“Cocktails To-Go” Laws Extended Temporarily

Business and Professions Code section 23401.5 applies to the holder of an on-sale license that is issued for a bona fide public eating place that has off-sale privileges. For example, this includes Type 41, Type 47, and Type 75 licenses. It also applies to a licensed beer manufacturer, licensed wine manufacturer, or licensed craft distiller that operates a bona fide public eating place at its premises of production.

To sell distilled spirits or wine for off-site consumption as authorized by these laws, the licensee must have on-sale wine or distilled spirits privileges. For example, a Type 41 license cannot sell distilled spirits pursuant to these laws since that license type does not provide distilled spirits privileges.

A manufacturer-sealed container is a container, such as a bottle or can, that is filled and sealed by the manufacturer of the alcohol. A nonmanufacturer-sealed container (to-go) is a container filled by the retail licensee that has a secure lid or cap that is sealed in a manner designed to prevent consumption without removal of the lid or cap by breaking the seal. A nonmanufacturer-sealed container is considered an “open container” if transported in a motor vehicle. In addition to other requirements, licensees selling nonmanufacturer-sealed alcoholic beverages to-go must post a notice that states the following:

“Alcoholic beverages that are packaged by this establishment are open containers and shall not be transported in a motor vehicle except in the vehicle’s trunk or, if there is no trunk, the containers shall be kept in some other area of the vehicle that is not normally occupied by the driver or passengers. This does not include a utility compartment or glove compartment (see Vehicle Code Section 23225). Additionally, these beverages shall not be consumed in public or in any other area where open containers are prohibited by law.”

No. Licensees are responsible for ensuring compliance with this restriction. Similarly, partially consumed alcoholic beverages, such as those ordered while dining-in, cannot be packaged to-go under Business and Professions Code section 23401.5.

Existing law generally allows an on-sale retail license to sell or deliver manufacturer-sealed containers of beer and wine for consumption off the licensed premises. AB 2663 and SB 389 do not alter these privileges in any way. However, alcoholic beverages sold pursuant to Business and Professions Code section 23401.5 cannot be delivered. This means that manufacturer-sealed distilled spirits and nonmanufacturer-sealed distilled spirits or single-serve wine cannot be delivered to consumers.

Manufacturer-sealed distilled spirits and nonmanufacturer-sealed containers of distilled spirits or single-serve wine may be sold for consumption off the licensed premises if the beverages are ordered and picked up directly from the premises in person by the consumer who must present an ID to verify they are of legal age and are the person who placed the order. Beer cannot be sold in a nonmanufacturer-sealed container. Other conditions apply to the sale of nonmanufacturer-sealed to-go alcoholic beverages, including but not limited to, the types of alcohol allowed to be sold under a particular license.

Nonmanufacturer-sealed to-go alcoholic beverages may be distilled spirits, mixed drinks, or single-serve wine that are prepared by the on-sale retailer on the licensed premises and are not sold to the consumer in the original manufacturer-sealed container. These types of drinks are considered “open container” alcoholic beverages and may only be sold with a bona fide meal. Additional requirements for the sale of nonmanufacturer-sealed to-go alcoholic beverages include:

1. Must be ordered and picked up in-person by the consumer directly from the licensee (i.e., they cannot be delivered to the consumer away from the licensed premises). The ordering consumer must present a valid ID to verify legal alcohol consumption age and that they are the consumer who placed the order.
2. The alcoholic beverage is packaged in a container with a secure lid or cap that is sealed in a manner designed to prevent consumption without removal of the lid or cap by breaking the seal.
3. Wine can only be sold in single-serve containers, meaning containers that hold between 187 milliliters and 355 milliliters (between 6.3 and 12 ounces).
4. Mixed drinks and cocktails sold for off-sale consumption cannot contain more than 4.5 ounces of distilled spirits per drink. There is a limit of 2 to-go drinks not in a manufacturer-sealed container per individual meal.
5. The alcoholic beverage container must be clearly and conspicuously labeled or otherwise identified as containing alcohol so that it is easily identified as containing an alcoholic beverage.
6. There is a specific warning sign posted on the premises, online, or wherever necessary to ensure the consumer purchasing the alcoholic beverages is given notice of open container laws.
7. The licensee has notified the department of their intent to sell nonmanufacturer-sealed to-go containers of alcoholic beverages.

The alcohol sold may only be that which is allowed by the particular license type and specifically excludes beer from being sold in nonmanufacturer-sealed containers.

A bona fide meal must conform to the guidance issued by the department on July 5, 2020, entitled “What is required to be considered a ‘meal’?”.

Yes, licensees must notify the department of their intent to sell nonmanufacturer-sealed to-go alcoholic beverages. Licensees must use the Alcohol To-Go Notification Tool to submit their notice of intent prior to exercising the privilege. Licensees eligible to exercise the privilege of sales of nonmanufacturer-sealed alcoholic beverages to-go may begin sales immediately after submitting the online notification and posting the required warning sign.

The warning sign must be conspicuously posted on the premises, online, or wherever necessary to ensure the consumer ordering and purchasing the alcoholic beverages is given notice of open container laws. While there are no size or color specifications for the sign, it must be conspicuous, which means it must be readily observable by customers. It must contain the verbiage as follows:

“Alcoholic beverages that are packaged by this establishment are open containers and shall not be transported in a motor vehicle except in the vehicle’s trunk or, if there is no trunk, the containers shall be kept in some other area of the vehicle that is not normally occupied by the driver or passengers. This does not include a utility compartment or glove compartment (see Vehicle Code Section 23225). Additionally, these beverages shall not be consumed in public or in any other area where open containers are prohibited by law.”

This warning sign can be downloaded or printed from the department’s website.

Yes. With good cause, the department may at any time impose conditions on a license restricting or prohibiting the licensee from selling or furnishing alcoholic beverages. Good cause includes, but is not limited to, a written request, that states the reason for the restriction or prohibition, from a local law enforcement agency or local governing body or its designated subordinate officer or agency. Licensees are able to petition the department to remove or modify the condition within 10 days following imposition of the condition. If a petition is not submitted within 10 days, then the licensee would need to wait one year, pursuant to existing law, before the licensee may file a petition for the removal or modification of the condition. When petitioning the department for the removal or modification of the condition, the licensee has the burden of establishing that the condition is unreasonable or that no good cause exists for its imposition. The condition shall remain in place until a final determination is made.

No. These laws do not make selling alcohol for off-site consumption a requirement for any on-sale licensee.