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The legal status of bed-and-breakfast operations
The Legal Status of
Bed-and-Breakfast Operations B&B operations may boast quaint and homey accommodations, but the host-owners are still responsible for guests’ safety and welfare as if they were running a hotel, motel, or inn _..~.
A RELATIVELY RECENT development that has attracted growing numbers of tourists and other travelers is the advent of bed-and-breakfast establishments. The purpose of this overview is to define this type of establishment and explore its legal rights and obligations in the context of hospitality management. First, it is necessary to understand what a bedand-breakfast operation is and how the law creates and exerts control over its management. Abed-and-
by John E.H. Sherry, J.D., professor of law at the Cornell University School ofHotel Administration. Professor Sherry’s column “The lnnSide of the Law” appears in The Cornell Quarterly in April, August, and December.
0 1993, Cornell University
12
THE CORNELL
H.R.A. QUARTERLY
breakfast has no specific universal definition. It is a creature of county or municipal law. Each state is free to permit but not mandate a county or local political unit to institute such an operation. In New York State, town-law legislation enables local bodies to establish or refuse to establish bed-and-breakfast operations as they see fit, and this pattern is followed in other jurisdictions. What, then, constitutes bed-and-breakfast operations, and how do they differ from small inns, hotels, and motels? A bed-and-breakfast is a private operation, akin historically to a private “host for hire,” and not a place of public accommodation in the legal sense. As such, it may be defined as follows:
parking, and structural requirements as a condition of approval. Thus, one may not simply open one’s home and accept strangers’ patronage. Generally, there are local standards and conditions that must be met. Once a bed-and-breakfast operation in a private home is allowed, what legal obligation to the guest does the homeowner incur? Not surprisingly, some of the existing legal duties that govern other types of accommodations come into play. For instance, the operator may not create unreasonable risks of harm or inflict unreasonable harm upon the guest. The fact that the bed-and-breakfast operates more akin to a private host does not relieve the owner of those responsibilities. The host’s acceptance of payment in the normal course of business creates a relationship of mutual benefit to which the host must respond. Thus the host may incur contract, tort, and agency responsibilities even though the method of operation may be less formal and more home-like than the typical commercial hotel or motel. To the same effect, the host who wishes to expand his or her dining operation to include the general public must comply with all legal requirements for that type of business. Once again, the local authorities must authorize such operations-which they may refuse to do. The difference between a small inn and a bed-andbreakfast is that the bed-and-breakfast is an owned and occupied private residence with a small number of guest rooms. Bed-and-breakfasts may not exceed locally prescribed restrictions. Doing so forfeits the owner’s right to operate and may require a cessation of the bed-and-breakfast, with appropriate sanctions for willful failure to do so. In sum, the bed-and-breakfast is a hybrid form of accommodation intended to fill a niche between the formal service of a hotel or motel and the casual, homey environment of the private host. However, because the “for hire” relationship of the bed-andbreakfast host to the guest is on a more-than-casual basis, it is not a social relationship, meaning that the host must assume more than a moral responsibility for guests’ safety and welfare. CQ
An accommodation generally limited in size to no more than five rooms of double occupancy existing only in a private house and managed by that property’s owner, with breakfast served in the host’s private dining area (kitchen or dining room) only to those accommodated.l In other words, the public at large does not have access to rooms or other services of the operator. No formal registration is required unless otherwise provided by law, but a guest book is usually offered for guests’ use. The private-host arrangement exempts bed-andbreakfast establishments from federal and state civil-rights laws governing admission and service of patrons. Bed-and-breakfast owners are not required to admit a potential guest seeking accommodation, unlike hotels and inns that are governed by common law. That bed-and-breakfast exemption, oftentimes called “Mrs. Murphy’s boardinghouse rule,” could be changed if sufficient political pressure to do so arose, but as yet no movement in that direction has been perceived. Because the legal existence of the bed-andbreakfast operation is permissive and not mandatory, the governing local authority may impose restrictions on size, area, duration of operation, ‘For a broader application of the concept “bed-and-breakfast” and a discussion of trends in that travel-industry niche, see in this issue: Pamela Lanier and Judy Berman, “B&Bs Come of Age,” pp. 14-23.
APRIL 1993
13
Bed-and-Breakfast Operations B&B operations may boast quaint and homey accommodations, but the host-owners are still responsible for guests’ safety and welfare as if they were running a hotel, motel, or inn _..~.
A RELATIVELY RECENT development that has attracted growing numbers of tourists and other travelers is the advent of bed-and-breakfast establishments. The purpose of this overview is to define this type of establishment and explore its legal rights and obligations in the context of hospitality management. First, it is necessary to understand what a bedand-breakfast operation is and how the law creates and exerts control over its management. Abed-and-
by John E.H. Sherry, J.D., professor of law at the Cornell University School ofHotel Administration. Professor Sherry’s column “The lnnSide of the Law” appears in The Cornell Quarterly in April, August, and December.
0 1993, Cornell University
12
THE CORNELL
H.R.A. QUARTERLY
breakfast has no specific universal definition. It is a creature of county or municipal law. Each state is free to permit but not mandate a county or local political unit to institute such an operation. In New York State, town-law legislation enables local bodies to establish or refuse to establish bed-and-breakfast operations as they see fit, and this pattern is followed in other jurisdictions. What, then, constitutes bed-and-breakfast operations, and how do they differ from small inns, hotels, and motels? A bed-and-breakfast is a private operation, akin historically to a private “host for hire,” and not a place of public accommodation in the legal sense. As such, it may be defined as follows:
parking, and structural requirements as a condition of approval. Thus, one may not simply open one’s home and accept strangers’ patronage. Generally, there are local standards and conditions that must be met. Once a bed-and-breakfast operation in a private home is allowed, what legal obligation to the guest does the homeowner incur? Not surprisingly, some of the existing legal duties that govern other types of accommodations come into play. For instance, the operator may not create unreasonable risks of harm or inflict unreasonable harm upon the guest. The fact that the bed-and-breakfast operates more akin to a private host does not relieve the owner of those responsibilities. The host’s acceptance of payment in the normal course of business creates a relationship of mutual benefit to which the host must respond. Thus the host may incur contract, tort, and agency responsibilities even though the method of operation may be less formal and more home-like than the typical commercial hotel or motel. To the same effect, the host who wishes to expand his or her dining operation to include the general public must comply with all legal requirements for that type of business. Once again, the local authorities must authorize such operations-which they may refuse to do. The difference between a small inn and a bed-andbreakfast is that the bed-and-breakfast is an owned and occupied private residence with a small number of guest rooms. Bed-and-breakfasts may not exceed locally prescribed restrictions. Doing so forfeits the owner’s right to operate and may require a cessation of the bed-and-breakfast, with appropriate sanctions for willful failure to do so. In sum, the bed-and-breakfast is a hybrid form of accommodation intended to fill a niche between the formal service of a hotel or motel and the casual, homey environment of the private host. However, because the “for hire” relationship of the bed-andbreakfast host to the guest is on a more-than-casual basis, it is not a social relationship, meaning that the host must assume more than a moral responsibility for guests’ safety and welfare. CQ
An accommodation generally limited in size to no more than five rooms of double occupancy existing only in a private house and managed by that property’s owner, with breakfast served in the host’s private dining area (kitchen or dining room) only to those accommodated.l In other words, the public at large does not have access to rooms or other services of the operator. No formal registration is required unless otherwise provided by law, but a guest book is usually offered for guests’ use. The private-host arrangement exempts bed-andbreakfast establishments from federal and state civil-rights laws governing admission and service of patrons. Bed-and-breakfast owners are not required to admit a potential guest seeking accommodation, unlike hotels and inns that are governed by common law. That bed-and-breakfast exemption, oftentimes called “Mrs. Murphy’s boardinghouse rule,” could be changed if sufficient political pressure to do so arose, but as yet no movement in that direction has been perceived. Because the legal existence of the bed-andbreakfast operation is permissive and not mandatory, the governing local authority may impose restrictions on size, area, duration of operation, ‘For a broader application of the concept “bed-and-breakfast” and a discussion of trends in that travel-industry niche, see in this issue: Pamela Lanier and Judy Berman, “B&Bs Come of Age,” pp. 14-23.
APRIL 1993
13