Monday, 16 September 2013 13:33
Guess what happy revelers. You still have a chance to get the California Last Call extended to 4 AM.
Tuesday, 25 June 2013 00:00
We thank John Hinman, General Counsel to CMAC for the following post. Once you read it, pass it along to your other beverage friends and encourage them to all join CMAC so we can defeat this legislation. John's article was first published in "Booze Rules Blog" on May 20, 2013.
Welcome to your worst nightmare: You serve a customer at a bar, restaurant, nightclub, and winery tasting room (or at a party at a winery) who turns out to be younger than 21, and who later gets into an accident or commits a crime like assault where alcohol is a factor and you end up with a felony, which bars you from the alcohol industry for the foreseeable future. AB 1128 (currently on a fast track to pass through the California legislature) amends Business & Professions (“B&P”) Code Sec. 25658 and ups the potential penalty for sales to a minor (from a misdemeanor to a felony) when the minor causes an injury, death or damage to others.
Civil damages for selling or furnishing alcohol to a minor who gets into an accident or causes harm is already part of the law and the potential consequences of a current incident include license revocation for a licensee (Sections 25602 and 25602.1).
The hidden cost of this statute will be paid by business owners (restaurants, convenience stores and, yes, wineries) who (knowingly or otherwise) serve or sell wine to customers who present false ID or who appear to be over the age of 21. Once an individual has a felony on their record they are pretty much forever after barred from being an alcoholic beverage licensee, or an officer, director or shareholder of a corporate licensee. Proving rehabilitation is possible, but typically not for at least a decade or more afterwards (if then). AB 1128 is more than license suspension or revocation; it’s a death penalty for individual and corporate alcoholic beverage licensees.
And yes, corporations can commit crimes (to quote Mitt Romney “corporations are people, my friend” and the AB 1128 statute applies to “every person”). See also Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The application of this penalty statute to corporate entities is easy to imagine (does anyone remember Arthur Anderson LLP or Enron Corporation?); especially in a situation where the damage caused by the minor is extraordinary (for example, a few months ago at a Temecula winery, there were reports of a drunken brawl involving a group of young people that resulted in numerous injuries – what if one of the young people had been under 21 and one of them was seriously hurt?).
What really happens today is that the under 21 crowd have really good false identification available and use those fake IDs to drink or buy alcohol at a tasting room or restaurant or to buy alcohol from a liquor store. Then, when they get caught drunk driving or are involved in an accident or another crime, they show their real identification and ditch the fake ID (because using false identification is a crime also). It becomes their word against the word of the server, clerk, winery employee or winery owner serving wine as to whether or not B&P Code Section 25660 (reliance upon bona fide proof of ID) was satisfied. Usually it isn’t satisfied because of a lack of proof, lack of availability of the fake ID or minor differences between the ID and the person presenting it (ID defense cases have been lost over eye and hair color, and minor weight or height differences).
We tried a case like this in 2005 involving a girl who was four months shy of 21 and using her sister’s ID at a well-known establishment in wine country. It was a tragic case. She crashed into a guardrail at 2:30 AM on a foggy night and died. She had had two drinks (the last one at 10 pm); the accident was the result of speed and fog, not alcohol (which we had to prove). We prevailed on behalf of the venue after a very contentious and extended trial but we had to face testimony from the older sister and her parents that the victim couldn’t have been using the false ID: it was a swearing contest against the venue owners and everyone in the establishment on the night in question. If the AB 1128 felony penalty rule had been in place in that case, the matter would have escalated to the Superior Court and the owners could have faced jail time and could have permanently lost their business. It is cases like this that make us shudder at the implications of AB 1128.
Now consider the retailer exception to AB 1128 that requires a retailer to KNOW that the minor is under the age of 21 in order to face a felony penalty. This predicate defense, by the way, is NOT available to wineries, who are not retailers.
Has anyone out there ever given a glass of wine to a 20-year-old, married to someone older? Imagine an accident or an incident later in the day or evening. If AB 1128 passes, conduct that occurs every day in wine country, but on one unlucky day is followed by an accident or an injury, could result in the potential loss of the winery or the business.
And consider further the young person over 21 dating and sharing a bottle of wine with an 18, 19 or 20-year-old; whether in a tasting room, at a restaurant or at home. That young person over 21 would also be liable for a felony in the event of an accident, crime or similar tragedy involving alcohol. The lives that would be ruined would be those caught up in tragic situations; without regard to intent or actual causation. Suddenly we are exposing young people to jail and potentially marking them for life as felons for drinking with their friends anywhere (because this doesn’t just involve venues). These incidents are tragic enough and carry enough consequences without convicting everyone involved in the party of a felony for “furnishing alcohol”.
Is this going to stop those younger than 21 from drinking? No way. This is a really bad bill that should be vigorously opposed by every thinking parent and by every licensee in the state.
by John Hinman 05.20.13
BOOZE RULES BLOG
This blog is dedicated to occasional (and hopefully interesting) reports of state and national alcoholic beverage regulatory developments that we encounter in our practice. Booze Rules (and any comments below) are intended for informational use only and are not to be construed as legal advice. If you need legal advice please consult with your counsel.
Sunday, 23 June 2013 21:38
The room was not quite full, but everyone there was interested in what the proposed changes would mean for the Mission Special Use District (SUD), the City's oldest, Alcohol Special Use District enacted to limit the expansion, modification or addition of liquor licenses in the SUD area. For a map of the area, click here or scroll to the end of this post. Really geeky? Read the 1999 Mission SUD legislation, click here.
Supervisor Campos explained the first change which would impose a mandatory "Conditional Use Review" for new restaurants proposing to locate on the Valencia Corridor between 15th and 21st streets. The motivation behind placing a conditional use requirement on new restaurants is to put the Planning Commission in the approval process so that they can balance retail and other service business with the burgeoning restaurant row.
Second is a common sense change which would allow neighborhood grocery stores to sell limited amounts of beer and wine. Currently, because of the City's desire to discourage formula retail, a provision in the law allows grocery stores over 5,000 SF to sell beer and wine but does not allow smaller "mom and pop" stores to have that benefit. This is a common sense change that everyone who believes in small business should support. How did we end up allowing the large operators and not allowing the small? The law of unintended consequences is our best guess.
If you want to make alterations or repairs to an existing business in the SUD that own a liquor license, you have only 30 days in which you can close your business for the improvements. Yes, you read that right, if you want to make your store, well, for example, ADA compliant, you can't close more than 30 days to make the improvements or you forfeit your liquor license. It does not take a genius to imagine what this law has done......businesses are discouraged from making improvements for fear that they may not finish in 30 days and lose their liquor license forever.
The last change being proposed would allow for the movement of liquor licenses inside the SUD to occur, where currently the SUD legislation froze all bars and liquor stores in their 1990 locations. Remember that the SUD was enacted to address what the community perceived as being overconcentration of liquor licenses in certain areas. What the SUD Legislation did not consider was that if the current "status quo" was a problem, wouldn't freezing everyone just continue the problem? This last change would allow the licenses to be moved within the SUB boundaries and with proper planning and community input, the negative impacts of clustered licensees can be a thing of the past.
For CMAC members, this legislation is a great start. We applaud the care and consensus building the Supervisor has exercised throughout this process and urge all of our members to strongly support these changes. Once the community sees that these changes have made their neighborhood a better place to live, work and play, I bet future changes won't take another 20 plus years. Or we hope so.....
We thank Marco and Michael, the proprietors of Bissap Baobab, for their great food and generous hospitality. CMAC is nothing without such great involved member venues. Treat yourself to a feast and head over for a taste of their food. Tell them CMAC sent you.
If you want to read the entire legislation, click here or paste this link into your browser:
Friday, 14 June 2013 10:22
Mix it up with Political and Industry Folks:
You are invited to to join industry professionals like yourself and Supervisor David Campos to network and hear about his legislation to update the Mission Alcohol Special Use District.
David Campos and Scott Wiener
SUPERVISORS CAMPOS AND WIENER TO INTRODUCE UPDATED ALCOHOL AND RESTAURANT CONTROLS TO BENEFIT THE MISSION DISTRICT
New rules will support neighborhood and innovative businesses, strengthen controls against problem establishments, and address loss of retail space on Valencia Street
May 14, 2013
FOR IMMEDIATE RELEASE
Contact: Supervisor David Campos, (415) 554-7743,
Supervisor Scott Wiener, (415) 554-6968,
San Francisco, CA – At today’s Board of Supervisors meeting, Supervisors David Campos and Scott Wiener will introduce legislation making targeted changes to alcohol controls in the Mission District and addressing loss of retail space on Valencia Street. The legislation will encourage businesses that contribute to the health and vitality of the community’s commercial corridors while strengthening controls on businesses that may have a negative effect. The area affected by this legislation includes major Mission District commercial corridors such as Mission Street, Valencia Street and 24th Street.
Initially established in the early 1990s to control the proliferation and clustering of problem businesses serving alcohol, the Mission Alcohol Special Use District (MSUD) has remained substantively unchanged for 17 years. In recent years community and business leaders have called for an update of the MSUD to reflect the current needs of The Mission.
“After a year of community and stakeholder meetings we have found a compromise that addresses the needs of neighbors, community groups and Mission business owners. The proposed changes update the MSUD by allowing new community based entrepreneurship while still continuing to strictly regulate alcohol use in the district,” said Supervisor Campos.
“The Mission District is a vibrant, unique neighborhood with a cultural and culinary reputation unrivaled in the City,” said Supervisor Wiener. “These updated alcohol controls strike a balance that will allow great businesses to flourish, while protecting the neighborhood from businesses that detract from our quality of life. The Mission Alcohol Special Use District, while well-intentioned, led to unintended consequences and prevented, delayed, or undermined great businesses – whether a bowling alley, art space, movie theater, or craft beer venue – in this neighborhood.”
Legislative changes include:
- Planning Commission approval for full-service restaurants moving into retail spaces on Valencia Street.
There has been a recent increase in the number of restaurants on Valencia Street, and Valencia Street has become one of the top food destinations in San Francisco. In order to maintain the corridor’s diverse mix of retail, restaurants, and other services, proposed new full-service restaurants on Valencia between 15th and 24th Streets must now receive the permission of the Planning Commission (a “conditional use permit”) before occupying a former retail space. This new control, which is common in other commercial districts, will not apply to restaurants replacing other restaurants or restaurants replacing non-retail uses (e.g., banks). The new control embraces Valencia Street as a food mecca while acknowledging the critical importance of retail spaces to any healthy commercial area.
- Neighborhood grocery stores allowed to sell limited amounts of beer and wine.
In keeping with the City’s current policy to discourage formula retail, the legislation removes a provision that favors large chain grocery stores over small, independent operators. Currently, only grocery stores over 5,000 square feet are allowed to sell beer, wine and spirits. The proposed controls will allow small grocery stores to sell beer and wine so that they can better serve the neighborhood and remain economically viable. Beer and wine sales would be limited to 15% of the grocery store’s floor space and would be subject to a hearing at and approval by the Planning Commission.
- Improve the ability of current business owners to make repairs, renovations and become ADA compliant.
Under current Mission SUD alcohol rules, if a business is closed for more than 30 days it loses its liquor license. This restriction discourages business owners from updating their storefronts or making interior renovations, leading to deteriorating stores and restaurants. Under the proposed controls, business owners will be able to make physical improvements to their stores, such as increasing the size of their windows and making improvements to ensure compliance with disability laws, by allowing them to close up to 120 days for renovations without losing their authorization from the City to operate.
- Alleviate clustering by allowing transfers of liquor licenses within the district.
Passage of the original MSUD froze all bars and liquor stores in the Mission in their 1990 locations with many such establishments being clustered together. Inappropriately located or problematic establishments can’t move to a different location without losing their licenses, making it unlikely they will be replaced by more responsible businesses. The new controls will allow for liquor licenses to be transferred to new locations within the MSUD while still prohibiting new licenses from entering the Mission.
The legislation will be heard before the Land Use and Economic Development Committee before being passed to the full Board of Supervisors.
For more information on the legislation click here:
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Monday, 27 May 2013 15:41
WHY YOU SHOULD CARE
The Society for Prevention Research envisions a wellness-oriented society in which evidenced-based programs and policies are continuously applied to improve the health and well-being of its citizens, fostering positive human development and citizens who lead productive lives, in caring relationships with others.
The SPR Annual Meeting provides a unique opportunity to advance this vision by providing a centrally integrated forum for the exchange of new concepts, methods, and results from prevention research and related public health fields; and by providing a forum for the communication between scientists, public policy leaders and practitioners concerning the implementation of evidence-based preventive interventions in all areas of public health.
Entertainment Commission founding president, Terrance Alan and Research Scientist, Brenda Miller, will be panelists on Thursday May 30, 2013 from 1:15 until 2:45 PM. The session will focus on Domestic and International Strategies for Prevention Research On Young Adult High Risk Behaviors in Drinking Establishments. Brenda Miller has been studying patron behavior at San Francisco venues for over six years.
Don’t miss this opportunity to meet and network with more than 800 researchers, policy-makers and practitioners from the U.S. and abroad at the premiere meeting for prevention science!
· Three plenary sessions (click here)
· A full day of pre-conference workshops (click here)
· More than 300 presentations including organized paper symposia, organized poster forums, roundtable discussions/scientific dialogues and paper presentations
· Two evening poster sessions and receptions
· Presidential Address (click here)
· ECPN Luncheon (click here)
· NIH Events
· NIDA International Poster Session
· International Networking Forum (click here)
· Diversity Network Reception
· Annual Minority Scholarship Fund Dance
· SPR Cup (click here)
· Keynote Speaker and Awards Presentations (click here)
· “Brown Bag” Special Interest Group Meetings (click here)
*To view the program schedule online, please click on “Program Schedule” icon above.
**Online registration ends May 26, 2013.
***Hyatt Regency San Francisco is SOLD OUT, Wednesday, May 29, and Thursday, May 30. Click here for the overflow hotel information.