The passage of Senate Bill 148, solidifying alcohol to-go delivery privileges, modernizes Florida’s alcohol laws and offers stability for the struggling restaurant industry.
Despite the initial panic and long months of closure, our hospitality industry endured collectively through one of the worst financial and public health crises to materialize in our lifetimes. More than a year into the COVID-19 pandemic, the hospitality industry continues to struggle to regain its stability and strength. For now, though, it looks like Florida’s restaurant industry can breathe a sigh of relief in knowing that alcohol to-go and delivery privileges can continue to include pre-mixed cocktails and manufacturer sealed wine and beer products. The passage of Senate Bill 148, solidifying alcohol to-go delivery privileges, modernizes Florida’s alcohol laws and offers stability for the struggling restaurant industry.
Almost immediately after on-premise closure orders swept across the State in early 2020, the restaurant industry started buzzing with support for greater flexibility in to-go ordering including the sale of bottled alcohol products and pre-mixed cocktails. In support, Florida Gov. Ron DeSantis issued an emergency order allowing specified establishments to sell cocktails and other alcohol products to go with food orders. The general language of the initial emergency orders created some confusion with little guidance on how pre-made cocktails could be packaged and sold, but the restaurant industry quickly adapted and adjusted their menus and ordering processes. The added flexibility in to-go and delivery orders enabled restaurants to maximize use of their existing inventory, stabilize off-premise sales, and offer consumers the chance to replicate the full dining experience at home.
To-go privileges, although temporary at first, sparked a wave of menu and food service innovation across the restaurant industry as efforts shifted to accommodate new consumer convenience demands. Alcohol sales spiked globally between March 2020 and June 2020, sending a clear message that consumers fully intended to continue enjoying their favored cocktails at home. Restaurant owners saw an immediate opportunity to cater to consumer demand and support patron loyalty by adding sealed pitchers of favorite cocktails like Long Island Iced Tea, margaritas, sangrias and other pre-mixed favorites to their to-go and delivery menus. In June 2020, Iowa became the first state to adopt to-go sales of mixed cocktails and alcohol beverages as a permanent privilege. Since then, more than 30 U.S. states have either adopted permanent alcohol to-go legislation or extended temporary privileges.
On April 14, the Florida Legislature passed Senate Bill 148, adding Florida to the long list of states that will allow cocktails to-go as a permanent privilege for specified restaurants. The bill now heads to the Senate for concurrence and will take effect on July 1 if signed by DeSantis. However, the legislation does come with certain restrictions and requirements and not all restaurants will benefit from the new to-go privileges. Most notable is the restriction that to-go and delivery orders cannot include bottled liquor (distilled spirits) and the new privileges will only be allowed for establishments holding a state of Florida, special food service alcohol license issued pursuant to Florida Statutes Section 561.20(2)(a)4. This includes only those establishments that have 2,500 square feet of service area, capacity to serve meals to at least 150 people at the same time, and must derive at least 51% of their gross food and beverage revenue from the sale of food and nonalcoholic beverages. Accordingly, smaller establishments like lounges and bars that do not meet the floor space and food service requirements mentioned above will not be permitted to benefit from cocktails to-go privileges. However, these establishments are not at a complete loss or disadvantage when it comes to selling alcohol to-go.
While smaller restaurants, bars, or nightclubs that do not meet the spacing and food service requirements are prohibited from selling cocktails prepared on the premises to go, most are nonetheless able to take advantage of the ongoing demand for alcohol delivery. Any establishment licensed with a traditional 4COP alcohol quota license, that allows the sale of beer, wine and liquor for consumption on the premises without the sale of food, already has the privilege of selling to-go bottles of beer, wine and liquor, provided the to-go sales are allowed by the applicable local zoning ordinances. Small restaurants and wine bars holding 2COP alcohol licenses, which allow the on-premise consumption of beer and wine only, are also similarly already permitted to sell sealed bottles of wine and beer to-go. The main distinction for qualifying restaurants, then, will primarily be the ability to leverage on-site bartending services for consumers looking to include pre-mixed cocktails with their to-go and delivery orders.
Aside from the establishment criteria, Senate Bill 148 also mandates that restaurants exercising alcohol-to-go privileges follow specified ordering and delivery requirements. Participating restaurants can only offer manufacturer-sealed bottles of wine, alcoholic beverage drinks prepared on the premises, including any wine or liquor-based cocktails, and containers of beer to-go or for delivery. Containers of liquor (distilled spirits products) are not included in the permissible products that may be offered for to-go or delivery sales. Additionally, all alcohol to-go and delivery orders must include food items within the same order. Containers are limited in size to 32 ounces and pre-mixed cocktails and containers of beer must be “securely sealed” with an unbroken seal that prevents immediate consumption. Alcohol products must be placed in a bag or other container that is secured with a tamper proof seal and a dated receipt must be attached to the sealed bag or container. Any cocktail or alcoholic beverage that is not in a manufacturer sealed container, must be transported in the vehicle’s trunk, a locked compartment or behind the rearmost upright seat. Delivery drivers must be at least 21 years old.
Senate Bill 148 is a great step in realizing a more consolidated restaurant industry that enables traditional on-premise-only venues to compete in the growing direct-to-consumer convenience retail market. Although consumer traffic is steadily rising, restaurants have a long road to go in regaining financial stability. More inclusive to-go and delivery options are necessary for the industry to continue its journey toward recovery.
Marbet Lewis is a founding partner and CEO of Spiritus Law in Coral Gables. She has focused her practice on the laws governing the alcohol industry and the manufacture, importation and sale of alcohol beverage products since 2004.
