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Dram Shop Liability for Open and Closed Container Service with a COVID-19 Twist

Dram Shop Liability for Open and Closed Container Service with a COVID-19 Twist | Brian E. Chojnowski | December 4, 2020

Florida’s dram shop law is chock full of terms of art that need to be carefully parsed to evaluate a vendor’s exposure to liability. One important distinction is the type of sale and the class of person to whom the alcohol is sold. Florida’s dram shop act exposes a vendor to liability only when the vendor “willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages….” (emphasis added). Sells, furnishes, and serves are important terms that create different liability scenarios for alcohol vendors.

Selling alcohol to a minor means the obvious quid pro quo transaction, but applies to both the sale of open containers (for example, at a bar or restaurant meant to be consumed on the premises) and the sale of closed containers (for example, by a retail establishment such as a liquor store, grocery store, convenience store, etc.. meant to be consumed off of the premises).

Furnishing alcohol to a minor means the vendor gave the alcohol to a minor regardless of compensation. This encompasses scenarios such as open bars, unlimited drinks for paying a coverage charge (“ladies drink free!”), as well as selling alcohol to a person of lawful drinking age with knowledge that the alcohol is destined to be consumed by a minor.

Serving a person habitually addicted to alcohol, in the context of Florida’s dram shop law, means to “place food or drink before” someone. Persen v. Southland Corp., 656 So. 2d 453, 455 (Fla. 1995). The dram shop law “did not intend liability to be extended to vendors who sell alcoholic beverages in closed containers to adults for off-premises consumption.” Id. The Florida Supreme Court in Persen recognized that Florida’s dram shop law is meant to limit—not expand—a vendor’s liability. The language of the dram shop law, therefore, has to be interpreted narrowly.

The COVID-19 pandemic has added a potential twist to open and closed container liability.

On June 26, 2020, Governor Ron DeSantis issued Executive Order No. 20-71 suspending on-premises consumption of alcohol to limit opportunities for COVID-19 transmission amongst bar and restaurant patrons. The executive order also permitted service of alcohol in sealed containers intended to be consumed off-premises. This means that bars, restaurants, and other vendors that “serve” alcohol can provide mixed drinks, wine, draft beer, and other types of beverages to patrons so long as the container is sealed and the drink is consumed off-premises.

However, “sealed” is not a clearly defined term in the Executive Order or Florida’s statutes regulating alcoholic beverages. Vendors have taken varying approaches to what is a proper “seal”—whether it is the alcohol’s original packaging, a heat-shrunk plastic seal, or merely a lid. An insufficient seal could muddle the line between what constitutes “serving” and “selling” alcoholic beverages, and potentially expose vendors to greater liability when such service is made to a person habitually addicted to alcohol who then becomes intoxicated and injures themselves or others.

A plain reading of Persen suggests that the dram shop act did not intend to expose vendors for liability when sealed containers are sold to adults for off-premises consumption. However, the Florida Supreme Court, when deciding Persen, was addressing a sale by a convenience store of a case of beer in its original factory packaging. The Florida Supreme Court has not been faced with a scenario where a vendor that usually serves open containers beverages simply repackages those beverages in a “sealed” container —nor has any other Florida appellate court.

While the shelf life of this issue may seem limited, Gov. DeSantis recently announced his support of continuing such sales of alcohol during a September 2020 speech to restaurant owners in Fort Myers. Such regulatory changes would require amendment of both Florida statutes and sections of the Florida Administrative Code, but may be on the horizon. Bars, restaurants, and other traditional vendors of open container alcohol should approach off-premises sales with caution.

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