Illinois Liquor Control Commission (ILCC) issued guidance on March 29th on whether bars and restaurants could sell cocktails to-go and for delivery in their non-original package. ILCC decided that it would not make an exception during this emergency and allow for to-go cocktail sales.
The COVID-19 crisis has thrown another wrinkle into the system, rules are temporally changed to meet an emergency happening at break neck speed! I previously sat in the chair of being a regulator. And I know that making decisions are often difficult because one wrong move can open the pandora’s box in a heavily regulated industry. You want to say yes to businesses but often times you are forced to say no! That is the tough job of a regulator.
Here is why I respectfully disagree with their decision.
Illinois’ decision on cocktail sales to-go
Numerous states and localities changed their rules temporarily by issuing orders allowing for pre-mix cocktail sales to go. These included the states of California, Florida, and Nebraska, and New York City.
The temporary changes were made for the emergency time period and were made because of the economic harm COVID-19 has caused to restaurants.
Illinois provided 3 major grounds for rejecting an emergency change to this rule: 1. Vehicle Code Container Laws/Driving Under the Influence; 2. Sanitation/Health Concerns; 3. Illinois Local Authority.
Vehicle Code Container Laws/Driving Under the Influence
The ILCC cites to §11-502(a) of the Illinois Vehicle Code which states that: “it is illegal for any driver to transport, carry, possess, or have any open alcohol container in the passenger area of any motor vehicle upon a highway in Illinois. Open alcohol includes, but is not limited to, open beer, wine, liquor, and champagne”
The ILCC states that because Illinois and many localities define container to mean original packaging, a to-go purchaser or delivery driver would violate state and local laws by purchasing mixed drinks that are not in the original container.
Further, it states that: “The State Commission, through the Illinois Liquor Control Act, does not have the authority to unilaterally exempt bars and restaurants from the requirements of the Illinois Vehicle Code. The prohibition against having an open container of alcoholic liquor in a vehicle discourages drinking in a vehicle and gives law enforcement officials the necessary tools to help contain the intoxicated driving.”
However, state law does not require that all alcohol to go be in original packages. For many years the state has allowed brewers to fill growlers and last year extended the privilege by allowing independent retailers to fill growlers of beer they did not make on-premise.
The issue is not whether something is in the original package, as there is an allowance for sales of non-original packaged sales under law, the issue is whether the container is open in the car.
If the pre-mixed cocktail is sealed the same way as growler or crowler, then it does not constitute open alcohol under Illinois law. As such, a properly sealed pre-mix cocktail, using the sealing methods of a growler, would not violate the open container prohibitions of the Illinois Vehicle Code.
The ILCC indicates that there are sanitation and health concerns in selling wine and spirits in its non-original container. However, these sanitation and health concerns were used as a justification for not expanding growler sales to other retailers for numerous years. Now that the sales have expanded beyond the manufacturers borders to other retailers or brewers, we have not heard of widespread problems.
I agree with ILCC that retailers must comply with every ILCC sanitation requirement. If retailers comply, which they are required to by their license, then health and sanitation concerns are greatly reduced.
Illinois Local Authority
ILCC states that “In contrast to other states, any statement made by the Illinois Liquor Control Commission allowing the sale of premixed cocktails is subject to local rules and ordinances which could cause lack of uniformity and unfair competition in the marketplace.”
But this could also cause localities that don’t want to allow pre-mix sales to hold power over localities that want to allow this. For example, if Chicago wants to allow the sales of pre-mixed alcohol during an emergency, should the concern of locals in a small town 300 miles away from Chicago, decide this issue?
I think in times of emergency, locals should be allowed to have more power over these decisions, which is consistent with ILCC policy.
The state liquor regulator always has a tough job and we should respect their decision and at the same time point out where we disagree.
In reading their bulletin, I respectfully disagree with their conclusions. I don’t believe that alcohol sold in a sealed container is open alcohol in violation of the Illinois Vehicle Code, neither do I believe that allowing cocktails to-go would lead to major sanitation issues, as expanded growler sales have shown this is not the case.
We respectfully ask ILCC to reconsider their position. And I want to thank all who are advocating for restaurants during this hard economic time.
Great article, Sean!
Thanks Eric for the kind words
Thanks for this Sean.