What Florida Law Says about Pop-Up Bars & Restaurants

Nothing. Despite the popularity of pop-up bars and restaurants, Florida does not have special laws and regulations that are specifically aimed at these short-term hospitality concepts. That’s a problem for pop-up organizers. The primary attributes of pop-ups are their limited durations (sometimes as short as one event) and their uncommon locations (abandoned businesses, building rooftops, airplane hangars, etc.). But the Florida laws and regulations that govern bars and restaurants are designed to govern permanent structures and operations. As a result, it can be especially difficult for organizers to operate successful pop-ups that are also legally compliant.

Getting the Right Alcohol License for Pop-Ups

The primary focus of this website is compliance with Florida Beverage Laws, so that is where we start.

Prior to selling alcohol at a pop-up, organizers must have a Florida retail license that permits consumption on premises–a COP license. The most common retail license is the 2COP license, which permits sales of beer, wine, and ready-to-drink spirits-based products with alcohol-by-volume (ABV) less than 6%. Other forms of COP license–particularly the 4COP-QUOTA license or 4COP-SFS license–are poor fits for pop-ups. The 4COP-QUOTA license allows for retail sales of beer, wine, and distilled spirit products, but there is a limited number of them available in each county, as a result of which most quota licenses sell for $100,000 or more. the 4COP-SFS also allows for retail sales of beer, wine, and distilled spirit products, but they are limited to licensed restaurants that meet size and revenue requirements.

Obtaining a Florida retail alcohol license of any kind requires two things that might be particularly difficult for pop-up organizers: (1) written authorization for exclusive use of the space, and (2) local zoning approval.

Application to the Florida Division of Alcoholic Beverages & Tobacco (ABT) must be accompanied by a written lease agreement or other written authorization to use the space occupied by the pop-up. The ABT is very much focused on the specific area in which alcoholic beverages may be served. the pop-up organizers must show that they have the exclusive right to control this space and the sale and consumption of alcohol on the space. This may be inconsistent with the limited nature of the pop-up operation. If the pop-up organizer cannot get the necessary permission from the property owner, an alternative may be for the property owner to directly obtain the retail alcohol license for its property and then engage the pop-up organizer as its agent to operate during the pop-up event.

The ABT application for a retail alcohol license must include signoff from the local zoning authority. This signoff indicates that sales of alcohol are permitted under the applicable municipal (county or city, depending on where the licensed premises is located). Every zoning authority has its own approval process, and an especially complicated zoning approval process might run counter to the purpose and concept of a limited-duration pop-up. The uniqueness of the pop-up location might also present a challenge to getting zoning approval. Because zoning regulations are created to control and limit permanent uses of properties, they generally don’t make special allowance for a short-term use. For instance, if a permanent bar could not operate in a residentially zoned area, then a pop-up bar probably cannot operate on the rooftop of an apartment building in that area.

Getting the Licenses and Make and Sell Food at Pop-Ups

Compared to the alcohol license, getting a food preparation license for the pop-up restaurant might be easier, depending on where food preparation is done and how. Key to this determination is where the food is prepared, which might be different than the pop-up location where the food is served. The Florida Division of Hotels & Restaurants (H&R) is principally concerned with where food is prepared, to ensure compliance with health and safety regulations concerning food preparation.

Pop-up organizers have three licensing options when it comes to food preparation. First, the pop-up location itself might have everything it needs–particularly, a kitchen or other food prep area–to be licensed as a restaurant. However, it is unlikely that more unusual pop-up locations will be suitable to be licenses as a restaurant. Second, pop-up organizers might handle food preparation in a licensed food truck. Food trucks can be licensed as Mobile Food Dispensing Vehicle (MFDV) that is completely self-sufficient or that utilizes a commissary kitchen. Third, pop-up organizers can be licensed as a food caterer, utilizing a commissary kitchen. In the case of a food truck or a caterer that utilizes a commissary kitchen, the commissary kitchen must be licensed by H&R and must comply with health and safety regulations.

Even where food preparation is handled by a licensed food truck or by a licensed food caterer utilizing a commissary kitchen, the location of the pop-up itself, where food is served, is subject to health and safety regulations administered by the Florida Department Health (“Florida Health”). Each county office of the Florida Health has an Environmental Health Section that manages the Food Safety and Sanitation program. For pop-up events that do not run longer than 18 days, Florida Health offers a Temporary Food Service Event Application, which must be filed with the county Environmental Health Section. Organizers of pop-up events that will run longer than 18 days should contact their county Environmental Health Section to ask about the specific requirements for that county.

Pop-Ups the Easy Way: Take Over an Existing Bar or Restaurant

It might not serve all the desired goals of the organizers, but staging a pop-up in an existing licensed bar or restaurant makes regulatory compliance much easier. Existing bars and restaurants (presumably) already have the necessary licenses and permits to operate, including local zoning approval, retail alcohol license, and food preparation and service licenses. In addition to borrowing the space, pop-up organizers can essentially “borrow” these licenses.

To make the take-over work, from a regulatory standpoint, the license holder and the pop-up organizers should execute a contract that allows the pop-up organizers to work within the space as the license holder’s agent. The license holder is still responsible on all of its licenses, so it will want to include in this contract protections to ensure that the pop-up organizers do not violate applicable laws and regulations and must indemnify the license holder for costs. For its part, the pop-up organizer should require proof that that the license holder has all the right licenses and that it will keep them active during the take-over period. The property owner, if different than the license holder, will probably also need to provide its consent to allow the pop-up organizers to utilize the space (check the lease agreement). If the take-over will continue for longer than a short period, it might also be helpful or necessary to add the pop-up organizers as joint operators on the retail and food licenses.

Bonus: Don’t Forget Event Insurance

It’s important that pop-up organizers obtain liability insurance that appropriately covers the operations of the pop-up event. Organizers that operate a permanent bar or restaurant might assume that their existing liability insurance will cover the event. This probably is not the case. Like permits and licenses, liability insurance is generally written to cover the actions that are taken by the insured on a specific premises. Even if organizers are taking over an existing bar or restaurant, they should not assume that the liability insurance for the bar or restaurant owner or operator will cover their own actions. Bottom line: pop-up organizers should consult a liability insurance agent to make sure they are properly covered.

Do you have questions about pop-up bars and restaurants in Florida? Contact us to schedule a consultation with a beverage attorney.

Because we’re attorneys: Disclaimer. Posted November 6, 2022.

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