Hospitality Law: Managing Legal Issues in the Hospitality Industry

by Stephen Barth (Conrad N. Hilton College of Hotel and Restaurant Management, Univ. of Houston, Attorney and Founder, HospitalityLawyer.com)

• ISBN13: 9780471348498
• ISBN10: 047134849X
• Format: Hardcover
• Copyright: 2001-01-01
• Publisher: Wiley

Summary

How hospitality managers prevent legal problems and avoid litigation This comprehensive text prepares students and professionals in hospitality management to negotiate the industry2s complex network of legal requirements and manage their operations in a way that will minimize the risk of a lawsuit. Hospitality Law combines relevant legal information about the industry with a series of interactive exercises that foster preventative legal management and effective decision-making. Rather than poring over case law, students learn decision-making through active participation in critical thinking exercises, hypothetical situations, and team activities. By looking at how various parties made choices and how legal problems could have been avoided, students will learn to apply a practical legal awareness to their own actions. Classroom-tested to assure understanding and application, this fresh approach to teaching hospitality law: Stresses an interactive approach to learning and decision-making Emphasizes real-life situations rather than extensive legal citations Includes legal guidelines to help hospitality managers avoid litigation Covers safety and security requirements, disputes with customers, hiring and firing employees, liabilities associated with serving alcohol, and much more Familiarizes students with technology through Internet searches Supplemented with numerous checklists, step-by-step procedures, and written forms to help students create legally compliant policies and respond to changing situations, Hospitality Law is destined to become an indispensable part of every hospitality manager2s education.

Author Biography

STEPHEN BARTH is an attorney and Associate Professor of Hospitality Law and Leadership at the Conrad N. Hilton College of Hotel and Restaurant Management, University of Houston, Texas, and the founder of HospitalityLawyer.com.

Table of Contents

Preface	ix
Prevention Philosophy	1	(16)
The Future Hospitality Manager and The Legal Environment	2	(1)
The Hospitality Manager and Legal Management	3	(3)
Historical Origins of the Law	4	(1)
The Evolutionary Nature of Common Law	5	(1)
Preventative Legal Management	6	(3)
S.T.E.M. the Tide of Litigation	6	(1)
Legally Managing at Work: Applying the S.T.E.M. Process in Hospitality Management	7	(2)
Ethics and The Law	9	(8)
An Ethical Situation	9	(1)
Ethical Analysis	9	(6)
What Would You Do?	15	(1)
The Hospitality Industry in Court	16	(1)
What Did You Learn in This Chapter	16	(1)
Rapid Review	16	(1)
Team Activity	16	(1)
Hospitality Contracts	17	(36)
Introduction to Contracts	19	(10)
Written and Verbal Contracts	19	(5)
Components of an Enforceable Contract	24	(5)
Introduction to Hospitality Contracts	29	(7)
Common Hospitality Contracts	29	(3)
Forecasting Contract Capacity	32	(1)
Establishing an Effective Reservation System	33	(2)
Legally Managing at Work: Reducing No-Show Reservations	35	(1)
Essential Hospitality Contract Clauses	36	(9)
Essential Clauses When Providing Products and Services to Guests	37	(3)
Essential Clauses When Receiving Products and Services	40	(4)
Exculpatory Clauses	44	(1)
Preventative Legal Management and Contracts	45	(8)
Breach of Contract	45	(2)
Legally Managing at Work: Eight Steps for Managers When Drawing Up Contracts	47	(3)
What Would You Do?	50	(1)
The Hospitality Industry in Court	50	(1)
What Did You Learn in This Chapter	50	(1)
Rapid Review	50	(1)
Team Activity	51	(2)
Hospitality Operating Structures	53	(26)
The Importance of Proper Organizational Structure	54	(1)
Common Hospitality Organizational Structures	55	(8)
Sole Proprietorship	55	(1)
General Partnership	56	(1)
Limited Partnership (LP)	56	(1)
``C'' Corporation	57	(1)
``S'' Corporation	58	(1)
Limited Liability Company (L.L.C.)	59	(2)
The Agency Relationship	61	(2)
The Hospitality Franchise	63	(16)
Franchise Disclosure	64	(2)
The Franchise Rule	66	(3)
The Franchise Offering Circular	69	(1)
Purchasing a Franchise	69	(2)
Operating As a Franchise	71	(4)
Selling the Franchise	75	(1)
Legal Responsibilities of Franchisees	75	(1)
What Would You Do?	76	(1)
The Hospitality Industry in Court	76	(1)
What Did You Learn in This Chapter?	76	(1)
Rapid Review	77	(1)
Team Activity	77	(2)
Legally Managing Property	79	(28)
Introduction to Property	80	(3)
Real Property	81	(1)
Fixtures	81	(1)
Personal Property	82	(1)
Purchasing Property	83	(5)
Purchasing Real Property	83	(1)
Purchasing Personal Property	84	(4)
Financing the Purchase of Property	88	(3)
Debtor and Creditor Relationship	90	(1)
Security Agreements	91	(1)
Financing Statements	91	(1)
Leasing Property	91	(8)
Essential Lease Terms as a Lessor	93	(2)
Essential Lease Terms as a Lessee	95	(3)
The Buy vs. Lease Decision	98	(1)
Legally Managing at Work: Legal Considerations of Buying vs. Leasing	98	(1)
Respecting Intellectual Property Rights	99	(8)
Trademark	99	(1)
Patent	100	(1)
Copyright	100	(1)
Trade Dress	101	(1)
Preventing Intellectual Property Rights Infringement	102	(2)
What Would You Do?	104	(1)
The Hospitality Industry in Court	104	(1)
What Did You Learn in This Chapter?	104	(1)
Rapid Review	105	(1)
Team Activity	105	(2)
Regulatory and Administrative Concerns in the Hospitality Industry	107	(30)
Federal Regulatory and Administrative Agencies	108	(12)
Internal Revenue Service (IRS)	109	(2)
Occupational Safety and Health Administrative (OSHA)	111	(5)
Environmental Protection Agency (EPA)	116	(1)
Food and Drug Administration (FDA)	116	(1)
Equal Employment Opportunity Commission (EEOC)	116	(1)
Bureau of Alcohol, Tobacco, and Firearms (ATF)	117	(1)
Department of Labor	118	(1)
Department of Justice	119	(1)
State Regulatory and Administrative Agencies	120	(5)
Employment Security Agency	120	(1)
Alcohol Beverage Commission	120	(2)
Treasury Department/Controller	122	(2)
Attorney General	124	(1)
Public Health Department	124	(1)
Transportation	125	(1)
Local Regulatory and Administrative Agencies	125	(3)
Health and Sanitation	125	(1)
Building and Zoning	126	(1)
Courts and Garnishment	126	(1)
Historical Preservation	126	(1)
Fire Department	127	(1)
Law Enforcement	128	(1)
Tax Assessor/Collector	128	(1)
Managing Conflicting Regulations	128	(2)
Responding to an Inquiry	130	(2)
Legally Managing at Work: Recommended Steps for Responding to Inquiries and Complaints by Government Agencies	130	(2)
Monitoring Regulatory Change	132	(5)
What Would You Do?	134	(1)
The Hospitality Industry in Court	134	(1)
What Did You Learn in This Chapter?	134	(1)
Rapid Review	135	(1)
Team Activity	135	(2)
Managing Insurance	137	(14)
Introduction to Insurance	138	(3)
Types of Coverage	141	(4)
Property-Casualty	141	(1)
Liability	142	(1)
Employee Liability	142	(1)
Health/Dental/Vision	143	(1)
Workers' Compensation	143	(2)
Selecting an Insurance Carrier	145	(1)
Selecting the Insurance Policy	145	(2)
Policy Analysis	147	(4)
What Would You Do?	149	(1)
The Hospitality Industry in Court	150	(1)
What Did You Learn in This Chapter?	150	(1)
Rapid Review	150	(1)
Team Activity	150	(1)
Legally Selecting Employees	151	(30)
Employee Selection	153	(11)
Job Descriptions	153	(1)
Job Qualifications	154	(2)
Applicant Screening	156	(8)
Discrimination in the Selection Process	164	(5)
Civil Rights Act of 1964, Title VII	164	(2)
Americans with Disabilities Act	166	(1)
Legally Managing at Work: Accommodating Disabled Employees	167	(1)
Age Discrimination in Employment Act	168	(1)
Verification of Eligibility to Work	169	(5)
Immigration Reform and Control Act	169	(1)
Fair Labor Standards Act of 1938	169	(5)
The Employment Relationship	174	(7)
At-Will Employment	174	(1)
Labor Unions and Collective Bargaining	175	(2)
What Would You Do?	177	(1)
The Hospitality Industry in Court	178	(1)
What Did You Learn in This Chapter?	178	(1)
Rapid Review	178	(1)
Team Activity	179	(2)
Legally Managing Employees	181	(38)
Employment Relationships	182	(3)
Offer Letter	183	(1)
Employee Manual	183	(2)
Workplace Discrimination and Sexual Harassment	185	(9)
Preventing Discrimination	185	(1)
Managing Diversity	186	(1)
Sexual Harassment	187	(1)
Employer Liability	187	(1)
Zero Tolerance	188	(2)
Investigating a Complaint	190	(2)
Resolving a Complaint	192	(1)
Third Party Harassment	193	(1)
Liability Insurance	194	(1)
Family and Medical Leave Act	194	(1)
Compensation	195	(7)
Minimum Wage and Overtime	195	(2)
Tipped Employees	197	(1)
Legally Managing at Work: Calculating Overtime Pay for Tipped Employees	198	(1)
Tip Pooling	198	(1)
Taxes and Credits	199	(3)
Managing Employee Performance	202	(6)
Evaluation	202	(1)
Discipline	202	(2)
Termination	204	(2)
Legally Managing at Work: Guidelines for Conducting Defensible Employee Terminations	206	(1)
In-House Dispute Resolution	207	(1)
Unemployment Claims	208	(3)
Claims and Appeals	210	(1)
Employment Records and Retention	211	(2)
Department of Labor Records	211	(2)
Immigration Related Records	213	(1)
Employment Posters	213	(1)
Workplace Surveillance	214	(5)
What Would You Do?	217	(1)
The Hospitality Industry in Court	217	(1)
What Did You Learn in This Chapter?	217	(1)
Rapid Review	218	(1)
Team Activity	218	(1)
Your Responsibilities as a Hospitality Operator	219	(22)
Duties and Obligations of a Hospitality Operator	220	(2)
Duties of Care	220	(2)
Standards of Care	222	(1)
Theories of Liability	222	(5)
Reasonable Care	222	(1)
Torts	223	(1)
Negligence	223	(1)
Gross Negligence	224	(1)
Contributory and Comparative Negligence	225	(1)
Strict Liability	225	(1)
Intentional Acts	226	(1)
Intentional Acts of Third Parties	226	(1)
Negligence Per Se	227	(1)
Legal Damages	227	(1)
Anatomy of a Personal Injury Lawsuit	228	(5)
Personal Injury	228	(1)
Demand Letter	229	(1)
Filing a Petition	229	(1)
Discovery	229	(2)
Trial and Appeal	231	(1)
Legally Managing at Work: The Manager's Role in Litigation	231	(1)
Alternative Dispute Resolution	232	(1)
Responding to an Incident	233	(8)
Legally Managing at Work: Responding to an Accident	233	(5)
What Would You Do?	238	(1)
The Hospitality Industry in Court	238	(1)
What did You Learn in this Chapter?	238	(1)
Rapid Review	239	(1)
Team Activity	239	(2)
Your Responsibilities as a Hospitality Operator to Guests	241	(22)
Accommodating Guests	242	(6)
Definition of a Guest	243	(2)
Admitting Guests	245	(1)
Denying Admission to Guests	246	(2)
Guest Privacy	248	(2)
Guest Room Privacy	249	(1)
Legally Managing at Work: Law Enforcement and Guest Privacy	250	(1)
Guest Records Privacy	250	(1)
Facility Maintenance	250	(6)
Safe Environment	250	(3)
Americans with Disabilities Act (ADA), Title III	253	(2)
Legally Managing at Work: Five Steps to Facility Evaluation	255	(1)
Responsibilities to Non-Guests	256	(2)
Guests of Guests	256	(1)
Invitees	256	(1)
Trespassers	257	(1)
Removal of Guests	258	(5)
Lack of Payment	258	(1)
Inappropriate Conduct	258	(1)
Overstays	259	(1)
Accident, Illness, or Death	259	(1)
Legally Managing at Work: Responding to Guest Health Emergencies	260	(1)
What Would You Do?	260	(1)
The Hospitality Industry in Court	260	(1)
What did You Learn in this Chapter?	260	(1)
Rapid Review	261	(1)
Team Activity	261	(2)
Your Responsibilities for Guest Property	263	(16)
Liability for Guests' Property	264	(4)
Common Law Liability	265	(1)
Limits on Common Law Liability	265	(2)
Ensuring the Limitation of Liability	267	(1)
Bailments	268	(5)
Bailment Relationship	268	(1)
Types of Bailments	269	(1)
Liability Under a Bailment Relationship	270	(2)
Detailed Property	272	(1)
Innkeeper's Lien	272	(1)
Property with Unknown Ownership	273	(6)
Mislaid Property	273	(1)
Lost Property	273	(1)
Abandoned Property	274	(1)
Disposing of Unclaimed Property	275	(1)
Legally Managing at Work: Disposing of Found Property	275	(1)
What Would You Do?	276	(1)
The Hospitality Industry in Court	276	(1)
What did You Learn in this Chapter?	276	(1)
Rapid Review	277	(1)
Team Activity	277	(2)
Your Responsibilities When Serving Food and Beverages	279	(24)
Serving Food	281	(4)
Uniform Commercial Code Warranty	281	(1)
Guest Safety	282	(1)
Legally Managing at Work: Steps to Take When a Guest Complains of Foodborne Illness	283	(2)
Truth in Menu	285	(5)
Preparation Style	287	(1)
Ingredients	287	(3)
Serving Alcohol	290	(13)
Privilege of Alcohol Service	291	(2)
Liability Associated with Alcohol Service	293	(3)
Training for Responsible Service	296	(4)
What Would You Do?	300	(1)
The Hospitality Industry in Court	301	(1)
What did You Learn in this Chapter?	301	(1)
Rapid Review	301	(1)
Team Activity	301	(2)
Safety and Security Issues	303	(38)
The Importance of a Protected Environment	305	(4)
Safety and Security Management	305	(1)
Crisis Management	306	(1)
Advantages of Pre-Planning	307	(2)
Safety and Security Programs: Four Step Safety and Security Management Method	309	(12)
Recognition of Threat	309	(1)
Program Development	309	(6)
Program Implementation	315	(3)
Legally Managing at Work: Establishing an Effective Guestroom Lock Policy	318	(1)
Monitoring Program Results	319	(2)
Crimes Against Hospitality Businesses	321	(6)
Consumer Theft of Services	322	(1)
Legally Managing at Work: Procedures to Help Reduce Food and Beverage Skips	322	(1)
Fraudulent Payment	323	(1)
Legally Managing at Work: Guidelines for Handling Credit Cards	324	(1)
Legally Managing at Work: Personal Check Verification	325	(1)
Internal Theft of Assets	326	(1)
Crisis Management Programs	327	(14)
Pre-Crisis Planning	327	(1)
Emergency Plan Development	328	(2)
Emergency Plan Practice	330	(1)
Crisis Response	331	(1)
Legally Managing at Work: The Manager's Responsibilities in a Crisis	332	(2)
Legally Managing at Work: Guest Relations in a Crisis Situation	334	(1)
Media Relations	334	(1)
Legally Managing at Work: Guidelines for Dealing with the Media During a Crisis	335	(1)
Post-Crisis Assessment	336	(1)
What Would You Do?	337	(1)
The Hospitality Industry in Court	338	(1)
What did You Learn in this Chapter?	338	(1)
Rapid Review	338	(1)
Team Activity	339	(2)
Index	341