A man wearing a protective mask makes a purchase from a cashier in New York City as the coronavirus spread early in the pandemic. (Photo by Cindy Ord / Getty Images)
New Mexico joined nearly every other state in the nation in legalizing alcohol delivery to homes a couple of weeks ago, but few restaurants have applied for permits so far.
Since March 2020 and the pandemic lockdowns, all but seven states have legalized the home delivery of alcohol. Twenty states did so via executive order, but in New Mexico, it was included in an alcohol regulation reform bill that went into effect on July 1.
Grocery and liquor stores with full dispensing licenses that have a package component, small brewers, wineries, craft distillers and restaurants are now allowed to apply for delivery permits, said Andrew Vallejos, director of the state’s Alcoholic Beverage Control Division.
The division finalized the delivery regulations at the end of September and has issued 19 alcohol delivery permits (out of only 28 received) as of Oct. 19.
RELATED: New Mexico begins alcohol deliveries despite public health concerns (Oct. 12, 2021)
Several of them are from off-premises alcohol outlets who have a license to sell packaged alcohol including: Total Wine & More, Paradise Liquor, 505 Spirits, Santa Fe Spirits, The Cellar and Kaune’s Neighborhood Market.
Other permits have been issued to a mix of restaurants and brewpubs, many of which rely on their own delivery drivers and not third-party delivery services: Village Pizza, Pizza Inn, Goldstreet Pizza, and Forghedaboutit Southwest Italian, Los Poblanos Historic Inn & Farm, Fifty/Fifty Coffee House and Pub, Mineshaft Tavern and Salud de Mesilla.
Why the hesitation?
Despite the availability of permits, it seems most restaurants and brewpubs are not jumping at the chance to deliver alcohol.
Carol Wight, CEO of the New Mexico Restaurant Association, said the way the law is written may have some restaurant owners and managers hesitant to apply.
“I don’t think the Legislature got the alcohol delivery right,” she said. “I think it’s so new, and this kind of law really was not written almost anywhere prior to 2020. They were doing their best to come up with something that protected everybody.”
But, Wight said, in lawmakers’ attempts to ensure the community wasn’t going to engage in dangerous alcohol consumption, the legislators may have prevented most restaurants from being able to utilize the service.
“I think some of the questions for our members that are not taking this up right now is how much liability and how much responsibility are those third-party delivery services going to have?” Wight said.
The language in the statute says that alcohol may be delivered by outside companies like Doordash, UberEats or Postmates, “provided that the licensee, the third-party alcohol delivery service and the server who delivers alcohol may be separately liable for violations of the Liquor Control Act.”
In New Mexico, most restaurants can’t afford to staff delivery teams in-house, and so they are reliant on outside companies, Wight added.
She’s been hearing from restaurant owners, she said, who are saying, they can’t afford to do delivery on their own right now, she said.
Ken Carson said it seems unlikely his brewery will participate because of the liability. “It makes no sense to make a restaurant or a third-party delivery service liable for a situation where they deliver alcohol and then the person in the house gets drunk and does something crazy.”
Wight said that the employee shortage is also likely playing a role in why most restaurants have yet to apply for a permit.
The law requires the delivery drivers to be 21, Wight said, and that’s a problem, too.
“Here’s the reality of it: Nobody can get anybody to work for us, much less a specific, 21-and-older driver,” she said.
Same problems everywhere
Despite the restaurant association’s concern that the law is too restrictive, Vallejos said it was important for the statute and regulations to avoid some of the mistakes other states made.
“We tried to incorporate best practices from other states and looked at the problems that the other states ran into, in implementing home delivery of alcohol,” Vallejos said.
Justin Nordhorn, director of policy and external affairs, Washington State Liquor and Cannabis Board, said the concerns about third-party liability are not unique to New Mexico.
“Generally speaking, third parties are not eligible to do the home deliveries (in Washington state),” Nordhorn said. “And the primary reason behind that is if the driver is choosing not to check identification, assess impairment, those types of things, there’s no real accountability for that third-party company, other than if you give it to a minor, then you may still be criminally liable.”
In Washington, Nordhorn said, they have the businesses use their own employees.
“So the continuity of the sale goes through the business, and they’re still responsible for that sale until it’s delivered to the customer,” he said, “so we have not only the continuity, but the responsibility. Because they are already a liquor licensee, it gives a little bit more control over some of the mandatory training areas.”
Across state lines
Home alcohol delivery regulations across state lines may fall under the U.S. Treasury’s oversight of interstate commerce, according to the American Public Health Association (APHA).
“The Treasury Department must make clear that existing regulations regarding interstate home delivery will be enforced,” Georges Benjamin, APHA executive director wrote in August.
As previously reported by Source New Mexico, the APHA sent a letter to the director of the Regulations and Rulings Division of Alcohol and Tobacco Tax and Trade Bureau arguing that economics can’t be the driving force on alcohol delivery laws.
“A number of risk factors are correlated with adult alcohol misuse, including initiation of alcohol use at a young age, comorbid mental health conditions and adverse childhood experiences,“ Benjamin wrote.
Following the law?
Vallejos said when it comes to testing compliance in New Mexico, the State Police’s Special Investigations Unit would likely take the lead on that type of enforcement.
The unit has traditionally been the lead law enforcement agency for the Liquor Control Act.
“We have the ability as a department to launch any investigation we need, and they have to comply with us as well,” he said. “But for the most part, the enforcement of the laws kind of rests on this unit.”
Vallejos explained that state investigators are tasked with enforcing both criminal and administrative laws, which he said gives the unit more enforcement tools than his division would have alone.
“A lot of times, the State Police will charge that person administratively, but also charge them criminally,” he said. “And then once they do their investigation, they submit it to our office, and then we resolve the administrative complaint.”
Nordhorn said he doesn’t know if there is one right solution to ensuring that occasional alcohol users have convenient access to alcohol, that restaurants and other retailers have the ability to meet the demand and make a profit, and that the health and safety of minors and those with alcohol-use disorders are protected.
“It’s typically about risk mitigation, and the cost benefits,” Nordhorn said. “And ‘can it be done responsibly?’ is really the driving factor there.”
In the meantime, most New Mexicans shouldn’t count on being able to have a beer delivered with their meal anytime soon.
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