AAIAC

The Alliance of Alcohol Industry Attorneys & Consultants is a select organization of alcoholic beverage licensing and compliance professionals.

Pennies from Heaven for Tennessee small business?

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Jun 15, 2020

We are pleased to share the following summary about the Tennessee Business Relief Program. 

Key takeaways are:

The money does not have to be paid back Revenue hopes to start disbursing in early July Unlike PPP and other relief programs, there is no application.

A huge shout-out for the excellent summary to Jim Schmidt and Sharon Michie from the Tennessee’s Brewer’s Guild.

The Tennessee Business Relief Program focuses on relief for small businesses, mainly targeting the retail sector, that were closed by the Governor's executive order in April.

There is not an application process to participate; instead the state will be using a business' NAICS federal code to target relief to the list of certain types of businesses (i.e. gyms, restaurants, bars, etc. Full listing is on the Dept of Revenue's website). They will also consider businesses that may not fit into a category but lost more than 25 percent of sales based on their tax filings. Only businesses with gross sales revenue under $10M will be included in the program (a company that has multiple locations will be considered as one entity). Estimates are that 70% of the eligible businesses are under $500K in annual gross sales and that demonstrates a commitment to helping smaller businesses recover.

Payments will range from $2,500- 30,000 depending on the size of sales for the business. These are not finalized but the payment schedule is likely:

Sales of Business/ Payment- $0-100k = $2,500; $100-500K = $5,000; $500K- 1M = $10,000; $1- 5M = $20,000; $5-10M =$30,000

Payments will be direct-deposited into accounts which have filed and maintain their banking information with TN Dept of Revenue. Many businesses do this already for sales and other tax filings/ payments. The Commissioner recommended checking to make sure your TNTAP account is updated. Businesses can do that at: https://tntap.tn.gov/eservices/_/
If a business is eligible and does not maintain their information online, then they will receive checks in the mail which may delay payments.
They are continuing to work toward a 1st week of July delivery of payments but that is not finalized.
If a business has questions about their eligibility, NAICS codes, or other items, it was recommended that you file a Help Desk request at the DOR website. They will work through questions and try to work with businesses who may not fit neatly in a category. You can do that here: https://www.tn.gov/revenue/tennessee-business-relief-program.html
If a business is designated solely as a manufacturer, they are not eligible for this particular program. But if the manufacturer has several aspects to its business, (i.e. for breweries or distilleries - retail, restaurant, and bar segments), then the business should be eligible as long as the DOR has that information listed as part of its NAICS codes or if it's verified by retail sales tax records. If in doubt, they recommend contacting the Help Desk for a request.
These payments are considered grants, not loans, and are not required to be repaid. If a business is structured as a sole proprietorship, LLC or LLP, the payments should not be considered taxable; for corporations, it will depend upon their classification for federal taxes to determine if they are taxable or not.

We always advise folks to consult with the accountant on tax issues.

If you need further information, Jim and Sharon recommend reaching out to Revenue’s Taxpayer Services Division, from 8 a.m. to 4:30 p.m., Central time, at (615) 253-0600, or email This email address is being protected from spambots. You need JavaScript enabled to view it..

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Pennsylvania Cocktails-To-Go Guidelines

Gov. Wolf signed HB 327 allowing licensed hotels and restaurants to start selling mixed drinks-to-go, EFFECTIVE IMMEDIATELY.  Here are some important parameters to be aware of: Mixed drinks can be sold from 7am – 11pm, daily (Sundays only with a Sunday Sales Permit). The mixed drink must be sold in a container with a secure lid.  If there is a ...

The post Pennsylvania Cocktails-To-Go Guidelines appeared first on Flaherty & O'Hara.

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Tennessee restaurants reopening: What can we do besides eat?

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May 5, 2020

Restaurants and other establishments that serve a menu of food were allowed to open in Tennessee beginning April 27. Memphis and Nashville remain closed.

We have been fielding questions about what else customers are allowed to do besides eat, including playing cornhole or ping-pong or being entertained by a live comedian.

We also have been hearing: would we have to serve food during all hours of operation?

Feed folks

Food service is a requirement for bars to be open, as we read Executive Order 30. You might close the kitchen half an hour before closing, but we strongly encourage any restaurant or bar to have a menu of food items available at all times.

Can you scale back the menu? Sure. Feel free to keep it simple and calculated to tempt patrons to indulge in a meal.

Can you use a food truck and avoid the cost of opening your kitchen? Unofficial guidance says no. If you open your restaurant or bar, you have to serve food - your food. You could supplement your food with a food truck, but why invite competition and cut into your own food sales?

Don’t entertain

As far as entertainment, Executive Order # 30 specifically prohibits the following from opening:

bars (unless serving a menu of food), nightclubs, live performance venues, bowling alleys, arcades, concert venues, sporting event venues, theaters, auditoriums, performing arts centers, racetracks, indoor children’s play areas, adult entertainment venues, amusement parks, senior centers and roller, and ice skating rinks. 

In addition, Governor Lee has encouraged businesses to follow the “spirit” of the guidelines and orders. Nashville has specifically banned live music until Phase 3.

We are telling folks: don’t play games with the rules. Serving food and drink in accordance with Tennessee Pledge is fine. Other than playing the stereo and TVs, resist the temptation to allow your patrons to do anything else.

Does anyone really want another lock down?

Who is wearing out Brad Paisley’s new single?

'Cause we're all in this together

To me, it's all so clear

Drinkin' oughta be a team effort

There is no "I" in beer

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Tennessee extends alcohol carryout and delivery through May 29

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Tennessee extends alcohol carryout and delivery through May 29

Apr 29, 2020

Tennessee Gov. Bill Lee extended the executive order allowing drive-through, carryout and delivery of beer, wine and spirits for restaurants. Read Executive Order 30 here

Restaurants, limited-service restaurants and wine-only restaurants can continue to sell carryout and deliver alcoholic beverages and beer. There is no additional license or permission needed to deliver.

We urge folks to keep hustling during these difficult times and check Last Call for updates. The Tennessee ABC has posted FAQs here.

Here is our summary of the rules of engagement for to-go, curbside, drive-through and delivery:

Alcohol must be delivered with food. At least one item of food must be sold in every order containing alcohol. The amount of food required is not specified, but given the emergency nature of this order, we encourage restaurants not to play games and count lime slices as food, for example.

Licensees are still required to be responsible. Restaurants can set rules, such as one entrée per two single-serving margaritas. You can always require that customers order a meal or set a minimum dollar amount of food for deliveries.

You can deliver cocktails! As long as the package has a secure lid, we read the order as allowing delivery of margaritas, cocktails and other mixed drinks.

Alcohol must be packaged in a container or bottle with a secure lid or cap. We read this rule to mean that the container must be closed. Closed is not the same as sealed. For example, a lid screwed on the top of a plastic jug is closed. Alcohol does not have to be sealed, meaning you do not have to attach seals like you would find on commercial products at grocery stores.

The ABC advises restaurants to “cover containers in a reasonable manner that would require the consumer to unpackage them for consumption.” For example, we believe a styrofoam container with a lid that does not have a straw hole will work. If all your lids have straw holes, tape the straw holes.

Bottles and cans of beer and wine can be delivered. This includes regular-sized wine bottles. No bottles of spirits or liquor.

Single serving packages only. Although beer and wine by the bottle may be sold, no other multi-serving containers are allowed. For purposes of single servings, the ABC says no more than 16 oz. of beer, 9 oz. of wine or 4 oz. of spirits in a container with not more than 16 ounces of total liquid.

No more carafes of sangria or pitchers of margaritas to-go. You can sell multiple single-serving containers with a meal, although we continue to recommend moderation under this emergency order.

Mini bottles of spirits present a conundrum. State law prohibits the sale of spirits by the bottle. However, Governor Lee’s order specifically authorizes “single servings of alcoholic beverages.”

In our humble opinion, Executive Order 30 allows a restaurant to deliver mini bottles of spirits, provided it is clear that the mini bottle is intended for a single serving. We advise folks to securely tape or otherwise attach a mini bottle of spirits to the mixer. That way, it is abundantly clear that the two items - the container and the mini bottle - are intended to be a single serving. Do not play games and toss 12 mini bottles of tequila in a bag and consider yourself in compliance with the order.

The executive order only applies to full-service restaurants, wine-only restaurants and limited service restaurants. Hotels, caterers, premier-type tourist resorts, convention centers and other special license types cannot deliver or sell alcohol to-go under the executive order.

Get your beer here. Restaurants do not need permission from their local beer board to deliver under the Governor’s order.

If you are a brewery, hotel or other business that does not hold a restaurant license, you can register with your local beer board to deliver beer in in Bristol, Chattanooga, Knoxville, Memphis and Nashville. These local beer boards have specifically authorized carryout and delivery of regular beer. There are broader rights for beer-only delivery and growlers are fine in these cities and any other city that has specifically authorized carryout and delivery of beer. Read more about beer delivery here.

Mandatory carding for deliveries. You must card. Sales cannot be made to under 21 or intoxicated persons.

Drivers do not have to physically touch an identification to verify age. Because orders are most likely paid in advance, online or via phone, there is no need for drivers to risk potential contamination and make physical content with the customer. Have the customer hold their own ID out for the driver to read. Or better yet, read it through a glass storm window.

That said, drivers need to ensure that they properly ID. We encourage Redbox carding and closer scrutiny of all Redbox IDs.

Drivers must be at least 21 years of age and have a valid driver’s license.

Delivery services can deliver your alcohol. Restaurants can use their own employees or third-party delivery services such as Postmates and Uber Eats to deliver alcohol. Delivery personnel are not required to have server permit cards or any special qualifications.

With a third-party delivery service, you should ensure that delivery personnel are properly trained for carding. Some delivery services are not set up to require carding.

Keep in mind that if you are using a third-party delivery service, your restaurant remains liable for sales to minors, intoxicated persons or the violation of any other law.  A restaurant will not be able to avoid liability by saying “the Uber driver did it.”

Restaurants must post a sign with the following notice: “No driver shall consume any alcoholic beverage or beer or possess an open container of alcoholic beverage or beer while operating a motor vehicle in this state.” Although the order is not clear, we advise folks to post the sign on the wall, with your liquor license.

Carryout and delivery of alcohol are limited to current operating hours, which is not defined. We advise folks to adhere to the normal sales hours for beer and alcoholic beverages.

Curbside and drive-through. The order does not specifically address curbside and drive-through, but given the intent of the order, we believe it is OK to deliver drinks curbside and through drive-through windows.

Do not stage alcohol pick up outside.Restaurants cannot stage multiple alcohol deliveries at tables outside the restaurant’s licensed premises. We understand that it is convenient for multiple orders to be brought out for immediate pickup at curbside. Although this is okay for food, alcohol must stay inside the restaurant until the customer or delivery service arrives for pickup. A licensed patio is fine for staging. But not your parking lot.

Alcohol must come from the restaurant’s inventory. A restaurant cannot buy or deliver alcohol from a retail liquor store, food store or another restaurant. You must purchase your alcohol from a wholesaler.

Collect sales tax. Restaurants do not collect the 15% liquor by the drink tax for all wine and spirits sold to-go or for delivery, including bottles and cans of beer, wine and single-serve cocktails. You do have to collect sales tax. Here is the post from Revenue. (link to attached). If you have more tax questions, see our post here.

Delivery applies to restaurants statewide, but we urge folks to exercise discretion and not deliver to dry towns and counties. We suspect that the Governor did not intend for delivery to areas that have not approved of liquor-by-the-drink.

Restaurants with dining privileges can serve alcohol for on-premise consumption. Just like a regular patron dining at a table, restaurants can serve alcohol to customers that are waiting to pick up carryout, provided that the restaurant’s dining room can legally be open. Tennessee restaurants were allowed to reopen for dining beginning April 27, except for the six counties in the state within independent health departments (Chattanooga – Hamilton, Jackson – Madison, Kingsport & Bristol – Sullivan, Knoxville – Knox, Memphis – Shelby and Nashville – Davidson), which are allowed to establish their own rules for reopening. In these cities, you currently cannot pour a beer or drink while guests wait on to-go orders.

The Order expires on May 29, 2020. The Governor may extend delivery privileges, but for now, the Order expires by its own terms at midnight on May 29.

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Tennessee Pledge to Reopen Restaurants

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Tennessee Pledge to Reopen Restaurants

Apr 29, 2020

The Governor’s Economic Recovery Group issued Tennessee Pledge, "a plan to help Tennesseans return to work in a safe environment, restore their livelihoods and reboot our state’s economy."

Restaurants are expected to follow the guidelines in the pledge. The pledge is mandatory for limited service restaurants, as specified in Executive Order 30.

Here is a copy of the Tennessee Pledge Guidelines for Restaurants

This is our summary of the guidelines for re-opening:

1. Screen employees for COVID-19 symptoms. Ask all employees:

Have you been in close contact with a confirmed case of COVID-19? Are you experiencing a cough, shortness of breath, or sore throat? Have you had a fever in the last 48 hours? Have you had new loss of taste or smell? Have you had vomiting or diarrhea in the last 24 hours?

2. Temperature screen all employees on a daily basis. 

Best practice: temperatures on site with a no-touch thermometer each day upon arrival. At a minimum, employees take their own temperatures before arriving. Normal temperature should not exceed 100.4 degrees Fahrenheit.

3. Any employee that answers yes to any of the screening questions or is running a fever, must leave the premises and seek medical care and/or COVID-19 testing.

4. Employees are to stay home when feeling ill, when exposed to COVID-19, or if diagnosed with COVID-19. Employees that are particularly vulnerable to COVID-19 due to age or underlying conditions are encouraged to stay home

5. Implement workplace cleaning and disinfection practices, according to CDC guidelines, with regular sanitization of high-touch surfaces at least every two hours.

6. Mitigate exposure in the workplace by implementing social distancing guidelines and modify scheduling. Further is safer, per the guidelines.

7. Employees must wear masks or cloth face covering (but not N-95 or medical masks).

8. Restaurant employees must wear gloves.

9. Provide ServSafe COVID-19 training for all food handlers as soon as possible

10. Plan for potential COVID-19 cases, and work with local health department officials when needed (e.g., monitor and trace COVID-19 cases, deep clean facilities).

11. Make employees aware of the provisions of the federal Families First Coronavirus Response Act, which allows for paid sick leave and expanded family and medical leave for COVID-19.

12. Update employee policies for COVID-19.  Staff should sign the policy, and the policy should be posted.

13. Limit self-service options (customer samples, communal packaging, food/beverages, etc.)

14. Post extensive signage on health policies to educate staff and guests about COVID-19 best practices, including the attached.

Specific guidelines for restaurants.

• Limit the number of customers in the restaurant to 50% of seating capacity

• Tables should be spaced at least 6 feet apart

• Limit tables to no more than 6 guests per table

• Mark any indoor or outdoor waiting area so that social distancing standards are met

(options can include a text system to alert guests of available seating, an intercom

system, or only one member of a party being allowed to wait in the waiting area)

• Bar areas should remain closed

• Live music should not be permitted

• Screen customers for illness upon their entry into the restaurant:

            Best practice: Temperature checks for every customer.

            Minimum: Question customers regarding COVID-19 symptoms:

                        Have you been in close contact with a confirmed case of COVID-19?

                        Are you experiencing a cough, shortness of breath, or sore throat?

                        Have you had a fever in the last 48 hours?

• Place hand sanitizer stations in restaurant lobby and bathrooms, as well as cashier stations

• Sanitize all front-of-house contact surfaces including door handles, screens, phones,

pens, keyboards and other areas of hand contact every two hours, at a minimum

• Use menus that are disposable or sanitized between each use

• Use rolled silverware/napkins stored in sealed bins (gloves should be used by staff while rolling silverware in designated sanitary areas)

• Sanitize all tabletop items, including condiments, after each table turns (or use disposables)

• Sanitize chairs, especially where contact occurs, after each table turns

• Do not offer self-serve buffets, condiments on a counter for use by multiple tables, or beverage station re-use

Although the pledge mandates that bar areas remain closed, many restaurants have set up their bars for carry out and delivery. As long as social distancing and other precautions are employed, we do not see this as violating the pledge.

Stay tuned for more guidelines.

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Restaurants and Bars Shift Their Business Models, Prepare for Reopening

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Restaurants and Bars Shift Their Business Models, Prepare for Reopening

Apr 28, 2020

Welcome to PointByPoint, conversations, interviews and legal commentary for today's business professionals, brought to you by Waller.

Restaurants, bars, entertainment venues and tasting rooms have closed their doors as a result of “stay at home” orders. These businesses have rapidly shifted their business models in order to generate revenue and keep employees working – food and alcohol delivery, curbside pickup, and more. Will Cheek and Rob Pinson, leaders of the firm’s alcoholic beverage team, discuss the changes in licensing and regulations, what’s ahead for restaurants, bars, distilleries and other hospitality clients, and practical considerations as they contemplate the future of their businesses.

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TTB rolls out new rules for distilleries, wineries and breweries

TTB rolls out new rules for distilleries, wineries and breweries TTB rolls out new rules for distilleries, wineries and breweries

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TTB rolls out new rules for distilleries, wineries and breweries

Apr 27, 2020

The federal Alcohol and Tobacco Tax and Trade Bureau, fondly known as TTB, issued final rules that contain a few game-changers for the alcoholic beverage manufacturing industry.

We are particularly fond of the greater flexibility offered to distilleries. Distilleries can now count the years bourbon or whisky are aged in used barrels.  Previously, a whisky or bourbon could only list the number of years aged in new oak barrels.

“You can innovate, but not get punished for aging in an unconventional barrel,” observed Waller’s whisky lawyer to the stars, Rob Pinson.

Under the new rules, whisky aged for 4 years in new barrels, and an additional 3 years in used rye barrels, can be called 7-year-old whisky.  Previously, it was 4-year old-whisky.

The most controversial proposal did not make the final cut.  TTB did not attempt to define what constitutes an “oak barrel.”

In the past, we understand that industry member posed lots of questions about barrels:  Can I use square barrels?  Can I use 35-gallon barrels?  Does the barrel have to bulge in the center? TTB did not limit the type of barrels by specifying the shape and size of barrels used for aging.

In another nod to innovation, distilleries now have more stylistic freedom for labeling. In the past, the front label had to contain all of the information required by TTB. Now, a distillery can put a simple bold logo on the front, for example, with the required label information on the side or back of the bottle.  This will enable greater creative flexibility in graphic design, and potentially with bottle design.

Another big plus for the industry is doubling the threshold for errors in determining the proof for spirits. Distilleries generally add water as a final finishing phase of the distillation process. This is generally done right before bottling.

TTB previously required that the amount of alcohol in the bottle - say 80 proof (which equates to 40% alcohol) - had to be within 0.15% of the amount of alcohol stated on the label.

TTB audits distilleries and tests for the accuracy of alcoholic content. If a batch of spirits was off more than 0.15%, TTB often requires that the distillery dump the entire batch, reproof the spirits and re-bottle. What a pain.

Now distilleries have twice the margin of error when proofing. We see this as a big boost for the industry, while not having any impact for consumers. Even the most polished palate probably cannot detect a difference of 0.15% in alcoholic content.

On a personal note, we are looking forward to continued innovation for vodka. Castle & Key has quickly become our favorite, shaken over ice. Previously, the definition of vodka required that the spirit be “without distinctive character, aroma, taste or color.” 

Castle & Key has complex but subtle mash notes that make cocktail hour quite delightful. We look forward to distilleries crafting more innovative vodkas for our happy hours.

For those that are having trouble sleeping during the coronavirus pandemic, here is a complete copy of the TTB rules

Federal licensing expert Rob Pinson provides a handy summary below.  Keep cocktailing.

The TTB recently released final regulations related to Alcoholic Beverage Labeling and Advertising.  Here is a quick timeline for these new final regulations:

11/28/2018 - Proposed Rule issued 4/1/2020 - Final Regulations issued 5/4/2020 - Effective date of new regulations

The final regulations address some issues currently and defers others for further consideration.  Overall, they provide greater flexibility for the industry.  There were 1,143 total comments, with over 700 of those expressing opposition to the proposed definition of a barrel as a 50-gallon cylindrical container.

Brief Summary of Changes

Doubles to +/- 0.3% the tolerance applicable to alcohol content statements on distilled spirits labels Removes the current prohibition against age statements on pretty much all classes of distilled spirits except vodka Removes prohibition on use of term “strong” and other similar indications of strength for malt beverages Removes limitation on how producers “count” the number of distillations when making “Distilled      times” claims

What TTB Is Not Changing

Definition of “oak barrel” - they are confirming different shapes and sizes are permitted Setting restrictions on cross-commodity terms, including homophones of class/type Setting restrictions on disclosing components of intermediate products or listing ingredients in order of predominance Requiring the age statement for spirits to only include the initial barrel; age can include subsequent barrels Requiring whiskey that meets more than one specific type to be labeled as such - for example, straight bourbon whiskey vs. bourbon whiskey Incorporate interaction between TTB and FDA when product is deemed “adulterated” by FDA and/or “mislabeled” by TTB

Specific Changes - All Commodities

Clarifies which products do and do not meet FAA definitions of wine, spirits or malt beverage and which labeling regime applies to them Confirms that product exported outside of US in bond does not need to meet FAA labeling requirements Personalized Labels (as opposed to private labels) Incorporates prior guidance into regulations; allows producer to submit template label and not get each private label approved Cannot discuss alcoholic beverage or characteristics of alcoholic beverage in personalized portion; remainder of label must have bare minimum Examples are provided Advertisements - modifies existing rule requiring publication of name and street address (city and state only) of industry member running an advertisement to permit websites, email or phone number in lieu of street address

Specific Changes - Wine Only

Removes citrus wine class and combines it with fruit wine (since citrus is a fruit, of course!) Allows vintage dates on wine that is imported in bulk Provides that all wine must meet standard of “natural wine”; more about cleaning up existing regulations

Specific Changes - Spirits Only

Definition of “distilled spirits” does not include products containing less than 0.5% ABV ** Will not establish definition of “oak barrel”; confirms current language allows for different shapes and sizes Clarifies requirement for statements of age and origin for imported products Will not require disclosure of intermediate ingredients on labels nor require listing of ingredients in order of predominance ** Liberalizes placement of key brand label information (brand name, class/type, alcohol content) to be on any side of bottle as long as it is in the same “field of vision”; net contents can be on any label now instead of only be allowed on front label Keeps ‘bottled in bond’ requirements with change for gin to allow paraffin-lined or unlined barrels; vodka retains paraffin-lined requirement ** Increases alcohol content tolerance from +/- 0.15%  ABV to +/- 0.30% ABV Allows age statements for all spirits except neutral spirits and vodka ** Confirms that multiple barrels can be used for “age counting” as long as initial barrel requirements are met - for example, as long as new charred oak barrel used for straight bourbon whiskey, you can age in used barrels after initial requirement and count time spent in used barrels in the age statement on the label ** Allows distilleries to count all distillations, including each plate distillation, when listing the number of times product is distilled; number may be understated but not overstated Creates new “agave spirits” class, of which tequila and mescal are a part; removes need to submit formula; at least 51% of mash must be agave and up to 49% can be sugar ** Revises vodka definition to remove the “without distinctive character, aroma, taste or color” and be distinguished by its specific production standard - no aging and limited sugar and citric acid Country of Origin - Since Customs & Border Patrol (“CBP”) already has regulations on listing the country of origin, the TTB is removing its similar requirements for distilled spirits and referring to CBP’s requirements ** Makes optional the use of a more specific type name when a class name also applies - for example, not required to use the ‘straight’ for bourbon whiskey even though it qualifies Defers creating a standard of identity for absinthe, but does remove the lab testing requirement for products made with wormwood

Specific Changes - Malt Beverages Only

Permits brewers to also add ABW information on label as long as it is together with ABV Removes restrictions on “draft” or “draught” on labels Removes restrictions on “strong”, “full strength”, “extra strength”, etc. on labels
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Gov. Lee leaves Tennessee delivery and curbside alcohol in limbo

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Gov. Lee leaves Tennessee delivery and curbside alcohol in limbo

Apr 24, 2020

With Governor Lee’s order allowing curbside and delivery of alcohol set to expire at midnight April 30, we were expecting to see an extension of these privileges in connection with new guidelines for re-opening restaurants.

We have the guidelines, but no mention of alcohol delivery and curbside service. The governor could still extend these privileges, but so far, he has not. Governor Lee said the state is releasing additional guidelines next week. We may see language regarding alcohol delivery at that point.

At yesterday’s Tennessee ABC meeting, the ABC requested that the Governor’s Economic Recovery Group extend carryout and delivery for an additional 30 days and that the privileges be reviewed on a rolling 30-day basis. The ABC recommendation is Tennessee-wide; not just for areas that may still be experiencing local restrictions when the statewide Stay-At-Home order is lifted. 

ABC Director Russell Thomas has already conveyed the message to ERG Chair Mark Ezell. Read the message here. We applaud the Commission for being proactive and supporting this option to help keep restaurants afloat.

Tennessee Pledge Guidelines for Restaurants

Here is a summary of the guidelines for re-opening:

1. Screen employees for COVID-19 symptoms. Ask all employees:

Have you been in close contact with a confirmed case of COVID-19? Are you experiencing a cough, shortness of breath, or sore throat? Have you had a fever in the last 48 hours? Have you had new loss of taste or smell? Have you had vomiting or diarrhea in the last 24 hours?

2. Temperature screen all employees on a daily basis. 

Best practice: temperatures on site with a no-touch thermometer each day upon arrival. At a minimum, employees take their own temperatures before arriving. Normal temperature should not exceed 100.4 degrees Fahrenheit.

3. Any employee that answers yes to any of the screening questions or is running a fever, must leave the premises and seek medical care and/or COVID-19 testing.

4. Employees are to stay home when feeling ill, when exposed to COVID-19, or if diagnosed with COVID-19. Employees that are particularly vulnerable to COVID-19 due to age or underlying conditions are encouraged to stay home

5. Implement workplace cleaning and disinfection practices, according to CDC guidelines, with regular sanitization of high-touch surfaces at least every two hours.

6. Mitigate exposure in the workplace by implementing social distancing guidelines and modify scheduling. Further is safer, per the guidelines.

6. Employees must wear masks or cloth face covering (but not N-95 or medical masks).

7. Restaurant employees must wear gloves.

8. Provide ServSafe COVID-19 training for all food handlers as soon as possible

9. Plan for potential COVID-19 cases, and work with local health department officials

when needed (e.g., monitor and trace COVID-19 cases, deep clean facilities).

10. Make employees aware of the provisions of the federal Families First Coronavirus Response Act, which allows for paid sick leave and expanded family and medical leave for COVID-19.

11. Update employee policies for COVID-19.  Staff should sign the policy, and the policy

should be posted.

12. Limit self-service options (customer samples, communal packaging, food/beverages, etc.)

13. Post extensive signage on health policies to educate staff and guests about COVID-19 best practices, including the attached.

Specific guidelines for restaurants.

• Limit the number of customers in the restaurant to 50% of seating capacity

• Tables should be spaced at least 6 feet apart

• Limit tables to no more than 6 guests per table

• Mark any indoor or outdoor waiting area so that social distancing standards are met

(options can include a text system to alert guests of available seating, an intercom

system, or only one member of a party being allowed to wait in the waiting area)

• Bar areas should remain closed

• Live music should not be permitted

• Screen customers for illness upon their entry into the restaurant:

            Best practice: Temperature checks for every customer.

            Minimum: Question customers regarding COVID-19 symptoms:

                        Have you been in close contact with a confirmed case of COVID-19?

                        Are you experiencing a cough, shortness of breath, or sore throat?

                        Have you had a fever in the last 48 hours?

• Place hand sanitizer stations in restaurant lobby and bathrooms, as well as cashier stations

• Sanitize all front-of-house contact surfaces including door handles, screens, phones,

pens, keyboards and other areas of hand contact every two hours, at a minimum

• Use menus that are disposable or sanitized between each use

• Use rolled silverware/napkins stored in sealed bins (gloves should be used by staff while rolling silverware in designated sanitary areas)

• Sanitize all tabletop items, including condiments, after each table turns (or use disposables)

• Sanitize chairs, especially where contact occurs, after each table turns

• Do not offer self-serve buffets, condiments on a counter for use by multiple tables, or beverage station re-use

Stay tuned for more guidelines and updates on delviery.

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Mayor Cooper approves continued take-out for beer - but no word on delivery in Tennessee

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Mayor Cooper approves continued take-out for beer - but no word on delivery in Tennessee

Apr 23, 2020

Metro Nashville Mayor John Cooper announced a detailed plan for the staged reopening of restaurants, bars and music venues, as soon as May 1. The real question is: will anyone reopen their dining room on May 1st? You can read the entire Roadmap here.

Initial reactions do not look good if you are in the market for a sitdown meal on May 1.  We only found one restaurant planning to open its dining room on May 1, based upon inquiries we made within the first couple of hours of release of the Mayor’s Roadmap. 

A silver lining is take-out. The first three of the four phases specifically references take-out “alcohol” sales.  The order also specifically authorizes the sale of alcohol at tables.  We think that only applies to take-out beer. Use of the term alcohol is unfortunate.

The Roadmap does not mention delivery. The Metro Beer Board has authorized delivery of beer until May 31, with proper authorization from the Beer Board, but delivery is officially in limbo at the moment. 

The big question is:  Will Governor Lee extend delivery of all alcohol beyond midnight April 30, when his order authorizing alcohol delivery expires. We hear guidance may be forthcoming Friday April 24.

Not only does Gov. Lee’s power apply to the entire state, we believe that only Gov. Lee or the state legislature has the authority to be able to authorize delivery of wine, spirits and high gravity beer. Individual cities have power to regulate beer, but no authority to regulate the sale of wine and spirits at restaurants, bars and other venues.

Although the Roadmap specifically refers to the word “alcohol,” we see the Roadmap as only authorizing take-out of beer.

Beginning May 1, dining rooms at restaurants and “bars serving food from a menu” can open:

At half-capacity Physical distancing in kitchens and dining rooms Screen all employees daily for temperature and respiratory symptoms Employees with 100.4 fever or higher must leave immediately Employees with any symptoms of illness must be tested and stay at home until negative test results Create policies that make it possible for employees to isolate and quarantine Clean facilities Explicit guidelines to maintain hygiene Cloth face masks for employees, but not required for patrons Bar areas to remain closed No live music No self-service or shared condiments

Phase 3 adds these requirements, which appear to be left out of Phase 1, perhaps by oversight:

Require that restaurants clean all surfaces after single use by patron Recommend use of disposable menus

Bars, entertainment and cultural venues cannot reopen until Phase 3. “This includes museums, tours, attractions, bowling alleys, movie theaters.” At half-capacity. Live music is also permitted in Phase 3 for restaurants and bars serving food.

In order to initiate the reopening plan, the city will be required to meet the following criteria:

    •  Proof of a decline or flat cases of COVID-19 over a 14-day period

    •   Adequate testing and PPE capacity in the region

    •   A robust public health infrastructure to conduct contact tracing cases

Mayor Cooper confirmed that the decision to reopen will be data driven, as opposed to date determinative. When Nashville’s Safer at Home order expires on May 1, Metro health officials will evaluate case data and other metrics collected over the past 14 days to determine if there has been a positive, stable improvement necessary to begin Phase One of the reopening plan.

We understand that yesterday's spike in Covid cases was the result of significant increases in the amount of people tested, and that the 14 day period did not restart. We see more testing as a good thing .

Stay tuned for more news as this story develops. 

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Nashville's Roadmap for Reopening Restaurants and Bars

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Apr 23, 2020

UPDATED: May 7, 2020

Mayor Cooper has ordered Phase 1 of Metro Nashville’s Roadmap for Reopening to begin May 11. Restaurants and stores can open at half capacity starting Monday.

The big  question is: how many restaurants will reopen their dining room on the first day? You can read the entire Roadmap here.

Initial reactions did not look good if you are in the market for a sitdown meal on day one.  We only found two restaurants planning to open dining rooms on day one, based upon inquiries we made within the first couple of hours of release of the Mayor’s Roadmap. 

Beginning May 11, dining rooms at restaurants and “bars serving food from a menu” can open:

At half-capacity Physical distancing in kitchens and dining rooms Screen all employees daily for temperature and respiratory symptoms Employees with 100.4 fever or higher must leave immediately Employees with any symptoms of illness must be tested and stay at home until negative test results Create policies that make it possible for employees to isolate and quarantine Clean facilities Explicit guidelines to maintain hygiene Cloth face masks for employees, but not required for patrons Bar areas to remain closed No live music No self-service or shared condiments

Phase 3 adds these requirements, which appear to be left out of Phase 1, perhaps by oversight:

Require that restaurants clean all surfaces after single use by patron Recommend use of disposable menus

Bars, entertainment and cultural venues cannot reopen until Phase 3. “This includes museums, tours, attractions, bowling alleys, movie theaters.” At half-capacity. Live music is also permitted in Phase 3 for restaurants and bars serving food.

In order to initiate the reopening plan, the city will be required to meet the following criteria:

    •  Proof of a decline or flat cases of COVID-19 over a 14-day period

    •   Adequate testing and PPE capacity in the region

    •   A robust public health infrastructure to conduct contact tracing cases

Mayor Cooper confirmed that the decision to reopen will be data driven, as opposed to date determinative. When Nashville’s Safer at Home order expires on May 9, Metro health officials will evaluate case data and other metrics collected over the past 14 days to determine if there has been a positive, stable improvement necessary to begin Phase One of the reopening plan.

From May 1 until May 8, Davidson County health data must show an average of 80 or fewer new cases per day in order to maintain or improve a downward trajectory in the 14 day metric of new cases.

Stay tuned for more news as this story develops. 

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When will Tennessee's bars, restaurants be open for business? Here's our educated guess

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When will Tennessee's bars, restaurants be open for business? Here's our educated guess

Apr 17, 2020

This post is out of date. Look for specifics about reopening at our newer posts at Last Call. 

There has been plenty of speculation about what the new normal will be for dining out after stay-at-home orders are lifted. 

California took the lead in providing some guidance for restaurants. At a press conference on April 14, California Governor Gavin Newsom discussed what the new normal will look like for dining in a restaurant.  As Yoda might say, “Normal, it will be not.”

Precautionary measures include:

Checking customer temperatures Waiters wearing masks and gloves Reducing tables by 50% Disposable menus

Governor Newsome called these “likely scenarios” once stay-at-home orders are lifted.

The California approach may serve as a model to other states trying to navigate the transition to reopening economies.

Tennessee has yet to weigh in on the new normal for restaurants. There are ongoing questions—such as whether continued delivery of alcohol by restaurants will be permitted to continue.

Count on this: the new normal will look different from what we are all used to, and guidance is sure to change as the situation evolves.

The $64,000 Question: When Will Restaurants Open?

Recent Vanderbilt Department of Health Policy coronavirus modeling for Tennessee  and federal guidelines provide insight into the timeline and new normal for Tennessee bars and restaurants. Vanderbilt modeling includes projections for coronavirus peaks under three scenarios: additional reduction, status quo and lifting of social distancing measures.

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Under the status quo scenario, projected hospitalizations in Tennessee peak mid-June.  Status quo means stay-at-home is in place at least through mid-June.

Under federal Guidelines for Opening up America Again, criteria for opening states or regions include:

a downward trajectory of symptoms and either positive tests or documented cases within a 14-day period ; and hospital treatment without crisis care and testing for at-risk workers in the healthcare industry.

Based on the Vanderbilt model, let’s presume that mid-June is June 15. Let’s also presume that the number of people testing positive for COVID-19 tracks the rate of hospitalization.

Federal guidelines require a 14-day period where the number of cases declines. Doing a little math - yes we know math is dangerous for liquor lawyers - 14 days from June 15 is June 29. 

Restaurants will not open until June 29, based on the Vanderbilt projections. All this is guesswork at this point, but June 29 is a long, long time to wait and reopen to 50 percent capacity.

The good news is that other modelling shows Tennessee’s hospitalization peak occurred April 16. We have been tracking the Washington Institute for Health Metrics and Evaluation’s metrics here. But April 30 sounds aggressive for reopening.

Guidelines for Opening up America Again

According to federal Guidelines for Opening up America Again, the reopening of restaurants will involve strict protocols for physical distancing. 

The guidelines include three phases of opening, along with suggested criteria for states or regions to meet to move into phase one initially and from each phase into the next.

The amount of social distancing is not specified and we are skeptical about sporting venues, movie theaters and places of worship reopening in Phase One.

Bars do not reopen until Phase Two under the federal guidelines. 

Guidance for restaurants and bars under each phase are highlighted below.

Phase One

Must satisfy criteria for required 14-day period. Large venues (including sit-down dining, sporting venues, movie theaters) may resume operation under “strict physical distancing protocols.” Bars remain closed.

Phase Two

Must satisfy criteria again for required 14-day period and show no evidence of rebound. Large venues operate with “moderate physical distancing protocols.” Bars may reopen, with limited occupancy.

Phase Three

Must satisfy criteria again for required 14-day period and show no evidence of rebound. Large venues operate with “limited physical distancing protocols.” Bar occupancy may increase.

These phases may be implemented statewide or by county, at Governor Lee’s discretion.

Stay tuned as we learn more about “the new normal.”

How about a little John Hiatt and Back to Normal?

I'm back to normal

(He's going over her)

I'm back to normal

(With his thermometer)

I'm back to normal

(She's getting normal)

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Flaherty & O’Hara Statement on the Coronavirus

Flaherty & O’Hara attorneys and staff are working from home in response to the coronavirus. Although we aren’t physically in our offices, we have remote access and procedures in place to ensure our business continues to be fully functional. Our focus remains keeping our employees safe, while maximizing our ability to meet our clients’ needs without interruption. As we navigate ...

The post Flaherty & O’Hara Statement on the Coronavirus appeared first on Flaherty & O'Hara.

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No COVID-19 tax holiday for sales and liquor by the drink taxes

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No COVID-19 tax holiday for sales and liquor by the drink taxes

Apr 13, 2020

We keep hearing this question from industry members. 

“I do not have to pay sales and liquor by the drink taxes under the Governor’s executive order, do I?”

Not true. All sales and liquor by the drink taxes collected in March, April and subsequent months must be paid over to the state.  If you do not pay the taxes, expect a nastygram like this.

There is one important caveat. 

Wine, spirits and high gravity beer sold to-go or delivered during the COVID-19 pandemic are not subject to liquor by the drink taxes.  The rationale is that to-go and delivery sales are not for on-premises consumption, and therefore, should not be subject to the 15% on-premises tax. All alcoholic beverage sales to go or for delivery are subject to sales tax. 

All this talk of driving around with alcohol reminds us of Meat Loaf’s hit “Paradise by the Dashboard Light”

Well, I remember every little thing

As if it happened only yesterday

Parking by the lake and there was not another car in sight

It is possible that the state will declare a tax holiday, but at this time, make sure you are paying your sales and liquor by the drink taxes as they come due. There is personal liability for these taxes and you do not want to be personally liable.

For the record, liquor and grocery stores do not pay the 15% tax on wine and spirits. They do pay sales tax.

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My bar or restaurant has closed for coronavirus. Now what?

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My bar or restaurant has closed for coronavirus. Now what?

Apr 2, 2020

On the heels of Gov. Bill Lee’s Safer at Home Order, we are seeing a second wave of restaurant closures. Which begs an important question: Should I let the ABC and local beer board know that my business is closed?

Although we have not seen any formal guidance from the ABC or beer boards on temporary corona closures, we do not expect any citations to issue for closed restaurants, bars, hotels and other licensed establishments.

If you are the cautious sort, you may want to upload a letter into your RLPS record documenting that your establishment is closed indefinitely. You can also mail a similar notice to your local beer board.

We have created a handy template for you to use here. The lawyer in us has to say that this is not legal advice. Facts and circumstances can differ and you may want to take a different course of action.

Safer at home during the corona closure, we have been wearing out Jack White’s killer tune “Alone in my Home.”

All alone in my home

Alone in my home

Nobody can touch me

And now, here are a few operational changes at the ABC.

Inspections.

The ABC ceased in-person inspections in the middle of March. ABC agents have the discretion to inspect by telephone, Facetime or other visual aids. We have continued to obtain licenses during the corona closure.

Late fees for Citations.

The ABC is extending the time period for paying or otherwise resolving citations without penalty from 20 days to 80 days. This is a 60-day extension of the normal 20-day period.

Late fees for renewals.

The ABC has granted a 60-day extension for renewals. We encourage restaurants and bars not to wait to until the 60th day after your renewal deadline. If you discover that you have tax issues or other problems with the renewal, you may find yourself in a situation where you are unable to renew within the 60-day extension. In these cases, the ABC has advised that they may issue citations.

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How to deliver beer in Bristol, Chattanooga, Knoxville, Memphis and Nashville during the Corona closure

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How to deliver beer in Bristol, Chattanooga, Knoxville, Memphis and Nashville during the Corona closure

Mar 25, 2020

UPDATED: April 10, 2020

One has to ask: Is imitation the sincerest form of flattery? Bristol, Chattanooga and Knoxville have all adopted the Nashville model for beer delivery.

Bristol became the latest city to authorize delivery, curbside and takeout sales of beer at its April 7 City Council meeting. On-premise, breweries and on-off beer permit holders can deliver inside the Bristol City limits after first informing Lt. Walter Brown, City Beer Board Secretary, and waiting on his confirmation.

Keep in mind that the state-wide delivery order only applies to restaurants, limited service restaurants, and wine-only restaurants. The city delivery laws allow breweries, and hotels and other businesses that do not hold ABC restaurant licenses to deliver beer within city limits.

There also is no food-service requirement with beer delivery, and no restrictions on quantities.

Consistent with the Nashville model, only employees of Bristol beer permit holder can deliver -- meaning no third-party services like UberEats, Post Mates, or DoorDash. Delivery personnel must be 21 years of age or older. The City can revoke permission to deliver beer at any time, if the Bristol Police Department finds evidence they sold beer to a minor or an intoxicated person.

Knoxville adopted the Nashville beer delivery model by emergency ordinance. Attached is a copy of the ordinance

Chattanooga joined the list of cities allowing beer delivery on March 27, 2020. Mayor Andy Burke entered an executive order that essentially adopts the Nashville process. The process is explained in the order (Executive Order 2020-05.pdf).

Memphis was the second city to authorize delivery and to-go beer sales by restaurants. All businesses holding an on-premise beer permit can sell sealed containers of beer to-go, including curbside, drive-through and delivery. It looks like delivery is limited to employees. The motion is attached here. (Memphis Beer Delivery Motion 4845-1834-5144 v1.pdf)

In a spot of good news for carryout, Memphis city officials are bagging downtown meters to allow temporary parking for curbside delivery and takeout.

ORIGINAL POST

The Metropolitan Beer Permit Board of Nashville has enacted an emergency regulation allowing restaurants, hotels and most breweries to apply for a new beer permit to deliver and sell beer curbside and to-go.

Establishments with Tennessee ABC restaurant, limited service restaurant and wine-only licenses have greater privileges under Executive Order, as we explain here.

Nashville beer delivery is the only option for hotels, caterers, premier-type tourist resorts, convention centers and other ABC special license types, as well as beer-only, on-premise permit holders, such as beer bars and breweries that do not hold ABC liquor licenses.

As of posting, we have filed delivery applications for 65 restaurants, hotels and breweries.

Here’s how to exercise delivery privileges in Nashville:

1. Give notice. Before selling to go, curbside or delivering, the Regulation requires notification to the Metro Beer Board via email at This email address is being protected from spambots. You need JavaScript enabled to view it. and providing the following information:

Name of the Permittee

Physical Address of the Permittee

E-mail Address

Phone Number

On or On/Off Premise Beer Permit Number

There is no application fee. The staff will issue a 30-day temporary “on/off” permit that allows the restaurant, hotel or brewery to immediately begin to-go, curbside and delivery of beer. Attached is a copy of the draft Regulation, which was adopted. 

You can start delivering as soon as the beer board responds. Response has been quite brisk, during business hours. The beer board will also e-mail you a new temporary on-off permit, which you should post.

2. Employees only. The emergency Regulation requires that deliveries be made by employees. No delivery of beer by UberEats or other third-party delivery services.

3. Universal carding. The Reg requires mandatory carding by the employee making the delivery, curbside or to-go sale.

4. Drive thru windows. The Reg also authorizes sale of beer at drive-thru and delivery windows.

We find ourselves humming the Talking Heads completely cryptic single:

Once in a Lifetime

Same as it ever was

Letting the days go by

Same as it ever was

Same as it ever was

Stay tuned for more updates.

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Latest updates for alcohol delivery by restaurants in Tennessee

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Latest updates for alcohol delivery by restaurants in Tennessee

Mar 23, 2020

UPDATED: April 15, 2020

Tennessee Gov. Bill Lee extended the executive order allowing drive-thru, carry-out and delivery service of beer, wine and spirits for restaurants. Executive Order 27 extended Executive Order 17. You can do “to-go” and delivery sales of beer, wine and spirits until midnight April 30. Read the original order here.

Restaurants, limited-service restaurants and wine-only restaurants can sell take-out and deliver alcoholic beverages and beer. There is no additional license or permission needed to deliver.

Restaurants can use employees or third-party delivery services such as Postmates and Uber Eats to deliver alcohol. Delivery personnel are not required to have server permit cards or any special qualifications.

Keep in mind that if you are using a third-party delivery service, your restaurant remains liable for sales to minors, intoxicated persons or the violation of any other law.  A restaurant will not be able  to avoid liability by saying the Uber driver did it. 

Since issuance of the order, restaurants and bars have sprung into action across Tennessee to start delivering alcohol with food orders.

We urge folks to keep hustling during these difficult times and check Last Call for updates. The Tennessee ABC has posted FAQs here.

Here is our summary of the rules of engagement for to-go, curbside, drive-through and delivery:

1. Alcohol must be delivered with food. At least one item of food must be sold in every order containing alcohol. The amount of food required is not specified, but given the emergency nature of this order, we encourage restaurants not to play games and count lime slices as food, for example.

Licensees are still required to be responsible. Restaurants can set rules, such as one entrée per two single-serving margaritas. You can always require that customers order a meal or set a minimum dollar amount of food for deliveries.

2. Alcohol must be packaged in a container or bottle with a secure lid or cap. We read this rule to mean that the container must be closed. Closed is not the same as sealed. For example, a lid screwed on the top of a plastic jug is closed. Alcohol does not have to be sealed, meaning you do not have to attach seals like you would find on commercial products at grocery stores.

The ABC advises restaurants to “cover containers in a reasonable manner that would require the consumer to unpackage them for consumption.” For example, we believe a styrofoam container with a lid that does not have a straw hole will work. If all your lids have straw holes, tape the straw holes.

3. Bottles and cans of beer and wine can be delivered, including regular-sized wine bottles. No bottles of spirits or liquor. The ABC has clarified that it considers a single serving to be a beverage containing no more than 16 ounces of beer, nine ounces of wine, or four ounces of spirits, and no more than 16 ounces of total liquid in the serving container. In Bristol, Chattanooga, Knoxville, Memphis and Nashville, where local beer boards have specifically authorized carry out and delivery of beer, these limitations do not apply to beer having an alcoholic content of 10.1 percent by volume. Once properly registered for delivery with your city, growlers are fine in these cities and any other city that has specifically authorized carryout and delivery of beer. Read more about beer delivery here.

4. Restaurants must post a sign with the following notice: “No driver shall consume any alcoholic beverage or beer or possess an open container of alcoholic beverage or beer while operating a motor vehicle in this state.” Although the order is not clear, we advise folks to post the sign on the wall, with your liquor license.

5. Mandatory carding for deliveries. Sales cannot be made to under 21 or intoxicated persons. 

With a third-party delivery service such as Postmates, you should ensure that delivery personnel are properly trained for carding. Some delivery services are not set up to require carding.

Drivers do not have to physically touch an identification to verify age. Because orders are most likely paid in advance, online or via phone, there is no need for drivers to risk potential contamination and make physical content with the customer.

That said, drivers need to ensure that they properly ID. We encourage Redbox carding and closer scrutiny of all Redbox IDs.

6. Drivers must be at least 21 years of age and have a valid driver’s license.

7. Carry out and delivery of alcohol are limited to current operating hours, which is not defined. We advise folks to adhere to the normal sales hours for beer and alcoholic beverages.

8. You can deliver cocktails! As long as the package has a secure lid, we read the order as allowing delivery of margaritas, cocktails and other mixed drinks.

9. Single serving packages only. Although wine by the bottle may be sold, no other multi-serving containers are allowed, under Tennessee ABC guidance here. For purposes of single servings, the ABC says no more than 16 oz. of beer, 9 oz. of wine or 4 oz. of spirits in a container with not more than 16 ounces of total liquid. If your local beer board allows you to sell low gravity beer for carry-out or delivery in greater amounts, then you may do so for purposes of low gravity beer only.  Low gravity beer is less than 8% ABW or 10.1% ABV.

No more carafes of sangria or pitchers of margarita’s to go. You can sell multiple single-serving containers with a meal, although we continue to recommend moderation under this emergency order.

Mini bottles of spirits present a conundrum. State law prohibits the sale of spirits by the bottle. However, Governor Lee’s order specifically authorizes “single servings of alcoholic beverages.”

In our humble opinion, Executive Order 17 allows a restaurant to deliver mini bottles of spirits, provided it is clear that the mini bottle is intended for a single serving. We advise folks to securely tape or otherwise attach a mini bottle of spirits to the mixer. That way, it is abundantly clear that the two items - the container and the mini bottle - are intended to be a single serving. Do not play games and toss twelve mini bottles of tequila in a bag and consider yourself in compliance with the order.

10. Curbside and drive-through. The order does not specifically address curbside and drive-through, but given the intent of the order, we believe it is OK to deliver drinks curbside and through drive-through windows.

The ABC has also clarified that although beer, wine and spirits may be sold at curbside, restaurants cannot stage multiple alcohol deliveries at tables outside the restaurant’s licensed premises. We understand that it is convenient for multiple orders to be brought out for immediate pickup at curbside. Although this is okay for food, alcohol must stay inside the restaurant until the customer or delivery service arrives for pickup.

11. Alcohol must come from the restaurant’s inventory. A restaurant cannot buy or deliver alcohol from a retail liquor store, food store or another restaurant. You must purchase your alcohol from a wholesaler.

12. The executive order only applies to establishments licensed as full-service restaurants, wine-only restaurants and limited service restaurants by the Tennessee ABC. Hotels, caterers, premier-type tourist resorts, convention centers and other special license types cannot deliver or sell alcohol to-go under the executive order.

There are special delivery rules for beer in many cities where local beer boards have established specific guidelines. Here is the process for beer delivery. 

Please note that the rules for beer-only delivery are very different from delivery under an ABC restaurant license. To make matters confusing, you can deliver beer under your restaurant liquor license. We see local beer delivery as really benefitting breweries, hotels and other license types that do not hold an ABC restaurant, limited service restaurant or wine-only restaurant license.

13. Get your beer here. Restaurants do not need permission from their local beer board to deliver under the Governor’s order. If you are a brewery that does not hold a restaurant license, or another license type that would like to deliver beer, please see our post herefor details concerning how to register with your local beer board to deliver beer. Please note that this process does not allow delivery of wine or spirits. Please note that this process does not allow delivery of wine or spirits.

14. Restaurant dining rooms are closed. You cannot pour a beer or drink while guests wait on to-go orders. Food and beverage cannot be consumed on-premises under the order.

15. Collect sales tax. Restaurants do not collect the 15% liquor by the drink tax for all wine and spirits sold to go or for delivery, including bottles and cans of beer, wine and single-serve cocktails. You do have to collect sales tax. Here is the post from Revenue. (link to attached). If you have more tax questions, see our post here.

16. Delivery applies to restaurants statewide, but we urge folks to exercise discretion and not deliver to dry towns and counties. We suspect that the Governor did not intend for delivery to areas that have not approved of liquor-by-the-drink.

17. The Order expires on April 30, 2020. Although it is possible the Governor will extend delivery privileges, the Order expires by its own terms at midnight on April 30.

Click here for the full order.

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Hunker down update for Tennessee, Chattanooga, Knoxville, Memphis, Nashville and other cities

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Hunker down update for Tennessee, Chattanooga, Knoxville, Memphis, Nashville and other cities

Mar 22, 2020

UPDATED: April 15, 2020

Tennessee Gov. Bill Lee issued a stay-at-home order, effective until midnight April 30.

This means all bars and restaurants remain closed in Tennessee, except for takeout, curbside and delivery. A copy of the order is at this link. 

Importantly, we read the order as specifically authorizing liquor stores to remain open.

In describing Food and Medicine Stores, the order includes “other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, prepared food, alcoholic and non-alcoholic beverages.” This includes distilleries and breweries offering product for sale to-go and at curbside.

Hunkered down, safe at home and knowing that a cocktail is available for delivery by just calling a local restaurant finds us singing REM’s immortal hit:

It’s the end of the world as we know it

It’s the end of the world as we know it

It’s the end of the world as we know it

and I feel fine

Here is a summary of local orders, which we will update as we receive information:

Chattanooga. Mayor Andy Berke entered an executive order closing “establishments whose primary business is alcohol service or food service. … Nothing in this order shall be intended to prevent pick-up, delivery or drive-thru service.” Mayor Berke’s proclamation went into effect at midnight on March 19. Mayor Berke mandated additional steps on March 25 to limit community exposure to the virus and protect workers, but pick-up, delivery and drive-thru are still authorized.

Chattanooga suburb East Ridge issued an order closing on-site dining at food and alcohol establishments. Takeout, delivery and drive-thru can remain open.

Franklin. Mayor Ken Moore issued a Stay at Home Executive Order beginning at 12:01 a.m., March 25, and effective for seven days. All but essential business are closed. Restaurants and other facilities that prepare and serve food can be open, but only for delivery or carry out.

Knox County. March 23, the Knox County Health Department issued the Knox County Safer at Home Order, which urges all residents to shelter in place to the extent possible. The order remains in effect for 14 days, subject to extension. Although the order is not specific, there is language that allows “other businesses supporting the food supply” to be open and the order specifically allows delivery. We see this as authorizing takeout and delivery by restaurants.

Memphis. March 23, Mayor Jim Strickland issued an executive order directing all individuals living in the City of Memphis to remain in their place of residence unless engaged in essential activities, essential governmental functions, or to operate essential businesses as defined in the order. Restaurants and other facilities that prepare and serve food are open, but only for delivery or carry out. Memphis has a special beer delivery act. (https://www.wallerlaw.com/news-insights/3522/How-to-deliver-beer-in-Nashville-during-the-corona-closure) In a spot of good news for carryout, city officials are bagging downtown meters to allow temporary parking for curbside delivery and takeout.

Memphis suburbs Germantown, Bartlett, & Collierville issued stay at home orders, which authorize going to a restaurant for takeout, delivery or drive-thru.

Nashville. Chief Medical Director Dr. Michael Caldwell issued Safer at Home Order on March 22, directing residents of Nashville and Davidson County to stay inside their homes and limit all movement outside of their residence beyond what is necessary to take care of essential needs. The city previously closed dine-in service at restaurants. Take-out orders, drive-thru service, curbside pickup, and delivery service are permitted. Nashville has a special beer delivery act. (https://www.wallerlaw.com/news-insights/3522/How-to-deliver-beer-in-Nashville-during-the-corona-closure)

Sumner County.  March 23, Mayor Anthony Holt issued a Safer at Home declaration closing all non-essential businesses. Although the order is not specific, there is language that allows “other businesses supporting the food supply” to be open. We see this as authorizing takeout service by restaurants.

Tullahoma. March 23, Mayor Curlee issued a Shelter at Home order, which imposes a curfew between the hours of 9 p.m. and 6 a.m., during which all persons in the City of Tullahoma shall remain home. The order closed all businesses effective at 6:00 pm on March 24, 2020, except for businesses deemed essential services. Although the order is not specific, there is language that allows “other businesses supporting the food supply” to be open. We see this as authorizing takeout service by restaurants.

Wilson County. March 25, Mayor Randall Hutto issued a letter to residents declaring a State of Emergency. Residents should not eat or drink onsite at restaurants or bars, which should not be open except for drive-through, pickup, carry-out or delivery service for food and drink. Lebanon and Mt. Juliet had already declared states of emergency with similar restrictions.

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Tennessee distilleries do their part for hand sanitizer shortage

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Tennessee distilleries do their part for hand sanitizer shortage

Mar 21, 2020

The Tennessee Distiller’s Guild is featuring 15 distilleries that are producing hand sanitizer.  At the proper strength, drinking alcohol makes a terrific sanitizer. 

Some of the distilleries have been donating sanitizer to worthy causes, a particularly admirable deed during this time of shortage.  Others have product for sale at the distillery and retail outlets. 

The Tennessean has good coverage.

Here's a list of Tennessee Guild Distillery members turning hooch into hand sanitizer: 

Big Machine Distillery, Lynnville and Nashville

Chattanooga Whiskey, Chattanooga

Corsair Distillery, Nashville

Doc Collier Moonshine, Gatlinburg

Gate 11 Distillery, Chattanooga

Jack Daniels, Lynchburg

Lost State Distilling, Bristol

Nashville Craft Distillery, Nashville

Nelson’s Greenbrier, Nashville

Old Dominick Distillery, Memphis

Old Forge Distillery, Pigeon Forge

Old Glory Distilling Co., Clarksville

Picker’s Vodka, Nashville

Sugarlands Distilling Co., Gatlinburg

Tennessee Legend Distillery, Nashville, Newport and Sevierville

If you visit a local distillery, make sure you support the industry and pick up a nice supply of craft spirits for your bar.  Cheers.

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Tennessee Governor orders bars, restaurants closed except for delivery, takeout

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Tennessee Governor orders bars, restaurants closed except for delivery, takeout

Mar 20, 2020

UPDATED: April 15, 2020

Tennessee Gov. Bill Lee has ordered all bars and restaurants closed in Tennessee except for takeout and delivery. The order will remain in effect through April 30.

“The COVID-19 pandemic has created both an economic and a health crisis and our response must continue to address both aspects,” Lee said in a statement. “Our goal is to keep the public, especially vulnerable populations, safe while doing everything possible to keep Tennesseans in a financially stable position.” 

Original post:

The Metropolitan Beer Permit Board of Nashville has enacted an emergency regulation allowing restaurants, hotels and most breweries can now apply for a new beer permit to deliver and sell beer curbside and “to go.” 

As of posting, we have filed delivery applications for 59 restaurants, hotels and breweries, and many have already been issued permits.

Meanwhile, earlier today, Metro Nashville Chief Medical Director Dr. Michael Caldwell closed dine-in service at restaurants. Take-out orders, drive-thru service, curbside pickup, and delivery service are permitted.

In addition, Chattanooga Mayor Andy Berke entered an executive order closing “establishments whose primary business is alcohol service or food service. … Nothing in this order shall be intended to prevent pick-up, delivery or drive-thru service.” Mayor Berke’s proclamation went into effect at midnight on March 19.

Finally, Memphis Mayor Jim Strickland declared a civil emergency and ordered all restaurants to close their dining rooms and offer takeout or delivery service only. Bars are closed. In a spot of good news for carryout, city officials are bagging downtown meters to allow temporary parking for curbside delivery and takeout.

The Tennessee Alcoholic Beverage Commission held a special meeting at 2 p.m. today. Although there was discussion about wine and spirits delivery by restaurants, hotels and bars, Director Russell Thomas believes that delivery will require an action by the governor. 

To date, Nashville is the only city that we have seen take steps to authorize delivery and to-go beer sales by restaurants.

How to deliver beer in Nashville

Before selling to go, curbside or delivering, the Regulation requires notification to the Metro Beer Board via email at This email address is being protected from spambots. You need JavaScript enabled to view it. and providing the following information:

Name of the Permittee Physical Address of the Permittee E-mail Address Phone Number On or On/Off Premise Beer Permit Number

There is no application fee. The staff will issue a 30-day temporary “on/off” permit that allows the restaurant, hotel or brewery to immediately begin to-go, curbside and delivery of beer. Attached is a copy of the draft Regulation, which we understand was just adopted. READ:  Beer Board Delivery Regulation

The emergency regulation requires that deliveries be made by employees. No delivery of beer by UberEats or other third-party delivery services.

The Reg requires mandatory carding by the employee making the delivery, curbside or to-go sale.

The Reg also authorizes sale of beer at drive-thru and delivery windows.

We find ourselves humming the Talking Heads completely cryptic single:

Once in a Lifetime

Same as it ever was

Letting the days go by

Same as it ever was

Stay tuned for more updates.

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No hospitality industry tax holiday in Tennessee

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No hospitality industry tax holiday in Tennessee

Mar 18, 2020

With the hospitality industry devastated from the coronavirus, we keep hearing the same refrain from restaurant, bar, hotel and venue owners:

Do I have to pay my LBD and sales tax this month?

Unless the State of Tennessee provides tax relief for sales and liquor-by-the-drink taxes, our response is yes.  You have to pay your taxes.

Sales tax comes due on the 20th of the month.  Liquor-by-the-drink tax was due on the 15th. 

We believe the state missed a tremendous opportunity to help the hospitality industry weather the corona crisis.

There is personal liability for failing to pay these taxes.  We do not want to see anyone become personally liable for taxes, particularly during pressing financial times.

Keep in mind that a business is collecting sales and liquor by the drink taxes for the state.  The state views the tax collections as the state’s money.  If you divert tax collections to pay other bills, such as staff, food supplies or rent, you have essentially stolen from the state.  The law is stacked in favor of the state on this point. 

We hear the Mississippi Sheiks classic 1934 recording of Sales Tax Blues:

Say Walter, we need some cigarettes. Let's go in and get a pack.

Okay!

Hello boys, what can I do for you?

I'll have a pack of cigarettes.

Alright. Here you are. Be three cents more though.

What's that for?

Sales tax. Haven't you ever heard of sales tax?

Sure haven't.

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