This story was first published at 4 a.m. April 24, 2020 and was updated at 1:45 p.m. April 24, 2020.
Editor's note: This story originally stated bars were able to reopen for takeout with the governor's order.
I can’t believe I’ve been writing about this for a month, but the deeper we looked into the mess that is the state’s approach to alcohol sales in the pandemic, the more confusing and disturbing it became.
We wrote about when the governor said mixed drinks were allowed, but TABC wouldn't allow that, Gov. Greg Abbott’s absence on the issue and the whole baffling correspondence between the TABC and the Governor’s Office.
April 17, the governor issued what he touted in national media as the first order reopening any state. He seemed very proud of being first. But as he has done with many issues, such as his alcohol and church service orders, he issues a bold press release that is followed with substantially less than was promised.
The April 17 order was no different.
“Reopened services” shall consist of:
Starting at 12:01 a.m. on Friday, April 24, 2020, retail services that are not “essential services,” but that may be provided through pickup, delivery by mail, or delivery to the customer’s doorstep in strict compliance with the terms required by DSHS. The DSHS requirements may be found at www.dshs.texas.gov/coronavirus.
Even though the title of the order was Reopening Texas, retail by pickup and delivery ain’t much, especially in light of the hold-my-beer reopenings since announced in Georgia and Las Vegas. What am I going to do, go to Neiman’s and buy a curbside belt? I haven’t worn a belt in six weeks.
But in one very specific way, this order clearly appeared to overturn the shifting and confusing TABC guidance to industry that had prevented the sale of to-go cocktails mixed onsite. And it appeared to apply to bars, also.
Once again, what the governor's words seem to mean and what the TABC clearly says seem at odds.
“The governor’s order (Reopen Texas) just applied to other retail that had not been opened under his previous orders,” says Chris Porter, public information officer for TABC.
This is not a credible explanation at all. Bars and restaurants are defined as retail throughout state law and in the zoning ordinances of most Texas cities. When questioned specifically about the definition of retail, Porter deferred to the Governor’s Office to provide a definition. Porter stated that the Governor’s staff had communicated with TABC today and agreed with its interpretation. As usual, our calls and e-mails to the governor’s staff were not returned.
The Reopen Texas Order goes on to say:
… the use of drive-thru, pickup, or delivery options for food and drinks is allowed and highly encouraged throughout the limited duration of this executive order.
So we’ve returned to a familiar situation. Broad language from the governor appearing to provide relief to operators followed by strict, even twisted, interpretation of the rules by TABC followed by silence from the governor.
Austin restaurant lawyer Kareem Hajjar founded Margs for Life at the beginning of the shutdown specifically to advocate for to-go cocktails.
“I think the governor’s order says what it says. Guidance from TABC can’t change it. It’s a shame because it’s keeping people unemployed," he says.
How many jobs? Hajjar surveyed his restaurant clients near the time of the shutdown order specifically to find out how many Texans were at risk of losing employment if to-go cocktails weren’t allowed.
“It’s at least three positions per unit being added if alcohol can be sold to go,” Hajjar said. Unit is industry jargon for a bar or a restaurant. “Skilled bartender, which at present is completely not needed, a cook for increased demand for food related to alcohol sales as well as prep functions for cocktails, and a position for a runner.
“There are 49,600 restaurants in Texas. It’s a minimum of 150,000 jobs. Larger restaurants might hire five people.”
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It raises the question why those jobs were eliminated in the first place. Our previous reporting makes it clear that TABC and the governor initially thought that to-go alcohol was absolutely necessary to keep restaurants alive during the shutdown. And as we have reported from the beginning, no one ever gave a rat’s red ass about bars.
One possible reason is the Texas Restaurant Association may have signaled to the governor that to-go alcohol wasn’t that big a deal.
From the beginning of the crisis, the industry representative has told operators that the governor would never allow to-go cocktails. It continued this messaging after the governor actually legalized to-go cocktails for 24 hours. Multiple Greater Dallas Restaurant Association (a local arm of TRA) members I spoke with were, ahem, surprised to learn this.
If to-go retail is safe enough for my Neiman’s belt, I hope it will be deemed safe enough for the state’s bars and restaurants to serve us to-go cocktails. There is absolutely no reason that curbside delivery of chicken fajitas is “essential” but delivery of a margarita is illegal. And by the same logic, why can I not roll up on my favorite bar and grab a to-go cocktail on the way home from home work from home? I want the cocktail and thousands of Texans need jobs.