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THE ALLIANCE OF ALCOHOL INDUSTRY ATTORNEYS & CONSULTANTS

Author: Brad Dawson

Tennessee Restaurants, Bars and Hotels Be on the Alert for Immigration Raids

Written by Brad Dawson on . Posted in Will Cheek's Last Call Blog.

Just today, we heard from a restaurant that was “inspected” by agents looking for illegal immigrants and asking about proper documentation.  Scary stuff.  We understand that one or more Tennessee ABC agents lead the investigation.

Bone McAllester immigration expert Raquel Bellamy offers these Top 5 Immigration Tips for Employers.

Unauthorized immigration is a hot topic these days. Undocumented immigrants are roughly 5% of the U.S. civilian labor force, as reported by the Pew Research Center.  We suspect that many restaurants, bars and hotels have a much higher percentage of illegals.

Some employees give employers fake documents. Other employers intentionally hire undocumented immigrants, to gain a competitive advantage by offering lower pay and fewer protections. In the most egregious scenarios, employers falsify records and participate in labor trafficking by recruiting and smuggling workers from abroad (a big no no!).

A recent federal immigration executive order deputizes state and local law enforcement authorities to act as ICE agents.  Legally, TABC agents, local police and even beer board inspectors can now search your business for illegal or improperly documented immigrants.

Here are our top five immigration tips for employers:

1. Anticipate increased auditing of records to verify I-9 compliance. Locate and organize your records to avoid costly delays. You should have a completed I-9 for each employee.

2. Prepare for the inevitable by conducting an internal audit, which will help you identify any I-9 compliance issues.

3. Consult a competent employment attorney regarding any potential liability for violations of I-9 regulations.

4. Train front office staff (receptionists, hostesses, etc.) on how to respond to law enforcement officials who enter the premises to inquire about immigration violations. Know your rights to limit access of law enforcement officers.

5. Avoid discrimination based on national origin against potential employees. During the interview phase, limit your inquiry to whether the applicant is authorized to work in the United States and whether the applicant will require sponsorship to obtain work authorization. If an applicant or a current employee is confused about work authorization, you should encourage him/her to seek independent counsel.

6. I know I said 5, but who doesn’t love a bonus? Show compassion for workers who are experiencing personal trauma as a result of the changes in immigration enforcement priorities. Even U.S. citizens may experience a high level of anxiety over the potential impact to their family members and friends. Be mindful of negative interactions between employees. Some of my clients have reported workplace harassment. In one instance, a worker was blackmailed by a co-worker who threatened to call ICE. Employers should be aware of any workplace intimidation and maintain a policy against bullying. Again, regardless of your position on the debate, we are all less safe when pockets of our population are particularly vulnerable.

Ray Stevens controversial tune “Come to the U.S.A.” seems timely:

If you thinkin’ about illegal immigration
Be careful when you’re choosin’ the nation
‘Cause breakin’ the law in some countries is frowned upon.
Imagine that.

In a rare bit of shameless self-promotion, we can help you make sure you are properly documented, in case agents come a knockin’.  Feel free to e-mail us at will@willcheek.com

Original author: William T. Cheek III

Duncan Liquor Law Letter

Written by Brad Dawson on . Posted in Duncan Liquor Blog.

In this edition:

  • EN BANC REVIEW OF RETAIL DIGITAL NETWORK CASE IS UNDERWAY – Read
  • Missouri Broadcasters Association Wins Appeal of Lawsuit Challenging the State’s Restrictive Alcohol Advertising Statute and Regulations – Read
  • US appeals court reinstates suit over Missouri alcohol ads – Read…

And more for more news – go to Duncan Liquor Law Letter

EN BANC REVIEW OF RETAIL DIGITAL NETWORK CASE IS UNDERWAY

All 11 judges from the 9th Circuit gathered in San Francisco this past week to hear oral arguments on the Retail Digital Network appeal, per Alcohol Law Review blog. This step marks the beginning of the “en banc” review of the case.

The blog gave us a brief summary of what took place last week saying, the “judges did seem to struggle with the specific details of the law in question [tied-house laws] and how it works in the marketplace” and the panel also had plenty of “questions on the state of commercial free speech law in the United States Supreme Court.”

The blog didn’t offer up its guess on the final outcome as it is a “terribly imprecise science,” but it did say, “with additional cases on commercial free speech pending before the Supreme Court, the Ninth Circuit may take awhile to issue a decision.”

Missouri Broadcasters Association Wins Appeal of Lawsuit Challenging the State’s Restrictive Alcohol Advertising Statute and Regulations

JEFFERSON CITY, MO, January 20, 2017 – Yesterday the U.S. Circuit Court of Appeals for the Eighth Circuit unanimously revived our lawsuit that challenges a Missouri statute and two Missouri regulations that we believe illegally limit alcohol advertising.

These Missouri laws prevent consumers from receiving truthful information in advertising. Specifically, although retailers can offer price discounts and promotions on alcoholic beverages, these laws keep citizens from learning about those discounts in advance, through radio, television, and newspaper ads.
Our radio and television stations are key sources of information for Missourians. Just as with news, listeners and viewers learn about the availability of goods and services through radio and TV advertising, and a restriction on advertising truthful information only keeps relevant and useful information from consumers. That’s why the MBA and several other entities challenged these laws under the First Amendment, and its guarantee of commercial free speech.

The antiquated Missouri laws at issue prohibit our advertisers from being able to advertise alcohol discounts, even though those discounts can be advertised on premise. The state contends that the restrictions are intended to discourage binge drinking, but binge drinking is more likely to be encouraged by promotions inside a bar than from media advertisements heard or seen in one’s living room.
The MBA is pleased that the appeals court pointed out the many inconsistencies in the regulations, which we believe demonstrate their unconstitutionality. The Supreme Court’s precedents protecting truthful commercial speech permit restrictions on commercial speech only if they are closely tailored to the state’s needs, and we believe the many inconsistencies in Missouri alcohol advertising regulations show that these laws are not so limited.

Additionally, because advertising of special pricing is allowed in all our bordering states, we believe that these laws create an unfair competitive disadvantage to Missouri businesses.

The laws are also ill-suited for the era social media, which college students in a bar can use to instantly publicize alcohol discounts, and to today’s world of ubiquitous and growing microbreweries and wineries, which have special exemptions from some of the restrictions.
If these laws are found unconstitutional, or removed by legislative and regulatory action, price-conscious consumers will have better information and be able to make better alcoholic beverage purchasing choices.

The immediate effect of the Eighth Circuit decision is to send the case back to the U.S. District Court for the Western District of Missouri. MBA and its co-plaintiffs intend to vigorously pursue their claims in that court, particularly in light of the Eighth Circuit’s legal analysis which is highly favorable to the strength and validity of these claims.

For more information contact: Mark Gordon, President/CEO Missouri Broadcasters Association 573-636-6692

US appeals court reinstates suit over Missouri alcohol ads
By JIM SUHR Associated Press Updated Jan 19, 2017

KANSAS CITY, Mo. (AP) – A federal appeals court on Thursday revived a lawsuit challenging Missouri regulations that broadcasters and others say illegally limit how they can market alcohol.

In reinstating the case, which was tossed out last year by U.S. District Judge Fernando Gaitan Jr. at the state’s behest, an 8th U.S. Circuit Court of Appeals panel unanimously ruled the plaintiffs “plausibly stated a claim upon which relief could be granted.”

The 8th Circuit noted the state’s justification that the restrictions are in the public interest by trying to blunt irresponsible alcohol use and underage drinking. But the appellate court cited inconsistencies in the application of the regulations, which permit advertising such generic things as “Happy Hour” and “Ladies Night” – as well as marketing all sales, promotions and discounts – on the retailer’s premises.

The defendants “apparently are not as concerned with retailers baiting consumers to drink excessively once they arrive,” Chief Judge William Jay Riley wrote for the three-judge panel.

In their 2013 lawsuit, the Missouri Broadcasters Association, Zimmer Radio group, Springfield winemaker Meyer Farms and Uncle D’s Sports Bar & Grill in St. Joseph challenged, among other things, the state’s Discount Advertising Prohibition Regulation. That rule makes it illegal for an alcohol advertisement to mention prices, rebates or discounts, essentially barring references to such things as two-for-one beer specials, a wine shop’s going-out-of-business sale or a restaurant special offer of a free drink with a meal purchase.

Calling such regulations an unconstitutional and “chilling” infringement of free speech, broadcasters pressing the lawsuit have said the restrictions have cost them immeasurable potential advertising money.

On Thursday, the St. Louis-based 8th Circuit declared that those suing over the regulations have “included sufficient allegations that the challenged provisions did not directly advance the substantial interest of promoting responsible drinking.”

“A theoretical increase in demand for alcohol based on a lower price does not necessarily mean any consumption of that alcohol is irresponsible,” Riley wrote, adding that “the multiple inconsistencies within the regulations poke obvious holes in any potential advancement of the interest in promoting responsible drinking.”

Tennessee Grocery Stores, Restaurants, Bars and Hotels Be on the Alert for Immigration Raids

Written by Brad Dawson on . Posted in Will Cheek's Last Call Blog.

blog

Mar 3, 2017

Just today, March 3, 2017, we heard from a restaurant that was “inspected” by agents looking for illegal immigrants and asking about proper documentation.  Scary stuff.  We understand that one or more Tennessee ABC agents lead the investigation.

Bone McAllester immigration expert Raquel Bellamy offers these Top 5 Immigration Tips for Employers.

Unauthorized immigration is a hot topic these days. Undocumented immigrants are roughly 5% of the U.S. civilian labor force, as reported by the Pew Research Center.  We suspect that many restaurants, bars and hotels have a much higher percentage of illegals.

Some employees give employers fake documents. Other employers intentionally hire undocumented immigrants, to gain a competitive advantage by offering lower pay and fewer protections. In the most egregious scenarios, employers falsify records and participate in labor trafficking by recruiting and smuggling workers from abroad (a big no no!).

A recent federal immigration executive order deputizes state and local law enforcement authorities to act as ICE agents.  Legally, TABC agents, local police and even beer board inspectors can now search your business for illegal or improperly documented immigrants.

Here are our top five immigration tips for employers:

1. Anticipate increased auditing of records to verify I-9 compliance. Locate and organize your records to avoid costly delays. You should have a completed I-9 for each employee.

2. Prepare for the inevitable by conducting an internal audit, which will help you identify any I-9 compliance issues.

3. Consult a competent employment attorney regarding any potential liability for violations of I-9 regulations.

4. Train front office staff (receptionists, hostesses, etc.) on how to respond to law enforcement officials who enter the premises to inquire about immigration violations. Know your rights to limit access of law enforcement officers.

5. Avoid discrimination based on national origin against potential employees. During the interview phase, limit your inquiry to whether the applicant is authorized to work in the United States and whether the applicant will require sponsorship to obtain work authorization. If an applicant or a current employee is confused about work authorization, you should encourage him/her to seek independent counsel.

6. I know I said 5, but who doesn’t love a bonus? Show compassion for workers who are experiencing personal trauma as a result of the changes in immigration enforcement priorities. Even U.S. citizens may experience a high level of anxiety over the potential impact to their family members and friends. Be mindful of negative interactions between employees. Some of my clients have reported workplace harassment. In one instance, a worker was blackmailed by a co-worker who threatened to call ICE. Employers should be aware of any workplace intimidation and maintain a policy against bullying. Again, regardless of your position on the debate, we are all less safe when pockets of our population are particularly vulnerable.

Ray Stevens controversial tune “Come to the U.S.A.” seems timely:

If you thinkin’ about illegal immigration
Be careful when you’re choosin’ the nation
‘Cause breakin’ the law in some countries is frowned upon.
Imagine that.

In a rare bit of shameless self-promotion, we can help you make sure you are properly documented, in case agents come a knockin’.  Feel free to e-mail us at will@willcheek.com

And the Envelope Please…Oscars Not Alone in Accounting Problems: Tennessee Revenue Partially Shut Down for Liquor License Holders

Written by Brad Dawson on . Posted in Will Cheek's Last Call Blog.

Bone McAllester paralegal extraordinaire, Jennifer Maxey, tells us that the Tennessee Department of Revenue will not process new registrations for sales tax numbers, known as Certificates of Registration, until March 6, 2017.  Apparently, Revenue is the lucky recipient of a computer upgrade.

We understand that as long as a liquor license holder already has a sales tax number, Revenue can accept a new liquor-by-the-drink bond or bond rider.  Distilleries, wineries and breweries can also register new brands, as long as they already have a certificate of registration.

Original author: William T. Cheek III

Survey Says: Tennesseans Want to Buy Wine in Groceries on Sundays

Written by Brad Dawson on . Posted in Will Cheek's Last Call Blog.

We figured that following passage of Wine in Grocery Store legislation, which we affectionately call WIGS, popular demand among consumers would lead to more changes in Tennessee law.

We blogged about pending legislation to legalize the sale of many wine coolers and niche products like sangria mixes in groceries and other food stores.  https://www.lastcalltn.com/tennessee-considers-more-wine-in-grocery-stores-with-legislation/

In our not so humble opinion, one of the biggest changes in Tennessee law is legalizing Sunday sales of wine in Kroger, Publix, Wal-Mart and other food stores.  We figure that the vast majority of shoppers would love to be able to buy wine on Sundays.

If Tennessee legalizes Sunday sales of wine in grocery stores, it seems only fair that liquor stores would also be allowed to open on Sunday.  Problem is, we think Tennessee liquor stores will oppose Sunday sales.

Based on our unscientific observations, Sunday is a big day for grocery shopping.  Grocers probably figure that many Sunday shoppers will put a couple of bottles of wine in their carts, if Sunday sales of wine are legal.  Sunday wine at a grocery is essentially an impulse purchase; if I can buy wine when I am Krogering on Sunday, great, if not, I am not going to trek back later in the week to buy wine from a grocery or a liquor store.

Tennessee liquor stores probably see Sunday sales as something they have to do, if food stores can sell wine.  But for a liquor store, being open on Sunday is not likely to draw many new sales.  Grocers already do huge business on Sunday.  Liquor store owners are closed.  Opening Sunday increases employee salaries and other liquor store expenses.

Plus, Tennessee restaurants could see a decline in wine sales from folks that cannot buy wine on Sunday, but want a glass with lunch or dinner.

Our buddy Willa reminds us of “Sunday in the South” by Shenandoah:

Mill worker houses lined up in a row, 
Another southern Sunday morning blow 
Beneath the steeple all the people have begun 
Shakin’ hands with the man who grips the gospel gun

Original author: William T. Cheek III

And the Envelope Please…Oscars Not Alone in Accounting Problems: Tennessee Revenue Partially Shut Down for Liquor License Holders

Written by Brad Dawson on . Posted in Will Cheek's Last Call Blog.

blog

Feb 28, 2017

Bone McAllester paralegal extraordinaire, Jennifer Maxey, tells us that the Tennessee Department of Revenue will not process new registrations for sales tax numbers, known as Certificates of Registration, until March 6, 2017.  Apparently, Revenue is the lucky recipient of a computer upgrade.

We understand that as long as a liquor license holder already has a sales tax number, Revenue can accept a new liquor-by-the-drink bond or bond rider.  Distilleries, wineries and breweries can also register new brands, as long as they already have a certificate of registration.

Tennessee Considers More Wine in Grocery Stores with Legislation

Written by Brad Dawson on . Posted in Will Cheek's Last Call Blog.

Wine in Grocery Store legislation, which we affectionately call WIGS, allowed Tennessee grocery stores to sell wine beginning July 1, 2016, with a food store license issued by the Tennessee Alcoholic Beverage Commission.

WIGS was a messy compromise.  We expected that WIGS would be revised to fix thorny issues.

A bill pending in the 2017 Tennessee Legislature will change the legal definition of wine and, in our humble opinion, allow food stores to legally sell many wine coolers and wine cocktails that are already on shelves.

Here is the problem.  Current law says that wine sold by a grocery store must be:

the product of the normal alcoholic fermentation of the juice of fresh, sound, ripe grapes, with the usual cellar treatment and necessary additions to correct defects due to climatic, saccharine and seasonal conditions, including champagne, sparkling and fortified wine of an alcoholic content not to exceed eighteen percent (18%) by volume. No other product shall be called “wine” unless designated by appropriate prefixes descriptive of the fruit or other product from which the same was predominantly produced, or an artificial or imitation wine.

Are you asleep yet?  Seriously, the definition is so hopelessly complicated that in our opinion, it is pretty much unenforceable by the TABC.

Pending legislation expands the definition of wine to eliminate the controversy.

The Tennessee ABC describes the legislative change at Sections 4, 5, and 6 – Definition of Wine  SB695-HB435 Legislation Summary

The entire bill is here.  HB0435 HB0435

Paralegal extraordinaire Vicki reminds us of a fitting Kenny Chesney song:

Mama told them Jesus loves a sinner
His daddy said that music saved his soul
Between the rockers and the band
It’s a fitting promise land

Original author: William T. Cheek III

Tennessee Legislature Looks to Legion of Liquor Laws

Written by Brad Dawson on . Posted in Will Cheek's Last Call Blog.

The Tennessee state legislature is in session again and several changes are proposed for alcoholic beverages.  Our friends at Nashville law firm Gullet Sanford have done such a good job summarizing the biggest bill that we link to their post here.  http://gsrmalcoholicbeveragelaw.com/alcoholicbeveragecleanupbillfiled/

Here is a copy of the bill, for anyone having problems with insomnia.  http://www.capitol.tn.gov/Bills/110/Bill/HB0435.pdf

Our good friend Willa reminds us of the Eric Church classic Drink in My Hand:

To fill it up, or throw it down
I got a forty hour week worth of trouble to drown
No need to complicate it, I’m a simple man
All you got to do is put a drink in my hand

Stay tuned as we continue our coverage of the 2017 legislative session.

Original author: William T. Cheek III

Tennessee State Legislature Proposes to Sidestep Metro Nashville Beer Board Approval for Restaurants, Hotels and Other Liquor License Holders

Written by Brad Dawson on . Posted in Will Cheek's Last Call Blog.

As we read it, a bill pending before the Tennessee State Legislature would essentially bypass the Metro Nashville beer application process for restaurants, hotels and other establishments with an on-premise liquor license issued by the Tennessee Alcoholic Beverage Commission.  Just file an application, pay the $250 fee and you can serve beer.

The legislation is here HB0351.

The law also seems to eliminate the 100 foot distance requirement from houses, churches, schools and other disqualifying uses.  Metro Nashville requirements for beer applicants would not apply, based on our take of the bill.

The classic 1975 “I’m Just a Bill” Schoolhouse Rock Saturday morning cartoon lesson is compelling:

I’m just a bill
Yes I’m only a bill,
And I got as far as Capitol Hill.
Well, now I’m stuck in committee
And I’ll sit here and wait
While a few key Congressmen discuss and debate
Whether they should let me be a law.
How I hope and pray that they will,
But today I am still just a bill.

Frankly, we hope the legislation gets stuck in committee.  We are not a fan of state laws that eliminate local laws.  Although we would love to see Metro Nashville modernize the beer laws and the beer application process, Metro Nashville can and should do so by passing a city ordinance.

We also see the legislation as yet another step by the state to eliminate local beer boards.  For decades, Tennessee law has given cities and counties considerable leeway to decide how and where beer can be sold.  Tennessee beer laws and beer boards are often cumbersome for businesses to navigate, but are an important local control over alcoholic beverages.

For example, the 100 foot distance requirement in Metro Nashville has been the subject of considerable debate.  Currently, a restaurant that is too close to a house, church or school has to publish a public notice and have their local council member introduce a city law to waive the requirement.  In our humble opinion, Nashville should decide the fate of the distance requirement.

Original author: William T. Cheek III

Which Employees Can My Restaurant or Bar Legally Tip?

Written by Brad Dawson on . Posted in Will Cheek's Last Call Blog.

We hear lots of questions about tipping.  Can I include kitchen staff in tips?  Can food runners share tips?  What about my sushi chef?

Restaurants, bars, caterers and venues often surprise us with innovative ideas about tipping employees.  Unfortunately, tipping has not so clear laws about who can – and more importantly – who cannot share in tips.

Bone McAllester employment guru Anne Martin gives this sage advice.

There are three basic factors to consider when determining if you can share tips with an employee:

Does the employee meaningfully participate in the customer experience?
Is the employee part of management, which is undefined but disqualifies tipping?
Is the position customarily and regularly tipped in the industry?

Whether an employee can be tipped really depends on specific job duties.  Servers and bartenders can clearly be tipped.  Prep chefs and bus boys generally cannot.

In our humble opinion, the third factor, “is this a position that is normally tipped,” works against innovative entrepreneurs.  For example, some of our restaurant clients feature food prep as a key part of the customer experience.  Like innumerable cable food shows, watching your food being prepared is entertainment.

The roles of traditional servers and chefs, for example, have blurred in recent years.

In our experience, the law is slow to accept new practices.  Sharing tips with chefs and other food prep staff could be risky.

It all boils down to the specific facts.

We encourage folks with good questions to reach out to Anne with specific asks amartin@bonelaw.com.  Anne really knows her stuff and is well worth paying for staying out of trouble.

A classic Michelle Shocked tune comes to mind, although wethinks Michelle is celebrating the jam that makes Music City famous, and not so much the sweet stuff you find at Loveless Cafe:

Yeah, we have a little revolution sweeping the land
Now once more everybody’s making homemade jam
So won’t you call your friends up on the telephone
You invite ’em on over, you make some jam of your own
You’ll be making jam
Strawberry jam
If you want the best jam
You gotta make your own

Original author: William T. Cheek III