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With the numbers of coronavirus infections and deaths in New Jersey rising once again, it’s understandable that the state government has taken action to prevent the spread of the disease. Various emergency orders have been issued which have placed the state under varying levels of lockdown, and recently, the state has begun to enforce these restrictions through criminal charges.

For restaurant and bar owners, it is imperative that they understand and implement the necessary procedures to reopen under these conditions. Otherwise, they not only put themselves, their employees, and their customers at risk of infection, but also risk criminal prosecution by the state.

What Restrictions Affect Restaurants and Bars?

First, it’s important to understand that coronavirus restrictions in New Jersey are spread across multiple publications by both Governor Phil Murphy and the Department of Health (DOH). The governor’s emergency orders that currently affect the business operations of restaurants and bars currently include EO-150, EO-157, EO-158, EO-163, EO-183, EO-192, and EO-194. The Department of Health has issued Protocols for Outdoor Dining (DOH ED 20-019) and Health and Safety Standards for Indoor Dining, both of which are considered implementations of the intent behind the governor’s emergency orders by the department.

Not all of these restrictions and guidelines will apply to every restaurant and bar. Unless a venue hosts both indoor and outdoor functions, it’s likely that it will only have to abide by certain parameters specific to its choice of indoor or outdoor seating. However, there are certain regulations all establishments must follow regardless of their choice, and the following set concern the regulation of face masks as detailed in EO-192.

• All employees, customers, and visitors must wear a mask at all times on the premises unless they are under two years of age or it is impractical due to eating, drinking, or receiving any other service that the mask obstructs.
• Anyone who refuses to wear a mask may be declined entry, unless doing so would violate the law.
• Employees may be allowed to remove their face coverings when not interacting with customers. The condition for this to be satisfied is the employee either working six feet away or more from others at a workstation or working alone in a walled space such as an office. Employees may also be allowed to remove their masks if the masks create an unsafe condition while performing their duties, such as a cook working near open flames.
• Employers at their expense must provide face coverings to their employees.

Additional universal regulations are found throughout the various emergency orders and DOH orders, which are meant to protect employees and customers alike. They are summarized as follows:

• Employers must require workers and customers to maintain at least six feet of distance at all times where it is practical.
• Employers must provide approved sanitization materials at no cost to both employees and customers.
• Employers must ensure that employees practice hand hygiene (hand washing), requiring employers to provide sufficient break time for this purpose if need be.
• Employees must routinely clean and disinfect all high-touch areas in accordance with DOH and CDC guidelines.
• Prior to each shift, employers are required to conduct daily health checks of their employees. These can include temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, and they must be consistent with CDC guidance.
• Employers must refuse entry to any sick employees and follow requirements of applicable leave laws.
• Employers must promptly notify employees of any known exposure to COVID-19 at the worksite.
• The worksite must be cleaned and disinfected in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19.

It is important to bear all of these in mind as you consider the next sets of restrictions. They will apply in tandem with each other as is applicable to your establishment, and you will be expected by the law to follow all of them to the best of your ability.

The following restrictions apply to any indoor dining establishment, which includes restaurants, bars, clubs, and lounges that serve food and drink. Casinos, retail businesses, recreational businesses, and entertainment businesses that serve food and drink must also abide by them.

• Restaurants, bars, clubs, and lounges are required to close their indoor premises for business by 10 p.m. and cannot reopen them until 5 a.m. Casinos, retail businesses, recreational businesses, and entertainment businesses must prohibit the consumption of food and drink indoors between 10 p.m. and 5 a.m.
• Establishments may have only up to 25% of the normal indoor capacity in their indoor areas at any one time. Employees are excluded from this count.
• Unless customers are family members from the same house, they are limited to eight to a table.
• Seating must either be arranged to achieve a minimum distance of six feet between parties or be separated by diving barriers.
• Customers may only order, receive, and consume food and beverages while seated.
• Smoking indoors, including vaping, is only permitted when the state law allows it.
• Barside seating is strictly prohibited at all hours.

The following restrictions apply to outdoor dining at any New Jersey food and beverage establishments, including restaurants, bars, clubs, lounges, casinos, retail establishments, recreational establishments, and entertainment establishments.

• Customers are limited to eight per table unless they are immediate family or from the same household.
• All groups are required to stay six feet apart, even in areas where groups are not assigned seating.
• Seating must achieve a minimum distance of six feet between parties.
• Reservations must be encouraged for greater control of customer traffic, and reservations must include phone numbers for the purposes of contact tracing.
• All dance floors, indoor or outdoor, must be cordoned off to the public.
• Alternatives to paper and physical menus should be considered. Acceptable forms include whiteboards and electronic menus.
• Customers must be provided access to a hand sanitizer station at the employer’s expense.
• Customers who wish to enter the indoor portion of the establishment from the outdoor portion must be required to wear a face covering. Exceptions are provided for those under two years of age and those with a medical reason for not doing so.

The outdoor areas covered by these restrictions have been redefined in EO-163 to include open air spaces with no roof or covering or with only temporary covering, with at least two open sides that would comprise over 50% of the total wall space if the space were fully enclosed.

Establishments with liquor licenses which would normally be limited to serving alcohol in indoor areas may temporarily expand their licensed premises to outdoor areas. These permits can be purchased and extended through the end of March 2021 for a nominal $10 fee. The procedures and permission for this were established in a special ruling (SR 2020-10) by the New Jersey Division of Alcoholic Beverage Control (ABC).

Penalties and Fines for Breaking Restrictions

For individuals who are suspected of breaking the restrictions, they face being charged with a Disorderly Person offense under N.J. Stat. § App.A:9-49 and/or N.J. Stat. § App.A:9-50. These statutes are meant to ensure that emergency and temporary orders by the governor and those departments under his jurisdiction are followed through deterrence. If found guilty of a Disorderly Person offense, the offender may serve up to 6 months in jail, pay a fine up to $1,000, or both at the discretion of the court. Additionally, the conviction will result in a criminal record that can impact employment, housing, and educational opportunities for years.

An employer, manager, or employee may also be charged with other applicable offenses such as Contempt and Disturbing the Peace. Some of these can be charged as felonies, which can result in prison sentences and more severe fines. Even if they are not charged as felonies, a conviction for them will worsen one’s case for leniency before a court in any subsequent personal injury suit brought by customers or employees infected due to violating coronavirus safety protocols.

If they are found to be breaking the restrictions, restaurants and bars may face a suspension or revocation of their liquor licenses and permits to serve alcohol in outdoor areas by the ABC. Such a case occurred in July when a Burlington County restaurant violated several social distancing requirements throughout July and August. For bars in particular, this can be a dire consequence for mistakes made in the heat of the moment.

It can be a terrifying prospect to have your business and employees accused of breaking these restrictions, given the various penalties that can be enforced. It is important that you take every step possible to limit the possibility of an accidental violation, and you should always remind your employees to follow the restrictions as closely as possible. If you do so, you avoid deliberate violations and help to ensure that if an accidental violation occurs, you and your staff will receive greater leniency.

Civil Liability

If a restaurant or bar violates COVID-19 restrictions and allows infections to occur at their establishment, they may also face civil liability in a personal injury lawsuit brought by the infected individuals. Steps can be taken to trace when and where an individual may have been in contact with others who carried the disease. If it is found that infection occurred at a restaurant, liability may be assigned to the business and its owners under New Jersey’s modified comparative fault model.

Arguments for the liability are enhanced when that restaurant is found to have been in violation of protocols set by emergency orders to prevent the spread of COVID-19. As liability increases, a restaurant or bar will be expected to pay additional damages to cover the medical expenses of the plaintiff incurred due to their infection.

If your business is named in a personal injury lawsuit, seek out a legal professional who will be able to work with you to ensure that you followed protocols and guidelines properly. An attorney will be able to document your procedures, investigate the plaintiff’s own behavior to know if they may have been infected elsewhere, and narrow down who may have infected the plaintiff at your restaurant. If your procedures were enforced properly and the person responsible for the plaintiff’s infection is found negligent in their own behavior, an attorney will be able to argue that your own liability is minimal or non-existent, thus reducing the compensation you must provide.

Federal Business Liability Protection

Currently, the House and Senate are discussing a second set of stimulus benefits to bolster the economy and support citizens, and one of the possible benefits is business liability protection. If this were to be included in the upcoming legislation, it would provide businesses, including restaurants and bars, an affirmative defense against excessive claims brought over plaintiffs being infected at their establishments. This is meant to serve as a compromise between the Republicans’ previous demands for blanket immunity except in cases of gross negligence and the Democrats’ belief that such immunity would have prevented most reasonable claims.

However, GOP leadership members such as Mitch McConnell have begun to back away from the demands for business liability protection. This along with state and local relief funds supported by Democrats have been major sticking points of the legislation being passed, and McConnell has suggested that both be removed from the legislation in order to push it through with an equal trade-off by both parties.

Whether or not the legislation passes with business liability protection, it is best not to plan for it to be a factor if someone sues your business. Instead, the best protection for you to seek is proactive prevention of infection. Even if an infection does occur, a court will be more lenient towards a restaurant or bar which has exercised reasonable caution, especially if you have to hire a lawyer to speak for you..

Frequently Asked Questions

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Who Should I Contact?

If you or a loved one is a restaurant or bar owner who has been charged with violating New Jersey’s coronavirus restrictions, contact an attorney for help right away. The attorneys at Rosenblum Law have helped many people beat or reduce similar charges. We can fight to protect your rights and reduce the chances of a conviction. E-mail or call Rosenblum Law at 888-815-3694 today for a free consultation about your case.