If you have an on-sale liquor license in California, knowing whether or what alcohol you can sell “to-go” is even more confusing now than it was before Covid. During the pandemic, the California ABC relaxed rules and allowed restaurants and bars to exercise privileges – like sell sealed bottles to-go and pre-mixed cocktails or glasses of wine to-go - that weren’t allowed before. Then, as of January 1, 2022, some allowances were taken away, while others were made permanent (by way of new laws).
So as an ABC-licensed California restaurant or bar, what can you do, and what can’t you do, now?
First, it’s important to remember that all privileges depend on the exact license type you hold. A short description each license type can be found on the CA ABC’s website here.
Also, no on-sale licensee is required to make sales for off-premises consumption; that’s up to each retail licensee to decide. That’s the difference between a privilege (you are permitted to do something) and a requirement (you must do something – such as post mandatory signs in your establishment).
What’s New: Expanded Off-Sale and Drinks To-Go Privileges
As of January 1, 2022, some restaurants, aka “bona fide public eating places” (with ABC license types 41, 47, or 75) and some alcohol manufacturers (that hold ABC license types 01, 02, 23, or 74) with bona fide eating places on their premises may sell alcohol to go, meaning that a consumer may place an order in person or over the phone or Internet and come pick it up.
Here is what these license types may do now (at least until 1/1/27), unless the ABC (usually because of a protest or at the request of local law enforcement) has put a condition on their license that prevents any of these activities:
Sell manufacturer-sealed containers of spirits for off-premises consumption, so long as the order is picked up by the purchaser at the licensed premises (NO delivery allowed).
Sell cocktails and wine not in manufacturer-sealed containers, i.e., “cocktails to-go”, so long as they are packaged in a container with a secure lid or cap sealed in a manner designed to prevent consumption without removal of the lid or cap by breaking the seal, and the beverages are ordered and picked up by the purchaser (NO delivery allowed). Before starting to sell drinks to go, the licensee MUST notify the ABC, which can be done online here. Rules for drinks to-go:
o If wine, the container size must be between 187 milliliters and 355 milliliters (this is called a “single-serve” container).
o If spirits are in the drink, the maximum amount of spirits allowed is 4.5 oz.
o Any wine or cocktail to go may only be sold WITH a bona fide meal.
o No beer may be sold this way; beer may only be sold in manufacturer-sealed containers.
o The to-go container is conspicuously labeled or otherwise identified as containing an alcoholic beverage.
o The licensee must post this sign in multiple locations - inside the premises, online if applicable, and anywhere else would be reasonable to ensure the purchaser sees it:
“Alcoholic beverages that are packaged by this establishment are open containers and shall not be transported in a motor vehicle except in the vehicle’s trunk or, if there is no trunk, the containers shall be kept in some other area of the vehicle that is not normally occupied by the driver or passengers. This does not include a utility compartment or glove compartment (See Vehicle Code Section 23225). Additionally, these beverages shall not be consumed in public or in any other area where open containers are prohibited by law.”
What Was Already Allowed and Still Is: On-Sale Retailers’ Sales for Off-Premise Consumption
Some off-sale and delivery privileges were already allowed for on-sale license holders before Covid. Those privileges are still allowed.
Specifically, on-sale licenses such as ABC types 41 (restaurant/beer and wine), 42 (bar/beer and wine), 47 (restaurant/beer, wine, and spirits) and 48 (bar/beer, wine, and spirits) may sell alcoholic beverages - except for spirits - in manufacturer-sealed containers for off-sale consumption and for delivery.
In other words, these license types may sell bottles and cans of wine, beer, and any other beverage their license allows them to sell (like cider or sake, but not spirits) to a customer to take home, pick up, or have delivered. This privilege does NOT extend to daily on-sale licenses, which are issued by the ABC for specific events only.
Although alcohol sold under this privilege may be delivered to consumers within California, alcohol delivery, like everything else in this industry, is a complex topic deserving of multiple blog posts. The ABC website describes some of the delivery issues to be aware of here.
And as outlined in the “What’s New” section above, spirits, though not eligible for delivery, can be sold to-go with limitations (including by restaurants with license type 47). In addition, craft distillers (with ABC license type 74) may sell up to 2.25 liters per person per day of distilled spirits they manufactured. Again, no delivery is allowed, but curbside pickup by the purchaser is permitted.
Confused yet? Don’t be. Just follow the bouncing ball in this blog post and call the ABC or your alcohol counsel if you have questions.
This blog is dedicated to occasional (and hopefully interesting) reports of state and national alcoholic beverage regulatory developments that we encounter in our practice. Booze Rules (and any comments below) are intended for informational use only and are not to be construed as legal advice. If you need legal advice please consult with your counsel.