Liquor license renewals with the Tennessee ABC are one of our favorite licensing fire drills. Renewals are dropped off by ABC agents at the restaurant, bar or hotel – and all too frequently do not make it to corporate for completion. Often filed at the 11th hour, renewals require tax clearance from Revenue, payment of all ABC citations, and ABC Declarations of Citizenship from corporate officers and owners of closely held companies.
The ABC recently announced that all mangers must also file Declarations of Citizenship. The Declaration of Citizenship is a relatively new form that most existing managers have not previously filed. Although not difficult to complete, obtaining signed notarized Declarations of Citizenship from all managers will take some effort.
Conjures up a parody of a popular holiday song:
All I want for Christmas is some more red tape
Some more red tape, some more red tape
For licensing specialists, the new requirement is just more job security. For small business owners, it is yet another pain the rear.
Crank up the pacemaker. We learned today that the Metro Nashville Beer Board now accepts on-line payments for the $100 annual beer privilege tax.
Due at the end of each year, paying the $100 fee generally required a trip downtown to the Beer Board with a certified check, money order or cash.
The move to cyberspace brings to mind a cherished childhood cartoon:
Yubba dubba doo
Flintstones, meet the Flintstones
They’re the modern stone age family
From the town of Bedrock
They’re a page right out of history
Who knows what the future has in store for Nashville beer permit holders. Maybe a rewards program with Southwest frequent flyer miles?
Dance permit holders appear to be SOL. We could not find a way to pay the annual $100 dance permit fee on line.
We have been blogging about a multitude of new rules from the Tennessee ABC in their quest to “clean up” the liquor laws. Yesterday, we learned that the TABC has adopted a zero tolerance policy for restaurant, hotel and bar servers that do not have server permit cards available at an ABC inspection.
In the past, the TABC has allowed a liquor licensee to provide copies of server permit cards, after an inspection. If the establishment could prove that the server had a card, the TABC would not issue a citation.
No more. Citing the exact language of the TABC rule, TABC Assistant Director Ginna Winfree declined to drop a citation against one of our hotel clients that provided proof of a valid server permit card, after the TABC inspection.
TABC Rule 0100-01-.03(18) requires that licensees have a copy of server permit cards available for review. We do not disagree with the reading of the law, but it is an unfair and unrealistic expectation.
Brings to mind Hank William’s classic Cocaine Blues:Got up next morning and I grabbed my gun I took a shot of cocaine and away I run Made a good run but I run too slow They overtook me down in Juarez Mexico
We have always recommended that restaurants, hotels and bars keep copies of server permit cards on file in the office. Failure to keep copies often leads to paying free money to the state. The basic fine is $150 per server, which can quickly add up to a big fine.
The new TABC policy makes it even more important for liquor licensees to keep copies on file. Unless you just like handing over more of your hard-earned profits to the state.
The Tennessean recently featured a glowing article about Kentucky craft distilleries. If you believe the hype, it seems that Kentucky is light years ahead of Tennessee in the craft distillery business.
Carly Simon’s addictive melody reminds us:
You had one eye in the mirror as you watched yourself gavotte
And all the girls dreamed that they’d be your partner
They’d be your partner, and…
You’re so vain, you probably think this song is about you
You’re so vain, I’ll bet you think this song is about you
Don’t you? Don’t You?
Marketing is a huge force in America. The news story about craft distilleries focuses on a new $10.5 million attraction — The Evan Williams Bourbon Experience. $10.5 mil is not exactly a craft distillery budget. Evan Williams is not exactly a craft distiller, cited by Wiki as “the second largest-selling Kentucky” “mass-market” bourbon. Marketing for the Kentucky Bourbon trail fails to mention the number of supposed craft distillers that are owned and controlled by huge liquor manufacturers.
We urge Tennessee’s real craft distillers to invest both time and money to showcase the Volunteer State’s whiskey heritage and make Tennessee’s whiskey trail a world-class destination. In many ways, it is all about the appearance to the public, which is largely influenced by marketing.
Tennessee is a world-class tourist destination for whiskey aficionados. Tennessee is the real deal.
On a side note, some may be asking, “gavotte,” what is that? Merriam Webster informs us that gavotte is “a dance of French peasant origin marked by the raising rather than sliding of the feet.” Not sure why Carly Simon immortalized the word.
Hospitality insiders have been bracing for a wave of ADA swimming pool and spa litigation. January 31, 2013 was the deadline for implementing a federal law requiring lifts and other ADA compliance for pools and spas at hotels. Earlier this year, industry trade sites reported the first surge of litigation.
We learned today that the storm has hit Tennessee. Conjures up the Doors’ famous tune:Riders on the storm Into this house we’re born Into this world we’re thrown Like a dog without a bone An actor out alone Riders on the storm
The plaintiff in the Tennessee litigation, Dana Bowman, is represented by Eric G. Calhoun, of Dallas, Texas, an attorney that has filed lawsuits against hotels for Mr. Bowman in several states. The complaint alleges that Mr. Bowman is a disabled veteran, that the hotel does not have a lift for its pool or spa, and requests an injunction requiring the hotel to install a lift or otherwise comply with ADA. The lawsuit also seeks payment of legal fees from the hotel.
We encourage hotel owners and operators to examine ADA accessibility at pools and spas and seriously consider implementing basic measures to accommodate access. With the hammer of legal fess in the federal law, ignoring the new law is potentially more expensive than purchasing lifts.
Infused alcoholic beverages have been the talk of town among many restaurant and bar owners in Tennessee. The Tennessee Alcoholic Beverage Commission’s enforcement actions over the past few months have lead to uncertainty regarding what is permissible and what is illegal about infused alcoholic beverages.
Brings to mind the 2011 single from Sunny Sweeney, Drink Myself Single:I’m gonna dress up, in my low-cut My tight blue jeans, I’m gonna stir somethin’ up I’m gonna kiss all the boys ’til I kiss your memory goodbye Yeah, I’m a gonna drink myself, single tonight
The TABC has issued a preliminary draft of rules about infusions. We see many potential problems with the proposed rules and encourage license-holders to send comments to Keith Bell, ABC Director, at Keith.Bell@tn.gov.
Here are the proposed rules as shared with us this summer:
Infused Alcoholic Beverages Not For Immediate Consumption
The rules define “immediate consumption” to mean the mixing and fulfilling of a mixed drink or cocktail order only after receiving the order. Licensees who intend to serve infused drinks should become familiar with the following rules to ensure compliance with Tennessee regulations.
A liquor licensee must:
• Utilize tax-paid alcoholic beverages in the infused drink which are authorized by the license and obtained through the three-tier system,
• Comply with all applicable state and federal food safety regulations, and
• Comply with all federal alcohol regulations.
A liquor licensee cannot:
• Add hallucinogenic substances, added caffeine or stimulants, or controlled substances to a premixed drink.
An infused alcoholic beverage batch must be:
• Disposed of within 72 96 hours of the completion of the infusion process,
• Infused, stored, and consumed on the licensed premises, and
• In a labeled container that is compliant with state and federal food safety statutes.
An infused alcoholic beverage batch cannot be:
• More than three gallons,
• Removed from the licensed premises,
• Infused, stored, or dispensed from an original package of liquor or wine, or a container bearing an alcoholic beverage name brand, and
• Added to a relabeled empty container or another infused alcoholic beverage batch if expired.
A label is required to be on each container that holds an infused alcoholic beverage batch. The label must adhere to the container, in a noticeable place, until the entire contents are dispensed or destroyed.
The label must legibly identify:
• The date and time of infusion of the alcoholic beverages with nonalcoholic ingredients in the container,
• The date and time the contents expire,
• The title of the recipe used for the contents,
• The size of batch, and
• The person who prepared the contents.
Each label must be marked clearly with the words “CONTAINS ALCOHOL.”
Record keeping requirements
Records must be maintained for three years on each prepared batch of premixed drinks.
The records must identify:
• The date and time of infusion of the alcoholic beverages with nonalcoholic ingredients in the container,
• Each alcoholic beverage, including the brand and amount used in the batch,
• Each nonalcoholic ingredient used in the batch,
• The recipe title and directions,
• The size of batch,
• The person who prepared the contents,
• The date and time the contents were destroyed or entirely consumed,
• If not consumed, the method of destruction, and
• The person who destroyed the contents.
A dispensing machine that contains a premixed drink is required to follow the labeling, record keeping, and disposal requirements. Licensees who use a dispensing machine that contains a non-alcoholic premix, and add alcoholic beverages after receiving and dispensing a customer order for the beverage, are not required to label the container or maintain records.
• A failure to comply with the above rules will result in a fine, license suspension, and/or license revocation.
Twice a year, we hear from restaurants and bars about springing forward or falling back from Daylight Savings Time. How does Daylight Savings Time work for last call and closing at Tennessee bars and restaurants?
California Dreamin’ by the Mamas and the Papas captures the feeling of fall in Tennessee:
All the leaves are brown, and the sky is gray…
There is a silver lining for falling back. On Sunday November 3, bars get a bonus hour and can close at the equivalent of 4 am, when clocks fall back at 2 am. At 2 am, suddenly it is 1 am.
Although hope springs eternal, springing forward makes last call an hour early. At 2 pm standard time, when clocks are set forward one hour for daylight savings time, alcohol sales must cease.
Infused alcoholic beverages are back in the limelight in Tennessee. Tennessee ABC agents visited a number of restaurants and bars over the past week to inspect infused spirits.
Not all of the visits were exactly friendly. We hear that agents seized infused spirits from at least a handful of bars. We also hear that some of the product has been returned to bars.
Regular readers may be asking, what gives? I thought the ABC agreed to stay enforcement against infusions until a formal rule could be enacted? We covered the news here.
Infused beverages are not standard fare at Tennessee watering holes. Lynyrd Skynyrd gets it:
And all those high-falutin’ society people
I don’t care if they don’t understand
Earlier today, October 10, 2013, we discussed the recent enforcement actions with Keith Bell, the Tennessee ABC Director. Mr. Bell assures us that the stay on prosecution of infusions is intact.
The ABC is currently focused on labeling of infusions, which was one of the major concerns behind the original enforcement action.
Infusions are often concocted and served from large clear glass containers. Another popular method is to pour infusions back into a bottle of the base spirit – for example, serving an infused Absolut Tootsie roll vodka from an Absolut bottle.
From the ABC’s perspective, consumers do not know what they are ordering or drinking. Consumers do not know who made the infusion or how old it is. When infusions originally were targeted, the ABC cited heath concerns because of complaints from the Knoxville area of rotten fruit in infused vessels.
How can I safely sell infused alcoholic beverages in Tennessee? Based on our discussion today with the ABC, labeling is key. Any publicly visible container of infused spirits should have a label that states:
1. Who made the infusion: For example “House-made.”
2. What is in the infusion: For example “Tito’s Vodka infused with lime, cayenne and anchovies.”
3. The trade name of the infusion: For example: “Fiery fishy frenzy.” Avoid using the spirit name in the trade name. The ABC indicated that names like “Titio’s cayenne-spiced anchovy infusion” are problematic. Use of the brand name creates the impression that the infusion is made by Tito’s.
4. When the infusion was made: For example “Infused from June 2013 to date.”
5. If the infusion contains ingredients that may spoil, an expiration date: For example “Consume by January 2014.” Expiration dates are not going to be scientific. We advise good judgment and a date that is far enough out to sell the product.
If your restaurant or bar serves infused spires, we encourage proper labeling and checking back with us as this issue continues to develop.
Restaurants, bars and other liquor license holders in Tennessee are beginning to experience the double whammy of new legislation and ABC policy punishing sales to minors. The impact of the changes is dramatic. Based on our early experience, licensees may face suspensions instead of fines.
Memphis Rocker Elvis Presley has been there, done that:
The warden threw a party in the county jail
The prison band was there and they began to wail
The band was jumpin’ and the joint began to swing
You should’ve heard them knocked-out jailbirds sing
ABC Suspending Licenses for Sales to Minors:
Regular readers know that the Tennessee ABC has been making lots of changes. Recently, the ABC has been seeking suspensions of liquor licenses for second sales to minors within a one year period.
In the past, the ABC issued fines for sales to minors, as long as the establishment was making genuine efforts to prevent sales to minors.
Recently, we have seen citations setting a second sale within one year for hearing for suspension or revocation of the liquor license. This is attention grabbing.
We will keep readers informed as we learn more about ABC penalties for sales to minors. The new policy could easily be applied to multiple sales over more than a year.
New Law Mandates Coordinated Efforts by ABC and Beer Boards:
A new Tennessee law requires that the ABC and beer boards give written notice of suspensions of liquor licenses and beer permits to each other, via certified mail.
In the past, enforcement efforts of the ABC and local beer board were sometimes coordinated and lead to separate fines or suspensions being issued by both the ABC and the local beer board.
Based on our experience, coordinated enforcement was sporadic. Beer boards and the ABC did not regularly communicate about violations. For restaurant and bar owners, this was a good thing.
It is legal for the ABC and local beer board to each impose a separate fine or suspension for the same violation. Yes, the ABC and local beer board can both suspend a restaurant or bar liquor and beer permits for one sale to minor. To make matters worse, the suspensions usually are imposed at different times.
What about double jeopardy? Not applicable.
We strongly encourage Tennessee license holders to step up efforts to prevent sales to minors and intoxicated patrons. The stakes are much higher.
Recently, the Tennessee Alcoholic Beverage Commission stepped up scrutiny of routine disclosure of crimes on restaurant, hotel and bar liquor license applications. We are advising folks to be very careful with applications and personal questionnaires, making sure that all criminal convictions are disclosed.
For no apparent reason, the Beatles’ famous Abbey Road song comes to mind:
She came in through the bathroom window
Protected by a silver spoon
But now she sucks her thumb and wanders
By the banks of her own lagoon
A while back, the ABC announced that it was conducting random secondary checks of criminal convictions in ABC questionnaires. We joked that maybe one or two were being checked. ABC agents have full plates and probably more productive things to do. We never heard about a secondary ABC criminal check.
But Friday before last, ABC Assistant Director Ginna Winfree smashed our assumptions in a late afternoon call. It went sorta like this:
Will, why is your client not disclosing all his crimes in his ABC questionnaire? Why does the restaurant’s liquor application fail to disclose several crimes?
Within about 45 seconds, I was decidedly worried that the liquor license would be denied for the failure to disclose. Failure to disclose is a really bad thing.
When crimes are not disqualifying, like the 4 DUIs and misdemeanor theft charge in my application, always, always disclose the convictions. It may be embarrassing, but the ABC will issue the license.
But forget to disclose everything, and you could be in serious hot water.