AAIAC

The Alliance of Alcohol Industry Attorneys & Consultants is a select organization of alcoholic beverage licensing and compliance professionals.

Flaherty & O’Hara at the National Conference of State Liquor Administrators (NCSLA) annual Southern Regional Conference

Flaherty & O’Hara is pleased and honored to attend and be an invited speaker at the National Conference of State Liquor Administrators (NCSLA) annual Southern Regional Conference in New Orleans, LA, the week of October 21, 2019. Our associate Eric Altpeter was on a panel discussing cannabis laws and their intersection with alcohol beverage laws […]

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Flaherty & O’Hara at the Annual Conference of the National Association of Licensing & Compliance Professionals

Flaherty & O’Hara is pleased to have sponsored, attended and been a trade show participant in, and honored to have been invited to be a presenter at the annual conference of the National Association of Licensing & Compliance Professionals (NALCP or “Nalcap”) held in Denver, CO. October 15-18, 2019. R.J. O’Hara was a panel member […]

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Flaherty & O’Hara at CLE International Wine, Beer & Spirits annual conference in Charlotte, NC

Flaherty & O’Hara is pleased and honored to attend and be an invited panel member at CLE International Wine, Beer & Spirits annual conference in Charlotte, NC, September 16-17, 2019. Our partner R.J. O’Hara participated on a panel discussing the current status of direct-to-consumer shipping laws and relevant new legislation and case law, as well as the […]

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Flaherty-O’Hara at the National Conference of State Liquor Administrators’ annual Central-Western Regional Conference

Flaherty & O’Hara is pleased and honored to attend and be an invited panel member at the National Conference of State Liquor Administrators’ annual Central-Western Regional Conference in Portland, OR, September 9-11, 2019. Our partner R.J. O’Hara participated on a panel discussing the character of possible future alcohol operations as they evolve over the next […]

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Flaherty & O’Hara Joins Women of the Vine & Spirits as a Corporate Member

Flaherty & O’Hara is proud to announce they have joined Women of the Vine & Spirits as a Bronze Corporate Member. Partners Kaitlynd Kruger and Chris O’Hara and Associate Ellen Freeman have joined as Member Employees. Women of the Vine & Spirits (WOTVS) is the world’s leading organization dedicated to empowering and advancing women in […]

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Flaherty & O’Hara at the National Conference of State Liquor Administrators

Flaherty & O’Hara partners R.J. O’Hara and Kaitlynd Kruger, along with associate Ellen Freeman, attended the National Conference of State Liquor Administrators. The event was held at the Seelbach Hilton in Louisville, Kentucky from June 16th – 19th. R.J. O’Hara was invited to participate in one of the panels, “Facing the Reality of the ‘New […]

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Comment on Tennessee Residency Law for Liquor Stores in Beer Marketer’s Insights

Our partner, R.J. O’Hara, felt compelled to comment during the recent NABCA Legal Symposium, in response to a panel discussion on the pending Supreme Court decision in the Tennessee Retail Association case and, much to his surprise and delight, Eric Sheppard at Beer Marketer’s Insights picked up on it and mentioned R.J.’s comment in his […]

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Second-in-command selected for Tennessee ABC

Will Cheek - Waller Law Will Check - Waller Law

Tabitha Blackwell was named Assistant Director by the Tennessee Alcoholic Beverage Commission at its regular meeting on March 28.

She was interviewed and hired on the spot. According to recently minted ABC Director Russel F. Thomas, she was among 50 candidates for the position.

Blackwell is an attorney and most recently served as Assistant Director of the Division of Charitable Solicitations and Gaming at the Tennessee Secretary of State. Blackwell is a double alum of the University of Memphis, earning a B.A. in 2004 and a J.D. in 2007.

According to the job posting, “The Assistant Director is responsible for reviewing applications and permits issued by the agency,” as well as violation hearings and server training. We have personal experience with Ms. Blackwell’s professional prowess as a regulator at charitable solicitations and welcome her to the ABC.

For no particular reason, we find ourselves humming Jean Shepard’s Grand Ole Opry Classic:

I'm tired of playin' second fiddle to an old guitar

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Tennessee Alcoholic Beverage chairman Bryan Kaegi resigns

Tennessee ABC puts the smack down on Jell-O shots

Dead again: Court strikes down Tennessee residency requirement for liquor store owners

Can I bring my own wine into a restaurant in Tennessee?

Gov. Haslam taps newest ABC Commissioner

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NABCA 26th Annual Legal Symposium

We are excited that one of our partners, Stan Wolowski, was an invited panelist at the 2019 NABCA Legal Symposium earlier this week at the Crystal City Marriott in Arlington / D.C. Stan, a former liquor violation prosecutor, presented a well-received presentation on the manner in which the PLCB and State Police Bureau of Liquor […]

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Manager questionnaires: Did the dreaded pink slips get a 'pink slip'?

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Category: alcohol, ABC

03.13.19

It’s official: manager questionnaires are dead.

Well, not quite official, but according to reliable sources at the Tennessee Alcoholic Beverage Commission, there are no plans to resurrect the pink form or require liquor by the drink license holders to file manager questionnaires.

Seasoned restaurant, bar, venue and hotel owners are intimately familiar with the infamous pink form, required to be filed for each person supervising the sale and service of alcoholic beverages. With the ordinary churn of personnel in the industry, owners were frequently cited for hundreds, if not thousands of dollars, for failure to file manager questionnaires for new hires.

With the advent of RLPS, the ABC’s fancy on-line filing system, we have been anxiously awaiting news of the electronic successor to the dreaded pink paper form for manager questionnaires.

The wait is over, and we have good news.

The ABC has permanently scrapped the manager questionnaire concept. Because all managers –  at least in theory – hold server permits, managers have already disclosed disqualifying crimes and involvement in manufacturers and wholesalers. Instead of the pink form, or its electronic brethren, license holders must disclose the following for every manager:

first and last name date of birth copy of driver’s license

It’s that simple.

Does anyone hear Florida Georgia line singing:

It's like one, two, three

Just as easy as can be

We encourage folks to go online soon and update their list of managers. Fields have been added to RLPS to make manager disclosures.

We suspect the ABC will allow a grace period for licenses to be updated with current manager information. At some point, however, failing to disclose a list of current managers is fair game for citations.

What are you waiting for? Log in and disclose those managers.

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Tennessee Alcoholic Beverage chairman Bryan Kaegi resigns

Tennessee ABC puts the smack down on Jell-O shots

Dead again: Court strikes down Tennessee residency requirement for liquor store owners

Can I bring my own wine into a restaurant in Tennessee?

What to Expect During Alcoholic Beverage Recalls

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Direct to Consumer Sales of Wine, Beer, and Distilled Spirits Committee

Flaherty & O’Hara, PC partners R.J. O’Hara and Stan Wolowski are excited to have been invited to participate in the Uniform Law Commission’s Study Committee on a possible model law for the direct shipment of spirits to consumers. A diverse group of Study Committee members representing a wide array of interests in the alcohol industry […]

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Should States be Allowed to Discriminate Against Nonresident Liquor Business Owners?

R.J. O’Hara attended the U.S. Supreme Court’s oral argument in the Tennessee Wine & Spirits Retailers Association v. Zachary W. Blair, Tennessee Alcohol Beverage Commission on January 16, 2019, and is pleased to have had to opportunity to write an article on his thoughts on the arguments presented and issued examined by the Court during […]

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The complete guide to paying tipped employees in Tennessee

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Category: restaurants, bars, tips, tipping policy

03.07.19

If your restaurant, bar, club or hotel employs tipped staff, this post is for you. Guest blogger and employment law guru Casey Duhart gives the lowdown on avoiding seriously expensive lawsuits for wage and hour violations.

Casey asks: “Why are tipped employees bringing so many wage and hour lawsuits these days?” Casey’s answer is simple: “Too many employers are not using the tip credit correctly.”

Read Casey’s advice for avoiding tip credit pitfalls.

What is a Tipped Employee?

A tipped employee is an employee who customarily and regularly receives more than $30 per month in tips. An employee does not meet the “customarily and regularly” requirement if the employee only receives $30 or more monthly during the holidays or special events.

What is the Fair Labor Standards Act?

Wage-related rules for tipped employees who receive money from customers are governed by the Fair Labor Standards Act (“FLSA”).

What is the Tip Credit?

Under the FLSA, employers can claim a tip credit toward the federal minimum wage. This credit means that an employer can pay tipped employees a lower wage than the federal minimum wage.

The current federal minimum wage – and the minimum wage in all of Tennessee – is $7.25 per hour.

An employer can claim a maximum tip credit of $5.12 per hour and pay tipped employees $2.13 per hour.

Notice Requirement

Before you can claim a tip credit, you must provide the following information to each tipped employee:

the amount of cash wages the employer is paying a tipped employee. The minimum wage for tipped employees is $2.13 per hour; the additional amount claimed by the employer as a tip credit, which cannot exceed $5.12 (the difference between the minimum required cash wage of $2.13 and the current minimum wage of $7.25); that the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee; that all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and that the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions.

If you fail to provide this information to a tipped employee, you will be required to pay the tipped employee at least $7.25 per hour in wages and allow the tipped employee to keep all the tips.

Here is a simple rule: provide this information in writing to all employees, when they are hired.

Overtime Compensation

If you claim a tip credit, overtime is calculated on the full minimum wage of $7.25; not the lower direct (or cash) wage payment of $2.13.

Example: A tipped employee works 60 hours in a workweek.

            Step 1: Use the minimum wage to calculate the overtime rate.

            $7.25 x 1.5 = $10.88

            Step 2: Subtract the tip credit from the overtime rate to achieve the adjusted rate and multiply by overtime hours worked that week.

            $10.88 - $5.12 = $5.76

            $5.76 x 20 overtime hours = $115.20

            Step 3: Add the employee’s straight pay plus the overtime pay to calculate the pay for that week.

            40 hours x $2.13 = $85.20 straight time

            $85.20 + $115.20 = $200.40

Uniforms

You cannot require a tipped employee to pay for their uniform out-of-pocket if the cost would reduce the tipped employee’s wages below the minimum wage of $7.25 per hour.

Example: If a tipped employee is paid $2.13 per hour and worked 40 hours in a workweek and received $205 in tips (total compensation of $290.20) charging the employee $15 for a uniform shirt would cause the employee’s wages to fall below the minimum wage for that week.

Keep in mind that “street wear” such as ordinary shirts and/or pants of a standard style is not considered a uniform. As a rule of thumb, the more specific your requirements for employee clothing, the more likely it is that it will be considered a uniform.

You may be financially responsible for the cost of cleaning the uniform if the uniform requires daily washing, special commercial laundering, ironing or other special treatment (such as dry cleaning).

Tip Pooling

The FLSA requires that tipped employees keep their tips. However, you can require tipped employees to share their tips with other employees who customarily and regularly receive tips. People who don’t normally receive tips, such as cooks, dishwashers, janitors, and chefs, cannot be included in the tip pool.

Have a clear tip pooling policy. Although not required by law, you should ask all tipped employees participating in the tip pool to sign a tip pooling agreement.

Service Charges

A charge for service, for example, 20 percent of a bill, is not a tip! A compulsory service charge is part of the employer’s gross receipts, which means that the employer may choose to retain the gain or distribute all or part of it to employees. Therefore, service charges are not counted as tips. Unlike tips, you must collect and pay sales tax on service charges.

Credit Card Fees

Customers who pay by credit card usually write in their tip. However, with each credit card transaction, you are charged a transaction fee by the credit card company. You are allowed to pay the employee the tip, less that transaction fee. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the FLSA. However, the charge on the tip may not reduce the employee’s wage below the required minimum wage.

Walkouts

Deducting a tipped employee’s pay for walk-outs or cash register shortages is illegal if the deduction reduces the employee’s wages below the minimum wage.

Not Making up the Difference

An employer must make up the difference if a tipped employee’s wages does not reach the minimum wage when you add their tips to their cash wages. Double and triple check that tipped employees make at least minimum wage.

Example: If a tipped employee is paid $2.13 per hour and worked 40 hours in a workweek and received $75 in tips (total compensation of $160.20) the employee’s compensation is below the minimum wage ($7.25 x 40 hrs = $290) and the employer must make up the difference of $129.80.

Record and Pay for all Time Worked

Be sure that you have a timekeeping and payroll system that captures all time worked by tipped employees and all tips received. Even a simple sign-in sheet or iPad app is better than nothing.

Be Diligent

Restaurants and hospitality employers are easy targets for wage and hour lawsuits and audits. Because the tip credit laws can be tricky, make sure you are diligent about compliance and accurate record keeping.  If in doubt, contact an attorney that practices employment law to help evaluate your tip credit policies and procedures.

You can reach Casey at This email address is being protected from spambots. You need JavaScript enabled to view it. or 615.850.8872.

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Can I bring my own wine into a restaurant in Tennessee?

Restaurants and hotels get the green light to give away alcohol

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Tennessees carding conundrum: A simple fix for our obsession with carding everyone

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Category: ABC, alcohol

02.28.19

Why do we have to show our IDs every time we purchase alcohol at bars, restaurants, grocery stores, convenience markets, retail liquor stores and seemingly every other place we want to buy alcohol in Tennessee? Confusion over carding reigns supreme in the Volunteer State, even among educated industry insiders.

We recently heard from a group of card-carrying AARP members about being carded at a local brewery. When these silver-haired gentlemen inquired why the server was carding everyone, the server replied:  “It’s state law.  We have to card everyone.”

Not true.

Tennessee law does not require on-premise purveyors of alcohol to card everyone.  In fact, state law does not require that a bar, restaurant, hotel or other liquor-by-the-drink establishment card anyone. Consistent with many other business-friendly laws in Tennessee, bars and restaurants have the discretion to decide whom to card.  For a restaurant or bar, it is your business.  You can card everyone, only folks that appear under a certain age, or no one.

Here’s the rub. All beer and liquor license holders are strictly liable for sales of alcohol to minors. If a waiter accidentally sets a Bud Lite in front of an ABC confidential informant that is under the age of 21, the license holder is responsible and will be cited by the ABC.

We hear the Beatles singing: 

They say it’s your birthday.

We’re gonna have a good time …

We blogged about Tennessee ABC Sales To Minor Stings Spooks Industry and Leads to Carding Old Folks way back in 2015.  Although there has been some recent relief – a change in state law allowing the ABC to impose larger fines in lieu of suspensions and a general decrease in enforcement – the pressure from suspensions and significant fines for sales to minors remains intense.

Problem is, universal carding is, in our humble opinion, a panacea for keeping alcohol out of the hands of folks under 21.  Why should servers and clerks spend time carding old geezers, when the real problem is identifying and refusing service to teenagers and 20-year-olds?

We see more than our fair share of citations for sales to minors.  The tickets tell a consistent story:  servers and clerks either fail to read – or misread – the date of someone that is clearly under the age of 21.  Even with Tennessee’s Red Box IDs, which clearly brazen a scarlet letter on minors, employees are either too busy, too careless or too indifferent to refuse service to minors.

We understand the rationale behind universal carding. Why give a busy server or clerk discretion to determine who to card, and more importantly, who not to card, before serving alcohol?  Universal carding takes discretion out of the hands of the server and clerk. 

There is one thing that would make a huge difference to the industry and effectively cut down sales to minors. The Tennessee Legislature should fix the defective under 21 driver’s license. 

Last year, with much fanfare, lawmakers unveiled a new vertical driver’s license for under 21-year-olds. Problem is, the driver’s licenses do not expire when the driver turns 21, meaning that thousands of folks present under 21 driver’s licenses for alcohol. Servers and clerks are jaded by the under 21 driver’s license. Read more at our blog post here.  

We encourage the legislature to make a simple change to state law. People with an under 21 driver’s license should not be able to purchase alcohol. There is no need to force everyone to get a new driver’s license when they turn 21. Just make the folks that want to drink get a new ID.  There is absolutely no cost to the state to fix this problem and the results would be enormous for the industry.

How hard is it to get this right?

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Tennessee Alcoholic Beverage chairman Bryan Kaegi resigns

Tennessee ABC puts the smack down on Jell-O shots

Dead again: Court strikes down Tennessee residency requirement for liquor store owners

Can I bring my own wine into a restaurant in Tennessee?

What to Expect During Alcoholic Beverage Recalls

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Consignment Sales Result in Multiple Permit Suspensions

Well over a year ago the TTB received a two-year, multi-million dollar budget to conduct Tied House / Trade Practice investigations. Last week, after being out of operation for almost two months as a result of the government shutdown, the TTB flexed a little muscle in California, but suspending / penalizing several California wineries and […]

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Tennessee ABC simplifies corporate changes

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Category: abc, Alcoholic Beverage Commission

02.11.19

As the Tennessee Alcoholic Beverage Commission’s online licensing system known as RLPS nears its first anniversary, the ABC continues to refine and enhance the system. This post explores improvements for larger corporate license holders. 

Change in Control of Corporate Owners

A change in corporate officers can trigger the need to file an amendment to the RLPS license. For publically traded companies, licensees owned by investment funds and other more-complicated ownership structures, corporate officers at the license level are treated as “owners,” because the officers are deemed by the ABC to control the licensee. A change in one of the officers constitutes a change of control, similar to a change in ownership of the licensee.

Officer changes trigger the need to pay a $300 application fee and file new RLPS questionnaires and copies of government IDs. The ABC will review the officer disclosures and, if in order, approve the amendment to the license.

This process does not apply to closely-held companies, like restaurants and bars that are owned by one or two individuals. 

Master Files for LBD Licensees

We have great news for publicly traded companies and other complicated license holders.  The ABC has recently made master company records available for liquor by the drink licensees. 

Master company records have been available for food store applicants for a couple of years.  We find master company records to be particularly helpful where an address or officer change needs to be made to several license files. 

If a licensee has a master company record, the change only needs to be made to the master company record. If not, you have to go in and individually revise each license for simple changes, such as disclosure of a new officer.

The ABC is still working out the details with officer changes and we encourage folks to stay tuned for more information.

All those changes in corporate officers makes us think of the Queen favorite:

And another one gone, and another one gone

Another one bites the dust

Hey, I'm gonna get you, too

Another one bites the dust

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Tennessee Alcoholic Beverage chairman Bryan Kaegi resigns

Tennessee ABC puts the smack down on Jell-O shots

Dead again: Court strikes down Tennessee residency requirement for liquor store owners

Can I bring my own wine into a restaurant in Tennessee?

Gov. Haslam taps newest ABC Commissioner

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Hail to the chief: Tennessee ABC names new top dog

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Category: abc

01.31.19

Russell F. Thomas

Drumroll please  . . . cue the trumpets for the fanfare . . .

Russell F. Thomas was named Director for the Tennessee Alcoholic Beverage Commission at today’s regular TABC meeting.  Director Thomas assumes the top leadership position following the resignation of Interim Director Zack Blair and former Director Clay Byrd. 

The Tullahoma native holds a B.A. in political science from the University of Tennessee at Knoxville.  He was an Alpha Tau Omega.

Thomas earned his J.D. from UT in 2003.  He practiced for four years as an Assistant District Attorney General in Nashville, where he “prosecuted hundreds of misdemeanor and felony cases, including D.U.I. drug offenses, white-collar offenses and murder,” according to Justia.

He worked as a solo practitioner from 2007 until his appointment, where he specialized in criminal defense, DUI and general civil litigation.  He is a 2014 Fellow of the Nashville Bar Foundation.

Thomas’ wife, Mary Beth Thomas, serves as General Counsel to the Tennessee Secretary of State, where she has worked since 2013.  We suspect they are former buddies from UT Knoxville, from which Mary Beth Thomas holds a B.S. in Finance and a 2003 J.D.  Mary Beth Thomas is an alum of our firm, Waller, where she worked as a litigator. 

All this talking about the Tennessee ABC reminds us of Midland’s hit song, “Drinkin’ Problem”

“People say I got a drinkin’ problem

But I got no problem drinkin’ at all

They keep on talkin’

Drawing conclusions

They call it a problem,

I call it a solution.”

Drinking is our business and it ain’t no problem. 

We welcome Director Thomas and wish him well in his new position.

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Tennessee ABC puts the smack down on Jell-O shots

Dead again: Court strikes down Tennessee residency requirement for liquor store owners

Can I bring my own wine into a restaurant in Tennessee?

Gov. Haslam taps newest ABC Commissioner

Tennessee ABC Director Clay Byrd resigning

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New TABC Director?

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Category: abc

01.30.19

The Tennessee Alcoholic Beverage Commission agenda has officially been published, but all eyes for this Thursday’s meeting at 10 a.m. will be focused on an item conspicuously absent:  Will the Commission name a new Director?

As federal employees headed back to work this week, the top two positions at the Tennessee ABC remain vacant.  We understand that the Commission has been quietly winnowing down a list of candidates for the Director’s position.  Although liquor gossip is usually insanely rampant, we have heard nothing about a likely successor to Clay Byrd.

We will be on the edge of our seats at the meeting tomorrow and certainly keep you posted.

Meanwhile, former Interim Director Zack Blair has assumed the role of Director of Legislation and Rules at the Tennessee Department of Mental Health and Substance Abuse Services.  We have been remiss in not congratulating Mr. Blair for his fabulous new gig.  Mr. Blair departed the ABC in late December for what he describes as the perfect position for him to make a difference.

We will sorely miss Mr. Blair and wish him the best of continued success.

Mr. Blair’s legacy has national implications, now that he is the named defendant in the pending U.S. Supreme Court case that was recently heard for argument and is expected to be decided in June of this year.  If anyone would like to read more details about this fascinating dormant commerce clause argument, or is in need of a sure cure for insomnia, here is a link to the transcript of the Supreme Court hearing.

As always, please stay tuned for more details about leadership at the Tennessee ABC and the Tennessee Wine & Spirits Retailers Association v. Blair decision.

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Tennessee ABC puts the smack down on Jell-O shots

Dead again: Court strikes down Tennessee residency requirement for liquor store owners

Can I bring my own wine into a restaurant in Tennessee?

Gov. Haslam taps newest ABC Commissioner

Tennessee ABC Director Clay Byrd resigning

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How does the federal shutdown affect my liquor license application?

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Category: TTB, brewery, winery, wholesaler, Tax and Trade Bureau

01.02.19

As of today, January 2, 2019, the continued closure of the federal government should have very little impact on pending liquor license applications. If the federal shutdown continues for much longer, we expect that backlogs will persist, even after a budget is approved and Tax and Trade Bureau (TTB) workers return to their jobs.

One thing is clear, though: no new applications will be approved until the budget impasse is resolved. That includes transfers in bond, formulas, COLAs and anything else that requires approval by TTB.

Keep in mind that state and local governments are not affected by the federal shutdown.  There are no delays with the Tennessee ABC or local beer boards.

We also understand that the IRS is continuing to process applications for new federal identification numbers, known as EIN’s, which are required for every new company.

Because of the holidays, we expect that TTB is not too far behind in its review of basic permits, DSP’s, brewer’s notices, TIB’s and other federal permit applications. Both the public and private sector were sufficiently distracted by Santa, Father Time and other holiday festivities.

The TTB on-line filing system seems to be functioning as normal. We encourage folks to continue filing applications online, with the understanding that no one is going to review them until TTB returns to work.

A prolonged shutdown of the federal government will lead to a significant backlog in application review, which we expect to continue long after TTB workers return to their desks. Before the shutdown, TTB indicated the following normal processing times for applications:

Type Average days to process permits
Brewery 86
DSP 71
Winery 85
Wholesaler 73


It is fairly reasonable to presume that for every business day TTB staff is not working on applications, the review time will increase by another day.

This has to be particularly disappointing for TTB workers, who have been successfully toiling for months to reduce the backlog of applications and approval times.

Conjures up a Styx classic:

We wish our friends at TTB well and know workers look forward to a speedy return to the building mountain of applications.

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RJ O’Hara Highlights the Complexities of Liquor Licenses for Hotels

“…since liquor licensing is a subset of administrative law, it is fraught with exceptions. For example, there are states that have a combined quota and direct issue system, depending on the sort of place that the applicant is attempting to license. California and Florida are such states. And in virtually all states, hotels are exempted […]

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