New daiquiri drive-thru businesses deemed legal by TABC

Snow machines have been running in Eskimo Huts across Texas since 1996.

The one at 10280 Montana Avenue in east El Paso has been serving frozen daiquiris, mixed drinks, draft beer and non-alcoholic choices to go since November 2013.

“Now that we’re in the summer months, business is going very well,” general manager Jason Dozier said. He and his family moved to the Sun City from Amarillo, Texas, to open up the business.

If an alcoholic drink is chosen, identification is checked to make sure the person is 21 years old or older. The store runs a lot like a convenience store and offers other items like bottled/canned beer, snacks and fountain drinks.

There are 47 flavored or mixed drink options on the menu. A person can also create their own once they decide which flavors they like.

Dozier was familiar with the business from the Amarillo location. When he approached the regional Texas Alcoholic Beverage Commission office, he said they had to do some research because they’d never heard of it. Once they saw that 25 other stores are open across the state, and that drinks are in fact served in sealed containers, they approved a dual liquor license that allows consumption on the property and daiquiris to go.

ABC-7 reached out to the TABC for comment but they did not respond by the time the story aired. The law on the TABC website states:

If you obtain a wine and beer retailer’s permit, you will be able to sell margaritas or daiquiris that are made with wine or beer, and you can sell them for consumption on or off the premises. This is the only legal way anyone can sell margaritas or daiquiris for take-out or “to go.” The drinks cannot be made with tequila or rum or any distilled spirit.

The drinks do not have to be in sealed containers to be taken out of the establishment. However, the container does need to be sealed if the customer takes it into their car. A person cannot possess an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Below is the section of the Penal Code addressing open containers in motor vehicles.

If you decide to go with this model, there is no TABC-definition of sealed container. Section 49.031 of the Penal Code says “Open container” means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

If you pursue this, you should contact your local law enforcement agency and/or district attorney’s office to find out whether your intended container would meet their definition of “open container.” Local law enforcement and the district attorney’s office would determine whether to pursue charges against drivers who are leaving your store with one of your drinks. From the Penal Code: 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE.
(a) In this section:
(1) “Open container” means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
(2) “Passenger area of a motor vehicle” means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
(3) “Public highway” means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.

ABC-7 also contacted the El Paso Police Department to talk about what constitutes an open container. A spokesman’s e-mailed response said, “Open container means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.”

Drinks to go, whether in the drive-thru or store, are heat sealed. They look similar to a vacuum seal. Due to state and city laws, they are not to be consumed while someone is driving or even in a vehicle.

ABC-7 also reached out to the local Mothers Against Drunk Driving office to see how they feel about the drive-thru business, but the spokeswoman was unavailable.

Ultimately, the drinks served at Eskimo Hut or other daiquiris to go businesses must be consumed at home, or wherever a customer’s final destination is.