Article written by:
Anthony Ott, CPA
Director, State & Local Tax Services
Restaurants with liquor licenses have requested permission to sell spiritous liquors for off-site consumption in an effort to help generate revenue to sustain operations.
In response, Governor DeWine, through an Executive Order dated April 7, 2020, enacted the emergency rule promulgated by the Ohio Liquor Control Commission on April 7, 2020, to allow establishments with a liquor permit permitting the on-premises sale of beer, wine, and/or spiritous liquors to sell those products by the glass for take-out and delivery, including high-proof liquor in limited quantity (i.e. 2 oz. or less of spirits per drink), for off-premises consumption.
Under the rule, patrons can purchase two, prepackaged drinks per meal. All drinks must be in closed containers and remain closed during transport in accordance with existing Ohio open container laws. Delivery may only be made by employees/independent contractors of the permit holder (i.e. not third-party delivery services).
Restaurant operators must provide to-go drinks in a “closed container”; though not a defined term, “closed containers” reasonably include Styrofoam or plastic cup with a non-perforated lid. Recommendations also include placing tape over the lid to show it has not been tampered with or opened. A final recommendation to operators is a reminder that patrons may not consume to-go drinks when they are waiting for their order on premises, and to remind patrons that the closed containers must remain closed until they arrive home. Existing open container laws remain in full force and effect.
Restaurant operators should also be reminded that spirituous liquors, wine, mixed beverages and beer are excluded from the definition of food for sales tax purposes in Ohio. This means they are subject to sales tax whether consumed on or off premises. In other words, any alcoholic drinks offered for sale through to-go or delivery orders are subject to sales tax unlike the food itself which is exempt when consumed off-premises.
This article was written in collaboration with Isaac Wiles Partner Alicia E. Zambelli.