Chapter's 13 and 14 Hospitality Law

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Chapter 12 Your Responsibilities When Serving Food and Beverages

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Your Responsibilities When Serving Food and Beverages

 Serving Food  Truth-In-Menu Laws  Serving Alcohol

In This Chapter, You Will Learn: 1. A foodservice establishment’s responsibilities,

under the Uniform Commercial Code (UCC) and other laws to serve wholesome food and beverages.

2. To apply “truth-in-menu” concepts to the service of food and beverage products.

3. To assess the current legal risks associated with serving alcohol.

4. To implement training programs that result in the responsible service of alcohol.

Serving Food

Uniform Commercial Code (UCC)

Implied Warranty of Merchantability

Serving Food

 Legalese: Merchantable - Suitable for buying and

selling.

Serving Food

 Legalese: Foodborne Illness - Sickness or harm

caused by the consumption of unsafe foods or beverages.

Liability Tests

 Foreign/Natural Test

 Reasonable Expectation Test

Analyze the Situation 12.1 Harry Dolinski was the Executive Chef at the

Regal House hotel. One of his specialties was a hearty vegetable soup that was featured on the lunch buffet every Thursday. Pauline Guilliard and her friends decided to have lunch at the Regal House one Thursday before attending an art exhibit. Ms. Guillard read the lighted menu at the front of the buffet line. The chef's specials, including the vegetable soup, were written on the menu with a felt-tip pen.

Analyze the Situation 12.1 Ms. Guilliard selected the

vegetable soup and a few other items and consumed one full bowl of the soup. Three hours later, at the art exhibit, she suffered seizures and had difficulty breathing. It turned out that the soup contained MSG - a food additive to which she has severe reactions. Ms. Guilliard recovered, but her attorney contacted the hotel with a demand letter seeking compensation for her suffering.

Analyze the Situation 12.1 The hotel's attorney replied that the soup

served by the hotel was wholesome and that Ms. Guillard's reaction to the MSG could not have been reasonably foreseen. In addition, the hotel maintained that MSG is a common seasoning in use worldwide for many years. Thus, it would have been the diner's responsibility to inform the foodservice operation of any allergies or allergic reactions. As a result, the liability for Ms. Guillard's illness was hers alone.

Analyze the Situation 12.1 1. Did the hotel have an obligation (or duty as

outlined in Chapter 9, “Your Responsibilities as a Hospitality Operator”) to notify guests that the soup contained MSG?

2. How do you think a jury would respond to this situation? What level of damages, if any, do you think a jury would be inclined to award in this case?

3. What should the chef do to avoid similar problems in the future?

Steps to Take When a Guest Complains of Foodborne Illness

1. Document the name, address, email address, and telephone number of the guest who complains of an illness as well as the date and time the guest patronized your facility.

2. Document all items eaten in your facility by the guest during the visit in question.

3. If provided by the guest, obtain the name and address of the physician treating the guest. If the guest has not contacted a physician, encourage him or her to do so.

Steps to Take When a Guest Complains of Foodborne Illness

4. Contact the physician to determine if in fact a case of foodborne illness has been diagnosed. Privacy laws may prohibit the doctor from providing such information.

5. Notify the local health department immediately if a foodborne illness outbreak is confirmed, so the staff there can assist you in determining the source of the outbreak and identifying affected guests and employees.

Steps to Take When a Guest Complains of Foodborne Illness 6. Evaluate and, if necessary, modify your training and

certification efforts that relate to the areas involved in the incident.

7. Document your efforts and notify your attorney, your public relations specialist and/or company risk manager.

Analyze the Situation 12.2 Penny Mance was a single mother of three

children living in an urban apartment complex. She worked as a paralegal in a downtown attorney's office. One morning, Ms. Mance was asked to come in to work an hour later than her usual time. She used the opportunity to treat her three children to breakfast at a fast food restaurant near their home.

Analyze the Situation 12.2 The Mance family arrived at the restaurant at 8:00 A.M. and ordered breakfast. For their beverage selections, Ms. Mance ordered hot chocolate and the children selected orange juice.

After the family sat down, Tina, Ms. Mance’s six-year-old daughter, told her mother that she wanted to try the hot chocolate. The beverage had been served in a Styrofoam cup with a plastic lid. Ms. Mance replied that the chocolate was “probably too hot for her to try.”

Analyze the Situation 12.2 This comment was overheard by several guests sitting near the Mance family. Tina reached for the chocolate anyway; her mother, while trying to pull the chocolate away, spilled it on her own hands. Ms. Mance suffered second- and third-degree burns from the hot chocolate and was forced to miss work for three weeks. Upon returning, her typing speed was severely reduced as a result of tissue scarring on her left hand.

Analyze the Situation 12.2 Ms. Mance retained one of the attorneys

where she worked to sue the fast-food restaurant. In court depositions later on, it was estimated that the chocolate was served at a temperature of 190 degrees Fahrenheit. The restaurant's attorney claimed the chocolate was not unsafe when it was served. He pointed to the fact that Ms. Mance knew the beverage was probably too hot for the child as an indication that she was willing to accept the risk of drinking a hot beverage.

Analyze the Situation 12.2 In addition, the restaurant's attorney maintained that it was the child's action, not the restaurant's, that was the direct cause of the accident. Undeterred, Ms. Mance’s attorney sued for damages, including medical expenses, lost wages, and a large amount for punitive damages.

Analyze the Situation 12.2 1. Did the restaurant act negligently in the serving of

the hot chocolate? 2. Do you think that Penny Mance was negligent? If

so, how much difference, if any, do you believe that her negligence would make in the size of the jury's award?

3. Who should the restaurant manager and company look to for guidance on proper serving temperatures and techniques? Could you defend this source in court?

Truth-in-Menu

 Legalese:

Truth-in-menu laws - The collective name given to various laws and regulations that have been implemented to ensure accuracy in the wording on menus.

Analyze the Situation 12.3 Jeffery and Latisha Williams

arranged a fiftieth anniversary party for her parents. They reserved a private room at The Tannery, an upscale steak and seafood house located two miles from their suburban home. The Williams hosted a total of 10 people. Unfortunately, the service they received from the restaurant staff was not very good.

Analyze the Situation 12.3

When the check arrived, Mr. Williams noticed that a 15 percent charge had been added to the total price of the bill. When he inquired about the charge, his server informed him that it was the restaurant's policy to assess a 15 percent “tip” to the bill of all parties larger than eight persons.

Analyze the Situation 12.3

The policy, explained the server, was not printed on the menu but was to be verbally relayed anytime a guest made a reservation for more than eight people. Mr. Williams replied that the reservation was made by his secretary, and she mentioned no such policy when she informed Mr. Williams of the restaurant's availability.

Analyze the Situation 12.3

Mr. Williams refused to pay the extra charge claiming that it should be he, not the restaurant, to determine the amount of the gratuity, if any. When the restaurant manager arrived on the scene, he informed Mr. Williams that the server had misspoken and that the extra charge was in fact a “service charge,” and not a tip. Mr. Williams still refused to pay the added charge.

Analyze the Situation 12.3

1. Does Mr. Williams owe the extra 15 percent to the restaurant?

2. Does it matter whether the surcharge is called a gratuity or a service charge? How would that be determined?

3. What should the restaurant do to avoid similar problems in the future?

Truth-in-Menu  Preparation Style  Ingredients  Origin  Size  Health Benefits

 Nutrient Claim  Health Benefit Claim

 General Nutrition and Obesity

Truth-in-Menu  Preparation Style

 Grilled  Homemade  Fresh  Breaded Shrimp  Kosher-style  Kosher  Baked ham

Search the Web 12.1 Log on to the Internet and enter www.bk.com 1. Select: BK Cares at the bottom of the page. 2. Select: Nutrition Information. 3. Answer the following:

a. What are the 12 nutritional categories about which this company supplies information?

b. Do you think restaurateurs have a duty of care to provide this level of nutritional information? Why or why not?

c. What do you think the future holds for the level of nutritional information that foodservice operators will be required to supply?

Serving Alcohol Privilege of Alcohol Service

 Legalese: Depressant - A substance that lowers the

rate of vital body activities.

Serving Alcohol Privilege of Alcohol Service

 Legalese: Blood Alcohol Concentration (BAC) - A

measurement, expressed in a percentage, of the concentration level of alcohol in the bloodstream. Also known as “blood alcohol content” or “blood alcohol level” (BAL).

Serving Alcohol Privilege of Alcohol Service

Effects of Increasing BAL (or BAC)

BAL Level Effect .06 -.10 Significant decrease in reaction time and visual

abilities .11 -.15 Slurred speech and volatile emotions .22 -.25 Staggering, difficulty talking, blurred vision .40 Induced coma .50 Cessation of breathing and heart failure

Serving Alcohol Privilege of Alcohol Service

 Legalese: Intoxication - A condition in which an

individual’s BAC reaches legally established levels. These levels are not uniform across the United States. An intoxicated person may not sell or purchase alcohol, nor operate a motor vehicle.

Serving Alcohol Licensing of Alcohol Service

 Legalese:

Liquor License - A permit issued by a state that allows for the sale and/or service of alcoholic beverages. The entity holding the license is known as the licensee.

Serving Alcohol Licensing of Alcohol Service

 Legalese: Liquor Licensee - An entity which has

been issued a liquor license by the proper state authority.

Serving Alcohol Licensing of Alcohol Service Two general types of liquor licenses:

 Licenses for on-premises consumption (required for restaurants, taverns, clubs, etc.)

 Licenses for off-premises consumption (required for liquor stores and another markets that sell alcohol).

Serving Alcohol Liability of Alcohol Service

 Legalese: Third-Party Liability – The two areas of liability theory that a hospitality manager should be aware of focus on the duties of a host who holds a party where alcohol is served, and that of an establishment licensed to sell alcohol.

Liability of Alcohol Service

 Legalese: Dram Shop - A name given to a variety of

state laws establishing a liquor licensee’s third-party liability.

Analyze the Situation 12.4 Mark Hadley entered the Squirrel Cage

Tavern at 4:00 P.M. on a Thursday afternoon. He sat down at the bar and, according to eyewitnesses, uttered just a single word when approached by the bartender. The one word was “draft.”

As the bartender had only one brand of beer on draft, so she silently pulled the beer, handed it to Mr. Hadley, and accepted the $5 bill he offered in payment.

Analyze the Situation 12.4

Mr. Hadley left the bar some 15 minutes later having never said a word to anyone, leaving the change from his $5 on the bar counter.

Subsequently, Mr. Hadley was involved in an auto accident in which a 10-year-old boy was rendered sightless. The boy's parents sued the Squirrel Cage Tavern and another operation, the Dulcimer Bar.

Analyze the Situation 12.4 The Dulcimer Bar was sued because Mr.

Hadley had consumed 10 beers in three hours at that establishment prior to leaving it and driving to the Squirrel Cage.

Attorneys for the Squirrel Cage argued that their client could not have known of Mr. Hadley's condition when he entered their establishment, and that they were indeed acting responsibly in that they served him only one beer.

Analyze the Situation 12.4

Attorneys for the injured boy countered that the Squirrel Cage served alcohol to an intoxicated person, a violation of state law, and thus under the state's dram shop legislation was responsible for Mr. Hadley's subsequent actions.

Analyze the Situation 12.4 1. Did the Squirrel Cage violate the liquor laws

of its state? 2. Did the Squirrel Cage bartender act

responsibly in the service of alcohol to Mr. Hadley? Did she act differently from bartenders in similar situations?

3. What should the owner of the Squirrel Cage do in the future, if anything, to minimize the chances of a reoccurrence?

Training for Responsible Alcohol Service

Popular training courses include:

 ServSafe Alcohol Training & Certification  Controlling Alcohol Risks Effectively (CARE)  Training for Intervention Procedures (TIPS)

Training for Responsible Alcohol Service

Review the training program to ensure that it: 1. Is an approved training course. 2. Explains the nature of alcohol’s absorption

into the bloodstream. 3. Extensively instructs servers in the

methods of checking for legal identification, as well as for spotting false IDs.

Training for Responsible Alcohol Service

Review the training program to ensure that it: 4. Emphasizes early intervention when

confronted with possible overconsumption by guests.

5. Provides for documentation of training effectiveness.

Analyze the Situation 12.5 Michele Rodgers entered the

Golden Spike Bar and Grill on a Friday night at approximately 10:30 P.M. At the door, she was stopped briefly by the bar's security guard, Luis Sargota. He inspected Ms. Rodger’s photo ID, as he had been trained to do during the one-hour orientation class he attended on his first day of work.

Analyze the Situation 12.5

The photo ID on the picture showed her age to be 21 years and three months. The photo on the picture ID was clearly her own. She was not asked to remove the ID from her wallet. Ms. Rodgers entered the bar and, over a period of three hours, consumed five fuzzy navel drinks, each containing approximately 1.5 ounces of 80 proof alcohol served with fruit juice.

Analyze the Situation 12.5

Upon leaving the bar at 1:30 A.M., Ms. Rodgers was involved in a traffic accident that seriously injured a man driving home after working the late shift at a local factory. The family of the injured man sued Ms. Rodgers and the Golden Spike when it was discovered that Ms. Rodgers was in fact only 20 years old, and thus was not of a legal age to drink alcohol.

Analyze the Situation 12.5 The attorney for the Golden Spike maintained

that the bar acted responsibly in that it trained its security guards to check for identification prior to allowing admission to the bar and that Ms. Rodgers had presented a falsified identification card that the bar could not reasonably have known was false. In addition, the security guard stated that Ms. Rodgers “looked” at least 21 when she entered the bar. Thus, the bar was not guilty of knowingly serving minors.

Analyze the Situation 12.5

1. Is the bar responsible for illegally serving Ms. Rodgers? Was she served excessively?

2. Do you think a jury would find one hour of orientation sufficient in the guard’s training?

3. What could the owners of the Golden Spike do in the future to prevent a reoccurrence such as this?

Analyze the Situation 12.6

Samuel Vosovic attended a reception in the ballroom of the Altoona Pike Country Club. He was a salesman for a photography studio, and he attended the reception at the invitation of Ronald Thespia, one of the club's well-known members. Mr. Thespia's company sponsored the reception, which consisted of light hors d'oeuvres and an open bar.

Analyze the Situation 12.6 Over the course of two and one-half hours, it

was determined that Mr. Vosovic consumed approximately nine drinks. The reception was large enough to require three bartender stations in the room. No single bartender served Mr. Vosovic more than three drinks in the course of the evening. Lea Tobson, one of the club's bartenders did finally detect a significant change in Mr. Vosovic's behavior and, when Mr. Vosovic requested another drink, refused to serve him and summoned a manager.

Analyze the Situation 12.6 The club's food and beverage director determined

that Mr. Vosovic was in all likelihood intoxicated. The director asked him to turn over his car keys, and then instructed one of the club's wait staff to drive Mr. Vosovic home, give the car keys to his wife, and take a cab back to the club. One hour after being taken home, Mr. Vosovic got back behind the wheel of his car and still intoxicated, lost control of the vehicle and crashed into a tree, and he died instantly.

Analyze the Situation 12.6 His wife brought suit

against the country club under dram shop legislation in her state.

The club responded that it had acted responsibly in both refusing to serve Mr. Vosovic, and in ensuring that he got home safely.

Analyze the Situation 12.6

Mrs. Vosovic replied that her husband was upset at his treatment by the club when he arrived home, and that she “couldn't stop him” when he took the car keys from her, intent on returning to the club. She held the club responsible because, as she stated,“they got him drunk.” As additional evidence of the club's irresponsibility, she pointed to the tipping policy in place during open bars; essentially, in an open bar situation, the bartenders at the club were paid a percentage of the sales price of the alcohol consumed.

Analyze the Situation 12.6

Mrs. Vosovic's attorney claimed that the club's tipping policy encouraged its bartenders to over pour the drinks they served, as they sought to build the sales value of the event and thus their own income.

Analyze the Situation 12.6 1. Did the country club act responsibly in this situation? 2. What steps could a responsible beverage manager take

to reduce the possibility of such an incident reoccurring?

3. Would the club's tip policy influence a jury's view of responsible alcohol service by the club if the case went to trial? Why?

4. Was it foreseeable by the club that Mr. Vosovic, once home, would leave the house in his intoxicated condition?

What Would You Do? You are the general manager of a resort

hotel which is located in the relaxed atmosphere of the Caribbean islands. Your director of sales goes to an off-site event to network with potential group clients from 4-8 PM. As you know, this is an important aspect of the director of sales activities in order to develop and continue relationships with future clients to further the business of the resort.

What Would You Do? After the networking event has ended,

your director of sales is joined by his sister and several girlfriends, while continuing to drink alcohol. After an hour or so, the manager of the establishment asks your director of sales and his friends to leave as they were being very loud and boisterous, causing other patrons to complain.

What Would You Do? The director of sales says to the

manager, “Leave me alone. I’m off the clock and can have a few drinks.” The manager of the establishment is an acquaintance of yours and knows the director of sales works for you. One of your trusted employees witnesses the behavior of your director of sales and shares the information with you.

What Would You Do?

1. What action, if any, will you take against your director of sales?

2. When you learn of the location of the scene, what do you do?

3. What policies will you create to prevent this type of incident from happening again?

4. How do you handle the whistleblower employee who shared his/her knowledge of that evening?

Rapid Review 1. Log on to the Web site of the National

Restaurant Association (www.restaurant.org). Click on the Food Safety tab and then on foodborne illnesses.

 Identify at least three common foodborne illnesses and at least two ways each is spread.

 Create a 10-minute training session for dishwashers that would help them and you prevent these types of outbreaks.

Rapid Review 2. Do you think restaurants face greater liability in what

they serve or how they serve it? What impact will increased consumer acceptance of takeout foods have on your position?

2. Collect two takeout menus from restaurants near your home. Identify by circling the menu items, any reference to preparation style, brand-name ingredients, origin, size, or health benefit of their menu offerings. Compare the two restaurants use of these descriptions.

Rapid Review 4. “Prime rib,” despite its name,

does not have to come from prime grade beef. Contact your local butcher or meat purveyor to identify exactly which ribs are contained in a prime rib. Check this information against that found in the National Association of Meat Purveyors’ Meat Buyer’s Guide.

Rapid Review 5. As a drug, alcohol is considered a

depressant. Consult a medical encyclopedia (or www.webmd) to identify at least two other types of depressants as well as the following characteristics of depressants:  Their primary effects on basic metabolism  Symptoms of excessive dosage  Symptoms of withdrawal

http://www.webmd/

Rapid Review

6. Contact your local police department or state police. Identify the BAL in your state in which a driver is considered legally intoxicated. Discover whether the same BAL applies to minors. Ask for details on how officers identify those that they believe have exceeded the legal limits of alcohol consumption.

Rapid Review

7. Assume you operate a country western dance club. Create a “script” for your servers to use when they must tactfully refuse to serve alcohol to an intoxicated guest. Provide responses for your servers that can be used for the reactions you might reasonably expect from your guests.

Think about this on your way out...

Three Points to Remember:

1. Never Drink and Drive 2. Never Drive and Text and 3. Never, Never, Ever

Drink and Text!!

Chapter 12
Your Responsibilities When Serving Food and Beverages
In This Chapter, You Will Learn:
Serving Food
Serving Food
Serving Food
Liability Tests
Analyze the Situation 12.1
Analyze the Situation 12.1
Analyze the Situation 12.1
Analyze the Situation 12.1
Steps to Take When a Guest Complains of Foodborne Illness
Steps to Take When a Guest Complains of Foodborne Illness
Steps to Take When a Guest Complains of Foodborne Illness
Analyze the Situation 12.2
Analyze the Situation 12.2
Analyze the Situation 12.2
Analyze the Situation 12.2
Analyze the Situation 12.2
Analyze the Situation 12.2
Truth-in-Menu
Analyze the Situation 12.3
Analyze the Situation 12.3
Analyze the Situation 12.3
Analyze the Situation 12.3
Analyze the Situation 12.3
Truth-in-Menu
Truth-in-Menu
Search the Web 12.1
Serving Alcohol�Privilege of Alcohol Service
Serving Alcohol�Privilege of Alcohol Service
Serving Alcohol�Privilege of Alcohol Service
Serving Alcohol�Privilege of Alcohol Service
Serving Alcohol�Licensing of Alcohol Service
Serving Alcohol�Licensing of Alcohol Service
Serving Alcohol�Licensing of Alcohol Service
Serving Alcohol�Liability of Alcohol Service
Liability of Alcohol Service
Analyze the Situation 12.4
Analyze the Situation 12.4
Analyze the Situation 12.4
Analyze the Situation 12.4
Analyze the Situation 12.4
Training for Responsible �Alcohol Service
Training for Responsible �Alcohol Service
Training for Responsible �Alcohol Service
Analyze the Situation 12.5
Analyze the Situation 12.5
Analyze the Situation 12.5
Analyze the Situation 12.5
Analyze the Situation 12.5
Analyze the Situation 12.6
Analyze the Situation 12.6
Analyze the Situation 12.6
Analyze the Situation 12.6
Analyze the Situation 12.6
Analyze the Situation 12.6
Analyze the Situation 12.6
What Would You Do?
What Would You Do?
What Would You Do?
What Would You Do?
Rapid Review
Rapid Review
Rapid Review
Rapid Review
Rapid Review
Rapid Review
Slide Number 69