What You Need to Know About Alcohol To-Go in Florida

On March 1, 2020, Governor Ron DeSantis declared a State of Emergency as a result of the rapidly spreading COVID-19 pandemic.  On March 17^th, all restaurants and on-premise social venues were shut down with few options to continue operations.  Shortly after, the demand for home delivery of food and alcohol skyrocketed and we saw online sales traffic increase dramatically.  However, loyal patrons were left craving their usual cocktail and wine pairings. While subsequent emergency orders allowed restaurants and some bars to operate under strict conditions, cocktails-to-go privileges were exclusively reserved for licensed restaurants and proved to be a significant lifeline for the struggling hospitality industry.  As the pandemic raged through the summer, the restaurant industry banned together to push for permanent alcohol to-go privileges and Governor DeSantis made their efforts fruitful.  The new cocktails-to-go legislation will become effective in Florida on July 1, 2021.

The proposed cocktails-to-go legislation went through several rounds of revisions because Florida’s licensing structure offers benefits based on license type and limits full liquor licenses to bona fide restaurants qualifying for Special Food Service (SFS) alcohol licenses or those businesses that can afford to purchase costly quota licenses. The two types of license classes have been traditionally distinguished not just by food service and qualification requirements but also by the types of privileges each license type provides.  While cocktails-to-go has been prohibited across the board, quota license holders have always had the privilege of selling bottles, manufacturer-sealed alcohol products, including growlers, to-go.  Accordingly, the legislature needed to walk a fine line between allowing this new privilege and protecting the value and privileges that come with a quota license.  While the cocktails-to-go legislation has its weaknesses and shortfalls, the final draft contained significant compliance measures and adequately balances privileges between restaurants and quota license holders.

Florida Liquor Laws: Pursuant to the final draft of the adopted legislation, both restaurants and quota license holders will be able to benefit from the cocktails-to-go privileges to some degree.  However, a major distinction is in the types of alcohol products that can be sold by each and how those products must be sold.  All licensees must comply with the following:

1. The establishment must hold both a qualifying alcohol license and be properly licensed as a food service establishment with the Florida Division of Hotels & Restaurants.
2. All alcoholic beverages sold to-go must either be in manufacturer-sealed containers or must be sealed at the restaurant or bar in such a way that the container cannot be immediately opened.
3. The alcohol must be placed in a bag or in an additional container with a dated receipt. The bag or container must be sealed in such a way that any tempering would be visibly evident.
4. Deliveries can only be made by drivers that are at least 21 years old and the patron’s ID must be checked at the time of delivery. Alcohol may not be given to or delivered to anyone under the age of 21.

There are some notable distinctions in privileges between quota license holders and restaurants holding SFS alcohol licenses.  For example, quota license holders can only sell cocktails prepared on the premises to go if the order contains a food order and 40% of the total order charge must include food and non-alcoholic beverages, excluding manufacturer-sealed alcohol products. Quota license holders must also stop selling cocktails to go as soon as they stop preparing food or at midnight, whichever is earlier.  SFS-licensed restaurants cannot sell any alcohol to go unless food is included in the same order but are not held to the same 40% food and non-alcoholic beverage sales requirement.  However, SFS-licensed restaurants cannot sell manufacturer-sealed distilled spirits to go.

Most compliance requirements are equally applicable to all businesses that will now be able to enjoy alcohol-to-go privileges.  We noted some key requirements and differences below:

• 4COP Quota Full Liquor On-Premise Consumption License. Permits the on-premise sale and consumption of beer, wine, and liquor and to-go sales of manufacturer-sealed containers and growlers.  Also permits quota licensees that are licensed to sell food to sell cocktails prepared on the premises only if required food sale percentages are met (see below).  To-go sales of alcohol must comply with the following:
  • Must be in manufacturer-sealed containers or a growler; or
  • Cocktails prepared on the premises may only be sold to go if:
    1. The container is sealed so it cannot be immediately consumed;
    2. The sale is accompanied by a food order in the same order and the charge for the sale of food and alcoholic beverages must be at least 40% of the total charge for the order, excluding the charge for any manufacturer-sealed containers of alcoholic beverages included in the order;
    3. To-go sales must stop if food is not being prepared on the premises or at midnight, whichever is earlier;
    4. Containers must be placed in a bag or other container that is secured in such a way that it is visibly apparent if the carrying delivery container has been opened;
    5. A dated receipt must be included in the bag/container;
    6. Delivery drivers must be 21 and must check their ID at the time of delivery. It is the licensee’s responsibility to confirm the age of delivery drivers;
    7. A growler must include an imprint or label that provides information specifying the name of the manufacturer, the brand, and the anticipated percentage of alcohol by volume of the malt beverage.  The container must have an unbroken seal or be incapable of being immediately consumed.
  • SFS (Special Food Service) On-Premise Alcohol License. Permits the on-premises sale and consumption of beer, wine, and liquor.  Also permits the sale of manufacturer sealed/bottled beer and wine (distilled spirits may not be sold by the bottle) to go and permits the sale of wine and liquor-based cocktails prepared on the premises to-go.
    • Cocktails to-go must be accompanied by the sale of food within the same order but need not meet the food sale percentage requirements applicable to quota license holders. Additionally:
      1. The cocktail container must be sealed in such a manner that it cannot be immediately opened;
      2. Cocktail containers must be placed in a bag or other container that is secured in such a way that it is visibly apparent if the carrying delivery container has been opened;
      3. A dated receipt must be included in the bag/container and the bag must be placed in a locked compartment, the trunk or behind the last row of seats;
      4. Delivery drivers must be 21 and must check ID at the time of delivery. It is the licensee’s responsibility to confirm the age of delivery drivers.
      5. Patrons that have purchased a meal and partially consumed a bottle of wine on the premises may take the bottle of wine if it is resealed and placed in a bag or other container that is also sealed in such a manner that it is visible and apparent if the bag or delivery container had been tampered with. The bag must include a dated receipt.
      6. Manufacturer-sealed containers of beer sold to-go cannot exceed 32 ounces (growlers are not permitted).
      7. Must be licensed as a food service establishment.

While Florida’s new privileges will likely undergo some fine-tuning with respect to delivery requirements, alcohol-to-go is not a new concept and is rapidly spreading throughout the U.S.  At least 30 states have joined in pushing for permanent alcohol-to-go privileges. This has increased alcohol sales in Florida and other states. The pandemic provided the opportunity to test to-go sales and aside from being profitable and offering stability in sales through extended closure periods, compliance with age verification and delivery protocols proved largely feasible and practical.