On July 1, the Florida executive order that helped restaurants survive earlier in 2020 by allowing “to-go cocktails” will take effect permanently, after Gov. Ron DeSantis signed Senate Bill 148 into law on May 13. The executive order and the new law were designed to provide some much-needed economic relief to the restaurant industry in the wake of COVID-19, amid reduced capacity and reduced patronage. In 2020, almost all 50 states introduced or revised their existing “to-go” beverage policies, and now, Florida has made the change permanent.

Restaurant Requirements to Participate in ‘To-Go’ Drinks

In order to comply, restaurants need to:

• Have at least 2,500 square-feet of dining area;
• Be equipped to serve 150 persons at one time; and
• And derive at least 51% of its gross food and beverage revenue from the sale of food and nonalcoholic beverages.

If the food service establishment meets these eligibility requirements, the law allows it to sell or deliver alcoholic beverages in a sealed container for off-premises consumption with several restrictions. Such sale or delivery:

• Must be accompanied by food within the same order;
• May include wine based or liquor-based beverages prepared by the establishment;
• May not include a bottle of distilled spirits sealed by a manufacturer;
• Must be in a container securely sealed that prevents the beverage from being consumed before removal from the premises and placed in a bag or container that is secured in such a manner that it is visibly apparent if it has been tampered with;
• Must include a dated receipt for the beverage and food; and
• Must conclude when the restaurant’s food service ends for the day.

If the “to-go” drink is transported by vehicle, it must be in a locked compartment, trunk or area behind the last upright seat. It may not be transported by someone under the age of 21 and the vendor must ensure the legal age of the person taking delivery. If compliant, the “to-go” beverage is not considered an open container violation.

Potential Challenges and Legal Implications

While most think the law is great for the struggling restaurant and hospitality industry, especially in the Sunshine State, it does present some potential challenges for those that choose to partake in the transportable libations. Eligible restaurants should consider the legal implications of implementing or continuing a “to-go” beverage program. First and foremost, restaurants should examine and consult with their general liability insurance to determine coverage under the expanded law for service and delivery of alcoholic beverages. Restaurants should also review and consider Florida’s dram shop law (F.S. 768.125) which provides liability for persons or entities who willfully and unlawfully provide alcohol to a minor under the age of 21, or “knowingly” provide alcohol to a person “habitually addicted” to alcohol. “Knowingly” under the statute means “knew or should have known,” a threshold perhaps less evident where the alcohol is being sold and delivered off premises. Moreover, restaurants serving liquor on premises may be able to ascertain if a customer should be “cut off” or if the need to call for a taxi or ride share exists to avoid a customer operating a vehicle under the influence after consumption. The same opportunity does not exist for delivery of “to-go” beverages, and liability might ensue where a patron drives after taking delivery, or picking up the “to-go” package.

Restaurants who create their own “to-go” beverages under the law will also want to consider food and beverage safety principles and associated liability issues, including ingredient allergen warnings, labeling, contamination, storage and transport standards.

Additionally, restaurants taking advantage of the new law will want to implement policies, procedures, and training, especially verification and documentation of the age of customers purchasing as well as the amount of food and beverage purchased and/or delivered to ensure compliance. Moreover, participating restaurants will want to consider potential liabilities when utilizing third-party vendors and delivery services.

While many proponents of this law (and others like it) celebrate flexibility, it offers a benefit to the industry faced with many complications of COVID-19. Some critics question if it predominantly serves larger scale and large volume restaurants because of the law requirements. Other critics of these type of laws include the liquor store industry, worried about sales competition and organizations concerned with underage drinking.

Notwithstanding, Florida Bill 148, as well as many others, are quickly becoming laws with overwhelming bipartisan support and such continued change and accompanying liability seems to be part of the restaurant industry’s “new normal.”

Reprinted with permission from the June 24, 2021 edition of Daily Business Review © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.