Businesses that frequently interact with customers and clients in person, such as restaurants, gyms and nail salons have been put on notice – follow local COVID-19 government orders or pay the price! Nusr-Et Boston, a new restaurant recently opened by social media celebrity “Salt Bae” (real name Nusret Gökçe) was ordered to shut down and had its liquor license temporarily revoked by the City of Boston Licensing Board after receiving complaints from city residents over COVID-19 safety violations and being issued repeated warnings by the Board. Among the violations were failure to wear masks, maintain social distancing, and overcrowding. This is just the latest example of COVID reopening violations that have been seen in Massachusetts.
Earlier in the summer, a gym owner was fined by municipal officials and eventually ordered by a judge to close its doors when it opened in defiance of Governor Baker’s orders for non-essential businesses to close. When it disobeyed the court’s order by remaining open, local officials shut off water service and changed the locks. Earlier this month, a number of Massachusetts’ regulatory agencies conducted a sweeping review of businesses checking for compliance with COVID-19 ordinances and by-laws, resulting in nearly 350 violations across the Commonwealth. In an effort to bolster compliance, Governor Charlie Baker authorized the use of local police to enforce coronavirus restrictions.
These examples show how state and local officials are not taking these restrictions lightly. State regulatory authorities are willing to leverage their licensing authority to enforce compliance, knowing that a license to operate is a critical and highly valuable necessity. In many of these cases, businesses must go through a lengthy and costly appeals process and have been required to submit written COVID-19 safety guidelines and best practices as a condition of reopening.
Any violations should also raise liability concerns for businesses and their insurers. While a violation of a state’s law, regulation or municipal ordinance is not evidence of negligence per se, it can be a powerful piece of evidence used against a violating business in any trial involving that business’s COVID-19 safety practices. A knowing, willful failure to abide by such regulations could potentially lead to a finding of gross negligence against a business, which are not protected by business liability protection statutes in states that have such protections.
In the midst of a pandemic involving a highly transmittable and possibly deadly respiratory virus, businesses should take no chances. Whether through fines, closures or civil judgments, the failure to develop and abide by a coronavirus safety plan that complies with state and local rules can prove costly for businesses.
CMBG3 attorneys can help businesses develop a plan specific to their business to mitigate the risks of liability and provide guidance and advocacy for defending such claims. If you are seeking experts to help guide you on your liability protection plans, or are fighting a fine or closure order, please contact Eric J. Robbie.