State alcoholic-beverage regulators

Summary

The State alcohol regulators were the enforcement arm of the bar and restaurant orders, and in several States they were the source of the order itself. Their instruments matter to the Suspension Clause for three reasons: they are orders from a governmental authority with statutory power over the commerce they limited (the sale and service of alcohol, which is the revenue core of the bar, tavern, brewpub, tasting room, nightclub, catering hall and full-service restaurant); they were enforced through the license, so that a violation of a Governor's capacity or hours order became an emergency suspension of the right to sell alcohol at all; and they ran continuously from March 2020 into the third quarter of 2021 and beyond, with renewal extensions, expansion permits, to-go conditions and vaccination-related license conditions still in force after June 30, 2021. 2020 Q2 (from March 13). ('all licensed on-premises establishments... must cease on-premises sales of alcoholic beverages and/or food') (Ex. 021); New Jersey AN 2020-03 ('no table, bar, or tasting room service is permitted by any holder of a liquor license until further notice') (Ex. 032); California ABC's March 16 direction that every on-sale licensee 'cease exercising those privileges immediately' (Ex. 068); the OLCC's statement that EO 20-07 'prohibits the consumption of food and drink at all licensed premises' and that any consumption 'could result in... immediate suspension of the license' (Ex. 093); the Florida DBPR FAQ under EO 20-71 (Ex. 054); the Iowa ABD page (bars and restaurants 'closed to the general public') (Ex. 101); Colorado LED's Safer at Home summary ('Restaurants and Bars will continue to remain closed and are only open for take-out and delivery') (Ex. 111). Each paired the closure with a conditioned to-go substitute: TABC's March 19 industry notice, available only to restaurants 'forced to end dine-in services by a governmental entity' and only with food, in manufacturer-sealed containers (Ex. 001); Massachusetts' April 3 statute and advisory (192 ounces of malt beverages and 1.5 liters of wine, only with food, only to midnight) (Ex. 081); Illinois' delivery authorization and its March 29 reminder that premixed cocktails remained unlawful to sell to go (Exs. 114, 115); New Jersey SR 2020-01 for limited breweries (Ex. 033); Iowa's class C carry-out relief (Ex. 102); Oregon's 90-day Authority to Operate (Ex. 094). The regulators also began the licensing relief that would run for over a year: DBPR EO 2020-01, -03, -05 (Exs. 043, 045, 047), New Jersey AO 2020-02 extending every license to September 30, 2020 (Ex. 034), Arizona's 90-day fee deferral (Ex. 075), Oregon's Conditional Letters of Authority (Ex. 095), the SLA's renewal-payment extension (Ex. 025). 2020 Q3. The summer reopenings were conditioned and, for bars, reversed. Florida DBPR Emergency Order 2020-09 (June 26, 2020) suspended on-premises alcohol sales at every vendor deriving more than 50 percent of revenue from alcohol, statewide, finding that 'noncompliance... is suspected throughout the State to such a degree as to make individualized enforcement efforts impractical' (Ex. 051); as amended July 1 it closed nightclubs outright (Ex. 052); it was rescinded only as of September 14, 2020 (Ex. 053), and the Department emergency-suspended individual vendor licenses in the interim (Exs. 059, 060). Texas GA-28 closed 51-percent establishments June 26; TABC's notices show how a bar could reopen only by re-establishing itself as a restaurant through a sworn 51-percent affidavit or a Food and Beverage Certificate (Exs. 005, 006, 007), and TABC's Operation Safe Open suspended the permits of dozens of bars for 30 days each (Exs. 009-012). Arizona EO 2020-43 closed series 6 and 7 bars June 29 (Ex. 074) and the DLLC made EO 2020-36 and 2020-40 workplace policies a license requirement (Ex. 073). New York required food with every alcoholic beverage from July 16 (Ex. NY-102) and the SLA summarily suspended licenses for gatherings and events (Ex. 028). Massachusetts required seated food service with alcohol until Phase IV and capped private functions at 25 indoors (Ex. 085); New Jersey permitted indoor dining only from September 4 at 25 percent (Ex. 037); California moved licensees onto the Blueprint tiers from August 31, under which bars without bona fide meals were closed in the Purple and Red tiers (Ex. 069). 2020 Q4. The autumn wave produced curfews and re-closures written and enforced by the regulators: Massachusetts' 9:30 p.m. service cutoff from November 6 (Ex. 086) and the December 13 rollback (90-minute limit, six per table, no music) (Ex. 087); New Jersey EO 194's 10 p.m. indoor close and ban on bar seating (Ex. 038); the SLA's 10 p.m. cutoff on to-go and delivery sales from November 13 (Ex. 021 annotation; Ex. NY-103); Illinois' regional Tier 1 and Tier 2 mitigations ('No indoor service or seating is allowed'; 'No ordering, seating, or congregating at bar'; 11 p.m. close) enforced by the ILCC with immediate license action (Exs. 119, 120); Texas GA-32's county opt-in, administered by TABC, under which bars in non-qualifying counties stayed closed and bars in high-hospitalization Trauma Service Areas re-closed (Exs. 013, 014, 019, 020); Oregon's Freeze and Risk and Protection Framework (Exs. OR-034, 099); Iowa's compliance checklist required of every licensee (Exs. 103, 104). 2021 Q1. Capacity steps and continuing conditions: New Jersey 35 percent from February 5 (Ex. 039); Massachusetts 40 percent from February 8 and distancing-only from March 1, with the 90-minute limit, six-person tables and food-with-alcohol still in force (Exs. 088, 089); Texas until March 10 (Ex. 015 to February 20, 2021); Illinois' return to Phase 4 with capacity and bar limits (Ex. 118). New Jersey extended the COVID-19 Expansion Permits to November 30, 2022 'or the date on which indoor dining resumes without capacity limitations' (Ex. 041); Illinois and Iowa extended every license renewal (Exs. 106, 122); California's Seventh Notice relieved brewpubs of the statutory 100-barrel production minimum 'during the current state of emergency' (Ex. 067). 2021 Q2. The general restrictions ended in most of these States between May 19 and June 30, 2021: Massachusetts May 29 (emergency June 15) (Ex. 090); New York's executive orders June 24 (Ex. NY-104), after the May 19 non-congregate guidance that still required distancing, masks and vaccination-status systems (Ex. 029); Illinois Phase 5 June 11 (Ex. 121); New Jersey EO 244 June 4; California's Blueprint June 15; Oregon June 30. The regulators' instruments also record the compelled reversal: Massachusetts licensees 'must end takeaway and delivery sales of alcohol on June 15, 2021' and patios ran only to August 15, 2021 (Ex. 090). 2021 Q3. In force July 1 through September 30, 2021 from this cluster: the Texas SB 968 license condition prohibiting licensees from requiring proof of vaccination, enforced by TABC as a condition of the permit (Ex. 016); New Jersey's extension of over 2,300 expansion permits and the AN 2021-04 back-order regime for supply shortages (Exs. 041, 031); Illinois' to-go regime and renewal extension to December 31, 2021 (Exs. 122, 123) and the statewide mask reinstatement of August 30, 2021; Massachusetts' outdoor allowances to August 15, 2021 (Exs. 090, 091); California's relief items in force during the continuing state of emergency (Exs. 061, 064, 067); the Texas, New Jersey and New York statutory to-go regimes that replaced the emergency waivers; Oregon's temporary allowances through the emergency. In every one of the six quarters the alcohol regulator's instruments limited the commerce of the licensed premises, and in every quarter the limitation was backed by the suspension of the license.