To be or not to be in a bar or club. That is the question.
The Sayers Club is at 1645 Wilcox Avenue, Los Angeles, does, in fact, have a Type 48, On-Sale General Public Premises license. It was issued February 3, 2011 according to the ABC’s online records. And it was issued with conditions. (More on that later.)
A Type 48 license does not permit any person under 21 (“minor”) to enter and remain in the premises at any time—without lawful business. To do so would violate Section 25665 of the CA Business & Professions Code. To help prevent this, a Type 48 licensee is required by Rule 107 to post signs, “No Person Under 21 Allowed.” One sign at or near each public entrance and one on the inside.
The signage rule is very specific. The sign must be at least 7 x 11 inches with lettering at least 1” in height. The same law holds true for a Type 42, On-Sale Beer & Wine Public Premises, and a Type 61, On-Sale Beer Public Premises license. No minors are allowed, except for lawful business, and signs must be posted per Rule 107.
What is “lawful business?”
Lawful business would be things like an underage delivery person, a repair person, or a musician (there are rules for underage musicians, too). Also, there is no exception for things like underage spouses or a baby being held in its parent’s arms.
What can happen as a result of a violation? If ABC gathers the evidence and proves the violation, first, an ABC penalty. If a Type 48 business permits a minor inside, the liquor license is subject to suspension or revocation.
What does it mean to “permit” a minor to be inside the premises? Well, licensees have an “affirmative duty” to ensure no minors enter or remain inside. Passive conduct is the same as “permitting” a minor to be present. This means staff must be aware at all times and monitor what is going on. If someone looks under 30, check ID carefully. If the person is underage or has a fake ID, send them packing immediately.
ABC decides each penalty on a case-by-case basis. However, ABC uses penalty guidelines. There is a “standard” penalty” for each different type of violation, whether it be underage drinking, gambling, narcotics, or what have you. In this case, if the violation is proven, the owner could face the standard 10-day suspension of the liquor license. If the required signage was not posted, then ABC could tack on another five days.
Depending upon the case, the ABC might increase or decrease the number of days of the suspension. For example, if a business has had “priors,” the ABC may up the number of days. In this case, Sayers Club has no priors. If, on the other hand, a business can prove it has trained its staff in safe and legal serving practices, ABC might reduce the number of days. And in some cases, the ABC may permit a business owner to pay a fine instead of serving a suspension. Fines range from $750 to $20,000, depending upon the owner’s past record and his gross sales of alcohol. A higher-volume business will pay a greater fine.
We don’t know what the license conditions are for The Sayers Club–although a copy may be obtained upon request from the ABC. However, any violation of conditions is a separate matter. If proven, this carries a separate ABC penalty.
The second thing is a criminal penalty. If the ABC can prove the minor was inside and management or employees did not do anything to determine his age or remove him, then the owner or employee can be cited into criminal court. This carries a maximum $1,000 fine and/or six months in county jail.
As far as an underage patron goes, he, too, may be held criminally liable. This means a citation which, if found guilty, carries a fine of at least $200.
As always, the time to fix the roof is before it rains. If you have a Type 42, 48 or 61 license, post your “minor warning signs” as required, train your staff well, have a written safe alcohol policy and be vigilant about keeping minors out.
The food and drink editor at the San Francisco Chronicle recently blogged about the Department of Alcoholic Beverage Control and its recent investigations of restaurants with liquor licenses that are reportedly infusing (“rectifying”) distilled spirits with other ingredients.
Another blogger jumped on the bandwagon and called ABC investigators “thugs.”
The number of negative reader comments on these blogs just astounded me. Sometimes when people have negative feelings about law enforcement agencies, they seem to get blown out of proportion.
Here are some of the issues raised, along with some information based upon my 29 years experience with the Alcoholic Beverage Control:
1. What is rectification?
The Alcoholic Beverage Control issued an Industry Advisory in 2008, which explains rectification:
Rectification is any process or procedure whereby distilled spirits are cut, blended, mixed or infused with any ingredient, which reacts with the constituents of the distilled spirits and changes the character and nature or standards of identity of the distilled spirits. One example of rectification is, but not necessarily limited to, creating products such as ‘lemoncello’ or ‘limoncello’ in which sugar and citrus products are combined with vodka and stored, initiating a maturation process which consequently changes the character and nature of the vodka, and possibly its alcohol content. The simple mixing of alcoholic beverages with other ingredients for immediate consumption is not considered rectification. [Emphasis added.]
2. Who can rectify?
Any person who rectifies requires a Rectifier’s license issued by the Alcoholic Beverage Control. This type of license, with a few exceptions carved out by the legislature, is not issued to anyone holding a retail license such as a bar or restaurant. Section 23368 of the California Business and Professions Code says:
”23368. A rectifier’s license authorizes the person to whom issued to cut, blend, rectify, mix, flavor, and color distilled spirits and wine upon which the excise tax imposed by Part 14 of Division 2 of the Revenue and Taxation Code has been paid, and, whether so cut, blended, mixed, flavored, or colored by him or any other person, to package, label, export, and sell the products to persons holding licenses authorizing the sale of distilled spirits.”
3. Alcoholic Beverage Control investigators are a bunch of thugs and bureaucrats
Alcoholic Beverage Control investigators are well educated, highly-trained law enforcement professionals who have a job to do. Protect public health and safety. Just like police and firefighters. Their job is to enforce existing laws created by the California legislature. They actually do it very well. California is viewed as one of, if not the, finest liquor control agencies in the U.S, and a model for other agencies throughout the country in terms of effective, efficient and fair licensing, enforcement and prevention.
4. “Mixologists . . . bring revenue to the ABC through sales”
ABC is a special fund agency. It is funded entirely from license fees paid by the alcoholic beverage industry (retailers, wholesalers and manufacturers). It also receives grants for special programs (such as decoy programs) through the California Office of Traffic Safety from the National Highway Traffic Safety Administration. All revenue from the fines ABC collects goes directly into the State’s General Fund.
5. One of the blog comments said, “Is there a meeting at the [Alcoholic Beverage Control] with a bunch of people sitting around deciding that it’s time to focus more attention on recipe creation than, let’s say–underage drinking?”
ABC doesn’t have time to sit around and ask, “Who are we gonna pick on this week?” Investigations are based on complaints. These complaints may come from competitors, disgruntled employees, parents, spouses, local law enforcement, public health officials or others.
When investigators are at restaurant or bar based upon a complaint, they may discover another violation at the same time.
Sales to minors and underage drinking is one of the Department’s highest enforcement priorities. They will even respond 24-7 to any alcohol-related emergency involving a minor, to trace the source of the alcohol.
6. What are the consequences of rectifying without the proper license?
A retailer who does so would be misusing their license privileges. It’s not likely a business owner or bartender will get carted off to jail for it. However, the Alcoholic Beverage Control could issue a warning or file an accusation resulting in a suspension or fine. It looks at each case individually and decides what to do.
If people feel that bartenders should be allowed to rectify, they should contact their local legislator. Meantime, Alcoholic Beverage Control investigators are obliged to enforce existing laws in a fair and impartial manner — far from thuggery. I don’t know if that’s a word or not, but it sure seems to fit.