Booze and the Shelter-in-Place Blues

Amidst the new Shelter-in-Place orders, some states have relaxed the restrictions against alcohol delivery from restaurants. For some businesses, alcohol sales can make up to 30% of their revenue. The news is welcomed by those in the restaurant industry who have been struggling to stay afloat while their patrons try to comply with the shelter-in-place orders. For example, Maryland issued an executive order, allowing the sale of alcohol for delivery and take-out “if promptly taken from the premises before consumption.” Similarly, Texas Governor Greg announced Wednesday that restaurants can deliver alcohol, including beer, wine, and mixed drinks, alongside food.

California is amongst those states that have eased up on the rules. These relaxed rules make it easier for restaurants to sell beer, wine, and pre-mixed cocktails for pick-up and delivery throughout the state. The California Department of Alcoholic Beverage Control (ABC) released the following statement:

This regulatory relief is designed to support the alcoholic beverage industry in its efforts to assist California in slowing the spread of the virus while assisting the industry in dealing with the economic challenges it is facing as a result. The Department has carefully considered the public’s health, safety, and welfare in providing this relief, and the Department has concluded that none of these measures, exercised on a temporary basis, will jeopardize the public’s health, safety, or welfare.

The Notice of Regulatory Relief delineates a number of issues and the full text of the temporary suspensions can be found at https://www.abc.ca.gov/notice-of-regulatory-relief/.

It is important to note that ABC has only temporarily suspended its enforcement of specific prohibitions, and has every authority to rescind a businesses’ liquor license if a licensee abuses the temporary regulations:

The relief provided by this notice is temporary and may be withdrawn by the Department at any time. The Department intends to provide a 10-day notice of the termination of any such relief, although such relief may be withdrawn immediately should the needs of public safety dictate. In addition, licensees are directed to use the relief provided by this notice responsibly without compromising the public’s health, safety, or welfare. Notwithstanding any other provision of law, if the Department determines that any licensee is found to be abusing the relief provided by this notice, or if the licensee’s actions jeopardize public health, safety, or welfare, the Department may summarily rescind the relief as to that licensee at any time.

In California, not all licenses allow the sale of distilled spirits but instead can only allow the sale of wine or beer for delivery. Regardless, the restaurant must post open-container warnings in the restaurant and online for both the delivery driver and the customer.

ABC requires that the following verbiage be posted in a manner that puts the consumer on notice of still applicable open-container laws:

Alcoholic beverages that are packaged by this establishment are open containers and may not be transported in a motor vehicle except in the vehicle’s trunk; or, if there is no trunk, the container may be kept in some other area of the vehicle that is not normally occupied by the driver or passengers (which does not include a utility compartment or glove compartment (Vehicle Code Section 23225)). Further, such beverages may not be consumed in public or in any other area where open containers are prohibited by law.

California Vehicle Code sections 23221-23229 are collectively referred to as California’s “open container” laws and prohibit driving with an alcoholic beverage that has been opened, even if not consumed. Generally, an infraction of this nature carries a maximum fine of $250.00. In California, whether the beverage has been partially consumed or simply has a broken seal, having an open container in the car is illegal.

While the verbiage that must be posted by restaurants notes that it is illegal to have an open container in a vehicle and to consume in pubic (i.e. drinking in your vehicle while driving), it does not refer to or make any reference to drunk driving. Drunk driving, however, is a natural consequence of drinking while driving, which has been made easier to accomplish with these loosening of the restrictions.

During these trying times, it is important to support your local restaurant industry. However, if you are going to purchase alcoholic beverages with your take-out order, be sure to transport your alcohol in the trunk or bed of your vehicle. A person will not be guilty of violating an open container law if the alcoholic beverage is transported in the trunk of your car or in a place that is not ordinarily occupied by passengers, such as the bed of a truck or lockbox container. If you are not able to transport the alcohol in such a place, try to purchase beverages that are truly sealed, such as an unopened box, and remind your passengers not to drink while you are driving.

More importantly, if alcoholic beverages are in the trunk of a vehicle, or otherwise inaccessible place, a driver is incapable of taking a sip before getting home, thus eliminating the risk of getting a DUI.

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