COVID-19 General Liability Concerns for Restaurants and Bars as Florida Enters Phase 2
On June 3, 2020, Governor Ron DeSantis announced that Florida (exclusive of some South Florida counties) would enter Phase 2 of the Re-Open Florida Task Force’s Plan for Florida’s Recovery. Phase 2 permits restaurants to open at 50% capacity indoors exclusive of employees. For the first time, bars, defined as “any licensee authorized to sell alcoholic beverages for consumption on premises that derive more than 50% of its gross revenue from the sale of alcoholic beverages” may open operate at 50% capacity indoors with bar areas to be open with seated service. The re-opening provision does not apply to nightclubs, which must remain closed. Both restaurants and bars may open outdoor seating, the only limitation being “appropriate social distancing.” Executive Order 20-68 modifies earlier Executive Orders and takes effect at 12:01 a.m. on June 5.
Since March, business owners, particularly restaurants and bars, have faced great, but predictable, challenges to their day-to-day operations in light of stay at home or shelter in place orders. Some less anticipated challenges include liability and ongoing lawsuits from employees for failure to provide PPE, not permitting employees to wear PPE, requiring employees to return to work, workers’ compensation claims, and wrongful termination claims. With more and more patrons and consumers returning to their favorite local establishments, bar and restaurant owners are left asking what exposure do they have for customer claims of exposure to COVID-19 at their premises.
Some states have predicted such claims, and in an effort to allow businesses to re-open without fear of liability for COVID-19 concerns, passed or proposed legislation insulating businesses from liability from civil claims related to COVID-19. North Carolina, Oklahoma, Utah, and Wyoming have passed laws which provide some immunity for premises owners for civil claims related to COVID-19. Similar bills have passed the Louisiana House and Senate, the Kansas Senate, and the Arizona House. However, no such legislation has been passed in Florida and further, tort reform was not included in the Task Force’s Report to Governor DeSantis. Accordingly, restaurants and bars will be charged with safeguarding their premises in accordance with existing Florida law.
In Florida, a premises owner owes a business invitee a duty to maintain its premises in a reasonably safe condition and further, warn of known dangers or dangerous conditions. Possible negligence claims related to COVID-19 in restaurants and bars may turn on the foreseeability of the condition, the adequacy of a warning, and the reasonableness of the safety measures the premises institutes to avoid transmission of or exposure to the virus.
Bars and restaurants should ensure compliance with all applicable Federal, State, and local guidelines and preferably maintain regular written documentation of such compliance. Available resources for restaurants and bars include the National Restaurant Association re-Opening Guide (updated May 22, 2020) available here: https://go.restaurant.org/covid19-reopening-guide?utm_source=press-elease&utm_medium=referral&utm_campaign=restaurant-reopening-guide. The FDA has provided a Food Safety Checklist for Best Practices for Re-Opening Retail Food Establishments During the COVID-19 Pandemic, available here: https://www.fda.gov/media/137867/download.
This article was published in the Summer 2020 issue of Florida Restaurant & Lodging, the official publication of the Florida Restaurant & Lodging Association.