Is Bring Your Own Beer (BYOB) Legal in Ohio?

As Ohio Liquor License attorneys, our team gets this question a lot. Many restaurant owners want to avoid the cost and complication of obtaining an Ohio liquor license, and understandably want to know whether or not they can offer BYOB (Bring Your Own Booze or Beverage) to their patrons under Ohio law. Other business owners come from adjacent states that have permissive laws related to BYOB. To put it simply – BYOB is NOT legal in Ohio. However, in order to get to this answer, you have to look at a patchwork of different laws and court opinions.

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Ohio Revised Code Section 4301.58

In general, it’s best to think of all public consumption of alcohol in Ohio as illegal unless specifically permitted by the state. The process of obtaining this permission is what we referred to as obtaining a liquor licenses. Section 4301.58 of the Ohio Revised Code outlines a host of actions that are prohibited without a permit. Among these are the following:

(A) No person, personally or by the person's clerk, agent, or employee, who is not the holder of an A permit issued by the division of liquor control, in force at the time, and authorizing the manufacture of beer or intoxicating liquor, or who is not an agent or employee of the division authorized to manufacture such beer or intoxicating liquor, shall manufacture any beer or intoxicating liquor for sale, or shall manufacture spirituous liquor.

(B) No person, personally or by the person's clerk, agent, or employee, who is not the holder of an A, B, C, D, E, F, G, I, or S permit issued by the division, in force at the time, and authorizing the sale of beer, intoxicating liquor, or alcohol, or who is not an agent or employee of the division or the tax commissioner authorized to sell such beer, intoxicating liquor, or alcohol, shall sell, keep, or possess beer, intoxicating liquor, or alcohol for sale to any persons other than those authorized by Chapters 4301. and 4303. of the Revised Code to purchase any beer or intoxicating liquor, or sell any alcohol at retail. This division does not apply to or affect the sale or possession for sale of any low-alcohol beverage.

(C) No person, personally or by the person's clerk, agent, or employee, who is the holder of a permit issued by the division, shall sell, keep, or possess for sale any intoxicating liquor not purchased from the division or from the holder of a permit issued by the division authorizing the sale of such intoxicating liquor unless the same has been purchased with the special consent of the division. The division shall revoke the permit of any person convicted of a violation of division (C) of this section.

Therefore, per Ohio Revised Code, without a permit it is illegal to sell, keep, or possess beer, intoxicating liquor, or alcohol for sale.

Creative Solutions Can Lead to Criminal Prosecution

Naturally, intrepid restaurant owners may try to skirt this law by claiming that alcohol is not “for sale” or otherwise charging a “corkage fee.” However, Ohio business owners should be extremely careful trying to come up with creative solutions – as a miscalculation can lead to criminal charges. For example, consider the case of State of Ohio v. Sebastian Rucci. In this criminal case, the Defendant at one time held a valid liquor license for his establishment, the Ohio Department of Liquor Control denied Appellant’s request to renew this license. In response, Appellant implemented a bring your own beverage (“BYOB”) policy at his restaurant – The GoGo. Under this policy, if a patron wanted to drink an alcoholic beverage in the GoGo, they were required to bring their own and surrender it to the bartender in exchange for tickets.

The tickets were then given back to the bartender, who would retrieve the patron’s stored drinks for a fee of $1.25 per beer and $1.75 fee per other alcoholic beverage. For example, a patron would bring in a six-pack of beer and receive six tickets. If the patron wanted a beer, they would exchange one ticket and pay $1.25 and receive one of their beers. The establishment operated under this BYOB policy from January of 2012 until September of 2012, when the ODPS conducted a raid. The raid resulted from ODPS’s ongoing investigation of the GoGo. The investigation was comprised of several undercover operations carried out by ODPS agents. During one of the undercover operations, when two agents entered the GoGo an employee informed the agents that if they wanted to drink alcohol they would have to provide their own. The employee explained the BYOB policy to the agents, who left and purchased a case of beer. As a result of this raid, Appellant was charged with four counts of illegal sales and four counts of keeper of a place. The Defendant was found guilty of all counts and sentenced to 180 days in jail (150 days suspended), $500 and costs, and the option of either posting a $1,000 bond or one-year abatement for the illegal sales charges. He was fined $250 and costs for the keeper of a place charges.

Keeper of a Place Liability

Section 4399.09 of the Ohio Revised Code is commonly used as a criminal charge against a person in control of an unpermitted alcohol establishment in Ohio. This is often known as “Keeper of a Place” liability. Section 4399.09 states that:

(A) No person shall keep a place where beer or intoxicating liquors are sold, furnished, or given away in violation of law. The court, on conviction for a subsequent violation of this section, shall order the place where the beer or intoxicating liquor is sold, furnished, or given away to be abated as a nuisance or shall order the person so convicted to give bond payable to the state in the sum of one thousand dollars, with sureties to the acceptance of the court, that the person will not sell, furnish, or give away beer or intoxicating liquor in violation of law and will pay all fines, costs, and damages assessed against the person for that subsequent violation of this section. The giving away of beer or intoxicating liquors, or any other device to evade this division, constitutes unlawful selling.

(B) Division (A) of this section does not apply to any premises for which a permit has been issued under Chapter 4303. of the Revised Code while that permit is in effect.

As the law makes clear, a permit issues under section 4303 is a blanket defense to any charge under this section. However, without a permit, anyone who sells, furnishes or gives away alcohol in a public place is in violation of Ohio law. Moreover, the law makes clear that “any… device to evade” this law constitutes unlawful selling – even if it is not “sold” in the conventional sense.

Do I Need a Liquor Permit for Private Events or Fundraisers in Ohio?

Many Ohioans have a misunderstanding of what is permitted at private events as well. One particularly helpful test case is the case of The State of Ohio v. Thomas Boscarino. In this case, Thomas Boscarino rented a IUE-CWA Union Hall in Dayton, Ohio in which to hold a private fundraiser – though it’s unclear where the proceeds were supposed to end up. At this event, there was gambling, as well as alcoholic beverages. There was no valid alcohol permit for the day or the event at the location, however, the organizer requested a $15 donation at the door and provided patrons with a cup upon payment. The cup would permit patrons to obtain beer in the facility, and they could further obtain liquor drinks for the payment of a “donation.”

Boscarino was arrested and charged with gambling offense, as well as violating O.R.C. 4301.58 which prohibits certain alcohol consumption without a permit. He was ultimately found guilty and appealed. On appeal, Boscarino argued that no beer was “sold” at the July 28 event. He stated that the sign out front suggested a $15 donation to enter the event, but once they were inside, attendees could have all the free beer and pizza they wanted. He further stated that the sign for liquor drinks suggested a “donation,” not a sale price.

In determining this case, the Court examined the tension these type of private events can create when alcohol is involved. For example, the case of Stevens v. United Auto Workers Local 1112, 110 Ohio App.3d 153, 673 N.E.2d 930, involved a fundraiser at a union hall for an injured worker. In Stevens, the evidence indicated that co-workers had all contributed money to pay for the beer and soft drinks that were served at the fundraiser. A flyer for the event advertised that beer and soft drinks would be free, and that there would be donations for the hot dogs. Only hot dogs were “sold” or exchanged for donations at the fundraiser. Under those circumstances, the Seventh District found no evidence that beer was sold at the fundraiser.

Similarly, in Bishop v. Carpenter’s Local Union #126, 1st Dist. Hamilton No. C-070591, 2008-Ohio-2846, a union held its annual picnic at a park that included picnic grounds, rides, and other facilities. As part of the activity, the union purchased 30 half-barrels of beer which, by contract with the supplier, had to be provided gratis to attendees. Union members and their families were admitted to the event for free, the union distributed many complimentary tickets before the event, and the public could attend with an admission charge. Upon admission, attendees received free beer and food and free use of the park’s rides and other recreational facilities. The union and beer supplier were sued after an attendee was involved in a fatal motor vehicle accident after leaving the picnic.

Addressing the plaintiff’s claim that the union had sold beer, in violation of R.C. 4301.58, to those who paid to attend the picnic, the First District stated: “Those who did pay an admission fee for the picnic were not purchasing alcohol; they were paying to attend the picnic, which included food and the use of the park’s many recreational facilities. The union purchased the beer from Stricker’s Grove and was required by contract to offer the beer free of charge. There was no showing that the union had a profit motive in offering the beer or that it had used the offer of free beer to induce the general public, or any other patrons, to attend the event.” Bishop at ¶ 12.

On the other side, however, are State v. Hughes, 5th Dist. Tuscarawas No. 1433, 1980 WL 354031 (Nov. 28, 1980) ($1 admission charged to enter business place where liquor was distributed), and State v. Ward, 9th Dist. Summit No. 12590, 1987 WL 11525 (May 13, 1987) ($6 donation entitled attendees to free beer and pizza). In both of those cases, an admission charge for a location where alcoholic beverages were distributed was found to be sufficient to establish that liquor was being sold in violation R.C. 4301.58.

Ultimately, in the case of Mr. Boscarino, the Court found the circumstances were more closely related to those in Hughes and Ward and to be distinguishable from Bishop. The marquee in front of the IUE hall advertised free beer and pizza for $15 on July 28, 2012. The investigating Detective testified that anyone older than 20 years old was asked to pay $15 to enter and received an orange wristband and cup, that individuals between 11 and 20 years old paid $10 and received a green wristband and no cup, and that individuals younger than 11 years old were free. Both detectives believed they had to pay $15 in order to drink beer. Upon arrival, the Detectives each gave $15 to enter, and they received free pizza and beer inside the hall. Detective George was told the he did not have to wear the wristband, but he had to show it inside to prove that he had paid. The bar area had a sign with suggested “donations” for various liquor drinks, including $2 for Jack Daniel’s; Detective George gave someone a $5 bill and got $3 in return for a shot of that drink. Neither the IUE hall nor Boscarino had a permit to allow liquor sales. Although nominally referred to as donations, the State’s evidence regarding the $15 fee for beer and pizza and the distribution of liquor drinks for a “donation” was sufficient to prove that liquor was sold at the fundraising event, contrary to R.C. 4301.58(B).

Need a Liquor Permit in Ohio – We Can Help!

If you’ve made it this far, you no doubt understand how fraught and perilous it can be to try to serve alcohol or permit BYOB in Ohio without a liquor permit. Our team of Ohio Liquor License lawyers have years of experience helping businesses of all sizes obtain the necessary permits for their bars and restaurants in Ohio. Instead of risking civil fines or worse, give us a call today at 419-900-0955 to discuss your options for legally selling alcohol in Ohio.

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