Public Health

Let People Drink Outside

It’s time to end open-container prohibitions.

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As the COVID-19 shutdowns extend into the warm summer months and people become increasingly restless under social distancing guidelines, bars and restaurants remain one of the hardest hit sectors of the economy. At the same time, cities are exploring ways to encourage the use of public outdoor spaces, which emerging evidence suggests can be enjoyed with minimal risks of transmitting the virus.

One simple policy could address both issues: Let people drink outside.

The United States has a notoriously conflicted relationship with alcohol, with our enthusiasm for drinking in tension with temperance attitudes and the patchwork of state-level regulations that succeeded Prohibition. For most of the country's history, although there were laws against inebriation, the mere act of drinking in public spaces was not a crime. That began to change in the 1970s, when subjective laws penalizing drunkenness were replaced by more objective bans on public drinking. With few exceptions, it became illegal for American bars and restaurants to sell drinks to go and for adults to consume them outside of homes or private businesses.

Liberalizing these restrictions is obviously not going to be a popular idea among public health authorities, some of whom have been trying to revitalize the anti-alcohol movement. Whatever that movement's long-term prospects, COVID-19 has dealt it a body blow in the short term. In response to the pandemic, states have loosened rules in ways I would have thought unimaginable just a few months ago.

When bars and restaurants were ordered to close, New York and the District of Columbia led the way by allowing them to sell pre-mixed cocktails for takeaway. Other states, from California to Maine, soon followed. In others, including Illinois and Texas, bars are now permitted to sell cocktail kits with full bottles of liquor for consumers to mix themselves.

None of this can replace the experience of going to an actual bar, but the new freedoms are proving popular. In Washington state, the success of cocktail kits led to the legalization of to-go cocktails. In Texas, Gov. Greg Abbot has indicated that the changes might stick around forever. Once consumers become used to picking up Margaritas with their Mexican food or Negronis with their pizza, they are unlikely to be enthusiastic about giving up the convenience.

But takeaway drinks' potential to save struggling small businesses is limited by the fact that in most of the country it's still illegal to consume them outside the home.

Although limited reopenings are already beginning, bars and restaurants will still face tight constraints on their ability to profitably operate. Many will have to significantly cut their capacity and reduce their hours; bar service may not be permitted at all, with patrons required to sit at tables. And no matter what local rules permit, consumers may be too fearful of the virus to spend time indoors surrounded by strangers.

Debates over when and how to open businesses are ongoing. Strict social distancing has helped suppress the virus, but it's also psychologically taxing and economically destructive. Writing in The Atlantic, the Harvard epidemiologist Julia Marcus makes the case for a pragmatic approach focused on discouraging the highest risk behaviors. "Enclosed and crowded settings, especially with prolonged and close contact, have the highest risk of transmission, while casual interaction in outdoor settings seems to be much lower risk," she writes. "A sustainable anti-coronavirus strategy would still advise against house parties. But it could also involve redesigning outdoor and indoor spaces to reduce crowding, increase ventilation, and promote physical distancing, thereby allowing people to live their lives while mitigating—but not eliminating—risk."

In urban environments, easing restrictions on sidewalk tables and allowing seating to spill into closed streets and parking spaces has been suggested as a way of safely increasing bar and restaurant capacity. In suburban areas, allowing businesses to convert their legally mandated parking lots into outdoor dining spaces could have a similar effect.

Allowing to-go drinks and open containers would take these ideas a step further, offering struggling businesses one more avenue for survival. The experience of coffee shops suggests that this is possible, at least in principle.

My neighborhood shop tentatively opened on weekends to offer coffee and bags of beans to go. Guests approach one at a time and patiently wait outside, lined up six feet apart. The owners tell me that customers quickly adapted to the new model. The shop is now open for take-away coffees five days a week, a relative success in the COVID-19 economy.

Alcohol is not coffee, of course, and it raises additional concerns related to disinhibition and recklessness. Drinkers will be tempted to socialize in groups, people will go on dates, and it may be difficult to convey the importance of social distancing. These tendencies may limit the feasibility of liberalizing alcohol laws.

On the other hand, these consequences may be less dramatic than feared. Public drinking might bring to mind the debauchery of Bourbon Street in New Orleans, but it's also permitted in calmer places like Sonoma, California, and Hood River, Oregon; in many countries outside of North America, it's the norm. Limiting outdoor drinking to daylight hours, as in Sonoma Plaza, or requiring the purchase of food with a to-go cocktail, as is now the rule in several states, could help prevent a descent into bacchanal.

Legalizing open containers would to some extent merely recognize what many people are doing anyway. Anecdotally, my observations in Portland suggest an informal social compact implying that for as long as bars are closed, enforcement of public drinking laws will be lax. Parks are dotted with people openly enjoying beer and wine, and evening strolls around the neighborhood frequently take place with drink in hand.

The somewhat arbitrary distinction between distilled spirits and other alcoholic beverages also obscures the extent to which de facto to-go drinks are already available. Breweries have long offered beer in growlers and "crowlers," aluminum cans that are filled directly from a tap and intended for near-term consumption. Wine-based drinks are allowed, too, which enables sale of "frosé," a trendy frozen slushy made from rosé wine. It arrives in a sealed jar, but come on: Pedestrians picking them up on hot days aren't all waiting until they get home to crack them open.

Permitting open containers could also help equalize enjoyment of public spaces. Unsurprisingly, when laws against public drinking are enforced, racial minorities appear to bear the brunt of the impact. In a 2012 decision, Judge Noach Dear of Brooklyn observed, "As hard as I try, I cannot recall ever arraigning a white defendant for such a violation." A review of a month of summonses for public drinking in Brooklyn found that 85 percent of them targeted blacks and Latinos; whites, who made up about a third of the population, received only 4 percent. Clarifying open container rules could mitigate these disparities.

The public health community will argue that allowing to-go drinks and open containers will encourage people to drink more. That may be true to a degree, but it's mostly beside the point. The big change under shutdowns is not that people have stopped drinking, it's that they are drinking in ways that don't provide revenue to the owners and employees of bars and restaurants. While governments have considered various ways to support small businesses, they have been insufficient to prevent a bloodbath in the hospitality industry. By one estimate, a quarter of U.S. restaurants won't reopen ever again. Bars and restaurants simply won't survive if they can't engage in direct trade with their patrons.

In the absence of a vaccine or massively expanded test-and-trace capacity, the safest way to make that trade possible is to minimize indoor congregation. That rules out crowded bars, but it doesn't necessarily rule out the expansion of drink-friendly outdoor spaces or picking up beer, wine, or cocktails for a leisurely ramble around the neighborhood, especially in walkable urban areas. Yet current reopening plans are focused on bringing patrons inside bars and restaurants, precisely where both they and employees may be most at risk of transmitting the virus.

To walk around my city now is to be constantly reminded of the shuttered places where in ordinary times I would be tempted to stop in for a snack, a coffee, or a drink. If we want the businesses we love to be there when we reach the other side of this pandemic, we need ways to support them.

Removing barriers imposed by restrictive alcohol regulations has proven to be one means of doing this. Perhaps, with some care, we can extend that to allowing drinks outside, whether by extending seating into streets and sidewalks or by relaxing open container laws. And if, when this is over, we decide that we don't wish to return to criminalizing responsible drinking in public spaces, that temporary repeal could become permanent.

(Disclosure: I work in the hospitality industry, consulting for spirits brands and sometimes working as a bartender.)

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  1. Growing up in New Orleans it was nothing to go to the park for a day with the family with a cooler full of beer. I was a kid, so I didn’t partake, but I never thought twice about it. When I moved out of La. I was quickly educated about the way damned near everyone else treats alcohol. Huh? I can’t sit in the park and have a beer? What the fuck is the point of going to the park then?

    1. I imagine LA parks would be filled with Mexicans drinking Corona and grilling chorizo on public BBQs.

      1. >>Mexicans drinking Corona

        my experience is they prefer Modelo.

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      2. I imagine LA parks would be filled with Mexicans drinking Corona and grilling chorizo on public BBQs.

        Help me understand the problem. Not enough grills?

      3. Yup, that is pretty much Los Angeles and Orange County parks. And if you setup at the grill next to them, usually you get a kind of pot luck thing going on. It is fucking awesome.

    2. I used to live in Lafayette. I miss go cups and daiquiri huts and 7/11 selling liquor so much.

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  2. they are drinking in ways that don’t provide revenue to the owners and employees of bars and restaurants

    The breweries and distilleries around here are banking though.

    1. State run [therefore an essential service] ABC stores in the South are doing the same. Reportedly alcohol consumption rates are up 70% with lockdown. Who would have thunk it?

  3. For a good time, I enjoy Buckfast tonic wine.

    1. For a good time (I rarely remember), I enjoy Everclear grain alcohol. Damn my state for banning the “good” stuff.

  4. Yes. Public drunkenness and disturbing the peace should be illegal. If you are drunk and causing problems, you are violating other people’s ability to peacefully enjoy commons. But if you are not disturbing the peace or causing an issue, then it doesn’t matter what you are drinking. If you can drink a coke in public, you should be able to drink a beer. And if you are causing an issue, you are violating the rights of other people regardless of whether you are drunk or sober.

    1. Being drunk in public shouldn’t be illegal, unless we’re going to ban consumption altogether. There are plenty of people who can handle their liquor just fine. I can be absolutely wasted, and no one except those who know me the very best (which basically means my wife, and even she’s usually clueless) will have the faintest clue. If anything, I get more conservative when I’m drunk. All the craziest shit I’ve done in life, I did stone cold sober.

      As you point out, any behavior that should be illegal when engaged in drunk should also be illegal when conducted sober.

      In the interest of full disclosure, though, I pretty much don’t drink anymore. Med school cured me of drinking for some reason. It just feels like work. Maybe I have commitment issues: once you open a bottle, you have to finish it. It’s daunting.

      1. Yes. I should have said “drunk and disorderly”. If you are not bothering anyone, it doesn’t matter if you are “drunk” by some arbitrary definition.

        Fair point.

        1. There is a slight problem with definitions here, but I tend to agree. I don’t think it is a big problem seeing a couple shit-faced twenty-somethings stumbling goofily down the sidewalk- even if they accidentally bump into someone. On the other hand, I really don’t like the angry hobo screaming obscenities at my kids…If we can figure out a way to limit the latter, that is preferable to banning both.

      2. I have no problem with that. Unfortunately, you are the minority, with the majority losing their inhibitions, yet often not realizing it or caring if they do. I have no need of rescuing others from them or getting into a fight with some asshole who is being an asshole. While I agree in principle with the idea of letting people drink wherever they want, practically it often doesn’t work out well for those who get in their way. The better part of valor is often to avoid that which causes a problem than to have to deal with the problem after it is in play.

    2. the same goes for any substance, not just alcohol.

  5. This is almost a good article. What would make it better is if you stopped at the headline instead of including a multitude of caveats and restrictions in the body.

  6. “the debauchery of Bourbon Street in New Orleans,“

    Good times. Good times.

    Funny because these days with my corona hair and an unusually cold spring around here I have taken to wearing some kind of hat when on walks around the neighborhood. Found one in the closet from Meyer the Hatter on St. Charles street. If you are ever there stop in. The guys will fix you right up.

    1. My grandfather (the one who was born in 1906) had a couple hats from them that he wore over his greased back hair.

    2. Was just in New Orleans on vacation earlier this year. Do they shampoo the street year round? or is that just a February thing?

      1. You are clearly lying. I have it on good authority that everyone in NO during February came home, infected their entire town, and promptly died. You sir, are not dead, and so are clearly a deceitful cur.

  7. One of the things I loved about Germany, besides the fact I could take my dog everywhere (she used to perch on my desk when I was in class), was the fact that if I dropped my passport under a table in a bar in Sachsenhausen, I could grab a bottle of Hefeweizen from some outdoor kiosk, crack it open, and wander the streets on foot at 6 o’clock in the morning until I found the damn thing again.

    Not that I ever had to do that, of course . . .

    Germans can’t carry sidearms, render the Nazi salute, or display Nazi regalia (things I have no interest in doing anyway), but in many ways that affect the average person on a typical day, they enjoy more freedom and liberty than most Americans could ever dream of.

    1. All of that being said, as much as I support the abolition of open-container laws, is this really the most important issue Reason can think of to write about right now?

      1. Probably not, but walk and chew gum. Conversely, is this really the most important issue that you can choose to read about?

      2. It isn’t like there’s anything going on with respect to the surveillance state. What would you expect them to cover?

      3. Actually I think it’s highly relevant. What we have done is lock people in at home where many just drink alone. Sometimes I think how you consume alcohol is almost as important as how much you consume. Making anything taboo is dangerous, and brings the temptation to hide it out of shame, leading to an unhealthy relationship with the substance (i.e. drinking is shameful and you’re bad for doing it). I’m often tempted to hop in my car with a couple of beers, drive a bit farther west and sit outside with the beers to watch the sunset. Even better if a few others do the same and we can chat a bit. But I fear being arrested. Why is that worse than having two beers at a bar?

    2. Yeah this is one thing that gets overlooked in the Europe vs US/Red vs Blue poo-flinging.

      Likewise, in Sweden, you have so much easier time running your business. You’ll get the shit taxed out of your personal income, of course, but your freedom of entrepreneurship is pretty high.

  8. People should also be able to smoke inside. Don’t like it? Don’t go to the bar or restaurant.

    1. As much as I love the results of smoking bans (I get migraines from cigarette smoke), I have the intellectual honesty to oppose them on fundamental principles.

    2. The way it should be written is that the establishment owner sets his own rules. Don’t like it, go elsewhere. While most were deathly afraid that smoking bans would ruin their business, they’ve found just the opposite. I think most would stick with the non-smoking version, as the split restaurant [smoking area vs non-smoking area] sucked.

      1. Bars screwed themselves by not having adequate ventilation.

  9. I said pretty much this to my fiance a couple of days ago. If the city gave a damn about small business (they don’t), they’d suspend the open container law for a year (baby steps…). A lot of mom-and-pop bars, even when Commissar DeBlasio deigns to allow them to re-open, won’t be able to operate meaningfully with social distancing laws. Letting people have a drink on the sidewalk in front would at least give them some glimmer of hope of not having to shut down permanently.

    1. The big limit here is actually the other entrenched businesses. If you can go to the local bar and walk home with a styrofoam cup filled with rum and coke, you don’t need to stop at the liquor store on your way back to the apartment. And the liquor stores just can’t have that.

      I am reminded of how in Colorado, the same industry groups who were screaming “VOTE FOR FREEDOM!” in support of allowing liquor stores to open on Sundays, were screaming “Protect our kids from booze!” when the vote was whether or not to allow grocery stores to sell liquor.

      1. Louisiana has drive through bars and still has liqour stores.

    2. Since we’re on the topic of ridding bad pre-Covid19 drinking laws (ha, who said that “don’t let a crisis go to waste” is only for the pro state side); let’s rid of all the “last call hours” laws.

      The longer establishments stay open, the less crowded they will be, because people are spreading thin. This was the argument Reason made earlier against limiting hours for stores. Apply it to bars, and while we’re at it; remove the restrictions permanently.

  10. Of course, this would send us back to the bad old days when it was up to the discretion of the cops as to who was disorderly – – – – – –

    1. That’s still within their discretion.

  11. bars and restaurants remain one of the hardest hit sectors of the economy

    Is ‘bars and restaurants’ a euphemism for women and minorities?

  12. Going back to fundamentals, none of this is about health, it’s about control-junkies getting their fix. Alcohol, pot, social distancing, building regulations, it’s all the same drug: control!

  13. If you’ve never been to Savannah and like alcohol, parks, and history, I strongly recommend the trip. You can drink walking around outside, and when you finish your drink, you’re never very far from the next bar to pop in for a refill.

    1. +1. One of the best long weekends I’ve ever had was stumbling along that town.

  14. Great idea. Never going to happen. It makes too much sense.
    I’m an officer at a small social club. We have a very nice fenced in yard. When we get the chance to get going again it would be very simple to put some tables and chairs in the yard. There’s a spot where we could open up a section of windows, put in a bar top and see the television inside. The problem is that under current law we have to petition the Government because it is an expansion of licensed space. We have to post notice for thirty days and allow the public to comment. There’s a group that automatically comments on every application. They are usually enough to get it rejected.

  15. I’ll take your premise one step further. It isn’t that we have a problem with alcohol… it is that we have a problem with getting high. Getting high is not regarded as a legitimate practice. Even if you are drinking, it is normal to mitigate by saying you are a “social drinker”, or you “enjoy the taste of a beer”.

    This is the root of the problem. If “getting a buzz” was considered a legitimate pursuit, our laws would look very different, and as a result, so would our pharmaceutical industry.

    The painkiller business involves drug companies attempting to remove the euphoric effects of opiate painkillers – resulting in less effective medications. If they were able to market recreational drugs with the explicit purpose of getting high, they could focus on reducing side effects, reducing overdose risks and reducing addiction risks. How much better would a custom-designed intoxicant with easily controlled doses and limited-time effects be?

    Our puritan streak isn’t just about limiting our choices with alcohol, it makes our desire to get high inherently more dangerous.

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  17. Corona Drink is always best but in pandemic situation, everyone just hate the word corona.

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