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Waiter, there's a dog in my soup ... Limited liability issues and ADA

publication date: Jan 28, 2014
 | 
author/source: Meg McDonough
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Waiter, there's a dog in my soup ... Limited liability issues and ADA

Your Responsibilities when Serving Food and Beverages to Guests and Paws

By Meg McDonough

The airlines have certain policies affecting liability issues as it relates to passengers traveling with animals; the airlines consider them (animals - pets) as "inanimate pieces of luggage" in which limited liability would apply. Essentially, the limited liability statutes which airlines have are very similar to those which hotels have with respect to people's property.

Class action lawsuits - device where multiple plaintiffs can join and engage in much more cost effective of mass tort litigation - can be very damaging to business as number of plaintiffs as size of awards which result from class action lawsuits.

In the United States, we have certain hotels and restaurants accepting animals who are accompanying the hotel guest as either a pet, companion, or service guide. Your hotel and restaurant should have a written and well-documented policy regarding the management (by the guest) of their pet / guide as well as identifying your [hotel / restaurant] obligations in the proper handling of health code issues, proper care and handling of said pet/guide, and most importantly, emergency responsiveness in the event a pet / guide has either been involved in an accident on your property or has demonstrated to be a cause for liability to another guest / dining patron / visitor.

During the course of dining at your restaurant, guests have an implied expectation to receive, at the very least, rudimentary professional F&B service by your employees; safety in the handling and presentation of F&B (health code); and an expectation of privacy. For example, guests who have made a confirmed reservation at your hotel / restaurant now have a contract: The guest stipulates they have made a commitment to arrive at the specified date/time and that the dining party will be paying for their meal The restaurant accepts the reservation and agrees to provide a table and related services to the diner as an agreement between the two parties. As part of that obligation between the guest and the establishment, there is an expectation that food will be properly prepared, and that all health code and maintenance issues are appropriately monitored by said establishment. In addition, there is an implied expectation of privacy.

When a diner who is accompanied by a pet-guide is received, they, too, have an expectation to receive the same level of services attenuated to any other dining guest and have even more specified protections afforded to them under ADA (handicap) laws. Their pet-guide does not generally "dine" per se at the table; however, their presence is under the owner's trained vigilance and there is a mutual relationship of personal comfort and protection to the handicapped owner. The pet-guide is also sufficiently trained to remain physically close to its owner; however there may be a "foreseeable" issue in the event another guest diner may trip and fall over a protruding leg/tail (body part) belonging to the pet-guide. Similarly, a child may unwittingly lean down to attempt to touch the pet-guide and become an obstruction of their own to either a waiter or another guest in passing - trip / slip and fall.

As you have probably already encountered a myriad of trip-slip-fall incidents in your restaurant, the best method to prevention is to have notification efforts in place.

Some U.S. restaurants which provide al fresco dining accept guests and their non-guide pets to join at the table. Occasionally, the dining patrons may be seen "hand-feeding" tidbits of their meal with their non-guide pets. However, health code rules will be in violation when the guest places a restaurant-owned bowl/plate on the floor (or even table) and allowing the pet to eat/drink from said bowl/plate.

Summer is here and you will want to make sure your pet policies are up to date. Don't forget to place a friendly notice to guests who are traveling with pets. And don't forget to include this information website. Your guests and paw-friends will appreciate the comfort zone, too.

§  There are no Federal laws prohibiting dogs at restaurants. The FDA Food Code is a recommendation, not a law. Federal Law requires restaurants to allow service dogs for the handicapped  both inside and outside.

§  State laws govern the restaurant health codes. Not the Federal Government. Many States incorporate parts of the FDA Food Code into their laws.

§  If a state doesn't allow dogs at outdoor restaurants then cities or counties in most states may allow it locally by issuing a variance (exception) to the state code. Cities may implement these variances through an ordinance or simply through the health department. Variances can be allowed for all restaurants or individually.

§  Even if allowed by law the final decision is up to the restaurant owner who may choose to allow or not allow dogs.

While U.S. state health codes usually ban pet dogs from the inside seating areas of restaurants, there is often the question of whether or not dogs are allowed at outdoor dining areas. DogFriendly.com has investigated this situation, including Federal, state and local  laws, and whether or not it is legal to dine outside at a restaurant with a dog.

Restaurant health laws, whether administrative or statute, originate at the state level. There are no Federal laws that apply to the issue of dogs in restaurants with the exception of the American with Disabilities Act (ADA), which requires that restaurants allow service and guide dogs at indoor and outdoor dining areas. The only other major Federal contribution to the restaurant health codes is a recommendation by the Federal Food and Drug Administration (FDA) called the FDA Food Code. This code is updated every four years. It is very important to note that this code is not a law but a recommendation. It is similar to the Center of Disease Control's (CDC) recommendation, not a requirement, that the general public get annual flu shots. No food establishment can be fined or punished based on the FDA Food Code recommendation. No Federal law makes it illegal to bring a pet animal to the outdoor or indoor areas of a restaurant. The FDA Food Code is important to this  discussion because many states have included parts of the code into their health code laws. The state laws actually govern the operation of food establishments in a state. While many state codes include or incorporate the FDA Food Code, every state can and often does make its own modifications to the FDA Food Code to match its pre-existing statutes.

Each state may have different laws at the state level and different implementations of the inspection process. For example in the state of Florida, all local inspections are done by health inspectors employed by the state.

In most other states, health inspectors are employed at the local level, by the city or county. Some states, such as California, require that the local governments use the state food establishment laws as written by the state. Other states may allow local governments to strengthen the laws. Most states allow for a local government or health department to issue a variance. A variance is usually requested by a restaurant to their local health department, and can be used to exempt a restaurant from any part of the health code. For example, if a health code does not allow customers to enter into a restaurant kitchen, a variance could be issued to a restaurant that has customer bathrooms accessible only by a customer walking through the kitchen. Similarly, a variance can be used to allow dogs in outdoor (or even indoor)  restaurant seating areas. In order to get a variance approved, it typically  requires that some additional steps be taken by the restaurant to  prevent whatever harm the code is designed to prevent. For example, to allow dogs in outdoor seating areas, a local health department may require that servers wash their hands after serving a table with a dog if they touched or patted the dog. In addition to variances issued to individual restaurants, a sort of global or standardized variance can be issued by a city or county. This has been done to allow dogs in outdoor restaurants in Alexandria, VA in 2004. This can also be accomplished by passing a local ordinance as was done by Austin, TX in 2006. Most states have a general variance process that is allowed. Therefore, most cities or counties could allow dogs in outdoor dining areas by issuing a variance or passing a city ordinance - regardless of the state dog policy and without legislation at the state level.

So what do the state laws actually say? We have looked at three states with different legal structures for their restaurant health codes. These states are California, Washington, and Florida. Other state codes may be similar to one of these models but chances are they will be different in some ways.

For people who wish to dine at an outdoor restaurant with their dog, California is perhaps the  most dog-friendly state in the country with regards to dogs at outdoor dining establishments. The state has been pet-friendly in this manner for at least the past 20 years.  According to Susan Strong, a representative of the California Department of Health Services (CDHS), Food and Drug Branch, "(pet) dogs are allowed throughout California at any outdoor dining areas unless they have to walk through the inside of a restaurant to get to the outdoor seats." It does not matter if food is served outside or taken out by the customer, or if the seats are located on a patio, sidewalk, or in a fenced area as long as there is access through an outside gate or opening. The California law is set by statute which was last updated in 1986. In addition, the California statute forbids counties or cities from making these codes stricter. Of course, it is still the prerogative of a restaurant owner to choose whether or not to allow dogs in their outdoor seating area, but the choice lies with the owner, not the city or county. Notwithstanding the state law, even in California, restaurants will sometimes cite local health codes in not allowing dogs at their outdoor seating areas. In some cases, the restaurant owner may be trying to shift the "blame" so that customers with dogs in tow will not be upset with the restaurant. In other cases, the local health inspector may be misapplying the interpretation of the California statute. An example of this, that we have seen over the years, is the Santa Barbara branch office of the Santa Barbara County Public Health Department which has continuously told restaurants and the public that dogs are not allowed at any outdoor seating areas. Meanwhile, the Santa Maria branch office of the Santa Barbara County Public Health Department says that dogs are allowed at outdoor tables.

Compared to California, the State of Washington has an entirely different set of statutes with regards to dogs at outdoor restaurants. According to Janet Anderberg of the Washington Department of Health, "Animals are not allowed on the premises of a food establishment". The premises is defined as the area that is controlled by the restaurant owner, including an outside dining area, regardless of whether food is served there or not. This code is the wording that is contained in the FDA Food Code that many states have incorporated parts of. When incorporating the FDA Food Code, states often modify it to be consistent with their pre-existing state statutes. However, even though Washington's state health code does not allow animals on the premises of a food establishment, this does not automatically preclude dogs in outdoor seating areas throughout the state. In Washington, the state allows the county health departments to issue variances if they are willing to do so. Also, tables that are not controlled by the restaurant directly, such as those in a shopping center that are cleaned by mall janitors or an area on a sidewalk beyond a restaurant's railing may not be defined as the premises by local health inspectors. In the absence of any variances, generally the only way for people with dogs to dine outdoors with their dog in the State of Washington is to get the food to go or carry out, and take it with them to a public bench on a sidewalk, a picnic table in a park, or somewhere off of the premises of the restaurant.

Florida has made news this year since it passed a statute in May 2006, allowing cities and counties to permit dogs in outdoor seating areas despite the state ban on animals on the premises. Florida's State Code has similar wording to Washington's State Code in that "Animals are not allowed on the Premises of a Food Establishment". In most states, no state law would be needed for local governments to allow pets because local health departments could issue a variance to the code, as was done in  Alexandria and Austin. However, Florida, unlike most states, employs state health inspectors instead of local inspectors. There was no such thing as a variance in the health code in Florida that local governments could use to allow pets at outdoor dining areas. By passing its statute in May of 2006, Florida gave its cities and counties the equivalent of variances specifically in regard  to dogs at outdoor restaurants. This new law was originally proposed and pushed by the city of Orlando when the state health inspector that oversees their district began penalizing restaurants for allowing dogs at outdoor seats. While Orlando restaurants were being fined, most of the rest of the state's dog-friendly outdoor restaurants were not fined. Although this law doesn't, by itself, allow dogs at outdoor restaurants throughout Florida, the action sets a positive tone towards permitting dogs.

As for other cities, Chicago Alderman Walter Burnett Jr. is currently in the process of introducing a city ordinance to make it legal for dogs to dine at outdoor restaurants in the nation's third largest city. In addition, the State of Illinois is looking into changing their regulations to allow dogs at outdoor tables.  According to Alderman Burnett, the proposed codes may be modeled after the California health code.

If a state doesn't allow animals on the premises of a restaurant, why do we see restaurants with dogs at the outdoor seats all the time and is it really breaking the law? In most cities throughout the country, there are dog-friendly outdoor restaurants. Some restaurants allow dogs at their outdoor seating areas and others feature doggie menus and water bowls for canine customers. There are a number of potential reasons for this. First of all, in states like California and some Florida cities, and in cities similar to Alexandria and Austin, dogs dining with their people at outdoor restaurants is legal. Also, in many states, the Health Code says that "Animals are not allowed on the premises." It does not say that "Dogs or Pets" are not allowed. Animal is clearly defined in many state codes to include "vermin, birds, insects and rodents". Unless a restaurant has enclosed their outdoor seating area with netting or screens, they would be in violation of this code, even if no dog was ever permitted on the premises. If the intention of such a code was to not allow animals including pets, birds, rodents and insects, then restaurants would need to shut down all non-screened outdoor seating. But this does not seem to be the intention of the code. So some cities and counties minimize the enforcement of this section of their code. In addition, different cities have different definitions of the premises. Many locales will let you tie a dog to the outside of the railing surrounding an outdoor dining area and some have decided that seats on the public sidewalks are not defined as the "premises" since the restaurant owner does not control the traffic through this area. Also, some local health inspectors allow dogs only outside of the last row of tables and define the end of the premises at the last table. Another reason  for finding dogs at outdoor dining areas could be because while it may technically not be allowed, most city or county health departments could issue variances, thus making it allowed. Some local health departments may have chosen to "issue" these variances by simply allowing the behavior unless they get too many complaints from other diners who do not want dogs at outdoor restaurants.

In general, when dining at an outdoor restaurant with your dog, you can and should always ask the restaurant manager or employee if dogs are allowed. The restaurant staff is typically required to know their local health codes. Even if it is legal, the restaurant's policy could be that dogs are not permitted. In our 15 years in traveling with dogs and dining at an outdoor restaurants in over 30 states, we have successfully dined with our dogs throughout the country. Out of all of the restaurants where we ordered food inside (with the dog remaining outside) and then carried it out ourselves to the outdoor tables, we were never told that we could not have our dog outside. At restaurants where food was served outside, as long as we asked ahead of time, we never had a problem dining with our pooch. There were some restaurants that did not allow dogs outside. Sometimes employees cited local or state codes, and some even incorrectly cited a Federal law. And some told us that it is their individual restaurant policy to not allow dogs at their outdoor restaurant. So when wondering where you can bring your dogs, the best thing is to always check ahead with a restaurant and ask if dogs are allowed outside.



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