Attorneys Marc Lopez and David Rothenberg recently spoke about yesterday’s executive order and what it means for restaurants. What follows is a lightly edited transcript of their conversation.
Marc Lopez
This is Marc Lopez. I’m here with Dave Rothenberg. Dave, today’s April 1. Governor Holcomb signed another executive order yesterday clarifying what restaurants are and what they are not allowed to do. Right now a restaurant that is still operating, trying to make money in these crazy times—what are they allowed to do with food?
David Rothenberg
Okay, so before I say that, Marc, I want to qualify this by letting your audience know that I work for McKean Law Firm, and almost 100% of our business is hospitality. So I’m an attorney there, and what I’m going to tell you now is my interpretation of what is out there—it’s pretty cut and dried, I think—and it’s not necessarily an interpretation of McKean Law Firm.
So, as far as food is concerned, I think that a lot of common sense has to be used. Basically, what the government is trying to do and what everybody’s trying to do is stay away from each other. So food delivery’s allowed. Delivery to your car, let’s say—if you’re in the parking lot—is allowed, and obviously if it’s delivered to your house. But also—going in, picking food up, and then taking it to go. What is not allowed, as is evidenced by the latest executive order by the governor, is for people—after they receive their food—to congregate or tailgate in a parking lot. That is not allowed.
Marc Lopez
And so we’re talking about getting food and literally heading home. You can’t eat in the parking lot, can’t eat on the patio of the restaurant—is that kind of the gist of it?
David Rothenberg
Exactly. The whole point is to keep the social distancing and not have people congregate. So you can’t, for instance, go to some place like Rally’s, let’s say, because that’s the people who always have those seats in the front. You can’t go there, order a burger, and your friend orders a burger, and you’re just sitting around the table talking there. You should be going your separate ways.
Marc Lopez
Got it. Okay, so that seems rather cut and dried. How about this? What is the situation—a restaurant that had alcohol permits—what are they allowed and what are they not allowed to do?
David Rothenberg
So first of all—well, I’ll go into what they’re allowed and what they’re not allowed to do. First of all, everything that I just said about food also pertains to alcohol. You’re not allowed to go in the restaurant and drink there. If you get alcohol at a restaurant or a brewery or an artisan distillery, you’re not allowed to tailgate in the parking lot. All of those things still pertain.
So let me start with the basics. There are a few different types of alcohol permits in Indiana. Some allow you to be served for carry out. Some do not allow you to be served for carry out. So for instance, if you’ve got a specific type of alcohol permit on a riverfront, you ordinarily would not be allowed to be served carry-out, and carry-out is selling you bottles of beer, let’s say. Governor Holcomb has lifted that restriction.
So these licenses that did not allow for carry-out basically now allow carry-out. You can pretty much get carry-out at every restaurant, brewery, winery, artisan distillery, et cetera. Now what is allowed for carry out, though, are only drinks that are served in sealed containers, which means that it’s been sealed in a can or in a bottle—or even in a growler by the restaurant.
I’ll talk about growlers in half a moment here. So it’s got to be a sealed container. They can sell you a bottle of beer, they can sell you a canned mixed drink, they can sell you a bottle of wine—as long as all of those are in the containers that the manufacturer put them in. They can’t, for instance, pour you a cup of beer. They can’t pour you a mixed drink. They can’t pour you a glass of wine into a styrofoam cup, and you just take it home.
Marc Lopez
Okay, so they can serve you a can of beer but they can’t serve you a margarita.
David Rothenberg
Correct—unless somehow, the distiller, when he produced that margarita, mixed it all together, and put it in a can. There are several artisan distillers in Indiana that do that. That’s the normal business operations, so that really hasn’t changed. They are allowed to do that.
Marc Lopez
So my favorite Mexican restaurant by my house—if I go pick up tacos tonight, they’re not allowed to give me a margarita in a Styrofoam cup to go.
David Rothenberg
Right. They’d only be allowed to do it if a distiller had made some kind of pre-canned or pre-bottled margarita, and they sell you the whole bottle. Now, I will say two things as far as original containers: The first thing is that restaurants are allowed to sell you a bottle of beer or even a bottle of whiskey. They can sell you the whole bottle. It’d probably be a little less cost- effective, because they might divide it into shots, and it might cost a lot—but it can be done.
Secondly, typically growlers or refillable containers are only refillable at restaurants that—for instance, let’s talk about beer—are owned in whole or in part by a brewery. So you go to a local brewer—let’s say, Scarlet Lane, for instance—and they’ve got a lot of different restaurants around the city. They could refill your growler normally, right?
You go to Applebee’s, and they couldn’t refill your growler normally, because they’re not owned by a brewery. The governor has stated that there’s an exception now where any restaurant can fill a growler, and the reason why, of course, is because you’ve got all these restaurants that have beer in kegs that—unless he allows for that, they’re just going to go old and stale, and their products will go to waste—versus a bottle of scotch that can probably sit on the shelf until this is all over.
Marc Lopez
Thank you so much for taking time out of your day to clarify this. Dave, if somebody—if a restaurant owner has any questions, what is the best way for them to reach out to you?
David Rothenberg
My cell phone number, which I don’t mind giving out here, is 317-695-2565, or you can just call McKean Law, and I’m there, or Jeff McKean is there, as well.
Marc Lopez
Thank you so much, Attorney Rothenberg. You have a great rest of the day, okay sir?
David Rothenberg
Thank you, Attorney Lopez.
