The controversy continues over Utah’s so-called “intent to dine” requirement for restaurants licensed to serve alcohol. As we previously discussed, the Utah Legislature amended the law to require restaurants to confirm that a patron has the intent to order food before serving an alcoholic drink. In response to the change, the DABC has proposed three draft rules, which are intended to clarify the steps a restaurant must take to comply with the statute. As noted on the DABC’s website, the “statutory language requires affirmative action on the part of the server (handing a patron a menu or having a sign or menu available is not enough).” 

Draft Rule #1 allows a restaurant to provide a single alcoholic beverage once the server has verbally confirmed that the patron will be ordering food at the establishment. Verbal confirmation can be that the patron is waiting for a table or reviewing the menu so long as it is not intended as subterfuge to get around the “intent to dine” requirement. The rule also provides that food provided gratuitously or ordered for takeout does not qualify. Draft Rule #2 is similar, but eliminates the wait-list and menu reviewing clarification. 

Draft Rule #3, however, takes a slightly different approach. It would allow a server to confirm an intent to dine by verbally establishing that “the patron is on a wait list for a table or waiting for the rest of his or her party.” In addition, reviewing a food menu would also be sufficient confirmation.

Importantly, under each of the DABC’s draft rules, the server is the person who is required to confirm a patron’s intent to order food. The statute, however, places this burden on the restaurant licensee without singling out specific employees. This shift could create potential issues with enforcement. If, for example, a hostess or manager confirms that a patron intends to dine, and a server then serves the patron a drink, the restaurant licensee still could be subject to a DABC enforcement action under any of these three rules. 

Several recent articles highlight the current tension between the restaurant industry and some legislators over the “intent to dine” requirement. In fact, two members of DABC’s newly-formed Advisory Committee recently testified before the Legislature’s Interim Labor Committee and expressed concerns that both the statutory requirement and the proposed rules are awkward, inhospitable and unnecessary in light of the mandatory food-to-beverage ratios for restaurant licensees. Additional legislative changes, however, would be necessary to address fully those concerns. 

The best that the industry can hope for under the current statute is for a rule that does not unduly burden restaurants and annoy patrons. Out of the current draft rules, the third comes closest to achieving that balance, but perhaps with additional feedback the DABC will allow confirmation by any employee as opposed to putting the onus solely on servers. 

The DABC is accepting feedback on the draft rules until August 20, 2013. Comments can be submitted by email to Nina McDermott at nmcdermott@utah.gov. If you wish to further discuss this issue, please contact us.