It's Time for Wine: BYOB

Bring Our Own Wine?  Don’t Feed Us a Line

If You Live, Travel to, or Own a Restaurant in Florida, We Suggest This is One You Might Not Want to Miss

By Monty and Sara Preiser

For those of us who love wine, there are many reasons to take a special bottle to restaurants. It might be an older bottle we have been saving for a special occasion. It could be that the restaurant where we are dining offers good food but a poor wine list. Or perhaps it is simply because we have an expensive bottle we want to consume with well prepared food, but cannot afford to buy a like wine from a list with too often inflated wine prices. Whatever the reason, it is usually pretty legitimate, and (importantly for this article) the percentage of people who take their own wine to a restaurant is absolutely inconsequential compared to the numbers who dine out – so small a percentage in fact that it should, in our opinion, rarely be an issue for thinking people. But some restaurants make it so.

If you read this column regularly, the likelihood is that you are among those who indeed like to take some wine with you from time to time. We hope you are also among those who consider the needs of the restaurant and call before you arrive to be sure the establishment’s policy allows private wines. And we hope as well that if you do take a bottle, you always consider buying at least one off the wine list (even if relatively inexpensive). These actions are considered to be good form.

This past week in Florida we ran into a situation we have experienced a number of times throughout the United States over the years. We were meeting some friends for our first time at a well known restaurant with branches in major cities, and (as mentioned above) we called to check on the policy of the restaurant insofar as our bringing wines. Instead of informing us that the restaurant’s policy did not permit it, the manager emphatically told us that doing so was “against the law.”

As a rule, that would be that, as we usually will not dine where we can’t bring a bottle. Few restaurants in the world are so good that we cannot find another perfectly sufficient place to go (more on this later). But this night we were, as we said, meeting others, and so we put our own policy aside. While waiting for our seats, we identified the general manager and inquired about the so-called law, telling him, as we did his compatriot by phone, that we were unaware of any such Florida regulation prohibiting the bringing of private wine to a restaurant that sells wine itself. His answer was that the law was clear, he had been given the Florida statutes so saying by those his employer engaged to advise on such things, and that he would be happy to show it to us. While we did not reconnect that night, we spoke by phone the next day.

As you may have surmised by now, what he read to us had nothing to do with the issue at hand (though, to be fair, the GM no doubt thought it did, as that was at least his interpretation of what his people had told him). He was not, however, nor would one expect him to be, a lawyer or an expert on the subject of bringing private wines. He was merely transmitting what his superiors had passed on.

Note: This is probably an appropriate time to let you know, if you do not already, that Monty is a lawyer who has  read and analyzed statutes and laws for 35 years (much longer than he likes to admit except when longevity serves to buttress his credibility). Thus, while this column, as with all our writings, will offer his (and our) “opinions,” we are confident we are on solid ground supported by fact. We will further share the relevant raw information with you so you can decide for yourselves if we are correct.

It is imminently true that a restaurant can indeed adopt a policy against allowing private wines to be brought in by its clientele (poorly conceived though we believe that decision to be). Yet it is not true that there is an actual law preventing customers from bringing their own. Many restaurants, however unfortunately, blame what is really only their personal policy on some fantasy regulation because they don’t want their customers to be upset at the restaurant for not permitting private wine, and then choosing to dine elsewhere. So let’s discuss all of this below.

The LAW:
-The first thing we did was review the Florida statutes ourselves. We could find no prohibition against an individual bringing his or her wine to a restaurant that had a license to sell wine to the public.
-We then called the proper regulatory agency in Tallahassee, where the people we spoke to confirmed, without question, that there were no statutes prohibiting the questioned conduct, and thus there was, in fact, no legal prohibition against it. It is not really debatable.
-We then sought the statute numbers from various restaurants and their private advisers who adhered to the line (whether they believed it or not) that bringing wine was against the law, or had questions about the issue. As you will see when you read the four statutes that were cited (which we include in their entirety so that there can be no “out of context” contention), none of them are even closely on point. Here we go.

562.51: Retail alcoholic beverage establishments; rights as private enterprise.
A licensed retail alcoholic beverage establishment open to the public is a private enterprise and:
(1) May refuse service to any person who is objectionable or undesirable to the licensee, but  such refusal of service shall not be on the basis of race, creed, color, religion, sex, national origin, marital status, or physical handicap;

(2)(a) May not refuse service to any person solely because the person is not purchasing alcoholic beverages if that person is the designated driver for one or more persons who are purchasing alcoholic beverages at the establishment.
(2)(b) This subsection does not excuse a retail alcoholic beverage establishment from complying with any applicable municipal or county ordinance regulating the presence of persons under 21years of age on the premises of any such establishment.

[Preiser Comment: If you see anything above about not allowing people to bring their own wines, please let us know, as Monty says that if it is there, he’ll go back to school]

562.02: Possession of beverage not permitted to be sold under license.
It is unlawful for a licensee under the Beverage Law or his or her agent to have in his or her possession, or permit anyone else to have in his or her possession, at or in the place of business of such licensee, alcoholic beverages not authorized by law to be sold by such licensee.

[Preiser Comment: This is a bit more difficult to interpret, but the Florida Beverage Control staff in Tallahassee agreed with Monty that this only means customers cannot bring their own beverage if the restaurant does not already sell that particular beverage. For example, a place with only a beer and wine license could not allow someone to bring spirits. The same logic and law applies to wine]

562.14: Regulating the time for sale of alcoholic and intoxicating beverages; prohibiting use of licensed premises.
(1) Except as otherwise provided by county or municipal ordinance, no alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed in any place holding a license under the division between the hours of midnight and 7 a.m. of the following day. This section shall not apply to railroads selling only to passengers for consumption on railroad cars.
(2) Except as otherwise provided by county or municipal ordinance, no vendor issued an alcoholic beverage license to sell alcoholic beverages for consumption on the vendor’s licensed premises and whose principal business is the sale of alcoholic beverages, shall allow the licensed premises, as defined in s. 561.01(11), to be rented, leased, or otherwise used during the hours in which the sale of alcoholic beverages is prohibited. However, this prohibition shall not apply to the rental, lease, or other use of the licensed premises on Sundays after 8 a.m. Further, neither this subsection, nor any local ordinance adopted pursuant to this subsection, shall be construed to apply to a theme park complex as defined in s. 565.02(6) or an entertainment/resort complex as defined in s. 561.01(18).
(3) The division shall not be responsible for the enforcement of the hours of sale established by county or municipal ordinance.
(4) Any person violating this section shall be guilty of a misdemeanor of the second degree.

[Preiser Comment: You don’t have to be a lawyer to know that nothing here has anything to do with what we are talking about. We cannot imagine what those people who cited this statute in support of their position were thinking]

562.121: Operating bottle club without license prohibited.
It is unlawful for any person to operate a bottle club without the license required by sec. 561.14(6). Any person convicted of a violation of this section is guilty of a misdemeanor of the second degree.

[Preiser Comment: A bottle club is a business that is NOT ALLOWED to sell alcohol, as its members keep their beverages there. It is also not allowed to offer full dinner service. Bottom line; It has nothing to do with our present discussion either]

The evidence seems as clear as a fined and filtered bottle of white wine that there is no law against taking your own wine, and if a restaurant says there is, you can challenge them with confidence. But remember, it is still a privilege the restaurants grants you, so we hope the privilege is not abused.  With that in mind, let’s take the discussion a step further.

The POLICY:
As mentioned, a restaurant is given the right by statute to institute its own policy holding that private wine cannot be brought in. But is that really a good idea?

Writing now as food and wine writers, we opine that from a public relations standpoint a restaurant should in fact go out of its way to find, rather than ban, people who bring their own wines. Those who care enough about their wines to want something special are usually food people who influence many others as to where to dine, and frequently order expensive meals, consume other bottles of wine, and begin their evening with $10 – $15 cocktails. It is economic silliness to bar these kinds of customers over a bottle of wine or two. And not only do these type of customers usually spend better than average money on food, spirits, and even a bottle from the establishment, a fair $25 – $30 corkage fee would net the restaurant more money than a $45 bottle of wine sold from its own list. Our own habit is that when we are charged a corkage fee we usually order another mid range wine from the restaurant, and if they don’t charge us a fee, we often order an expensive bottle. But whatever mood we are in, the restaurant would do better to allow us to bring a bottle – and this is mostly true because without such permission we will not go at all, nor will we send others.

In all efforts to be fair, let us mention that there was one issue brought up by the restaurants’ representatives as to why a policy banning private wine seems to make good sense. At first the position seems to have some legs, but, after a short examination, you will see that is does not.

The argument postulates that because a restaurant can be held responsible for injuries caused by its serving further alcohol to those who are (or become) intoxicated, this somehow translates into the possibility that people bringing their own wines create a greater risk of liability for the business. Hogwash. In fact, it is the opposite. There is no practical difference in a server, before opening wine for the table, evaluating the sobriety of a customer who has brought a wine, or purchased one. The same applies before opening a second bottle, a third, and so on. In reality, is it not more likely that a server will cut someone off (to protect the restaurant) if that customer has brought his or her own wine as opposed to having just tried to order a $200 bottle from the wine list? Human nature is human nature, and we all see things differently, even if it is on a subconscious level, when a $100 profit and/or a $40 tip is involved

Before we close we thought you might be interested to know that we called what we consider to be the top 10 restaurants in Boca Raton (the location of the restaurant that kindled our interest in all of this last week), and every one of them permits one to bring his or her own wine for a very reasonable corkage charge.

So there you have the Florida information. If you live elsewhere (and are still reading this article with us), we recommend that you call the state beverage authorities wherever you are if this has ever been an issue for you. Forearmed is always good policy. And if you find that there exists no law stopping you from taking a bottle, and it is simply the restaurant’s policy, why go at all? You will find a place just as good where you can enjoy your own wines with service staff who know how to treat those who love fine dining.

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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.

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