HOT TOPICS – Liability To-Go: Cocktails and Consequences

Hot TOpics - Liability To-Go: Cocktails and Consequences
By Jeffrey T. Miller and Thomas M. Bona.

When the pandemic first shocked the nation last March, businesses were left no choice but to halt operations and close their doors indefinitely. The days of indoor dining and large public gatherings ceased, stripping restaurant and bar owners of monetary gain at the commencement of an economic crisis. To alleviate some of the financial burdens posed by the restrictions, states enacted temporary guidance facilitating to-go cocktails and alcohol delivery – a concept New York, New Jersey, California, and others gladly embraced. However, this innovative “new normal” may present various liquor liability exposures that licensed establishments should be cautious of.

In the age of food delivery apps, customers can effortlessly order takeout at the touch of a button. Upon browsing select restaurants and various menus, those 21+ can temporarily purchase to-go cocktails to accompany their meal. Given the high-profit margins generated by liquor sales, takeout cocktails have become a saving grace for the foodservice industry, allowing owners and staff to adapt to the unprecedented times and continue their operations.

Despite relaxed liquor laws, the legal age of consumption remains unchanged. Nevertheless, contactless delivery and obligatory mask-wearing hinder proper identification, leaving age verification largely impracticable. Establishments can hardly be certain alcoholic beverages don’t fall into the wrong hands. Whereas licensed establishments could formerly check ID before direct alcohol service, the procedure is complicated by the health regulations – primarily when third-party delivery companies work as a middleman.

Likewise, while masks afford protection for us and those around us, the mandate presents a challenge when in-person customers purchase takeout alcohol with half of their faces covered. An underage person may likely be more susceptible to using someone else’s ID to buy alcohol with a masked appearance. Establishments must exercise reasonable care and follow appropriate guidelines to safeguard the lawful sale of alcohol.

Although the new and exciting to-go cocktails provide convenience and comfort at home, establishments that sold alcoholic beverages could still face liability. If alcohol is sold to an underage patron who is later hospitalized with alcohol poisoning or involved in a drunk driving accident, the restaurant may be legally responsible. Moreover, bars and restaurants should be conscious of the over-serving and drunk driving of pickup customers. It’s impossible to control a patron’s conduct after they drive away or following the delivery of their cocktail. Accordingly, establishments can manage their services and should do so.

While laws regarding to-go cocktails vary by state, establishments should rely on state guidance and implement best practices to protect against liability. Considerations include age verification upon delivery or pickup and sealed cocktails with tamper-proof containers. Some states prohibit alcohol delivery through third-party providers, requiring the cocktails be delivered by an employee of the establishment, aged 21 or older, to minimize the inconsistencies that present a risk.

As restaurant capacity limitations are easing, it’s unclear whether takeout alcohol is here to stay. Some states, including Delaware, New Jersey, and New York, have filed legislation to expand takeout alcohol guidelines further, asking they be implemented permanently. Establishments and customers alike are optimistic about the future of to-go cocktails, hopeful this novelty will continue to reap enjoyment from coast to coast.

Should you have any questions, please call our office at (914) 703-6300 or contact:

Jeffrey T. Miller, Executive Partner

Thomas M. Bona, Partner