These days, lots of Ann Arbor restaurants – and even some brewpubs – are offering wine lists of reasonable quality. So why would anyone want to BYO when they eat out?
- You’re itching to try a tiny, locally-owned place – call it Jamaican Jerk Pit – whose owners can’t afford multi-thousand dollars to secure a liquor license. But you fantasize how great a cold bottle of Red Stripe might taste alongside that jerk chicken or curried goat.
- You’re feeling the economic pinch, and the wine markup at many restaurants presents a budget-busting deterrent to going out. So you eat at home, and pour a glass or two of wine. Cost: one-third of its restaurant price.
- You enjoy a restaurant’s cooking, but its wine list is particularly short and dismal. With a better beverage selection, you’d probably eat there more often.
- You squirreled away a special bottle of high-end Cabernet for a landmark birthday or anniversary. Now’s the time – and you’d like to celebrate with a meal at your favorite “special occasion” eatery, accompanied by your special occasion wine.
If any of these scenarios hits home, ponder this: though laws vary, most larger states across the country – California, Illinois, New York, Pennsylvania and even Texas – allow you to legally tote along a bottle of wine when you go out to eat at a restaurant.
Here in Michigan, not so much. Except for a couple of small, largely unknown loopholes – which we’ll get to in a minute – beverage law in the GSOM (that’s Great State of Michigan) prohibits restaurant BYO.
Why ban something most other larger states allow? The short answer: because we can, thanks to the U.S. Constitution’s 21st Amendment, AKA 1933’s repeal of Prohibition. Its relevant section:
2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
(“Intoxicating liquors” is boilerplate legalese for beverages of all types and strengths. To me, that’s both unduly pejorative and not entirely descriptive – especially when applied to lite beer.)
The wording represents ‘30s-style political compromise. To induce three-fourths of the state legislatures to ratify Prohibition’s repeal – including some whose constituents remained dubious about legalizing a popular relaxant that might provide governments with much-needed tax revenue in a period of massive deficits – each state could craft its own rules to control the substance’s sale, use and taxation.
Seventy-seven years later, the resulting patchwork of state and local beverage laws – including those that control BYO – defies rational explanation.
In both California and New York, restaurants licensed to serve alcohol can let customers bring their own beverages; unlicensed places can’t. But New York carves an exception for “businesses with fewer than 20 seats, which are permitted to offer BYO even without a license,” according to GoBYO, a highly-recommended, easy-to-use resource with a massive database of BYO-friendly restaurants, their policies, and the laws that govern them.
Texas tacks in the opposite direction; it bans BYO anyplace that’s licensed to serve all kinds of alcoholic beverages. Unlicensed restaurants, or those licensed for wine and beer only, are free to allow BYO.
Pennsylvania and Illinois pass the buck. Each municipality in those states can decide whether or not to allow BYO, and how to regulate it, if at all; default mode is wide open. One finds a free-for-all BYO city, like Chicago, next door to DuPage County, which recently had the temerity to ban BYO – but only at strip clubs (don’t ask).
Michigan law, while consistent statewide, is especially confusing. No words in the Liquor Control Code simply say, “Customers can’t bring their own alcoholic beverages into a restaurant.” Instead, several different sections touch obliquely on BYO.
This paragraph, from Section 436.1901, covers places that already serve alcohol:
(5) A retail licensee shall not, on his or her licensed premises, sell, offer for sale, accept, furnish, possess, or allow the consumption of alcoholic liquor that has not been purchased by the retail licensee from the commission or from a licensee of the commission authorized to sell that alcoholic liquor to a retail licensee.
A restaurant (or bar) breaks the law if it lets customers consume any beverage it didn’t acquire through a state-sanctioned distributor. There’s a lot on the line for a place caught in violation; the Michigan Liquor Control Commission (MLCC), which polices its licensees, can impose fines and suspend or even yank a liquor license for repeat offenses.
But one significant loophole exists; it’s called “hotel.” Section 436.2021 exempts licensed “resort area” hotels from those pesky consume/possess prohibitions:
(4) This act and rules promulgated under this act do not prevent a class A or B hotel designed to attract and accommodate tourists and visitors in a resort area from allowing its invitees or guests to possess or consume, or both, on or about its premises, alcoholic liquor purchased by the invitee or guest from an off-premises retailer, and does not prevent a guest or invitee from entering and exiting the licensed premises with alcoholic liquor purchased from an off-premises retailer.
Nowhere does the Liquor Control Code define “resort area,” leaving it subject to individual interpretation. The hotel industry clearly had a good Lansing lobbyist when the law was passed.
Surprisingly, none of the locally-owned hotels that I contacted knew about this provision.
Steve Kasle, proprietor of Mercy’s at the Bell Tower, replied with a quick “it’s illegal” when asked about BYO. When informed that his hotel-owned liquor license might provide the opportunity to allow BYO, Kasle said he would check into it, and “might consider it” in the future, on a case-by-case basis.
Around the corner, at the Campus Inn, executive chef/food and beverage director Dan Tesin confirmed that he quietly accommodates the occasional BYO request, without charging a corkage fee – even though he was unaware of the legalities.
“It’s never been an issue; our restaurant is basically for hotel guests who are in town at the University of Michigan or on business, and they don’t typically bring wine,” Tesin said.
There’s no mention of BYO on the Victors Restaurant menu, and Tesin estimates that less than 1% of his customers ask about it.
At Weber’s Inn, probably Ann Arbor’s busiest hotel restaurant and recipient of a Wine Spectator Award of Excellence, restaurant manager Rob Massau makes no bones about the BYO policy: “We try to discourage it.”
“We do not allow BYO on wines that we carry,” said Massau. “Our wine prices are extremely reasonable.”
Weber’s lets other wines into the restaurant for a $10 corkage, though that isn’t publicized, Massau said. “Absolutely no alcohol” can be brought in for banquets or other private events.
But further afield, one savvy restaurant guy takes full advantage of the law to boost his hotel’s food business.
The Townsend Hotel’s Rugby Grille, another Wine Spectator award winner in the heart of downtown Birmingham’s “resort area,” has displayed a hefty $25 corkage fee on the bottom of its dinner menu for the past year and a half.
Keith Schofield, its smooth-spoken, wine-loving general manager, developed a strategy to turn BYO into a profitable, relationship-building enterprise. He explains the policy as an accommodation for his upscale clientele.
“Many of them have pretty amazing cellars,” said Schofield. “It started out as, ‘I’ve got this special bottle; can I bring it in to have with dinner?’ I started getting more and more requests, and they were things that we didn’t have on the list, so we decided it would be the right thing to allow it.”
Economics also played a role. “It’s a recognition of where the economy was,” said Schofield. “I’d rather have you come in and have dinner in my restaurant, and have a cocktail, and I’ll open your bottle of wine for a corkage charge. Enjoy yourself!”
The savvy Schofield did his legal research before adopting the policy. “You don’t want to mess with the MLCC. The liquor license is much too valuable.”
That’s how he ran into the hotel BYO provision.
“The breadth of the hotel license allows us to do it here, whereas a freestanding restaurant may not have it,” he explained. “The guy across the street – he can’t offer it.”
“I talked with one of the MLCC legal people. I said, ‘This is where I’m from, this is what I’m proposing to do. Can I legally do it?’ And he said, ‘Yes, you can, according to my understanding of the law.’ And I said, ‘Thank you very much.’”
Schofield says that customers who bring their own wine tend to be collectors who don’t take undue advantage of the policy. “They’re typically bringing in very nice bottles of wine, and they’ll typically also buy a bottle off the list.”
But even where it’s legal and publicly advertised, BYO represents a blip compared to the restaurant’s total sales. Schofield confirms that “around 5%” of his customers currently bring in their own wines.
He remains publicly “neutral” on whether the policy has been profitable for the restaurant, but he does say that “business is good” and his BYO customers “typically dine well and spend more.”
Plus there’s a personal perk: customers often pour a taste for their server or Schofield. “I’ve tasted some amazing wines as a result,” he said.
When it comes to unlicensed restaurants, the wording is clear. It’s spelled out in Section 436.1913:
(2) A person shall not consume alcoholic liquor in a commercial establishment selling food if the commercial establishment is not licensed under this act. A person owning, operating, or leasing a commercial establishment selling food which is not licensed under this act shall not allow the consumption of alcoholic liquor on its premises.
But this isn’t just about restaurants. No establishment – of any type – may accept “consideration” for allowing BYO:
(1) A person shall not do either of the following:
(a) Maintain, operate, or lease, or otherwise furnish to any person, any premises or place that is not licensed under this act within which the other person may engage in the drinking of alcoholic liquor for consideration.
(b) Obtain by way of lease or rental agreement, and furnish or provide to any other person, any premises or place that is not licensed under this act within which any other person may engage in the drinking of alcoholic liquor for consideration.
For the final touch: the word “consideration” doesn’t mean what you think it does. It’s not just the corkage fee you might be charged by an unlicensed restaurant. It’s any money that you pay to anyone for anything:
(5) As used in this section, “consideration” includes any fee, cover charge, ticket purchase, the storage of alcoholic liquor, the sale of food, ice, mixers, or other liquids used with alcoholic liquor drinks, or the purchasing of any service or item, or combination of service and item; or includes the furnishing of glassware or other containers for use in the consumption of alcoholic liquor in conjunction with the sale of food.
Note the words “any service or item.” Those are the words that prevent Michigan salons or spas from legally pouring you a glass of wine while you luxuriate in their care.
Once more, you have a loophole: guests at events in unlicensed venues, like a rental hall or someone’s barn, don’t pay “consideration” to attend – unless you count the wedding gift you brought. So nothing prevents the hosts from providing alcohol for their guests to consume, as long as the venue’s owners don’t mind.
In 2007, the MLCC confirmed this loophole in writing, saying they “received numerous inquiries regarding the legality of non-licensed businesses allowing consumers to consume alcoholic beverages in their establishments.” A rare MLCC public statement that reaffirmed the illegality of BYO for “consideration” also stated:
This law would not prohibit a wedding reception, retirement party, open house, or other similar event that is held in a non-licensed facility whereby the attendees were guests and were not charged any fee whatsoever.
Enjoy the wedding!
And if, by some chance, you know an establishment – licensed or unlicensed – that doesn’t always observe the letter of the law when it comes to BYO, please keep it to yourself, or among a few trustworthy friends. Do NOT post it on Yelp.
Your fellow wine lovers thank you.
Michigan Wine Competition: The Stars Shone Black
On Tuesday, Aug. 3, I joined fellow Ann Arborites Christopher Cook, David Creighton and Dick Scheer – plus 21 other assorted winemakers, Master Sommeliers, merchants and journalists – to judge the 33rd annual Michigan Wine Competition, at East Lansing’s Kellogg Center. In a sign of Michigan wines’ growing national reputation, a record 10 out-of-staters judged this year, including winemakers from New York and California.
But we could have just stayed home and dictated a laudatory press release about Black Star Farms.
The Leelanau Peninsula winery and satellite facility on Old Mission Peninsula won three of eight “Best of Class” trophies, and seven gold and double gold medals.
While the number of gold medals remained steady, the total medal count dropped from 267 (67% of entries) last year to 220 (55%) this year.
In part, chalk that up to Michigan’s less-than-stellar 2008 and under-ripe 2009 vintages, whose wines are garnering fewer hosannas than the 2007’s that preceded them. But equal credit goes to Competition Superintendent Chris Cook, who exhorted judges to mint fewer medals, especially in the lowest bronze tier, in order to boost the competition’s reputation.
Here’s the rundown of trophy winners by category:
- SPARKLING: 2008 Black Star Farms Sparkling Wine
- DRY WHITE: 2009 Black Star Farms Arcturos Pinot Gris
- SEMI-DRY WHITE: 2009 Black Star Farms Arcturos Riesling
- ROSÉ: 2009 45 North Blanc de Pinot Noir (2nd consecutive vintage winner)
- DRY RED: 2007 Bowers Harbor “Erica Vineyard” Cabernet Franc
- SEMI-DRY RED: NV Lawton Ridge “AZO” (Chancellor/Chambourcin)
- DESSERT: 2008 “42″ Ice Wine, Fenn Valley (2nd year winner for the same wine)
- FRUIT: Uncle John’s Franc-N-Cherry (Cabernet Franc and Cherry blend)
- JUDGES MERIT AWARD: 2009 Chateau Fontaine Woodland White (Auxerrois)
You can read, download or print the full list of medal winners here.
About the author: Joel Goldberg, an Ann Arbor area resident, edits the MichWine website and tweets @MichWine. His Arbor Vinous column for The Chronicle is published on the first Saturday of the month.