Let People Drink Outside
It’s time to end open-container prohibitions.
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.)