BILL NUMBER: AB 605 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 2, 2010
AMENDED IN SENATE JUNE 28, 2010
AMENDED IN SENATE JUNE 7, 2010
INTRODUCED BY Assembly Member Portantino
FEBRUARY 25, 2009
An act to add Sections 23396.6 and 25503.56 to the Business and
Professions Code, relating to alcoholic beverages.
LEGISLATIVE COUNSEL'S DIGEST
AB 605, as amended, Portantino. Alcoholic beverages: instructional
tasting events.
The Alcoholic Beverage Control Act contains various provisions
regulating the application for, the issuance of, the suspension of,
and the conditions imposed upon, alcoholic beverage licenses by the
Department of Alcoholic Beverage Control. Existing law provides for
various annual fees for the issuance of alcoholic beverage licenses
depending upon the type of license issued. The Alcoholic Beverage
Control Act provides that a violation of its provisions is a
misdemeanor, unless otherwise specified.
This bill would authorize the department to issue to the holder of
any off-sale retail license an instructional tasting license that
would allow the licenseholder to allow an authorized licensee, as
defined, or designated representative of that licensee, to conduct,
on a designated portion of, or contiguous to, an existing licensed
premises, an instructional tasting event at which tastes
of alcoholic beverages may be served to consumers, as provided. The
bill would impose an original fee of $300 and an annual renewal fee
of $261 for the license, which would be deposited in the Alcohol
Beverage Control Fund. By expanding Because
the violation of a specified provision of the instructional tasting
license by a licensee or by a person under 21 years of age is
punishable as a misdemeanor, the bill both creates a new crime and
expands the definition of a an existing
crime, this bill would create thereby
creating a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 23396.6 is added to the Business and
Professions Code, to read:
23396.6. (a) Notwithstanding any other provision of this
division, the The department may issue to the
holder of any an off-sale retail
license an instructional tasting license for premises
operated in conjunction with the off-sale licensed premises, except
that an at the premises of the off-sale retail
license. An instructional tasting license shall not be issued
to any of the following:
(1) Off-sale licensees at locations where motor vehicle fuel is
sold, unless the licensee operates a fully enclosed off-sale retail
area encompassing at least 10,000 square feet.
(2) Off-sale licensees at locations with a total of less than
5,000 square feet of interior retail space, unless the
annual calendar quarterly gross sales of
alcoholic beverages at the licensed location comprise at least 75
percent of the total gross sales of all products sold at the licensed
premises. A licenseholder that is issued an instructional
tasting license pursuant to this paragraph shall maintain records
that separately reflect the gross sales of alcoholic beverages and
the gross sales of all other products sold on the licensed premises.
(b) The provisions of Article 1 (commencing with Section
23790) and Article 2 (commencing with Section 23815) of
Chapter 5 , and Section 23958.4 of this
code, and Section 64.2 of Title 4 of the California Code of
Regulations shall not apply to the issuance of an
instructional tasting license , except that the department may
expressly deny the issuance of an instructional tasting
license for any premises located in an area of undue concentration of
licenses as defined in paragraph (1) of subdivision (a) of Section
23958.4 . Notwithstanding paragraph (3) of subdivision (c), the
provisions of Article 2 (commencing with Section 23985) and Article 3
(commencing with Section 24011) of Chapter 6 shall apply to the
issuance of an instructional tasting license.
(c) An Notwithstanding subdivision (a) of
Section 23386 and paragraph (3) of subdivision (c) of Section
25612.5, an instructional tasting license authorizes the
holder licenseholder to allow an
authorized licensee , as defined in Section 25503.56,
or the designated representative of an authorized licensee,
to conduct an instructional tasting event at which tastes
of alcoholic beverages may be served to consumers subject to the
following limitations, including and
the limitations set forth in Section 25503.56:
(1) The licenseholder shall restrict the instructional event to an
area that is in the portion of the licensed premises where alcoholic
beverages are exposed and offered for sale, and any contiguous areas
reasonably related to the merchandising or sale of alcoholic
beverages. The area where the instructional event is conducted shall
be within the interior of the existing licensed premises, but
separated from the remainder of the licensed premises by a wall,
rope, cable, cord, chain, fence, or other permanent or temporary
barrier and shall display signage prohibiting the presence of persons
under 21 years of age from entering the area. The provisions of
Section 25665 shall apply to the separated area where the
instructional event is conducted when the authorized licensee is
exercising tasting privileges set forth in Section 25503.56.
(2) The licenseholder bears responsibility for ensuring that
persons entering the instructional event area are of legal drinking
age. The licenseholder shall not allow any consumer attending the
instructional event to leave the event area with an alcoholic
beverage.
(1) (A) At all times during an instructional tasting event, the
instructional tasting event area shall be separated from the
remainder of the off-sale licensed premises by a wall, rope, cable,
cord, chain, fence, or other permanent or temporary barrier. The
licenseholder shall prominently display signage prohibiting persons
under 21 years of age from entering the instructional tasting event
area.
(B) A licenseholder that permits a person under 21 years of age to
enter and remain in the instructional tasting event area during an
instructional tasting event is guilty of a misdemeanor. Any person
under 21 years of age who enters and remains in the instructional
tasting event area during an instructional tasting event is guilty of
a misdemeanor and shall be punished by a fine of not less than two
hundred dollars ($200), no part of which shall be suspended.
(C) The licenseholder shall not permit any consumer to leave the
instructional tasting area with an open container of alcohol.
(3)
(2) The instructional tasting license shall not
authorize the licenseholder to conduct any on-sale retail sales to
consumers attending the instructional tasting event.
(4) An
instructional event shall only
(3) Unless otherwise restricted, an
instructional tasting event may take place between the hours of
10 a.m. and 9 p.m.
(d) Unless the context otherwise requires, the definitions set
forth in Section 25503.56 govern the construction of this section.
(d)
(e) An applicant for an instructional tasting license
under this section shall, at the time of filing the application for
the license, accompany the application with a fee of three hundred
dollars ($300). The annual renewal fee for a license issued pursuant
to this section shall be two hundred sixty-one dollars ($261) and
shall be subject to subdivision (c)
subdivisions (c) and (d) of Section 23320. Fees collected
pursuant to this section shall be deposited in the Alcohol Beverage
Control Fund.
SEC. 2. Section 25503.56 is added to the Business and Professions
Code, to read:
25503.56. (a) Notwithstanding any other provision of
this division, an An authorized licensee, or a
designated representative of an authorized licensee acting as an
agent of the authorized licensee, may conduct, on the area specified
by paragraph (1) of subdivision (c) of Section 23396.6, an
instructional tasting event for consumers on the subject
of wine, beer, or distilled spirits, including, but not limited to,
the history, nature, values, and characteristics of wine, beer, or
distilled spirits, and the methods of presenting and serving wine,
beer, or distilled spirits.
(1) (A) Except as provided in subparagraph (B), and
notwithstanding any other provision of this division, the
instructional tasting event may include the serving of
not more than three tastings in one day
alcoholic beverages to an attendee of legal drinking age.
A single tasting of distilled spirits shall not exceed
one-fourth of one ounce, a single tasting of wine shall not exceed
one ounce, and a single tasting of beer shall not exceed three
ounces. An instructional tasting event on the subject
of wine or distilled spirits shall be limited to not more than three
tastings per person per day. A singl e tasting of
distilled spirits shall not exceed one-fourth of one ounce and a
single tasting of wine shall not exceed one ounce. An instructional
tasting event on the subject of beer shall be limited to not more
than the tasting of eight ounces of beer per person per day.
The wine, beer, or distilled spirits tasted shall be limited to the
products that are authorized to be sold by the authorized licensee
and the licenseholder under its off-sale license.
(B) Except for a beer and wine wholesaler who is also a beer
manufacturer, an out-of-state beer manufacturer's certificate holder,
or who holds more than six distilled spirits wholesaler's licenses,
a beer and wine wholesaler may conduct an instructional event, but
may not serve tastes of beer.
(B) A beer and wine wholesaler may conduct an instructional
tasting event but shall not serve tastes of beer unless the beer and
wine wholesaler also holds a beer manufacturer's license, an
out-of-state beer manufacturer's certificate, or more than six
distilled spirits wholesaler's licenses.
(C) No charge of any sort shall be made for the tastings.
The Except for the purposes of Section 23985, the
serving of tastings shall not be deemed a sale of products
pursuant to this division.
(D) A person under 21 years of age shall not serve wine, beer, or
distilled spirits at the instructional tasting event.
(E) All tastes shall be served by an employee of the authorized
licensee, the designated representative of the authorized licensee,
or by an employee of the designated representative of the authorized
licensee.
(F) An authorized licensee, or a designated representative of an
authorized licensee, shall either supply the wine or distilled
spirits to be tasted during the instructional tasting
event or purchase the wine or distilled spirits from the
licenseholder at the original invoiced cost. An authorized licensee,
or a designated representative of an authorized licensee, shall
purchase beer to be tasted during the instructional tasting
event from the licenseholder at the original invoiced cost.
(G) Any unused wine, beer, or distilled spirits remaining from the
tasting shall be removed from the off-sale licensed premises by the
authorized licensee or its designated representative.
(2) If the instructional tasting event is conducted by
a designated representative of an authorized licensee, the designated
representative shall not be owned, controlled, or employed directly
or indirectly by the licenseholder on whose premises the
instructional tasting event is held.
(3) An instructional tasting event shall be limited to a
single type of alcoholic beverage and tastes, if furnished,
shall only be of that type of alcoholic beverage.
alcoholic beverage. For purposes of this paragraph, "type of
alcoholic beverage" means distilled spirits, wine, or beer.
(b) For purposes of this section:
(1) "Authorized licensee" means a winegrower, California
winegrower's agent, beer and wine importer, beer
and wine general importer importer general
, beer and wine wholesaler, wine broker,
wine rectifier, distilled spirits manufacturer, distilled spirits
manufacturer's agent, distilled spirits general importer
importer general , distilled spirits rectifier,
distilled spirits general rectifier, rectifier, out-of-state
distilled spirits shipper's certificate holder, distilled spirits
wholesaler, brandy manufacturer, brandy importer, California brandy
wholesaler, beer manufacturer, or an out-of-state beer manufacturer
certificate holder. "Authorized licensee" shall not include an entity
that solely holds a combination of a beer and wine wholesale license
and an off-sale beer and wine retail license pursuant to
Section 23817.8 or holds those licences
solely in combination with any license not listed in this paragraph
.
(2) "Licenseholder" means an off-sale retail licensee issued an
instructional tasting license pursuant to Section 23396.6.
(3) "Location" means the total contiguous area encompassed by the
off-sale and on-sale licenses.
(c) Notwithstanding subdivision (e)
subparagraph (E) of paragraph (1) of subdivision (a) , a
licenseholder may conduct an instructional tasting event
that includes the serving of tastings only when an authorized
licensee or its designated representative are unable to conduct an
instructional event tasting event previously
advertised pursuant to this section and scheduled by the
authorized licensee or its designated representative, provided the
licenseholder supplies the wine, beer, or distilled spirits used in
the instructional tasting event and provides or pays for a
person to serve the wine, beer, or distilled spirits.
Instructional tasting events conducted by a licenseholder pursuant to
this subdivision are subject to the provisions of this section and
Section 23396.6.
(d) No more than one authorized licensee, or its designated
representative, may conduct an instructional tasting event
that includes the serving of tastes of wine, beer, or distilled
spirits at any one individual licensed premises of a licenseholder
per day.
(e) A licenseholder that also holds an on-sale beer and wine
license, an on-sale beer and wine eating place license, or an on-sale
general license shall not allow an authorized licensee, or its
designated representative, to conduct an instructional event
at the same time and location as an instructional
tasting event on the same day and at the same location as
any instructional tasting event held pursuant to
Section 23386, 25503.5, or 25503.55. subdivision (b)
of Section 23386, Section 25503.4, subdivision (c) of Section
25503.5, or Section 25503.55.
(f) A licenseholder shall not condition the allowance of an
instructional tasting event upon the use of a particular
designated representative of an authorized licensee.
(g) (1) Notwithstanding any other provision of this
division, and in In addition to any
point of sale advertising or other advertising items allowed under
this division or under rules or regulations promulgated by
of the department, an authorized licensee or its
designated representative, in his or her absolute discretion and
with permission of the licenseholder upon whose premises the
instructional tasting event will be held, may list in an
advertisement to the general public the name and address of the
licenseholder, the names of the alcoholic beverages being featured at
the instructional tasting event, and the time, date, and
location of, and other information about, the instructional
tasting event, provided that both of the following apply:
(A) The advertisement does not contain the retail price of the
alcoholic beverages.
(B) The listing of the licenseholder's name and address is the
only reference to the licenseholder in the advertisement.
(2) Pictures or illustrations of the licenseholder's licensed
premises and laudatory references to the licenseholder in these
advertisements are not authorized. Nothing in this section shall
authorize an authorized licensee or its designated representative to
share in the costs, if any, of the licenseholder.
(h) A licenseholder may advertise an instructional tasting
event to the general public. The costs of this advertising
shall be borne solely by the licenseholder. Advertising permitted by
this subdivision includes flyers, newspaper ads, Internet
communications, and interior signage.
(i) Except as otherwise provided in this division or by
any rules or regulations promulgated by
of the department, no premium, gift, free goods, or other
thing of value shall be given away by an authorized licensee or its
designated representative in connection with an instructional
tasting event that includes tastings of an alcoholic beverage.
(j) Notwithstanding
any other provision of this division or any rules or regulations
promulgated by the department, the (j)
The licenseholder or the authorized licensee or its
designated representative are authorized to perform set up and break
down of the instructional tasting event area. The
authorized licensee or its designated representative may provide,
free of charge to the licenseholder, the equipment, materials, and
utensils that may be required during the instructional event
as may be required for use in connection with the
instructional tasting event .
(k) (1) A licenseholder shall not require, or enter into a
collusive scheme with an authorized licensee or its designated
representative to conduct one or more instructional tasting
events as a condition of the licenseholder carrying or
continuing to carry a brand or brands of the authorized licensee or
as a condition for display or other merchandising plan which is based
on an agreement to provide shelf space. An authorized licensee or
its designated representative shall not require any preferential
treatment or benefit from, or enter into a collusive scheme with, a
licenseholder as a condition of conducting one or more instructional
tasting events, require a licenseholder to carry or
continue to carry a brand or brands of the authorized licensee as a
condition of conducting one or more instructional tasting
events, or condition display or other merchandising plans that are
based on agreements for the provision of shelf space on the
conducting of one or more instructional tasting events.
Any agreement, whether written or oral, entered into by and between a
licenseholder and an authorized licensee or its designated
representative that precludes the conducting of instructional
tasting events on the premises of the licenseholder by any
other authorized licensee is prohibited. A licenseholder or
authorized licensee, or its designated representative, shall not use
an instructional tasting event to circumvent any other requirements
of this division.
(2) In addition to any other remedies available under this
division, upon a finding by the department of a failure to comply
with this subdivision, the department shall suspend the instructional
tasting license of the licenseholder and the privilege of the
authorized licensee to conduct instructional events for not less than
six months but for no more than one year.
(l) The Legislature finds that it is necessary and proper to
require a separation between manufacturing interests, wholesale
interests, and retail interests in the production and distribution of
alcoholic beverages in order to prevent suppliers from dominating
local markets through vertical integration and to prevent excessive
sales of alcoholic beverages produced by overly aggressive marketing
techniques. The Legislature further finds that the exception
established by this section to the general prohibition against tied
interests must be limited to its express terms so as not to undermine
the general prohibition, and intends that this section be construed
accordingly.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.