By John Hinman and Barbara Snider
On June 14, 2022, the San Francisco Board of Supervisors unanimously adopted a Resolution drafted by Supervisors Connie Chan, Aaron Peskin, Gordon Mar and Shamann Walton to request Governor Newsom delay implementation of the ABC’s mandatory Responsible Beverage Server Training Program (“RBS”) for one year until July 1, 2023.
This Resolution is being conveyed to other city councils and municipal supervisory boards in California to build momentum for a delay in implementation of the RBS program until the concerns articulated by the Board of Supervisors are addressed, either through rule-making or new legislation specifically addressing the discriminatory nature of the current program, as well as the privacy concerns that arise from the ABC creating and maintaining a data base of millions of people identified as required to be certified because of their involvement with some phase of the licensed beverage industry.
Supervisor Chan issued a Press Release regarding the passage of the Resolution and its importance. A copy of Supervisor Chan’s Press Release can be seen here.
The Responsible Beverage Server Training Program is an important and significant change in the law. We have explained in detail the requirements for certification under the ABC’s RBS regulations in prior Blogs. See: The RBS Program Facts and Requirements and RBS Addendum - The Latest from the ABC.
Briefly, every person involved in serving alcoholic beverages in California (including managers, servers, waiters, waitresses, bus persons that carry drinks to customers and doormen or security guards that check ID’s at venues and events) must pass the ABC’s mandatory 3-4 hour class and exam to be certified (multiple attempts at the exam may be required, and special tests are required for managers), and then be processed through the ABC’s data base and certified as qualified to be involved with alcoholic beverage sales and service to the public at any level.
According to the law, after July 1, 2022, no one may serve alcohol (restaurants, bars, hotels, winery tasting rooms, catering, etc.) without being certified in the Responsible Beverage Server program. The current deadline to be certified is July 1, 2022 with enforcement beginning August 31, 2022.
Employers who do not assure all employees involved with serving alcohol are certified are subject to fines and possible loss of their liquor license. July 1st is days away and, so far, the publicity from the ABC has been minimal. The ABC appears to recognize the difficulty because the RBS “portal” on the ABC home page now states that enforcement starts on August 31, 2022, with no mention of the July 1st effective date.
However, leaving implementation of such a far-reaching program to the discretion of the ABC creates a situation where the program requirements can be used as a club by local ABC offices or police departments because failure to comply is a criminal violation by the licensee involved (all violations of the ABC Act are statutory misdemeanors) enforceable by any law enforcement officer.
Two Primary Reasons for the Request to Delay Implementation were put forth by the SF Board of Supervisors
First, of the over 1 million servers in the state (and the number is far higher given the broad definition of server), to date, only about 35,000 servers have been certified and the remainder likely cannot be certified in time, and
Second, the mandatory ABC approved classes are only offered in English and Spanish and the many minorities speaking Chinese, Filipino (Tagalog), Vietnamese have had little or no opportunity to take the course or exam to be certified because it is not (regardless of promises) available in their languages.
The Resolution notes that while ABC has stated it will make these other languages available by July 1st, the ABC has not yet done so. Without doubt, this delay in offering courses in other languages will (and does) disproportionately affect non-native and limited English-speaking servers and immigrant-owned small businesses, plus the vast number of servers who still must take the course and pass the exam in such a short period.
The ABC itself appears to recognize the size of the challenge and the technical difficulties involved in compliance. Going to the RBS Portal on the ABC website discloses this message (as of the publication of this blog post):
Really? Does anyone seriously think that this is the end of “connectivity” issues?
There is significant public support for the Supervisors Resolution from San Francisco based industry organizations such as the California Music and Culture Association (“CMAC” - a San Francisco based non-profit dedicated to the advancement of responsible entertainment), the Golden Gate Restaurant Association, the San Francisco Entertainment Commission, many small businesses throughout San Francisco including restaurants in the Chinatown district, and multiple San Francisco businesses affected.
The CMAC statement supporting the Resolution noted that the ABC’s short time frame for minorities speaking other languages to take the course and exam in their language discriminates against these minority businesses because “[t]his perpetuates discriminatory stereotypes and fails to recognize the cultural differences between thousands of entertainment and dining venues.” This will not be corrected by August 31, 2022.
A program this vast, with the serious criminal and civil consequences this program has, should not go forward until the legislature has had the opportunity to review the ABC’s creation of this program (the requirements were created by the ABC under very general enabling authority calling for training) and adopt specific criteria with the input of the hundred and thousands of businesses, and millions of servers, affected by the program.
We encourage you to support the Resolution of the San Francisco Board of Supervisors by emailing Governor Newsom at his office website: https://govapps.gov.ca.gov/gov40mail/index.php
This blog is dedicated to occasional (and hopefully interesting) reports of state and national alcoholic beverage regulatory developments that we encounter in our practice. Booze Rules (and any comments below) are intended for informational use only and are not to be construed as legal advice. If you need legal advice please consult with your counsel.