MasterMind Minutes is the Webcast that shares expert business information in Minutes Not Hours. Each edition runs approximately 10 to 15 minutes and features an expert guest covering one question. The entire series is posted and updated several times a week on this page so you can binge watch back-to-back “episodes”. Three to five new editions are added each week so keep coming back to view the experts on an insightful topic that is sure to help you build, grow and run your business.
WHAT ARE THE FRANCHISE BRANDS THAT ARE DOING WELL DURING AND WILL DO WELL AFTER THE PANDEMIC? – Today’s guest is Lance Graulich
Lance is the founder & CEO of ION Franchising, an industry leading franchise consulting and development group, that represents over 500 franchise brands & business opportunities within 90 categories. Lance helps prospective entrepreneurs find their perfect franchise for FREE.
ARE YOU OVERLOOKING POTENTIAL MONEY SAVING CHANGES IN THE FEDERAL TAX LAWS THAT WERE INCLUDED IN THE COVID STIMULUS BILLS? – Today’s guest is MICHAEL IANNUZZI
Michael Iannuzzi is a partner and co-leader in Citrin Copperman’s franchise practice providing a variety of services to a wide spectrum of clients within the franchise community.
GROWING YOUR FRANCHISE COMPANY POST COVID-19 – Today’s guest is Harold Kestenbaum.
Harold is a franchise attorney who has specialized in franchise law and other matters relating to franchising since 1977.
WHY DO FRANCHISEES FAIL – Today’s guest is Tom Scarda, CFE, Founder & CEO of the Franchise Academy, Best selling author and Podcaster.
Legal Issues and COVID29 – Excerpt – Other potential avenues also turn on the exact language of the lease. If the tenant’s obligation to pay rent is conditioned on the landlord’s ability to deliver to the tenant continued access to the premises, it would reasonable to conclude that rent can be excused while the premises cannot be accessed.
Today’s post is written by New York attorneys Michael Einbinder and Richard Bayer of the law firm Einbinder & Dunn. They have years of experience handling a variety of legal work for businesses large and small. The post today reflects their thoughts and advice regarding how small businesses can deal with the current COVID 19 issue.
Whether you’re running the small independent business or are an independent contractor or if you are a franchisor or a franchisee, you will find the information contained in this post helpful. Of course, if you need greater detail or have questions, the contact information for Einbinder & Dunn is located at the bottom of the post.
We wish everyone to stay safe and look to the future as we move past this trying and critical time in our history.
A Message About COVID-19 By Michael Einbinder and Richard Bayer-
Photo by Clay Banks on Unsplash
Recently, we have received numerous inquiries from clients, including those in the retail and hospitality industries, concerned about the impact that Covid-19 will have on their businesses. Although the landscape appears to be ever-changing, we wanted to send this email to offer you general guidance and practical considerations as well as to highlight important legislature to keep in mind. As a firm, we are deeply committed to assisting our clients through these trying times and we will hold that commitment steadfast while new developments unfurl.
More and more states, counties and other municipalities are issuing “shelter-at-home,” work from home mandates and other restrictions on gathering in groups larger than 10, 20 or 50. The impact of such mandates has been felt across the board and has been especially painful for restaurants, bars, nightclubs, gyms, movie theaters, retail businesses, barber shops, health and beauty salons and countless other consumer facing businesses.
Real Estate Lease and Other Contracts
It is not surprising that in this current climate, many businesses are seeking help to understand their lease obligations. Can they close their store, restaurant, or business? Can they stop paying rent? The short answer is likely yes, but not in every instance. Your lease may contain clauses that may allow you to close your business and/or stop paying rent. Additionally, applicable case law may also support your ability to close your business and/or stop paying rent.
You are likely seeing the terms force majeure and “Acts of God” appear frequently in articles, newsletters and other publications as more and more businesses are looking for ways to freeze performance under a contract or perhaps, terminate the contract altogether. A force majeure clause, which typically includes a reference to “Acts of God,” is one that permits a party to a contract to be relieved from performing under that contract during a time when, due to some event outside of its reasonable control, the party’s ability to perform is impeded, hindered or prevented. Generally speaking, there is a high bar for the invocation of a force majeure clause and whether or not it will apply will depend on the exact language of the contract and the law of the jurisdiction set forth in the contract. In the context of a commercial lease, if the lease contains a force majeure clause that specifically relieves performance in the event of a pandemic or similar event, a tenant may be permitted to close and stop paying rent. However, force majeure clauses can often be a frustrating dead end because: (i) courts apply it very strictly; (ii) leases frequently apply it to limited circumstances such as delays in construction and few if any reference pandemics; and (iii) many leases specifically do not permit force majeure to forgive payment of rent.
However, in some jurisdictions case law may provide a stronger argument (than a contract) for relief from a contract, including possibly permitting a tenant to close its business and/or stop paying rent. Two such doctrines found in case law are the: (i) discharge by supervening impracticability; and (ii) prevention by governmental regulation or order. As to the former, a supervening event (such as a pandemic) may allow a tenant to close and/or stop paying rent if an event occurs, the non-occurrence of which was a basic assumption upon which both parties made the contract. The event must have been unforeseeable. The standard is high. It is not enough that the business has been made difficult or unprofitable, it must have been rendered impracticable, which means incapable of being performed. In the context of a lease, if customers are legally restricted from visiting a business location due to unforeseen circumstances (a pandemic lockdown), a court may find that to be sufficient under the supervening impracticability doctrine to permit the tenant to close and/or stop paying rent.
Prevention by governmental order is self-explanatory and much easier to prove. As in the case of the recent order by the Governor of New York, if a business is simply prohibited from operating due to unforeseeable circumstances, which prevents it from operating according to the terms of a contract (in a lease situation, the business is prohibited from operating in the premises), then the party may be excused from performance (in the case of a tenant, remain open or pay rent). The businesses that were targeted in the original Governor’s Orders in New York, such as gyms and movie theaters, certainly can argue they fall into this category. There is a gray area if businesses, such as restaurants, are able to partially operate through takeout and delivery. Whether their level of operation is enough to make their businesses legally “operable” will probably have to be tested in court.
Other potential avenues also turn on the exact language of the lease. If the tenant’s obligation to pay rent is conditioned on the landlord’s ability to deliver to the tenant continued access to the premises, it would reasonable to conclude that rent can be excused while the premises cannot be accessed.
Assuming for a moment that applicable law does not permit the tenant to close its business and/or stop paying rent, many businesses will make the practical decision to do just that. What repercussions may follow from that will likely be specified in the lease and subject to state/county/local municipality mandates. Many jurisdictions have already announced moratoriums on commercial evictions.
Many of the legal principles that offer an avenue for tenants to close and/or stop paying rent under a lease may also be applied to other contracts, including force majeure, doctrine of supervening impracticability, prevention by government regulation as well as others including frustration of purpose). Again, whether performance can ultimately be excused will depend on the exact language of the agreement and the applicable jurisdictional law.
We are urging clients to review their leases and contracts for the types of clauses that we highlighted above. We can help if you like with the review and the development of a plan of action for the future. With a proactive approach and open dialogue with the other party (whether your landlord, supplier or other contracting party), you may be able to develop a plan of action that gives you relief now and provides for the continuation of your business after things normalize.
Banking and Customer Assistance
Businesses with insufficient cash reserves or access to capital will likely struggle during this time and for many, unfortunately, this outbreak will result in their permanent closure. For companies suffering from or expecting to suffer from a cash shortage, obtaining a credit line or increasing one is critical. We strongly recommend that such businesses immediately contact their existing banking partners to see what opportunities for financing are available. If your current banking partners are unable to assist, please let us know. We have cultivated strong relationships with contacts in the banking and financing industries and may be able to make an introduction.
The U.S. Small Business Administration has implemented a disaster loan assistance program under which, small businesses that have suffered economic injury as a result of Covid-19 may qualify for low-interest federal loans. Loans of up to $2,000,000 may be offered for use to pay debts, payroll, or other bills that cannot be paid due to the impact of Covid-19. Here is a link to the SBA’s website: https://disasterloan.sba.gov/ela/ Other relief may become available and businesses should continue to search for grants and programs that may provide additional funding.
In addition to increasing your access to capital, you should be acutely aware of voluntary assistance initiatives being offered by your existing business partners. Numerous credit card companies are encouraging customers who are experiencing financial hardship due to Covid-19 to reach out and discuss available options, which may include fee waivers, temporary interest rate reductions, waived penalties for missed payments Con Edison, a provider of electricity and gas in New York, is offering to extend payment deadlines to customers without penalty, provided that customers apply for that assistance. Throughout the country, other business partners will be offering similar assistance initiatives.
We are advising all clients to review their insurance policies carefully and especially, their business interruption coverage. Business interruption insurance is generally intended to cover losses from a direct interruption to a business. It typically covers lost revenue, and fixed expenses, such as rent and utilities. Some companies may have additional coverage in the form of a contingent business interruption policy which is intended to cover losses resulting from indirect disruptions, such as supply chain issues. Because many insurers excluded viral or bacterial outbreaks from standard business interruption policies as a result of the SARS outbreak, whether your policies will cover losses resulting from Covid-19 business interruption will turn on the exact language of the coverage.
These are extremely difficult times and businesses are forced to consider making equally difficult decisions regarding their employees. The White House has requested that states delay reporting lay off figures out of a fear that the skyrocketing numbers will set off another wave of panic in the stock market. Without a doubt, the number of layoffs will be staggering. Union Square Hospitality Group has already announced layoffs of 80% of its work force. Hotel and hospitality heavyweights such as Hilton, Marriott and MGM have furloughed tens of thousands of employees.
While not garnering the same media attention, small businesses will have to make the same decision. Principals will need to determine whether the business continue to pay staff their full wage during this outbreak or will it be forced to lay off employees, or short of that, furlough salaries until things recover.
Federal and state governments are keenly aware of this issue and are seeking to implement relief packages. Phase I included the Families First Coronavirus Emergency Response Act, which was signed into law on March 18th. The Act extends sick leave to workers diagnosed with or in quarantine due to Covid-19. A tax credit is made available to employers in an amount equal to 100% of the qualified sick leave wages paid by the employer. New York State has announced that employers are required to provide job protection and paid sick leave for individuals who have been quarantined as a result of Covid-19. New York City has enacted an Employee Retention Grant Program that offers assistance to New York City businesses with one to four employees that demonstrate at least a 25% decrease in revenue as a result of Covid-19. Other states and local municipalities may have similarly enacted assistance packages.
Further financial relief will required. As of today, potential recovery plans would give $1,200 to many Americans. Ongoing assistance will undoubtedly be necessary. New York has waived its seven-day waiting period to register for unemployment insurance and reports indicate that over 21,000 calls were made in a single day compared to approximately 2,000 the week before.
In addition to the initiatives indicated above, the Federal government has extended the tax filing deadline until July 15, 2020. Tax payers will now have until July 15, 2020 to file and make tax payments that would have otherwise been due on April 15, 2020. If you are expecting a refund, you may want to file your Federal tax return as soon as possible. It is unclear when refunds will be issued, but those funds, if issued, would be helpful during this outbreak. New York State, at the moment, is silent on this issue, but we expect further guidance. We recommend that you keep abreast of state updates.
===================================== About Einbinder & Dunn
Our story begins in 1990, when Michael Einbinder and Terrence Dunn became partners. We shared a vision to offer clients real value—by providing personalized, yet cost-effective legal services. We also employ a team of professional, highly dedicated associate attorneys and two paralegals, in addition to other support staff, all of whom share the partner’s vision of a sophisticated yet personalized practice. Based in Midtown Manhattan, with offices in White Plains and Millburn, New Jersey, Einbinder & Dunn serves mid-size and larger companies as well as small businesses and entrepreneurs.
This post is not intended to constitute legal advice, which would require a full review of your agreements and further clarity on the government response, which is in constant flux. All information, content and links in this email are provided for general information purposes only. Information below may not constitute the most up-to-date legal or other information, as the same is continuously changing. This email contains links to other third-party websites. Such links are only for the convenience of the reader. We do not recommend or endorse the contents of the third-party sites. Readers should contact an attorney to obtain advice with respect to any particular legal matter. No reader should act or refrain from acting on the basis of this email without first seeking legal advice from counsel in the relevant jurisdiction. Only an attorney can provide assurances that the information contained herein, and your interpretation of it, is applicable or appropriate to your particular situation.
It could be a Wine Bar with small plates, or a BBQ theme or a Create Your Plate concept. Whatever you decide, it is critical that the environment and “vibe” within the restaurant places the guest firmly inside the experience you’re attempting to create. Don’t confuse the guest with a concept that’s disconnected. As I often remind my clients, “everything touches everything else.”
BY GARY OCCHIOGROSSO – FOUNDER OF FRANCHISE GROWTH SOLUTIONS.
Tripwires to avoid – Desire and passion will only get you so far. Create your business plan as a road map.
For many people, opening a restaurant is a dream. One of the many things I find so interesting about the restaurant business is the blend of creative artistry and the detailed and challenging business aspects necessary to be successful. As an Adjunct Instructor at NYU’s School of Professional Studies, I teach restaurant concept development and business planning. On several occasions, I have been asked by my students to summarize the top issues that one must consider when planning to open a restaurant. Generally, regardless of the type of restaurant, the planning and considerations are the same. I’ll cover a few of the top line elements here.
At the beginning of the process, you should write a simple business plan. It would help if you thought about the many pieces of the puzzle connected to a successful outcome. Many novice restaurateurs, very often chefs, only consider the food component, but there is so much more. A well thought out business plan will include creating a unique concept, a competitive analysis, site selection, financial projections, equipment needs, staffing, and of course, the menu.
Let’s start with a concept
It’s essential that your restaurant offers a unique experience. It could be a Wine Bar with small plates, or a BBQ theme or a Create Your Plate concept. Whatever you decide, it is critical that the environment and “vibe” within the restaurant places the guest firmly inside the experience you’re attempting to create. Don’t confuse the guest with a concept that’s disconnected. As I often remind my clients, “everything touches everything else.” For instance, you wouldn’t use elegant tableware in a fried chicken restaurant or disposable plates in an upscale steakhouse. As obvious as this may seem on the broader elements, it’s essential to take that idea to every detail of the restaurant concept, no matter how small. Everything from the paint color to the music to the tabletops to the wall hanging must work together. The decor elements, the menu, and the service level need to provide the guests with a seamless experience that, when done well, goes almost unnoticed because it’s natural and authentic.
If You Build It, Will They Come?
Building a clientele is never as easy as hanging a sign over the door. It takes smart planning, execution of marketing, and living up to the promise in your mission and brand position statement. You should never assume, “if you build it, they will come.” Questions to ask yourself are; how will my restaurant connect with people? Why does my restaurant exist? What type of people am I looking to attract? What do they read or watch? How do they spend their spare time? What is the best way to reach them? Your concept should appeal to a particular, selected audience. There is no such thing as “everyone is my customer.” Knowing why and for whom your restaurant exists is crucial to success. Your marketing plan should offer compelling reasons why that guest base should frequent your establishment regularly. Is the concept created for health-conscious people? Is it aimed at Millennials or Baby Boomers? It is a full menu or dessert brand or a convenient, fast food, value-based concept. Your social media, print ads, and community outreach should focus on one single audience with one single message. Once you’ve built a loyal base of customers and repeat business, then you should consider expanding your base by marketing to others in the area with a proposition that appeals to them.
Your People Plan is Key
A great team will help you win everyday. Hiring great people is the first step in delivering service excellence and a consistent product to your guests. Your mission statement “the why” along with a corporate culture that emphasizes respect for employees, commitment to your guests, service to the community, and concern for the environment will guide you when selecting your staff. It’s not enough to hire people with restaurant experience; they should also understand and be excited about the mission of the restaurant. If not, they will go through the motions with an inauthentic approach and often fail at exceeding guest expectations. Examine your corporate core values and hire people that match it. Next, supply your staff with comprehensive, ongoing training and the proper tools so can they carry out the day to day tasks flawlessly. Hire for qualities, train for skills.
The Market and Competition
Understanding the market area where you’d like to open your restaurant is a crucial element to the plan. Carefully research the demographics to ensure there are enough people in the area that match whom you believe will embrace your concept. When looking for your location, work with an experienced commercial broker that can supply you with data to help you choose the area and the site correctly.
A full competitive analysis is also essential. For example, check the pricing of your competition. Be sure you’re not over or underpriced for the market. Check other services they offer, such as delivery and online ordering. Spend time in the market area, dine several times at as many competitors as possible, and position your restaurant to address the missing needs in the market. Having a unique value and selling proposition will keep you ahead of the game. Remember, everyone is vying for the same consumer dollars, so you need to create points of differentiation that will help your establishment stand out from the competition.
Consistently Great Food
Your menu must not only be relevant to the concept and the market but should be prepared and served perfectly every time. Restaurant guests expect dishes they grown to love to have the same flavor and high quality each time they visit. Inconsistent products can lead to disappointed guests, bad reviews, and slumping business. Your menu should be not only delicious but also simple to execute. The more straightforward the menu, the less chance of mistakes in preparation. Consistency increases guest satisfaction. Some chefs and “foodies” create menu items that are too complicated and require a highly skilled professional in the kitchen. This approach is fine if you intend to open a high-end restaurant staffed with high price personnel, but not in a fast-casual or family restaurant setting. A winning menu is simple, fresh, relevant, and great tasting. A competent chef can assist in developing dishes that are unique and great tasting that are also simple to produce with less skilled labor. If you have aspirations of owning more than one location, then simple execution, and consistent products are a must to achieve the goal of operating multiple restaurants.
Cash Is King
There are many reasons why restaurants fold. It could be the wrong concept, poor choice of location, not correctly researching the competition, poor service, an uninspiring menu, or bad food, to name a few. That said, the negative impact of undercapitalization may be the most frequent cause of restaurant failures. Knowing how much money you need to launch the restaurant is only the tip of the iceberg. You must assess ongoing cash needs while the restaurant is newly opened and gaining momentum. It may take many months for a restaurant to break even and then eventually become profitable. Being able to support the financial needs during this phase is often the “make or break” challenge that many new restaurateurs cannot overcome. A well thought out projection model that you create with the help of a professional financial advisor can save you from the frustration, negative financial impact and heartbreak of a failed restaurant. Considering capital needs for the first twelve to fifteen months is not only prudent but essential to the success of any new restaurant. You must be prepared to cover the operational costs and expenses as the restaurant “ramps up.” Carefully consider your cash needs and how much working capital you must have on hand, ready to deploy.
Have A Plan And Follow Your Dream
Owning a restaurant can be personally rewarding and profitable. Many people have built great restaurant companies following these simple guidelines. Desire and passion will only get you so far. Create your business plan as a road map. Your plan will help you stay on track when dealing with the many moving parts of launching and successfully operating a new restaurant.