THE LIMITATIONS FOR LICENSED PREMISES CAUSED BY THE REQUIREMENT OF “CONTIGUOUS SPACES”

Law Offices of John P. Connell, P.C.: For decades, going to a restaurant that has a liquor license has been largely a stagnant experience in the sense that a patron usually dines either in a defined dining room area or in the bar area of that restaurant. Modern restaurant designs have blended the bar and dining areas, and some designs have moved towards seating patrons in the kitchen or even blending the dining and kitchen areas together as a single multi-functional space. All of these areas, however, are contiguous with each other within the four walls of a defined restaurant, and modern designs that may want to work into the “restaurant experience” other spaces within a restaurant’s building cannot do so due to the requirements of Massachusetts liquor laws.

These areas of the restaurant where a patron may be seated, served and travel freely with an alcoholic beverage are defined as the “licensed premise,” an imaginary box within which alcoholic beverages may be delivered, stored and served, but from which alcoholic beverages generally cannot leave. All the separate areas within a licensed premise, from the storage area in the basement to the roof deck, must be connected to each other by internal hallways and stairwells, or otherwise must be “contiguous” to each other. For example, one cannot be served an alcoholic beverage at the bar of a restaurant and travel with it out the front door and across a building lobby or across a public hallway to reach another area that could be used by that same restaurant. Indeed, restaurants offering patio service may only serve drinks on that patio if the outdoor space is immediately adjacent to the interior licensed premise.

By acquiring a liquor license, a restaurant, brew pub, brewery or any licensed establishment is obligated to provide its local town or city and the Massachusetts ABCC with a very specific diagram that defines and marks the boundaries its licensed premise.   Section 12 of Massachusetts General Laws Chapter 138, which provides the authority for a restaurant, hotel, pub brewery or tavern to sell alcoholic beverages to patrons for consumption on the premises, as read by the ABCC, provides that, with the exception of hotels, such licensed areas must be “appurtenant and contiguous” throughout the premises. See Springfield Library and Museum Association d/b/a Café on the Quadrangle, dated November 21, 2006.

Restaurants are undergoing a renaissance in Massachusetts when it comes to providing the “experience” its patrons receive when visiting their establishments. In conjunction with providing a dining and drinking experience, venues are seeking to work into that experience such innovative activities as art displays; seminars and adult education; painting and cooking classes; learning to make your own wine or beer; and other such activities that fuse the communal experience of eating and drinking with friends and strangers alike, with learning something new or engaging in activity that is either educational or productive. The concepts that could be potentially fused with the common dining and drinking experience, from exercise to retail shopping, are almost unlimited.

These concepts, however, which transcend traditional concepts of live entertainment wherein a stage or functional hall is already incorporated into the licensed premise, often times would require or could certainly utilize other areas within a restaurant’s building, such as auditorium halls, lobbies, classrooms or other spaces that could be leased or occupied by a restaurant, or even blend into areas occupied by other businesses. Such potential spaces physically located outside the imaginary box of the licensed premise are, however, not contiguous to that licensed premises, and therefore are not potential spaces a licensed premises can utilize for its “experience.”

Other states and countries are not bound to such restrictions when it comes to design, and some markets worldwide purposefully incorporate multiple bars and restaurants with other retailers and commercial shops under one roof, and with one liquor license to create an integrated and enhanced dining/shopping experience.

While abolishing the prohibition against possessing an open container of alcoholic beverages in Massachusetts is not the solution to expanding the traditional restaurant experience here in Massachusetts, providing local municipalities with the power to allow a licensed premise to step out of the imaginary licensed premises box in order to access another non-contiguous space may unleash a design and use revolution for the traditional restaurant.

Other states have embraced such concepts. In Arizona, for example, Title 19, Chapter 1-105 of the Arizona Administrative Code provides standards for the licensing of non-contiguous areas under a liquor license, stating approval will only be granted if “the public convenience requires and the best interest of the community will be substantially served by approving inclusion of the non-contiguous area in the licensed premises” and “[t]he licensee demonstrates control of the taking of spirituous liquor between the non-contiguous area and the remainder of the licensed premises.”

While the Massachusetts legislature is now considering a host of potential revisions to G.L. c. 138, the state law governing liquor licensing which rarely has been materially amended since the end of prohibition, lawmakers should consider doing away with the strict literal requirement that a licensed premise be contiguous in all respects. Concepts fusing eating and drinking together with shopping, culture and education could significantly enhance the experience for all of us who dine out and enjoy the communal atmosphere that restaurants provide. Surely, Massachusetts’ legislatures should at least study this innovative measure and, if workable, “get with the times.”

 

 

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