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The guest is not always right

Dec. 28, 2017, midnight

The guest is not always right

 

Perhaps we are not mistaken if we say that every institution of public catering (bars, cafes, restaurants, etc.) are repeatedly faced with problems of insolvency or lack of willingness of the client to pay the bill and attempts to "unwanted" visitors "to storm" the room or to disturb the pleasant activity of others.

So in such situations one should act employees (the representatives) named places and directly "restaurateurs"" below, without violating the requirements of the legislation of the Russian Federation, to protect their interests, property and provide a safe and healthy environment for customers?

The civil legislation of the Russian Federation, regulating questions of rendering of public catering services, enough space, in our view, gave the visitor a number of powers, which, respectively, correspond responsibilities of the owners of the "restaurant business". In particular, the above institution (the "executors") are required to provide service to any individual person who applied with the intention to order such a service (user) (p. 16 of the Rules of rendering of services of public catering, approved by the Decree of the RF Government dated 15.08.1997, № 1036 ("Rules")). Because these services are public and, in fact, customers are the public contracts, the performers are unable to refuse to provide services (the contract) in the presence of real possibility of its rendering, and also due to the preference of a person. In other words, do not allow the exclusion of "potential visitor", if the establishment has availability (section 3 of article 426 of the civil code).

At the same time, the legislator gave performers the right to set their own in places of provision of services rules of conduct for consumers that do not contradict the legislation of the Russian Federation (paragraph 5 of the Rules). This document may contain additional grounds for refusal in granting of services of public catering (the award of a public contract) (Appellate decision of Sverdlovsk regional court from 03.07.2015 in case No. 33-8671/2015). However, it must be remembered that such grounds must comply with the legislation of the Russian Federation, that is, not to establish a prohibition for the admission of visitors based on gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, convictions, belonging to public associations (article 19 of the Constitution of the Russian Federation). So, there is jurisprudence where the court finds wrongful refusal of entry of a citizen in a cafe-bar by reason of his belonging to "persons of Caucasian nationality" (the appeal decision of the Saratov regional court on 31.01.2012 year in case No. 33 – 502).

Valid, in our opinion, the additional grounds of refusal to provide catering services, there can be those that are directly or indirectly related to the behavior of the visitor, for example: finding him in a state of alcoholic, toxic or narcotic intoxication, violation of areas reserved for smokers, and other (p. 5 of the Rules; the Appellate decision of Kurgan regional court from 14.08.2014 year in the case of No. 33-2418/2014).

However, please note that the securing of such grounds in the rules of conduct for consumers approved in the institution itself is unlikely to "protect" artists. This appears to be only one particle of a "mechanism" to protect the interests of owners of catering. In order that "they fully earned" should be:

  • to consider in advance how to record the facts proving the existence of circumstances enumerated in the rules of conduct for consumers (establishment of a system of surveillance; the police; witness testimony, etc.);
  • periodically to conduct explanatory work with the staff, guards, administrators, and other staff regarding the conduct and procedure of performing the necessary actions because, from how to correctly and in a timely manner, efforts will be made depends directly on the resolution of a dispute in favor of the executor;
  • to develop a similar memo of instruction to members of the staff, etc.

 

As for the subject of the refusal of the visitors for one reason or another to pay the issued school catering account, I would like to draw attention to the following. Paragraph 20 of the Regulations establishes the right of the contractor to offer the visitor different options of payment: advance payment, payment after selection of the dishes or after a meal and other. In our opinion, the first two methods of calculation are most preferred to protect the interests of "restaurateurs" from illegal evasion. The reason is that:

1) the contractor has until the end of the meal the customer will have an understanding of solvency (insolvency) of the client;

2) the staff of the institution receive a supply of time for further response (e.g., a call to the police);

3) if you have a video surveillance system, the cameras will record the fact of refusal to pay invoices in due time;

4) police can be given a real confirmation of the customer's failure to settle in accordance with applicable school rules.

However, to minimize the risks of the application by the customer about his neveonline on the application of the executor of such methods of payment it is necessary to place such information in a clear and accessible form in the menu or the price list, and bring it to the attention of any consumer in a convenient for his review of the place in the hall and at the entrance to the room (p. p. 11-14 of the Rules).

As a rule, persons who do not wish to pay the issued school catering account, refer to the shortcomings of the services rendered to him (being in the prepared dish of foreign objects, the discrepancy of the ingredients listed in the menu, etc.) or indicate other flimsy circumstances. If the reason of refusal to pay bills is the place to be, in reality, the "restaurateurs" will have to satisfy one of the following customer requirements:

— gratuitous elimination of defects in services rendered, including products of public catering;

appropriate reduction of the price of the rendered services, including products of public catering;

free re-manufacture of products of appropriate quality (p. 26 Rules; article 18 of the Law of the Russian Federation from 07.02.1992, № 2300-1 "On protection of consumer rights").

If the contractor is confident the abuse of their right visitor, the employees of the institution need to quickly call the police. It is desirable to disturb and to find the phone duty of the police Department, "under control" which is "catering". This will save time in critical situations. While in a telephone conversation with police officers it is necessary to clarify details of the employee who took the message, and the number of his registration which further can monitor the proceedings. The police are obliged to arrive immediately to the place of Commission of the wrongful act, document the circumstances of the offence (sub. 2 clause 1 of article 12 of the Federal law from 07.02.2011 № 3-FZ "On police"). In particular, police officers are authorized to draw up protocols on administrative violations, reports, to obtain explanations from the perpetrators of the act to record the testimony. From these documents, the owners of catering, you can obtain information about offenders.

Such actions, on the one hand, will serve as an example to other "unscrupulous visitors", on the other, will allow owners of catering establishments "to prepare the basis of evidence of their innocence".

Please note that as documents confirming the facts of compliance of the ingredients used in the composition of the prepared dishes, quality requirements and compliance with the recipes of preparation of dishes can be used: certificates and declarations of conformity, laboratory test reports, etc. (the Appellate decision of Sverdlovsk regional court of 13.02.2014, case No. 33-1162/2014; p. 22 Rules; guidelines for laboratory quality control of products of public catering, approve. The USSR Ministry of health 23.10.1991, No. 122-5/72).

Thus, in order to protect their interests the owners of the restaurant business, you need to act "ahead" of the visitor. Detailed approach to the characteristics and costs of its business activities, the absence of neglect of the "hidden capabilities" enshrined in the legislation of the Russian Federation (the competent preparation of the rules of conduct of visitors, the systematic carrying out of production control, "briefing" members of the staff about the sequence of actions in complex situations, establishing surveillance systems, etc.) will not only minimize the risk of attracting institution to civil liability or material damage, but also give confidence to visitors in finding their safe and comfortable time to this institution, which will certainly affect his status and reputation.