Compliance Corner 3/19/2020
The Compliance Corner
By Mary Beth Williams
COVID – The Legalities – UPDATE #1 – 3/18/20
We remain in uncharted waters, and there is a lot of action going on impacting the way you can do business. So buckle up, and let’s get caught up:
Tasting Rooms and Retail Activities
Yesterday afternoon , 3/18, VDACS issued a determination that the Executive Order previously issued by the Governor and the Health Commissioner restricting the number of patrons at restaurants to 10 patrons also applies to similar establishments or those retail entities that are regulated under the VDACS Food Safety Program, specifically including the tasting rooms of farm wineries, wineries, breweries, and distilleries. The order from yesterday is attached here. https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/Order-of-the-Governor-and-State-Health-Commissioner-Declaration-of-Public-Health-Emergency.pdf
We reached out to VDACS for clarification on the use of farm wineries’ licensed outdoor space, and it is their opinion that the Executive Order does NOT apply to outdoor spaces that have adequate outdoor space to ensure adequate and enforced social distancing, and which have the ability to provide appropriate sanitization to minimize the risk of spreading the virus.
With that clarification, the current law for enclosed spaces is as follows:
- No more than 10 patrons (this does NOT include employees) in the establishment at one time.Again, I don’t believe that includes people outside, but I’m waiting for clarification.The 10 WOULD include people coming in from outside to use the restaurant or order wine at the tasting bar.
- This is considered an emergency order, which increases penalties significantly.If you are found to be in violation (and I hear that police are checking), you’re subject eviction of your guests by the police; immediate shutdown of the establishment, a misdemeanor charge brought against the owner, and a potential suspension or fine at ABC.
- This remains in effect until amended or rescinded by the Governor.
The farm wineries are in a unique position to be able to provide the public with a safe place to have life seem “normal” for a while, but it is IMPERATIVE that this be done with consideration to health concerns for both your guests and your staff. Ensuring that this vital privilege continues is dependent on each winery doing everything in its power to ensure both the spirit and the letter of the Executive Order are complied with. To that end, we’d recommend the following best practices until the executive order is lifted for utilizing your outdoor consumption area, to ensure that this privilege remains intact through the COVID crisis:
- Move your sales location outside, with indoor access limited to use of the restrooms.
- Create and enforce a rigorous restroom cleaning schedule
- Tables are physically separated so that they are no closer than 6’ apart.
- Control the incoming number of guests to ensure that adequate social distancing beyond the tables is maintain.
- Have a staff member ask groups to move apart if they’re too close, and to ensure that no more than 10 people are inside (including for the restrooms) at one time.
- Glass and bottle sales only; no tastings.
- Use single-use vessels for consumption: plastic cups or glassware that the guests take home with them to clean.Do not refill a used glass.
- No growler refills.
- Go to a cashless system to prevent cash having to change hands.
- Disinfect the POS screen between uses.
- Communicate the new protocol to your customers so that they know what they can and can’t do when they come visit.
A WEBINAR WILL BE HELD ON THESE ISSUES TOMORROW, FRIDAY 3/20, AT 1:00 TO GIVE ADDITIONAL GUIDANCE.
On a separate but related note, we also had a call with ABC yesterday, and they are doing things very quickly to try to make doing business as easy as possible amid these restrictions. They feel that they have the authority to make changes to regulations under the state of emergency, but not to statutes.
Delivery permit requests are now being expedited, and can be submitted via email to email@example.com. They are generally being issued within a day at this point. Remember, this is delivery to an end consumer, not for resale, and each delivery is limited to no more than 4 cases person per delivery. The requirement to have the consumer sign the invoice when you deliver has been waived for the duration of this crisis. There is no fee for this permit, and is available to anyone with a winery or farm winery license. You can see the other requirements on the Compliance corner sent out 3/17.
ABC has also issued an emergency ruling that during this crisis, wine MAY be delivered to a person in a car, provided they have ordered the wine ahead of time (even if ahead of time is by calling it in while they’re sitting there). It’s fine if they pay at the time of pickup, but the order must have been placed ahead of time. What they don’t want is a drive through window, where someone pulls up, orders a couple of bottles, and picks them up like they’re a Big Mac.
It’s still fine for you to set up a spot outside and take to-go orders, and either you or the customer can carry the wine to the car. The above prohibition on delivering to the car is just on people who aren’t coming up and ordering in person.
VA Dept of Tax will liberally entertain applications for an extension to pay Feb VA Sales and Use tax (due tomorrow) until April 20. Interest will accrue on that balance, but if you make application, you won’t have any penalties imposed.
VA personal income tax returns are still due on 5/1, BUT you may delay payments to 6/1. You will still owe interest (the dept doesn’t have the authority to waive interest under current law) for that period, but you’ll have another month to pay without penalty.
The Governor issued a declaration that VA is an economic injury disaster location, in order to facilitate emergency SBA loans for VA citizens. The website with more information on these loans is https://www.sba.gov/funding-programs/disaster-assistance. The letter making the request is attached. You may need to attach it to your application for these emergency loans. https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/SBA-Disaster-Declaration-Request.pdf
Mary Beth Williams is the President of Williams Compliance and Consulting Group, LLC, a compliance services and legal consulting provider based in Hanover County, Virginia. For more information, contact Mary Beth at Marybeth@williamscompliance.com or (804) 445-2924.