It’s Time for Wine: BYOB & State Laws

More on State Laws re: BYOB
“Kentucky Wine Lovers Beware”

By Monty and Sara Preiser

This story, like a fine glass of wine, continues to have legs of its own (see our column “Bring Your Own Wine? Don’t Feed Us A Line). We are receiving numerous calls from people informing us of their own state’s rules regarding bringing one’s own bottle to dinner, as well as from local restaurateurs concerned about the advice they are getting from those who claim to have the answers.

Before we wrote our first piece concluding Florida had no law against diners bringing a bottle, we spoke with the representative of the Florida Restaurant and Lodging Association (FRLA), who had (wrongly, we contend) advised some restaurant owners/managers we know that bringing wine was against the law. Since our article appeared (and was sent to this representative) we have asked for a comment from her organization as to whether it had any information that WE were wrong, and whether they were going to advise their clients that diners could in fact bring their own wine. We also asked why they had apparently not been informing restaurants about the statute that protected restaurants from liability if a diner later caused damage due to intoxication.

Despite a number of requests in writing and by phone, no one from the Florida Restaurant and Lodging Association has had the courage or courtesy to answer our questions. This is the organization that is called upon by Florida restaurants for accurate advice. According to its website, the organization represents Florida’s 57 billion dollar hospitality industry (restaurants, lodging, and suppliers), and also updates them daily with important and relevant news. In reality, this is a trade and lobbying organization that charges for membership, and probably does NOT represent all of Florida’s hospitality industry. It is not Government run. Nevertheless, organizations like this are important, and when correctly advising their clients, they are most helpful. We presented the evidence in our column that this organization was dispensing incorrect and perhaps incomplete advice, and we have seen or heard nothing to the contrary.

Let’s move on to Kentucky, where Monty had business earlier this week. As is our habit, Monty called a restaurant to check corkage policies and was told the law did not permit outside wines to be brought in. Internet research showed that Stacy Roof, head of the Kentucky Restaurant Association, had herself given such advice and believed it to be so. Upon researching the Kentucky statutes (shades of Florida, yes?), Monty could find no prohibition, So, just as he did in Florida, he called the state Department of Alcoholic Beverage and Control.

Unlike Florida, however, the Kentucky ABC staff member said it indeed was against the law to bring one’s own wine to a restaurant. Monty asked for the statute so holding and was given 243.020(3). As he read the statute along with the staff member, it was obvious, to the staff member’s amazement, that it did not in fact prohibit private wines in licensed restaurants because it only spoke to businesses without licenses.

So that you can decide for yourself, the pertinent part of the statute reads:

. . . a person, conducting a place of business patronized by the public, who
does not hold a license to sell distilled spirits, wine, or malt beverages, shall
not permit any person to sell, barter, loan, give away, or drink distilled
spirits, wine, or malt beverages on the premises of his place of business.

While Monty held on the phone, the staff member read through the statutes and also asked for advice from others. No one present could find anything to support her initial position. She asked if she could have a day and call Monty back if she found anything of relevance, and he of course said yes. Three full days have now passed with no call. Monty also asked Ms. Roof to contact him with any comment or clarification after she had read the Florida article he forwarded to her. No call from Ms. Roof either.

This is a much more serious issue in Kentucky than Florida because Ms. Roof informed us that she was familiar with the state authorities actually fining restaurateurs if the authorities found a bottle brought by a customer. If this is so, the State of Kentucky is involved in prosecuting people without proper law to back them up – a serious and illegal activity.

There is one statute that could arguably give restaurateurs pause, but not if they have competent lawyers (it seems that in both Florida and Kentucky blind reliance on one’s restaurant trade association is problematic).

Statute 244.160 reads as follows:

Whenever any alcoholic beverage, in whatever quantity, is found on any
business premises within this state, a prima facie presumption shall
arise that the alcoholic beverage was upon the premises for the purpose
of sale.

What this means is that the State can presume that all wine in a restaurant is there to be sold, and therefore can expect taxes from all bottles present. This universe of “all bottles” would of course include the one(s) brought by the customer and could potentially cause a problem among the uninformed. However, the statute does not prohibit one from bringing a wine and the language about a presumption is the focal point here. “Prima Facie” means that the burden of establishing there is no sale shifts to the restaurant or diner instead of remaining with the state to prove the violation. But meeting the burden by the restaurant and diner would be easy. In other words, although the State can claim a presumption that the wine is there to be sold, competent evidence can disprove it. And in these cases offering competent evidence is as simple as the people with the wine telling the authorities that it was not, nor will it be, sold.

As it stands now, these writers, acting upon the legal training and research of Monty, are confident that there is no prohibition in Kentucky against bringing one’s own wine to a restaurant licensed to sell wine.

This will perhaps be the last column on this issue, but it looks as if the wine lovers of the country love what we have discovered, while the trade associations responsible for giving accurate and complete information to their clients do not want to comment. We don’t know how these associations will ultimately advise their clients (we find nothing about this on their websites as we write this), but if we owned a restaurant, we would certainly want our representative and advisor to be up to date, and to communicate with writers who pose reasonable questions. And as consumers, we want the restaurants to have accurate information for all the reasons we wrote about in our first column. Put succinctly, we like to bring a bottle from time to time.

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It’s Time for Wine is a column published by wine writers and educators Monty and Sara Preiser that is featured on the Amateur Gastronomer.

Monty and Sara Preiser reside full time in Palm Beach County, Florida, and spend their summers visiting wineries and studying wines on the west coast where they have a home in Napa. For many years they were the wine columnists for The Boca Raton News, have served as contributors to the South Florida Business Journal, and are now the principal wine writers for Sallys-Place.com.  Monty and Sara also publish The Preiser Key to Napa Valley, the most comprehensive guide to wineries and restaurants in the Napa Valley, published every March, July, and November.  Click here to read more columns by the Preisers.