BY: John Hinman and Barbara Snider
November 1, 2019
This is our third Blog expressing serious concerns with the California ABC’s proposed regulations for the mandatory alcohol beverage server training program and certification.
The proposed regulations will affect EVERY person who serves alcohol throughout the state whether in a restaurant, hotel, bar, tasting room, stadium, concert, wedding, tourist park, or even at a charitable event. The ABC preliminarily estimates these regulations will affect about 1 million workers in California. Our estimate, based on the number of ABC licensed hospitality businesses in the state, is ten times that number.
This Blog updates the status of the adoption of this very important regulation and to describes how you may become involved should the ABC continue to ignore the hospitality industry.
The proposed regulations will be final by January 1, 2020 and, after July 2020, no person may be hired as a waiter/waitress, bartender, tasting room personnel unless that person is CERTIFIED BY THE ABC that he/she has successfully passed the mandatory alcohol beverage server training program and has passed the test given by the ABC with a 70% or higher grade.
AB 1221 was passed in 2017 and directs the ABC to develop a mandatory training program and curriculum for all alcohol beverage servers in the state. The purpose of the Act is laudatory – to prevent serving alcoholic beverages to intoxicated persons, to control how much is served to a person to reduce instances of drunk driving, and to prevent sales of alcoholic beverages to minors.
However, the proposed regulations as currently written go far beyond the simple intent of the law and if passed, will create a massive ABC bureaucracy rivaling that of the Department of Motor Vehicles in cost, size and complexity. The regulations propose to collect personal data on every person in California who works in the alcohol sector of the hospitality industry and require scientific training of every server before being allowed to pour a glass of wine, and mandates hundreds of changes to current industry customer service practices.
As we explained in our prior blogs, we support training alcohol servers and believe the law is a major step forward in encouraging training of alcohol servers in California. Our prior Comments, including those filed on November 1st here, and previously filed with the ABC here and here, outline the serious concerns and pitfalls of the ABC’s proposed regulations we see as inevitable should the regulations as currently drafted become law.
The ABC’s “Public Hearing” on October 11th Regarding the Proposed Regulations
The latest event in this proceeding was that the ABC held a “public hearing” in Sacramento on October 11th. We attended and there was only a handful of other participants also attending (the Family Winemakers of California and the TIPS national alcohol beverage training program representatives were among the few other participants).
The few people attending were advised that the ABC would allow only five minutes per speaker and that the ABC would provide no response or entertain any discussion at the “hearing” – period. No dialogue was permitted and no explanations by the ABC were offered.
On October 18th, the ABC issued its “Response” and “Revisions” to their proposed regulations following the hearing and submission of all written Comments. The “Response” was empty. There were only seven small edits to the entire twenty-three page document! Clearly, the ABC was just going through the motions so it could check off the required procedural boxes and clearly had no intention of listening and responding to any of the Comments. All Comments from all parties were outright rejected. It doesn’t matter how many different “stakeholders” with whom they claimed to have conferred, the bottom line is that the proposed Regulations reach far beyond the scope intended by the 2017 Act.
Examples of the Major Concerns We (and others) Raised
1. Concern: the proposal creates a new state bureaucracy (one that will rival the DMV for cost, size and complexity) where millions of alcohol servers in the state must submit personal information to a state data base where the privacy protections are unclear.
ABC Response: No changes made. The alternatives of the certificate information being maintained by either the individual licensee or his/her employer were rejected. Our proposed regulations do away with the state-mandated data base and instead require the records to be kept by the accredited training agencies, the individual employer and the individual. That was rejected.
2. Concern: Even though the ABC will accredit different companies to provide the training, the ABC still insists the final examination will be conducted only by the ABC and certification will only be issued by the ABC. The ABC’s proposed database will hold all the personal information on each beverage server in the state. We proposed to have the accredited training providers administer the final examination and keep the certification for each server passing the exam.
ABC Response: No changes made. The ABC wants complete control over giving the final examination and the certification for each beverage server; regardless of the cost, the potential confusion and bureaucratic delays.
3. Concern: Employee privacy issues with the private information of every beverage server in the state being held by the ABC on a new database. The regulations require each server to register with the ABC and provide: (1) legal name, (2) birthdate, (3) email, (4) zip code of current address, and (5) personal identification information (driver’s license, social security number, or similar employment identification number).
ABC Response: The ABC slightly revised requiring every server to provide private information by modifying the 5th requirement to providing only the last four digits of the identification information. This minor change does not change that the reality ABC intends to keep private information for every server in the state in its own new database.
4. Concern: The current course requirements expand five general subjects listed in the legislature’s Act to require actual detailed course content for each subject. This was not the intent of the RBS bill. Our proposed regulations simplify the course requirements and return them to what the legislature mandated. For example, the proposed training requirements related to the effects of alcohol and how the body metabolizes alcohol go far beyond what is necessary for servers to know to observe intoxication, makes not only the content of the course difficult, but also makes passing the exam more difficult than it need be, jeopardizing the employment and livelihood of millions of people in this state who serve alcohol.
ABC Response: The ABC basically ignored the petitions to simplify the course curriculum and made only a very minor change that resolves none of the concerns. The curriculum still requires detailed knowledge of how alcohol passes through the body absorption rates, is metabolized by the liver, specific effects on the central nervous system, different symptoms at different Blood Alcohol Concentration levels and the effect of medications on alcohol consumption.
5. Concerns: The section of the curriculum on ID checking will establish as state law procedures for determining when Business & Professions Code Section 25660 (reliance upon bona fide proof of identification) may be relied upon. This affects every clerk, checker and other person in the state who sells alcoholic beverages, not just servers. Now all ID’s must be pulled out of wallets, manually examined for flaws and compared to exemplar data bases. If that is not done, the ID cannot be relied upon. Every person in a group where one person purchases alcohol will also have to be carded; upon pain of the business losing its right to sell alcohol. If this is to be the law in California it deserves to be discussed. We deleted this requirement and left it to current law.
AND: The new Training program regulation will require servers to now also detect legal or illegal drug use. This creates a whole new area of liability for servers and employers not anticipated in the Legislature’s Act; and not part of the authorizing legislation. We modified this requirement to require “reasonable” belief that the patron is incapacitated.
ABC Response: Adds a new provision that states: “None of the curriculum topics described in California Code of Regulations Title 4 §§ 162-166 shall be interpreted as imposing new or changing existing requirements on licensees, but instead only define course content requirements for RBS training courses.” The problem is that the regulations are considered best practices and set the standard so this attempt to mitigate the effect of these regulations will not avoid imposing new standards on licensees as described in the regulations. Rather, it will create the potential for more litigation before the ABC and the courts.
What can we do now?
1. Interested parties have one last chance to submit comments.
Comments are due by noon, November 4, 2019.
Comments may be emailed to the ABC at: RBSTPComments@abc.ca.gov
2. We can contact our legislators regarding the Proposed Regulations going far beyond the scope contemplated by the 2017 Act.
Further, contact the author of AB 1221: Lorena Gonzalez
Capitol Office, Room 2114
P.O. Box 942849, Sacramento, CA 94249-0080; (916) 319-2080
1350 Front Street, Suite 6022, San Diego, CA 92101; (619) 338-8090