Last Friday, Florida became the latest of a growing number of states to permanently adopt measures taken during the pandemic that permit certain food service establishments to sell or deliver cocktails to-go.  Note that SB 148 (available here) provides, among other things, that all deliveries must comply with existing state law governing the delivery of alcohol—i.e., Fla. Stat. § 561.57—and that “[t]he vendor or the agent or employee of the vendor must verify the age of the person making the delivery of the alcoholic beverage before allowing any person to take possession of an alcoholic beverage for the purpose of making a delivery on behalf of a vendor under this section.”

Earlier this month, the California Senate unanimously approved SB 389 which would also allow cocktails to-go in California.  SB 389 is now with the Assembly but as it continues through the legislative process it is a good time for businesses to take stock of their legal obligations and potential liabilities regarding the delivery of alcohol for off-premises consumption.  For example businesses must take reasonable steps to ensure they are not selling to minors and may refuse to sell alcohol to anyone who cannot provide “adequate written evidence” they are over 21.  See e.g., Cal. Bus. & Prof. Code §§ 25658-60.  But as the California Department of Alcohol Beverage Control (“ABC”) warned in its June 2020 Industry Advisory (available here): “If an ABC licensee uses a third-party delivery service, that third-party delivery service is acting as an agent of the ABC licensee and under the authority of the licensee’s license privileges.  As indicated above, the ABC licensee is ultimately responsible for the actions of the third-party delivery service if alcohol is delivered (i.e., furnished) to a minor, including to a minor decoy” - a "minor decoy" is someone who is working undercover for the ABC.  The ABC issued that advisory after finding that incidence of delivery of alcoholic beverages to minors was “alarmingly high.”  

Again, now is the time for businesses to review their policies, procedures, and training to ensure they—and any third-parties with whom they work—are following the law and minimizing risk.