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It's 5:00 Anywhere – Tips for Vendors and Insurers on Florida's New Alcohol-to-Go Law

Brian E. Chojnowski | May 17, 2021

On May 13, 2021, Florida Governor Ron DeSantis signed SB 148—also called the “alcohol-to-go bill”—into law. The new law amends Florida’s alcoholic beverage laws to permit food service establishments to sell sealed alcoholic beverages to customers for off site consumption. This includes alcoholic beverages sealed by the manufacturer (e.g. bottles and cans) and mixed drinks and wine poured by the vendor and sealed, but does not permit the sale of distilled spirits sealed by the manufacturer (e.g. bottles of hard liquor). The new law replaces Executive Order No. 20-71, signed by Governor DeSantis on June 26, 2020, and provides more clarity on the sealing and packaging requirements for to-go beverages:

An alcoholic beverage drink prepared by the vendor and sold or delivered for consumption off the premises must be placed in a container securely sealed by the licensee or its employees with an unbroken seal that prevents the beverage from being immediately consumed before removal from the premises. Such alcoholic beverage also must be placed in a bag or other container that is secured in such a manner that it is visibly apparent if the container has been subsequently opened or tampered with, and a dated receipt for the alcoholic beverage and food must be provided by the licensee and attached to the bag or container.
 
The new law also requires that the to-go beverages be sold with food and that the cost of the food and non-alcoholic beverages be at least 40% of the total bill. Vendors will have to keep a calculator handy not just for calculating tips, but also for ensuring the cost of to-go alcoholic beverages does not exceed 60% of the customer’s bill.

Any to-go alcoholic beverage must be kept in a locked trunk or locked compartment in a motor vehicle, or behind the last upright seat (i.e. in a hatchback or SUV, the beverage must be in the open trunk or luggage compartment in the rear). While this regulation is directed more at the consumer than the vendor, vendors should still take caution when handing off food to customers in vehicles to ensure that these requirements are met. The vendor should offer to place the alcoholic beverages in the customer’s trunk or, at a minimum, inform the customer of the new requirement and encourage compliance.

The alcohol-to-go bill also permits delivery of sealed alcoholic beverages. The vendor is required to verify that the person delivering the alcoholic beverages is at least 21 years old. Therefore, any vendor who permits food delivery services such as Uber Eats, Postmates, BiteSquad, etc., to pick up orders for delivery must ensure that the delivery driver is at least 21 years old if the order includes to-go alcoholic beverages. It will certainly take time for busy vendors to take this additional step, but it is a necessary one. Permitting a person under the age of 21 to deliver alcoholic beverages is a violation of § 562.11, Fla. Stat. -- the statute that makes it illegal for a vendor to sell, give, serve, or permit alcohol to be served to a minor.

Any violation of these new regulations may expose a vendor to regulatory action against its license or potentially criminal sanctions against the vendor and/or its employees. However, a vendor’s civil liability for a violation of the new regulations should still be limited by Florida’s Dram Shop Law, § 768.125, Fla. Stat., which only permits civil liability against a vendor where the vendor willfully and unlawfully sells or furnishes alcoholic beverages to a person under 21 or who knowingly serves a person habitually addicted to alcohol. In addition to the typical dram shop scenarios, the most likely avenues for potential claims under these new regulations will arise where vendors fail to verify the age of the delivery driver and a delivery is made to someone already intoxicated or who becomes intoxicated and injures themselves or someone else. Another likely scenario is where the alcohol is not properly sealed or stored and is consumed by the customer while they are driving, resulting in injury to themselves or someone else. Carefully adhering to the new regulations will decrease the likelihood of civil liability in these new scenarios.

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