During a crisis, everyone has their own definition of what is essential. Given our current “unprecedented times,” states and local governments are trying to balance support for breweries and restaurants with public health concerns. How governments across the country legally codify this is causing headaches—while businesses hang in the balance.
In the city of Durham, North Carolina, for example, breweries and bottle shops scrambled to react to text on the city’s website that was updated the weekend of April 3, which unexpectedly deemed them non-essential businesses. It ordered breweries to not only cease to-go sales but to stop manufacturing beer as well. (The regulation has since been amended, but not before it sowed plenty of confusion and panic.) Just a few words in a city law could have cut off breweries’ revenue at a time when these small businesses are barely staying above water.
At the same time local governments are rewriting alcohol regulations in response to the COVID-19 pandemic, frantic customers and businesses have proven they’re willing to break the law to get their hands on alcohol—or to keep beloved businesses afloat. This comes at a moment when cities and civilians alike are promoting the need to support local entrepreneurs any way possible.
Desperate measures have fast become the new normal.
In Pennsylvania, where the state ordered all liquor stores to close March 16, drinkers are illegally buying booze in neighboring states. In Texas, some bars and restaurants are illicitly selling to-go cocktails after the state loosened certain alcohol statutes. In Chicago, people are congregating outside liquor stores like makeshift social clubs, prompting Mayor Lori Lightfoot to issue a 9 p.m. closing time on such stores. Elsewhere, rumors of liquor stores emptying kegs into customers’ growlers out of the back of trucks swirl around the internet.
If this sounds like the Wild West, it’s not far from it. Lawmakers must act quickly to keep small hospitality businesses from permanent collapse, but they must also tread carefully as citizens’ health and jobs hang in the balance. The rules are changing fast, and not everyone is playing by them.
Misinformation began to spread quickly through Durham’s beer community last weekend. That’s when the city’s website suddenly declared breweries non-essential businesses, a reversal from weeks prior. Elsewhere on the city’s website, text indicated that federally defined essential businesses—which includes breweries—could remain open.
Scrambling, brewery owners called each other and the state’s brewers guild asking for clarification. Some chose to continue selling beer despite the apparent order not to do so; others, including Barrel Culture Brewing and Blending, announced they would close in accordance with the directive. (Barrel Culture normally isn’t open Monday and Tuesday, so owner Caroline Barbee says it was an easy decision for the brewery to close and await further guidance.)
Then, a Durham City Council meeting on Monday reversed the decision to categorize breweries as non-essential—basically reversing the reversal. The directive on the city’s website was subsequently amended to remove mention of breweries altogether. Barrel Culture reopened for retail sales Wednesday.
“I truly believe we would not have gotten this order amended so quickly without the help from everyone in this industry, near and far,” Barbee said via email. “Ideas were swirling, we had so many people reach out to help us—it was very humbling.”
Durham clarified its laws after just a few days without major economic impacts, but the confusion highlights just how delicate small breweries’ situations are in the wake of COVID-19. New Jersey’s breweries know this all too well. There, Governor Phil Murphy on March 16 amended a law to allow breweries to make home deliveries. Then he prohibited it again on March 21. Then Murphy allowed it again on March 30. All these changes took place within the span of two weeks.
“We are thrilled that delivery is now allowed again,” Bob Hochgertel of King's Road Brewing Company in Haddonfield, New Jersey, told northjersey.com. “It could make the difference for some of these breweries as to whether they are open when this whole thing is over.’’
New Jersey breweries finally got the results they’d wanted—again. But it’s hard to play a game when the rules could change at any time, and your entire business is on the line.
Texas faces its own struggles in response to changing liquor laws, and there, some residents and businesses are responding with less-than-legal measures. Restaurants and bars say they’re just trying to keep afloat any way they can.
“I have some clients that say they’re dead in the water,” says Austin-based lawyer Kareem Hajjar, who has represented bars and restaurants since 2004. “Say you’re a beer bar and people are coming to you saying they want to buy a burger and a growler of their favorite beer to-go. You can’t sell it to them.”
That’s because on March 19, the Texas Alcoholic Beverage Commission (TABC) issued a temporary waiver allowing restaurants and bars that hold a mixed-beverage permit to sell alcoholic beverages to-go—with a few provisions. Most controversially, those drinks must remain sealed in the manufacturer’s original packaging. Beers must be in cans; wine must be in unopened bottles; and liquor must be in factory-sealed containers no larger than 375 milliliters. A bar or restaurant can’t sell a customer a margarita, for example, because the tequila isn’t in its original package. Ditto growlers of beer.
But economic stimulus packages haven’t acted quickly enough to help restaurants, so some are getting desperate—and yes, breaking the law.
Social media posts show restaurants offering to-go margaritas or bars selling crowlers filled from their draft lines. Hajjar says he doesn’t condone breaking the law, but he’s adamant that the governor and TABC should amend them so bars and restaurants can sell alcohol in containers sealed by the manufacturer or retailer. He says dire economic times necessitate a temporary change to TABC regulations to allow for to-go cocktail or draft beer sales.
“They’re doing it out of utter desperation to save their businesses,” Hajjar says. “That’s why I’ve been vigilant, contacting restaurants on social media to say, ‘Stop doing this; you’re taking a great risk.’”
He’s sure TABC is monitoring social media just like he is, and he says restaurants have been warned and cited for violations already.
Hajjar launched a Facebook group called Margs For Life TX to rally support around allowing to-go sales of retailer-sealed alcohol. He’d like to see Texas follow other states, like Ohio, in allowing sales of beer or cocktails not in original manufacturer packaging. Explaining the decision to allow such sales, Mikaela Hunt, a spokeswoman for the Ohio Department of Commerce, told Cleveland.com: “The additional revenue could save a job or a business.”
That’s exactly why Hajjar says he’s pushing for changes.
“This is not an opportunistic ask to the governor. This is a desperate ask to the governor,” he says.
So far, neither the governor nor the TABC has relented. Hajjar blames lobbying efforts from beer wholesalers resistant to this change, as well as regulators’ concerns about irresponsible consumption. The latter worries, he says, are addressed by existing laws against drunk driving and against open containers in vehicles. The faster the laws adapt to make these types of sales legal, he says, the better for Texas’ small businesses.
“If people cannot put their legislative agendas aside right now to save restaurants, then everybody loses. This industry is not coming back in the way that people think it is.”
The financial situation for breweries, bars, and restaurants dims each day that on-premise sales remain off-limits. Owners are told to sit tight, to wait for guidance that’s never quick enough in coming. They’re contending with mounting bills, declining revenue, and employees depending on paychecks to feed their families. It’s no wonder that, given such desperation, some—intentionally or not—color outside the legal lines. When those lines are subject to change, the temptation to do so is even greater.
Consumers, too, have quickly abandoned any expectations of “business as usual.” Nothing about the present feels ordinary, and why should it? The ways drinkers purchase and consume alcohol have changed rapidly within the past month, and it’s naive to expect that the toothpaste can be pushed neatly back in the tube.
Rules and regulations within the alcohol industry are more easily tossed aside during this crisis. It remains to be seen whether they’ll return to pre-COVID-19 standards once the worst is past—whenever that may be.
Words by Kate Bernot