John Neal

A more recent article that explains Ohio’s policy change on the sale and delivery of hard liquor drinks can be found here.

March 16, 2020 

In conjunction with the Ohio Governor’s Office, the Ohio Department of Health ordered the stoppage of on-premises food and alcohol service effective 9:00pm EST March 15, 2020. The move is designed to combat the spread of the coronavirus (COVID-19). Many states have followed suit.

The Ohio Order specifically exempts carry-out and delivery of food and alcohol (meaning beer and wine only).  The Governor has encouraged the use of carry-out and delivery as options, and for the public to continue to use local restaurants. From a moral perspective, restaurants that stay open to help ensure the public has access to food are to be commended, especially considering that most operations will lose money doing so.

Of course, nothing that has been issued to date grants any protection or immunity to restaurants for continuing operations, and as such, the general principles of liability and negligence will apply to how a food service operation interacts with the public.

National and state agencies have issued guidance, and in some cases, orders, with regard to managing the coronavirus outbreak.  Although most people have seen them, restaurants that are going to maintain an operable kitchen must remember to advise its employees, preferably in documented writing, that they must:

  • Wash hands often with water and soap (20 seconds or longer) – Employees should be required to do this at regular intervals.
  • Dry hands with a clean towel or air dry your hands – Restaurants should ensure that clean, disposable papers towels are available and direct employees that they be used.
  • Cover your mouth with a tissue or sleeve when coughing or sneezing (and excessive sneezing or coughing should probably result in an employee being sent home).
  • Avoid touching your eyes, nose, mouth with unwashed hands or after touching surfaces – Employees should be advised not to do these actions, and immediately directed to clean their hands if they inadvertently do.
  • Clean and disinfect “high-touch” surfaces often – The restaurant should wipe down with disinfectant such surfaces at regular intervals, and if possible, have appropriate hand sanitizers on site and used by employees frequently.
  • Continue to strictly comply with all existing regulations of the health department relative to operating a food service licensed business.

Not only should these procedures be advised, management should monitor and enforce them.

Understand, of course, that an employer can (and should) require an employee to go home and stay home if the employee has symptoms of coronavirus (or, quite frankly, is sick in any fashion).

In her March 15th order, Dr. Amy Acton, director of the Ohio Department of Health, found that coronavirus is “spread between individuals who are in close contact with each other (within about six feet) through respiratory droplets produced when an infected person coughs or sneezes.  It may be possible that individuals can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose or eyes.”   She also cited research to “confirm that COVID-19 is spread simply through breathing, even without coughing.”  That last finding is alarming.

This leads to one of the most significant pronouncements of the March 15th Order regarding “social distancing.”

Physical Premises Restrictions

Per the March 15th Order, “Lines for carry-out in these establishments must have an environment where patrons and staff maintain social distancing (six feet away from other people) whenever possible.”

Because of this and the general nature of the spread of coronavirus, a restaurant should devise carry-out and delivery programs designed to prevent the spread of coronavirus.

If possible, a restaurant still selling carry-out foods would be well-served to consider whether the delivery of that food and alcohol can be accomplished on a porch, patio, or outdoor open space on premises.  In this way, a restaurant can avoid having possible exposure to the indoors and kitchen area, it will serve as a buffer between the customer and employees, and it will prevent general congregating indoors.

In the event that a premise simply is not physically situated to allow for this kind of service, then a restaurant should consider utilizing the smallest indoor area closest to the door, confined in some fashion to keep patrons from sitting or congregating in the restaurant.

Although difficult in practice, the Director’s Order requires that patrons and staff stay six feet away from each other.  As such, employees should actively ask people in line to stay at least six feet away from each other while waiting, and a sign to that effect is advisable.  If a staging area can be situated where customers can pick up their own orders, this would be ideal.

Delivery

Like the restrictions for carry-out, delivery should be designed to minimize any contact between employee and customer. Again, payment should be made in advance over the phone, and other than handing the order to the customer, there should be no contact between persons. (The employee may even ask the customer if she wants the order left on the doorstep as opposed to handing it to her.)

In addition to these considerations about contact, restaurants should remember:

  • Food can be delivered by employees or third-party services, but beer and wine cannot be delivered using third party services unless they have an H-class permit. Not a lot of third parties have that licensing.
  • An employee must be 18 years old to deliver or sell carry-out alcohol.
  • The restaurant should consult with its insurance agent and/or carrier to ensure that employees making deliveries are covered under liability insurance coverage (or, more to the point, that any significant increase in delivery is covered).

General Terms of Carry-Out and Delivery Business

Patrons should be advised when placing an order:

  • No person showing any symptoms of illness will be served, even carryout – If you’re sick, send someone else to pick up your order.
  • Credit card payments in advance over the phone will be the only payment method allowed. This will eliminate the contact involved in the exchange of cash between employee and customer.  Other than possibly handing the bag of food over to the customer, there should be no contact or exchange of items between employee and customer.   If a customer has to pay on site and the restaurant decides to accept that, then the employee should manually type in the card authorization numbers.
  • Due to the increased contact that would result from a dispute about an order and the possibility of contaminated food coming back to the restaurant, the restaurant should advise that all sales are final, no returns or exchanges.
  • Restaurants can and should increase their prices and are entitled to up-charge for what they are doing due to all the risk, extra procedures, increased costs, and inability to generate revenue from full kitchen use by on-premises dining. Rules of reasonableness must apply, and increased prices should be uniform to all customers.  Remember to change your 30-day price list for beer and wine at your earliest opportunity.

Other Considerations

Wine.  Remember that Ohio law defines 42 proof and below spirits as “wine”, and therefore you are allowed to sell those at carry-out and delivery.  This includes such items as Baileys, and some popular low-proof whiskeys and vodkas.  You can never sell spirituous liquor (above 42 proof) at carry-out or delivery.

Wage and Hour considerations.  Remember, as always, to keep close track of employee time with delivery work, and to pay proper compensation and any overtime.

Mileage Reimbursement for employees.   A restaurant does not have to reimburse employees for mileage driven while making deliveries PROVIDED that the employee is making sufficiently more than the minimum wage to offset the driving costs.  Remember that mandatory expenditures that an employee incurs as part of his/her job cannot cause the employee to make less than the minimum wage.  So if an employee is right at the minimum wage, then yes, the employer must reimburse.  If the wage is high enough to cover the cost of mileage incurred, then no.  Although not the required amount, the IRS standard reimbursement rate is 57.5 cents per mile.   This may be hard to determine on an employee-by-employee basis, so instituting a standard amount per delivery can suffice.

Insurance.  Every restaurant should review whether they have a business interruption or other income loss covered claim as a result of the coronavirus and its related events. In many cases, there will not be a claim for business interruption because it is not caused by “physical loss or physical damage,” or there may be a pandemic exclusion.  Regardless, the easiest initial approach is for the restaurant to request a coverage review from its broker as a result of coronavirus, and then each policy must be reviewed as to its own particulars. Coverage reviews from brokers are generally free, and are an excellent starting point for an insurance analysis.

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

 

John NealApril 7, 2020

Ohio restaurants and bars with an on-premises liquor permit may now sell drinks made with high-proof spirits for carry-out and for delivery with the purchase of a meal.  Customers are limited to two drinks “per meal.” The move comes after the Ohio Liquor Commission promulgated emergency rulemaking on April 7, 2020, allowing for this change.

Details of this Rule are as follows:

  • Drinks cannot contain more than two ounces of spirituous liquor per container.
  • Food must be purchased in conjunction with the purchase of order. However, beer, wine, and low-proof products, in their original sealed containers were always allowed to be sold at carry-out/delivery, and that is still permitted (unless a local restriction is reflected on the liquor permit.)
  • All drinks must be in a closed container.
  • All purchases are subject to the open container law upon leaving the permit premises.
  • The permit holder must comply with all applicable state tax laws.
  • The permit holder is subject to all liquor laws and rules including hours of operation, minimum age requirements, and the prohibition against sales to intoxicated persons.
  • Establishments that take advantage of the rule must have a food service license issued by its local health department.

The rule remains in effect for up to 120 days. If you have further questions about this new rule or any of Ohio’s recent policy changes in light of the pandemic, please reach out by emailing us here. We are happy to help.

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.

 

John NealApril 10, 2020 

On April 10, 2020, Ohio Governor Mike DeWine announced the creation of a state permit, which authorizes food trucks to operate at any of the state’s 86 rest areas. The move is an effort to help feed truck drivers and other essential personnel during the COVID-19 crisis.

The permit application, managed by the Ohio Department of Transportation, can be found here.

The following rules and guidelines apply to all food truck operators at Ohio rest stops:

• The purpose of the permit is to sell food.
• No beverage sales are allowed except for coffee.
• Operators are not permitted to sell pre-packaged snacks and desserts (i.e. candy and chips) in order to support existing on-premise vending operations, unless there are no snack and vending machines on site.
• All food truck workers need to wear masks and gloves at all times.
• No self-service condiments are allowed.
• When an order is ready, operators must text the customer in an effort to discourage lines.
• The following advertising is prohibited: advertising in the rest areas, on a highway right-of-way, on food finder apps and on social media. Advertising is only permitted on the food truck itself.
• Operators need to comply with all department, state and federal rules and Ohio Department of Health guidelines.

For a complete list of terms and conditions associated with the food truck permit, go here.

For additional legal questions regarding the service, sale and delivery of food and alcohol, please reach out to us at marketing@walterhav.com. We’re happy to help.

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.

John NealMay 8, 2020 

On May 7, 2020, Ohio Governor Mike DeWine announced that restaurants and bars can reopen their establishments to patrons with outside dining allowed on May 15 and inside dining beginning May 21. The move comes after DeWine closed these establishments statewide for on-premises dining on March 15 due to the pandemic. Since then, DeWine established a restaurant advisory group, comprised of professionals from the Ohio restaurant industry and state and local health departments, to develop the following guidelines to reopen establishments.  Guidelines are mandatory and include “recommended best practices.”

Establishments must take affirmative preparatory steps if they intend to open for on-premises dining under these rules, including, for instance, (1) both a written, posted floor plan and kitchen floor plan designed to reflect maximum capacities in light of social distancing requirements, (2) written justifications for employees who will not wear masks, and (3) ensuring employees are conducting health assessments (e.g., temperature checks) daily before work.

Establishments MUST remember that patron mask use does not excuse the requirement that the establishment check ID to ensure no one under the age of 21 is sold or served alcohol, AND Ohio law requires that the appearance of the patron matches that of the ID.

The following rules and guidelines apply to the reopening of restaurants and bars in Ohio:

  • Clearly labeled signs at the entrance of all businesses should list COVID-19 symptoms.
  • Establishments must consider social distancing with their floor plans and ensure a minimum of six feet between parties.
  • If a six-foot distance is not possible, utilize barriers such as Plexiglas® between tables. Tall booths may also act as a barrier.
  • Groups of over 10 people are prohibited. The congregation of groups is heavily discouraged.
  • Employees are encouraged to wear masks. However, kitchen workers standing over hot surfaces such as grills are not required to wear masks while working. The final decision on face coverings will be deemed by the owner of the establishment. Businesses must have a “written justification” producible upon demand for any employee not wearing a mask.
  • Employees must perform a daily symptom assessment. If an employee exhibits symptoms, establishments must require the employee to stay home.
  • Patrons who exhibit symptoms are prohibited from entering the establishment.
  • Patrons waiting for carry-out meals should do so outside. Ordering areas should still comply with social-distancing guidelines.
  • Salad bars and buffets are only permitted if served by staff. Common-area items such as condiments should be removed completely.
  • Frequent hand cleaning and hand hygiene are required of all parties.
  • Employees, like servers and cashiers, are not required to wear gloves.
  • Daily cleaning of the entire establishment is also required. Cleaning of tabletops, chairs and menus between seatings is also required.
  • All high-touch areas should be cleaned every two hours.
  • Bars with tables and chairs are advised to follow the above guidelines.
  • Bars with open spaces where there is no seating are not permitted to reopen. Instead, it these bars may set up picnic tables or alternative seating options in order to open on the May 15 and May 21 dates.

For a complete list of the recently announced rules and restrictions governing the re-openings of Ohio restaurants and bars, click here.

The Ohio Restaurant Association is offering signs for its members to display that will describe both the state’s coronavirus regulations and a commitment of the establishment to follow the rules.

If you have additional questions regarding the reopening of Ohio restaurants and bars, please reach out to us here. We are happy to help.

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.

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.