Oklahoma and Tulsa Lodging Industry Info
New Information from OH&LA on the Mixed Beverage Lawsuits
Info from Oklahoma Hotel & Lodging Association in partnership with AH&LA.
Tuesday, December 27th, 2011
The OH&LA has been contacted by some members who did not respond to the lawsuits filed in the mixed beverage tax cases in Canadian County. Some of these restaurants have now been given notice that default judgments have been entered against them and they owe large amounts of money because of the judgment. Apparently, the plaintiff’s counsel is notifying those who did not respond about the judgment entered against them and there will be more to come for those mixed beverage license holders who did not answer the lawsuits.
This has created a new set of circumstances for some defendants. The OH&LA has been in contact with our legal counsel about this new development and has been told the default judgments have some serious legal flaws that can be brought to the attention of the judge for possible vacation of judgment, however there is a time limit. OH&LA’s counsel is working on this issue on behalf of those restaurants they represent.
Once again, if you have been sued and have not contacted an attorney, it is important for you to do so to protect your rights. If a default judgment has been taken, it will be treated as any other judgment if not challenged, and the defendant will be subject to execution on the judgment.
We urge you to contact counsel if you have been sued and if default judgment has been taken against your restaurant. You are free to use your own attorney, or you may contact one from the list included in this update. The attorneys on this list are familiar with the issues in the lawsuits.
There is no joint defense group for those against whom default judgment has been taken. We have been advised by OH&LA counsel that there is an effort to create a group of default judgment defendants with common issues, to spread the expense of dealing with the default judgments.
For those who did respond to the Summons and Petitions, the hearing on the motions to dismiss in both lawsuits is still scheduled for January 25, 2012. OH&LA will keep you advised of developments as they occur. If you have questions or need more information, please call Jim Hopper at (800) 375-8181 or (405) 942-6462.
| Robert O’Bannon Shannon K. Emmons Thomas G. Wolfe PHILLIPS MURRAH P.C. Corporate Tower, Thirteenth Floor 101 N. Robinson Oklahoma City, OK 73102 405-235-4100 405-235-4133 (fax) roobannon@phillipsmurrah.com skemmons@phillipsmurrah.com tgwolfe@phillipsmurrah.com Kevin D. Gordon Mitchell D. Rozin Phillip O. Watts Curtis L. Smith John N. Hermes James K. Larimore Matt Wheatley Brant C. Martin James E. Weger Michael T. Keester Wade D. Gungoll A Gabriel Bass |
Matthew W. Brockman HARTZOG CONGER CASON & NEVILLE 1600 Bank of Oklahoma Plaza 201 Robert S. Kerr Avenue Oklahoma City, OK 73102 405-235-7000 405-996-3403 (fax) mbrockman@hartzoglaw.com Bradley W. Welsh J. Michael Medina Mark A. Robertson Ronald L. Brown Randy J. Long Kyle L. Endicott Charles A. Meyers Benjamin H. Odom Bart C. James Douglas A. Rice John M. Dunn |
NLRB Postpones Poster Requirement
Submitted by Kirk Turner, Esq.
Tuesday, October 25th, 2011
On October 5, 2011, the National Labor Relations Board (NLRB) announced that it will postpone the implementation date for the new NLRA employee rights notice. According to the NLRB, the initial effective date of November 14, 2011 has now been pushed back to January 31, 2012; the stated reason for the delay is to allow for enhanced education and outreach to employers.
The final rule, which can be found at 29 C.F.R. § 104.202, requires most employers to post a notice explaining a number of issues such as employee rights under the National Labor Relations Act (NLRA) including their rights under Section 7 of the Act to organize, bargain collectively, discuss wages and other terms and conditions of employment, and their right to picket and strike. The notice also needs to explain what is deemed illegal employer and union activity under the Act and contain information concerning basic enforcement procedures including Board contact information. Any employer subject to the NLRA (most private employers) must post and maintain the NLRB notice in all places where notices to employees are customarily posted.
The postponement of implementation of the rule is due in no small part to the more than 7,000 comments from employers, employees, unions and others that were received by the NLRB. As the Board has admitted, the majority of the comments objected to all or parts of the new rule. In addition, NLRB member Brian Hayes argued not only that the rule is not needed, but that the Board does not have the authority to create or enforce the rule.
The U.S. Chamber of Commerce and the some state Chambers of Commerce have commenced actions challenging the rule. Hopefully, with time for a thorough judicial review, the issue of whether the Board exceeded its authority in this particular rulemaking process can be properly resolved.
Should you have any questions regarding the information contained in this article, please do not hesitate to contact Kirk Turner at (918) 587-0101, or by email at kturner@newtonoconnor.com.
Latest Information on the Mixed Beverage Lawsuit
Info from Oklahoma Restaurant Association.
Monday, September 26th, 2011
The Oklahoma Restaurant Association has obtained legal counsel in the mixed beverage lawsuits so that the Association can have access to information to be able to pass on to our members.
The ORA has been advised there are potential legal issues for those defendants who are settling early with the plaintiffs. Those defendants settling may not be obtaining a full release of additional or future actions by someone other than these particular individual plaintiffs. One of the cases is asking for class certification. Should the court grant certification, any prior release might not include claims of the class. In addition, a release to these plaintiffs (at this point, individual plaintiffs) would not release a different action by someone else who might bring the same action for past and future transactions. ORA’s counsel has not been presented with any of the releases Plaintiffs’ counsel are using, and strongly advises that you seek the advice of legal counsel before signing any release
New Food Code Effective November 1, 2011
Info from Oklahoma Hotel & Lodging Association in partnership with AH&LA.
Monday, September 26th, 2011
After many months of meetings between the Food Service Advisory Council, on which the OH&LA is represented, and the State Health Department, the latest revisions to the Oklahoma Food Code have been approved by the Legislature and are slated to go into effect on November 1st of this year.
On September 12-13, all Health Inspectors met in Oklahoma City to go over the new Food Code and received training on the changes and also received training on how to work closely with restaurant managers to help ease the transition to the new rules. The State Health Department has told the OH&LA that between mid-September and November 1st, during routine inspections, the inspectors will be informing managers and other persons-in-charge of several aspects of the changes and will work with the restaurants on how to comply.
Although enforcement of the changes will begin November 1st, OH&LA has been told that inspectors will not be citing restaurants for violations of the new changes until everyone has had an opportunity to be told of the changes and how to comply, even for those restaurants not inspected prior to November 1st. The new Chapter 257 of the Food Code is now online at the Health Department website and can be accessed at this link: http://www.ok.gov/health/
Many of the changes are not significant, but we wanted to make you aware of several that you will be hearing about when your inspector makes his/her next visit. You may want to consider having your manager in charge call you if you are not already present when the inspector arrives, with the thought you could be there and work “hand in hand” with the inspector to make any necessary decisions or changes.
Once they are completed by the Health Department, templates/guidelines that will help you comply with the new Food Code will be provided to you by your inspector. Also, once they are completed, OH&LA will send you information on the templates and how you can access them. With the exception of information that is required if you chose Bare Hand Contact with Ready to Eat Foods, the templates are not mandatory. They can however be a good guideline to help you comply with the changes to the Code.
- Bare Hand Contact with ready to eat foods will still be allowed under the new changes. You will continue to have a choice of wearing gloves, using utensils, or having bare hand contact with ready to eat foods. Gloves will not be required. But you will need to have a written employee health policy and will need to provide documentation that your employees have been trained in proper hand-washing and other procedures before handling ready to eat food.
- Managers – Information on Food Allergies and which foods on your menu are most likely to cause allergic reactions for your customers will be an increased focus under the new Food Code. The inspectors will have materials that will help you identify the most common foods that cause allergies and how to train your employees in this information.
- Employee/New Hire Information – Information about what and when your employees/potential hires should tell you about their illnesses and symptoms of illnesses will be shared with you. Again, when they are available, your inspector will have templates that will help you and your employees know, in layman’s terms, when to report to you they are sick and when you should restrict them from working.
- Inspection Reports – These have changed significantly. No longer will the terms Critical Violations be used. Rather, Priority, Priority Foundation, and Core Violations will be used. Your inspector will go over the new form with you and answer your questions about the changes.
- Your Inspector – He or she will talk to you about several policies and procedures you should have in place on hand washing, employee illness reporting, and other requirements of the Code. Although there will not be a requirement for having these written procedures in place, having them may assist you in being in compliance with the Code.
- Standard Operating Procedures (SOP’s) – A template will soon be available from the Health Department that can be used to provide information to the Department on how you operate. This information will be required only when remodeling, a change of ownership, and for new restaurants.
- Templates/Guidelines – Once they are completed by the Health Department, these new templates/guidelines will help you comply with the new Food Code. Your inspector will provide them to you. Also, when they are available, the OH&LA will send you information on the templates and how you can access them. Although the templates are not mandatory, they can be a good guideline to help you comply with the changes to the Code.
As always, if you have questions or need additional information, please call Jim Hopper or Rick Hughes at the OH&LA office, (800) 375-8181 – (405) 942-8181.
Latest Information from OH&LA on Liquor Tax Lawsuit
Info from Oklahoma Hotel & Lodging Association in partnership with AH&LA.
Saturday, August 27th, 2011
Several attorneys appeared yesterday before the judge in Canadian County asking for a delay in the proceedings for time to respond and for a delay in discovery for all the defendants in the liquor tax lawsuit. The judge only stayed the proceedings for those defendants represented by counsel in court yesterday.
This is unfortunate news, and makes it imperative that you contact your own attorney who can advise you on how to proceed in order to preserve your rights in this suit.
Generally, judgment can be entered against you 20 days after you receive the summons from the court unless you take action, so it is very important that you take immediate action if you have already received a summons from the court.
There are more than 800 defendants involved in this lawsuit and numerous attorneys already representing some of those defendants. Although there may be others, I have been told that the following attorneys appeared yesterday in court on the lawsuit.
- Curtis Smith – Chubbuck, Smith and Duncan – 405-236-8282
- Jim Webb/John Hermes – McAfee and Taft – 405-235-9621
- Kevin Gordon/Michael Laird – Crowe Dunlevy – 405-235-7700
- Robert O’Bannon/Sharon Emmons – Phillips Murrah – 405-235-4100
- Jim Larimore/David Donchon – Durbin, Larimore, Bialick – 405-235-9584
- Brad Hollar – Hollar Law Firm – 405-755-8100
- Phil Watts – Watts and Watts – 405-239-2177
- Mitch Rozin – Rozin Law Firm – 405-848-1444
- Randy Long – Field, Trojan and Long – Enid – 580-233-4625
If you do not have counsel, or if your attorney would like to speak to one of those who appeared in court yesterday, you might want to contact one from the above list. If you have legal counsel, it is of course your option to continue to use them. For those who are interested, the OH&LA will continue to work with our legal counsel and will attempt to put together as large a group as possible for a joint defense so that the costs can be spread among as many defendants as possible.
Within a very short time, you will be given an opportunity to opt in to a Defense Group, which will be directed by an Oklahoma Restaurant Association (ORA) Litigation Committee. It will be important for you to respond as quickly as possible if you want to opt in to the group and that you provide your share of the funds and agree that you will continue to pay your pro-rata share of any additional funds needed. The initial fee to opt in to this Group Defense Fund will be $500. The ORA Litigation Committee will select an attorney and review the fees and expenses for the joint defense. If there are funds remaining at the conclusion of the case, all money will be returned to each member of the group on a pro-rata basis and any excess amounts needed for defense will be billed on a pro-rata basis.
As always, if you have questions, please call Jim Hopper at OH&LA at (800) 375-8181 or (405) 942-6462.
Tax Q&A: Occupancy (Bed) and Internet Booking Tax Information
Info from Oklahoma Hotel & Lodging Association in partnership with AH&LA.
Wednesday, March 25th, 2011
Question:
Where can I find an updated list of occupancy or “bed taxes” around the country? Does the American Hotel & Lodging Association have any updated studies on this topic?
Answer:
This is a very popular question for the AH&LA Information Center.
Hotel occupancy taxes range from state to state and from city to city. Unfortunately, AH&LA is unaware of any comprehensive databases that track and update this information regularly.
The most recent list of lodging taxes for the Top 50 U.S. Destinations was reported in the article “The Burden of Rising Hotel room Taxes” from Meeting and Conventions Magazine, November 2010.
AH&LA’s last study on room taxes was released in 2008. The “2008 Room Taxes and Economic Impact of the Lodging Industry” report is available in the Members Only section on AH&LA’s website. The report provides much more than a simple list of taxes around the country. There is a detailed economic analysis for every state and other useful data to illustrate the importance of the lodging industry at the state and national level.
