By Rick Coates
Earlier this year when the Traverse City Police Department began enforcing a confusing Michigan statute on alcohol consumed at non-licensed establishments, mixed messages were sent throughout the community.
For instance, will stores be allowed to serve alcohol at the popular downtown Traverse City Mens Night (December 16), as has been the tradition in past years?
How about the tailgating with alcohol that takes place at every high school football game at Thirlby Field, also in the city limits? What about tailgating at Interlochen prior to concerts?
According to the interpretation of various Michigan statutes by officers of the Traverse City Police Department, all of these events would be a violation of Michigan laws, possibly resulting in a misdemeanor for the consumer and a felony for the establishment.
The legal underpinning is called consideration, which occurs whenever an establishment gives away or allows someone to bring alcohol onto their property when they are collecting money for an event, selling merchandise or a meal.
But the practice of bringing your own bottle (BYOB) to events, concerts and restaurants has been going on for years, not only in Northern Michigan, but around the state.
Art galleries and book stores routinely offer complimentary wine at opening night receptions and book signings. For years, several restaurants in the region have allowed patrons to bring their own bottle of wine for dinner. Some are continuing this practice today: despite recent warnings from the Traverse City Police, three establishments within the city limits still allow patrons to bring in their own wine.
In a survey of restaurants and event venues around Northern Michigan, 24 admitted they have a BYOB program. All said their businesses would suffer if they stopped allowing patrons to bring in their own alcohol.
The Traverse City Police did not respond to interview requests, but Mayor Chris Bzdok said, we have not had any complaints or inquiries on this matter at the City Commission, so I am not in a position to comment on this matter or what our position would be.
Some of the confusion over the BYOB practice comes as a result of the Michigan Liquor Control Commission issuing a statement on their website that stated they have no jurisdiction over non-licensed establishments and the enforcement of such laws remain with local law enforcement agencies.
However, many communities are turning a blind eye to policing sobriety laws. For instance, several restaurants in trendy suburban Detroit communities openly advertise BYOB policies. And go to any college town in Michigan on a football Saturday and tailgating and open intoxicants run rampant, not only on college campuses but city streets.
When Matt Hunter opened the Soul Hole in Traverse City earlier this year his location was too small to acquire a liquor license. So he assumed he could allow his patrons to bring their own wine and beer into his restaurant.
I called the Liquor Control Commission in Lansing and they told me it was a local thing and up to the community you were operating in, said Hunter. So I knew that The Cooks House, InsideOut Gallery and others were doing it, so I figured it was acceptable here in Traverse City.
As was the case with those other establishments, he soon received a visit from local police.
I was quoted in a newspaper article saying that we were encouraging people to bring their wine, said Hunter. The next day the police came with documentation saying what I was doing was illegal. They were friendly about it and explained that there had been complaints and that the prosecutors office said we and others would no longer be able to continue.
Hunter and others speculate that another restaurant in the area filed the complaint. Richard Smith, owner of Leos Lounge in Petoskey and a board member of the Michigan Licensed Beverage Association agrees with the speculation.
When times are tough people pay closer attention to their competition, so it doesnt surprise me that someone would complain, said Smith. I see both sides of the issue, but there is an issue of liability here. If a place allows you to bring in wine and a person leaves intoxicated and drives and gets in an accident, who is liable? These establishments do not have liquor liability insurance like those of us who have licenses.
But for Hunter and others who are starting small restaurants (a business model that is growing in popularity in the U.S., Europe and Latin America), they are either too small to qualify for a liquor license or their operation wouldnt support the fees and costs associated with having a license.
My restaurant is a few seats short of what is required in Michigan for a license, said Hunter. There is a proposal to lower the seating requirement. But even if that happens my space is so small that I dont have room to set up a bar and to store beer and wine. My cellar had been across the street at Maxbauers Market. I would send my patrons over there to get wine and beer. Now I cant. So I am not sure what I am going to do.
The Soul Hole, The Cooks House and InsideOut Gallery -- the three establishments singled out -- are looking for clarity and consistency in this issue.
First of all, this is not being enforced elsewhere in Grand Traverse County and Northern Michigan, said Eric Patterson of The Cooks House. What I dont understand is why other businesses in Traverse City are allowed to give away alcohol to get customers into their shops and I am not allowed to have my customers bring wine in to enjoy with dinner. I am not giving it away and I am told I cant, but others in this town can give it away -- this makes no sense. We should look at what several other states are doing where BYOB is allowed. Even Pennsylvania, which is more conservative than Michigan, allows BYOB.
Several states have provisions for BYOB for both licensed and unlicensed establishments. Illinois, California, Texas and Tennessee all of have progressive BYOB laws. Wisconsin is similar to Michigan where there is a law on the books that prohibits BYOB. The penalty for breaking the law is a $10,000 fine and up to nine months in jail.
But Wisconsins law prohibiting BYOB is rarely enforced. Why? The economy was the primary reason given in a recent article in the Milwaukee Sentinel-Journal.
To read Part One of the BYOB issue, go to our features archive section of
Attorney Generals View on BYOB:
In 2008, State Representative Patrick Green asked Attorney General Mike Cox to rule on whether barbershops in Grand Rapids could continue their long tradition of offering a complimentary beer to their clients. The Attorney General turned the matter over to the Alcohol and Gambling Enforcement Division for review and in a five page letter back to Representative Green, Cox essentially said no to unlicensed establishments, but gave some leeway to local communities by concluding his letter this way: The power for local communities to enforce alcoholic beverage traffic is extremely broad. In order for a person to provide complimentary beer to patrons visiting its barbershops, the person may only do so with the required licensing or other permission from the Michigan Liquor Control Commission.
Last week the Attorney General was asked whether his opinion also applied to other businesses in addition to barbershops, such as unlicensed restaurants and entertainment venues that allow people to bring their own bottles of wine. Also whether other businesses can offer free alcoholic beverages to attract customers without a license and whether entertainment and sports venues are allowed to let paying patrons tailgate on the venue property.
Cox made this statement:
According to MCL 436.1913 of the Liquor Control Code, Michigan prohibits the consumption of alcoholic liquor (beer, wine or spirits) on any premises or place for consideration unless the premises are licensed by the Michigan Liquor Control Commission to allow consumption on the premises, said Cox. It is, however, important to note that unlicensed establishments fall under the jurisdiction of local law enforcement, not the state Liquor Control Commission. I recommend you consult local law enforcement or the county prosecutor if you have questions about whether a certain venue complies with Michigan law.