There were several new statewide laws passed in the 2019 Oregon Legislative Session that went into effect as of January 1, 2020 or earlier this year. The following are some of the more frequently asked bills related to hospitality businesses.

Plastic Straws on Request
SB 90 prohibits food and beverage providers or convenience stores from providing single-use plastic straws to consumers unless consumers specifically request single-use plastic straws. Although ORLA opposed this bill, we were able to gain concessions such as allowing for employees to offer drive-thru customers a plastic straw rather than requiring them to ask for one. After notice for a first and second violation, subsequent violations may include a fine of "not more than $25 for each day in which the food and beverage provider... remains in violation... The enforcement officer may not impose total fines of more than $300 during a calendar year." Read the specific bill language on SB 90. 

FAQs on plastic straws:

1. Can drive-thru locations still give straws without guest request? Restaurant drive-thru windows can verbally offer single-use plastic straws to consumers in vehicles.
2. I understand that cocktail straws are considered stirrers. Does the same law apply for self-serve coffee stations (i.e., hotel breakfast areas)? There is no statewide single-use plastic ban on stirrers. Only in local jurisdictions (like Portland) does this exist. A single-use plastic straw must be used to transfer liquid from a container to a person’s mouth, therefore stirrers should still be exempt.
3. Can service staff at a sit-down (full-service) restaurant ask the guest if they would like a straw? No, the guests will need to ask for a straw. The exception includes, "in which the consumer may receive a delivery of prepared food or a beverage while seated in or on a vehicle."
4. If a location has both a drive-thru and a dining room are the guests who dine-in served differently than those who drive through? Yes. Drive-thrus are explicitly allowed to be more proactive in asking if the customer wants a straw.   
5. Are hotel rooms with coffee service exempt from the plastic straw rule? Yes. They are not considered a licensed restaurant. Related, a hotel breakfast area, if it is just a breakfast area and not a restaurant, could provide plastic straws without a guest having to request them because they are not a licensed restaurant.
6. Do quick-service locations with a self-serve soda fountain need to remove straws from the self-serve area and only have them behind the counter for customers to request? Yes, if they are a restaurant. The exemption is that convenience stores can still have straws out in self-service areas if the convenience store doesn’t have space behind the counter to store the straws where staff are.
7. What other materials can be used for single-use straws instead? Businesses can still include straws if they’re not made from any sort of plastic; other material options may include but are not limited to paper, pasta, sugar cane, wood, or bamboo.
8. Are mobile food trucks that have walk-up customers treated like a “drive-thru?" No. The definition in the bill requires the person to be "seated in or on a vehicle."

Plastic Bag Ban
HB 2509B prohibits retail establishments from providing single-use checkout bags to customers, except in certain cases. ORLA opposed this bill to ban all plastic checkout bags from restaurants, grocery stores and other establishments. Violations carry a maximum fine of $250 with one occurrence per day maximum. Enforcement officers are those who conduct inspections on behalf of your local government or regulating state agency, and may determine compliance during these inspections. Read the specific bill language on HB 2509.

FAQs on Plastic Bags:

1. Do drive-thru locations need to adhere to the new single-use plastic bag ban? Yes.
2. What can restaurants provide to customers? Restaurants may provide: (a) Recycled paper checkout bags at no cost to customers, (b) Reusable plastic checkout bags at no cost to customers who use an electronic benefits transfer card issued by the Department of Human Services, or if they charge not less than five cents per bag.
3. What are the restrictions for restaurants? Restaurants may not provide: (a) Single-use checkout bags to customers, (b) Reusable plastic checkout bags to customers unless the restaurant charges not less than five cents for each reusable plastic checkout bag.
4. Are single-use biodegradable plastic bags still allowed? No. Checkout bags can only be a recycled paper checkout bag, a reusable fabric checkout bag or a reusable plastic checkout bag.

Resources:

• DEQ/State of Oregon website
• Sustainable Shopping Initiative FAQs
• A Better Way to Bag - FAQs and Suggestions from Hillsboro Chamber and City of Hillsboro

Some cities in Oregon have already instituted plastic bag bans. This new law “generally preempts, or overrides, any existing local checkout bag policy." Local governments cannot have different restrictions from the statewide law in their local policy, but could require a higher fee and impose a penalty other than the penalty established under HB 2509—but a restaurant or retail store can only be charged with a violation under either the local provision or HB 2509.

• City of Portland Single-Use Plastics 
• City of Salem Plastic Bag Ban in Effect 

Commercial Activities Tax
The new Commercial Activity Tax is imposed only after a taxpayer exceeds $1 million of taxable commercial activity. Once they pass that threshold, the tax is $250 plus 0.57% on gross receipts greater than $1 million after subtractions. Draft rules have been released by the Department of Revenue, including estimated payments and filing extensions. The Department of Revenue intends to release a series of draft rules through March, with the permanent rulemaking process beginning on April 1, 2020. The tax begins on January 1, 2020. It includes all business entity types, including C and S corporations, partnerships, sole proprietorships, etc. Read more on the CAT, timelines, and other resources.

Accommodations for Pregnancy Related Conditions
The Oregon Legislature recently passed House Bill 2341 (2019) which provides additional employee protections related to pregnancy, childbirth or a related medical condition, including lactation. Read more at Oregon.gov/boli.

Real ID
As of Oct. 1, 2020, regular Oregon driver’s licenses will no longer be valid to board a commercial flight, or do other activities where a federally approved form of identification is required. Should someone choose not to upgrade to a Real ID, a standard Oregon driver’s licenses will still be good for activities, such as driving, purchasing alcohol, registering to vote or applying for benefits.

​Questions? If you have additional questions on these or other new laws, contact ORLA Government Affairs at 503.682.4422.
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Hospitality provides an industry of opportunity! Download the illustration here.

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The Law Regarding Service Animals and Public

There was a story in the news recently about a dog chasing a cat. Why was that newsworthy? Because it was a service dog attending a showing of Andrew Lloyd Webber’s musical “Cats” with its owner, and the cat in question was one of the shows characters (which, if you’re not familiar with the show, was a person dressed as a cat, not an actual cat). Hilarity probably ensued, to the embarrassment of the dog’s owner.   

That story reminded me of an issue that sometimes vexes restaurateurs and other business owners – how to deal with customers who make questionable claims that an animal is a service animal, and insist on bringing it onto the premises. This article summarizes the legal rights and responsibilities of customers and business owners in those situations. Businesses are, of course, free to be more accommodating than the law requires.

The Americans with Disabilities Act (ADA) and Oregon’s equivalent law requires “places of public accommodation” (including hotels, inns, restaurants, bars, and other establishments serving food or drink) to allow persons with disabilities to bring “service animals” onto the premises. Contrary to popular belief, though, every animal does not qualify as a service animal just because the customer says so.

First, the ADA currently limits the types of animals that can qualify as service animals to dogs and miniature horses. Oregon’s law is also limited to those two types of animals unless and until administrative rules are enacted that expand the definition to include other animals. Other states’ laws may vary, but, in Oregon, those are the only two animals that qualify as service animals.

Second, the animal needs to be individually trained to do work or perform tasks for the individual with a disability. This includes physical, sensory, psychiatric, intellectual, or other mental disabilities. The work or tasks performed by the service animal must be directly related to the individual's disability.

Examples of specific tasks the animal can be trained to perform include, among other things:

• pulling a wheelchair
• alerting a person to sights or sounds
• assisting with balance or navigation
• assisting a person with a seizure
• retrieving dropped items
• pressing buttons
• reminding a person to take medication and
• helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

Providing general emotional support, well-being, comfort, or companionship does not qualify. This means that emotional support animals, comfort animals, and therapy dogs are not considered “service animals” under the ADA unless the animal is also trained to perform some other specific task related to the individual’s disability.

The law does not require a license, jacket, tag, or other means to identify an animal as a service animal. Nor does it require medical verification or a prescription.

When confronted with a situation where an individual wants to bring a claimed service animal onto the premises, the business can only ask the following two questions of the individual:

1. Is the animal required because of a disability? This is a yes or no question. The individual cannot be asked to specify their disability or provide medical verification.
2. What work or task has the animal been trained to perform? The individual cannot be asked to have the animal demonstrate the work or task, nor can they be required to provide documentation or proof that the animal has been certified, trained, or licensed as a service animal. These questions should not be asked if the answers are obvious from the nature of the disability or the nature of the task or work being performed. For example, the questions may not be asked if the animal is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability.

The business needs to take the individual at their word, and allow the service animal on the premises, if the individual answers “yes” to the first question and states a specific task or type of work the animal has been trained to perform.   

The individual cannot be charged a fee to bring a service animal onto the premises; even a pet fee charged to other customers, because service animals are not “pets.”

If the service or assistance animal causes damage, then the owner can be charged for the damage so long as the business normally charges other customers for the damage they (or their pets) cause.

Unruly and disruptive animals need not be accommodated. The owner is responsible for supervising and controlling the service animal. The animal must also be housebroken.

If the animal behaves in an unacceptable or threatening way and the handler does not control the animal, then the business can ask that the animal be removed from the premises. For example, a service dog that repeatedly barks or growls at other customers, destroys property, climbs on the furniture unnecessarily, makes a mess on the carpet, or chases an employee (even one dressed like a cat), could be excluded from the premises if the individual cannot or will not control the dog.

The business can also require that the service animal be kept on a leash, harness, or other tether unless the individual is unable to hold a tether because of a disability or its use would interfere with the animal’s safe and effective performance of work or tasks. Even then, the service animal must still be kept under control by some other means, such as voice commands.

The owner is responsible for the care and feeding of the service animal. The business does not need to provide food or water for the animal, or clean up after it. That is the responsibility of the owner.

If a service animal is excluded, the business must still give the individual the opportunity to obtain goods, services, and accommodations without having the service animal on the premises. | Shane P. Swilley, Partner, Cosgrave Vergeer Kester LLP (originally posted 1/2/2018; updated 1/2/2020)

RESOURCES
Access additional compliance information and resources for the hospitality industry, including ADA regulations and downloadable posters at OregonRLA.org/Compliance. 
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• Fact Sheet #9: Pet Dogs in Outdoor Seating Areas in Oregon
• Oregon/ADA “Sorry, pets are not allowed” Poster
• U.S. Department of Justice, ADA Requirements for Service Animals
• Disability Rights Oregon, Service Laws in Oregon