Getting Back to Business: Restaurants, Bars, and Breweries
Prepared by M. Jansen Voss
May 14, 2020
Under Alabama’s amended Safer at Home Order, effective May 11, 2020, restaurants, bars, and breweries offering on-premises consumption of food and beverages may resume such service but must limit party size at tables to no more than eight persons and maintain at least six feet of separation between people seated at different tables, booths, chairs, or stools. Employees must wear a mask or other facial covering that covers his or her nostrils and mouth at all times while in regular interaction with patrons or guests. Self-service drink stations, buffets, and salad bars are prohibited. Establishments are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Restaurants and Bars,” available at https://alabamapublichealth.gov/covid19/assets/cov-sah-restaurants-bars.pdf.
In addition to following the Safer at Home Order, and the Alabama Department of Public Health’s guidelines, I suggest restaurants, bars, and breweries consider the following:
Customer/Employee Safety
1) Clean, clean, clean, including washing serve ware, pots, pans, etc., since these items have been sitting unused for two months.
2) Toss expired food and beverages, or other items that you cannot confirm have been maintained at appropriate temperatures.
3) Obtain and utilize proper personal protective equipment for employees.
4) Re-arrange tables to achieve social distancing recommendations; this also includes the bar.
5) Consider one way in, one way out paths if your layout will permit.
6) Consider covering food as you bring it to the table.
7) Consider single-use condiments rather than community condiments.
8) Consider serving special condiments not typically found in single-use packs–like BBQ sauce–in small single-use covered plastic containers.
9) Consider using table cloths.
10) Consider crafting a policy for sick or potentially sick employees.
11) Ask patrons to notify you if they have been to your business and now have COVID-19 so that you can take additional measures to clean the premises. Video cameras and Point-of-sale records can help establish who the sick patron came in contact with.
Reminders concerning liquor sales and service
Many employees have been off-the-clock for two months and may be a little rusty in terms of liquor sales and service regulations. The following is a laundry list of issues to cover with employees as on-premises service opens:
1) Employees should check all IDs, including the front and back of IDs. When in doubt about an ID ask questions about the patron’s date of birth, address, etc. Ask for another document with the same name on it i.e. credit card, business card, check, water bill.
2) With respect to alcohol sales, there are four forms of acceptable ID in Alabama: a Driver’s License from any state, a Passport, a US Service ID, and a Non-driver ID issued by a state. Digital Driver Licences are valid forms of ID in Alabama. Do not accept an expired license.
3) Employees should be reminded of the signs of visible intoxication, such as bloodshot eyes, difficulty with eye/hand coordination, difficulty with balance, slurring of words, and drastic changes in mood.
4) Employees cannot consume alcohol on the job.
5) If an employee knows or has reason to know that a person of legal drinking age is purchasing alcohol for underage persons, the employee must discontinue service.
6) I recommend that the establishment maintain an incident log documenting liquor sales or service related incidents, such as attempts to pass fake IDs, and documentation of how staff deal with intoxicated or difficult customers.
7) Licensees cannot swap alcohol or purchase alcohol from other licensees.
8) Liquor bottles must be either shattered, or a large “X” placed on the label for proper disposal.
9) Licensees are required to maintain signage: ABC License, a notice concerning the number of ounces of liquor in a mixed drink, a Person in charge sign, and RVP/We ID sign if the licensee is certified through the Responsible Vendor Program.
10) New employees must be trained within 30 days of hire and all employees must do a semi-annual training.
Employment Law reminders
Again, many employees have been off for two months. Some may have forgotten common policies and procedures. It is important to remind employees about policies, procedures, and employment law issues.
1) Conduct a mini-employee orientation (refresher course), including employment law-related topics, alcohol sales regulations, and other company-specific policies.
2) Employees should be reminded of the company’s harassment and reporting policies.
3) Employees should be reminded of wage and hour regulations policies and procedures, including tip pool regulations.
Slip and fall issues
It has been a while since you have had dozens of sets of eyes–both customers and employees–inspecting the condition of your premises. So, before opening, I recommend conducting a survey and inspection of your premises for dangerous conditions or potentially dangerous conditions.
1) Inspect tables and chairs for disrepair.
2) Consider the use of non-slip mats.
3) Look for obstructions, and fall hazards both inside and outside.
4) Common causes of falls include wet floors, slick substances such as food waste and oils, and defects in the flooring (curled up carpeting or curled up mats).
Contracts/Leases
Over the last two months, there has been much discussion on insurance provisions and exclusions related to pandemics, business interruption coverage, and vendor contract provisions allowing or disallowing termination of contracts due to unforeseen circumstances. I suggest you take a look at the wide range of contracts you are a party to, or maybe a party to in the future.
1) Review all contracts, leases, and agreements. Locate the delay, force majeure, termination, and insurance coverage provisions in the agreements. Consult a lawyer if you believe you need to enforce those provisions, or if those provisions are being forced upon you.
2) Review all insurance policies for business interruption provisions or exclusions, and consider the availability of any such coverage.
3) Before signing a new vendor contract or lease consider force majeure and termination provisions in the event of another crisis causing a shutdown of the economy.
4) Consider business interruption coverage for your business.
Bankruptcy
COVID-19 and the accompanying economic shut down have taken a significant toll on restaurants, bars, and breweries. I am sure you have considered various federal, state, and local assistance programs–most notably the federal Payroll Protection Program. Many commercial landlords have been working with tenants to restructure or delay rent payments. Many commercial lenders have done likewise. However, you may still find yourself unable to meet current expenses, or find yourself at a loss on how to handle the financial burden of this unprecedented time. My partner Bill Bensinger who focuses his law practice on helping business owners navigate such complex and difficult issues suggest the following:
1) Speak with an attorney early. Financial difficulties, especially when caused by external factors such as the current pandemic, do not typically improve with time. Being proactive rather than reactive to demands from landlord, lenders, and vendors is a better strategy.
2) Protect personal assets. Many lenders will begin workout discussions by asking what property the company’s owner has that are separate from the company; property such as personal residence, investments, and retirement accounts. Don’t grant any new security interests in personal assets until you speak with an attorney.
3) Finally, be willing to walk away from the business if it is too far gone. Holes don’t get smaller when you continue to dig. Sometimes it is best to face the reality of the situation that it may be time to close a business.
Lastly, we may find ourselves in another lockdown if infections spike in the coming months as some medical professionals and scientists predict. It is important that you consider the issues set out above now to prepare for the possibility of a second lockdown in the coming months. Let’s hope that doesn’t happen, but let’s be ready if it does.
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