EO 202.3 cancelled every gathering of more than fifty; Massachusetts' Order No. 5 prohibited gatherings of over twenty-five; and the caps on private gatherings, weddings and receptions ran, in most States, into the spring of 2021 (Minnesota's EO 20-99 ¶ 6.a.xvi: "Individuals, venues, and businesses must not host celebrations, receptions, private parties, or other social gatherings").86 The Library's meetings collection lists the trade shows, conventions, fairs, festivals, sporting seasons and recurring gatherings of this industry that these orders disrupted in 2020 and 2021, with the venue jurisdiction's orders and the organizer's stated action.
Schools, transit and courts
Every State closed its schools to in-person instruction in March 2020, most for the remainder of the school year and many for the 2020-21 year, and the federal leave mandate tied an employee's paid absence to "the school or place of care of the son or daughter" being closed; the school face-covering and vaccination orders of August and September 2021, airborne-transmission controls on every classroom (New Jersey's EO 251, Illinois' EO 2021-20 § 3, Louisiana's 137 JBE 2021, Nevada's Directive 048 § 5, Kentucky's 702 KAR 1:195E, Oakland County's orders, the Acting Secretary of Health of Pennsylvania's order effective September 7) governed the workforce's children in the third quarter of 2021.87 The federal conveyance order and the transit agencies' rider caps and face-covering rules, exposure-control conditions on every commute (Metro Transit St. Louis from May 11, 2020; the MBTA's reduced schedules from March 17, 2020; SMART's service notice of March 31, 2020; Trinity Metro's enforcement of the federal order from February 1, 2021; the MTA's $50 fine) governed the commute.88 The Supreme Court of Texas's Fortieth Emergency Order, effective August 1 to October 1, 2021, and the judicial emergency orders of Virginia, Wisconsin and every other State suspended in-person proceedings, tolled deadlines and stayed the evictions and collections that run through the courts; the CDC's moratorium, Washington's Proclamation 21-09 (July 1-September 30, 2021) and California's AB 832 (rent accrued through September 30, 2021) governed the landlord-tenant relationships of the industry's premises and its workforce's housing into the third quarter of 2021.89
The ecosystem
The industry's customers, suppliers and workforce moved through an economy in which the orders of other jurisdictions were in force, and those orders are cited as orders. The territorial governments closed and conditioned their restaurants and bars on every day of the period: Puerto Rico's OE-2020-023 of March 15, 2020 imposed a 9:00 p.m. curfew and "total closure" of private-sector operations except essential services; its OE-2021-063 of August 11, 2021 required the employees of restaurants, bars, theaters and stadiums to be vaccinated or tested weekly and barred unvaccinated or untested patrons from August 23, 2021; its OE-2021-065 of August 30, 2021 ordered indoor face coverings and a midnight closing, exposure-control conditions imposed together on every establishment; the Virgin Islands closed bars and confined restaurants to takeout from March 23, 2020 and again from August 13, 2020, and kept a midnight closure and alcohol limits on restaurants and bars until October 29, 2021; Guam closed every non-essential place of business from March 20, 2020 and again from August 16, 2020, and from August 20, 2021 required proof of vaccination for entry to restaurants and bars; the Northern Mariana Islands barred on-premises consumption from March 19, 2020.90 The tribal governments did the same on lands where restaurants, casinos and their suppliers operate: the Navajo Nation closed "all stores, gas stations, restaurants and drive-through food establishments" on at least sixteen weekends in 2020, closed "[a]ll Businesses not otherwise exempted" from November 16, 2020 to March 15, 2021, held its businesses, restaurants included, at Yellow Status ("50% of maximum occupancy") under its face-covering mandate (an airborne-transmission control on every business) from May 21, 2021 (Ex. AGY-TRIBAL-020) and moved them to Orange Status from August 12, 2021, at which "Restaurants, including indoor dining, drive-thru, curb-side, and outdoor dining" remained at "50% of maximum occupancy" while gyms, recreation facilities and movie theaters were closed (Ex. AZ-082); the Mescalero Apache Tribe put restaurants on carry-out March 24, 2020, capped dine-in at 50 percent from September 9, 2020, and re-imposed face coverings on every enterprise and contractor employee "regardless of vaccination status" on August 20, 2021, an occupational-health control on its workforce; the Yakama Nation's Public Safety Order No. 3 bound every business "whether licensed by the Yakama Nation or the State of Washington" with a $500 fine per violation from June 26, 2020 through the third quarter of 2021.91 The Library's foreign collection records the border closures and lockdowns of Canada, Mexico, the European Union, the United Kingdom and the industry's other trading partners; those instruments are facts and circumstances bearing on the supply of wine, spirits, seafood and produce and on the absence of the foreign visitor, and are cited as such.