Open Container

The other night I met a friend for dinner at a local surf and turf restaurant. As soon as we were seated Trish*, our server,  informed us that the restaurant was having a special on their wine by the glass, but if we would be having more than one glass each it would be a savings to purchase the bottle. “Don’t worry,” she continued, “if you don’t drink it all we’ll just reseal the bottle and you can take it with you. It’s a great way to enjoy some wine with your dinner and enjoy the rest after you get home.”

“Seriously, that sounds like Open Container to me,” I said. Trish was quick to tell me that was not the case. She explained that the staff reseals the bottle and, since the bottle is sealed, the Open Container Law does not apply.

My friend and I conversed in front of Trish about the prospect of resealing: perhaps the restaurant had some kind of machine that recorked the bottle and then affixed a seal over the cork. Neither of us was familiar with the process of recorking, or resealing so we deferred to Trish who again simply repeated her script “we just take the left over wine in the bottle to the kitchen, reseal the bottle, and put it in a bag for you to carry home.”

When dinner was over… Trish brought our to-go bottle back to the table. It was in a plastic grocery style bag with the handles tied together in a single loop, not even tightly tied because, you got it, the corked bottle was too tall to fit down inside of the bag. That’s right folks, but it gets better.

There was NO SEAL…just a cork shoved into the mouth of the bottle, bottle placed in a bag with a receipt taped to the bag. No tape across the bottle mouth and cork; not even saran wrap around the bottle.

This is just crazy. Why would this restaurant or any other, risk their licensing over such a ridiculous up-sell. Are times so tough for restaurants that they have to lie to their patrons? I think not. Many restaurants have survived the economic down turn by serving good food at an affordable price and providing excellent customer service.

I thought perhaps providing partially consumed alcoholic beverages to-go was an anomaly for this restaurant; I mean they are tucked away off the beaten path so maybe this was a way to attract more business. But apparently, this restaurant is not alone.

Conversation with a colleague today revealed that at our local market fish bar the same thing goes: select your own vintage to compliment your sushi, recork what you don’t drink and pay for it on your way out. Seriously? Did I miss something here?

I picked up the phone and called another colleague Jeremy Bennett, Southern Crescent Technical CollegeDepartment Chair and Director of Emergency Management for the Campus Police. I told Bennett my story and listened to him laugh. Bennett immediately said that if someone leaves a restaurant with a partially consumed alcoholic beverage they are in violation of Georgia’s Open Container law, and if caught, are subject to arrest. Bennett went on to say that even an old beer can under the seat with alcoholic residue is considered to be an Open Container violation.

Bennett read the Georgia Statute to me over the phone:

The law defines “open alcoholic beverage container” as any bottle, can, or other receptacle that contains any amount of alcoholic beverage and: (1) is open or has a broken seal; or (2) the contents of which are partially removed. The law prohibits anyone from consuming any alcoholic beverage, or possessing any open alcoholic beverage container in the passenger area of any motor vehicle which is on the roadway or shoulder of any public highway. Only a person who consumes an alcoholic beverage or possesses an open alcoholic beverage container will be charged with an open container violation; however, a driver who is alone in a motor vehicle shall be deemed to be in possession of any open alcoholic beverage container.

According to the Statute, Bennett affirmed that a recorked bottle of wine with some of the contents removed is classified as an alcoholic beverage with a broken seal and as such is a violation of the Georgia Open Container Law. Bennett said a good rule of thumb is whatever alcoholic beverage that is sold in a restaurant stays at the restaurant.

Bennett had not heard of restaurants offering to reseal or recork wine, but, affirmed that the way law enforcement sees it is that any container that has been opened is considered to still be open. Bennett also said an Open Container violation goes against your drivers license which effects your insurance. Although the initial fine may be relatively small the stakes are high.

So whats going on here? Are restaurateurs making it up as they go along? Is the race for the almighty dollar so fierce that restaurants and bars have resorted to making false claims about the law to their patrons in order to up-sell the cost of a meal? I realize that a large portion of restaurateur’s revenue originates from the sale of alcoholic beverages; but, telling patrons that a partially consumed alcoholic beverage is a to-go item is wrong. Seriously, it’s an alcoholic beverage, not an order of key lime pie or chocolate cake.

Take a moment right now and think about it. Can you see yourself at a roadside stop trying to tell the Officer who is peering in your window and shining his flashlight in your car, “…but Officer, the girl who served me at the restaurant said it was ok.” Bennett said discovery of Open Container would probably lead to a field sobriety test; connecting Open Container to the driver means a ride to the station and we all know what happens from there.

But, what about accountability; is Trish, and her boss, or for that matter the restaurant owner, in any way culpable if I am arrested for Open Container violation when in possession of the recorked bottle of wine they convinced me was alright to take home? In my mind they are guilty; but since I am not an attorney I decided to ask Mike.

W. Michael Maloof, Jr., Esquire is a criminal defense attorney at The Law Office of W. Michael Maloof in Decatur, GA. Mike and I had a conversation and apparently there is a good argument to be made for Trish and her boss being culpable, but, he did not think it would actually fly. After reviewing the Open Container Law Mike did say that he is of the belief that if a driver has a partially consumed container of an alcoholic beverage in their vehicle it is a violation of the law.

We discussed the pros and cons of this matter, and came to the conclusion that any driver of a vehicle with unsealed or partially consumed alcohol in the cab should already know that if they are stopped, they will be connected to the alcohol and be arrested. This is nothing new.

With regard to the restaurants culpability Mike said no. He did go on to say that the better argument may be that restaurant management wanted to encourage more responsible drinking. Instead of being accused of over-pouring, they offer to recork the container and package partially consumed alcoholic beverage as a to-go item. This may actually encourage patrons to not feel as though the need to consume the whole bottle in one sitting just because they ordered it. Either way, Mike said it would most likely be a matter for civil court. However, the flip side for the restaurant  is that according to Mike “the evidence would look extremely damning” for the restaurant to lose their license to sell alcoholic beverages.

No matter which side of the table you are on, ask yourself one thing: is it worth the risk?

Oh, about that recorked bottle poking through the to-go bag Trish left on our table… we decided it was not worth the risk of a traffic stop, left the wine on the table and took chocolate cake home instead.

*Not the actual name of our Server.

Lane Taylor