How a restaurant, bar, caterer or food-service operator operates
A restaurant, bar, caterer or food-service contractor earns its revenue by seating people together in a room, serving them food and drink at tables and bars, feeding groups at events, and handing food across a counter or a curb. Every one of those activities is a group meeting for a commercial and social purpose in a place open to the public, conducted by a workforce that must be physically present, on inputs delivered daily by carriers from processors and distributors in other States and countries. The orders of 2020 and 2021 reached each of these functions in terms, and this section describes them so that the layers, the quarters and the functions below can be read against the operation they interrupted. The statute those orders are measured against is read element by element at The Statute.
The industry's operations are described in this analysis as nine functions, each carrying a two-letter code that the sections below use without variation.1
DR: dining room service
DR, dining room service, is the seating and serving of guests at tables inside and outside the premises. The number of tables, the distance between them, the size of a party, the hours of service, the buffet and self-service formats, and the presence of standing or waiting guests are all decisions the operator made in 2019 and the orders made in 2020 and 2021.
BA: bar and alcohol service
BA, bar and alcohol service, is the sale of alcoholic beverages for consumption at a bar counter, at tables and at events under a State license whose conditions the alcoholic-beverage regulator fixes. In a full-service restaurant alcohol is commonly 20 to 30 percent of revenue; in a bar or tavern it is the majority of revenue. Because the function exists only under a license, the regulator that issues the license could, and did, write the Governors' and health officers' orders into its conditions and suspend the licenses of those who disobeyed.
TO: takeout, curbside and delivery
TO, takeout, curbside and delivery, is the sale of food and, where authorized, sealed alcoholic beverages for consumption off the premises, through the operator's own counter, its drive-through window and third-party platforms. In a limited-service restaurant it is the majority of revenue. In a full-service restaurant in 2019 it was a minority line that became, by order, the only permitted line.
BQ: banquets, catering, events and entertainment
BQ, banquets, catering, events and entertainment, is the service of groups at weddings, receptions, corporate events, funerals, conferences and private parties, on the operator's premises or at a venue, and the provision of live entertainment. It is the function the gathering caps reached first and released last.
KT: kitchen, food supply and vendors
KT, kitchen, food supply and vendors, is the receipt of food, beverage, linen, paper and cleaning inputs from distributors and the production of meals under a health permit. Its suppliers operated under orders of their own States and countries, and the sanitary code that conditions the permit was, on every day of the period, an order of the health department that issued it.
HR: hiring, screening, training and certification
HR is hiring, screening, training and food-handler and seller-server certification. The certification offices closed and extended their deadlines by order; the reopening orders and the workplace standards imposed daily screening and exclusion duties on the operator.
OP: office, administration and remote work
OP, office, administration and remote work, is the office and multi-unit administration of the business and the work its employees perform away from the premises. It is the one function to which the telework mandates could apply, and the telework mandates applied to it.
WF: workforce availability
WF is the availability of the workforce on a given day, which depends on the schools and child care of the employees' children, on quarantine and isolation orders, on transit, and on leave mandates. Each of those was governed by an order in each of the six quarters.
CB: the customer base
CB is the customer base: the residents, office workers, travelers, conventioneers and event hosts whose presence in the dining room, at the bar and at the banquet is the industry's commerce. The stay-at-home orders, curfews, telework mandates, travel quarantines, entry proclamations and vaccination-proof conditions fixed by law who could be present.
The revenue lines
The Census Bureau counted monthly sales at food services and drinking places of about $62 billion in February 2020 and about $32 billion in April 2020.2 Within that total, full-service restaurants earn most of their revenue from seated dine-in food and beverage service, with alcohol a substantial share; bars, taverns and nightclubs earn the majority of their revenue from on-premises alcohol; limited-service restaurants earn the majority from counter, drive-through and delivery sales; caterers and banquet operations earn theirs in concentrated seasons, the November-December holiday season and the May-June wedding and graduation season; and food-service contractors earn theirs under contracts with hotels, stadiums, arenas, universities, hospitals, corporate campuses and airports whose own operations were closed or curtailed by order.3 The Notice's own restaurant example states the point in the Service's words: "[o]n-site dining is more than a nominal portion of Employer F's business operations."4
The industry's suppliers are the broadline food distributors and the regional produce, meat, seafood, dairy, bakery and beverage distributors that deliver daily from warehouses in other counties and States; the meat and poultry processors whose plants operated in 2020 under Executive Order 13917 and the CDC-OSHA guidance it incorporated; the three-tier alcohol supply chain of producers, wholesalers and the State regulators that license every tier; the paper, packaging, linen and equipment vendors; and the ports and border crossings through which imported food, wine and spirits arrive.5 Its customers are residents of the surrounding neighborhoods, office workers on lunch and after-work trade, travelers and tourists, and the hosts of events. Its venues are hotels, arenas, stadiums, theaters, convention centers, universities and office buildings whose closure or capacity limits closed or capped the food service inside them. Its regulators are the State and local health departments that issue the food-service permit, the alcoholic-beverage regulator that issues the liquor license, the fire marshal who fixes the occupant load against which every capacity percentage was measured, and the State labor and workplace-safety agency. Its landlords, lenders and courts govern its premises and its disputes. Every one of these counterparties operated under orders of its own, and the counterparties subsection and the interconnected-economy section below set out which orders reached which counterparty.
The workforce
Food-service employment is hourly, tipped, part-time and young; the Bureau of Labor Statistics counted 12,303,100 jobs in food services and drinking places in February 2020.6 Employees commute by car and by transit; a large share are parents of school-age children; the servers, bartenders, cooks, dishwashers, hosts and delivery drivers who perform the revenue functions cannot perform them from home. The Notice recognizes that where "the employer's physical work space is so critical to its trade or business operations that tasks central to the trade or business's operations are unable to be performed remotely, then this factor alone indicates that the employer is not able to continue comparable operations."7 There is no telework alternative to a dining room.
Seasonality and geography
Restaurants, bars and caterers earn disproportionately in the holiday season from Thanksgiving through New Year's Day, in the wedding and graduation season of May and June, on summer patios, and at conventions, sporting events and festivals; the winter 2020-21 re-tightening fell on the first of those seasons and the spring 2020 closures on the second. The industry exists in every county of every State, so that the fifty-State regime set out below and the metropolitan instruments beside it are not a sample of the industry's exposure but a description of it.
The counterparty map
For each counterparty class the orders that reached it are identified in the layers and interconnected-economy sections below: suppliers (State closure and capacity orders on distributors and processors; Executive Order 13917; the port, border and entry orders; the Census Bureau's finding that 51.4 percent of accommodation and food-service establishments reported domestic supplier delays in July 2021); customers (stay-at-home orders, curfews, gathering caps, travel quarantines, telework mandates on office employers, and the closure of the venues and events that generate dining trade); venues (closure and capacity orders on hotels, arenas, stadiums, theaters, convention centers and campuses); schools and child care (State and district closure and remote-learning orders governing the workforce's children); transit (the federal conveyance order and the local rider caps); courts (the emergency orders suspending in-person proceedings, evictions and foreclosures); and health departments and alcohol regulators (the permit and license conditions described under the sector regulators).8