State rules governing to-go drinks, outdoor dining expire as politicians figure out next steps

Outdoor dining area during the pandemic  at Fitzwilly's restaurant in Northampton.

Outdoor dining area during the pandemic at Fitzwilly's restaurant in Northampton. gazette file photo

By Chris Lisinski

State House News Service

Published: 04-01-2024 5:04 PM

BOSTON — This week’s dismal weather forecast might actually have a silver lining for some restaurateurs.

After nearly four years with a streamlined system in place to permit outdoor dining and permission to sell takeout alcoholic drinks, both practices lapsed Monday as the calendar flipped to April.

Lawmakers are still figuring out what measures to keep around, and that work has cruised past the March 31 expiration date, rendering the pandemic-era policies popular in some corners at least temporarily kaput.

The sluggish legislative pace leaves some restaurants who were able to seat diners outside on Sunday unable to do so Monday, and Bay Staters of all stripes no longer able to pick up a premade mixed drink from their favorite neighborhood watering hole like they might have over the weekend, according to Massachusetts Restaurant Association President Steve Clark.

“Thankfully, this week, the weather doesn’t look great,” Clark said. “I think the conversations will be a little more urgent from our perspective if it was an 80-degree day or if we were going to have a bunch of really nice days, but the fact that the weather this week is not going to be great — people that need it aren’t going to be screaming for outdoor dining.”

The outdoor dining change, first implemented in an executive order from former Gov. Charlie Baker and later enacted in state law, simplified the process for cities and towns to approve where alcohol and food can be served outside the licensed premises.

Without the language on the books, restaurateurs face the longer, more traditional licensing process to get permission to expand outdoors, which involves the municipality and the Alcoholic Beverages Control Commission.

Many restaurants already went through the effort of securing permanent authorization for their expanded outdoor dining, Clark said, but those who did not will lose the ability without additional legislative action. He added that “less than a majority, but more than a subset” of restaurants will be affected.

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Although his members are hopeful the outdoor dining reforms and takeout drinks will soon return, Clark said he does not sense much frustration aimed at Beacon Hill among the industry.

“I think most restaurants are just saying, ‘Hey, I just need to know the landscape that I need to operate under — what is legal, what is not, I don’t want to put myself in a situation where I’m committing a violation,’” Clark said. “We need clarity of what the law is. We sell a regulated product, and we need to know what the regulations are.”

The House and Senate are both on board with making the outdoor dining licensing reforms permanent. Where they differ is on takeaway alcohol (and the emergency family shelter reforms that headline the bills in question).

In the House, representatives voted in favor of a spending bill that would make takeout drinks permanent, while senators left the topic untouched, effectively signaling they would prefer to let it expire. Sen. Jake Oliveira of Ludlow filed an amendment that would have added permanent authorization for the pandemic-era program, but he withdrew the proposal without debate or seeking a vote.

The Massachusetts Package Store Association has been vocally campaigning against the takeout drinks policy, alleging that it has morphed from a way to relieve pressure early in the public health emergency into a threat to retail sales with few guardrails.

Rob Mellion, the group’s executive director, said Monday that his group is most concerned about the sale of large quantities of alcohol to go, especially by distilleries and breweries.

“We’re talking about $400, $500 worth of alcohol in one order. That’s what the stores have a problem with,” Mellion said. “It’s not a Mai Tai and a pizza that has stores upset, and when I say stores, it’s not just liquor stores. I’m tired of that soundbite of the Restaurant Association, because it’s false. It’s the independent markets, it’s the convenience stores, it’s the package stores, it’s all of them. The entire retail tier is upset about it.”

Mellion thanked senators for declining to take up another extension or permanent authorization for takeout drinks, suggesting that the chamber “open[ed] up doors that we could actually inject some reason.”

“We are open to compromise. The problem is that no one’s been willing to compromise,” he said. “It’s just been trying to run us over.”

The lapsed authorization is the latest entry in what’s become an occasional occurrence on Beacon Hill.

In 2021, Baker signed a law keeping expanded outdoor dining and to-go drinks in place roughly 33 hours after the practices expired at the end of the COVID-19 state of emergency. The Legislature has also been slow to extend authorization for horse racing and simulcasting, at times rendering the industry temporarily illegal.

A conference committee tasked with crafting a final shelter-and-pandemic-policies bill convened its first meeting Monday, where lawmakers quickly moved to continue their deliberations behind closed doors.

“We have some obviously important pieces in there that are of immediate need. And I know we share a desire to see this get to the governor’s desk as soon as we can,” said House Ways and Means Committee Chair Aaron Michlewitz.

Until they reach agreement and get Gov. Maura Healey to sign off on the final product, restaurants and alcohol sellers will return to the pre-pandemic status quo.

Healey also endorsed permanently enshrining the ability for bars, restaurants and other establishments to sell beer, wine and cocktails to go, including a similar proposal in a municipal reform bill she filed in January.

“It’s up to the Legislature now,” Healey said Monday when asked for her opinion on takeout drinks. “I know they’re in conference now, so we’ll see what comes out of it and I’ll review what gets to my desk.”

“I’ve supported it generally, but I know there’s a difference of opinion on it, so I think that’s up to the policymakers to sort out,” she added.