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When we began following this issue several weeks ago, we were pessimistic about the chances of a Pennsylvania resident ever being able to buy a pre-mixed cocktail curbside at, or of having cocktails delivered to their home from, their favorite bar or restaurant. The COVID-19 has resulted in changes to the way we work and live that were unimaginable only a few months ago; so perhaps it is not surprising that as of May 21, 2020, bars and restaurants will be able to mix up and sell alcoholic cocktails to go to in Pennsylvania.
In some secluded rendezvous,
That overlooks the avenue,
With someone sharing a delightful chat,
Of this and that,
And cocktails for two.
When Arthur Johnson and Sam Coslow wrote the classic big band song “Cocktails for Two” in 1934, with a wink and nod to the end of prohibition, they never could have imagined that almost 90 years later, “the secluded rendezvous that overlooks the avenue” would be a Pennsylvania resident’s own dining room.
Starting May 21, 2020, Pennsylvania bars and restaurants will be able to mix up alcoholic cocktails for their customers, and Pennsylvania residents will now be able to experience a meal from their favorite restaurant along with their favorite cocktail, as long as both are “to go” and are enjoyed in a secluded rendezvous located somewhere in the customer’s home. Thanks to overwhelming bi-partisan approval in both parts of the Pennsylvania Legislature, and Governor Wolf’s signature, Act 327 has become law.
Based on Governor Wolf’s March 19, 2020, Order, located here, takeout food was always permissible, provided the restaurant was following appropriate social distancing guidelines. Additionally, as we mentioned in a prior blog post, located here, those of our clients who already have the appropriate liquor licensure, were able to provide standard takeout beer in accordance with 47 Pa.C.S.A. §4-407(a). However, as we mentioned in that blog, takeout cocktails were still not permissible, and the bars offering them were taking a huge risk associated with their liquor license.
What are the restrictions?
Without further ado, here are the important points for everyone to know about cocktails to go:
First, good things don’t last forever. This is only a temporary measure that will be in effect while the Commonwealth is in a State of Emergency or during the “mitigation period” when a restaurant is only operating at 60% capacity. Please be aware that “mitigation period” is not well defined in the new law, so we will have to pay attention to future legislation addressing this issue. Additionally, the restaurant must have lost more than 25% of their average monthly sales, which is sadly a threshold most restaurants have already met.
Secondly, these to go cocktails will only be permissible before 11:00 p.m. Additionally, each restaurant or tap room will be required to post a notice pursuant to 75 Pa.C.S.A §3809 (relating to restriction on alcoholic beverages) along with a statement that the prepared beverages and mixed drinks packaged for sale by the licensee are open containers and may only be transported by the driver of a motor vehicle in the vehicle’s trunk or in some other area of the vehicle that is not occupied by the driver or passengers.
In layman’s terms, these to go cocktails can’t be consumed on the way back from the restaurant. This posting must be displayed prominently, similar to that of a PLCB 1296 “Orange Placard.” There is also a requirement that, within sixty (60) days from the enactment, all sellers of to go cocktails must use a scanning device to confirm the age of the purchaser.
Finally, the Act requires that beverages be no less than four (4) fluid ounces and not greater than sixty-four (64) fluid ounces, per transaction, mixed in the restaurant or tap room. These concoctions then must be sealed, “with a secure lid or cap designed to prevent consumption without removal of the lid or cap,” and any holes in the container must be covered or affixed with additional seals.
As always, feel free to reach out to us if you have any questions, especially if you’re a restaurant owner with questions about serving and selling cocktails to go. But until then, stay home, stay safe and enjoy purchasing a meal from your favorite restaurant…and cocktails for two, to go.
Attorneys Jason A. Ulrich, Thomas E. Reilly, Jr. and Ross Ramaley practice in Gross McGinley’s Business Services Group, providing legal counsel to regionally and nationally-held businesses.