Carryout Drinks Exception To Expire On July 1; Local Jurisdictions’ Say Overrides Recent State Legislation

OCEAN CITY — With the governor’s COVID-19 state of emergency set to expire, certain business practices borne out of the pandemic will go away, while others could remain.

When the health pandemic emerged last spring and Gov. Larry Hogan declared a state of emergency, restaurants and bars were closed to the public and many went to a carryout and delivery model including modified ways of selling alcohol. The state and allied local liquor boards relaxed the rules for selling beer, wine and spirits through carryout or delivery and mixed drinks in sealed containers for off-site consumption.

While certainly not ideal, the relaxed rules sustained many businesses through the pandemic, allowing them to generate some revenue and keep people employed. As a result, a pair of bills were introduced and ultimately approved in the General Assembly this year to allow the carryout and delivery model to continue.

The legislation requires local liquor boards to adopt regulations to allow for the continued sale of carryout or delivery alcohol, but it is strictly the local board, in this case the Worcester County Board of License Commissioners (BLC), that decides whether to not to adopt regulations allowing the practice to continue. Last week, the BLC sent out an email blast to the county’s liquor license holders advising them the carryout and delivery model would end when the governor’s state of emergency expires on July 1.

“As a result of the expiration of the governor’s executive orders in regard to carryout and delivery of alcoholic beverages, effective July 1, 2021, all holders of alcoholic beverage licenses in Worcester County will cease all carry out and delivery of alcoholic beverages, which were permitted solely through the executive orders,” the BLC’s notice reads.

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House Bill 12 and its companion Senate Bill 205 were approved by the General Assembly and signed into law by the governor. It allows for the sale or delivery of alcoholic beverages for off-premise consumption “providing that certain authorization for the holders of certain licenses to sell alcoholic beverages for off-premise consumption in a certain manner applies only in a jurisdiction in which the local licensing board had adopted certain regulations.”

In other words, its up to each local licensing board to decide if it wants to adopt regulations to allow the practice to continue. The Worcester County BLC’s attorney said this week the board has not yet considered whether or not to adopt regulations allowing the off-premise sales to continue. He also said the board has not yet received any calls or emails asking for regulations to allow off-premise sales to continue once the state of emergency expires next week. He said some jurisdictions would likely adopt regulations and others will not.

The off-premise sale bill approved by the General Assembly and signed by the governor simply allows the practice to continue if the local boards adopt regulations to that effect.

“In considering whether to adopt regulations under this section, a local licensing board shall weigh the need to promote the economic recovery of different categories of small businesses in the wake of the COVID-19 pandemic and the need to protect public health and welfare,” language in the bill reads.

The BLC’s email blast to the license holders last week also addressed temporary outdoor seating issue. During the pandemic, when restaurants and bars were operating with limited capacities, many asked for and were approved for temporary outdoor seating areas in order to keep businesses afloat.

“Additionally, outdoor seating which was permitted during COVID-19, shall be removed as required by the Worcester County Health Department, or the governing authority in which the licensed premises is located,” the notice reads.  “All license holders will be required to adhere to all regulations and requirements for the seating of patrons and service of alcoholic beverages that existed prior to the COVID -19 outbreak, unless a request for alteration of a licensed premises is approved by the Board of License Commissioners.”

The BLC attorney essentially said the temporary outdoor seating issue falls under the purview of the county health department, the local jurisdiction, such as the town of Ocean City, for example, and the fire marshal’s office. During the pandemic, the town has allowed businesses to create temporary outdoor seating areas under certain conditions.

City Manager Doug Miller said this week there were basically two components to the temporary outdoor seating issue.

“On the first [of July], those restaurant owners who are offering temporary outdoor seating in many cases made sizable investments to do so,” said Miller. “Therefore, we will allow the temporary use to continue through the end of the calendar year.”

In some cases, the seating areas are just that, temporary, and Miller said the town will allow those to continue. In other cases, some businesses have made their temporary outdoor seating areas permanent, after going through the appropriate approval process such as zoning compliance, site plan approval and building permit approval, for example.

“On the second, if a permanent outdoor-type structure has been legally built, then it is zoning compliant,” said Miller. “As such, it can remain in operation for as long as the owner desires.”

The program was implemented at the height of state restrictions on indoor dining and dozens of local businesses took advantage of it. Generally speaking, Ocean City food service establishments fell into one of three categories in terms of outdoor seating.

Naturally, those with existing dining areas were immediately allowed to utilize those areas when Hogan announced the first phase of the state’s recovery plan. The second category included those that did not have existing outdoor dining, but had opportunities on their own private property to create areas for outdoor seating. The third included those businesses that desired to use a portion of the public right-of-way, such as sidewalks and street areas, for example.

The Mayor and Council, in partnership with the county health department, the local liquor board and the Ocean City Fire Marshal’s Office, implemented a flexible plan to allow the latter to utilize areas in the public right-of-way for outdoor seating, as long as other COVID restrictions such as masks and table-distancing were observed. In some cases, that meant adding a few tables on the public sidewalk adjacent to the business. In other cases, it involved putting picnic tables in the roadway adjacent to a business on a temporary basis.

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.