After COVID-19 changed the world, stay at home orders and safety precautions decimated the restaurant industry. Governors across almost all 50 states, including Florida, issued emergency executive orders changing the status-quo of the treatment of “to-go beverages.” To-go service is alcohol and/or wine-based mixed drinks prepared by the establishment that are served off-premises. These measures, while initially designed as temporary relief, have begun to take permanent form all over the country, with overwhelming bipartisan support. Florida’s Bill 148 was signed into law by Governor Ron DeSantis on May 13, 2021, and takes effect July 1, 2021.
“Governor DeSantis’ emergency order that allowed restaurants to sell alcohol to-go during the darkest days of the pandemic shutdown was crucial to helping us stay open,” explains Greg Richie, executive chef and owner of Soco Thornton Park in Florida. “When bars were extended the same option, we began to sell considerably less drinks to-go. Going forward, I don’t see it being a major source of income for us, as most people want the full experience of seeing and hearing their cocktail being made while they’re enjoying the vibe of Soco. Every little bit counts though, and it’s definitely still a great option if you’re spending time with friends at home and want to serve them your favorite local restaurant’s cocktails.”
The Bill alters existing law, allowing the sale or delivery of wine-based and liquor-based beverages prepared by the eligible establishments in sealed containers. The law excludes the sale or delivery of a manufactured bottle of distilled liquor. The new law comes with very specific caveats. The “to-go” beverage must be accompanied by a food order and a dated receipt detailing the food and beverage sale. Sale or delivery of such beverages must conclude at the end of the establishment’s food service. When the beverage is transported by vehicle, it must be in a locked compartment or area behind the last upright seat. It may only be delivered by someone who is 21 or older and the vendor must verify and document the legal age of the recipient.
Most restaurant and hospitality industry advocates applaud the law and its flexible and transformative approach to the nations “new normal.” Small and fast-service restaurants should give particular attention to the eligibility requirements, which some critics argue, favors larger scale restaurants. In order to be eligible to serve these “to-go” beverages, restaurants must:
- Have at least 2,500 square feet of dining area;
- Be equipped to serve 150 persons at one time; and
- Derive at least 51 percent of its gross food and beverage revenue from the sale of food and non-alcoholic beverages.
The 2,500 square feet must be in a permanently covered area of the premises where food service is available at all times of operations. This space may include floor space in an outdoor seating area if the area is included the licensed premises sketch equipped with a rain-excluding cover and suitable for the service of meals at all times.
Even if eligible, restaurants should examine the potential liability issues that may come with to-go beverage service. First, it is important to consult with their general liability insurer to examine the scope of coverage, the need, if any, for the expansion of coverage or addition of applicable riders for the sale and delivery of alcoholic beverages.
Restaurants who create their own “to-go” beverages under the terms of the new law should consider food and beverage safety principles and associated liability issues, including allergen and ingredient warnings, labeling regulations, food contamination and sanitization standards, and storage and transport standards.
After determining whether the small and /or fast service establishment is eligible to serve these beverages and exploring associated liability concerns, restaurants should develop policies and procedures for training and documentation of compliance with the law as well as food and beverage standards. Also, participating establishments considering the use of third party delivery services should evaluate independent contractor, agency, and vicariously liability implications and develop a clear understanding of where liability falls.
Jennifer Smith Thomas, partner at RumbergerKirk in Orlando, practices premises and general liability litigation, particularly in the restaurant and hospitality industry. She can be reached at 407.872.7300, or jthomas@rumberger.com.
