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Emergency Rule Authorizes Sale of Liquor for Take-Out and Delivery

Smart Summary

  • In a new executive order, Governor DeWine has made it legal to deliver spirituous liquor for off-premises consumption.
  • Liquor must be purchased with a “meal,” at a two-drink-per-meal maximum.
  • Permit holders must still meet 6 key requirements in order to deliver liquor.

Good news for Ohio bars and restaurants- you may now deliver liquor for off-site consumption. There are caveats, of course.

On Tuesday, April 7, Governor DeWine announced the passage of Ohio Admin. Code 4303:1-1-13 (the “Rule”) by the Department of Commerce – Division of Liquor Control. The Rule became effective upon his execution of Executive Order 2020-10D later that same day and will remain effective until August 5, 2020, or until the Rule is permanently adopted through the standard Joint Committee on Agency Rule Review process.

While the Rule prohibits the sale or provision of beer or intoxicating liquor for on-premises consumption by any permit holder, permit holders may now sell and deliver beer, wine and mixed beverages in their original packaging for off-premises consumption. We’ve previously shared four recommendations for any business looking to deliver alcohol in our COVID-19 Resource Center.

Previously, spirituous liquor (defined under Ohio law as liquor exceeding 21% ABV) was prohibited from being sold for off-premises consumption by everyone except liquor agencies. After today, that is no longer the case, at least on a limited basis.

Under the Rule, permit holders who are authorized to sell for on-premises consumption are now authorized to sell beer, wine, mixed beverages, or spirituous liquor by the individual drink, including drinks prepared by the permit holder, for off-premises consumption, provided they satisfy the following requirements:

  1. Spirituous liquor drinks cannot contain more than 2 oz. of spirituous liquor per container.
  2. All drinks must be sold in a closed container.
  3. Any sale under this new provision must include a purchase of food from the premises.
  4. No more than two more drinks may be sold per meal.
  5. The permit holder must comply with all applicable state tax laws.
  6. The permit holder remains subject to all liquor laws and rules, including hours of operation, minimum age requirements, and the prohibition against sales to intoxicated persons.

All purchases are subject to the open container law upon leaving the premises and must remain closed during transport.

As restaurateurs pivot to a “take-out and delivery” model, this Rule will create another opportunity for revenue. To ensure compliance, business owners who take advantage of this new rule should take extra care to abide by the requirements and transport the alcohol in tightly closed containers and ensure no more than two drinks are being sold per meal. “Meal” is not defined within the Rule and undefined terms are generally interpreted by courts according to their plain meaning. To err on the side of caution, permit holders may wish to limit sales to two drinks per entrée sold, but in the event of larger orders without multiple varying items sold, permit holders should use their best discretion. Permit holders are required to make a reasonable attempt to ensure that all staff and purchasers adhere to the six-foot social distancing requirements.

Attorneys Robert DoveApps Akpofure work closely with bars, restaurants, and other consumer-focused businesses in leveraging and protecting their liquor permits. They are also key members of the firm’s Ohio Restaurant Association legal team, providing counsel to clients throughout the hospitality industry supply chain.

 
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