Wisconsin Emergency Order allows breweries, distilleries, wineries, bars and restaurants to stay open for carry-out only, but does it put citizens at risk by not allowing online sales and requiring face-to-face purchases before delivery of alcohol?

Like many state liquor regulatory authorities, Wisconsin’s Department of Revenue is working to provide clarity and guidance during the current COVID-19 crisis. Unlike many state alcoholic beverage control authorities, Wisconsin’s officials and its Department of Revenue do not appear to be pushing the envelope to help struggling breweries, restaurants, bars, distilleries, and wineries in expanding rights on a limited basis while certain operations are restricted.

Wisconsin’s liquor control authority, the Department of Revenue, has long made it clear that delivery isn’t an option and that Wisconsin has never acknowledged a reality of the 21st Century, e-commerce, by allowing online sales as transactions for alcoholic beverages need to close “face-to-face” and cannot take place online. This guidance from their pre-COVID FAQ on retail alcoholic beverage sales already struck many Wisconsinites as a tad dated:

16. Can I accept Internet or phone orders and deliver alcohol beverages to customers?

Sales by retailers of alcohol beverages must occur at the licensed premises, with the buyer and seller face-to-face at the time of sale. Retailer’s receipt of a customer’s credit card account information may not result in the customer’s credit card account being charged for an online (Internet or phone) order. The actual sale must take place when the customer visits the retailer’s licensed premises.

Wineries that possess a wine direct shipper’s permit from the state may make sales and deliver not more than 108 liters of wine annually directly without the customer having to be at the premises. The customer must be of legal drinking age and may not resell or use for a commercial purpose wine that is direct shipped.

On Friday, Wisconsin Governor Tony Evers entered Emergency Order #8 closing many businesses and restricting interactions. The order addresses bars’ and restaurants’ and Wisconsin’s breweries’, wineries’ and distilleries’ operations as follows:

a. BARS AND RESTAURANTS

i. Breweries, brewpubs, wineries, distilleries, and alcohol beverage retailers, including bars, are closed to the public except as follows:

1. Carryout sales of alcohol beverages and food are allowed, if permitted by state law and municipal ordinance.

2. Customers may enter the above establishments only for the purpose of ordering, pick up and paying for food or beverages or both. No seating may be provided, and food and drink may not be consumed on premises, either indoors or outdoors. Establishments shall preserve social distancing between customers during ordering and pick up.

3. Delivery of alcohol beverages to retail customers is prohibited, unless the customer first comes to the licensed or permitted premises to make payment in person, face-to-face. 

4. Wineries holding direct wine shippers’ permits may make deliveries of wine in accordance with their permit.

5. Self-service operations of salad bars, beverage stations, and buffets are prohibited.

6. Customers are prohibited from self-dispensing all unpackaged food.

ii. Restaurants are closed to the public except as follows:

1. Restaurants may remain open for food take-out or delivery service only. Alcohol sales must comply with Section 6.a.i. above.

2. Customers may enter the above establishments only for the purpose of ordering, pick up and paying for food or beverages or both. No seating may be provided, and no food or beverages may be consumed on premises. These restrictions apply to both indoor and outdoor spaces.

3. Self-service operations of salad bars, beverage stations, and buffets are prohibited.

4. Customers are prohibited from self-dispensing all unpackaged food.

5. Restaurants shall preserve social distancing between customers during take-out.

In response to Emergency Order #8, the Wisconsin Department of Revenue provided guidance in the form of a document entitled Alcohol Beverage Guidelines and Information Related to COVID-19 which addresses operations and provides a small amount of additional clarity:

Brewers, manufacturers (distilleries), rectifiers, Class “A” beer, “Class A” liquor, Class “B” beer, and “Class B” liquor license holders may sell alcohol beverages in original, sealed containers on a “carry-out” basis only, and only where permitted by municipal ordinance. Breweries and Class “B” beer license holders may continue to sell growlers of beer for “carry-out” only. Class “A” and “Class A” license holders may not offer samples of alcohol beverages for consumption on the premises.

• All sales of alcohol beverages must occur in a face-to-face transaction.

• Establishments must abide by applicable state and/or municipally-imposed closing hours for “carry-out” sales.

• Patrons may enter the establishments only for the purposes of picking up and paying for food or beverages, unless the establishment is identified as exempt in the Emergency Order (e.g., grocery stores, convenience stores, hotels, motels, etc.).

• Lines for “carry-out” must have an environment where patrons and staff maintain social distancing (six feet away from other people), and establishments must abide by the prohibition on gatherings of 10 people per Department of Health Services order.

• Permittees wishing to amend their premises may submit requests to DOR, where they will be expeditiously considered. Licensees should work with their municipalities to amend their premises. Municipalities are encouraged to work with licensees to expedite such requests, given the emergency.

As you can see, the ambiguity and open option of having someone deliver after a face-to-face transaction was not even addressed in the guidance, and certainly has no prior delineation from the pre-COVID-19 FAQ.

The oddly permissive statement remains regarding delivery following face-to-face transactions. This is all the more confusing and troubling given that delivery is essential for many citizens considered to have a higher risk of a terminal or treatment-requiring COVID-19 infection based on their status as seniors or those with respiratory conditions who definitely need to stay at home.

It seems a tad ill-advised, to say the least, that the state government appears to be requiring face-to-face interaction increasing the potential for transmission when the problem could be alleviated by stepping into the 21st Century and allowing online sales and forgiving restrictions on delivery that would not only help those at risk to receive beverages without needing to leave their homes, but also would help Wisconsin’s struggling hospitality and alcoholic beverage industry at a time when on premise activities for consumption have been terminated.