Highlights of Napa County’s Updated Shelter in Place Order Including Cloth Face Covering Requirement
Here are the key changes in the new Order:
- The Order requires wearing cloth face coverings when inside places of business and in workplaces when interacting with any person where six feet of physical distancing cannot be maintained.
- A Face Covering is Not Required When: at home; in your car alone or solely with members of your household; exercising outdoors provided you are staying at least six feet apart from anyone who is not a member of your household (but it is recommended that you have a face covering with you and readily accessible); when eating or drinking.
- Who Should Not Wear a Face Covering: Children 6 years old or younger may not need a face covering and children under 2 should not wear one; anyone who has trouble breathing or is unable to easily remove a face covering without assistance; anyone who has been advised by a medical professional not to wear a face covering.
- Essential businesses must require their employees wear a face covering in any area where others may be present, even if there are no customers or members of the public present at the time. Essential businesses should inform customers about the requirement of wearing a face covering, including posting signs at the entrance to the store or facility.
- All workers operating public transportation, or operating other types of shared transportation are required to wear a face covering when at work in most settings.
- Workers doing minimum basic operations, like security or payroll, essential infrastructure work, or government functions should wear a face covering when six feet of physical distance cannot be maintained.
- For more information on cloth face coverings, including links to guidance on how to make your own mask, see the Napa County requirement here.
- The Order states that businesses will be permitted to reopen within the State of California’s framework that identifies four-stages to reopening.
- Non-essential businesses will be permitted to reopen according to the State’s four-stage framework. It is anticipated that Early Stage 2 non-essential businesses may be able to open as early as Friday, May 8, 2020. The list of those businesses, and how they will be allowed to operate, will be provided by the State.
- Counties may be able to move into Deep Stage 2, but only after the State Public Health Officer provides criteria and procedures for doing so, as well as the template for submitting a “readiness plan” that requires self-certification by the Public Health Officer and approval by the Board of Supervisors.
- Stage 3 non-essential businesses will not be able to reopen until the Governor determines, on a statewide basis, that counties can move into Stage 3. The Governor has also said this stage is months away.
- The Order allows drive-in activities that can comply with physical distancing requirements.
- All construction is now allowed but it must comply with Construction Site Requirements to maintain social distancing and sanitation (see Appendix B to the Order).
- The Order allows outdoor recreation sports that can comply with physical distancing requirements; however, person-to-person contact sports are still prohibited.
- The list of approved outdoor recreation activities can be found here.
- Golfing, use of tennis courts, and use of swimming pools (public and semi-private) are permitted as long as they are used in compliance with social distancing protocols. (The specific, detailed requirements for golf courses remain the same – see Appendix C of the Order).
- You can exercise outdoors if you will not be in close contact with other people or using equipment that other people outside your household have touched. Fitness centers, gyms, recreational centers, fitness equipment at parks, climbing walls, basketball courts, and other shared sports facilities remain closed.
- Comment on the Short-Term Lodging Industry
- The Napa County Public Health Officer has advised the lodging industry that reservations beginning on and after June 1, 2020 may be accepted. However, this is not a guarantee that the reservations can be honored, and short-term lodging businesses should inform customers that their reservations will be cancelled if the local and/or state Shelter-At-Home orders continue to prohibit short-term lodging at that time. Further, lodging businesses should consider how they will provide appropriate sanitation and enforce physical distancing protocols when they are allowed to reopen.
- The Compliance Task Force will not engage in enforcement activities for lodging businesses that are currently accepting reservations for dates beginning June 1, 2020 and beyond, but making new reservations for dates in May is still prohibited and subject to enforcement.
For more information please contact Marissa Buck.
CA ABC Loosens Regulations for Alcohol Beverage Retailers and Delivery
The California Department of Alcoholic Beverage Control issued a notice on March 19, 2020 temporarily loosening certain regulations during the current state of affairs. While primarily focused on retailers, there are some potentially helpful provisions that impact alcohol beverage producers, too.
A few things to keep in mind. First, local regulations and restrictions may also govern and restrict the ability of licensees to engage in these activities. Second, this move by the ABC is temporary. ABC plans to notify the industry 10 days before these guidelines terminate.
Below is a summary of ABC’s March 19 notice.
3/21/2020 Update: CA ABC has issued a FAQ for it’s 3/19/2020 Notice of Regulatory Relief
ON-PREMISE RETAILERS SELLING ALCOHOL “TO GO”
ALCOHOL IN MANUFACTURER PRE-PACKAGED CONTAINERS: If you hold an on-premise retail license that allows you to sell beer and wine or beer wine and spirits, you can sell that beer and wine to go for off-premise consumption in the original container/bottle (barring any condition on your license). That was true prior to the ABC notice, and still holds. However, if you hold an on-premise retail license that allows you to sell beer, wine and spirits, you can now sell all those beverages (beer, wine and spirits) in the original container/bottle.
ALCOHOL IN RETAILER PACKAGED CONTAINER: Under ABC’s new notice, if you operate a restaurant / “bona fide eating place”, you can now package whatever alcohol your license allows you to sell (beer and wine only for a Type 41; beer, wine, and premixed cocktails/drinks if you are a Type 47) in a container with a “secure lid or cap” so long as that cap does not have a sipping hole or opening for a straw, or could otherwise be consumed without removing the lid/cap. However, that container must be sold in conjunction with a meal prepared for pick-up or delivery.
Retailers that want engage in this type of activity must have a prominent posting (either on the premise, online, or in any way possible to alert consumers or the person transporting the beverage) that states, “Alcoholic beverages that are packaged by this establishment are open containers and may not be transported in a motor vehicle except in the vehicle’s trunk; or, if there is no trunk, the container may be kept in some other area of the vehicle that is not normally occupied by the driver or passengers (which does not include a utility compartment or glove compartment (Vehicle Code section 23225)). Further, such beverages may not be consumed in public or in any other area where open containers are prohibited by law.” UPDATE 3/24/2020: ABC has created a PDF of that notice so that retailers can easily print and post.
TAKE OUT WINDOWS: Some licensees have conditions on their license that prohibit the sale / delivery of alcohol to persons in cars or to consumers outside of the licensed premises through a take-out window or slide-out tray. Those prohibitions are temporarily lifted.
DELIVERY TO CONSUMERS: Even before the emergency notice, most business that hold a license that permits them to sell alcohol to consumers for off-premise consumption can also deliver those beverages to the consumer, so long as the sales transaction (other than the delivery) takes place at the licensed premise. In other words, the order must be received at the licensed premise, and payment is processed there. You can’t just show up at someone’s door and swipe a credit card there.
The temporary notice now allows for the following:
- If you are allowed to sell to consumers for off-premise consumption, you can accept payment, including cash, at the point of delivery.
- Although the CA ABC Act is silent as to whether Craft Distillers have the right to make deliveries away from the premises, the notice now allows Type 74 craft distillers can also deliver to consumers, but must limit sales to 2.25 liters per consumer per day.
- These delivery privileges are not limited to delivery to a consumer’s residence, but also allow for curbside delivery to consumers immediately outside the licensed premises.
HOURS OF OPERATION: State law prohibits the retail sale of alcohol between 2:00am and 6:00am. Some licensees have even more restrictive hours through conditions placed on their license. However, those license conditions are now lifted for off-premise sales, though the 2am-6am state law is still in place.
RETURNS: Generally, there are restrictions on the ability of producers and wholesalers from accepting returns from retailers. Those restrictions are temporarily lifted. It doesn’t mean that wholesalers and producers are required to accept all returns from retailers, just that they can if they choose to. However, producers/wholesalers cannot condition the acceptance of a return on a requirement to purchase in the future. This is consistent with TTB latest guidance on returns as well.
RETAILER-TO-RETAILER SALES: Under California law, retailers cannot purchase alcohol from other retailers. Under the temporary guidance, an off-premise retailer (grocery store, bottle shop, etc.) can now buy inventory from on-premise retailers (such as bars and restaurants).
EXTENSION OF CREDIT: Normally, California law imposes a maximum 30 day credit on the purchase of alcohol by a retailer from a wholesaler or producer. That 30 day limit is temporarily lifted. Note, however, once the temporary guidance is revoked, the extended credit term will also terminate (i.e., the retailer will have to pay the amount due at that time).
For a list of Coronavirus related resources, please see our Resources Page.
Additional Guidance For Wineries in Light of Recent Government Actions
Since the Governor’s announcement on Sunday recommending the temporary suspension of on-premise alcoholic beverage businesses, including winery tasting rooms, certain cities and counties have instituted “Shelter-in-Place” ordinances, and both the California ABC and the California Wine Institute have issued additional guidance on the operation of alcohol beverage licensed premises, including wineries.
Given the various orders and guidance currently in place, we have provided below a brief summary of the current state of play for wineries. Please note that things are rapidly changing and while we will do our best to issue updates, we highly recommend that all licensees sign up for the California ABC email updates, and also keep an eye on orders from their local governments.
GOVERNOR’S DIRECTIVE – Statewide Recommendations
- On Sunday, March 15, 2020, Governor Gavin Newsom announced that he was directing the closure of “all bars, nightclubs, wineries, brewpubs, and the like.”
- The California ABC has since clarified that the directive is aimed at suspending on-premise retail privileges (that is, the service of alcohol for consumption at the licensed premises). For wineries, the directive applies to their tasting room and event operations in pouring wine and serving customers for on-premise consumption. It has no impact on their production operations, and wineries can continue to have consumers purchase and pick up wine for off-premise consumption, subject to any further local restrictions such as the shelter-in-place orders discussed below.
- After discussing the directive with the Governor’s office, Wine Institute has recommended that wineries take the following steps:
- Ensure visitor and employee safety by intensify cleaning and sanitation procedures;
- Operate the facility in compliance with social distancing guidance (such as instituting procedures to keep individuals 6 feet apart);
- Implement recommendations from the CDC and California Department of Public Health re washing hands, avoiding close interpersonal contact, encouraging employees to remain at home when sick, and instituting additional precautions for older employees and customers.
For other operational recommendations, please see our Employer Guide to Navigating COVID-19 from earlier this week.
LOCAL GOVERNMENT “SHELTER-IN-PLACE” ORDERS – Enforceable Restrictions
- As of March 18, 2020, a number of counties in Northern California (including Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, and Sonoma) have issued shelter-in-place orders.
- Wineries that have operations in any jurisdiction that have implemented such an order have legal obligations to alter their current operations to comply with their specific county’s order.
- In its recent guidance, issued prior to the Sonoma County order, Wine Institute concluded that winery businesses meet the definition of “essential businesses” because they constitute “businesses that supply other essential businesses (grocery stores and other food outlets) with the support or supplies necessary to operate.” According to Wine Institute, wineries can engage in the following activities in those Shelter in Place jurisdictions: “vineyard management, wine production operations, bottling, warehousing, sales, delivery and shipping.” However, this “does not include wine tasting and events ….”
- The Sonoma County order includes a provision that more directly addresses winery operations. Specifically, the following activities are deemed “essential” under the Sonoma County Ordinance: “Agriculture, food, and beverage cultivation, processing, and distribution, including but not limited to, farming, ranching, fishing, dairies, creameries, wineries and breweries in order to preserve inventory and production (not for retail business).” It is unclear whether, by excluding “retail business,” Sonoma County is restricting wineries and tasting rooms from engaging in the sale of wine in sealed containers for off-premise consumption, or whether the language is only meant to address retail sales for on-premise consumption.
- Napa County’s order goes into effect at 12:01am on Friday March 20. It includes a provision that deems the following businesses as “essential”: “Any form of cultivation of products for personal consumption or use, including farming, ranching, livestock, and fishing, and associated activities including but not limited to activities or businesses associated with planting, growing, harvesting, processing, cooling, storing, packaging, and transporting such products, or the wholesale or retail sale of such products, provided that, to the extent possible, such businesses comply with Social Distancing Requirements set forth in subsection (j) of this Section 10 and otherwise provide for the health and safety of their employees.”
Please note that this is a rapidly evolving situation, and many more cities and counties may implement Shelter-in-Place measures over the next days and weeks ahead. It is also possible that the ordinances on which this blog post, and Wine Institute’s guidance are based, may be revised.
ADDITIONAL ABC GUIDANCE
- ABC has issued additional guidance regarding the Governor’s directive on steps licensees can take to minimize risk.
- ABC has stated that retail licensees that comply with the Governor’s directive or local government restrictions will not have their licenses suspended.
- ABC offices in shelter in place jurisdictions are closed to the public. ABC Staff will be available to answer questions over the phone, and you can still mail applications to those local offices. Other ABC local office closures will be posted here.
- ABC is not currently accepting, processing, or approving special event or daily licenses in light of guidance on gatherings.
ADDITIONAL WINE INSTITUTE INFORMATION
- Wine Institute has been in direct communication with ABC and has shared the following information:
- ABC will not enforce state regulations that limit the extension of credit to 30 days.
- ABC is looking at additional relaxation of regulations in light of the current situation.
- For more information, go to https://wineinstitute.org/news-alerts/ca-abc-suspends-ca-credit-regulations-enforcement-clarifies-wine-take-out-sales-in-restaurants
- In addition, TTB has informed Wine Institute that “it does not expect any service interruptions but urges all wineries to register and utilize COLAs Online and Permits Online immediately since most of its staff is now teleworking.” For more information, go to https://wineinstitute.org/news-alerts/ttb-relaxes-consignment-sale-restrictions-urges-online-colas-and-permit-submissions
Wine Institute has a helpful resource page dedicated to Coronavirus related updates, which can be accessed here.
For a list of Coronavirus related resources, please see our Resources Page.