Tag: AAIAC

Metro Nashville Beer Board Shakes it Off

Written by Brad Dawson on July 21, 2017. Posted in Will Cheek's Last Call Blog.

By William T. Cheek III – July 21, 2017 | Alcoholic Beverage Law | Email Will Cheek

Major change is afoot at the Metro Nashville Beer Board.

After several years of dedicated service, longtime Beer Board Chair Anne Arney “retired.” Like most Tennessee beer boards, Nashville’s board is lead by volunteers, appointed by the mayor.

Brian Taylor was elected chair by the board at the June 28, 2017 meeting.

Executive Director Jackie Eslick, the head honcho of the paid staff, moved to another Metro position. Benton McDonough has been tapped Interim Director. For betting types, odds are good Mr. McDonough’s position will become permanent.

We thank Ms. Arney and Ms. Eslick for serving the Metro Beer Board all these years.

Liquor licensing experts like consistency. Tell us how to get a license and we can follow a predictable road map to obtain the approvals to stock the bar.

But change is inevitable and licensing specialists have to be adept. Taylor Swift celebrates the skills of licensing stars in mega-hit “Shake it Off”

I never miss a beat, I’m lightning on my feet
And that’s what they don’t see, that’s what they don’t see
I’m dancing on my own, I make the moves up as I go
And that’s what they don’t know, that’s what they don’t know

So far though, we like what we see.

Original link

Original author: William T. Cheek III

Duncan Liquor Newsletter – June 2017

Written by Brad Dawson on June 15, 2017. Posted in AAIAC.

In This Month’s Edition:

The New Common Consumption Area and other new laws [Kansas]
A CASE WORTHY OF STUDY FOR ANYONEA CASE WORTHY OF STUDY FOR ANYONEHANDLING ADMINISTRATIVE APPEALS
Hawaii: Group files suit over liquor rule changes
Kansas woman seeking body-cam video of police shooting wins her appeal
IN THE SUPERIOR COURT OF THE STATE OF DELAWAREIN THE SUPERIOR COURT OF THE STATE OF DELAWAREWORLD CLASS WHOLESALE, LLC, a Delaware Limited Liability Company, Plaintiff, V. STAR INDUSTRIES, INC., A Delaware Corporation, Defendant.
Nevada: Liquor Industry Lawsuit May Sideline Nevada’s Cannabis Launch Date
Utah: Liquor lobbying group declares war on UtahUtah: Liquor lobbying group declares war on Utahwith ad campaign in neighboring states over strict drunk driving law
Impaired lawmakingImpaired lawmakingCommon sense goes tipsy with a new Utah drunken-driving statute
Utah: Lawmakers Review New DUI Law but Won’t Budge on 0.05 Limit
Trump Says D.C. Wine Bar Can’t Sue Him Over Unfair Competition
‘Drunk driver’ sues the bars that served him
Washington: New Washington laws cover liquor samples,Washington: New Washington laws cover liquor samples,wine auctions, tasting rooms
For Total Wine, it’s total war against alcohol regulation
Five Guys’ Website Must Follow ADA Too, Blind Users Say
Budweiser Uses Giveaway Fridges to Freeze Out Rivals, State Alleges
Judge Likes Terminated WA Distribs’ Case Against Pabst
A-B: DOJ Ain’t Balking, So Don’t Come a Knockin’
SENATE BILL 378- THE PROPOSED DEMISE OF DUE PROCESS FOR ALCOHOL LICENSEES
Grocery Wine Sales Bring Major ChangeGrocery Wine Sales Bring Major ChangeTo Pennsylvania Retail LandscapeMay 31, 2017
Terroir Life’s Charles Banks Reaches Settlement With SECTerroir Life’s Charles Banks Reaches Settlement With SEC
The Ban on Consignment Sales The Ban on Consignment Sales Texas Supreme Court Weighs In on Tied House

Duncan Liquor Law Letter

Written by Brad Dawson on April 15, 2017. Posted in AAIAC, Duncan Liquor Blog.

In this edition:

Court Finds State’s 3 Store ownership limit unconstitutional – Read

BevMo Complaint On Total Wine Is Referred To FTC, But Total Says It’s Without Merit – Read

Understanding the Three-Tier System: Its Impacts on U.S. Craft Beer and You – Read

Dan Aykroyd Breaks Down Booze Bottle Angles In IP Trial
ROUND TWO: KAH TEQUILA V. CRYSTAL HEAD VODKA – Read More

And for more news – go to Duncan Liquor Law Letter

THE STATE OF SOUTH CAROLINA In The Supreme Court Retail Services & Systems, Inc., d/b/a Total Wine & More, Appellant, v. South Carolina Department of Revenue and ABC Stores of South Carolina, Respondents. Appellate Case No. 2014-002728 Appeal From Aiken County Doyet A. Early III, Circuit Court Judge Opinion No. 27709 Heard November 5, 2015 – Filed March 29, 2017

COURT FINDS STATE’s 3 STORE OWNERSHIP LIMIT UNCONSTITUTIONAL.

http://www.sccourts.org/opinions/advSheets/no132017.pdf

Retail Services owns and operates three separate liquor store locations in Charleston, Greenville, and Columbia, South Carolina. SCDOR is charged with the administration of South Carolina’s statutes concerning the manufacturing, sale, and retail of alcoholic liquors. S.C. Code Ann. §§ 61-2-10 & -20. Retail Services petitioned SCDOR to open a fourth store in Aiken, however, SCDOR refused to grant Retail Services a fourth liquor license under sections 61-6-140 and -150 of the South Carolina Code,1 which limit a liquor-selling entity to three retail liquor licenses. Additionally, ABC Stores lobbies before the General Assembly on behalf of its members who are owners and holders of retail dealer licenses. Therefore, Retail Services brought this action against SCDOR and ABC Stores seeking a declaratory judgment that these provisions of the South Carolina Code are unconstitutional. Appellant argues that sections 61-6-140 and -150: (1) exceed the scope of the General Assembly’s police power provided for in article VIII-A of the South Carolina Constitution2 because the licensing limits do not promote the health, safety, or morals of the State, but merely provide economic protection for existing retail liquor store owners; (2) violate its rights to equal protection3 under the law by creating arbitrary distinctions, in that the three-store limit unfairly treats large retailers differently from small retailers and that section 61-6-150’s “grandfather clause,” unfairly discriminates against those that did not have an interest on or before July 1, 1978, and unfairly differentiates between owners of stores that sell liquor for on-site consumption and those that sell liquor for off-site consumption; and (4) violate its due process rights4 because they unfairly prevent Appellant from operating in its chosen field of business. The trial court found the provisions constitutional because (1) they are within the scope of the State’s police power; and (2) they satisfy the rational basis test, which, because they do not infringe on a fundamental right or implicate a suspect class, is all that is required. Therefore, the circuit court granted Respondents’ motions for summary judgment. Appellant appealed the circuit court’s decision. We now review the circuit court’s decision and reverse.

BevMo Complaint On Total Wine Is Referred To FTC, But Total Says It’s Without Merit

The National Advertising Division, an industry self-regulatory group, has referred a complaint by liquor retailer BevMo against rival Total Wine & More to the U.S. Federal Trade Commission (FTC).

The BevMo complaint disputes Total Wine’s advertising claims that its prices are lower than BevMo’s. Concord, California-based BevMo contends that Total Wine makes “unsupported price comparison claims using outdated BevMo prices and prices from BevMo stores that are well outside the geographically relevant market area.”
However, a Total Wine spokesman told SND that BevMo’s complaint is without merit. “Total Wine & More has been running ‘Paymo at Bevmo’ advertisements in California for a decade,” said the spokesman. “Our prices are simply lower than BevMo’s prices. It appears their newest management team objects to us recording the prices off their website, which is where we get them.”

The matter was referred to the FTC after Total Wine declined to participate in a proceeding before the NAD. The NAD is an ad industry self-regulating investigative unit that’s administered by the Council of Better Business Bureaus.

How Do I Transfer a Liquor License When I Purchase a Restaurant or Bar in Tennessee?

Written by Brad Dawson on March 13, 2017. Posted in Will Cheek's Last Call Blog.

By William T. Cheek III – March 12, 2017 | Alcoholic Beverage Law | Email Will Cheek

We hear it all the time. A top of the charts question is how do I transfer the liquor license when I purchase a restaurant or bar in Tennessee?

Here is a simple guide.

1. Liquor licenses in Tennessee are not bought and sold. Unlike many states, liquor licenses and beer permits are issued to any qualified applicant in Tennessee. Licenses have no value.

2. When you buy a business that serves beer, wine and spirits, you have to obtain your own beer and liquor licenses. You can be looking at a prolonged interruption in service if you fail to apply and obtain your own beer and liquor licenses.

3. Make sure you understand local beer board practices. The rules vary widely from city to city. For example, in Nashville, it is best to apply at closing, or the beer inspector may visit and tell you to stop selling beer. Check with your local beer board before closing and make sure you know what you need to do to. Most importantly, do what you are told by your local beer board.

4. The Tennessee ABC will accept an interim management agreement that allows you to “use” the seller’s liquor license. The interim management agreement must have some magic language and we strongly advise that you file a copy of the agreement with the ABC at closing. Otherwise, you risk the ABC revoking the license, which means an interruption in service.

5. Make sure you complete all the steps to obtain your own beer permit and liquor license. Too often, we hear from well-intentioned purchasers that are facing an interruption in service because they do not obtain their own licenses.

Classic Hank Williams Jr. comes to mind:

Play me the songs about ramblin man
Put old Jim Beam in my hand
Cause you know I still love to get drunk
And hear country sounds

Original link

Original author: William T. Cheek III

Duncan Liquor Law Letter

Written by Brad Dawson on March 3, 2017. 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 Considers More Wine in Grocery Stores with Legislation

Written by Brad Dawson on February 24, 2017. 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 link

Original author: William T. Cheek III

Tennessee Legislature Looks to Legion of Liquor Laws

Written by Brad Dawson on February 16, 2017. 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 link

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 February 11, 2017. 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 link

Original author: William T. Cheek III

Which Employees Can My Restaurant or Bar Legally Tip?

Written by Brad Dawson on February 9, 2017. 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 link

Original author: William T. Cheek III

THE ALLIANCE OF ALCOHOL INDUSTRY ATTORNEYS & CONSULTANTS

Tag: AAIAC