Wednesday, September 25, 2019

California ABC doesn't consider restaurants or workers "stakeholders" in new plan to regulate them

Yesterday the California Department of Alcoholic Beverage Control did a good thing by extending comment period to Oct. 11 on controversial new regulations that would require almost every restaurant server in the state to get a license and appear in a massive database.

I wrote a very hasty blog post, but I cannot claim any credit for the extended comment period. Beverage attorney John Hinman alerted me and many others to the problem with this fine blog post.

Now that I have a little time, I want to hone in on a problem with ABC's approach in writing these proposed regulations.

First, a quick summary. ABC was charged by the legislature with creating a Responsible Beverage Service training program. The goal is to recognize intoxicated patrons, and not serve them, thus reducing drunk driving.

However, the ABC consulted almost exclusively with law enforcement officials and neo-Prohibitionist groups before writing proposed regulations that, among other things:
* Require restaurant servers to pay a third-party group for certification
* Require servers to pass a test that includes unrelated issues like identifying illegal drugs
* Set up a statewide database for registered restaurant servers, which should cause privacy concerns
* Does not include provisos for servers who do not speak English or Spanish as a first language

Hinman complains that the comment period was fast and was set to end before most people even noticed that it started. Wine Industry Insight publisher Lewis Perdue also wrote Monday that the ABC was trying to sneak through new regulations without the public noticing. It certainly felt that way to me: the first I learned about this massive expansion of state bureaucracy and violation of restaurant servers' privacy was Monday afternoon, and the deadline for comment was Tuesday.

But maybe that's my fault. I'm just Alcohol Media. The ABC could have sent alcohol media -- also including Perdue -- a press release, but nobody likes the media these days. Apparently we should have hung out on the ABC website looking for news.

What's troubling is that apparently the ABC did NOT reach out to the main groups that will be affected by these new regulations: restaurant owners, restaurant managers, and restaurant employees. I will show this below.

This is very disturbing. Servers could lose their jobs because of these regulations. Restaurants could be fined or face other sanctions. And they weren't even asked how they could best comply with the law, AB 1221, passed by the state legislature.

Here is some edited text of ABC's very defensive press release on Tuesday: the FIRST press release I have received about these proposed regulations:

The Department of Alcoholic Beverage Control has received multiple requests in the past 24 hours for an extension of the public written comment period noticed on August 9, 2019. Unfortunately, these requests appear to be largely based upon erroneous information, implying that the Department has attempted to rush the regulatory package through the process with no public input.

Throughout this regulatory process, and prior to the promulgation of the proposed regulations, the Department reached out to multiple stakeholders and stakeholder organizations ... The Department widely publicized its proposed regulatory action to ensure as many stakeholders were involved in the creation of the RBSTPA regulations as possible.

The Department held over two dozen stakeholder meetings in multiple locations throughout the state in September 2018, February 2019, and June 2019 ... Each of these was individually noticed through the Department’s public mailing list and posted on social media platforms Twitter and Facebook. The Department has shared its intent and policy decisions repeatedly with the public during its stakeholder meetings to ensure the burden upon training providers, alcohol servers, and ABC on-premise licensees is minimized while still meeting the intent and requirements instituted by the Legislature under the RBSTPA. Some of the commenters who claim the Department is proceeding on this regulatory action without enough public comment even attended the Department’s previous stakeholder meetings and provided input. (Italics are mine. As far as I know, only Hinman, Perdue and I have written about this, and I didn't go to any meetings.)

... The Department has a statutory obligation ... to “develop, implement, and administer a curriculum for an RBS training program that will make RBS training courses available,” on or before January 1, 2020.

... The written comment period is hereby extended and now closes at 5:00pm on October 11, 2019. ABC will consider only comments received at ABC Headquarters by that time. Submit comments to:

Responsible Beverage Service Training Program
Department of Alcoholic Beverage Control
3927 Lennane Drive, Suite 100
Sacramento, CA 95834

Comments may also be submitted by email to

The Department also received an untimely request for a public hearing on September 20, 2019. The Department’s Notice published on August 9, 2019, established that any request for public hearing on this regulatory action would need to be submitted prior to 12:00pm on September 9, 2019. The Department considered its previous extensive stakeholder meetings both specifically regarding the regulatory package and in general Departmental stakeholder meetings as enough unless a request was made.

Notwithstanding this, the Department recognizes its authority to set a public hearing even based on an untimely request. Therefore, the Department hereby posts and notifies its stakeholders of a public hearing to be held at:

The Department of Alcoholic Beverage Control
3927 Lennane Drive
ABC Large Conference Room
Sacramento, CA 95834
October 11, 2019
10:00am – 4:00pm

The Department is committed to continue to work with its stakeholders to ensure the implementation and rollout of the RBSTPA regulatory action is both seamless and as easy as possible for all parties involved.

Attached is a list of the meetings that have been held to learn about the RBS Training Program."

And here is that list.

ABC held 26 meetings. You see what's missing? Restaurant organizations. And anyone to represent workers.

26 meetings may sound like a lot. But look at who they met with: Law Enforcement. Local Government. Advocacy, Policy & Health (translation: these are anti-alcohol groups). RBS Providers -- those are the companies that are going to profit from this new exam that servers are going to be forced to take.

No wonder the proposed test curriculum is so broad and so unrelated to the main objective of identifying intoxicated patrons. These RBS Providers -- private companies -- will profit more if people fail, because they get to charge them to take the test again.

I see 4 meetings with alcohol retail stores: one in Vacaville, with 4 attendees. ANOTHER in Vacaville, with 14 attendees. One in Ontario, with 34 attendees. And one in Cerritos, with 32 attendees. Therefore, fewer than 100 people who might be most affected attended meetings about setting new policy for 1 million Californians.

Why do the ABC guys love Vacaville? NINE of the 26 meetings were held in Vacaville. There were no meetings in San Francisco, Oakland, Napa or Santa Rosa, but NINE meetings were held in Vacaville. There was ONE meeting in Los Angeles -- and it was with the neo-Prohibitionist group CAPA.

Hinman and Perdue were right. I didn't say it yesterday, but I will now. ABC tried to sneak these regulations through without asking the REAL stakeholders for their input.

An estimated 1 million Californians -- ABC's estimate -- will wake up Jan. 1 and they'll need a new license to continue doing their jobs. And they'll have to pass a written test to get it. AND they'll have to pay a group of startup RBS Providers whatever fee those providers decide to charge to get it.

After finishing this blog post, I am writing my representatives in the California Assembly and the California Senate. The ABC wasted all of the runup time to this life-changing set of regulations chatting with its friends in law enforcement, its sycophants in the neo-Prohibition community, and who knows who on its nine visits to Vacaville (I'd like to see their expense reports.)

ABC did not devote enough time to studying what restaurateurs and restaurant workers need to comply with AB 1221, and thus ABC is not ready to create regulations that will be fair to all concerned.

Therefore, the deadline for implementation should be pushed back. That's above the head of the ABC. So I'll send emails to my representatives in the state legislature.

Hold my beer.

Follow me on Twitter: @wblakegray and Instagram @wblakegray and like The Gray Report on Facebook.


Brian Miller said...

Rock on, Blake.

Brian Miller said...

At a minimum, the fee to get certified should be capped, and all questions should be limited to those relating to alcohol intoxication.

Rob McMillan said...

Thanks for the post yesterday and followup Blake. I was unaware of this bill and immediately emailed my objections - taking about an hour od my time-impacted day to read the legislation and make specific comments about the goals of the training. I hope others understand the importance of filing their objections and take the time to do so.

It's one more indication of the force of power the anti-alcohol movement has established. And we as an industry aren't even in the starting blocks to start the race. We haven't even signed up for the race for mindshare with consumers and constituents.

Mitch Mackenzie said...

It's pretty obvious to me what is going on. They didn't include the ones it would affect because they didn't want to make it easy to comply. If they make it more complicated they can levee more fines when someone forgets rule 27b subsection A3. Follow the money.