Puff Yourself to Death: Are Electronic Cigarettes and Other Nicotine Vaporizers Legal in Tennessee Restaurants and Bars?

By - June 30, 2014 | Alcoholic Beverage Law | Email Will Cheek

E-cigarettes have ignited a controversy among state and federal regulators. Willie Nelson sums it up:

Smoke smoke smoke that cigarette
Puff puff puff
And if you smoke yourself to death
Tell St Peter at the Golden Gate
That you hate to make him wait
But you just gotta have another cigarette

We did a little research on the issue and, as of now, it is legal to have an e-smoke at a bar or restaurant in Tennessee.  A call to the local health department confirms that e-smoking is legit.  The U.S. Food & Drug Administration is looking into rules for vaping, but as of now, e-cigarettes are legal.

A business can voluntarily ban vaping.  There is no law that prevents restaurants and bars from prohibiting e-smoking.  For example, Vanderbilt recently added e-cigarettes to its smoking policy.

The Federal Airline Administration has banned e-cigarettes, not because of health concerns, but because there is insufficient information about possible interference with aircraft navigation.  E-cigarettes are electronic devices.

Interestingly, Sumner and Rutherford county jails have approved of e-cigarettes, presumably because of the revenue stream.

Stay tuned for more on this emerging legal issue.  Thanks to intern and recent Vanderbilt grad Jaziree Smith for her research on vaping.

ABC Issues New Rules for Retail Liquor Stores within 500 Feet of Food Stores

By - June 27, 2014 | Alcoholic Beverage Law | Email Will Cheek

The Tennessee Alcoholic Beverage Commission has issued new rules for the controversial 500 foot notice.  Under prior rules, a liquor store had to give written blanket approval to any food store located within 500 feet of a food store, allowing the grocery store to start selling wine on July 1, 2016.  The rule included other methods of notice – but following the rule was the prescribed way to authorize a retail liquor store to sell beer, corkscrews and other items allowed under WIGS beginning July 1, 2014.

We applauded the ABC Director for implementing clear rules, but some industry members have been lobbying for a different rule.  The Director’s detractors appear to have emerged victorious in this round.  The following was posted this afternoon on the ABC website under news:

“For Information Purposes Only

Today, Friday, June 27, 2014, Commissioner and staff members of the Tennessee Alcoholic Beverage Commission meet with sponsors and members of the Tennessee General Assembly, their staff and representatives of Tennessee’s retail liquor stores and Tennessee’s food stores in order to discern the legislative intent of PC 554, 2014, the WIGS legislation. After considerable discussion, it was determined and concluded that:

 TCA 57-3-404(e)(2) and TCA 57-3-404(e)(4), as amended in Section 10 of PC 554, 2014, effective July 1, 2014, authorizes an off-premises retailer, licensed pursuant to TCA 57-3-204, (retailer), to begin selling at retail, on Tuesday, July 1, 2014, beer and other malt beverages as well as merchandise and supplies related to special events or parties (as enumerated but not limited to the items noted in the amended TCA 57-3-404(e)(4)), without a requirement of the retailer granting permission to food stores located within 500 feet of the retailer to sell wine.
Please note that the amended TCA 57-3-404(e)(2) and TCA 57-3-404(e)(4) granting authorizations as noted above in number 1, DO NOT remove prohibitions in any lease an off-premises retailer, licensed pursuant to TCA 57-3-204, may have with their landlord. Generally, restrictive covenants between contracting tenants and landlords are valid and a breach of such restrictive covenant may prompt a civil action by the offended party.

It was further determined that before any off-premises retailer, licensed pursuant to TCA 57-3-204, (retailer), may begin deliveries of alcoholic beverages that such retailers must comply with the requirements regarding transportation of alcoholic beverages within the State of Tennessee as enumerated at TCA 57-3-401 et seq.”

Complicating all of this is the impending July 4 holiday, which brings a big boost to liquor and beer sales. Punk masters X penned a classic Fourth of July song:

On the stairs I smoke a
cigarette alone
Mexican kids are shootin’
fireworks below
Hey baby, it’s the Fourth of July
Hey baby, Baby take a walk outside

We are still digesting the comments concerning delivery.  Notably absent is any guidance for whether an order can be placed over the phone or internet.  No one goes to Dominos to pay for a pizza and then goes home to wait for the pizza guy to deliver the pizza.  But that was the original rule articulated by the ABC – sales have to be completed at the store.

More to follow.

Homestilling: There is no law preventing me from distilling spirits at home, is there?

By - June 24, 2014 | Alcoholic Beverage Law | Email Will Cheek

We hear the question all the time.

I can distill spirits at home for my own use?  It’s like home-brewing beer and winemaking, right?

The answer: hell no.

Distilling whiskey, brandy, vodka, gin or other spirits is a violation of federal and state law.  Making spirits for personal use at home – commonly known as homestilling – is a serious crime.  Just having an unregistered still is a federal crime.

Drinking King George Jones gets it in his 1959 hit “White Lightning:”

Well the “G” men, “T” men, revenuers, too
Searchin’ for the place where he made his brew
They were looking, tryin to book him,
But my pappy kept a-cookin’
Whshhhoooh . . . white lightnin’

 

Many folks interested in opening a distillery ask if they can run test batches to perfect their recipes and hone distilling skills. The answer: “Are you kidding?”

Not only is distilling without appropriate federal and state licenses a crime, conviction of a crime involving illegal manufacturing of alcohol disqualifies you from being an owner of a distillery.

Think about it practically.  If it were legal for a distillery to run test batches, every illegal moonshiner would say “just testing” when caught by federal or state authorities.

We know that Oklahoma, Tennessee and Virginia have been targeting high volume moonshine operations over the last couple of years. Illegal moonshiners are typically avoiding significant federal taxes and mark ups from distribution through wholesalers and retail liquor stores. Although we hear that a few illegal moonshine operations focus on quality, licensing authorities have found use of risky equipment and poor sanitation, which creates an additional health-safety risk.

A Conversation About Cider at the National Conference of State Liquor Administrators NCSLA

By - June 17, 2014 | Alcoholic Beverage Law | Email Will Cheek

The raw unedited results of our 50 state cider survey are here: cider survey says.

Join us for the festivities at the 2014 Annual Conference of the National Conference of State Liquor Administrators in San Antonio Texas on June 18, 2014.  More at NCSLA.

Who Has to Card Everyone for Liquor in Tennessee?

By - June 13, 2014 | Alcoholic Beverage Law | Email Will Cheek

If we had a Casey Kasem Top 40 Chart for the most popular Tennessee liquor question, this query has been sitting at number one for weeks.  Do I have to card everyone for liquor sales?

Known in the industry as universal carding, the well-intentioned law is criticized for taking the focus off preventing sales to young-appearing purchasers.  Universal carding has also become fertile ground for fining licensees for failing to card.

The Police’s 1980 hit is appropriate for inappropriate reasons:

Inside her there’s longing
This girl’s an open page
Book marking – she’s so close now
This girl is half his age
Don’t stand, don’t stand so
Don’t stand so close to me
 

Several years ago, Tennessee required universal carding for off-premises sales of beer.  Universal carding was a concession to prevent local beer boards from suspending beer permits for C-Stores and groceries that enrolled in a training program.

Universal carding was part of the many trade-offs in the 2014 wine in grocery store law, which we affectionately call WIGS.  Starting July 1, 2014, all retail liquor stores in Tennessee must card everyone.  Grocery stores will have to card everyone starting July 1, 2016, when wine becomes legal in groceries.

Selling to a minor has been a Class A misdemeanor for as long as we can recall.  WIGS imposes the same criminal citation for failure to card – even failing to card a 75 year little old lady.  A criminal conviction for the sale of alcohol disqualifies the person from being an employee or owner of a license holder.

Who has to card everyone?

  • Beer – off premises (C stores, groceries, pharmacies) – Yes, card everyone
  • Beer – on premises (beer bars) – No, carding is discretionary
  • Wine and spirits off premises (liquor stores) – Yes, card everyone beginning July 1, 2014
  • Wine stores (groceries) – Yes, card everyone beginning July 1, 2016
  • Wine and spirits on premises (restaurants, bars) – No, carding is discretionary

Failure to card could be a huge source of revenue for citations by the Tennessee ABC.  Watch out.

Tennessee Alcoholic Beverage Commission Offices on the Move in Memphis

By - June 06, 2014 | Alcoholic Beverage Law | Email Will Cheek

We hear that the Home of the Blues, Memphis Tennessee, is welcoming new offices for the Tennessee ABC.  The move is expected to be Wednesday June 11, 2014.

Moving a paper-intensive office like the ABC has to be quite a challenge.  We understand that applications and other liquor files are already packed away for the move.  Delays are to be expected.

Brings to mind Aretha Franklin’s 1985 chart topper “Freeway of Love”

We goin’ ridin’ on the freeway of love
Wind’s against our back
We goin’ ridin’ on the freeway of love
In my pink Cadillac

The new Memphis address is 40 South Main 4th Floor, Memphis, Tennessee 38103.

Tennessee Alcoholic Beverage Commission Announces Rule for Tennessee Liquor Stores Selling Beer, Snacks and other Merchandise

By - June 01, 2014 | Alcoholic Beverage Law | Email Will Cheek

The Tennessee Wine in Grocery Law (which we affectionately call WIGS) legalizes the sale of beer, cups, ice, corkscrews and other previously verboten merchandise by liquor stores.  Liquor stores get a head start on groceries and can start selling the broader range of merchandise beginning on July 1, 2014 – two years ahead of when grocery stores can sell wine. We summarized the new privileges here.

But WIGS imposes limitations on qualifying for the new privileges for liquor stores located within 500 feet of a grocery store, or in a shopping center with a grocery. We expect the 500 foot rule to impact many Tennessee liquor stores.

WIGS does not specify when the 500 foot limitation becomes effective or how a store will demonstrate compliance.

The Tennessee Alcoholic Beverage Commission recently issued informal guidance for retail liquor stores interested in taking advantage of the new rights to sell beer, cups, ice and corkscrews. The TABC recently posted:

In order for a retail package liquor store [retailer] currently licensed pursuant to T.C.A. 57-3-204 to sell at retail additional items, including low gravity beer and other malt beverages, as provided in T.C.A. 57-3-404(e), beginning July 1, 2014, said retailer must either (1) give specific written permission allowing the sale of wine to all retail food stores within 500 feet of its location and provide copies of the written permission to the TABC; (2) provide a certified survey from a licensed surveyor indicating no retail food stores are located within 500 feet of the retailer’s location; or (3) provide and submit to the TABC blanket written permission allowing the sale of wine to any and all current or future retail food stores that may or may not be within 500 feet of its location. Additionally, if said retailer is located within a shopping center or other similar development the retailer must document that no restrictions or limitations are imposed on the sale of wine or alcoholic beverage upon any entity located within said shopping center or development.
 

July 1 is fast approaching. We encourage liquor stores to take full advantage of WIGS as soon as possible. Industry experts predict that WIGS will cause many liquor stores to go out of business.

We see early adoption of the new WIGS rights as key to survival. No one is going to get rich on selling the extra items, but convenience may tip the scales toward survival of a liquor store, when Kroger starts selling Yellow Tail.

How 500 feet is measured is potentially an open question. According to WIGS, 500 feet is “measured from building to building using the outside wall of the confines of the retail food store to the outside wall of the confines of” the liquor store.  In a strip mall, we presume this means 500 feet from the interior wall of the grocery to the closest interior wall of the retail liquor store.

We hope that the Tennessee ABC clarifies the method for measuring the distance before too many liquor stores spend hundreds of dollars on surveys.

Brings to mind the 1966 Who classic Whiskey Man:

Whiskey man’s my friend
He’s with me nearly all the time
He always joins me when I drink
And we get on just fine.
 

There are many unanswered questions raised by WIGS and we encourage liquor store owners to stay tuned.