By John Hinman, Barbara Snider, and Gillian Garrett, Hinman & Carmichael LLP
A proposal is in the works to create a massive ABC bureaucracy collecting personal data on every person in California who works in the alcohol sector of the hospitality industry.
The new rules will 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.
These rules, 45 days after being proposed, will be adopted without discussion unless the industry asks: “why the rush”?
The 2017 Responsible Beverage Service Training Act, effective on January 1, 2020, has a laudable purpose: to train servers in the state in how to spot signs of intoxication and prevent drunk driving. Unfortunately, the ABC didn’t get around to releasing the details of how the Act would be implemented until August 9, 2019, six weeks ago during the summer vacation season. This was while the state wine industry was in the middle of preparing for harvest and the hospitality industry is in its high vacation season.
So, on August 9th, 23 dense pages of new regulation (new ABC Rules 160 to 173) were proposed with 45 days to comment. The comment period expires next Tuesday, on September 24, 2019, unless the comment period is extended. The ABC allowed only 30 days for a request for a public hearing and that period has elapsed. We have filed comments as a firm (because we will have to defend our clients from the effect of the new rules) and have requested an extension of the comment period so others may join.
Make your opinion known! Submit your comments to RBSTPComments@abc.ca.gov today to request additional time for comments. Read the following to understand what is at stake and what you can do about it.
The ABC has failed to provide adequate notice and sufficient time to comment on this major new government bureaucracy that will affect the personal privacy rights of tens of thousands of people.
Your comments must be received by the deadline: noon TOMORROW (Sept. 24).
Our concerns, which many of our clients share, include:
The proposal creates a new state bureaucracy (one that will rival the DMV for cost, size and complexity) where every alcohol server in the state must submit personal information to a state data base where the privacy protections are unclear. The alternatives of the certificate information being maintained by either the individual licensee or his/her employer were rejected. Why were the alternatives rejected? The ABC doesn’t say.
The Proposed Rules were released to the public on August 9th with only 45 days to comment. This is barely enough time to read the proposal packed with this much dense information, much less analyze what it does and how it affects the industry.
The course requirements expand five general subjects listed in the legislature’s Act to require actual detailed course content for each subject - - freezing in place service practices recommended by anti-alcohol advocacy groups and making the content the regulation regardless of future developments. This was not the intent of the RBS bill.
No server in California may be employed unless he/she takes the proposed training course and passes the exam with a 70% score. However, the proposed content requirements for the course go far beyond the general knowledge required to observe intoxication and work to avoid drunk driving as contemplated by the Legislature.
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 – including winery, brewery and distillery personnel, event and catering personnel and every bartender, waiter and waitress in the state. How many thousands of people must be terminated from their employment for the business to keep it alcoholic beverage license?
The ID checking will establish as state law procedures for determining when 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.
The new Training program regulation will require servers to now also be responsible for detecting 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.
The new regulations expand what a server must know about the alcoholic beverage laws and alcoholic/drug use beyond what is necessary to provide responsible service and will increase the likelihood of liability on the part of the individual and the establishment. For example, in one part, the content states that “too many calls to police for service may be grounds to suspend or revoke a license”.
Don’t get us wrong. This law is a major positive step forward in encouraging training of alcohol servers in California. But these regulations will affect not only every restaurant, night club, hotel, tourist park, stadium and business in the state that offers hospitality but every winery, brewery and distillery with a tasting room, and every event held in this state in any location that in any way involves the service of alcohol. To adopt such far reaching regulations without discussion and debate is foolhardy.
We recommend that the implementing rules be considerably shortened, the paperwork burden put on the training providers and licensees rather than on the state and the instructional program left to private industry (subject to the reasonable approval of the Department) rather than dictated in detail in inflexible ABC regulations that cannot be easily changed as new information and scientific developments update our understanding of the science of alcohol consumption.
We are looking forward to the Department’s response to our comments and, hopefully, a public hearing that flushes out the issues and create a framework for resolution in the spirit of the original bill.This is simply too important to be pushed through without taking the time to consider all the facets of the proposed new rules.