After weeks of discussion, liquor commissioners on Tuesday declined to make a rule governing when imbibers in restaurants may legally order a drink, opting instead to allow eateries to decide how to comply with a new law.
The law, HB240, which went into effect in May, clarifies that restaurant patrons may order an alcoholic drink as long as they show an "intent" to buy food. Commissioners with the Utah Department of Alcoholic Beverage Control typically establish rules after legislation is enacted but decided that in this instance restaurants can police themselves.
Rule governing when Utah diners may order a drink
The law » HB240, which went into effect in May, clarifies that restaurant patrons may order an alcoholic drink as long as they show an “intent” to buy food.
Liquor board » The Alcoholic Beverage Control Commission was to establish rules defining what “intent” means. For instance, does reserving a table show that diners intend to order food? And what must servers do to ensure that each individual in a large group orders food along with drinks?
Rules » On Tuesday, liquor commissioners voted to allow restaurants to set their own policies ensuring diners order food with alcoholic beverages.
Earlier, discussions bogged down when commissioners talked about multiple scenarios that would take into account a range of situations for restaurants to comply with the law.
Did simply walking into a restaurant establish an intent to eat? What about studying a menu? Did reservations count? What about posted signs, and what should they say? What would waiters have to do when serving several individuals in a single party? What about takeout? What should servers do to ensure that diners don’t cheat? And what constitutes subterfuge?
Commissioner John T. Nielsen, a lawyer, said rules would only confuse the hospitality industry, which overall has complied with longtime state statutes requiring restaurants to serve alcoholic beverages with food.
"We’re only confusing the matter by rule making," he said. "It’s more confusing to the industry than leaving the statute the way it is. If someone comes into a restaurant and says, ‘I want a drink and I don’t want to order food,’ there’s a violation, it’s straightforward."
Commissioner Olivia Vela Agraz agreed, saying the board "was getting lost in the minutiae" in the rulemaking process.
John Valentine, who sponsored the bill in the Senate, said he "kinda agrees with the commission."
"The statute was written intentionally with a fair amount of latitude for the licensees, but it does require confirmation" of an intent to dine, he said. "The DABC is allowing licensees to have some flexibility, as long as they comply with the law."
Melva Sine, president of the Utah Restaurant Association, said restaurants are capable of setting policies. She added that the law requiring receipts at restaurants to be at least 70 percent in food sales ensures that eateries are not acting like bars where no food is required to order a drink.
"The vast majority — 99.99 percent — of the people who come into a restaurant go there to eat," she said.
It’s likely that many restaurants will have hostesses or waiters simply ask patrons if they intend to dine. Alcohol trainers have been teaching this for years.
Alcohol enforcement teams have busted several restaurants for serving alcoholic beverages without food orders. But undercover officers usually plainly tell servers that they only want an alcoholic beverage, they don’t want to eat.
Violations for restaurants serving drinks without food are deemed "serious." Fines start at $500 for the first offense and can go up to $3,000.
Last year, the DABC created an uproar after it warned restaurants that, because of the agency’s new interpretation of a longtime state law, they would be in violation if they served alcohol to diners perusing menus or before they were seated at tables, even with reservations.
In a December newsletter item under the heading "WARNING!" in boldface, the DABC said Utah law "does not allow for an alcoholic drink to be served while a patron reviews the menu. To avoid a violation [the] best practice would be to require that the food order be placed prior to service of the alcoholic beverage."
New DABC compliance director Nina McDermott then weighed in with her own memo, taking aim at the long-held practice of restaurants serving a drink to patrons before food orders are made. "The law does not allow for a one-drink exception," she said.
Blaming "misperceptions" by Utah’s restaurant owners and the news media, DABC Director Salvador Petilos said in a subsequent letter that the agency’s directives and its interpretations of the law had been misunderstood.
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