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June 19, 2021

News West

West Coast News Network

Outdoor Restaurant Dining in Los Angeles County Comes at a Price: New Requirements

Although restaurants may now resume outdoor dining in Los Angeles County, the devil, as they say, is in the details. Along with giving restaurants the go ahead for outdoor dining service as of last Friday, the County Public Health Department imposed pages of new requirements on how restaurants should operate.

The new conditions on restaurant operations are set out in extensive provisions added to the County’s “Protocol for Restaurants, Breweries and Wineries,” which is an attachment to the County’s “Reopening Safer at Work” order. The expanded protocol details safeguards the County expects restaurants to take, unless any particular measure is inapplicable or not feasible at a facility.

Important measures added to the protocol and now in effect include the following:

Physical Distancing and Contact Tracing

Outdoor dining tables must be spaced at least eight feet apart “measured from one table edge to the next table edge,” under the updated restaurant protocol. Tables must be arranged so that at least six feet of distance “between customers and workers [other than the server for the table] is achieved while customers are seated . . .” Each outdoor dining table may seat no more than six people and all guests at a table must be from the same “living unit,” e.g., house or apartment. People living together in group settings such as residential care facilities, dorms, fraternities and sororities are not considered to be from the same living unit and may not be seated together under the revised protocol. All guests for a particular table must be present before the restaurant may seat any guest in the party and the host must bring the entire party to the table at one time.

The revised protocol imposes requirements intended to keep to a minimum the number of people on restaurant premises at any one time. For example, the protocol now calls on restaurants to encourage guests to make reservations for outdoor dining or to advise customers to call to check on the availability of outdoor seating before showing up. The protocol also mandates that restaurants at least consider measures including taking food orders before guests arrive for seated outdoor dining and requiring guests to wait in their cars and staff calling or texting them when their table is ready, all with the goal of dialing down “the amount of time [guests spend] at the establishment.”

In a relatively novel step, the updated protocol directs restaurants to collect contact information for each party, “if practicable in the normal course of business operation, either at the time of reservation booking or on site to allow for contact tracing,” if needed later.

Customer Service Areas

Restaurants must configure outdoor dining areas in order to “allow for the free flow of outdoor air through the entire space,” under the expanded restaurant protocol. In particular, the protocol requires that restaurants adhere to California Department of Public Health (CDPH) guidance entitled “Use of Temporary Structures for Outdoor Business Operations.” Under the CDPH guidance, now generally mandatory for restaurants in Los Angeles County, no more than 50% of an outdoor dining area’s structure may have impermeable walls, meaning a standard wall, fabric curtain, plastic barrier or other material that prevents aerosols from passing through, among other requirements of outdoor dining areas. The fact that an outdoor dining area does not have a ceiling does not make it compliant. The CDPH guidance provides helpful diagrams of allowable outdoor dining structures and those that are unlawful.

Failing to clearly comply with the requirements for configuration of outdoor dining areas could pose a particular risk of enforcement action, as County enforcement officers may easily identify questionable configurations by viewing photos on the restaurant’s website or otherwise posted online, driving by or dropping into a restaurant.

Under the updated protocol, restaurants are to ensure that “no flatware, glassware, dishware, menus, condiments, or any other tabletop item is present on tables prior to the seating of customers.” Between parties seated at a table, all such tabletop items should be “fully sanitized” and stored “in a location that prohibits potential contamination” or replaced with new, single use items. Outdoor seating and tables must be cleaned and sanitized between parties. Each table should have “either a top cloth [that is] replaced between guests or a hard-non-porous surface which is cleaned and sanitized between guests.”

New protocol provisions direct restaurants to keep the number of employees serving each party to a minimum. Restaurants also should assign one designated food employee to wrapping silverware before providing it to the customer, rather than allowing several employees to handle uncovered silverware before use by a customer. The new provisions prohibit restaurants refilling beverages at tables or from common containers, such as pitchers or decanters, and instead call for staff to give customers refills in clean glassware (or new single use containers).

In another measure imposed to move customers along and off restaurant premises, the protocol now requires that televisions and other screens “broadcast[ing] programming” in dining areas and other customer service areas, potentially including reception and waiting areas, be removed or kept turned off.

New Rules for Customers

The updated protocol requires that restaurants give the following instructions to patrons:

— “Keep your mask on until your food or drinks are served and after finishing.”

— “Put your mask on whenever a server approaches your table.”

— “Put your mask on whenever you leave your table.”

— “Wash or sanitize your hands.”

The protocol requires that restaurants give the instructions in writing on a sign or card no smaller than 3 X 5 inches on each table containing the instructions above or substantially similar language. Restaurants have the option of giving the instructions, instead, through menus, digital boards and other types of signage.

The updated protocol also requires that customers be seated to eat or drink and prohibits them from standing or walking around while eating or drinking.

Employee Management

Although many restaurants voluntarily adopted employee screening months ago, the revised restaurant protocol now requires restaurants in the County to screen employees for COVID-19 risk factors before allowing them to enter the workspace. The County’s screening requirements include asking employees to self-report symptoms and any contact they have had in the preceding 14 days with a person known or suspected to be infected. Restaurants may choose whether to check employees’ temperatures as a part of their screening process. The requirement to screen employees appears to encompass all restaurant employees reporting to work, not only those working in connection with outdoor dining operations.

Restaurants are to provide face shields which must be worn by all employees “who are or may come into contact with customers,” including hosts, hostesses, wait staff, bussers, runners and other employees “who may enter the front-of-the house area.” Face shields are to be worn along with cloth face coverings. Restaurants must clean and use face shields per manufacturer’s directions.

The updated protocol makes a point of expressing the County Public Health Department’s position that outdoor restaurant dining service, even when operated in compliance with the protocol, presents “more risk” of COVID-19 transmission than delivery, drive thru and carry out operations. While now allowing onsite outdoor dining, the protocol encourages restaurants to continue pickup and delivery services.

Closing

This post summarizes highlights of the County’s “Reopening Safer at Work and in the Community” order and “Protocol for Restaurants, Breweries and Wineries,” as they were updated as of January 29 and 28, 2021, respectively. The order and the protocol contain additional provisions and detail.   Along with allowing outdoor dining, the updated “Reopening Safer” order continues to allow delivery, drive thru and carry out, and prohibits indoor restaurant dining, as it did before the latest revisions.

Regardless of whether any particular restaurant operator is gearing up for outdoor dining, the updated order and protocol deserve close attention. County enforcement officers may take action including closing restaurant operations if violations are found.

Please contact the author or your Fox Rothschild LLP counsel for help addressing these developments.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.