What's better than those four little letters: BYOB? Rather than forking over $7 a pop for a beer, savvy diners who choose the right joints can spend that much on an entire six-pack. Checking out a cute little Italian bistro that doesn't have a liquor license? Bring along a great bottle of red wine that you purchased elsewhere at retail and simply pay the $5 corkage fee. For true wine snobs, there's also the common practice of bringing along that "rare and special" bottle to restaurants that do sell wine.
The trouble is, all of these practices are unequivocally illegal.
"It is not legal to have outside alcohol in a commercial location, whether there is a permit there or not," explains attorney John N. Neal of the Cleveland firm Koehler Neal, whose practice focuses almost exclusively on the regulation of liquor in Ohio. "This includes most of the schemes that owners employ to get around buying a liquor permit, such as charging a corkage fee, private club arrangements..."
As one of this city's premier liquor lawyers, Neal says he's approached constantly by restaurant owners who are curious if they can bypass the thorny and expensive process of obtaining a liquor license simply by allowing guests to bring their own booze.
"This is one of the most common questions I get," he says. So why all the confusion? Like many concepts in law, he notes, the conclusion comes less from a specific piece of legislation than it does a cumulative reading of various statutes. "Are you going to find something in Title 43 of the liquor code that says you can't do this? No, you will not find a direct section of the code that spells it out. It's the interplay of the various sections of the applicable liquor statutes in Ohio that, when read as a whole, prevent you from doing this."
Neal says that in situations like these, penalties can be levied against both the diner and the restaurant owner. Typical penalties include open container, but can, in extreme cases, include criminal charges and forfeiture of restaurant property. In restaurants that do have liquor licenses, possible penalties include the loss of that license.
"It is my belief that there is enough room within the liquor code for an aggressive agent or prosecutor to make charges against a BYOB premises owner," says Neal. "I think it is a real risk for any place of business to entertain a BYOB event."
Restaurants that allow diners to bring in their own booze often fly so far under the radar that the likelihood of a raid is remote. They tend to be mom-and-pop ethnic eateries populated by regulars who know only by experience that it's accepted behavior to bring along a few beers. It's when the restaurant becomes popular – and widely known as a BYOB place – that owners should watch the front door.
"Most of the complaints come in through an anonymous tipline," explains Greg Croft of the Ohio Department of Public Safety, who is tasked with enforcing the liquor laws. In practice, that often translates to the jealous restaurant owner down the street who forked over thousands of dollars for a liquor license only to see his neighbor offer BYOB.
Of course, admits Croft, chasing down BYOB violators is hardly a priority. "It's not something we're going to throw a lot of resources at unless it becomes a problem," he says, adding that keeping alcohol out of the hands of young Ohioans is his division's main focus. But, he adds, they are compelled to act on citizen complaints.
All of this was news to the owner (who I promised to keep anonymous) of a popular Lakewood eatery, widely known as a BYOB-friendly establishment. Since opening three years ago, the owner has encouraged his loyal and growing clientele to bring their own, all the while thinking it was perfectly legal to do so.
"Holy shit, of course I'm shocked!" he said after I told him what I'd learned. "I never knew it was illegal. You learn something new every day."
What's more, the owner was operating on the mistaken belief that he was, in fact, following the letter of the law. "I was told that I could do it as long as I checked ID, didn't let anyone leave with an open container, and I couldn't advertise that I was BYOB," he says.
His intention always was to purchase a liquor license, but he hasn't had any luck in that department. "If it wasn't so hard and expensive to purchase a liquor license, I would have got one when I opened," he says. "I still hope to."
If he does stop allowing guests to bring their own, he expects there to be some blowback. "I'd guess that 60 percent of them would be pissed – it will affect my business a little bit."
For owners and diners who figure they'll just take their chances, attorney John Neal advises them to see the big picture. "Sure, sometimes you can get out of it," he says. "But by that point you've hired a lawyer and taken days off from work."
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