Restaurants May Sell Alcoholic Beverages at Outdoor Table Service, With Approval

Conn Kavanaugh

As of yesterday, June 8, 2020, Massachusetts restaurants have begun to reopen from the COVID-19 quarantine for outdoor, on-premise dining; a long awaited moment for restaurant owners and workers throughout the Commonwealth. The reopening brings questions for restaurants – particularly those holding on-premise liquor licenses – about operating procedure in a post-lockdown world. For example, may a restaurant that has a liquor license, but that does not normally offer outdoor seating, sell alcoholic beverages as part of its outdoor service? Must the restaurant gain approval of its local licensing authority (LLA) to do so? Must it gain approval of the Massachusetts Alcoholic Beverages Control Commission (ABCC) to do so? These questions and more are answered below.

As a threshold matter, a Massachusetts restaurant with an on-premise liquor license is only permitted to sell alcoholic beverages on its licensed premise, both pre-COVID-19 and now (there are certain exceptions of course, which we will set aside for this advisory). As part of the licensing process for an on-premise liquor license, restauranteurs must carefully describe to their LLA the dimensions of the premises that the license will cover. If the licensee later decides to expand or otherwise amend the licensed premises (such as to include an outdoor patio), it must first seek approval from the LLA. Once approved, the LLA will send the application to the ABCC for its independent approval. So, in the old days (of three months ago), a restauranteur whose liquor license did not include an outdoor area would not have been permitted to sell alcoholic beverages in that area until it first received approval from its LLA and then from the ABCC. Obtaining those approvals could take ample time and planning.

The rules are now relaxed, temporarily, for the benefit of licensees. Pursuant to Governor Baker’s orders, LLAs have been given the authority to expand on-premise licensed premises for outdoor seating via an expedited process. On application from the licensee, the LLA may alter the description of the licensed premises to expand for outdoor seating that the LLA deems “reasonable and proper.” In addition, the LLA need not provide advanced notice to abutters or hold a public hearing before issuing approval. The LLAs must, however, continue to follow the ABCC’s 2015 guidelines for extending licensed premises to patio and outdoor areas.

Also benefitting licensees is that ABCC approval is not required on these expedited applications. Once the LLA approves, the amended license is issued without further ado. This should further decrease administrative delays before restaurants may begin serving alcoholic beverages as part of outside service.

Under these relaxed rules (which are only effective through November 1, 2020, unless extended further) how can restaurants maximize their chances of gaining approval with their LLA for their outside seating proposals?

First and foremost, applicants should ensure that their applications are complete, address any criteria required by their particular LLA, and be free from mistakes, typos, and errors. LLAs statewide will be inundated with applications this week, so applicants should put their best foot forward from the get go to prevent unnecessary delays.

Second, applicants should review and comply with the ABCC’s 2015 guidelines governing licensure of outdoor areas. Restauranteurs should ensure, for example, that they have a lease or other document showing a right to occupy the proposed outdoor area. 

Third, applicants should do the necessary to obtain approval before selling alcoholic beverages in the outdoor area. An LLA will be much more likely to consider an application favorably if the licensee has not first attempted to flout the rules. 

Fourth, the applicant should give some thought to why expansion of the licensed premises to the outdoor space is “reasonable and proper.” Although LLAs will interpret that phrase on a case by case basis, applicants should ask themselves common sense safety questions about the proposed space, both related to the pandemic and to the outdoor space itself. For example, if the outdoor space typically is used as a parking lot, will customers be safe from traffic? How close is the outdoor space to a roadway? Where will customers park, and will they disturb surrounding residential areas if they are looking for parking? How are the outdoor premises enclosed, and by what type of barrier? Is the space large enough to accommodate state-mandated social distancing protocols? Finding answers to these questions now will save applicants time if they arise during the application process.

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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Conn Kavanaugh

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