Eighth Notice of Regulatory Relief – California Department of Alcoholic Beverage Control
The Department has continued to carefully consider the public health, safety, and welfare in determining if any Regulatory Relief provisions should be extended.
The Department has continued to carefully consider the public health, safety, and welfare in determining if any Regulatory Relief provisions should be extended.
For the last eight years, Ralph Saltsman and Stephen Solomon have been running around town and gobbling up food as co-creators and co-hosts of the Emmy® Award-winning cable show Cheap Eats. They recently sat down with the show’s director of communication, Erica Jamieson, to talk food in LA.
Jennifer started working at Solomon, Saltsman & Jamieson while she was in college in order to explore her interest in the law and prepare for law school. Jennifer attended law school at Whittier College. She graduated with high honors and in the top of her class. After law school, she accepted a position as a Judicial Law Clerk for the Hon. Gail A. Randall, Administrative Law Judge with the United States Drug Enforcement Administration, in Washington, D.C. After Jennifer’s clerkship, she returned to Solomon, Saltsman & Jamieson as an Associate in May of 2013. During her time as an Associate, Jennifer gained a tremendous amount of experience in working on diverse matters throughout the firm, including alcoholic beverage control licensing and disciplinary matters, various civil litigation matters, land use, and discretionary entitlements for clients in cities throughout the state of California. As a result of her experience and work product, Jennifer was made Partner at Solomon, Saltsman & Jamieson in May of 2016.
WHERE: Sheraton Pasadena Hotel
303 Cordova Street, Pasadena, CA 91101
Telephone: (626) 449-4000
WHEN: February 19, 2015; 1:00 – 3:00pm
Everyone in attendance will get the “ABC Emergency Pamphlet.” Topics include:
YOU HAVE 2 STRIKES, NOW WHAT DO YOU DO?
REMOVING ABC CONDITIONS;
NEW ABC RULES;
Serving minors; DECOY RULES; NON-DECOY: NO RULES;
Serving obviously-intoxicated individuals (and minors: is there civil liability?
After hours sales/consumption;
Narcotics busts and the Automatic Revocation Status;
Fatality Cases; ABC TRACE UNIT
The Disorderly House nightmare and THE ABC TASK FORCE;
ABC – Indian Reservation;
Rule 144: Penalty Guidelines;
Application Rules and Procedures;
Conditional Use Permits/Variances; what happens when you apply for City CUP & Variances;
Internet Sales;
Speakers at this seminar are:
Stephen Warren Solomon, Ralph Barat Saltsman, Stephen Jamieson, R. Bruce Evans and Ryan Kroll, partners in Solomon, Saltsman & Jamieson, attorneys with over 100 years combined experience in litigation with the ABC and Land Use. They can be seen hosting Legal Help Live on Television, cable station 36 in Los Angeles, channel 16 in Santa Monica.
The charge for attending the seminar is $10 per person. You may also bring one employee at no charge. Any additional employees need pay only $ 5 each. Please write a check to Solomon, Saltsman & Jamieson for the proper amount. Space is limited. Questions or to make a reservation, please call Marianne Rolin at (310) 822-9848.
For dates of upcoming seminars, view our website at www.ssjlaw.com.
Solomon, Saltsman & Jamieson certifies that this activity has been approved for MCLE credit by the State Bar of California in the amount of 2 hours.
ATTORNEYS OFFER FREE PRIVATE CONSULTATIONS ON THE DAY OF THE SEMINAR
OR ANYTIME BY PHONE OR IN THE OFFICE. PLEASE CALL FOR AN APPOINTMENT.
From www.martindale.com
WHERE: Red Lion Hotel Woodlake/Sacramento
500 Leisure Lane; Sacramento, Ca. 95815
Telephone: (916) 922-2020
WHEN: October 23, 2014; 1:00 – 3:00pm
Everyone in attendance will get the “ABC Emergency Pamphlet.” Topics include:
YOU HAVE 2 STRIKES, NOW WHAT DO YOU DO?
REMOVING ABC CONDITIONS;
NEW ABC RULES;
Serving minors; DECOY RULES; NON-DECOY: NO RULES;
Serving obviously-intoxicated individuals (and minors: is there civil liability?
After hours sales/consumption;
Narcotics busts and the Automatic Revocation Status;
Fatality Cases; ABC TRACE UNIT
The Disorderly House nightmare and THE ABC TASK FORCE;
ABC – Indian Reservation;
Rule 144: Penalty Guidelines;
Application Rules and Procedures;
Conditional Use Permits/Variances; what happens when you apply for City CUP & Variances;
Speakers at this seminar are:
Stephen Warren Solomon, Ralph Barat Saltsman, Stephen Jamieson, R. Bruce Evans and Ryan Kroll, partners in Solomon, Saltsman & Jamieson, attorneys with over 100 years combined experience in litigation with the ABC and Land Use. They can be seen hosting Legal Help Live on Television, cable station 36 in Los Angeles, channel 16 in Santa Monica.
The charge for attending the seminar is $10 per person. You may also bring one employee at no charge. Any additional employees need pay only $ 5 each. Please write a check to Solomon, Saltsman & Jamieson for the proper amount. Space is limited. Questions or to make a reservation, please call Marianne Rolin at (310) 822-9848.
For dates of upcoming seminars, view our website at www.ssjlaw.com.
Solomon, Saltsman & Jamieson certifies that this activity has been approved for MCLE credit by the State Bar of California in the amount of 2 hours.
ATTORNEYS OFFER FREE PRIVATE CONSULTATIONS ON THE DAY OF THE SEMINAR
OR ANYTIME BY PHONE OR IN THE OFFICE. PLEASE CALL FOR AN APPOINTMENT.
SOLOMON, SALTSMAN & JAMIESON is proud to announce that partner Ryan Kroll is named a 2014 Oregon Rising Star for general litigation as published in Portland Monthly.
In California, Oregon, and Washington, Solomon, Saltsman & Jamieson offer services in many areas of law, including, among them, Personal Injury; Employment Law; Land Use Planning; Business Disputes; Constitutional Law; Alcohol Licensing Law; Indian Gaming and Sovereignty Law; Appellate Law; and Administrative Law.
With well over 100 years of
Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
By Daniel P. Smith
BYOB creates an array of unique considerations
When Joe Burke Jr. opened TreVi Pizza three years ago in Glenside, Pennsylvania, he was excited by liquor sales’ robust profit margins and the food-and-beverage pairings he could promote with a curated selection of wine, cocktails and beer.
Unfortunately, Burke could not digest the expense of a $200,000-plus liquor license for his 90-seat, startup operation and embraced BYOB (bring your own bottle/booze/beer). Capitalizing on Pennsylvania’s forgiving BYOB laws, Burke has since created a marketplace niche for TreVi, one of the few establishments in its suburban Philadelphia community permitting BYOB.
“The wine flows freely here at TreVi and customers enjoy not having to pay four to five times markup on a bottle. It’s actually become a selling point for us,” Burke says.
BYOB, however, can be a tricky play for pizzerias given a dizzying array of regulations, liabilities and pinched profitability.
BYOB regulations vary from state to state and even municipality to municipality, a reality inspired by the federal government’s hands-off alcohol policy following the end of Prohibition in 1933.
Some states allow BYOB in restaurants already holding a liquor license; other states leave discretion to municipalities or even individual restaurants; still others explicitly prohibit BYOB.
In the State of New York, for instance, it is a criminal misdemeanor to permit BYOB in any commercial establishment without the appropriate licensing. In neighboring New Jersey, meanwhile, where a number of dry towns prohibit restaurants from holding liquor licenses, guests can bring in their own bottle and the restaurant can charge a corkage fee.
In Burke’s Pennsylvania, there is nothing in the state’s Liquor Control Board code that “prohibits an individual from bringing his or her own alcohol into any establishment, whether or not the establishment possesses a license issued by the Board.” Subsequently, each establishment is free to allow or disallow patrons from brining their own alcohol into the eatery, though municipalities retain the right to enact their own BYOB ordinances.
The regulatory patchwork can be confusing, particularly for concepts opening units in multiple jurisdictions.
Beyond the regulatory environment, BYOB brings a number of diverse challenges and liabilities.
Though Burke has established TreVi as his neighborhood’s premier BYOB destination, he nevertheless acknowledges that his customer counts drop after 10 p.m. on the weekends and during marquee sporting events.
“I don’t even bother opening for the Super Bowl,” he says. “Because I’m BYOB, there’s just a thinner window of time to make money.”
In addition to lost revenue, BYOB-permitting operators also face administrative, civil and even criminal concerns.
According to New York-based attorney Donald Bernstein, the most common mistake many operators make is simply allowing BYOB into their establishment when it is prohibited in their jurisdiction. “This is a black-and-white issue: it’s either permitted or it’s not,” he says.
Thereafter, issues abound regarding the BYOB operation’s inability to control the consumption of alcohol, over-serving, open-container laws and dram-shop acts.
In California, for example, sellers and servers of alcohol are generally not responsible in a civil suit to persons they have served, the primary exception being if they served an obviously intoxicated minor (under age 21). In other states, however, restaurant owners can be held responsible –– in a civil or even criminal case –– for over-serving patrons or allowing minors to consume alcohol on their premises.
Particularly with minors, restaurants must be vigilant and exercise the same precautions in a BYOB establishment that they would if they held a liquor license.
“You cannot just give glasses to anyone sitting at the table without ensuring everyone is of legal age,” Bernstein says.
Operators must also be mindful of the local open-container law. In New York, for instance, the law allows restaurant patrons to leave with an unfinished bottle provided the restaurant packages it in a specific way.
“Many operators don’t realize all the particulars and don’t make sure they have the necessary insurance for civil liability for service of alcohol or allowing BYOB, as there are often exclusions for alcohol-related instances,” says Stephen Jamieson, a Los Angeles-based attorney who practices hospitality-related law.
Legal experts Jamieson and Bernstein both urge BYOB operators to discover the regulatory specifics in their jurisdiction. If liquor laws are handled locally, city hall or the county seat will host the rules. If liquor regulations are addressed by the state, then the state’s department of alcohol beverage control defines policy.
“Don’t assume you know what the law is,” Jamieson says.
Jamieson counts the National Association of Licensing and Compliance Professionals as a particularly helpful resource for operators and suggests operators consult a lawyer or licensing professional familiar with their jurisdiction to gain a comprehensive understanding of their responsibilities.
Ultimately with BYOB, Jamieson urges operators to follow the sage wisdom of Benjamin Franklin: an ounce of prevention is worth a pound of cure.
“It’s smart to understand everything you need ahead of time before you to get into a deeper investment and potential trouble,” Jamieson says.
In BYOB restaurants, operators often install corkage fees to cover their overhead or lost profit. According to national beverage consultant Joseph DeLuca, corkage fees typically range from $5 to $25.
After initially opposing a corkage fee at TreVi, owner Joe Burke Jr. noted mounting overhead from accommodating guests’ BYOB ways, such as purchasing wine glasses, using his ice to chill white wine and staff clean up. Burke began researching local and national corkage fees and, in mid-2012, launched a modest $3 fee at his Pennsylvania eatery.
Guests were not happy.
Though Burke offered free corkage nights and a frequent corkage card, some customers called him greedy and others ceased visiting. After six months, Burke tabled the fee amid falling sales.
Beyond potential customer backlash, corkage fees also complicate employee compensation. As corkage fees typically go to the house, staff might not get tipped for their efforts in opening, pouring and cleaning a BYOB table.
“Corkage fees are a delicate balance,” DeLuca says. “Operators need to make sure their servers are not being disenfranchised and that the fee is one guests will tolerate.”
Chicago-based writer Daniel P. Smith has covered business issues and best practices for a variety of trade publications, newspapers, and magazines.
CITY APPROVALS & REVOCATION PROCEEDINGS
WHERE: The Westin Los Angeles Airport
5400 W. Century Blvd; Los Angeles, California 90045
Telephone: (310) 216-5858 hotel only
Reservations: (800) 405-4222
WHEN: June 19, 2014; 1:00 – 3:00pm
Everyone in attendance will get the “ABC Emergency Pamphlet.” Topics include:
YOU HAVE 2 STRIKES, NOW WHAT DO YOU DO?
REMOVING ABC CONDITIONS;
NEW ABC RULES;
Serving minors; DECOY RULES; NON-DECOY: NO RULES;
Serving obviously-intoxicated individuals (and minors: is there civil liability?
After hours sales/consumption;
Narcotics busts and the Automatic Revocation Status;
Fatality Cases; ABC TRACE UNIT
The Disorderly House nightmare and THE ABC TASK FORCE;
ABC – Indian Reservation;
Rule 144: Penalty Guidelines;
Application Rules and Procedures;
Conditional Use Permits/Variances; what happens when you apply for City CUP & Variances;
Speakers at this seminar are:
Stephen Warren Solomon, Ralph Barat Saltsman, Stephen Jamieson, R. Bruce Evans and Ryan Kroll, partners in Solomon, Saltsman & Jamieson, attorneys with over 100 years combined experience in litigation with the ABC and Land Use. They can be seen hosting Legal Help Live on Television, cable station 36 in Los Angeles, channel 16 in Santa Monica.
The charge for attending the seminar is $10 per person. You may also bring one employee at no charge. Any additional employees need pay only $ 5 each. Please write a check to Solomon, Saltsman & Jamieson for the proper amount. Space is limited.
Questions or to make a reservation, please call Marianne Rolin at (310) 822-9848.
For dates of upcoming seminars, view our website at www.ssjlaw.com.
Solomon, Saltsman & Jamieson certifies that this activity has been approved for MCLE credit by the State Bar of California in the amount of 2 hours.
ATTORNEYS OFFER FREE PRIVATE CONSULTATIONS ON THE DAY OF THE SEMINAR
OR ANYTIME BY PHONE OR IN THE OFFICE. PLEASE CALL FOR AN APPOINTMENT.
By Ralph Barat Saltsman and Stephen Warren Solomon
Listen to Willie Nelson sing Smoke! Smoke! Smoke! That Cigarette (by Merle Travis and Tex Williams). Might Willie next try Vape! Vape! Vape! That E-cig?
While the new nicotine debate rages between health advocates and the suddenly visible E-cigarette industry, state and local legislators are adopting restrictions on E-cigs and prohibitions governing where E-cigs can be used. Governments are scrambling to keep E-cigs out of the hands of children under the age of 18.
Do we allow it? Do we ban it? Do we regulate it like Colorado regulates marijuana? After spending four decades educating the public on the effects of tobacco, do we allow smoking to be replaced by vaping?
Several municipalities, including Los Angeles, are contemplating adopting moratorium ordinances to disallow establishment of new E-cig stores pending comprehensive regulatory schemes. Some cities have their own temporary moratoriums already in place. From California to the Eastern seaboard, these local governments are adopting moratoriums in order to halt the free flowing proliferation of E-cig outlets while those cities figure out how to regulate the expanding industry. Perhaps “exploding” applies since there are reported cases of E-cigs literally exploding.
Since the FDA has not yet regulated E-cigarettes and since congressional legislation has not been enacted, municipalities are left to their own devices. State governments are wrestling with E-cig regulations as well with varying success. For example, in Oregon, two competing recent bills died in committee. One bill was designed to include E-cigs in Oregon’s Clean Air Act, the other bill was intended to only eliminate sales of E-cigs to minors. The bills apparently cancelled each other.
Reuters reports on February 20, 2014 the FDA, pursuant to a 2009 authorization law, is drafting a proposed rule which, after written, will be subject to a period of public comment. The process could take a year.
The problem with how to handle an industry that is heading for lift-off while many municipalities are trying to determine just what the product is and what effects it has is not just limited to big cities on both coasts. The Sleepy Eye Herald-Dispatch reported on February 12, 2014 that the Sleepy Eye (Minnesota) City Council tabled its Clean Air ordinance discussed at the February 11th Council meeting. Before the Council, the American Lung Association warned the product was poison, and the City Manager stated there are those who think the product is safe.
When the forerunner to today’s E-cigarette was first patented in the early 60’s, NFL Quarterbacks, movie stars and television “doctors” were endorsing their favorite brands of cigarettes. Despite early anti-smoking rumblings, smoking had no real stigma and little restriction as compared with the whirlwind of warnings and prohibitions awaiting the industry. It wasn’t until January 1964 that the Surgeon General released the study outlining the epidemic danger of cigarette smoking. The E-cigarette was not marketed, unnoticed and there was no need for regulation.
Fast forward to 2014. Following further engineering and additional patents for sophisticated mechanics leading to the development of what is today recognized as the E-cig paired with a new 21st Century market demand for nicotine delivery without cigarettes, Governments started to sit up and take notice. Suddenly here are E-cig advertising and E-cigarette stores. Surely legislation had to follow.
E-cigs operate as electronic systems that vaporize liquid nicotine which is inhaled by the consumer. Nicotine is the centerpiece; there is no tobacco. The mechanics consist of three main components: battery, chamber and cartridge. There is a rechargeable lithium battery: a chamber where the nicotine is injected then vaporized and a cartridge filled with liquid containing nicotine (and flavor). An atomizer vaporizes the liquid in the chamber. The process is initiated by the consumer inhaling, but there can be a manual option as well for those who wish to vaporize their nicotine by the push of a button. Manual vaporization can produce more nicotine vapor.
The call to include E-cigarettes in the tobacco regulatory schemes is being heard in local city halls and in Sacramento and other state capitals. For example Ordinance 182823 amending Los Angeles City Municipal Code Article 6.9 and 7 was passed by the City Council December 4, 2013 to be effective January 22, 2014. The tobacco product permitting and administrative processing law was amended to include E-cigarettes in the sweep of tobacco product regulation. Article 6.9, Section 46.90(c) provides, in relevant part:
“Tobacco Product” shall also include any product or formulation of matter containing nicotine derived from tobacco, or synthetic nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body.”
Presently, a panel for the Los Angeles City Council is drafting recommendations relative to comprehensive E-cig regulations. States, counties and cities across the United States are including E-cigarettes in their tobacco use restrictions as to means of sale, age of buyer, locations where use is prohibited and required sellers’ license or permit.
A number of states and local governments have simply folded E-cigarettes into general tobacco restrictions such as the mid-December 2013 action taken by New York City whose City Council voted to extend its public smoking law to the public use of E-cigarettes. New York now prohibits E-cigarette smoking where smoking was traditionally prohibited such as in restaurants, bars and office buildings. (New York Times December 19, 2013)
Effective September 2010, California Health and Safety Code §119405 states that it is unlawful “for a person to sell or otherwise furnish an electronic cigarette, as defined in subdivision (b), to a person under 18 years of age.” The statute defines E-cigarette as “a device that can provide an inhalable dose of nicotine by delivering a vaporized solution.”
Now that states and local governments are beginning to treat E-cigs the same as tobacco products, this begs the question: are E-cigarettes as harmful to the user and the nearby public as tobacco products?
E-cigs are marketed and reviewed by appearance and use including color, battery, style, physical comparison to tobacco cigarettes, length, vapor volume, and flavors. Among other flavors, e-cigs can deliver cherry, pina colada, coffee, vanilla or chocolate. Critics wonder how those flavors aren’t considered as targeting to minors. Advertisements have touted ubiquitous safe use such as on airplanes, because, they say, there is no second-hand smoke. Advertisers point out other tobacco hazards don’t exist with e-cigs because there is no smoke, therefore no smoke smell, no tar, no ash and no teeth stain. By the way, prices for “starter kits” range from under $25 to over $175.
Recognizing what may be a long term trend, Market Watch in the Wall Street Journal noted traditional cigarettes are experiencing a decline in demand while E-cigarette sales are on a significant rise. Wall Street Journal reports Lorillard enjoyed a 38% ($54 million) increase in E-cig sales compared with a 1.4% ($1.69 billion) increase for old fashioned tobacco cigarettes. (Wall Street Journal 2.12.14)
With no definitive guidance from the FDA governments are left scrambling for answers. It is noteworthy that in 2010, the U.S. Court of Appeals, District of Columbia Circuit, upheld an injunction disallowing the FDA from regulating E-cigarettes under the drug/device provisions of the Federal Food, Drug and Cosmetic Act in Sottera, Inc. v. Food & Drug Administration, 627 F3d 891, 899 (2010). The Court concluded:
“As we have already noted, the FDA has authority to regulate customarily marketed tobacco products—including e-cigarettes—under the Tobacco Act. It has authority to regulate therapeutically marketed tobacco products under the FDCA’s drug/device provisions….. Of course, in the event that Congress prefers that the FDA regulate e-cigarettes under the FDCA’s drug/device provisions, it can always so decree.”
In its published report December 18, 2013, Consumer Reports concludes that E-cigarettes are “probably safer” for second hand contact compared to cigarette smoke, but there may still be some risk. Other health organizations warn of the toxicity of E-cigarettes and the danger directly to the consumer by vaping and inhaling the variety of toxins. Depending on to whom one speaks, e-cigs are either a great way to quit smoking (or smoke safer), or E-cigarettes are just a new way of ingesting poison and poisoning the person next to you. Meanwhile states, counties and cities are enacting restrictions and prohibitions. So while the jury of health professionals is still deliberating, legislatures are regulating.
Ralph B. Saltsman and Stephen Warren Solomon are partners in the Law Firm of Solomon, Saltsman & Jamieson in Los Angeles. The authors practice in the area of land use, Indian Gaming, zoning, administrative, personal injury, and constitutional law. Saltsman and Solomon can be reached at (310) 822-9848; [email protected] and [email protected].