Alcoholic Beverages Law Blog : Attorneys & Lawyers for Wine, Beer, Hospitality Industry

Portland-area food cart owners are innovative, creative, and continue to contribute to Portland’s food and beverage culture. The range of food options varies greatly, but it is easy to find what you are looking for, or get updated on the recent cart happenings, with the likes of Food Carts Portland. Portland’s food cart culture has even been featured in Sunset Magazine and the New York Times.

Recently food cart owners have been exploring the possibility of serving alcoholic beverages to complement your burrito, panuchos, grilled peanut butter and jelly sandwich, falafel, or whatever else you may be enjoying. A limited few are already serving up beer and wine. For example, Pizza Depokos at North Station has a limited on-premises license to serve beer and wine, and Captured by Porches Brewing Co. appears to be serving beer out of a mobile bus under its existing brewery license, as described in an OregonLive.com article.  However, whether we will see more food carts serving up beer or wine depends on whether a cart owner can convince the Oregon Liquor Control Commission (OLCC) that it qualifies for a license under the current regulatory scheme. 

The first, and probably biggest, hurdle a food cart owner has is the issue of defining the licensed premises. State law prohibits the OLCC from issuing a license to a location that does not have defined boundaries. While a licensed premises does not need to be enclosed by a wall, fence or other structure, it must have defined boundaries that are discernable. Further, state law prohibits the OLCC from licensing premises that are “mobile” unless the premises is a licensed public passenger carrier (like an airline, a railroad, or a tour boat operator). What constitutes “mobile” is up for interpretation at this point and may likely be the subject of the OLCC’s upcoming request to the Oregon Attorney General for an opinion.

Other likely licensing issues include, but of course are not limited to, minor posting, premises control, and local endorsement. These issues exist whether a food cart owner pursues a limited on-premises license, a temporary sales license, or some other privilege like a second or temporary location under another license type (i.e., brewery or winery license). In addition to these license-specific issues that an applicant must address, food cart owners must also be aware of the potential for increased site liability as well as increased regulatory scrutiny through the local endorsement process, which will trigger a compliance review of all applicable zoning, building, and health codes.

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By Guest Blogger, Summer Associate

The Oregon Liquor Control Commission and the Oregon Department of Justice recently opined that, under a post-prohibition-era law, homebrewed beer and homemade wine must be consumed at home. This opinion, reportedly in response to a question regarding the permissibility of public competitions involving homebrewed beer, is in effect a reversal of the OLCC’s previous policy permitting public competitions and understandably has caused great concern within the Oregon home brewing community. One immediate effect has been the cancellation of the amateur beer and wine competitions at the Oregon State Fair after more than 20 years of such contests.

The law in question, ORS § 471.403(1), reads

No person shall brew, ferment, distill, blend or rectify any alcoholic liquor unless licensed so to do by the Oregon Liquor Control Commission. However, the Liquor Control Act does not apply to the making or keeping of naturally fermented wines and fruit juices or beer in the home, for home consumption and not for sale.

Apparently, the OLCC and DOJ determined that “for home consumption” does not include public tastings and competitions, and therefore any out-of-home consumption is subject to OLCC control.

However, a few questions remain. First, what will the Oregon courts say that the statute means? The OLCC and DOJ have changed their view of the law and may therefore choose to enforce its provisions more broadly, but in the absence of a new administrative rule codifying the revised interpretation, the courts may not come to the same conclusion as OLCC. Second, specifically which provision of the Act would a homebrewer violate by participating in a competition? Arguably, a homebrewer would violate ORS § 471.405(2), which reads

No person shall purchase, possess, transport or import, except for sacramental purposes, an alcoholic beverage unless it is procured from or through the Oregon Liquor Control Commission, except as provided otherwise in the Liquor Control Act.

That said, because ORS § 471.403(1) permits the “keeping” of homebrewed beer in connection with home consumption, it is not clear that participating in a public competition amounts to more than this.

In the meantime, some homebrewers have organized the Oregon Homebrewers Alliance to urge the Oregon Legislature to update the law during its next session in January 2011. Reportedly, Rep. Mike Schaufler, D-Happy Valley, and Sen. Floyd Prozanski, D-Eugene are working on a draft bill that would change the law to explicitly allow home brewers and winemakers to take their products outside their homes. Stay tuned.

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