Maintaining Control Over Your Brewery During COVID-19

November 6, 2020

By: Jennifer L. Tsyn

As all breweries know, the Liquor Authority requires that every holder of a liquor license maintain adequate control over its premises. Under normal circumstances, that requires you to make sure that your patrons are not intoxicated, are not engaging in illegal conduct or fights, and are otherwise complying with the rules. During the COVID-19 pandemic, however, maintaining control over your premises has gotten more complicated.

First and foremost, you should be monitoring very frequently what new rules may apply to your brewery. You should monitor the New York Governor’s office website to see if you are in a “cluster” or “hot spot” zone, as well as the New York State Liquor Authority website. You will want to ensure that you are up to date with the following rules that apply to your area:

• How many people can you serve inside? (also see the update available here)
• What percentage of your maximum capacity is allowed inside at any one time?
• Can you have private parties or weddings? If so, what is the maximum number of guests?

You will also need to comply with other rules that may change frequently. Those of you with Farm Brewer licenses who are serving patrons on premises or doing tastings have a number of new rules to follow. As of today, all of your patrons need to be wearing masks except when they are sitting at a table.

• You can (and should) ask a patron to lower their masks briefly so you can compare their photo identification to their features. You can (and should) ask them to keep their mouth closed while the mask is lowered.
• If a patron refuses to wear a mask:
  • You should not accept an “exemption” card from them
  • You should not ask them any questions about their medical condition even if they allege that a medical condition prohibits them from wearing a mask
  • You should offer them a reasonable accommodation, such as bringing product they wish to purchase “to go” out to their car
  • You should require them to leave if they refuse to comply with mask requirements

Patrons cannot consume any beer – even tastings – while standing. This is true even if they are outside. Patrons need to be sitting at tables if they are going to consume alcohol. Patrons may sit at a bar or counter if:

• They are 6’ apart OR there are plexiglass partitions between them that are at least 5 feet high OR they are part of the same party
• Parties consist of no more than 10 people

Also, you need to ensure that patrons are ordering food. You must ensure that each patron in a seated party orders an item of food at the time they order their initial alcoholic beverage. A sharable item is fine as long as it would sufficiently serve the number of people in the party. If you have an on premises license as well as your farm brewer license, the food item must be something like a sandwich, soup or an entree. If you do not also have an on premises license, then the food can be something typically used to enhance tastings, such as cheese, fruit or crackers. If a patron refuses to order food, you should not serve that patron alcohol.

The Liquor Authority is making frequent inspections to ensure that these rules are being followed. While it can be detrimental to business to ask a patron to leave if they won’t follow the rules, you can face summary suspension and fines in the tens of thousands of dollars for failing to maintain adequate control of your premises.

If you have any questions about this information memo, please contact Jennifer Tsyn or the attorney in the firm with whom you are regularly in contact.