02/16/2021

Client Alert

Written by: Ronald L. Perl, Esq.

New Jersey Governor Philip D. Murphy’s Executive Order No. 219, issued on February 3, 2021, expands capacity limits for certain indoor activities but retains other restrictions. The Order contains provisions that pertain to community associations.

Paragraph 1 applies to: “Restaurants, cafeterias, dining establishments, including private, non-profit clubs, and food courts, with or without a liquor license, bars, and all other holders of a liquor license with retail consumption privileges, collectively referred to as “food or beverage establishments, that are open to the public.”

In our opinion this applies to restaurants, snack bars or the like that are in community clubhouses. Some have suggested that the term “open to the public” means only commercial establishments open to the general population. However, this paragraph clearly applies to private non-profit clubs, so in our opinion, its mandate is not limited to establishments open to the general population.

If your association has a dining facility, it is now subject to a 35% occupancy limitation rather than 25%. Also, there are extended hours of operation that probably do not affect associations—indoor dining is now permitted after 10PM, until 5AM, which was previously prohibited. We’re not aware of any associations whose dining facilities are opened during those times.

Also, pursuant to EO 219, health clubs and gyms, which were interpreted in previous executive orders to include association facilities, may now be occupied to 35% of capacity.  

Indoor recreational “businesses,” which we interpret to include indoor swimming pools in community associations, may also operate at 35% of capacity.

If your association hosts indoor gatherings that involve an Alcoholics Anonymous meeting, Narcotics Anonymous meeting, or similar meeting of an addiction support group, any such gathering is now limited to 35% of the capacity of the room in which it takes place up to a maximum of 150 people.

While most associations do not contain entertainment centers such as movie theaters, performing arts centers or concert venues, the Executive Order increases the capacity limits to 35%, but not more than 150 people.

The most important thing for associations to remember is that all of the operational requirements (for example: frequent cleaning of surfaces, masking, social distancing, the need for reservations) still apply. We are not back to normal by any means. There is still the absence of liability insurance coverage for illness claims and the affirmative duty to comply with all governmental guidelines and mandates. Restaurants and swimming pools are governed by specific guidelines of the New Jersey Department of Health. The various executive orders contain specific requirements that must be followed, not only to protect the residents/users of the facilities and your employees, but to avoid successful liability claims. 

If you would like copies of any of the executive orders or the Department of Health publications, please contact us and we will provide them to you.

If you have questions about this or any other issues with your community association, please contact one of our community association attorneys.

©2021 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.