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Imbiblog is published for general informational purposes only and is not intended as legal advice.

Category archives for “ABC Violations”

Scary Letters from the ABC

October 31st, 2012

In honor of Halloween, we’re writing about a very scary letter alcoholic beverage licensees in California sometimes receive. The letter is from the local alcoholic beverage control (ABC) office, and usually says something like “Dear Licensee: An appointment has been made for you to discuss an important matter concerning your alcoholic beverage license. The appointment is scheduled for October 31, 2012 at 9:00 a.m. at the office indicated above. Sincerely, an ABC District Administrator.”

This letter is referred to as a “309″ letter. If you receive it you have reason to be scared, because the letter typically precedes a disciplinary accusation filed against your license. You should expect a letter like this a few weeks after a sale to a minor decoy, but you should be especially wary if you receive the letter and have no knowledge of any cause for discipline. By the time the ABC sends you a 309 letter, it is probably already set on filing an accusation, so attending the meeting to find out about the “important matter” will rarely change its course. However, at this stage the accusation has not yet been filed and it is possible the licensee may be able to describe extenuating circumstances and avoid an accusation – instead, perhaps getting a warning letter inserted in the licensee’s ABC file. But, this is unusual. Typically if the ABC feels it has sufficient evidence to support an accusation, it will file one. If you believe your situation merits explanation, you may wish to attend the meeting. The ABC will sometimes agree to conduct it by telephone. If you do elect to attend the 309 meeting, in person or by phone, be aware that anything you say at the meeting can be used against you. If you’d prefer not to attend the meeting, you can call in advance of the meeting and request that the ABC send you the accusation paperwork. In any case, we recommend you respond to the ABC’s letter and make it clear that you are a conscientious licensee who is concerned about maintaining your license.

Collect as much information about any potential cause for discipline as soon as you can. Has law enforcement been by your premises? Has a neighbor been complaining? Do you have video of any suspicious activity? If your budget permits, you should also speak to an attorney who can help you with the legal filings, particularly if you have a history of discipline as the penalties get larger for repeat offenses. Take immediate steps to prevent the problem from repeating.

In our experience, most ABC accusations result from licensee mistakes and are resolved by payment of a fine and the implementation of steps to avoid a repeat violation. However, there are occasions when the accusations and penalties are more serious, and on those occasions you could be at risk of license suspension or revocation.

Contact one of the attorneys at Strike & Techel if you have questions about your 309 letter.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2012 · All Rights Reserved ·

ABC VIOLATION ROUND-UP: Failure to Observe License Conditions

January 3rd, 2011

The California ABC actively enforces the alcoholic beverage laws of the state.  We’ve been posting a series of “ABC Violation Round-Up” items discussing some of the violations we have seen in recent enforcement actions.

This week….. failure to observe license conditions.

The Violation: It is common for the ABC to issue a conditional license, particularly when issuing a retail license in an over-concentrated or high-crime area.  A conditional license contains restrictions in excess of the rules typically applicable to a license of that type.  For example, a conditional license might restrict operating hours, prohibit loitering, or restrict the sale of single cans of beer or malt liquor. If a conditional license is issued,  the printed conditions must be available for review upon request by any ABC investigator and  all listed conditions must be followed. Failure to comply with any condition is grounds for ABC discipline, which can include license revocation.

How to Avoid It:  If you have a conditional license, make sure the printed conditions are kept in a secure place at the licensed premises and are available upon request by the ABC or other law enforcement personnel.  Make sure the limitations are reviewed with all of your employees and that they understand the importance of compliance.  Take particular time to review the conditions with employees who have worked at an alcoholic beverage licensee in the past.   Since conditions are license-specific, they may have worked under different restrictions in their prior employment.

Petition to Remove Condition: If a conditional license has been in place for a year or more, and the grounds that led to imposition of a condition no longer exist, it may be possible to petition the ABC to have the condition removed from the license. Our firm routinely files Petitions to Remove Conditions and any of our attorneys can discuss the process with you.

Statute: California Business and Professions Code § 23804

Standard Penalty: 15 day suspension with 5 days stayed for one year.  Penalties vary depending on the specific condition violated.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2010-2011 · All Rights Reserved ·

2011 New Year’s Resolutions: Employee Training on Sales to Minors

December 17th, 2010

If it’s not already there, move employee training to the top of the resolution list for 2011.  In January, California’s Department of Alcoholic Beverage Control (“ABC”) will begin awarding grants to local law enforcement agencies to continue the implementation of Minor Decoy and Shoulder Tap programs.  The operational period for the grants and this round of programs will run from February 1, 2011 through June 30, 2011.  California law enforcement has been using the Minor Decoy program since the 1980s.  For details on the Minor Decoy program, see our prior post here.  The Shoulder Tap program is a newer program where an underage individual working with the police asks adults near alcohol retailers to purchase alcohol for the individual.  The grants for this cycle of programming range from $2,500 to $10,000.  While employee training is always important, given the likelihood of increased enforcement beginning in February 2011, now is a good time to review, revise, and update policies and make sure employees understand the consequences of selling to minors.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2010 · All Rights Reserved ·

Alcoholic Energy Drinks are Out, What’s Next?

December 6th, 2010

At this point, we’ve all recovered from the landslide ban on alcoholic energy drinks that crossed the U.S. in November.  We covered the opening act, here, when Michigan, quickly followed by Washington, banned the sale of alcoholic energy drinks.  New York then reached an agreement with certain suppliers and distributors that halted caffeinated malt beverage sales in that state (review our coverage here).  After that, the U.S. Food and Drug Administration (FDA) issued warning letters to four caffeinated alcoholic beverage companies.  The letters warned those producers that caffeine added to their malt alcohol beverage products constitutes an “unsafe food additive.” 

Substances added to food products, which includes beverages, are considered food additives and are subject to review and approval by the FDA, unless the substance is specifically excluded from the definition of “food additive,” has been sanctioned by the FDA, or is recognized by qualified experts as adequately safe when used as intended.  This third category is referred to as Generally Recognized as Safe or GRAS. 

As many know, the FDA isn’t the usual stop for federal regulation of alcoholic beverages, but rather the Alcohol and Tobacco Tax and Trade Bureau (TTB) which operates under the Federal Alcohol Administration Act (FAA Act).  In this instance, the FDA’s statements meant that the beverages in question were considered adulterated under the Federal Food, Drug and Cosmetic Act (FFDCA).  The TTB takes the position that adulterated beverages, even if their formulas and labels have been approved by the TTB, are mislabeled under the FAA Act.  This means that shipping and selling such beverages violates the FAA Act, which can result in license revocations and misdemeanor penalties.  As the TTB stated, “…each producer and importer of alcohol beverages is responsible for ensuring that the ingredients in its products comply with the laws and regulations that FDA administers.  TTB’s approval of a label or formula does not imply or otherwise constitute a determination that the product complies with the FFDCA, including a determination as to whether the product is adulterated because it contains an unapproved food additive.” 

Producers of alcoholic energy drinks likely thought their products fell under the GRAS status.  The FDA’s announcement ended that assumption.  The question is, what other assumptions might it have ended?  Alcoholic beverage producers have been using caffeine in their products for years, the most popular being coffee.  In the FDA’s Questions and Answers section about the warning letters, it states that the letters are not directed at “alcoholic beverages that only contain caffeine as a natural constituent of one or more of their ingredients, such as a coffee flavoring.”  However, in that same section the FDA also stated that, “Other alcoholic beverages containing added caffeine may be subject to agency action in the future if the available scientific data and information indicate that the use of caffeine in those products is not GRAS.  A manufacturer is responsible for ensuring that its products, including the ingredients of its products, are safe for their intended use and are otherwise in compliance with the law.”  Further, the TTB stated that if requested by the FDA, it would share “formulas for beers containing added caffeine that are approved under 27 CFR Part 25 [TTB regulations].”  In the upcoming months, and perhaps years, it will be interesting to see how the GRAS standard is applied to other alcoholic beverages containing some form of caffeine.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2010 · All Rights Reserved ·

ABC VIOLATION ROUND-UP: Purchase by True Minor

August 20th, 2010

The California ABC actively enforces the alcoholic beverage laws of the state.  We’ll be posting a series of “ABC Violation Round-Up” items discussing some of the violations we have seen in recent enforcement actions.

This week….. sale to a true minor.

The Violation: You cannot sell or serve alcohol to anyone under 21 years of age in California.  The ABC is constantly visiting retailers to make sure this law is enforced. Violations of the law can occur two ways; via a law enforcement decoy sting or via sale to a “true” minor.  We covered decoy stings in an earlier post.

How to Avoid It:  Identification must be requested if there is any question regarding the age of a person requesting access to alcohol. Licensees and their staff must be trained in proper review of identification.   Any identification presented must be bona fide, and must match the person presenting it.  It is common for ABC investigators to stake-out parking lots at off-sale retailers and follow-up with any young-looking people exiting the retailer with alcohol in tow.  It is also common for the ABC to visit on-sale retailers or winery tasting rooms and check the identification of young-looking people with alcohol. In college areas, it is not uncommon for investigators to enter a licensed business and request identification from every patron.

Did the Minor Present Bona Fide ID? Reliance on bona fide proof of majority is a defense under Business and Professions Code Section 25660, but it is very difficult to prove in the case of a true minor because the licensee must prove that reliance on the identification was reasonable, and it is difficult to prove reliance on the identification if you don’t have a copy of it.  If this is a possible defense for your business, be sure you record every known detail regarding the presented identification.

Will the Minor be Present at the Hearing? The minor must show up at the hearing on the accusation against your license for the accusation to move forward.

Statute: California Business and Professions Code § 25658

Standard Penalty:   15 day suspension for 1st offense, 25 day suspension for 2nd offense within 36 months, license revocation for 3rd offense within 36 months.  Fines can typically be paid for the first two “strikes” in lieu of serving a suspension.  The fine for the first strike is capped at $3,000, and raised to $20,000 for the second strike.

Imbiblog is published for general informational purposes only and is not intended as legal advice.

ABC VIOLATION ROUND-UP: Purchase by Minor Decoy

August 12th, 2010

The California ABC actively enforces the alcoholic beverage laws of the state.  We’ll be posting a series of “ABC Violation Round-Up” items discussing some of the violations we have seen in recent enforcement actions.

This week…. sale to a minor decoy.

The Violation: You cannot sell or serve alcohol to anyone under 21 years of age in California.  The ABC is constantly visiting retailers to make sure this law is enforced. Violations of the law can occur two ways; via a law enforcement decoy sting or via sale to a “true” minor.  This post covers law enforcement decoy stings, which are run by the ABC or by a local law enforcement agency.  In a decoy sting, a minor (19 years of age or younger) will visit your premise under law enforcement supervision and attempt to purchase alcohol. We will cover sales to a “true” minor in a later post.

How to Avoid It:  Identification must be requested if there is any question regarding the age of a person requesting access to alcohol. Licensees and their staff must be trained in proper review of identification.   Any identification presented must be bona fide, and must match the person presenting it. Minor decoys are required to answer questions about their age truthfully, so if you ask a decoy “Are you 21 or over?” they are obliged to say no.  Decoys are also required to be 19 years of age or younger, and are required to present their true identification or none at all.  It is common for a decoy to confidently present their true ID and trip-up a server who is not careful. Servers must be trained to check the red “Age 21 in 20__” indicator on every ID presented to them.  Recently, ABC stings at on-sale premises have involved two decoys working in tandem.

Statute: California Business and Professions Code § 25658, ABC Rule 141

Standard Penalty:   15 day suspension for 1st offense, 25 day suspension for 2nd offense within 36 months, license revocation for 3rd offense within 36 months.  Fines can typically be paid for the first two “strikes” in lieu of serving a suspension.  The fine for the first strike is capped at $3,000, and raised to $20,000 for the second strike.

Imbiblog is published for general informational purposes only and is not intended as legal advice.

ABC Violation Round-Up – Buggy Bottles

June 26th, 2010

The California ABC actively enforces the alcoholic beverage laws of the state.  We’ll be posting a series of “ABC Violation Round-Up” items discussing some of the violations we have seen in recent enforcement actions.

This week…. Buggy Bottles!

The Violation: Alcohol served at licensed premises cannot be contaminated, and insects such as fruit flies are considered contaminants.  When the ABC does a sting on a licensed premise, it is common for the investigators to shine flashlights into the back bar liquors to check for the presence of insects.  If they find insects, the bottles will be confiscated and a violation may be filed.

How to Avoid It: Check your bottles regularly for insects, especially the sugary items most likely to attract bugs.  Get rid of anything with inclusions. Have your bar staff keep a log of their regular checks.  Also keep records of any visits from the Department of Health. In the event you get a violation, the log from your staff or a recent “clean” visit from the Department of Health may help you get a mitigated penalty.

Statute:                       Penal Code 347b

Standard Penalty:      Five day suspension

Imbiblog is published for general informational purposes only and is not intended as legal advice.