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Legal View: The Blurred Lines of What “To Go” Means Today

By Peter Berdon, Esq.

Peter A. Berdon, Esq.

Peter A. Berdon, Esq.

In this year’s legislative session, Connecticut’s legislature made a significant change to the restaurant, café and tavern licenses. Historically, Connecticut differentiated between retail accounts that could sell on-premise and those who could sell for off-premise consumption.

By prohibiting the sale of “drinks to-go,” it is thought to curb public consumption of beverage alcohol, which the state considers to be inappropriate. In support of this policy, the state has traditionally barred those whose business is geared towards immediate consumption of beverage alcohol on the licensed premises verses those who business was to sell beverage alcohol to be consumed at home – i.e. package stores.

These lines became slightly blurred in the mid-1980s with the advent of farm wineries. Farm wineries at that time were allowed to sell both at retail and on-premise. Ten years later, brew-pubs were given the similar privileges. Then in 2004, the legislature sought fit to allow consumers who had purchased a bottle of wine with a meal, to take home the un-consumed portion of the bottle.

After all, the consumer paid for the entire bottle of wine, why force them to consume it on the premises, increasing the risk of drunk driving? Fast forward to 2015: now restaurants, cafés and taverns, like brew pubs, beer manufactures and farm wineries — all manufacturing classes of licenses — can bottle and sell, for off premise consumption, draught beer.

Public Act 15-244 (the “budget bill”) contains the provisions for the sale of “growlers” by restaurants, cafes and taverns. Specifically, Section 78 of PA 15-244 amends the restaurant license, Section 79 amends the café license and Section 80 amends the Tavern license in each instance to allow for the sale, by those licensees, of growlers. The changes to each license are identical, except for restaurant liquor permits as discussed below, and are as follows:

“Such permit shall also authorize the sale at retail from the premises of sealed containers supplied by the permittee of draught beer for consumption off the premises. Such sales shall be conducted only during the hours a package store is permitted to sell alcoholic liquor under the provisions of subsection (d) of section 30-91, as amended by this act. Not more than four liters of such beer shall be sold to any person on any day on which the sale of alcoholic liquor is authorized under the provisions of subsection (d) of section 30-91, as amended by this act.”

Are sales limited to “craft” beers? No, any draught beer can be sold.

Who is given permission to sell draught beer to-go? Public Act 15-244 gives permission to sell draught beer to-go only to: restaurants; cafés and taverns. All other on-premises retail licensees, such as hotel permits, clubs and resorts, as are package stores, are still prohibited from selling draught beer to-go.

What type of container can be filled? The Act is silent about the type of container, but does limit the total quantity to four liters per person per day. The Department of Consumer Protection in its August 5, 2015 memorandum confirms that permittees are not limited to filling the “traditional, growler type” containers. However, the container must be capable of being “sealed.”

What does “sealed container” mean? The act does not define the term “sealed,” nor does the Department’s August 5 memo address the matter. Thus, one is left to look to the dictionary definition of “seal.” Webster’s Dictionary defines sealed as “closed hermetically” — that is, airtight. Indeed, a tightly closed screw cap, closed “flip-top” bottle or corked bottle would seem to meet the statutory requirement.

Can I fill a customer’s container? No, the container must be supplied by the permittee.

When can I sell to-go? Sales are limited to package store hours and days only: Monday-Saturday 8:00 a.m. to 10 p.m. and Sunday 10 a.m. to 6 p.m. Sales are prohibited on New Year’s Day, Thanksgiving Day and Christmas.

Can a distributor sell the containers to a permittee? No as to holders of a restaurant liquor permit but, yes for restaurant beer, and beer and wine permittees, cafés and tavern owners. Language in the Act sets out a unique restriction that applies only to restaurants holding a full-liquor license. The relevant section of the Act provides: “No holder of a manufacturer permit, out-of-state shipper’s permit or wholesaler permit shall supply to the holder of a restaurant permit [full liquor license] the containers permitted to be sold for consumption off the premises under this section or any draught system components other than tapping accessories.”

The foregoing is intended as general information only and not as legal advice. Contact an attorney to get advice about your particular circumstances.

Peter A. Berdon: Attorney Berdon, a partner with Berdon, Young & Margolis, PC, has represented wholesalers, manufacturers, package stores, restaurants and bars before the State of Connecticut DCP and the Federal TTB as well as in litigation matters in court since being admitted to practice in 1991. He can be reached at peter.berdon@bymlaw.com or www.bymlaw.com

 

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