BY: John Hinman, Barbara Snider and Gillian Garrett, Hinman & Carmichael LLP
To recap developments: On August 9th, regulations implementing the 2017 Responsible Beverage Service Training Act (effective January 20, 2020) were proposed by the ABC with a deadline of September 24, 2019 for comment. Our firm, along with many industry trade associations and individuals who had not been aware of the proposals, submitted comments barely in time to be considered.
At that point the time for a public hearing had expired. However, the ABC, recognizing the importance of licensee and public input, extended the comment period until Friday October 11, 2019, and scheduled a public hearing on the new regulations for that date in Sacramento:
The Department of Alcoholic Beverage Control
3927 Lennane Drive
ABC Large Conference Room
Sacramento, CA 95834
October 11, 2019
10:00am – 4:00pm
We filed comments as a firm (because we will have to defend our clients from the effect of the new rules) and followed up with proposed amended regulations. Our original comment letter can be found here and our follow up comment letter (with our simplified version of the proposed regulation), filed today for tomorrow’s hearing, can be found here.
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. 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.
The current 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. 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 – 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 its 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. We deleted this requirement and left it to current law.
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.
CONCLUSION
Don’t get us wrong. As we said in the last post on this subject, this law is a major positive step forward in encouraging training of alcohol servers in California. 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 involves the service of alcohol.
However, the implementing rules must 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 unnecessarily detailed and 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 public hearing on Friday, and a robust discussion that flushes out the issues and creates a framework for resolution in the spirit of the original bill. These regulations are simply too important to be pushed through without taking the time to carefully consider all the facets of the proposed new standards of conduct and the effect of the new regulations on the millions of servers in this state.