The Dish | February 2021

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

www.nhlra.com | 13

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.

www.nhlra.com | 14

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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www.nhlra.com | 21

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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