Author: Brad Dawson

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Nov 9, 2020

Nashville’s Metro Council passed legislation that makes the delivery of beer a permanent option for holders of an “On-Premises” or “On/Off Premises” beer permit.

We find ourselves humming the classic Adam and the Ants tune:

stand and deliver

your money or your life

The Metro Beer Board will begin taking applications on November 19. We understand that the application process is streamlined and staff can grant temporary approval. Applicants will have to pay a $250 application fee, plus $100 annually, which is pro-rated on a calendar basis for the first year.

Consistent with the emergency beer delivery regulation enacted at the outset of the pandemic, the Metro Beer Board has a pending Rule that will require that employees make all deliveries. During the outset of the pandemic, we saw beer delivery by employees as being pro-jobs, at a time when many hospitality industry workers were laid off.

Unlike state-wide emergency alcohol delivery, permit holders cannot use third-party delivery services such as GrubHub, Postmates, DoorDash and UberEats.

Of note, the Metro Beer Board was the first in the state to enact emergency beer delivery. Metro Nashville becomes the first Tennessee city to make beer delivery permanent.

Below are the complete regulations:

SECTION V – Delivery / Curbside Permits

Section 5.01 – Delivery / Curbside Permits

A. These following rules apply to existing holders of permits of “on” or “on/off” sale permits (a “Permittee”) issued by the Metro Nashville Beer Permit Board.  This Regulation does not apply to holders of off-sale permits.

B. Subject to all federal, state and local laws, a Permittee holding an “on” or “on/off” sale permit may make off-premise sales and deliver beer subject to this rule.

C. Prior to any off-premises sales being conducted, the Permittee must submit an application accompanied by a two hundred fifty dollar ($250) application fee for a delivery / curbside permit. Applicants may contact the Beer Board staff by phone: 615-862-6751, via e-mail at beerboard@nashville.gov or apply online.  The applicant must provide the following:

Name of the Permittee
Physical Address of the Permittee
Person to Contact
E-mail Address
Phone Number
On or on/off Premise Beer Permit Number

D. Upon providing the information above, and obtaining final approval by the Beer Board, the permit holder may make off-premise sales and deliver beer pursuant to these rules and subject to any applicable federal, state, and local laws. 

E. Only employees of the Permittee may deliver beer.

F. Employees conducting deliveries must be at least 21 years of age.

G. At the point of delivery, the employee conducting the delivery must inspect the purchaser’s valid identification to determine whether the purchaser is an adult and is not intoxicated, pursuant to T.C.A. § 57-5-301(a)(1).

H. The Permittee shall be strictly liable for all sales to persons under the age of 21 or to intoxicated persons, pursuant to Tennessee state law.

I. Beer to be delivered must be in commercially sealed containers.

J. These rules are limited to “beer” as defined in M.C.L. 7.08.010.

RULE 3.04 RESTRICTIONS ON DRIVE-THROUGH OR DELIVERY WINDOWS

Beer may be sold through any drive-through or delivery window or by curb service only by those retail establishments possessing a delivery/curbside permit. 

RULE 3.05 RESTRICTIONS ON DELIVERIES

A permittee may deliver beer from a business establishment to the home or any other location of the consumer where the sale and delivery of beer and/or other goods are made simultaneously at the location of the consumer, so long as the permittee possesses a delivery/curbside permit.

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Sep 24, 2020

We have seen a steady uptick in citations for sales to minors from the Tennessee ABC and beer boards across the state. We encourage folks to re-focus training efforts on carding and to adopt the program we call “Red Box ID.” 

Here are two samples of Tennessee under 21 drivers licenses.

Under 21 drivers licenses have a big red box around the photo – hence the name “Red Box ID.” 

Problem is, Red Box IDs have a defect. The licenses do not expire when the driver turns 21. Under 21 licenses with Red Box ID can be valid for years after the driver turns 21. 

Red Box Carding.

The good news is that Red Box IDs do not require math for carding.

The date the person turns 21 is written in the red box around the photograph. In the first sample, Nick turns 21 on 02/11/2021.

Viola – no math!  Don’t serve Nick.

Law enforcement almost universally uses real Tennessee drivers licenses in sale to minor stings.  In all likelihood, your server or clerk will be presented a Red Box ID when the ABC or Beer Board visits.

Make sure your staff is properly trained to focus on Red Box IDs – read the date in the red box.

Ask the customer’s age. 

We also recommend that servers, bartenders and clerks ask the guest “How old are you?”

Undercover officers, such as an ABC agent, may avoid answering the question. It is unlikely that the officer will lie. Ask the question again, if the person is evasive. Refuse the sale if the person will not tell the correct age.

Secondary card. 

Do not allow staff to sell to anyone with a Red Box ID.  Although servers, bartenders and clerks should card the patron, consider requiring a manager or senior staff member approve all sales involving Red Box ID. 

Double-checking the ID for under 21 drivers licenses significantly decreases the chance that an establishment will serve a minor. This includes confidential informants acting on behalf of the ABC, beer boards or police.

ABC enforcement. 

The ABC has recently begun issuing administrative citations to servers and cashiers that fail age compliance checks.  The ABC has been fining servers and cashiers $250.

The ABC reported at the September meeting that 16 servers had been fined $250.

We welcome this change in policy.  Business owners are strictly liable for sales to minors.  Placing more responsibility on the server or cashier puts more significance on the need to effectively card.  All too often, we see a terminated staff member walk across the street to get rehired at a competitor, while the business owner is paying expensive fines or serving a suspension of its beer permit or ABC liquor license.

ABC law enforcement reported 130 minor compliance checks and 28 citations for sales to minors at the September ABC meeting. This also reflects a 78% passage rate, industry-wide. The following were reported per license:

92 LBD

20 sold

78% passage rate

18 liquor stores

7 sold

61% passage rate

20 WIGS

1 sold

98% passage rate

ABC law enforcement reported 130 minor compliance checks and 28 citations for sales to minors at the September ABC meeting. This also reflects a 78% passage rate, industry-wide. The following were reported per license:

92 LBD

20 sold

78% passage rate

18 liquor stores

7 sold

61% passage rate

20 WIGS

1 sold

98% passage rate

The ABC has also been targeting curbside sales by restaurants and bars. So far, we have not heard of any delivery compliance checks, but suspect we will see delivery citations forthwith.

All this law enforcement makes us think of Officer by The Pharcyde:

Oh please don’t pull me over officer please

I’m discombobulated (What)

Discombobulated (What)

Discombobulated malfunctioned faded

F-a-d-e-d

I can’t believe it’s me

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Sep 18, 2020

We have heard a steady stream of queries from bar owners about potential lawsuits over the city’s handling of health orders during COVID-19.

Recently retracted news from a local Fox News affiliate reported that the Mayor’s office withheld important health information.

Contradictory information concerning whether the Mayor, in fact, withheld any information quickly emerged.

It certainly looks like Nate Rau covered the story back in early August.  Although the Mayor’s office may have wanted to conceal information, the news was public less than a week after the e-mails in the Fox 17 news report.

That said, there are lawsuits proceeding and bars are obviously free to pursue legal recourse against the city. We personally question whether the city should have imposed different limitations on occupancy for bars and restaurants after it became clear that closing the bars did not resolve social distancing problems on lower Broadway. Socially irresponsible crowds packed downtown restaurants.

Whether this rises to the level of meriting a lawsuit – we are not certain.

In our humble opinion, bars and restaurants should be treated equally: distance tables, require patrons to stay seated, and mandatory masks when patrons enter, leave and walk to the restroom. And the city should have effective enforcement measures to make sure there is a level playing field – including use of the beer board.

In any event, we wish restaurant, bar, hotel and venue owners the best as you navigate these difficult times.

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Jul 31, 2020

During COVID-19, outdoor seating at restaurants is a popular option among diners. We have been working with several owners to expand their premises to include additional exterior space during the pandemic.

In order to legally serve beer, wine and spirits in added exterior space, you will need to file an amendment application with the Tennessee ABC and consult with your local beer board. In Nashville, the Metro Beer Board requires an application and payment of the $250 fee.

The ABC has a streamlined process for the expansion application. See details in the attached press release.

Governor Lee waived the $300 application fee for the expansion, by Executive Order 55.  The ABC does not require a separate application to remove the expansion space – at the end of the season or after the pandemic has concluded, whenever that might be.

We have also been working with clients interested in converting from a limited service restaurant license to a full-service restaurant license. Nashville is using the ABC license type to close bars. This allows your establishment to stay open during this and future COVID spikes.

We applaud Tennessee restaurant and bar owners as they continue to improvise and innovate during these difficult times.

The beerded lady reminds us of a timely tune, “Heroes” by David Bowie:

Though nothing will drive them away

We can beat them, just for one day

We can be heroes, just for one day

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Jul 24, 2020

Chief Medical Director of Health Michael C. Caldwell issued an order closing dining rooms at all food service establishments at 10 p.m. each evening, beginning this Friday, July 24, 2020. 

Mayor Cooper announced the new closing time earlier in the week, citing crowding on Lower Broad.

This means that restaurants and bars, including restaurants and bars at hotels, must close at 10 p.m.  We got clarification that the order applies to hotels, and any other food service establishment located inside a larger facility.

The order specifies that “all customers shall be off-premise and the premise closed to the public at 10 p.m.”  This doesn’t mean that 10 p.m. is last call – everyone needs to be out the door by 10 p.m. 

Attached is a copy of the order.

After 10 p.m., restaurants and bars are limited to takeout, drive through, curbside and off-premise delivery of food.  No alcohol after 10 pm.  

Limited service license holders and beer only permittees are closed through July 31, 2020.  Read more at our post here. 

Semisonic seems apt:

Closing time

One last call for alcohol so finish your whiskey or beer.

Closing time

You don’t have to go home but you can’t stay here

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Jul 23, 2020

Beginning 12:01 a.m. on Friday, Aug. 7 and ending 11:59 p.m. on Sunday, Aug. 9, Tennesseans can enjoy food and drink at their favorite restaurant — without paying sales tax.  We have been hearing lots of questions:

What types of businesses are included?
Are liquor by the drink taxes exempt? 
How do I file my tax return for sales without taxes? 

The law specifically applies to the retail sale of food and drink by restaurants and limited service restaurants, as defined in state law.  The holiday does not apply to hotels, premier type tourist resorts, caterers and other special license types.  The holiday also does not apply to breweries, distilleries and beer bars, unless the establishment holds a restaurant or limited service license.  And no holiday for wine and beer sales at groceries, C Stores and liquor stores.

Look at your license on the wall.  If the license says restaurant or limited service license, the sales tax holiday applies to your sales.  If it does not, you must collect and pay over sales tax.  Samples of restaurant and limited service licenses are at the links.

Failure to pay taxes means that you could be liable for back taxes, plus penalties and interest.

What’s in a name?  For the tax-free holiday weekend, the name says it all:  Sales Tax Holiday. 

Just like the name implies, the holiday only applies to sales tax.  You must collect and pay over liquor by the drink taxes.

Because this is the first sales tax holiday for restaurants, please take some time to ensure that you properly fill out the sales tax return.  List exempt sales for the holiday on your sales tax return at Schedule A, Line 10.  See this sample return. 

All this talk of holidays has us humming one of our favorite yuletide carols: Holiday in Cambodia by the Dead Kennedys.

It’s a holiday in Cambodia

It’s tough, kid, but it’s life

It’s a holiday in Cambodia

Don’t forget to pack a wife

As a bonus, sales of apparel are tax exempt. Sell all your hats, shirts, boxers – you name it.

Apparel sales are tax exempt  Friday, July 31 through Sunday, August 2 and Friday, Aug. 7 through Sunday, Aug. 9. Yes, breweries, distilleries and wineries qualify for the sales tax exemption for apparel.

My daughter Ella is looking forward to showing off her Whiskey Defender shirt featuring Nelson’s Greenbrier distillery cat Sugar Maple. Forget the high school dress code, right?

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Jul 2, 2020

Metro Nashville has issued clarifying guidance for re-entering revised Phase Two, which begins July 3, 2020.

Citing the spike in cases reported after the Memorial Day holiday, Mayor Cooper intends to prevent a new outbreak from large crowds celebrating the Fourth of July in Nashville’s Lower Broad.

Dr. Alex Jahangir, head of the Metro Coronavirus Task Force, reported that public health workers have detected at least 30 new infections of Nashville residents across 10 different bars over the past week. Media reports that several Nashville restaurants and bars have closed in the last few days because of COVID-positive staff. In an effort to further discourage large gatherings, Mayor Cooper asked the Nashville Convention and Visitors Corporation to cancel its fireworks display on Saturday evening.

The revised Metro guidance is clear. If you hold a Limited Service License, you are closed beginning July 3 through July 31. Bars can provide curbside or delivery of food and alcohol.

If you hold a Restaurant License, you can stay open at the lesser of 50% capacity or maximum occupancy with social distancing. Bar seating at restaurants is closed. Live entertainment is allowed, with a 15 foot buffer or a plexiglass or similar barrier. Pool tables, darts and other amusements are closed until July 31.

We read the order as allowing guests to be seated at tables in bar areas – just no one sitting at the bar. Guests seated at tables in bar areas must have a server. There can be no guest interaction with the bartender.

Beer bars – bars that only sell beer and not wine or spirits – must also be closed. Sorry Santa’s Pub.

A copy of the Health Director’s order is here. 

If bars reopen on August 1, closing time will be 10 pm and all patrons will be required to be seated. Bars can feature live entertainment, with a 15 foot buffer or a plexiglass or similar barrier. Pool tables, darts and other amusements are closed until July 31.

We encourage bar owners to implement policies to enforce the no standing rule and modifications to to live entertainment, which include sanitizing between performers.

It looks like closing time for restaurants will also be 10 pm, starting July 17. 

Metro Nashville originally said that bars will be closed for 14 days. With no clear definition of what constitutes a bar, many owners were left scratching their heads trying to decide if they should lay off staff and lose out on much-needed revenue over the long holiday weekend.

Many bar owners were plowing forward and planning on pushing food sales, to remain open as restaurants.  While some bars have sufficient food service to justify staying open as a restaurant, we suspect that more-nefarious owners might have been tempted to game the system. 

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Jun 26, 2020

We are seeing significant upticks in state responses to violations of COVID-19 safety orders.

Hours ago (June 26), Florida suspended all sales of alcohol at bars.  The state broke the news via Twitter.

Florida Gov. DeSantis’ order specifically refers to a spike in COVID “cases involving younger individuals (that) are suspected to have originated from visits to bars, pubs or nightclubs who have disregarded the restriction set forth in Phase II” of Florida’s order for reopening.

This morning, in response to a COVID spike, Texas Governor Abbott ordered all restaurants, shops, and most businesses to operate at 50 percent capacity.  Bars are closed, except to takeout.

Keep in mind that Tennessee could implement a similar sanction on bars, closing limited-service restaurants to in-person dining and drinking.

The Texas ABC is not messing around! Earlier this week, the Texas ABC summarily suspended 17 liquor permits – without a hearing – for violating COVID orders and checklists. Read the release here.

Texas drinking buddy and liquor expert Dewey Brackin observes: “In all cases I’ve seen thus far, TABC has not given verbal or written warnings at the time they are on-site. These are undercover operations. Bars and restaurants are served Emergency Suspension Orders the next day.” 

Metro Nashville

Locally, the Nashville Beer Board and Department of Health have ramped up enforcement. 

Last week, the Beer Board issued 5-day beer permit suspensions against 4 downtown bars for violating one of the Health Department’s COVID restrictions.  Read more here. 

Reliable sources tell us that over a dozen businesses were brought before the Davidson County Environmental Court for various health department citations. We hear that at least one place was issued an injunction against having patrons sit at the bar. We also understand that the Environmental Court has threatened to terminate Business Licenses for future violations.

Although we question whether the Environmental Court has jurisdiction to terminate a business license, we urge local business owners to note stepped up enforcement actions.

Stay tuned for more information.

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Jun 19, 2020

Good news for Nashville restaurants and bars. Starting Monday, June 22, Nashville is entering Phase 3.

Bars areas at restaurants may open at 50 percent. Bars and clubs can also reopen.

There can be no parties of more than six people. No standing at the bar is allowed.

Let the arcades open! Arcade games, pool tables, foosball, darts, laser tag and other similar activities may open. Surfaces should be cleaned between each use. Cleaning supplies should be provided for customers to use.

This is our best advice for dancing. Dance floors are to be closed. It is okay for an occasional couple to get up and dance next to their table. A group of six or more dancing together is probably too much.

If large numbers of people are dancing, the band can always dial back the fun by playing a slow song and reminding people that we are in the middle of a pandemic. 

We do not want the health department to have to completely ban all dancing. Take it easy, folks.

Restaurants must continue at 75 percent capacity. Initially, Phase 3 allowed restaurants to move to full capacity. Business owners explained to city officials that with proper social distancing, restaurants could not operate at 100 percent.

Under Phase 3, employees are to be screened daily and required to wear face masks, among other requirements. The complete Roadmap is here.