The new speak-easy: Uber Eats has turned into a rogue cocktail bar

SAN FRANCISCO — Uber Eats has become a rogue mobile bar during the coronavirus pandemic, delivering cups and carafes of mimosas, margaritas and mai tais.

The only problem? The app forbids alcohol delivery in most markets.

Strapped restaurants have been selling high-margin drinks to go since California and other states temporarily loosened alcohol rules during the global pandemic. For some delivery apps like DoorDash and Postmates, which already allowed alcohol sales via their apps and have built-in systems to ensure customers are carded, it has opened a new market: cocktail deliveries from restaurants.

But in the U.S., Uber Eats' app is only programmed for alcohol sales in Florida and select smaller markets. In other places where alcohol delivery hasn't been part of Uber's business, its drivers are instruction-less and in some cases dropping off alcoholic beverages in illegal packaging at the doorstep without ever interacting with a person. At bars and restaurants in New York City, Baltimore and elsewhere, to-go cocktails were available for order on Uber Eats despite the company's rules.

Evan Bould, 32, stumbled upon a local restaurant that looked appetizing on Uber Eats in Austin, Texas, and paired a lime margarita with his burger. He said receiving a small bottle of Reposado tequila taped to a cup of Margarita mix at his door felt a little informal — even in the age of contactless delivery.

“This did almost feel too easy,” he said.

If a restaurant were found to be providing alcohol to a minor or intoxicated party, they and the driver who facilitated delivery could be found criminally liable, according to the California Department of Alcoholic Beverage Control. Uber and other delivery services say they are platforms that facilitate transactions, employing independent contractors as go- betweens.

After a Washington Post inquiry, the California Department of Alcoholic Beverage Control said it was opening an investigation into the matter.

Uber Eats spokeswoman Meghan Casserly said that the company removed alcohol listings from the restaurants flagged by The Post and is reviewing menus to ensure offerings comply with its policies. The company cited what it saw as confusion around its rules in a rapidly changing environment, but placed ultimate responsibility on the restaurants who listed alcohol improperly.

“While laws and regulations are shifting rapidly during this pandemic, it's important to note that Uber Eats does not currently allow alcohol sales in California, so we take these types of reports very seriously,” Casserly said. “We're sending guidance to restaurant partners reminding them of our policies on alcohol delivery and the importance of alcohol regulatory compliance. If restaurants knowingly circumvent our policies or act in bad faith, we will take action including removing menu items and restaurants from Uber Eats.”

The novel coronavirus has created a groundswell of demand for food delivery apps, such as Uber Eats, Postmates, DoorDash and Caviar. Shelter-in-place orders have kept customers largely tethered to delivery apps if they want to order from their favorite restaurants.

But the surge in business is also revealing more cracks in the Uber's ability to police its apps. The company has consistently highlighted its status as a platform giving opportunities to drivers, but dismissing responsibility for bad behavior on its app.

Ala Benotman, 27, a delivery driver for apps such as Instacart, DoorDash and Caviar who has worked for Uber Eats in the past, found it frustrating that Uber's drivers would be put in a position to take the blame for an oversight that could leave them criminally at fault. He said the situation underscores how drivers have to be extra vigilant in an environment where companies don't have their best interests at heart.

“We are the one who are facing the law when it comes to this,” he said. “I think the Uber app is the one that should be responsible for checking who is the customer or how [old they are]. ... It really should be the responsibility of the company, not the driver.”

Eats in particular has taken on a new importance at Uber, where the company's traditional ride-hailing business has nearly evaporated. CEO Dara Khosrowshahi said on a call with investors last month that trips on the ride app had declined 60 to 70 percent in the markets hit hardest by the Coronavirus. Eats, on the other hand, had record days this month in some markets, according to people familiar with the matter.

Postmates, DoorDash and Caviar each allow alcohol delivery, but heavily monitor it through their apps, including requiring drivers to scan ID cards, collect signatures in some cases, and safely transport alcoholic beverages so they are not in violation of open container laws. On Postmates, for example, sellers are required to specially input their alcohol products into a portal so they automatically flag an identification check when they're selected.

Mattie Magdovitz, a spokeswoman for DoorDash and DoorDash-owned Caviar, said that while to-go cocktails were a new addition to the apps, minimal changes were required for the apps since they were already set up for alcohol deliveries. The apps waived their signature requirement to encourage social distancing practices by avoiding touching, but are still scanning IDs. Postmates instructs drivers not to deliver to anyone who is under 21 or appears intoxicated, and hinges its deliveries on the recipient being present.

The most responsible companies have worked directly with the state to devise systems to ensure they are in clear compliance with the rules, said Jacob Appelsmith, director of the California department of Alcoholic Beverage Control, the state regulator with a broad array of enforcement powers. He declined to name which companies.

California officials last month eased regulations on to-go alcohol orders, allowing home delivery of alcoholic beverages provided they were transported in delivery drivers' trunks and did not come in containers such as cups with straw openings. The courier is also supposed to verify the recipient's ID upon delivery. The cocktails and mixed drinks also have to be ordered with food.

The Washington Post ordered a half dozen cocktails from Uber Eats in the Bay Area over the past week. Most of the drinks came ready for consumption in clear plastic cups, in violation of to-go alcohol delivery guidelines specified by state officials. The plastic cups typically had a hole for a straw on their lids, with a piece of tape over the opening. And drivers left the drinks at the door without carding recipients. The drinks were ordered without food.

The ABC's Appelsmith said that arrangement did not satisfy even the state's relaxed guidelines on alcohol delivery.

“It's meant to be sealed and not readily accessible,” he said. “What we clearly were trying to avoid was ready access to someone just sipping it through a straw or with a lid.”

Some of the problems stem from Uber's app. Because it doesn't allow alcohol delivery in most markets, drink orders are coded no differently from food items, meaning they can be selected regardless of whether they accompany a meal. And there is no step-by-step checklist for drivers delivering alcoholic drinks, meaning they are not instructed to verify the recipient is 21 or over by scanning their ID, ensure the recipient is not intoxicated, or otherwise obtain a signature upon delivery (DoorDash and Caviar have waived the signature requirement to adhere to social distancing guidelines).

In certain cases, it's unclear if a driver knows they are delivering cocktails to go.

“It's not worth the risk for $4,” said a courier who has driven for Uber Eats, citing the typical earnings on a delivery. The driver, who declined to be named publicly for fear of retaliation, said he had noticed the availability of cocktails but expressed a range of concerns: “Open container laws, furnishing alcohol to a minor or an intoxicated person.”

“I'd probably decline the pickup,” he said of to-go alcohol orders, citing the potential liability for the driver.

So far, Uber hasn't effectively policed it app to ensure the restaurants are followings its rules. By last week, restaurants listing alcoholic beverages included Cadillac Bar and Grill and The Links Bar and Grill in San Francisco, and Agave Uptown in Oakland, among others.

In Agave's case, some drinks were listed with apostrophes — masking terms like Margarita and Mojito from search. The restaurant did not respond to repeated requests for comment.

The businesses listed a sampling of beverages including to-go mimosas, margaritas, mixed drinks and in one case, a default order of seven servings of its cocktails.

Michael Rodriguez, owner and operator of the Cadillac Bar and Grill, which was delivering to-go cocktails on the app, pledged to cease the practice beginning Monday.

“I'm going to immediately stop it with Uber,” he said, referring to alcoholic drink listings. He pointed to California's eased restrictions on delivery of cocktails and premixed drinks. He was able to get in touch with certain apps such as DoorDash, he said, and find instructions for listing alcohol on other apps. But there was no specific guidance from Uber, and he has typically struggled to get in touch with them.

Rodriguez said he sends the drinks in plastic cups with packing tape over them. In the restaurant, signage warns couriers not to serve alcoholic beverages to anyone under 21, he said. Only Uber was allowing orders of cocktails without food, he added.

“I didn't know that's what Uber was doing,” he said.

The Links Bar & Grill offered $10 cocktails on Uber Eats last week. A representative, who declined to be named citing concerns for his business, said it was a difficult time for restaurants and they were turning to any measure available to try to keep afloat. But the restaurant didn't realize alcohol sales on Uber were not being properly monitored.

The business, he said, checks the IDs of any couriers who pick up alcoholic drinks, but did not realize they were responsible for ensuring the ultimate recipient was of age — something he believed was left to the delivery app. The representative said the restaurant did not make any Uber Eats alcohol deliveries as far as he was aware, and the listing had been taken down.

Appelsmith, the ABC director, was clear about the potential liability for both restaurants and couriers, though he said that state was more focused on compliance than enforcement.

“Let's say they deliver to you and your 17-year-old brother opens the door and they just hand it right over to them? Who is responsible for that?” he asked. “Who is responsible is the person who delivered it. That individual is guilty of a crime and so is the licensee who actually sold it. And the licensee's license is in jeopardy of being penalized.”