Will Cheek's Last Call Blog

A Blog About Alcohol and Beverage Law

Will Tennessee make alcohol delivery permanent for restaurants?

blog

Jan 25, 2021

Tennessee state Rep. Bob Ramsey has introduced state legislation that makes delivery of alcoholic beverages by restaurants, hotels and other liquor by the drink licensees “permanent” — at least for three years. Download a copy of the legislation here. Upon a quick reading, the legislation appears to be modeled after Governor Lee’s emergency orders that legalized delivery during the pandemic

We hear Stevie Wonder’s catchy refrain:

Ooh baby, here I am

Signed, sealed, delivered, I'm yours, I'm yours

There is one notable departure from emergency delivery of alcohol. The legislation attempts to shield license holders from all “conduct” of a third-party delivery service driver. This would appear to be an effort to allow license holders to escape fines and suspensions for drivers delivering alcohol to minors and intoxicated persons, for example.

The proposed legislation does not contain any penalties for drivers that deliver to minors or otherwise violate liquor laws. Keep in mind that most restaurant delivery services do not hold any license with the ABC and are not required to provide any training to drivers for the delivery of alcohol. The ABC and beer boards do not have direct jurisdiction over these delivery services and their drivers.

The legislation also does not correct an apparent deficiency in the law for sale to minor stings using web and app ordering services. To place an order for alcohol, ordering services universally require a click-through that the individual placing the order is 21 or over. As we understand current law, an under-age law enforcement officer cannot lie about their age. An under-age cadet cannot legally place an on-line order for delivery of alcohol, preventing law enforcement from conducting routine age-compliance checks.

Stay tuned for more about the delivery bill and other legislation by subscribing to Last Call.

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Tennessee extends alcohol carryout and delivery through February 27

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Dec 26, 2020

Tennessee Gov. Bill Lee has extended the executive order allowing carryout and delivery of beer, wine and spirits for restaurants.

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.

Lee extended the privilege through to 11:59 pm February 27, which brings welcome certainty to an industry battered by the pandemic.

Lee continued the state of emergency for the longest amount of time under state law.  Health departments in Davidson, Hamilton, Knox, Madison, Shelby and Sullivan counties will retain the discretion to implement local restrictions, including mask requirements and capacity limitations.

Lee also extended remote notarization and witnessing of documents, and allowed government meetings to take place electronically, subject to certain transparency safeguards. This means beer boards and the ABC can continue to meet via Zoom and WebEx.

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

Drinks must be ordered at the restaurant and cannot be taken off-premises. Either you order your drink to go - or for consumption at the restaurant.

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Tennessee extends alcohol carryout and delivery through April 28

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Dec 26, 2020

UPDATED: Feb. 26, 2021

Tennessee Gov. Bill Lee has extended the executive order allowing carryout and delivery of beer, wine and spirits for restaurants.

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.

Lee extended the privilege through to 11:59 pm April 28, which brings some needed stability to an industry battered by the pandemic.

Lee continued the state of emergency for the longest amount of time under state law.  Health departments in Davidson, Hamilton, Knox, Madison, Shelby and Sullivan counties will retain the discretion to implement local restrictions, including mask requirements and capacity limitations.

Lee also extended remote notarization and witnessing of documents, and allowed government meetings to take place electronically, subject to certain transparency safeguards. This means beer boards and the ABC can continue to meet via Zoom and WebEx.

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

Drinks must be ordered at the restaurant and cannot be taken off-premises. Either you order your drink to go - or for consumption at the restaurant.

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Metro Nashville makes beer delivery permanent

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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 This email address is being protected from spambots. You need JavaScript enabled to view it. 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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How to card minors for alcohol sales in Tennessee

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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.

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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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Fox eats crow over Mayors handling of downtown bar closures

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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.

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

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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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Waller liquor team welcomes Emme Craig

News & Insights

Dec 31, 1969

Related Posts

We want to hear from you.

SEND US A MESSAGE

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How to expand your restaurant to include additional exterior space

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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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10 P.M. closing time for all Nashville bars and restaurants

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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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How does the sales tax holiday work for restaurants and bars?

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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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Nashville bars shuttered, restaurants reduced to 50% capacity and bar seating closed

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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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Bending COVID-19 rules until they break

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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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Nashville enters Phase 3 beginning Monday June 22

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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

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Will Metro Nashville Beer Board enforce health violations for COVID?

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Jun 16, 2020

Folks are all abuzz about the June 18, 2020 “Emergency Meeting” of the Metro Nashville Beer Board.  The Beer Board has cited the following: 

Moxy Downtown Kid Rock’s Broadway Brewhouse Downtown Nudie’s

Click for a copy of the notice of the meeting

Bar owners are seemingly chanting a uniform query:  How can the Beer Board do this? 

Although we enjoy zealously defending bar owners, in this case we believe the Metro Beer Board has the authority to enforce health laws.  There are a number of provisions in the Metro Code that support the issuance of a fine or suspension or revocation of a beer permit. 

Like almost every other beer board in the state, the Metro Beer Board has general enforcement authority over public health, safety and morals. 

We understand constitutional concerns. This is, after all, the United States of America. However, we see these as better suited for the courts or the ballot box; rather than beer boards.

There has been considerable chatter about the blanket ban against bar seating.  Although we concur with our buddy Barrett Hobbs that a bar can be set up to be safely socially distant, we believe the Health Department is attempting to issue guidelines that are simple to understand and clear to enforce. 

We find that businesses sometimes respond to enforcement actions with a similar refrain:  “Well, I had no idea . . .”  It is easy to understand a rule that closes seating at bars.  No explanation is needed. 

Although we can envision different rules to protect health safety, the Health Department is the ultimate arbiter of public safety and we find ourselves deferring to their judgment.

Here is our thinking concerning provisions that support the Beer Board citing restaurants and bars for health violations. 

7.08.040 - Application—Requirements and conditions. We look at these requirements as being continuing duties; not just at the time you apply.

B. To be eligible for a permit, the applicant shall establish the following: 1. That no beer will be sold except at places where such sale will not cause congestion of traffic or interference with schools, places of worship, or other places of public gathering, or otherwise interfere with public health, safety and morals;

7.08.090 B. No permit shall be issued to any person for a location which fails to comply with any health ordinances or any regulation of the department of health or which would violate any zoning ordinance of the metropolitan government.

7.08.110 - Suspension and revocation of permit—Authority.

A. The metropolitan beer permit board shall have the power to revoke or suspend, and shall be charged with the duty of revoking or suspending, any permits issued by it, upon notice to the permittee and a hearing thereon, for any violation of any provision of state law regulating the sale, storage and transportation of alcoholic beverages or for any violation of any provision of this code or any other ordinance of the metropolitan government or of any private act, county court resolution or City of Nashville ordinance which has the effect of an ordinance of the metropolitan government regulating beer or other intoxicating beverage

And last but not least:

7.08.150 - Suspension and revocation of permit—Civil penalty options.

B. Revocation, suspension or imposition of a civil penalty may be made where it appears satisfactorily that the premises of any person, firm or corporation holding a beer permit under this chapter are being operated in such manner as to be detrimental to public health, safety and morals.

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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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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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