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Feb 9, 2013 09:11 AM

Interesting thoughts/laws re: BYOB

Over on the "Spirits" board, there is an interesting thread entitled "Ever take anything but wine or beer to a BYOB?" -- see

That got me to thinking, and I contacted the State of California's Department of Alcoholic Beverage Control (ABC) to ask about whether one *could* bring in other things besides just wine -- I confess I never thought about it.

I would draw your attention to the final paragraph below, as I am re-posting (edited slightly) my comments on the spirits board below.


According to the email I received from the Trade Enforcement Unit of the California ABC:

1) The restaurant first of all MUST hold a valid Alcoholic Beverage license issued by the State of California. These must be one or more of the following: Type 41 or 42 (on-sale beer & wine), and/or Type 47 or 48 (on-sale general [meaning "distilled spirits"]).

2) It is UNLAWFUL to bring in your own bottle(s) into an UNLICENSED establishment, in violation of Section 25604 of the Business & Professions Code of the State of California.

3) If a restaurant has only a Type 41 or 42 (on-sale beer & wine) license, then ONLY bottle(s) of beer and/or wine may be brought into the establishment -- no distilled spirits.

4) Only in restaurants which have been issued a Type 47 or 48 (on-sale general) may patrons bring in bottle(s) of distilled spirits.

5) Licensed restaurants where BYOB is legal according to the above restrictions can establish their own policies regarding corkage, and can set their own limits as to the number of bottles patrons are permitted to bring in, if any.

One other note: Section 23396.5 of the ABC Act permits customers to leave a licensed premises with open containers of wine that have been PURCHASED FROM THE RESTAURANT (that is, you can bring your leftover wine home). However, if you BYOB, then you haven't purchased the wine from the restaurant, and you cannot bring any opened-but-unfinished bottles of wine home. Opened-but-unfinished beer and distillates (presuming the establishment has the proper licenses, and so it was legal to bring in the bottle in the first place) can NEVER be brought home -- only wine . . . but, again, ONLY if the wine was purchased from the restaurant, NOT if you BYOB'd.


Reminder: the above ONLY applies to California. Every state is different. But anyone have any comments?

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  1. >>>However, if you BYOB, then you haven't purchased the wine from the restaurant, and you cannot bring any opened-but-unfinished bottles of wine home.<<<

    I am not placing judgement upon those that do it, but my friends, family and I have never taken home an unfinished bottle or bottles of wine. We always leave it for the staff with our compliments.

    5 Replies
    1. re: Fowler

      I figure there's no big deal either way. I usually leave unfinished bottles, but also take them home on occasion.
      We always offer tastes will we are there. We leave enough tip to feel comfortable with byobing. In that respect the server is compensated whether one finishes a bottle or not. If there's just a bit left of most bottles I would usually just leave it. There are times though that we will bring something like 10 bottles for eight people. Often of $200+ retail wine. If there happens to be a half-bottle left of one or two, and one of the group will enjoy it at home, someone usually takes it.

      1. re: john gonzales

        That sounds fine with me, John. We always offer the staff a taste of our wine but learned that in some communities the establishment can actually lose their alcohol license if an employee does sample some wine or otherwise drink while on duty. I do not agree with that policy but I am happy to leave an unfinished bottle for the staff to taste when they are done working for the evening. Like you, we also tip well, but I have found it nice to leave some wine that in some cases the staff would not be able to try otherwise.

      2. re: Fowler

        I agree. There may be times when I might take a bottle that I've purchased from the restaurant home, but never if I bring one in. I leave it to share.

        1. re: zin1953

          But why? I think we agree that leaving the wine is not in lieu of a tip, as sometimes there's some left and often not, and one tips either way. Why is their a distinction between a purchased bottle and a byo bottle? Ostensibly the server is compensated fairly via tip in either instance. So why take it in one case versus the other?
          It's generous to leave it, but it doesn't seem inappropriate or "cheap" not to.

          1. re: john gonzales

            My theory is that -- if it's on the list -- the waitstaff should already know about it and/or have tasted it. That said, I nearly always ask the waiter/waitress if they've tasted the particular wine, and if not, I offer to pour them some.

            OTOH, if I bring something in that's not on their list -- and I know the chef and/or waitstaff is into wine -- then I make sure they get some.

      3. Jason, Is the last paragraph regarding taking a portion of a byob bottle home quoted from the ABC email, or is that your interpretation? I have never heard of that law, and between byobing for decades and wifey being in the on-sale trade, I'd think I would have heard it.
        Btw, sometimes there are insurance requirements that pose additional issues for establishments. A tricky policy that one comes across on occasion is a place that does not want one to bring an opened wine bottle (eg decanted at home) in.

        1 Reply
        1. re: john gonzales

          Directly from the email I received from the ABC:


          One potential problem with BYOB that a licensee may encounter is when the customer wants to depart the premises with open containers of personal wine that he or she brought into the restaurant. Section 23396.5 of the ABC Act allows certain kinds of licensees (specifically, Types 02, 41, 42 & 47) to permit customers to leave the licensed premises with open containers of wine that have been purchased from the licensee. Obviously, in a BYOB situation the personal wine brought into the restaurant was NOT purchased from the licensee. Accordingly, Section 23396.5 is not applicable. Please keep in mind that even though the customers may be consuming personal wine, all of the laws and regulations apply as if the wine had been sold by the licensee; e.g., consumption of alcohol by minors and public intoxication. Ultimately, the Department holds the licensee responsible for the actions of its employees and customers.


          I believe my paraphrasing was accurate.

        2. Strictly speaking, California Business and Professions Code Section 25604 does not prohibit customers from bringing their own bottles into an unlicensed restaurant, it prohibits the restaurant from allowing them to. If they see you have a bottle and give you glasses for it, they're violating section 25604, but you're not. You might be violating some other law, there are a zillion of them.

          Section 23396.5 explicitly allows people to take unfinished bottles they have purchased at a restaurant or wine tasting room, which would otherwise require an off-sale license. I don't believe there's anything in the code prohibiting taking a bottle you brought with you back out.

          6 Replies
          1. re: Robert Lauriston

            Robert, far be it for me to disagree with you, but let me suggest that you are looking at the B&P Code §23396.5 as a consumer (glass half-full).


            §23396.5 "Notwithstanding any other law, any on-sale licensee that maintains a bona fide eating place in conjunction with such license, any on-sale beer and wine public premises licensee, or any winegrower that is exercising a privilege pursuant to Section 23358 or 23390 may allow any person who has purchased and partially consumed a bottle of wine to remove the partially consumed bottle from the premises upon departure."


            The operative words in this section -- from your perspective -- are "Notwithstanding any other law . . ."

            It is illegal to drive with open containers in a motor vehicle. This section specifically creates ONE exemption to the law: it permits "any person who has PURCHASED and partially consumed a bottle of wine to remove the partially consumed bottle from the premises upon departure." (emphasis added) This ONE exemption is what is permitted; no other.

            My wife is a criminal defense attorney specializing in DUI and other alcohol- and drug-related issues. I can't promise you free representation, but I'll try to get you a discount . . .

            1. re: zin1953

              I can't find where California law says anything about partially consumed bottles you brought in with you.

              Vehicle Code section 23225 allows open containers in vehicles provided they're locked in the trunk:


              BPC section 23396.6 prohibits removal of open containers from an instructional tasting area:


              BPC section 25620 allows cities and counties to prohibit open containers in parks:


              Penal Code section 647e allows cities and counties to prohibit open containers on off-sale premises:


              I can't find any other regulations regarding open containers at the state level.


            2. re: Robert Lauriston

              Jason's response above seems to indicate that the ABC rep told him that one CANNOT take part of a byob bottle home. Though to me that makes little sense, and I thought that perhaps the "take home" wording explains only the case of a BOUGHT bottle, because it might be assumed that one can bring their own wine home. I would think there would be some wording specifically forbidding the taking out of byo wine if such were the case.
              There's wording PERMITTING it for PURCHASED wine, because elsewhere in the wording for on-sale licenses it's specified that the purchased wine be consumed on the premises, and this would be an exception.

              In a practical sense I don't get why the distinction of purchased or not makes any difference. In fact it might make more sense (re on/off sale distinctions) that a person could take out a byo but NOT a purchased bottle.
              Lastly, I have been told things by ABC reps before that actually did not end up being the correct interpretation of the law. Not saying it happened in this case, but it has.

              1. re: john gonzales

                John, no one ever said that agents of the ABC never make mistakes. They are like any other law enforcement officer, and mistakes ARE made. But I would prefer to avoid the arrest record and the legal fees . . . even though, unlike Robert, I'm pretty sure my wife would represent me for free . . . .

                1. re: zin1953

                  Well, I don't think YOU are facing any legal fees or arrest. It MIGHT be a violation for a restaurant to let you take it, but I don't think it's chargeable against you.
                  Knowing the way ABC enforces, I'd take a wild guess and say that they don't charge a single licensee with this in a year.
                  Anyway, assuming it IS the law, what rationale do you think there is for the distinction?

                  1. re: zin1953

                    How would an officer know it the partial bottle was purchased or leftover BYOB? I don't keep the itimized receipt at restaurants. I would only have the credit card receipt or no receipt if I paid cash.

              2. I believe in New are allowed to take a Purchased bottle home, but the establishment must provide you with a special bag to do so.....

                In New Jersey, You are also allowed to bring an unfinished purchased or BYO bottle home...but then the Department of Motor Vehicle codes kick in, regarding transportation. Police will often cite an incorrect application, or interpretation of the law and issue violations based on illegal transportation without transportation license to do so. If you do take a bottle of opened wine home, then you must transport it in the trunk of your car and not inside the cabin....if so you risk violating the open container statute.

                4 Replies
                1. re: fourunder

                  I have, in the past, in order to not violate NJ "open container" laws, actually tied unfinished bottles to the supports in the bed of my truck. That two hundred dollar fine ain't worth chancin' it to me.

                  1. re: MGZ

                    I take the stealth route home when I drink and drive.....(side streets)

                  2. re: fourunder

                    As I've said, every state is different. In some states (or even counties), BYOB is illegal. In some, it's only permitted if the establishment is UNlicensed. In others, like California, it's only legal if the establishment IS licensed . . .

                    1. re: zin1953

                      Reminder: the above ONLY applies to California. Every state is different. But anyone have any comments?

                      Thanks...but I understood that from your OP....

                  3. I'm late to the party, but must add that I've seen so many restaurants without liquor licenses receive big fines and deferrals of their licenses once caught by the ABC for allowing BYO. I believe restauranteurs and patrons alike are ignorant of the law regarding BYO. I also believe the ABC doesn't go out of the way to cite restaurants, but they do so when a complaint is received, usually from another local restaurant - quite pathetic! I've also seen a restaurant cited when the local press publicized their BYO policy.

                    I've never taken partial bottles to a restaurant, but a friend has. She went ballistic when she was charged corkage! I've left fine restaurants in Los Angeles, New York, and Italy with partial bottles. No issues; always given a bag if I didn't have a wine bag with me.

                    3 Replies
                    1. re: SB foodie

                      As I mentioned, each state is different. There are states that ONLY permit BYOB in UNlicensed establishments. Other states only allow BYOB in restaurants WITH alcoholic beverage licenses . . .

                      1. re: zin1953

                        Ooops. Forgot to respond to the second paragraph . . .

                        >>> I've never taken partial bottles to a restaurant, but a friend has. She went ballistic when she was charged corkage! I've left fine restaurants in Los Angeles, New York, and Italy with partial bottles. No issues; always given a bag if I didn't have a wine bag with me. <<<

                        a) Apparently your friend has a hair-trigger.

                        b) The only time I have ever brought an opened bottle into a restaurant was following a trade tasting I was doing, and the partial was too good to leave behind.

                        c) In some states -- and sing along with me now -- it is legal to take your unconsumed wine with you in a "doggie bag"; in some states, it isn't.

                      2. re: SB foodie

                        "She went ballistic when she was charged corkage!"

                        The word "corkage" doesn't mean they're charging you just to take the cork out. The primary expense is stemware. Over a modest amount, corkage fees are about protecting margins.