News

2009 California ABC Legislative Update

There were several legislative changes this year to the California ABC Act. These include changes to the statutes clarifying the legality of the “non-tasting” sale of wine by the glass or bottle for consumption at the winery, whether off-site tasting rooms shared the same privileges as those on winery premises, and whether consumers can remove a partially consumed bottle of wine from a winery tasting room. The changes and the particular bills and statutes involved and their histories are discussed in detail below.

Section 23358

Assembly Bill; AB 2004, effective January 1, 2009 amended Section 23358 of the Business and Professions Code to unambiguously allow winegrowers to sell wine by the glass or bottle to consumers for consumption on the manufacturing (master Type 02) premises.

History regarding Section 23358

  • Prior to 2004, ambiguities in the law led to a difference of interpretation within ABC on the “non-tasting” sale of glasses or bottles of wine for consumption on the winery premises.
  • This lead to Assembly Bill AB 2004 originally referred to as the “picnic bill,” to establish a “picnic permit” for wineries to allow for such on-site consumption.
  • The “picnic bill” allowed a winery to have an area at its facility licensed for on-site consumption. This was easily addressed by the premises expansion process and was expanded to all areas on the winery premises where wine is consumed.
  • The “picnic bill” had a scheduled expiration, but ABC was convinced to further clarify in 23358 that the “non-tasting” sale of wine by the glass or bottle on a winery’s licensed premises was acceptable in general, and did not apply only when the winery operates a restaurant or hosts a private event.
  • Accordingly, Section 23358 was amended to clarify this issue thereby removing the possibility of there being different interpretations as to when wine could be sold for consumption of the winery premises.

Section 23390

Assembly Bill; AB 2004, effective January 1, 2009 also amended Section 23390 of the Business and Professions Code and specifically prohibited the “non-tasting” sale of wine by the glass or bottle to consumers for consumption on a duplicate winegrower’s premises.

However, during 2009 Section 23390 has once again been amended in Assembly Bill; AB 1470, effective January 1, 2010. Under AB 1470 a duplicate winegrower’s premises may exercise all of the privileges of the manufacturing location (including the sale of wine by the glass or bottle to consumers for consumption on a duplicate winegrower’s premises) other than the production or manufacturing of wine and the ability for the duplicate premises to operate as a bona fide eating place.

History regarding Section 23390

  • Due to ambiguities in the law, there existed a difference of interpretation within ABC on the “non-tasting” sale of glasses or bottles of wine for on site consumption on an offsite winery tasting room premises operating under a duplicate 02 license.
  • In order to remove any ambiguity, Assembly Bill AB 2004 was passed thereby clearly eliminating the “non-tasting” sale to consumers of glasses or bottles of wine for consumption at the off-site winery tasting room. This became effective on January 1, 2009. However, this new law was contrary to the practices of many wineries which had historically allowed such “non-tasting” sales and consumption at their off-site facilities.
  • In order to remedy the conflict this new law created with industry practice, the offices of Dickenson, Peatman & Fogarty led an industry effort to further amend the law and as a result AB 1470 was passed in 2009.
  • The current restriction on “non-tasting” sales at premises operating under a duplicate 02 license remains in effect until December 31, 2009. On January 1, 2010, AB 1470 will then take effect amending 23390 to allow the “non-tasting” sale of wine by the glass or bottle to consumers for consumption on a duplicate winegrower’s premises, as has been the industry practice.

Section 23396.5

Assembly Bill; AB 2004, effective January 1, 2009 amended Section 23396.5 of the Business and Professions Code to allow a consumer to remove a partially-consumed bottle of wine from a winegrower’s premises.

History regarding Section 23396.5

  • Due to ambiguities in the law, there existed a difference of interpretation within ABC concerning from what type of licensed on-premise facilities a consumer could remove of a partially-consumed bottle of wine, and whether such facilities included winegrower’s facilities and tasting rooms, or only eating places.
  • This lead to Assembly Bill AB2004 clarifying a winery’s ability to allow consumers to remove a partially-consumed bottle of wine from the winery.
  • The bill AB2004 was signed into law and Section 23396.5 was amended and became effective January 1, 2009 and currently remains in effect allowing a consumer to remove a partially-consumed bottle of wine from a winegrower’s premises.

Mike Mann is a consultant on California alcohol beverage law compliance and licensing in the Santa Rosa office of Dickenson, Peatman & Fogarty. Mike was employed by the California Department of Alcoholic Beverage Control for over two decades. He retired as the District Administrator in charge of the Department’s Santa Rosa Office. In that capacity, Mike was responsible for five Northern California Counties, which included Napa, Sonoma, Lake, Marin and Mendocino Counties. Mike can be reached at 707-524-7000 or by email at [email protected].