“Last Call for Alcohol? andnbsp;How the City Can Take Action Against Problem Liquor Permit Holders” was written by Susan M. Bungard and published In the Cleveland Bar Journalandnbsp;in May of 2005.
“Last Call for Alcohol? How the City Can Take Action Against Problem Liquor Permit Holders” was written by Susan M. Bungard and published In the Cleveland Bar Journal in May of 2005.
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.
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.