Take It to Go-Legal Developments and Implications for the Hospitality Industry

In response to economic pressures during the COVID-19 pandemic, New York State temporarily authorized the sale of alcoholic beverages for off-premises consumption by on-premises licensees, pursuant to Executive Order No. 202.3 (March 16, 2020) issued by then-Governor Andrew Cuomo under emergency authority. This order was implemented and enforced by the New York State Liquor Authority (SLA).

Recognizing the popularity and financial importance of this practice, the New York State Legislature passed and Governor Kathy Hochul signed into law Chapter 281 of the Laws of 2022, codifying the continuation of alcohol-to-go sales under Alcoholic Beverage Control Law § 106(15). The law permits on-premises licensees (e.g., bars and restaurants) to sell “sealed containers” of alcoholic beverages for off-premises consumption, provided the sale is accompanied by a “substantial food item,” and does not include full bottles of wine or spirits.

This statutory change remains effective through 2030, unless further amended. The SLA has issued updated guidance on permissible container types and sealing methods, with noncompliance subject to administrative penalties under 9 NYCRR Part 53.

Key compliance considerations include:

• Only sealed containers are eligible for takeaway sales.

• A qualifying food purchase must accompany each alcohol-to-go sale.

• Spirits and wine may not be sold in unopened bottles for off-premises consumption.

Licensees found in violation may face disciplinary action, including suspension or revocation of licenses, pursuant to Alcoholic Beverage Control Law § 118.

Open Container Laws: Municipal Authority and Enforcement

In contrast to the uniformity of the alcohol-to-go legislation, open container regulations are governed primarily by municipal ordinances. In the City of Buffalo, for example, open container laws remain in force under Buffalo City Code § 69-1, which prohibits the possession of open containers of alcoholic beverages in public places without a permit. Violations are typically enforced as non-criminal offenses but can lead to fines or citations.

While these laws are intended to maintain public order and safety, they also generate tension with efforts to encourage outdoor dining and public events. Recent discussions before the Buffalo Common Council have explored the possibility of relaxing these restrictions in designated areas, particularly in entertainment and tourism corridors.

In contrast, the Village of Lancaster formally repealed its open container prohibition in March 2023, allowing for broader public consumption in certain zones. This decision, while controversial, reflects a growing movement among suburban and rural municipalities to modernize liquor-related ordinances to support local businesses.

Legal challenges to open container laws have historically been limited. However, the New York Court of Appeals has upheld similar municipal regulations in People v. Johnson, 66 N.Y.2d 398 (1985), finding that public possession of alcohol may be reasonably restricted under a municipality’s police powers, provided that enforcement does not violate constitutional protections, such as the Fourth Amendment.

Implications for Hospitality Operators

For restaurant and bar owners in Western New York, these developments create both opportunities and risks. The extension of alcohol-to-go sales provides a supplemental revenue stream and reflects a consumer preference that may become a permanent feature of the hospitality landscape. However, failure to comply with the strict provisions of the ABC Law and SLA regulations could result in serious licensing consequences.

Similarly, while changes to open container laws at the local level may invite creative business models, such as outdoor tasting zones or walkable beverage districts, operators must closely monitor municipal codes and engage with local lawmakers to ensure legal alignment and avoid inadvertent violations.

As legal frameworks around alcohol service and public consumption continue to evolve, hospitality businesses in Western New York must remain proactive in their compliance efforts. Legal counsel should be engaged to review operational practices, licensing obligations, and the implications of local ordinances. Municipal law and state regulatory schemes can shift rapidly, and timely legal analysis is essential for navigating this complex regulatory environment.