Restaurant Law Blog

Wednesday, March 18, 2020

COVID-19:Understanding force majeure clauses in your lease and other contracts


Force majeure is a contractual provision that excuses a party’s performance if an unforeseeable event prevents them from fulfilling their obligations under the agreement.  Not all agreements (especially lease agreements) contain these provisions, but some of them do.  Landlords frequently object to the inclusion of these provisions for practical reasons.  However, that does not mean that you are without recourse if your agreement lacks such a provision.  I’ll discuss that below.
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Sunday, March 15, 2020

Hospitality Update: COVID-19 - NYS Liquor Authority - Delivery of Alcohol


As of this morning, the NYS Liquor Authority is permitting all On-Premises licenses to sell and deliver beer, wine and liquor.  This is a significant departure from the prior restriction limiting the sale and delivery to only beer.  Additionally, if you are overstocked, you are now permitted to return for a credit any and all alcohol purchased from March 1st.  

We know that these are uncertain and overwhelming times for many of our clients but we just wanted to let you know that we remain available to help in any way we can.  We are doing our best to try and gather information on resources and options that are available to our clients  as clearly this is a new scenario and measures are being enacted on both the city and state level to assist some of the businesses forced to cease normal operations.


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Tuesday, October 22, 2019

Is Your Restaurant or Hotel in Compliance with New York’s Spread of Hours Law?


What is the Spread of Hours Law?

Title 12 of the New York Codes, Rules, and Regulations (NYCRR) §142-1.6 is a law that requires employers to pay any employee an extra hour of pay, at the basic minimum hourly rate, for any day on which the employee’s “spread of hours” exceeds 10. The spread of hours is defined as “the length of the interval between the beginning and end of an employee’s workday.”  Essentially, if an employee’s “punch in” and “punch out” time exceeds 10 hours on any given day, even if that employee left the restaurant or hotel for a 6-hour lunch and only actually worked 5 hours that day, the employer must pay them for an extra hour.  The additional hour of pay “is not payment for time worked or worked performed” and does not need to be included in the regular rate for the purpose of calculating overtime pay.
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Tuesday, June 4, 2019

Choosing a Location for your Restaurant or Bar

There are many factors to consider when deciding where to lease space for a restaurant or bar- including the high cost of rent, the size of the space, and the accessibility of the space/location within a busy city.  Included in this consideration should be how evaluating any obstacles you might encounter in obtaining your liquor license, including the following: 

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Monday, January 15, 2018

Announcement & Special Offer


Dear Clients, Colleagues and Friends:

I have the great pleasure of announcing that as of January 1, 2018, the DiPasquale Law Group has joined with Kimberly A. Summers of Summers and Schneider, P.C.  This newly formed hospitality law firm, DiPasquale & Summers, LLP, will be a true combination of equals, bringing together attorneys recognized for their corporate and regulatory expertise, as well as their sophisticated litigation and transactional practices. 

The practice will remain dedicated to providing full service support and advice to business and restaurant owners in every stage of the hospitality industry.
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Monday, January 15, 2018

Crowdfunding; Multiple Investors and Commercial Real Estate Lease Issues


The concept of investing using an internet crowdfunding model is a fairly recent development and commercial leases often are behind the curve.  A business owner planning to raise capital through an online equity crowdfunding platform would be prudent to pay close attention to restrictions that are often contained in the assignment provision of its commercial lease agreement.  Generally, clauses governing a tenant’s right to assign or sublet are some of the most detailed, complex and extensively negotiated provisions of a commercial lease, partly due to the fact that a tenant’s covenant that it will not assign its lease cannot be implied.  Landlords who want to maintain control over the identity of their commercial tenant, are therefore expected to include within the lease explicit language restricting those types of transfers which cannot be performed without first obtaining landlord’s written consent. Additionally, because New York courts disfavor assignment prohibitions, viewing them as a restraint on alienation, clauses intended to restrict lease transfers must be clear and precise in order to pass judicial scrutiny.
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Sunday, January 14, 2018

Crowdfunding; Multiple Investors and New York State Liquor Authority Disclosure Issues


Crowdfunding is becoming an increasingly popular way for business owners to gain the financial backing they need to turn their concepts into realities. In recent years, websites like kickstarter.com have helped thousands of entrepreneurs obtain access to the funds they needed to get their projects off the ground. With the internet age upon us, the ability to reach people, and beg them for a few dollars, is easier than ever. However, would-be restaurateurs have not been as successful as other small business owners seeking financial backing in these arenas.
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Tuesday, February 7, 2017

Why Lawyers Kill Commercial Real Estate Deals and How to Spot a Bad Deal in Advance

Free Seminar:  Why Lawyers Kill Commercial Real Estate Deals and How to Spot a Bad Deal in Advance
When:  Wednesday, March 15, 2017 from 5:30pm – 7:00pm
Where:  NYC Small Business Solutions, 110 William Street, New York, NY (7th Floor Boardroom)
Seminar Description: Are you tired of spending countless hours showing a property and negotiating a deal, only to have lawyers get involved and kill the transaction?  How can this be avoided?  This seminar is designed to assist commercial real estate brokers identify problematic deal terms before their time is wasted.  The seminar will focus on:

  • Is your ‘non-binding’ letter of intent actually binding?
  • How to properly structure a letter of intent for various transactions (e.g. sale, lease, investment)
  • Identifying hidden lease expenses (i.e.

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Wednesday, August 17, 2016

You may be the owner of an illegal and accidental franchise and not even know it.

Beware:  If you own more than one restaurant which operates under the same name, you may have created an illegal and unintended franchise.

This sounds crazy, but it is actually very common and the consequences of creating an unintended franchise are substantial, serious, and include the possibility of both personal and criminal liability.  Many well-intentioned operators have tried to avoid the franchise tag by referring to their business relationships and partnerships as a “license,” or a “capital investment,” but the label placed on a relationship has little bearing on whether or not the relationship constitutes a franchise.

Would the same operators have pursued a different path if they had known that their mistake could result in the rescission of every one of their business transactions and the filing of criminal charges against them? It is a felony to sell a franchise without complying with both State and Federal law, and the respective agencies have the power to shut down your restaurants, freeze your bank accounts, order restitution, prevent an operator from opening new locations, impose huge penalties, award attorney’ fees to all injured parties, and rescind every one of the offender’s agreements under claim of fraud.  And, to top it off, claiming that they relied on the advice of their attorney will not help since franchise statutes impose strict liability, meaning that an owner’s intent or knowledge of the law (or lack thereof) is irrelevant.



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Thursday, August 11, 2016

Free Seminars: Legal Considerations when opening a bar or restaurant. Restaurant Management Boot Camp 2.0

When:   

Downtown Location:  September 13, 2016 from 5:30 p.m. to 8:30 p.m.
Uptown Location:  September 28, 2016 from 5:30 p.m. to 7:30 p.m.

Where:  

Downtown Location: 79 John St., 2nd Fl, New York, NY 10038
Uptown Location:  361 West 125th St., 2nd Fl, New York, NY 10027

Seminar Description:  An insider look at tips, tricks, and best practices to start your first restaurant in NYC, presented by Restaurant Attorney James D. DiPasquale.  To start and run a successful restaurant you must understand many different legal considerations which make operating in New York City, particularly unique. Whether you are a new or existing restaurant owner, this special follow-up to the Restaurant Management Boot Camp class will help you gain a deeper understanding of all of the basic requirements to get your business up and running.

-Forming a Corporation or Limited Liability Company (pros/cons of each)

-Partnership Considerations (The legalities of dealing with your business partners and investors)

-Finding  your restaurant space (Buying an existing restaurant vs. straight lease)

-Negotiating your Restaurant’s lease

-Applying for a Liquor License

-General discussion on permits needed (food service/cabaret/sidewalk café, etc.)

To Register:

For the Downtown seminar:  click HERE or paste the following link into your web browser: https://www.eventbrite.com/e/restaurant-management-bootcamp-20-lower-manhattan-91316-registration-27080444338

For the Uptown seminar, click HERE or paste the following link into your web browser: https://www.eventbrite.com/e/restaurant-management-bootcamp-20-upper-manhattan-92816-registration-26354368626?aff=ebapi


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Wednesday, August 26, 2015

State Liquor Authority Battles Albany Wine Retailer Over Out-of-State Shipping Restrictions

Can the State Liquor Authority regulate the retail sale of wine?

The State Liquor Authority (SLA) is the agency responsible for issuing liquor licenses, regulating alcohol sales, and doling out punishments to bars and restaurants caught violating the various regulations surrounding the industry. However, many are beginning to consider whether the SLA has actually gone too far within the context of retail wine and beer sales – particularly with regard to the out-of-state shipment of orders from local wineries and microbrews.

In one ongoing battle, upstate New York’s Empire Wines has sought an answer to this very question, and is engaging in ongoing litigation to help clarify the breadth of powers the SLA may use against New York-based companies engaged in the out-of-state sale of wine, beer and liquor. So far, the SLA has imposed several citations against Empire Wines, based primarily on the premise that the states to which it is shipping alcohol have their own prohibitions against the interstate shipment of alcohol. In other words, Empire Wines is exporting wines to states from which wine export is prohibited.

In its defense, Empire Wines has pointed out the blatant fact that it is not breaking any laws in the state of New York by shipping wines to places that do not allow their own businesses to engage in similar practices. In essence, Empire Wines asserts that the SLA’s charge of “improper conduct” is, in and of itself, an improper exercise of power by the agency and should be stopped through legislation.

Earlier this year, a bill that would put a stop to the SLA’s enforcement powers over perceived violations of laws in other states – especially when no other state has made a finding of guilt against a New York-based retailer-- passed both houses of the New York State legislature with broad support.

This bill is awaiting Governor Cuomo's signature. The governor has publicly voiced his support of New York’s growing winery and microbrew industry.

If you are facing a difficulties regarding SLA regulations and would like to discuss your options with an experienced liquor license attorney, please contact DiPasquale Law Group, serving the greater New York City metropolitan area, at 646.383.4607.


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