In recent years Pennsylvanians have seen the rise of the so called “pop-up” beer garden, particularly in the Philadelphia area. These pop-up beer gardens often operate on vacant lots or in open areas otherwise under-utilized and are open seasonally from the late spring to early fall. Pop-up gardens have become very popular endeavors some of which have drawn thousands of patrons during the operating season. In some instances non-profit organizations such as the Pennsylvania Horticultural Society and the Fairmount Park Conservancy run pop-ups as a fundraising endeavor. The pop-ups are essentially bars operating two to seven days a week, which leaves many to wonder how these “temporary” ventures are able to get a liquor license.
The pop-ups were a side-effect of legislation passed in 2012 that allowed liquor licensees to apply for off-site catering permits. The off-site catering permit grants a licensee authority to hold a “catered function” off its licensed premises and on otherwise unlicensed premises to sell wine, liquor and beer together with food, for consumption on those premises. The catering permit can be used any time so long as the holder of the license operates no more than five hours per day. A catered function can only last one day and the permit cannot be used more than fifty times in a year. Many of the beer garden proprietors have teamed up with multiple restaurant owners to piggyback their permits thus giving them the collective ability to remain open more than 5 hours per day and more than 50 days per year. As a result, most pop-up sites are open more than 5 hours per day and more than 50 days per year. While such piggybacking is not forbidden under the law, it is arguably a lenient interpretation by the LCB, an agency known for its restrictive decision-making. The rules for off-site catering permits also require that written notice be given to local authorities at least seven days in advance of any event and the LCB must be given thirty days’ written notice.
Only licensees holding a valid restaurant, hotel, brew pub or eating place license can apply for an off-site catering permit. Any licensee that wishes to obtain an off-premises catering permit must make a general application to the LCB not later than March 1st of any year regardless of the renewal deadline otherwise applicable to the license holder’s county. The licensee is responsible for the servers working at the pop-up garden or the off-site event. All servers must be certified under the Pennsylvania Liquor Control Board’s responsible alcohol management “RAMP” program. The key term “catered function” is defined as “the furnishing of food prepared on the premises or brought onto the premises already prepared in conjunction with alcoholic beverages for the accommodation of a person or an identifiable group of people, not the general public, who made arrangements for the function at least thirty days in advance.”
Needless to say, the pop-ups have raised some eyebrows among neighboring bar owners. An arguably loose interpretation of what a catered function is can be met if the party requesting the function can articulate some criteria to determine who is part of the invited group, for instance an actual guest list, ticket holders, persons specifically invited, members and guests of specific groups and people who have simply indicated a desire to attend the event can all constitute an identifiable group. Coupled with the piggy-backing technique outlined above, this practice can result in a significant source of competition for bar owners.
Off-site catering is a valuable way for restaurateurs to expand their customer base and generate additional sources of revenue. Holders of valid restaurant, hotel, brew pub or eating place licenses can apply for an off-site catering permit even if they do not plan on operating a pop-up provided the application is made prior to the March 1st deadline. The application and procedures can be nuanced, so contact our office for assistance or questions about this potentially valuable opportunity.
– J. Ken Butera