By Christopher B. Dolan and Megan Irish
I have a favorite Mexican food place, and during the pandemic I was able to get their margaritas to go. It was a great treat amidst all the chaos that was the pandemic. Is that going to continue, and if so, now that so many people are back to work and on the road, is it safe for us to do so?
— Ramon P. , East Bay
Thank for your question. Yes, people will still be able to order alcohol to go now and for the near future. Last month Gov. Gavin Newsom extended the ability of restaurants to sell to-go alcohol with food orders through Dec. 31, 2026 by signing State Bill 389. The bill was introduced by Napa Sen. Bill Dodd and is ultimately stated in section 23401.5 of the Business and Professions Code. There are several safety mechanisms built into the law as well as an automatic deadline for the law to expire.
We all recognize restaurants were hit hard when the pandemic shutdowns took effect. Countless small businesses were forced to figure out how to go from a thriving restaurant to a to-go spot virtually overnight. Modifications to the rules helped restaurants that were struggling to stay open. This ability to sell to-go drinks came from the emergency orders of the Alcoholic Beverage Control (ABC), which is the governing body that oversees restaurant and bar liquor licenses.
The rule change came at the end of March 2020, just as the pandemic was settling in on Californians. As alcohol sales can make up a quarter to a third of a restaurant’s revenue, the ability to make these sales was crucial for restaurants to make it through the pandemic.
Here are some important points to keep in mind: Alcohol cannot be purchased alone. The law also requires the order to be picked up by the actual customer, and not a driver from a delivery service. As well, the restaurant selling the to-go beverages is required to have a liquor license, and the beverage must be sold in a container that is sealed.
A customer must store the sealed containers in the trunk of the car, or otherwise away from the passenger compartment for the drive home. There are also size limitations on the drinks that can be sold. Cocktails cannot exceed 4.5 ounces of liquor, and wine is limited to 355 milliliters. As well there is a two-beverage maximum per meal purchased.
The requirement that sales are coupled with meals means smaller establishments, think your favorite dive bar, cannot sell to-go beverages if they don’t have an in-house food menu. The law has restrictions, requiring a “bona-fide” meal be purchased such that prepackaged products will not meet the requirements, and the food cannot be catered in, like with a food truck. Unfortunately, the small alcohol-only spots will not be able to take advantage of this law to serve its cocktails to go. Local bars will remain limited to on-premises consumption only.
While all of this is under the guise of keeping restaurants going, it also brings home a lot of safety concerns just like mentioned in your question. DUIs are the first thing that comes to mind. Distracted driving is also a concern. Will people abide by the rules to leave the alcohol in the trunk until they are safely home? If the container is sealed and transported home in the trunk, there is little concern the driver would become intoxicated or distracted by the beverages, but what if they do not follow the rules?
California hasn’t given up all its regulations, by any means. These containers are considered “open containers” which are regulated by the Business and Professions Code, making it an infraction to possess or consume alcohol in public. So, it is imperative the to-go drinks stay in the trunk until the customer is safely home. That protects everyone on the road from risks associated with drinking while driving, or distractions.
Additionally, the 21-year minimum age requirement is still in effect, and purchasers must be able to show ID when picking up orders. The 2 a.m. last call also is still in effect, and no one is selling drinks between the hours of 2 a.m. and 6 a.m.
This law will automatically expire on Dec. 31, 2026. This will give Californians plenty of time to evaluate if these rule changes are helping the restaurant industry, but also importantly, to confirm if alcohol to go is safe for Californians.
Christopher B. Dolan is the owner of Dolan Law Firm, PC. Megan Irsh is a Senior Associate Attorney in our Oakland Office. We serve clients throughout the San Francisco Bay Area and California from our offices in San Francisco, Oakland and Los Angeles. Email questions and topics for future articles to: firstname.lastname@example.org. Each situation is different, and this column does not constitute legal advice. We recommend that you consult with an experienced trial attorney to fully understand your rights.