The Dish A P U B L I C A T I O N O F T H E N E W H A M P S H I R E L O D G I N G A N D R E S T A U R A N T A S S O C I A T I O N
Issue No. 02
• February 2021 • Cover Photo Story: page 8
Tax Credits
Legal Questions
HR Insights
A new law on employee retention tax credits.
When does a hotel guest become a tenant?
page 5
When is a COVID-19 case workrelated?
page 13
page 18
Inside YOUR GUIDE TO ISSUE NO.2
Colorful at Moat Mountain.
Sunday toast at Popover's in Portsmouth.
4
Members Around Town
The latest industry news
5
Tax Credits
A new law means you may be eligible for employee retention tax credits
7
Webinar on Demand
Watch a Small Group Health Option webinar on-demand
8
Rally for NH Restaurants
The NHLRA kicks off a statewide marketing campaign
9
Meet the Chef
Chef Nicole of Great NH Restaurants shares her favorite dishes
13 Legal News
When does a hotel guest become a tenant
18 HR Insights
Determining when a COVID-19 case is work-related
22 Thank You
New members and renewals
Cover Photo: Rally for NH Restaurants
Food's ready at Bubba's Bar & Grille.
www.nhlra.com | 2
2020 Chair of the Board
Gail Batstone Owl's Nest Resort & Golf Club 2020 VIce Chair of Lodging
Molly Rice-Norby Woodstock Inn Station & Brewery 2020 VIce Chair of Restaurants
John Dunn Michael Timothy's Dining Group NHLRA President and CEO
Mike Somers NHLRA Director of Education and Workforce Development
Amie Pariseau NHLRA Membership Manager and Director of Workers' Compensation Trust
Samantha MacDonald NHLRA Social Media and Marketing Manager
Pamela Baker Ad rates and submission guidelines: nhlra.com www.nhlra.com | 3
NHLRA
MEMBERS AROUND TOWN HOMEGROWN STIMULUS PROJECT IN MONADNOCK
MV KEARSARGE RETIRES
S
unapee Cruises’ dinner boat, the MV Kearsarge. is heading into the sunset this spring. It will be replaced by a Mississippi Riverboat that is being refurbished to look like an old-fashioned steamboat. "We hope to start cruising with it in early July, " Capt. Tim Fenton told the Union Leader earlier this month.
T he Local Crowd Monadnock, Culinary Journeys, and Food Connects launched The Monadnock Restaurant Project this month. The project will invest $10,000 to purchase gift cards from participating
LOCAL BREWERIES "THROWDOWN" FOR A MEATBALL CHALLENGE
O
locally owned restaurants.
n Friday, February 12, Burnt Timber Tavern and Twin Barns
They plan to strategically
Brewing Company competed in the Lakes Region Brewery Throwdown
disperse these gift cards to
Meatball Challenge. While Twin Barns took home the top trophy, the
the community through
real winner was Make-A-Wish NH. A portion of the proceeds went to the
partnering businesses. These
organization with the losing brewery matching the donation total.
businesses will share the cards with their staff who will be asked to spend these cards quickly, providing an immediate shot in the arm to Keene's local economy.
DERRY RESTAURANT MONTH KICKS OFF
D erry Economic Development Director
Beverly Donovan declared February Derry Restaurant Month, The town put together an incentive program to encourage diners to visit more restaurants.
www.nhlra.com | 4
EMPLOYEE RETENTION
BIG TAX CREDITS TO RESTAURANTS COULD SUPPORT EMPLOYEE RETENTION By the National Restaurant Association
Restaurants won a key breakthrough in year-
Did you know a new law signed in December might mean your operation is eligible for an employee retention tax credit?
end legislation when lawmakers expanded employee
retention
(ERTC)
This was all changed on December 27, 2020,
eligibility. Many small businesses who were
when the Taxpayer Certainty and Disaster
previously ineligible may now be eligible for
Tax Relief Act passed. Now, for any calendar
up to $19,000 in ERTC per employee. Under
quarter between March 13 and Dec. 31, 2020,
the CARES Act, passed in March 2020, a
a restaurant with 100 or fewer full-time
restaurant’s use of a Paycheck Protection
employees may be able to access ERTC of up
Program
to $5,000 per employee.
loan
tax
restricted
eligibility for the ERTC.
credit
any
subsequent
www.nhlra.com | 5
And, for the first two quarters of 2021, Jan. 1–
and March 2021. Beginning April 2021, the
March 31, and April 1–June 30, restaurants
restaurant spends the rest of the PPP funds
with 500 or fewer full-time employees may
(60%) on eligible payroll expenses for the
be able to access ERTC of up to $7,000 per
remainder of the covered period. For the 1st
employee per quarter.
quarter of 2021 (Jan.-March), the restaurant files for the ERTC and obtains $7,000 per
While there are many considerations to
eligible employee (70% credit of up to
evaluate, eligible restaurants can now access
$10,000 in eligible wages).
employee retention tax credits for both 2020 and 2021 for eligible employee wages as
Result:
long as they did not pay specific payroll
$70,000 in ERTC for Q1 2021 wages it paid.
wages and/or group benefits with PPP loan
Henry’s
Hotcakes
obtains
up
to
...... and
funds. Here are two examples to explain how
Henry’s Hotcakes uses a Second Draw PPP
a restaurant might claim the credit:
loan to cover both Q1 (Jan.-March 2021) nonpayroll expenses and Q2 (April-June, and
Example 1: Henry’s Hotcakes received a
even parts of July 2021) payroll expenses,
$120,000 PPP loan in April 2020. These
depending on the covered period.
funds were fully spent on its 10 employees by
September
20,
2020.
Previously,
the
The upshot: Restaurants can now receive up
restaurant would not have qualified for
to $5,000 per employee for 2020 and up to
ERTC. Under the new law, the operation can
$14,000 ($7,000 per employee in each of the
now reach back to its wages for the 4th
first two quarters of 2021) for a potential
quarter of 2020 (Oct.-Dec.) and obtain up to
total of $19,000 per eligible employee in
$5,000 per eligible employee (50% credit of
ERTC.
up to $10,000 in eligible wages) in ERTC. "For a restaurant that fought uphill for the Result: Henry’s Hotcakes gets up to $50,000
last quarter of 2020 with say, 50 full-time
in ERTC for Q4 2020 wages it paid.
employees, it’s an amazing opportunity to access up to $250,000 in ERTC,” explains
Example 2 : Henry’s Hotcakes is eligible for a
Aaron Frazier, director of Healthcare and Tax
Second Draw PPP loan but would also like to
Policy.
coordinate
to
receive
ERTC
for
its
10
employees during the 1st quarter of 2021
“We
(Jan.-March).
consider synchronizing their Second Draw
strongly
encourage
restaurants
to
PPP loan and ERTC for the first half of 2021, On February 1, 2021, the restaurant receives a
as 40% of the loan can be used for forgivable
Second Draw loan of $168,000 (at the 3.5
non-payroll expenses while the restaurant
multiplier for restaurants/accommodations)
accesses ERTC to support payroll."
and selects a 24-week covered period to use those PPP funds. It spends 40% of the loan
We urge restaurateurs to learn more about
on
cleaning
this new law (see links below) and engage
supplies, a new drive-thru window, and
your tax and finance specialists to ensure
other forgivable PPP expenses in February
you don’t leave this money on the table.
rent,
protective
equipment,
www.nhlra.com | 6
NHLRA WEBINAR
Small Group Health Option
Available on Demand Missed our webinar on the Small Group Health Option? It's now available to view on the NHLRA YouTube Channel! Join Clark & Lavey, Roundstone, and NHLRA Membership Manager Samantha MacDonald as they dive into the NHLRA's newest member benefit, the Small Group Health Option, and why it's a better alternative that has helped employers save up to 20%.
Click the video above to watch today.
www.nhlra.com | 7
NHLRA NEWS
RALLY FOR NH RESTAURANTS Eat out. Take out. Help out. On Monday, February 1, the NHLRA kicked off its Rally for NH Restaurants initiative, a twomonth-long statewide marketing campaign to inform consumers about the plight of the state’s hospitality industry and inspire them to support it in a variety of impactful ways. The campaign, sponsored in part by a Joint Promotional Program grant through the New Hampshire Division of Travel & Tourism Development, comes as restaurants across the state are wrestling with the double blow of the pandemic and the typically slower winter months. This grassroots movement is exactly the support our devasted industry needs right now,” said NHLRA President and CEO Mike Somers. “We know consumers are looking for ways to help our restaurants and their employees. Through this movement, we can all come together to help the foodservice community stay afloat until spring.” The campaign revolves around the website rallyfornhrestaurants.com. Visitors to the site gain a better understanding of what restaurants are doing to keep their customers and staff safe, learn eight different ways to help the industry, and find creative ideas on how to experience and enjoy in-person dining or takeout. It also offers a directory of participating food and drink establishments. Any restaurant, bar, brewery, or lodging foodservice property – NHLRA member or not – can be listed on this page. There is no cost to participate.
HOW YOU CAN PARTICIPATE Make sure your property is listed on the site. Share the campaign with your audience with our digital toolkit or your own post. Consider creating a RallyforNHRestaurants-themed drink, special, or promotion that we can share with news media and on our social media. Follow the campaign on Facebook, Twitter, and Instagram.
Email pbaker@nhlra.com for more information. www.nhlra.com | 8
MEMBER UPDATE
Chef Nicole from Great NH Restaurants Discusses Her Favorite Dishes By Nicole Barreira, Corporate Chef for T-BONES, CJ's, & Cactus Jack’s and Marketing Manager for Great NH Restaurants Being a Chef has always been a dream of mine and I have been so lucky to be able to follow my passion. Our menu development team and myself work hard to develop tasty, new, and exciting dishes at TBONES and CJ’s Great West Grill. Even though I love all of our food, every Chef has their favorites!
CJ’s Great West Grill in Manchester, NH celebrates America's vast, regional cuisine. We serve up mouthwatering Texas BBQ, House Specialties, made-from-scratch Mexican dishes, all-American seafood, Butcher cut steaks and many more unique plates. My favorite though, has to be the Shrimp Stuffed Avocado! This dish is
"Asian cuisine happens to be my favorite. Having traveled to Southeast Asia for quite a bit of time, it fueled my love and interest in how these dishes are built." www.nhlra.com | 9
"As a chef, I love how fun it is to make sauté style on the flat top. The caramelizing and searing of ingredients are smells and sounds every chef loves!"
healthful and fun with incredible flavor. What I love about this dish is the combination of sweet, spicy, and savory notes, in addition to its creamy & crunchy textures. The Shrimp Stuffed Avocado hits all the taste buds! It is made with high-quality Naked brand shrimp, fresh avocado, homemade rice, pico de gallo, chipotle ranch sauce, crunchy tortilla thins, scallions, and cilantro. As a chef, I love how fun it is to make sauté style on the flat top. The caramelizing and searing of ingredients are smells and sounds every chef loves!
Much like CJ’s, T-BONES Great American Eatery develops all of our recipes in our own kitchens, making every sauce, soup, salad dressing, and dessert, right down to hand-peeling potatoes for our own creamy mashed potatoes. Although T-BONES is mostly known for its American cuisine, we have added some exciting flavor profiles to the menu. Asian cuisine happens to be my favorite. Having traveled to Southeast Asia for quite a bit of time, it fueled my love and interest in how these dishes are built. Multi-layered and fresh, with elements designed to leave your mouth satisfied - sweet, salty, savory, umami with layered temperatures of ingredients; cold, crunchy salad with warm chicken; these are all reasons why the Asian Fusion Salad is my favorite TBONES dish. Bitter greens tossed with a sweet sesame dressing, crunchy Chow Mein noodle with shaved carrot gives layers of flavor and texture that balance and bounce off one another. This dish is so satisfying, yet when you finish the salad you don’t feel heavy or overly full. I love to make these dishes, but love eating them even more! They both have what every good recipe should; flavor, texture, and freshness. Come give them a try and see if you agree!
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LEGAL UPDATE
Once a Hotel Guest, Always a Hotel Guest By Christopher T. Vrountas, Esq. and Allison C. Ayer, Esquire, Vrountas, Ayer & Chandler, P.C. When does a hotel guest become a “tenant”
How have so many operators come to the
subject
New
wrong conclusion in the past? It’s not hard
Hampshire’s residential landlord/tenant laws
to see how. Here are three assumptions the
and the associated summary process laws
New Hampshire Supreme Court addressed
that govern eviction? Never, according to the
and discounted in its opinion on the subject
to
the
protections
of
New Hampshire Supreme Court, although a slight twist in facts might change that
First, many have assumed that RSA ch. 353
answer in a particular case.
(the hotel guest ejectment statute), which defines a “residential unit” as a room rented
This
response
hotel
for less than 30 days and which expressly
otherwise,
includes guests in such rooms as the type of
depending on the circumstances of a hotel
residents subject to the ejectment rights
guest’s arrangement with the hotel. The
hotels may have under ch.353, implicitly
Court’s decision in Anderson v. Robitaille,
provides that hotel guests who stay for
No. 2017-0195 (NH 2019) should disabuse
longer than 30 days become tenants who
hotel operators and their guests of any
are protected by the landlord/tenant and
such assumption. It is an opinion that strict
summary process statutes set forth under
constructionists would absolutely adore.
RSA ch. 540-A and RSA ch. 540. The Court
operators
who
may have
surprise
many
assumed
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expressly held that assumption is wrong. In Anderson, the hotel guest argued that RSA ch.353 (the guest ejectment statute) lists
only
those
people
who
live
in
“residential units” as defined in the statute as those governed by its provisions and that, therefore, those who do not live in such “residential units” as defined in RSA ch. 353 must therefore be subject to the provisions of RSA ch. 540 and RSA ch. 540-A (the landlord/tenant
and
summary
process
statutes). The Court rejected that argument and held that the failure of RSA ch. 353 to specifically include long-term guests under its provisions does not necessarily imply that such persons must be excluded from its provisions, or that such persons necessarily lose their status as hotel guests under that statute. By
explained
landlord/tenant
laws
the
Court,
expressly
the
exclude
“occupants” of “rooms in hotels, motels, inns, tourist homes and other dwellings rented for recreational or vacation use.” See RSA 540:1a, VI(b). From the court’s perspective, this explicit exclusion from the protection of the landlord/tenant and summary process laws must govern the question as to when such laws actually apply. The mere failure to include long-term guests in the provisions of RSA ch. 353 does not, according to the Court, modify or change the express exclusion language in RSA ch. 540 and RSA ch. 540-A – the landlord/tenant statutes.
lodging. The Court rejected that theory, noting that the statute does not use such terms and
offered a series of alternative arguments, which were all rejected by the Court. At the hotel
guest
argued
guest next argued that the “totality of the circumstances” should be considered when determining whether a hotel guest becomes a tenant, and again the Court rejected the theory by referring to the explicit language of the statute. The Court noted that the “plain meaning” of the statute “creates categorical exceptions”
to
the
reach
of
the
landlord/tenant and summary process laws that cannot be modified by “the totality of the circumstances”. The hotel guest then argued that
the
exclusion
for
hotel
guests
only
applies to dwellings “rented for recreational purposes”; but again the Court rejected this theory as a tortured interpretation of the plain language of the statute. Indeed, the Court
In response, the hotel guest in Anderson
the
hotels that are a “hybrid” with other forms of
that they are, therefore, irrelevant. The hotel
contrast,
start,
only applies to “traditional hotels” and not to
that
the
exclusion in RSA ch. 540 and RSA ch. 540-A
noted
that
such
an
interpretation
would
eliminate business hotel guests from the exclusion set out in RSA ch. 540-A and maintained that there is no basis for such a reading.
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Second,
many
have
assumed
that
the
service, furnished rooms, towel and linen
provisions of RSA ch. 78-A:3, VII (which
service,
daily
room
cleaning,
on-site
exempts from room taxes those who are
maintenance, and on-site security, and that
“permanent residents” - defined as those
the guest paid $84/night plus tax for the unit
who have stayed in a dwelling for more than
for nearly 2 years. The hotel sent an email to
185 days) can turn a “hotel guest” into a
this guest giving two days to leave, although
“tenant”. This assumption, according to the
the hotel extended the notice for an extra 4
Court, is also misplaced as there is no basis
days. The hotel threatened to call the police
for understanding that the term “permanent
if the guest did not vacate. The guest sued
resident” under RSA ch. 78-A:3, VII should in
and the trial court held that they were not
any way modify the definition and scope of
tenants. The New Hampshire Supreme Court
the term “tenant” under RSA ch. 540:1-a, IV.
affirmed.
One statute concerns a taxing issue, the other outlines the scope of landlord/tenant
In the end, the words in a statute mean
duties under certain circumstances and with
what they say, but they must be read in the
certain express exceptions. As these statutes
context of the relevant statutory scheme,
are not related, they should not be read to
and they only apply to the topic the statute
modify each other’s terms.
was meant to address. Assumptions may arise due to common sense extrapolations
Third, the Court’s earlier decision in Evans v.
from
J. Four Realty (NH 2013), might arguably
matters, but in the end, the New Hampshire
support the assumption that a hotel guest,
Supreme Court stuck to the plain meaning
under certain circumstances, might become
of the landlord/tenant provisions in RSA ch.
a tenant under RSA ch. 540-A. But, when the
540 and RSA ch. 540-A. A hotel guest is a
hotel
guest
argument,
in the
Anderson Court
other
statutes
that
address
other
made
this
hotel guest because he or she rents a hotel
rejected
the
room, not because of the length of stay or
proposition. In Evans, a customer rented a
the “totality of the circumstances."
room from a “resort”, but that room was not in the hotel portion of the resort. Rather, it
Of course, in any specific situation, you
was separate from the hotel and adjacent to
should consult your attorney before taking
the resort’s office. In addition, the customer
action with respect to a guest or a tenant.
had lived there for 5 years. Thus, while that
This article is informational only and not
customer did indeed become a tenant, such
legal advice, which would need to account
tenancy resulted from occupancy of a room
for the specific circumstances in any given
outside the confines of the hotel.
case.
Nevertheless, it is generally good to
follow this basic common sense practice: The
Court
explained
that
the
facts
in
Don’t make assumptions.
Anderson contrast sharply with those in Evans and demonstrate the logic imposed by the plain meaning of the statute.
The
Court noted that, in Anderson, the hotel guest stayed in a Homewood Suites by Hilton which had a front desk, check-in
250 Commercial Street, Suite 4004 Manchester, NH 03101 www.nhlra.com | 15
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March 2021
Upcoming ServSafe Classes 3/2
Concord
3/15
Manchester
3/22
Nashua
3/29
Portsmouth
3/30
Lebanon
Get certified with us!
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16 Centre Street Concord, NH 03301 | (603) 228 - 9585 | nhlra.com