12.04.09

Cancellation Policies and the Dreaded Chargeback (Part 1)

Posted in Ownership of a Hospitality Business at 2:18 pm by Frank Petrosino

Mr. and Mrs. Smith have stayed at your Vermont inn a number of times in recent years. You are glad to see that they have yet again made a room reservation for next Saturday night and have requested their usual room, which carries a weekend rate of $250 per night. Your cancellation policy clearly states that for room reservations not cancelled by 6:00 p.m. (your time) on the night of the reservation, the person making the reservation will incur a charge equal to the cost of the night’s stay plus tax. Saturday night rolls around, and you get a call from Mr. Smith at 8:00 p.m. Mr. Smith informs you that he wants to cancel his and his wife’s room reservation. You dutifully charge Mr. Smith’s credit card for the cost of the night’s stay (i.e., $250) plus tax (i.e., 9% of $250, which equals $22.50). A few weeks later, you receive a chargeback notification telling you that Mr. Smith disputes your $272.50 charge and asking you to provide documentation supporting the charge. What do you do?

Chargeback Notifications

Generally speaking, a chargeback is a charge made against your credit card merchant account because your customer disputes a charge you made to the customer’s credit card. The dispute usually triggers the sending of a notice to you of the chargeback. This notice is usually called a chargeback notification, a retrieval request, or something of similar ilk. Any such notification or request will ask you to provide certain information in order to dispute the chargeback. Please take careful note of the deadline to respond. You may only have as little as 7 days to respond, depending on what the notification or request mandates.

Responding to a Chargeback Notification

Your response to a chargeback notification regarding cancellation or no show charges actually starts well before you receive the notification. To have any chance of succeeding, you must first have had in place a clearly written cancellation and no show policy. Such policy must identify the circumstances in which a customer will be charged and what the charge will be. Here is a sample cancellation and no show policy:

“Please notify Hotel Opulence immediately of any changes or cancellations to your reservation. If you do not show up to claim your reserved room(s) or if your reservation is not canceled by 6 p.m. Eastern Standard Time on your scheduled arrival date, you will be charged for one night’s stay (per room reserved) at the average daily rate you would have paid (per room reserved) for all the days covered by the reservation, plus all applicable tax due. ”

Any cancellation or no show policy you use must be clearly communicated to your customers. You will, of course, want the policy posted conspicuously on your website and at your establishment. During the reservation process, you need to at least communicate to the customer (1) the applicable room rates, (2) the hotel’s street address and other contact information, (3) the reservation conformation code and the need to retain it, and (4) your cancellation and no show policy. This can be done through a confirming letter sent via email or regular mail (or both); keep a copy of the confirmation letter for your records.

If the customer cancels the reservation either before or after the cancellation deadline, keep a written record of the date and time the cancellation was processed and provide the customer with a cancellation number. It is good practice to send a notice to the customer confirming the date and time of the cancellation, reminding the customer of your cancellation policy, and showing the amount the customer was charged (if a charge is warranted).

In a no show situation, it is good practice to send a notice to the customer detailing the reservation, confirming the no show, reminding the customer of your no show policy, and showing the amount the customer was charged.

You will want to have a chargeback response procedure ready so there is no delay in responding to the chargeback notification. Such procedure should include a calendaring system to remind you of response deadlines. Ready access to all reservation, cancellation, and no show records is a must. Regularly obtain and read the chargeback policies (and policy updates) for each credit card provider whose card you honor. Your procedure should document each step taken during the chargeback response process and should also keep track of historical dispute results.

Once you respond to a chargeback notification, it is up to the applicable credit card company to analyze your response and determine whether the chargeback is justified. If the credit card company sides with you but the customer is still disputing the charge, you may be able to utilize the credit card company’s dispute resolution procedure (e.g., arbitration in which the credit card company acts as the arbitrator). The whole process can take a week or it can take many months depending upon the stage in which the chargeback dispute is settled.

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09.25.09

It’s All About Access

Posted in Public Accommodation at 8:19 pm by Frank Petrosino

Are you a “public accommodation”?  It’s not quite like declaring “I am Spartacus.”  Or is it?  In a world where those with physical or mental impairments have to struggle to do even the most mundane tasks – like grocery shopping or grabbing a quick bite at the local café – gaining access to “places of public accommodation” can be daunting.  Stairs and narrow doorways might as well be a barbed wire fences to those who get around via wheelchairs.  As a “public accommodation,” you have the opportunity and the duty to do what you can to make your wares and services available to those with physical or mental impairments.

Since the dawn of humankind, there have always been those who suffered from physical and mental impairments.  The cruelty visited upon these folks throughout the ages has been horrific to say the least.  Mercifully, there have always been those who have been able to look beyond the “differences” and stand up to the challenges of access and isolation.  In the United States today, champions of equal access for those with “disabilities” are armed with the Americans with Disabilities Act (the “ADA”) and corresponding State laws.  Vermont’s public accommodations law can be found at 9 V.S.A. Sec. 4500 to 4507, and it generally mirrors the ADA (though not in all respects). 

One of the key requirements that the ADA places on “public accommodations” is that the public accommodations remove the barriers that prevent access to their “places of public accommodation.”  Under the ADA, the “public accommodation” is the individual or private entity that operates places that are open to the public (i.e., “places of public accommodation”).  Places of public accommodation include hotels, restaurants, retail stores, museums, recreational facilities, and the like.                  

When the ADA focuses on facilities that act as places of public accommodation, it talks in terms of “architectural barriers” and their removal.  Examples of architectural barrier removal include installing wheelchair ramps, widening entrances, widening isles, providing signage in Braille, and installing grab bars in bathrooms. 

A public accommodation has a duty to remove architectural barriers in existing facilities so long as such removal is “readily achievable.”  The “readily achievable” concept is a balancing act the ADA does between its goal of access and the reality that many architectural barriers cannot be removed without undue burden.  The term “readily achievable” means that the removal of an architectural barrier is able to be carried out without much difficulty or expense. 

Whether such removal is “readily achievable” depends upon the condition of the specific “place of public accommodation.”  For facilities constructed for first occupancy before 1993, the standard of architectural accessibility is less than the standard for facilities constructed for first occupancy during or after 1993.  Factors to be considered in the “readily achievable” analysis include the nature and cost of the action needed, the overall financial resources of the “public accommodation,” and legitimate safety requirements of the facility.  If the removal of an architectural barrier would be significantly difficult or expensive, such removal will be considered an “undue burden” and is not required to be made until the undue burden is lifted. 

Where one barrier removal would cause an “undue burden,” the public accommodation is required to provide (if possible) alternatives that are readily achievable.  For instance, if permanent shelving is too high for some disabled patrons and replacing the shelving would be an undue burden, the “public accommodation” can place signs encouraging patrons to ask for the staff’s help in retrieving goods from such shelves.  Staff should also be trained to be proactive in helping as well.  Restaurant and hotel staff operating out of old buildings with poor access should, for example, be at the ready to help any patron that needs help entering the facility.  The key is to think proactively and anticipate the needs that disabled patrons will have when they enter the place of public accommodation. 

As a “free and democratic” society built upon a foundation of civil rights, we are necessarily tasked with the duty to at least recognize the differences among us.  Those who are disadvantaged because of a “disability” have the right to share in the opportunities that our society provides.  Places of public accommodation are main access points to such opportunities.  Consequently, a public accommodation has a very important duty to make sure its place of public accommodation provides such opportunities to the extent it is within its means to do so.  It does not only make sense from a societal standpoint, it makes good business sense.  So stand proudly, declare “I am a Public Accommodation” (assuming you are), and know that your efforts in providing equal access benefit everyone.

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01.26.09

Buying or Selling Your Hospitality Business (Part 2)

Posted in Ownership of a Hospitality Business at 9:58 pm by Frank Petrosino

Representations and Warranties
No matter how much due diligence is done, most buyers still want sellers to give the buyers contractually binding representations and warranties about the past and current condition of the business.  The idea here is that if after a sale a buyer encounters an unpleasant surprise that relates to the seller’s action or inaction, the buyer wants to be able to go after the seller.  For example, if a seller of a resort hotel makes a representation that has remitted all collected trustee taxes to the appropriate taxing authorities and such representation turns out to be false, the seller will be liable to the buyer for any damages the buyer suffers as a result of the misrepresentation (even if the representation was innocent).

Conclusion
As on any road to achievement, the key to a successful and mutually rewarding sale of a business takes a combination of realistic self-confidence, bulldog determination, good timing, and a touch of audacity.  Planning and due diligence are essential to figuring out what is being purchased and reducing the risk of post-closing surprises.  If the process concludes well, the seller can move on to new adventures, and the buyer can make its new business shine.

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01.20.09

Buying or Selling Your Hospitality Business (Part 1)

Posted in Ownership of a Hospitality Business at 4:13 pm by Frank Petrosino

During the lifecycle of a business, its owners may get the opportunity to sell the business as a going concern.  Depending upon the type of business, the buyer may be a couple looking to get into the bed and breakfast market or a multinational resort owner looking to expand its market share.  Regardless of the size of the transaction and the types of players involved, however, there are common elements to every sale of a business. 

Finding Buyers and Sellers
The business of selling a business is no mystery.  Owners looking to sell a business can actively seek potential buyers by going through a business broker or marketing the business themselves.  In certain industries, such as the hospitality industry, a broker can really help bring buyers and sellers together and act as a liaison between the parties.  In industries with fewer players, sellers can market their businesses to potential buyers who may be direct competitors or who may be looking to vertically integrate.    

Circumstances will obviously dictate the tone of the search.  A financially distressed seller will have an air of desperation that a financially vibrant seller will not.  Be cognizant of relative bargaining positions, realistic about determining business value, and prepared for the likelihood that bargaining positions will affect the ultimate purchase price.   

Structuring the Deal – Asset Sale, Ownership Interest Sale, and Merger
There are three basic structures that can be used to effect the sale of a business: a sale of all the assets of the business; a sale of all the stock (or other ownership interest) of the entity (e.g., corporation, limited liability company) that owns the business; and a merger. 

Buyers who are not looking to assume all of the liabilities of a business will want to structure the purchase as an asset purchase.  In an asset deal, the buyer can generally pick which liabilities it wants to assume and which it does not.  For example, a hotel/restaurant business will carry current liabilities to its vendors, may owe long term debt to a bank, and may be a defendant in litigation.  A buyer is generally not going to want to take on the litigation liability or the long term debt (even if the bank would let the buyer take over the long term debt), and may or may not want to take on the current liabilities.  Of course, the buyer can also reject some of the assets (e.g., obsolete inventory).      

In an ownership purchase deal (called a “stock deal” in the corporate context), the buyer purchases the underling ownership interest of the entity that owns and operates the business.  Such an entity is usually a corporation or limited liability company.  In such a deal, the assets and liabilities of the business remain in the entity whose ownership is being purchased.  Contracts that the entity had with vendors and others will generally be unaffected.  The extent to which assets of the business remain unaffected, however, will need to be verified during the due diligence process (described below). 

In a merger, two entities will join together – one will survive and one will not survive.  The survivor becomes the owner of all of the assets and liabilities of the non-survivor.  Additionally, a merger of corporations may offer some tax advantages. 

The Due Diligence Process
The due diligence process allows buyers to determine what they are buying.  Of course, the financial condition of the seller’s business is of paramount concern.  Buyers also will want to investigate tax compliance, employee safety and benefit compliance, insurance coverage status, environmental and code compliance, intellectual property status, and litigation status.  For instance, when buying a restaurant, a buyer will want to know that the building where the restaurant is located is properly permitted and up to code, all servers serving alcohol are trained and certified, and all taxes have been paid. 

One key area in the due diligence process is determining whether the sale will violate any contracts the business has entered into.  If the buyer is looking to take over vehicle leases or key software licenses, the buyer must make sure that such contracts are transferable (even in a stock deal or a merger).  Transfer restrictions can be quite time consuming to deal with; give yourself plenty of time to work out such issues with third parties.

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01.15.09

The Fairytale of the Overtime Pay Requirements (Part 2)

Posted in Employment Issues at 3:38 pm by Frank Petrosino

Exceptions that May Be Relevant to the Recent Graduate
There are myriad exceptions to overtime requirements under both the FLSA and Vermont overtime laws.  The FLSA has white collar exceptions for salaried employees that many employers are familiar with. Since the recent graduate is being paid hourly, the white collar exceptions will not apply.  (It is possible, however, for chefs who are paid salary and meet certain other criteria under the white collar exemptions to be exempt from the FLSA’s overtime requirements.)      

One interesting Vermont exemption is specifically available for retail and service establishments.  Under this exemption, a restaurant is generally considered a service establishment as long as at least 75% of its goods and services are sold directly to consumers; any employee (including a chef, a cook, and a server) of a restaurant qualifying as a service establishment is exempt from Vermont’s overtime laws.  In practice, this Vermont exemption has very limited application because of the broad scope of the FLSA (which does not contain a similar exception).  For the fancy Vermont restaurant to have any chance of keeping the FLSA from applying to the recent graduate and having this Vermont exception apply, the fancy Vermont restaurant would have to fall below the $500,000 threshold, and the recent graduate could not during the scope of employment, take any deliveries, make any phone calls, drive, or process credit card payments.  Since the concept of interstate commerce is so broad, this might not even be enough. 

Enforcement and Penalties   
The recent graduate’s employment arrangement with the fancy Vermont restaurant creates a potentially significant liability for the fancy Vermont restaurant.  The recent graduate can easily file a complaint with either the Federal Department of Labor or the Vermont Department of Labor.  Such a complaint would trigger an investigation that would be less than pleasant.  Investigators must be allowed to enter a place of business in order to inspect all relevant records and question employees (expect all required postings to be checked at this time as well).

Penalties for overtime pay violations can include the payment of double the wages owed but not paid, payment of all expenses of enforcement, civil fines in the thousands of dollars, and even criminal fines and jail time.

Prevention is the Best Medicine
Though the fancy Vermont restaurant cannot change the past, it can implement procedures in order to avoid overtime issues in the future.  The first step is to learn about the FLSA and Vermont overtime laws (www.dol.gov (FLSA) and www.labor.vermont.gov (Vermont) are good places to start).  Second, all employment positions at the fancy Vermont restaurant should have written, detailed job descriptions that accurately set forth job requirements and functions.  Assuming they are accurate, job descriptions will help the fancy Vermont restaurant to figure out at the start of an employment relationship whether an exemption to overtime laws applies.Assuming no exception applies to the recent graduate, the fancy Vermont restaurant should immediately pay the recent graduate for any past wage deficiencies and commence paying the required wages (including overtime) going forward.  Doing this will hopefully give the recent graduate a happy ending and the fancy Vermont restaurant a less unhappy ending.    

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12.30.08

The Fairytale of the Overtime Pay Requirements – (Part 1)

Posted in Employment Issues at 10:54 pm by Frank Petrosino

Once upon a time, there was a fancy Vermont restaurant that was so popular the patrons had to make reservations at least 5 months in advance in order to get a table.  One day, proprietors of the fancy Vermont restaurant found themselves in need of yet another cook.  So, the proprietors went to the local culinary school and found themselves a recent graduate with a lot of promise.  The proprietors told the recent graduate that she could come cook at the fancy Vermont restaurant only if she worked many hours; however, the recent graduate would only be paid $10 per hour and would get no overtime pay. 

Now, the recent graduate slaves away in the sweltering kitchen of the fancy Vermont restaurant for 13 hours a day at least 6 days a week and is constantly told that this is what it takes to earn any status in the culinary world.  Must the recent graduate slave away with no hope of overtime pay?!? 

Overtime Pay Requirements in Vermont
Every time a Vermont employer permits an employee to work more than 40 hours per workweek, the employer must immediately ask, “Is this employee entitled to overtime pay?”  Assuming the employer does not have a contract with the employee to pay overtime, the employer will want to look to the Federal Fair Labor Standards Act (“FLSA”) and Vermont’s overtime laws (covered in Sections 381 through 396 of Title 21 of the Vermont Statutes Annotated). 

Under the FLSA, employees paid on an hourly basis are generally entitled to an overtime pay rate of 1.5 times their regular pay rate for hours worked over 40 in a seven-day workweek.  Employers are free to set the day and hour when a seven-day workweek starts and ends; however, it must be at a fixed time and cannot be changed unless the change is intended to be permanent.  Vermont overtime laws mirror the FLSA in terms of the amount of overtime pay for hourly employees and the calculation of the workweek. 

Of course, where there is a rule there are usually exceptions.  Both the fancy Vermont restaurant and the recent graduate are going to want to know if (a) the fancy Vermont restaurant is covered by either the FLSA or the Vermont overtime laws (or both) and (b) if either or both apply, whether there are any applicable exceptions to the overtime pay requirements. 

Employers Covered Under the FLSA and Vermont Overtime Laws
The FLSA generally applies to those employers who are engaged in interstate commerce and have annual gross sales or business volume of $500,000 or greater.  Even if the $500,000 threshold is not met, however, an individual employee may be covered in any workweek that such employee engaged in interstate commerce during the scope of her employment (e.g., the employee processed a credit card payment for a customer).  Interstate commerce is an incredibly broad concept that usually includes any activity that even remotely affects commerce that crosses State borders.  If our fancy Vermont restaurant, for instance, is located on a public highway, sends mail out-of-State, receives deliveries from out-of-State, serves out-of-State patrons, or takes credit cards, it is likely engaged in interstate commerce.

Under Vermont overtime laws, employers with two or more employers are covered.          

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12.19.08

Coughing in the Kitchen – Coping with AIDS and Other Communicable Diseases in Vermont Food Service Establishments (Part 2)

Posted in Health and Safety at 9:18 pm by Frank Petrosino

Vermont’s Food Service Establishment Rules
The Vermont Department of Health has issued Food Service Establishment Rules (go here to find a link to the rules: http://healthvermont.gov/regs/index.aspx).  These rules are designed to be in compliance with ADA and FEPA anti-discrimination rules.   Section 5-206 of the rules requires food service establishment employers to ask job applicants to whom a conditional offer has been made about any diseases they have, had, or have been exposed to that are transmissible through food.  In addition, if a food service employee is diagnosed with a disease transmissible through food, or otherwise suffers from symptoms that may be caused by a gastrointestinal illness, he is required to tell his employer. 

The Vermont rules list the four big causes of illness transmissible through food.  They are salmonella Typhi, Shigella spp., shiga toxin-producing Escherichia coli, and hepatitis A virus.  Notice that human immunodeficiency virus (“HIV”) is not listed.  Acquired immune deficiency syndrome (“AIDS”), which is caused by HIV, is also not listed.  Consequently, a food service establishment employer cannot take a way a conditional job offer to an applicant with HIV or AIDS if the person can do the job safely, with or without a reasonable accommodation. 

If a food service employer reasonably concludes that an employee or post-conditional offer applicant poses a direct threat due to a communicable disease, the employer may (and in many cases, must) usually exclude such employee or applicant (as the case may be) from the food service establishment.  Before making any exclusion determination, however, the employer must generally first consider whether there is a reasonable accommodation that could be made or whether the employee could be assigned and fulfill a vacant non-food handling position.  If an employee has been excluded from the food service establishment, the employer may need to keep the position open for when the employee recovers and returns.  The employee’s reinstatement rights may stem from the ADA or could arise from the Family Medical Leave Act (federal law) or the Parental and Family Leave Act (Vermont law).              

Conclusion
Keeping communicable diseases out of Vermont food-service establishments is of paramount concern to the owners of such establishments and to the public at large.  Such concern, however, cannot drowned out the rights of the infected or potentially infected job applicant or employee.  An employer’s prevention techniques must be executed efficiently, fairly, and tactfully. 

This article provides a brief overview of the topic of communicable diseases in Vermont food service establishments and is by no stretch of the imagination an exhaustive treatise on the subject.  I strongly encourage food service employers to read the Vermont Department of Health Food Service Establishment Rules (go here to find a link to the rules: http://healthvermont.gov/regs/index.aspx) and the EEOC’s Guide for Restaurants and Other Food Service Employers (http://www.eeoc.gov/facts/restaurant_guide.html), which are invaluable resources on the subject.  If you need guidance on a specific situation, please contact your attorney (preferably prior to taking action).              

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12.12.08

Coughing in the Kitchen – Coping with AIDS and Other Communicable Diseases in Vermont Food Service Establishments (Part 1)

Posted in Health and Safety at 10:07 pm by Frank Petrosino

You are short one sous-chef de cuisine at your upscale Vermont restaurant and have been searching a while to fill the position.  You have finally found Luka, a culinary school graduate who has experience working as a sous-chef in France and Belgium.  Luka appears to fit the bill exactly and would be a perfect addition to your restaurant.  Just when you are about to offer Luka the position, however, she tells you she is infected with HIV (or has AIDS or tuberculosis or any number of other potentially communicable diseases).

Discrimination Restrictions and Direct Threats
The Americans with Disabilities Act (the “ADA”) is a 1990 federal anti-discrimination law that is enforced by the Equal Employment Opportunity Commission (“EEOC”).  The ADA generally prohibits discrimination based upon a person’s disability.  In the employer-employee context, the ADA applies to private and public employers with 15 or more employees.

Vermont’s Fair Employment Practices Act (“FEPA”) also prohibits discrimination based upon a person’s disability.  In the employer-employee context, FEPA applies regardless of the number of employees the employer employs. 

A disability under both the ADA and FEPA is a physical or mental impairment that substantially limits one or more major life activities.  Physical impairments include hearing loss, blindness, and illness from pathogens transmissible through food.  Whether such impairment limits a major life activity is another question.  Clearly, hearing and seeing are major life activities.  Whether a pathogen limits a major life activity depends upon the severity and duration of the impairment.  Someone who contracted hepatitis A and has been bed-ridden for a year waiting for a liver transplant is likely to be limited in one or more major life activities (e.g., caring for oneself).  Someone who contracts salmonella and recovers in a few days (and is not otherwise disabled), probably is not limited in one or more major life activities for purposes of the ADA and FEPA. 

With regard to communicable diseases in the workplace, the employer may refuse to hire or may terminate or exclude from the employer’s premises any person who poses a direct threat to himself or others in the workplace.  The ADA defines a direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.”  The determination of whether a direct threat exists is made on a case-by-case basis and turns on the disability involved and the requirements imposed by the specific job function.  A prep cook with infectious tuberculosis would likely pose a direct threat when fulfilling her food preparation duties.  A diabetic prep cook who normally wears a medical bracelet (health regulations generally prohibit food preparers from wearing jewelry on exposed arms and hands) would not pose a direct threat when fulfilling her food preparation duties if she instead wore a medical necklace.    

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12.05.08

Welcoming Guests Accompanied by Service Animals (Part 3)

Posted in Health and Safety at 10:08 pm by Frank Petrosino

Can you ask that a service animal be removed from your establishment? 
The short answer here is “Maybe.”  You can ask that a service animal be removed from your premises when the service animal poses a direct threat to the health and safety of others.  Mercifully, service animals are generally well-mannered and clean.  If, however, a service animal is out of control or threatens another patron without just cause, it may be excluded.  Similarly, service animals may be excluded from food preparation areas because of the perceived health risk. 

A service animal that does not pose a health or safety risk, but is otherwise disruptive, can be excluded under certain circumstances.  In order to justify such an exclusion, however, you would need to show that you could not accommodate the service animal without a fundamental alteration to the nature of the business.  Where a restaurant or hotel is concerned, such a showing will generally be difficult.  Most service animals are unobtrusive and can easily navigate the premises of most establishments. 

If the service animal is being potentially disruptive as a part of its service function (e.g., barking to warn its owner that a person is at the hotel door), it cannot be excluded.  If, however, the potentially disruptive behavior is not a service function, and it does disrupt other patrons’ enjoyment of use of your establishment, the service animal may be excluded.  I suggest confirming that the disruptive behavior is not “task” the service animal performs, making detailed records of all complaints (i.e., get the names and contact information of those complaining and document the nature of the complaints), and giving a few warnings to the owner before demanding exclusion.  If it comes down to a lawsuit, you will want to establish that you confirmed with the owner that the disruptive behavior was not a service function, you did indeed receive complaints, and you gave the owner ample opportunity to minimize the disruption.            

Beware!  Asking the service animal to leave is not the same as asking the owner to leave.  The owner of an excluded service animal generally must be afforded the opportunity, without the company of the service animal, to enjoy the goods and services you have to offer.

A Case that Brings It Home to Vermont
In 2005, the Vermont Human Rights Commission decided a case called Corbeil v. The Music Club, and this case highlights the issues hotels and restaurants face with regard to service animals.  Ms. Corbeil suffered from post traumatic stress disorder and a panic disorder.  These disabilities were so severe that they limited Ms. Corbeil’s ability go out in public and interact with others in social settings. 

Ms. Corbeil’s physician advised Ms. Corbeil to get a service and psychiatric support animal to help Ms. Corbeil with her disabilities.  Acting on that advice, Ms. Corbeil did some research on service animals and subsequently obtained a Pomeranian puppy.  With the help of an online support group, Ms. Corbeil trained the puppy herself.  The type and extent of training was not specified in the case; however, the puppy was apparently trained to “perform the task” of maintaining physical contact with Ms. Corbeil and allowing Ms. Corbeil to pet the puppy in order to alleviate nervousness and panic attacks. 

One evening, Ms. Corbeil attended a wedding rehearsal at The Music Club in Williamstown, and she brought her puppy along.  When the owner of the club saw Ms. Corbeil with her puppy, the owner asked Ms. Corbeil to remove the puppy from the restaurant because of health regulation restrictions.  When Ms. Corbeil explained that the puppy was a service animal, the owner asked to see documentation to prove it.  Ms. Corbeil, of course, did not have any documentation to provide.  The owner then asked that the puppy be removed from the premises.  After an alleged emotional exchange, Ms. Corbeil removed the puppy and made a complaint to the Vermont Human Rights Commission.  The Vermont Human Rights Commission held that the puppy had received training and was a service animal.  It also held the owner liable for excluding the puppy from The Music Club premises.  

Needless to say, the owner of The Music Club did not handle the situation appropriately.  Please do not make the same mistake.  

The Heart of the Matter
The heart of your Vermont hospitality business is the ability to create a welcoming, comfortable, and enjoyable experience for all of your guests, including guests with service animals.  Though there may be certain misguided individuals who would lie about their pets being service animals, you can rarely know for sure if someone is lying.  Therefore, err on the side of caution.  When someone claims that his ferret is a service animal, assume that the ferret is indeed a service animal and the owner is not a weasel.

(For more information on this topic, see the U.S. Department of Justice website at http://www.usdoj.gov/crt/ada/animal.htm.)

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12.04.08

Welcoming Guests Accompanied by Service Animals (Part 2)

Posted in Health and Safety at 9:15 am by Frank Petrosino

Vermont’s Health Regulations
 The Vermont’s Health Regulations for Food Service Establishments (see http://healthvermont.gov/regs/03food_estab.pdf) provide that service animals are allowed on the premises of a food establishment, so long as they are kept away from food preparation areas and no health or safety hazard will result from the presence or activities of the service animal. 

How can you verify that an animal is indeed a service animal?
Well, the short answer is “You can’t.”  An owner of a service animal is not required to carry, or provide you with, documentation verifying the service animal’s status.  If it is not apparent that the animal is a service animal, you can ask the person with the animal (a) whether the animal is a service animal required because of a disability, and (b) what tasks the service animal performs.  If the person tells you that the animal is a service animal and then describes the tasks the service animal performs, that is the end of the inquiry.  You cannot inquire as to the type or nature of the person’s disability or ask for any documentation to support the person’s claim that the animal is a service animal.     

There, of course, will be instances where people try and game the system and claim that their pets are service animals when they really are not.  It can be very difficult to tell if a person is lying about whether an animal is a service animal.  The law, however, is clear and only authorizes the limited inquiry described above. 

People with disabilities, especially emotional and mental illnesses, have unfortunately been subject to explicit and implicit discrimination since the dawn of humanity.  Consequently, those suffering from disabilities have had to fight hard to obtain reasonable accommodations so that they can share, to the extent practical, in the benefits that places open to the public have to offer.   The ADA and Vermont law are both designed to provide this opportunity, and to this end, the laws err on the side of protecting people with disabilities from potentially uncomfortable inquiries regarding their disabilities and the resources they use to compensate for such disabilities. 

When a Service Animal is On Premises
Once an animal is claimed to be service animal, the animal may generally accompany the person with the disability in all areas in which your other patrons are normally allowed to be.  You are not, however, required to feed or otherwise care for the service animal; that is the sole responsibility of the service animal’s owner.      

Service Animals Causing Damage
If a service animal causes damage to the premises, you may ask the owner to compensate you for such damages so long as it is your customary practice to charge patrons without disabilities for the same types of damages.  A restaurant that does not customarily charge patrons for broken plates could not levy a charge for a plate broken by a service animal.  A hotel that customarily charges patrons for damaged furniture could charge for a chair damaged by a service animal.  

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