23 Sep Finding a Positive in the Midst of a Pandemic: New Alcoholic Beverage Laws in the Lone Star State
José Molina
AssociateThe ongoing coronavirus pandemic has been a major cause of disruption and stress, not only in the personal lives of Texans, but also for Texas businesses. Living through a pandemic caused everyone to change their routines, habits, and business practices to accommodate the new realities of life in the time of COVID-19. While many of these measures have been a major cause of tension both socially and politically, one new set of laws that resulted from the pandemic that have received approval from patrons and business owners are the new alcohol laws in the State of Texas.
The Texas Legislature codified temporary waivers established by Governor Abbott during the pandemic in response to the inability of restaurants and bars to operate due to lockdown measures. Effective September 1, 2021, restaurants and bars with Texas Alcoholic Beverage Commission (“TABC”) permits are now statutorily permitted to continue serving mixed drinks and spirits for delivery and to-go, and retailers and brewers may sell, offer for sale, and deliver wine and malt beverages (beer and ale) beginning at 10 am on Sundays, two hours earlier than previously permitted. Tex. Alco. Bev. Code §§ 28.1001 and 105.08. The amendment also permits hotel bars to serve alcohol at any time on any day of the week to registered guests. Tex. Alco. Bev. Code § 105.091.
Vendor Requirements for Delivery and To-go Alcoholic Beverage Sales
The amendments to the Texas Alcoholic Beverage Code are very specific in detailing the method in which delivery and to-go sales of mixed drinks may be made, and, as an owner of a restaurant or bar and TABC permit holder in Texas, it is important to ensure that your entity abide by the new regulations to avoid action by the TABC.
The law permits alcoholic beverages to be sold as part of the delivery of food prepared at the premises in a “tamper-proof container,” meaning a container that once sealed, clearly shows whether it has been opened. Tex. Alco. Bev. Code § 28.1001. This can include a bag sealed with a zip tie, staples, shrink wrap, or other methods that will clearly indicate if the container has been opened. Id.
For malt beverages and wine, the beverages must be in an original container sealed by the manufacturer or in a tamper-proof container, sealed and clearly labeled with the business name and the words “alcoholic beverage.” Id. Similarly, for alcoholic beverages other than malt beverages or wine (e.g., mixed drinks and spirits), the beverages must be delivered in an original single-serving container sealed by the manufacturer and not larger than 375 milliliters or in a tamper proof container that is likewise labelled with the business name and the words “alcoholic beverage.” Id. If your business delivers directly to the ultimate consumer, then the delivery driver must be at least 21 years of age, and the beverages must not be transported in the passenger area of the motor vehicle. Id.
The new law also permits “to-go” or carryout orders of alcoholic beverages from bars and restaurants under similar restrictions. Apart from the tamper evident containers and required labels, the person picking up the to-go order must be over 21 years of age, and must acknowledge, either through a written receipt or through an electronic application, acceptance of the alcoholic beverages. Id.
What this Means Moving Forward
The new laws that went into effect on September 1, 2021 provide flexibility to business owners and give the freedom to decide whether or not to continue with delivery and carryout orders of alcoholic beverages. With the uncertainty created by new COVID-19 variants, these laws permit bars and restaurants to cater to those who for medical reasons or otherwise must or prefer to maintain their distance from crowds and still enjoy their favorite cocktails or other alcoholic beverages.
For the consumer, these laws create the freedom to enjoy your favorite alcoholic beverages at home or at other locations where the consumption of alcohol is permitted and creates options for the immunocompromised. If you’ve ever found yourself wishing you could enjoy your favorite cocktail from your favorite bar or restaurant while sitting on the beach, rest assured, now you can! Also, the new law regarding retail sales means that you no longer must worry about buying beer or wine the night before the tailgate for that noon kickoff. On vacation or taking a “staycation” at a hotel in Texas? Feel free to grab a night cap at 3 am.
We must remember however, that freedom comes with responsibility, and we must all be sure to abide by the new laws to avoid adverse consequences. For a bar or restaurant, non-compliance could lead to action from the TABC including fines or the loss of a permit. For consumers, opening that to-go beverage in the vehicle could lead to an open container violation or worse. So please, be safe, act responsibly, and enjoy this positive development that has come about because of the pandemic. Cheers!
ABOUT THE AUTHOR: Jose A. Molina is an Associate at Rapp & Krock, PC in the Business Transactions group advising clients on corporate governance matters as well as mergers and acquisitions and other business transactions.
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