Kyiv's New Lockdown: Restrictions for Restaurants and Retailers Effective March 20, 2021

April 14, 2021, the Kyiv City Emergency Commission adopted Protocol No. 34, which states the decision to extend quarantine restrictions in the capital until April 30, 2021. Kyiv Mayor Vitaliy Klitschko announced this at a briefing, noting that there is no other way out, as the epidemiological situation in the capital is not significantly improving.

We want to emphasize that the extension of quarantine entails:

• public transport will only be available with special passes
• schools and kindergartens will remain closed
• shopping malls will not operate
• mass events are prohibited
• public catering establishments will continue to operate only for takeaway or delivery.

And although on April 13, 2021, the Department of Industry and Entrepreneurship Development of the Kyiv City State Administration posted information on its official Facebook page that from April 15, catering establishments will be allowed to start installing their summer terraces, however, open "halls" will only be able to operate after the full lifting of quarantine restrictions. Therefore, currently, under quarantine restrictions, cafes and restaurants continue to operate exclusively for takeaway and delivery.

We remind you that from March 20, 2021, quarantine restrictions are in effect in Kyiv, as stated in the minutes of the meeting of the Permanent Commission on Technogenic and Environmental Safety and Emergency Situations of the Kyiv City State Administration No. 21 dated 22.03.2021 “On taking measures to prevent the spread of acute respiratory disease COVID-19 caused by coronavirus SARS-CoV-2” (hereinafter – Protocol No. 21). Therefore, “red zone” restrictions are in effect in Kyiv, as set out in Cabinet of Ministers Resolution No. 1236 dated 09.12.2020 as amended by Cabinet of Ministers Resolution No. 104 dated 17.02.2021 (hereinafter – Resolution No. 1236) without additional references to other regulatory legal acts.

Which business entities are allowed to operate during lockdown and in what mode

1. Business entities operating in the public catering sector (bars, restaurants, cafes, etc.) are allowed to operate, providing services for home delivery and takeaway orders.
2. Business entities operating in the retail and consumer services sector are allowed to operate, namely:

• receiving visitors by business entities that sell goods in retail areas, at least 60 percent of which are designated for the sale of food products, fuel, medicines and medical devices, hygiene products and household chemicals, communication tools, printed mass media, veterinary preparations, feed, seeds, plant protection products, without restricting visitors' access to other goods presented in the assortment of the specified business entities
• retail activities with home delivery of orders.

Therefore, public catering establishments can be guided by Resolution No. 1236 and carry out home delivery and takeaway orders, and stores with retail areas of at least 60 percent can carry out trade without restricting visitors' access to other goods presented in the assortment, as well as with home delivery of orders in accordance with the requirements of paragraph 3-5 of Resolution No. 1236.

This also means that business entities whose retail area is at least 60 percent designated for the sale of food products, fuel, medicines and medical devices, hygiene products and household chemicals, communication tools, printed mass media, veterinary preparations, feed, seeds, plant protection products, have the right to sell these goods, as well as provide unhindered access to other groups of goods, including, but not limited to: flowers, decor, accessories, clothing, footwear, etc.

What activities are prohibited during lockdown

• receiving visitors by business entities operating in the public catering sector (bars, restaurants, cafes, etc.), except for the cases listed above
• receiving visitors by business entities operating in the retail and consumer services sector, except for those listed above.

How summer (outdoor) areas (terraces) should operate during lockdown

Most business representatives, who choose a predictable approach to conducting their business activities, have already started to consider this issue today in connection with the approaching season for opening summer (outdoor) areas.

Since today we have no other official clarifications regarding the operation of public catering establishments (including the operation of summer terraces), apart from Protocol No. 21 with a reference to the implementation of Resolution No. 1236, we analyze the available information and express our opinion regarding the effect of these norms:

If the operation of summer terraces was defined during the introduction of various quarantine restrictions, then as of today, the issue of summer terrace operation is not legally regulated. If we draw an analogy with last year, the norms that regulated the operation of summer terraces were introduced by the Government by Resolution No. 343 dated 04.05.2020, meaning, obviously, that as of today, no legal norms have yet been adopted because most summer (outdoor) areas have not yet started their operation.

We remind you that according to the Procedure for placing catering areas near stationary restaurant establishments in the city of Kyiv (Order of the Executive Body of the Kyiv City Council (Kyiv City State Administration) dated November 7, 2013 N 2027) “an outdoor (summer) catering area near a stationary restaurant establishment is a type of catering area near a stationary restaurant establishment, a place for providing catering services near a stationary (capital) restaurant establishment in the open air (under awnings, on verandas, in light-type pavilions), which operates annually from May 01 to October 31 of the respective year.

Therefore, we can only assume that the operation of summer terraces, as well as public catering establishments (bars, restaurants, cafes, etc.), can be carried out through home delivery and takeaway orders (para. 3-5 of Resolution No. 1236).

On this basis, in our opinion, receiving and serving visitors on a summer (outdoor) terrace is not yet permitted, at least until other decisions are adopted that would regulate this issue.
In the future, we will await the possible adoption of additional orders regarding the operation of summer (outdoor) terraces, in accordance with the current epidemiological situation in Ukraine.

What is the liability for violating quarantine norms

Yes, business entities may be held liable for any violations of quarantine rules (violation of mask regime, violation of operating rules for trade and public catering establishments, etc.), which may lead to undesirable consequences in the form of bringing officials to responsibility under Article 44-3 of the Code of Administrative Offenses with the imposition of a fine on officials from two to ten thousand non-taxable minimum incomes of citizens (34,000 – 170,000 hryvnias).

As of today, the statistics of violations are quite significant, as the number of administrative protocols for violating quarantine rules by business entities operating in the public catering sector (bars, restaurants, cafes, etc.) exceeds 60,000 administrative protocols.
However, there is one “but”: administrative protocols drawn up by the police must be sent to court. And it is the court that decides whether to impose a fine or not.
Statistics show that in only 10% of cases do judges support the police and decide on fines (in the amount of 17 thousand UAH or more). The remaining 90% of protocols are deemed invalid due to numerous violations, including non-compliance with legal requirements, which are committed by police officers when drawing up protocols.

And finally, we keep our finger on the pulse and await additional clarifications from the Government and local authorities regarding the further regulation of the activities of business entities operating in the public catering sector (bars, restaurants, cafes, etc.) and in the retail and consumer services sector.