John NealMay 8, 2020

Restaurants should expect to see heavy use of face masks by customers for the foreseeable future.

This comes after Ohio announced a rule on May 7, 2020 for the re-opening of its restaurants and bars that states that “[b]usinesses must allow all customers . . . to use facial coverings, except for specifically documented legal, life, health or safety considerations and limited documented security considerations.”

How does that affect Ohio’s strict requirement that liquor permit holders check identifications (ID) to ensure a customer ordering alcohol is 21 years of age or older? The Responsible RestartOhio guidelines do not address this (as of May 8, 2020).

Remember, selling or furnishing alcohol to a person under the age of 21 is a “strict liability” offense. If it happens, the law is broken. It ultimately does not matter if the server made an honest mistake or even if the customer used trickery; that is, with one expressed exception.

That one exception is validly checking ID. But Ohio statute provides that a valid effort to check ID requires a comparison of the picture on the ID with actual appearance of the person presenting it. How can that be done when the person is wearing a mask that covers half his/her face? I suggest that it cannot, at least in some cases.

Why does this matter given the state of affairs right now? The authorities are surely not going to run stings or cite servers for underage sales where a mask was used given the world we are living in, right?

  • First, underage sales are a serious issue and a criminal offense, and the state will continue to enforce that law, despite the extra burden on permit holders.
  • Second, making a sale to an underage person without validly checking ID removes the protections of Ohio’s Dram Shop Act from the permit holder business.

Dram Shop protection prevents a third party or customers from suing the restaurant for liability resulting from accidents that occur off-premises after alcohol consumption at the restaurant.  This is the scenario where a person is served alcohol and then causes a serious car accident.

Provided the restaurant validly checked the ID of the customer ordering the alcohol, which involves comparing the picture on the ID to the person presenting the ID, then the restaurant is protected from liability claims even in the event a “fake” ID was given and the person was actually underage.

Dram Shop protection likely will not be available if the customer was wearing a mask when the ID was checked, and that person subsequently causes an accident.

In short, the server must look at the customer’s face where there is any possible question about whether the customer is 21 years of age. Thus, permit holders can and should request the customer to temporarily lower or remove the mask when checking ID before furnishing any alcohol. If a customer were to refuse (which would be odd in and of itself), then the permit holder should not serve that person alcohol.

Put another way, a valid ID check probably cannot occur unless the customer’s face is seen by the server. And a restaurant still has a very real interest in ensuring that its servers are conducting valid ID checks, even when the customer is wearing a mask mandated by another law.

John N. Neal is head of the Walter | Haverfield Hospitality and Liquor Control team. He can be reached at jneal@walterhav.com or at 216-619-7866.