Winemakers Rejoice: First Tennessee Facility for Home Wine Makers

Tennessee is known for music, football and whiskey. Wine is not at the top of the list.  Instead of wineries, Dollywood, Graceland and the Grand Ole Opry are top tourist destinations.


Oenophiles are committed to altering the landscape. Some Tennessee wineries are making wine that some enthusiasts pronounce rivals acclaimed wines from California and other known wine states.


At the April ABC meeting, the first Tennessee winery for amateur wine makers was approved. Under the new law, individuals can use a winery's equipment to make wine for personal consumption  This is a huge opportunity - serious wine makers say that there is no reasonably affordable home wine making equipment comparable to a winery.


The first permit was approved for a Tullahoma winery owned by Cathy Manis. We have no details.


We suspect that the license will become more popular, particularly in cities with serious wine enthusiasts.

Why Do You Drink? To Get a Wee Bit Tipsy?

It ain't right to mess with a Hank Williams classic. We drink to get drunk, at least some of the time.

A couple of high profile Nashville drunk driving fatalities have Tennessee ABC agents and Metro Nashville police investigating several popular watering holes. Naturally, this has spooked bar owners.

The problem is that many patrons visit bars to get intoxicated. Yet the law does not allow a bar to serve intoxicated patrons. What gives?

Regulators and police informally recognize that revellers at bars often tie one on. As long as patrons don't get behind the wheel, get into fights or otherwise cause too much trouble, the law usually allows folks to have a little fun.

Unless there is a fatal drunk driving accident or other serious tragedy. Suddenly the news media, police and lawyers are accusing the bar of over serving and not doing enough to prevent the patron from driving drunk.

The legal issue is “what constitutes intoxicated.” For driving, the standard is fairly low and is set by a blood test. For bars, there is no set standard. Bartenders serving a bustling weekend crowd have to make quick judgments based only on observations.

I personally love a Tennessee Supreme Court decision that determined if a patron was drunk at an infamous Nashville watering hole:

When we analyze this soldier's actions in terms of his stated intention “to get bombed,” the conclusion is inevitable that success crowned his efforts. While he lolled, loafed, and loitered about the Classic Cat satisfying his lickerish craving for liquor by lapping up lavish libations, he fell from his chair, clutching his drink in his hand, into the waiting hands of vice squad officer McElhaney, who helped him up and took him to jail.

We subject his conduct to the most liberal standard that has come to the attention of the author of this opinion: 

Not drunk is he who from the floor
Can rise alone and still drink more;
But drunk is he, who prostrate lies,
Without the power to drink or rise. 

This soldier fails the test. He was drunk openly, visibly, notoriously, gloriously and uproariously drunk. 

The Classic Cat II violated one of the great commandments by which “beer joints” must live. In summary and in short, in paraphrase and in idiom, the law “don't allow no (drunken) hanging around” beer establishments.

Tennessee is flirting with imposing more responsibility on the server of alcohol. Tennessee has a fairly business-friendly statute for "dram shop" actions. The majority of the fault lies with the individual that consumes alcohol, unless the person is visibly intoxicated or under-aged.

But purveyors of alcohol are under increasing public scrutiny for the actions of their drunk patrons.

The Tennessean recently ran a feature about a tragic alcohol induced car accident that killed two pedestrians. 

The article vividly illustrates the level of scrutiny placed after the fact on a server of alcohol, which in this case was an office party.

In the wake of a tragic death, it is easy to say that more could have been done to stop the person from driving. What may look easy in retrospect is usually beyond what is possible to do for every single patron on every single day.

We expect that regulators and police may lower the threshold for what constitutes intoxicated for purposes of cutting off a patron. There is no set standard, and its easy to see why police and regulators would prefer for folks to stay on the sober side.

High Profile and Very Expensive Spanking for Playing Games with Tips and Server Wages

New York Celebrity Chef Batali, of “Iron Chef America,” “The Chew“ and “Mario Eats Italy” fame, has agreed to pay out $5.25 million to employees to settle an employee class-action lawsuit about tipping.


The settlement involves 1,100 employees, but serves as an expensive lesson about the consequences of playing fast and loose with federal wage and hour laws and skimming off tipping pools.


According to the Toronto Sun, "Batali and the other owners of the eateries unlawfully skimmed four to five percent of the staff’s wine or alcoholic beverage sales from the tip pool, taking an unlawful “tip credit,” paying staff members less than the minimum wage, and failing to provide “spread-of-hours” pay — that is, extra pay when a double shift extends over a certain number of hours in the day."


Lesson learned.  Don't mess with tips and basic rules about wages.

Minting Money But Avoiding the Grim Reaper in Downtown Nashville This Weekend

Downtown Nashville bars and restaurants are poised to have a huge weekend, with St. Patrick's Day falling on a Saturday, and NCAA men's basketball playoff's at Bridgestone Arena on Friday and Sunday. Cash registers will be ringing nonstop.

So why is Will Cheek blogging about this?

The NCAA tournament will draw a huge college crowd, with tons of under 21 year-olds looking to try to grab a drink at watering holes. St. Patrick's Day is infamous for inspiring revellers to drink to excess. The combination makes for a dangerous weekend mix of profitable sales, underage consumers and exuberantly intoxicated patrons.

Surprise! Nashville police and ABC agents plan to be out in full force this weekend. Plan on visits by law enforcement. Make sure your staff is ready and that everyone is vigilant about carding and taking care of intoxicated patrons.

Spring Snags an Hour of Alcohol Sales from Tennessee Saloons

Hope springs eternal, but not for Tennessee restaurants and bars in the wee hours of Sunday morning March 11, when clocks spring forward for daylight savings time. At 2 am, clocks spring forward an hour.

Suddenly, it is 3 am. Is it closing time?

The Tennessee ABC says yes. Last Call is an hour early. At 2 pm standard time, when clocks are set forward one hour for daylight savings time, alcohol sales must cease. The Nashville Beer Board concurs. On Sunday morning, closing time is 2 am.

There is good news at the end of summer. On Sunday November 4, bars get a bonus hour and can close at the equivalent of 4 am, when clocks fall back at 2 am. At 2 am, suddenly it is 1 am. 

Confusion over daylight savings time is rampant. But the Tennessee ABC is clear about the rule. Close at 2 am this Sunday March 11.

Pay the Piper, Sings Davidson County Clerk

From Una to Belle Meade, restaurant and bar owners across Metro Nashville Davidson County are getting letters that remind us of a famous Beatles song:

If you drive a car, I'll tax the street;

If you try to sit, I'll tax your seat;

If you get too cold, I'll tax the heat; 

If you take a walk, I'll tax your feet. 

The letters from the Taxman demand payment for two or three years of the obscure "liquor by the ounce permit." Based on what we know, Metro has not invoiced the tax in the past couple of years, because of a computer glitch. All of a sudden, Metro is demanding payment for several years of the tax.

Here is a letter many folks are receiving:

 

The taxman has some baggage he is not sharing.

First, state law only authorizes the taxman to collect a tax equal to the 2003 ABC license fee. The law is not entirely clear, but if the taxman collects the current ABC license fee amount, the taxman has to pay some of the tax back to the ABC.

For example, the letter above demands $1,200 for three years.  We believe the city is only entitled to $1,000 for each year. 

Second, the privilege tax is not a mandatory tax, like sales and LBD taxes. Since the city failed to ask for the tax for the past couple of years, we question if the city can ask for the optional tax retroactively. To our knowledge, no law requires a licensee to pay the tax, unless the city assesses the tax.

Last but not least, Nashville, like most cities and counties, refers to the tax as a liquor by the ounce "permit." It is not a permit; it is only a tax. Although Nashville can sue a taxpayer for delinquent taxes, the city cannot prevent a restaurant or bar from serving liquor, unless the Tennessee ABC takes action. 

We are recommending that licensees keep the notices, but not pay them until these issues are resolved. Stay tuned and if you want specific advice, email me at will@willcheek.com.

Memphis Moves Forward with Employee Registrations for Groceries and C Stores

Memphis has a storied reputation for being conspicuously uncommon. The Home of the Blues has attracted considerable attention for its efforts to ensure that all employees of off-premise beer permit holders can legally sell beer.
We previously blogged about the story here.

On February23, 2012, Memphis issued revised instructions about requirements for employee registrations for off-premises sellers.


We read the letter as requiring a background check on every employee that touches beer, and a $21 employee card. Instead of requiring employees or employers to pay Memphis for the $29 TBI background check, the new rule essentially offsets the expense to the employee or employer.
The new rule laid down by Memphis reminds us of Louis Armstrong: "You like tomato, and I like tomahto. Potato, potatho, tomato, tomahto! Let's call the whole thing off."
Its the same darn thing - either pay Memphis to do the search or pay to do it yourself.
Tennessee and Memphis law require that beer permit holders cannot employ anyone that has been convicted of a felony, crime involving alcohol, or crime of "moral turpitude" in the past 10 years.
Most restaurants have liquor licenses and all servers are required to hold Tennessee ABC server permit cards, which require employees to disclose all crimes on the application.
There is no similar requirement for grocery and convenience store employees. Although state law prohibits a business from employing folks with disqualifying convictions, there is no way for local beer boards to realistically enforce the law.
The Memphis Alcohol Commission, which grants and oversees beer permits in Memphis, was justifiably concerned about sales to minors. The Commission decided that requiring criminal background checks for off-premises employees would help curb sales to minors.
Problem is, state law prohibits a city from imposing additional fees or taxes for beer licensing, if the city charges the lucrative "inspection fee" on beer wholesalers. Industry insiders report that Memphis reaps millions of dollars annually from the inspection fee.