To-Go Mixed Drinks Mean More Opportunities for Both Revenue and Liability

Similar to other states such as New York, Kentucky, Texas, Colorado and California, on May 5, 2021, the Georgia State Senate passed Bill 236, which offers an opportunity for restaurants and bar owners to generate more revenue through to-go orders. In particular, S.B. 236 allows food service establishments to now sell mixed drinks for off-premises consumption. In other words, it allows the sale of mixed drinks with to-go food orders. This legislation results from innovative practices restaurants and bars developed during COVID-19 shutdowns nationwide. S.B. 236 is now codified as O.C.G.A. § 3-3-11.

O.C.G.A. § 3-3-11 imposes these five basic requirements on the alcohol to-go orders:

1) the alcohol must be in an “approved container;”

2) it must be sold to the individual who placed the order and is paying for the alcohol;

3) it is limited to two mixed drinks for each entrée ordered (alcohol cannot be bought alone);

4) the drink must be prepared the same day it is sold and cannot contain more than 3 ounces of liquor; and

5) it must be sold to a customer on the premises or by curbside pick-up. An “approved container” means a sealed tamper-evident container that has no holes (even for straws) and bears a label identifying the food service establishment selling the alcohol. O.C.G.A. § 3-3-11 also requires the customer receiving the alcohol to place it in a locked glove compartment, a locked trunk, or the area behind the last upright seat in the vehicle if it is not equipped with a trunk.  The statute offers no penal language explaining what occurs if a food service establishment fails to adhere to these requirements, but it states that Georgia’s Commissioner of Revenue will enforce them. 

Risk and Opportunity

While this new law presents new revenue streams for bar and restaurant owners, it also exposes bar and restaurant owners to significant new risks for potential liability. Under Georgia’s dram shop statute, an alcohol provider who willfully, knowingly and unlawfully sells, furnishes or serves alcoholic drinks to another person may be liable for injury or damage proximately caused by the other person’s intoxication if (1) the customer was under the lawful drinking age or was noticeably intoxicated, and (2) the person providing the alcohol knew that the customer would soon be driving a motor vehicle. O.C.G.A. § 51-1-40(b). The law assesses “noticeable intoxication” from the viewpoint of employee who served the last drink when the employee served the last drink. Wright v. Pine Hills Country Club, Inc., 261 Ga. App. 748, 750 (2003).

As a result, if a restaurant or bar provides to-go mixed drinks to an intoxicated or underage customer who consumes them and then shortly thereafter gets into a car wreck causing injury, the restaurant or bar providing the to-go alcohol can be held liable for such injury. This raises the question: what can restaurant and bar owners do to avoid or, at least, minimize this risk?  The answer is largely the same as before: employees serving alcoholic beverages to-go must be wary of their customers’ level of intoxication and do their best to not overserve. That said, this new to-go dynamic creates more risk because of the brief interaction time between the customer and the employee involved with to-go orders. 

Before alcohol to-go orders were permitted, restaurant and bar employees usually had ample time and multiple interactions with a customer to determine whether that customer was noticeably intoxicated because the customer likely sat at the bar or at their table enjoying a meal. Now, with alcohol to-go orders, there is only a brief amount of time for restaurant and bar employees to determine noticeable intoxication – either in a simple cash register exchange or during a curbside pick-up. The risk presented by this brief interaction with the customer is elevated further by the fact that the employee knows that this customer will soon be driving a motor vehicle. This is obviously true in the curbside to-go circumstance, and, unless a bar or restaurant is in a walkable dense urban area, it is also likely true about cash register exchanges inside the establishment. 

Understand the Liability

Most importantly, employers should ensure their employees servicing the alcohol to-go orders are acutely aware of this liability risk – this includes the employees who receive the order if it is placed by the customer in person or over the phone, as well as the employees who actually interact with the customer and deliver the drinks. And the employers should train employees to detect intoxication during the cash register or curbside pick-up exchange.  Most establishments that serve alcohol are staffed by employees who are aware of the classic signs of intoxication: difficulty maintain balance, slurred speech and slow reaction times. While these may be obvious to some employees, formal training on how to spot these indicators should be performed and documented. This is critical because the to-go cash register and curbside pick-up exchanges are so brief. An effective method to determine someone’s intoxication level during these brief exchanges is to engage conversation. One way to generate conversation between the employee and the customer would be to explain that the beverages need to be stored in the glove compartment, trunk or back rear of the vehicle if there is no trunk. Informing the customer of this rule, perhaps even in writing, also shows that the bar or restaurant is trying to follow the requirements of the statute.  

Another method to engage conversation would be to request that the customer state in full to the employee their order, including the mixed drinks, before receiving it. A formal policy, written or unwritten, where employees require customers to recite their order in full would cut against potential liability because a customer able to do this is likely not noticeably intoxicated. This is important because the second element of dram shop liability, that the customer is soon to be driving a motor vehicle, is obvious in the curbside to-go context.  

Another option would be to require that any to-go orders containing alcohol must be picked up inside. This would force customers to walk inside, which would give the employees another chance to observe whether the customer was noticeably intoxicated. Whichever approach is taken, bars and restaurants need to be diligent about assessing their customers’ noticeable intoxication, and the best way to do this is with a mindful and well-trained staff.

Issues related to alcohol to-go orders will likely continue to evolve going forward, and there is still uncertainty about how this will impact potential exposure. But, at the very least, we know that while this new statute presents opportunities for additional revenue, it also increases the scope of potential liability for bar and restaurant owners, and it is important to get out in front of this new dynamic and stay vigilant. 

This article is only meant to be informative and does not constitute legal advice or create an attorney-client relationship.