COVID-19 Legal Update: Beer and Wine Deliveries and To-Go Orders for Oregon Businesses

Stoel Rives LLP

[co-author: Bernard Kipp]

Today, Governor Kate Brown issued Executive Order 20-07, which includes measures to flatten the curve of coronavirus transmission in Oregon, including an order limiting restaurants, bars, tasting rooms, and other establishments that offer food or beverages for sale to carry-out and delivery only with no on-site consumption permitted. These measures went into effect on March 17 and will last until April 14, 2020 unless extended. The Oregon Liquor Control Commission (“OLCC”) is expecting to issue emergency guidance on to-go and same-day delivery options for alcohol beverages this week. In the meantime, while we await further agency guidance, this alert from Stoel Rives’ beverage attorneys explains how Oregon businesses can sell beer and wine to-go now or going forward.

To-Go Sales for Off-Premises Retailers

Holders of Oregon’s Off-Premises Sales or “O” liquor license – typically grocery stores, convenient stores, bottle shops, delis, and other markets – already have to-go sales privileges. If you hold an O license, your business can sell the following items to-go:

  • Sealed containers of malt beverages, wine, and cider.
  • Sealed containers of malt beverages that can hold up to 2 ¼ gallons.
  • Growlers supplied by the customer of malt beverages, wine, and cider.

In addition, O license holders automatically have the privilege to make next-day delivery of malt beverages, wine, and cider ordered by a customer.

To-Go Sales for On-Premises Retailers

Right now, holders of an Oregon Full On-Premises Sales (“F-COM”) or Limited On-Premises Sales (“L”) liquor license – typically restaurants, bars, taverns, and hotels – are not allowed to sell sealed bottles of wine or beer to-go unless the business also holds an O license at the same business location. This could potentially change based on forthcoming guidance from the OLCC. Regardless, the Governor’s Executive Order makes clear that any off-premises sale of alcohol beverages must comply with ORS 471 et seq. For the time being, however, F-COM license holders are limited to selling only growlers of malt beverages, wine, and cider brought in by a customer to-go and L license holders are limited to selling only kegs of malt beverages and growlers of malt beverages, wine, and cider brought in by a customer to-go.

To-Go Sales for Breweries and Wineries

If you are licensed as a Brewery (“BRW” or “BRWNC”) or Brewery-Public House (“BP”), in Oregon, your business is also already approved to make the following to-go sales:

  • Sealed containers of malt beverages, wine, and cider.
  • Growlers supplied by the customer of malt beverages, wine, and cider.
  • Kegs of malt beverages.

Licensed Wineries (“WY” or “WYNC”) can also sell sealed containers and growlers supplied by the customer of malt beverages, wine, and cider to-go, but cannot sell kegs.

Similar to the O license discussed above, breweries, brewpubs, and wineries are also automatically afforded the privilege to make next-day deliveries of the malt beverages, wine, and cider to customers.

Same-Day Deliveries of Alcohol

Eligibility
Only certain Oregon liquor license types are eligible to make same-day deliveries of beer, wine, and/or cider to Oregon residents. Those licenses types are:

  • Off-Premises Sales
  • Brewery
  • Brewery-Public House
  • Winery
  • Grower Sales Privilege (limitations apply – please contact Stoel Rives attorney for more information)

Getting Approval to Make Same-Day Deliveries
Eligible licensees must apply to, and receive approval from, the OLCC prior to making same-day delivery of malt beverages, wine, or cider. To obtain approval, you can submit a Same-Day Delivery form to the OLCC by mail or fax or contact a Stoel Rives beverage attorney for assistance. The OLCC does not charge a separate fee to add the same-day delivery privilege.

Considerations When Making Deliveries
If your business already has approval to make same-day deliveries or you’re thinking about making same-day deliveries to Oregon residents, we encourage you to call a Stoel Rives beverage attorney and keep the following in mind:

  • The OLCC imposes specific hours during which same-day deliveries are allowed and volume limits on the amount of beer, wine, and/or cider that can be delivered to a customer. For details on these requirements, view the OLCC’s Guide to Delivering Alcohol to Consumers in Oregon available here.
  • Alcohol must be factory sealed in bottles, cans or other like packaging.
  • Deliveries may only be made to a home or business that has a permanent street address.
  • Licensees must retain alcohol delivery records for a minimum of 18 months.
  • The delivery person must verify the age of the person accepting delivery before handing over alcohol and cannot deliver to any person who shows signs of intoxication.
  • The delivery person must obtain the signature of the customer that receives the delivery of beer, wine, or cider.
  • Additional rules apply if you will be using a for-hire carrier to make deliveries on your behalf.
  • If you’re using an e-commerce or mobile app business to fulfill customer orders, keep in mind that you, as the licensee, must receive and control all money related to the sale of alcohol.

Parking Lot Pickup

Licensees that have been approved for same-day delivery as discussed above are also allowed to “deliver” malt beverages, wine, and cider to Oregon residents in the licensee’s parking lot or other adjoining area provided all of the following are met:

  1. The parking lot or other outdoor area is contiguous to the licensed premises;
  2. The parking lot or other outdoor area is under the licensee’s control (owned or leased);
  3. The licensee follows all delivery requirements, including:
    • Verifying that the person receiving the alcohol is at least 21 years of age;
    • Verifying that the person receiving the alcohol is not visibly intoxicated; and
    • Complying with the OLCC’s delivery hours and volume limits.

A Note on Spirits

Liquor stores that sell spirits remain open for business in Oregon. Retail sales agents and distillery retail outlet agents should keep in mind that shipping requests by phone, internet, etc. are prohibited. Additionally, spirits may not be delivered directly to customers by a retail agent. In-person purchases may, however, be shipped to Oregon residents that are at least 21 years of age but must use an approved for-hire carrier.

Social Distancing Protocols

For businesses that choose to offer to-go or delivery serves, Governor Brown is requiring adherence to social distancing protocols of at least three feet between customers ordering, waiting, or in line, consistent with guidance from the Oregon Health Authority.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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