Adhere to social distancing guidelines or run the risk of having your liquor permit revoked for a full year May 21, 2020

Adhere to Social Distancing Guidelines or Run the Risk of Having Your Liquor Permit Revoked for a Full Year
By: Chuck Nemer

As part of Governor Mike DeWine’s plan for reopening Ohio businesses forced to close due to COVID-19, bars and restaurants were permitted to open their patios for dining beginning May 15 under strict social distancing requirements. These include spacing out tables at least six feet apart, limiting the number of customers on premise, and having all customers seated while eating food and drinking alcoholic beverages.

Following photos and reports that some patios were overcrowded and, therefore, unable to adhere to social distancing guidelines, Governor DeWine acted swiftly this week.  He is taking current law enforcement officers from across the state and making them agents of the Ohio Department of Public Safety Investigative Unit (“IOU”). These agents will perform compliance checks on crowded bars and restaurants to ensure that they maintain compliance with Ohio’s mandatory social distancing guidelines for reopening which can be found here: https://coronavirus.ohio.gov/static/publicorders/Directors-Order-Dine-Safe-Ohio.pdf.

If an agent from the IOU determines that an establishment is in violation of the guidelines, a liquor citation may be issued which will result in a hearing before the Liquor Control Commission (“Commission”). The Commission has the authority to suspend or revoke the establishment’s liquor permit.  Should the permit be revoked, the establishment will be unable to obtain a new permit for one year pursuant to the Ohio Administrative Code.  Further, a violation of the Director’s Dine Safe Order is a second-degree misdemeanor and, if found guilty, the establishment and/or the owner could be subject to a fine of not more than $750 or not more than 90 days in jail, or both.

Considering the backlash that some bars and restaurants have received based on perceived failures to implement social distancing rules, it is important to be proactive if your business has or intends to reopen.  As noted, it is the establishment’s obligation to limit the number of customers so that it can maintain control of its premises.  Should a customer become unwilling to adhere to the social distancing guidelines, the establishment may ask the patron to leave and, if the patron refuses to leave, the establishment should contact its local police department. Administrative penalties are entirely avoidable if the proper precautions are taken.

Further, many establishments are seeking ways to expand their outdoor dining facilities.  Any expansion of the permit premises must be approved by the Ohio Division of Liquor Control (“DOLC”).  The permitholder must file form DLC 4248, Request for Expansion of Permit Premises, with the DOLC.  An investigator from the Investigative Unit will inspect the expansion and submit a report to the DOLC.   It will then either grant or deny the request or provide further guidance to the permitholder for the Expansion Request to be granted.  No alcoholic beverages may be sold in the expanded area until the Expansion Request is granted.

Given the fluidity of the current situation and the complexity of some of these unprecedented challenges, restaurant owners should seek experienced legal counsel who can help advise on the best way to pursue required expansion permits and/or advocate for the business should it receive a liquor citation.

Charles Nemer is a principal attorney with Cleveland, OH-based McCarthy, Lebit, Crystal & Liffman.

 

While we would be thrilled to work with all individuals, institutions and companies that read our advisories, we  want to clarify that these insights do not form a lawyer-client relationship and represent only general guidance without access or reference to all of the specific facts and circumstances.  If you do wish to engage McCarthy Lebit on a specific matter, please contact us by calling 216-696-1422 or by filling out an inquiry form located here.  If you are already a firm client, please contact the McCarthy Lebit attorney you work with to discuss these advisories and/or the nature of your concern.  In closing, please understand that the law, especially during this pandemic, is changing rapidly and we would recommend that you regularly contact your legal counsel to ensure that your actions are taken based on the most up-to-date versions of the laws.

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