The Oregon Liquor Control Commission (OLCC) is undertaking rulemaking that would impose new regulations on the service of alcohol at food carts and other outdoor areas throughout the state. The rules would distinguish between outdoor areas not abutting a licensed building (e.g., areas associated with food carts and food cart pods) and outdoor areas connected to a brick-and-mortar licensed premise.

Overall, the proposed rules would establish a clear licensing pathway for food cart applicants. OAR 845-005-0329 outlines the basis upon which the OLCC may refuse to issue a license, and OAR 845-006-0309 establishes the requirements a licensee must meet for alcohol service. While the proposed rules are fairly straightforward, some may criticize the rules for being too restrictive.

For example:

• The outdoor area must qualify for a Number III minor posting. This posting requires that the designated drinking area not constitute a “drinking environment and drinking alcohol will never predominate.” This would be a more stringent minor posting than that required for outdoor areas adjacent to a physical licensed building. Food carts would not be allowed to have outdoor beer garden areas or environments similar to a winery tasting room. A solution to this issue would be to revise the proposed rule to allow a Number IV minor posting (“Minors Allowed During These Hours ___ to ___”) or a Number V minor posting (“Minors Allowed Only with Their Parent, Spouse or Domestic Partner Age 21 or over”) when authorized by the OLCC on a case-by-case basis.

• The proposed rule would prohibit off-premise sales of bottles or growlers for either beer or wine. This restriction seems inconsistent with the recent shift in policy (and market trends) to promote growler sales of both beer and wine by licensed retailers and manufacturers. In practice, the rule would restrict a winery or brewery license privilege simply because the alcohol sale was made from a food cart location (i.e., second location) rather than the tasting room located in a licensed building (i.e., first location). Again, a solution to this issue would be to revise the proposed rule to allow off-premise sales when authorized by the OLCC on a case-by-case basis.
   
• Two patrons may share a bottle of wine, but the proposed rule would require at least three patrons to share a pitcher of beer. The distinction between a bottle of wine and a pitcher of beer is unclear when considering volume and alcohol content. It seems reasonable to require only two patrons to share either a bottle of wine or a pitcher of beer.
   
• Alcohol service and amplified noise must cease at 10:00 p.m. whereas service and amplified noise in an outdoor area abutting a licensed building may continue until 12:00 a.m.

The OLCC will hold a public hearing on the proposed rules on Thursday, February 27, 2014 at noon. The OLCC will accept oral and written testimony at the hearing, and all written comments must be submitted by 5:00 p.m. on Thursday, March 13, 2014. We encourage careful review of the proposed rules to evaluate how they may impact current or future business plans related to alcohol service from food carts or mobile locations.