2016 LEGISLATIVE UPDATES: Part III

By Rebecca Stamey-White and Erin Kelleher

It’s round three in our legislative updates for 2016.  Part three gets into the meat of licensing, qualification and tied-house ownership, our favorite issues!

THIRD COURSE: LICENSING, QUALIFICATION & TIED-HOUSE OWNERSHIP ISSUES

ABC qualification relief, but no tied-house changes, for private equity investors  (SB 796: 23405.4)

Investors (and not just private equity investors) have struggled in California to legally make investments in licensed businesses largely for two reasons. First, upper tier investors are loathe to provide personal information and qualify with ABC, largely due to privacy concerns. Second, generally speaking, there is no de minimus exception to the California tied-house laws. Thus, an investor might have a passive investment in a fund which holds retail interests, which could prevent them from making another passive investment in a fund which holds supplier interests. ABC has struggled with these issues, out of a legitimate desire to know the ultimate owners of a licensee. The limited partners in a fund, which might technically be the ultimate "owners" of a license, however, generally do not have an active role in the management of the fund or the licensee. Further, they might not even know what investments the fund makes at all. So why qualify them or prevent them from making an investment in a licensee?

SB 796 attempts to address the first problem regarding qualification, but does not address the second and larger problem regarding the tied-house laws. Specifically, the statute will not require qualification (but still requires compliance with the tied-house laws--an important distinction of which to be mindful) of an investor in a private equity fund, provided:

  • The fund's interest is passive (no involvement with the licensee's business);
  • The fund's advisors are registered under the Investment Advisors Act of 1940 and are subject to federal reporting requirements;
  • The investor holds less than 10% of the fund (not the licensee); and
  • The investor has no control in the investment decisions of the fund.

SB 796 does not apply to hedge funds, liquidity funds, REITS, securitized asset funds or VC funds. Why not? Good question--though it is consistent with other legislative changes to the code governing alcoholic beverage licensees; that is, hyper-specific and very limited.

ABC may require the manager of the fund to execute an affidavit confirming compliance with the conditions above and affirming that the investors not being qualified do not have interests that would violate the tied-house laws. Importantly, if the manager does not have direct knowledge of any facts necessary to execute the affidavit, the statute requires them to make a direct inquiry of investors, and requires notification if any of the attested-to facts change. Ostensibly, this creates an ongoing investigation and reporting obligation of the fund.

The statute clearly states that it is not intended to permit someone from making an investment through a private equity fund in a license if such investment is not otherwise permitted. Therefore, the statute does not address the larger and more difficult problem of passive investments in licensees and the tied-house laws. Thus, while qualification might be slightly easier, private equity funds will still be limited in how they can invest in licensees.

The Craft Distillers Act of 2015 (AB 1295: 23500, 23501, 23502, 23504, 23506, 23508, 23363.1, 23771 and 23772)

AB 1295 represents a big change in the industry, and could be a huge boon to folks looking to take advantage of the recent craft spirits craze that has swept the country. Historically, spirits have lagged behind wine and beer in terms of securing exceptions to the tied-house laws, which has made it more difficult for spirits products to get to the ultimate consumer without the backing of a major distributor. The new regulations not only create a new license type for small distillers, but also create tied-house exceptions that do not exist for their larger-production counterparts. These regulations do, however, amend the tasting provisions for spirits, which are applicable to large distillers as well.

  • Basic License Permissions and Limitations (23500, 23501, 23502, 23504, ABC Industry Advisory) 

The new craft distiller’s license (Type 74) will allow the production of no more than 100,000 gallons (liquid volume and not proof gallons) of distilled spirits per fiscal year (July 1 – June 30), excluding brandy that it manufactures or is manufactured for the licensee with a brandy manufacturer’s license. Fees and qualification will be the same as for Type 4 spirits producers. Craft Distillers must report their production volume to ABC when applying for an annual renewal, and if they exceed the production cap their license will be renewed as a Type 4.

They can package, rectify, mix, flavor, color, label and export only their own products. They will only be able to sell to wholesalers, manufacturers (and their agents), winegrowers and rectifiers that hold a license authorizing the sale of spirits. Thus, Craft Distillers cannot make sales to retailers–-however note the limited DTC exception for consumers outlined below.

  • Tastings (23363.1)

The tastings statute applicable to spirits now covers both large distillers and craft distillers. Like regular distilled spirits manufacturers, craft distillers will be able to conduct tastings and charge for them on their premises, subject to the following conditions:

  • Total volume of pours cannot exceed 1.5 oz per person, per day;
  • Tastings can only include products produced (or produced for) the licensee; and
  • Servers have to be at least 21.

The statute has been changed to allow the service of cocktails or mixed drinks at the tastings, however, note that licensees can only use product that they make or that they have made for them. Therefore, cocktail creativity here is limited (or, encourages companies to start making their own mixers, which could be good for everyone).

Tastings can occur off licensed premises as well, provided they take place within permitted events sponsored by a nonprofit organization. No sales or solicitations are permitted at these events.

  • Direct to Consumer Sales (23504)

Craft distillers can sell up to 2.25 liters of their pre-packaged product at instructional tastings that occur on the licensee’s premises pursuant to the tasting provision of 23363.1 outlined above. This represents a huge win for craft distillers attempting to get their products to market, as DTC sales of spirits to consumers have until now been barred by ABC.

  • Bona Fide Public Eating Place & Private Events (23506(c) and 23508)

Like their wine and beer making counterparts, Craft Distillers may also operate a bona fide public eating public place located on, or contiguous to, their licensed premises. However, they may also serve distilled spirits, which is a big difference from wineries or breweries, who may not. Additionally, Craft Distillers may also offer beer, wine and distilled spirits, regardless of source, for sale to guests during private events. All beverages sold on the premises that are not manufactured by or for the Craft Distiller must be purchased from a wholesaler.

If the Craft Distiller loses this designation and becomes a large distiller, they may continue have events on their premises. This is a huge win for Craft Distillers who wish to market their space for events for extra revenue, something that is has become quite popular for all types of manufacturers. However, the ABC advisory indicates that if the Craft Distiller becomes a large distiller, they do not get to keep operating the bona fide public eating place under their distiller license. The bona fide public eating place on the premises would have to have a separate on-sale license, which could raise some tied-house issues.

  • Tied-House (23502(b), 23771, 23772, ABC Industry Advisory) – No Interests with Large Manufacturers, Agents, Wholesalers or Rectifiers

Craft Distiller licenses cannot be held by anyone “affiliated,” directly or indirectly, with a person who manufactures (or has manufactured for them) more than 100,000 gallons of distilled spirits per year within or without California (excluding brandy it manufactures or has manufactured for it with a brandy manufacturer license). The term “affiliate” is not generally defined in the code, though it is sometimes defined within the specific section where the term is used. Not so in this case, leaving it ambiguous as to what exactly “affiliated” means in this context. Nonetheless, the main take-away here is that Craft Distillers cannot also have Type 4 licenses or Type 5 licenses (Distilled Spirits Manufacturer's Agent licenses) in California, and also that they cannot be affiliated with larger scale manufacturers of distilled spirits located outside of California.

Additionally, Craft Distiller licenses may not be issued to anyone “affiliated” with, directly or indirectly, a wholesaler. The same ambiguity exists here with respect to the meaning of “affiliate.” The prohibition appears to only to apply to wholesale interests in the state of California (Type 17 beer and wine wholesaler or Type 18 distilled spirits wholesaler), and not to wholesale interests in other states.

Because a Craft Distiller can package, rectify, mix, flavor, color, label and export only their own products, ABC has indicated that they cannot also hold a Rectifier’s (Type 07 or Type 24) license. Craft Distillers may however use grain-neutral spirits manufactured by another distiller in the manufacture of their product.  

  • Tied-House – Interests in On-Sale Licensees (23506)

Craft distillers, or one or more of their subsidiaries of which they own at least 51% who also manufactures or produce, bottle, process, import or sell distilled spirits under a craft distiller’s license “or any other license issued pursuant this division” may hold an ownership interest in, or have a “financial or representative relationship” in up to two on-sale licensees.

Before we discuss the conditions on this important tied-house exception, we wanted to address some of the language in this statute. First, it is unclear what ABC means by the phrase “or any other license issued pursuant to this division.” This could allow Craft Distillers who have subsidiaries with other licenses to partake of this exception, where they otherwise would not have been able to do so. Second, “financial or representative relationship” is broader than the similar exception for winery interests in on-sale licensees found in 25503.15, meaning that not just ownership of the retailer is at issue for the tied-house analysis, but also the broader relationship of the Craft Distiller and the retailer.

The exception does contain a wholesaler poison pill, requiring the on-sale licensee to make all alcohol purchases (including wine and beer) from California wholesalers, except for those spirits which are made by or for the interested Craft Distiller. This could be a deal breaker for many on-sale licensees. Additionally, the number of spirits by brand offered by the off-sale licensees are limited to 15% of those produced by the interested Craft Distiller.

Importantly, this exception is not lost if the Craft Distiller eventually exceeds the production cap and becomes a regular large distiller.

Pedicabs get licenses (SB 530), no luck for beauty salons (AB 1322)

While clearly we all need to find out more about pedicabs, which can apparently carry up to 15 passengers and still qualify as pedicabs (our minds are spinning, meaning we may need to go to spin class more often), passengers may also now consume alcohol in pedicabs without requiring a license by the pedicab from the ABC. These pedicab operators must receive LEAD training from ABC and may not “sell, serve, or furnish” these beverages, but provided all the passengers are 21+, the passengers may serve themselves while enjoying the ride.

Other possible licensees or exceptions to the rule were not as lucky as the pedicab operators. A bill to provide an ABC licensing exception to beauty salons to enable them to provide alcoholic beverages incidental to the service of beauty treatments did not pass. We have a feeling the long-standing practice will not entirely go away, since it's been happening without this exception in place for many years (shhh! We ladies need our champagne!).

Larger brewers join small brewers in exception permitting on-sale retail license ownership (SB 796: 25503.28)

25503.28 used to allow only small beer manufacturers (those producing 60,000 barrels a year or less) to have an interest in up to 6 on-sale licenses, and now that privilege has been extended to large beer manufacturers in California as well.

The new privilege cannot be combined with the existing privilege under 23389(c) which allows beer manufacturers to sell their beer at 6 branch locations, 2 of which may be bona fide public eating places selling wine in addition to beer. Thus, a beer manufacturer (regardless of the number of licenses they hold alone, in common ownership with another beer manufacturer, or under common ownership with anyone operating as a on-sale retailer), may exercise on-sale retail privileges at premises where they do not manufacture beer at no more than 6 locations. Despite this, there is still no limit on the number of manufacturer locations, or the exercise of retail privileges at those locations.

Beer specifically added to non-profit temporary licenses (AB 774: 24045.6 and 25607.5)

Beer was specifically added to the statute permitting nonprofits to obtain special temporary on-sale and off-sale licenses for fundraising activities. While there are a variety of temporary off-sale licenses available for nonprofits, we most commonly see the combination of the licenses covered by 24045.1 (the on-sale general license, usually used for full bars at nonprofit fundraisers) and 24045.4 (the off-sale license that permits nonprofits to auction off bottles of wine). 24045.6 could be used by a nonprofit hosting an event featuring on-site consumption and also selling alcohol donated to it for off-sale consumption (but not using a silent or live auction to do it).  Most commonly, this privilege is used by nonprofit wine varietal or regional organizations who might conduct larger wine tastings and also sell wine donated to it by wineries participating in the event or who make special blends as a private label for the organization.  Previously, the statute was limited to wine, but now nonprofits can receive donated beer as well for their fundraising events under this section, which likely means we’ll see more beer association events structured like the wine association events.

Beer label approval no longer required by ABC, however brands must be registered with ABC prior to sale (AB 893:25200, 25201 and 25204)

Beer manufacturers and certificate of compliance holders are no longer required to furnish labels of beer containers to ABC, however every beer manufacturer, before the first sale of a brand of beer in California, must register the brand with ABC. Form 412 has been amended and is now titled the Beer Brand Registration Form. Manufacturers do not have to register brands that currently have accepted labels on file with ABC. ABC will not send a response to the brand registration form, and licensees may submit malt beverage price schedules and territorial agreements simultaneously with brand registration forms.

25200 was repealed and replaced with a provision that governs beer labels and brand registration, as well as alcohol content labeling previously included in 25204 (which has been repealed). Beer labels must meet federal malt beverage labeling regulations, and must also include:

  • the brand and class or type of beer;
  • the manufacturer’s name (can be a DBA) and address (if the beer is a collaborative effort, everyone must be identified);
  • the bottler (if other than the manufacturer); and
  • a statement of alcohol content if the beer is over 5.7% ABV.

Provisions on growlers used to be contained in 25200, but are now addressed in a separate and new section 25201. Although the citation is new, the law has not changed. 

If you're full of legislative updates, don't worry, we'll have a post next week that will help bring back your appetite! Have a great weekend!