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ALCOHOLIC BEVERAGE REGULATION ADMINISTRATION
ALCOHOLIC BEVERAGE CONTROL BOARD
NOTICE OF FINAL RULEMAKING
The Alcoholic Beverage Control Board (Board), pursuant to the authority set forth in D.C. Official Code § 25-211(b)(2012 Supp.) and Mayor’s Order 2001-96 (June 28, 2001) as revised by Mayor’s Order 2001-102 (July 23, 2001), hereby gives notice of its intent to adopt the following final rules that make technical amendments to Title 23 (Alcoholic Beverages) of the District of Columbia Municipal Regulations (DCMR), to conform to changes contained in the Omnibus Alcoholic Beverage Regulation Emergency Amendment Act of 2012 (Act), effective May 1, 2013 (D.C. Law 19-310; 60 DCR 3410), as amended, as well as other administrative changes not related to the Act.
The rulemaking clarifies that all retailer’s license categories can apply to the Board for a stipulated license, and creates a stipulated license fee of $100. The rules also clarify that the annual fee for a wine pub permit is $5,000 and that the holder of a wine pub permit can apply for a wine and beer purchasing permit. The rulemaking amends the corking fee requirements contained in § 717 of Title 23 of the DCMR to require the disclosure of the fee charged to patrons. The rules also conform to the Act’s requirement that retailers may keep and maintain records on the licensed premises electronically. The rules clarify that the Board may require a group of five or more individuals to appear in person before the Board. Finally, the rulemaking amends § 1609 and § 2000.3 of Title 23 of the DCMR to conform to the new settlement agreement and catering requirements contained in the Act.
These rules were initially adopted by the Board on January 30, 2013 by a five (5) to zero (0) vote. On February 28, 2013, the Board conducted a public hearing, pursuant to D.C. Official Code § 25-354 (2012 Supp.), to receive comment on the technical changes proposed to Title 23 of the DCMR.
Andrew Kline, Legislative Representative, testified on behalf of the Restaurant Association (RAMW). RAMW has approximately 700 members and is the principal representative of restaurants in the District of Columbia. At the hearing, Mr. Kline requested that the Board give consideration to eliminating Section 717.2, which creates a cap of $25.00 as a corkage fee. Corkage fees are those fees charged by restaurants and other on-premises retailer licensees to uncork a bottle of wine brought by patrons who consume the wine with the purchased meal. Mr. Kline indicated that there is no public policy reasoning to support this regulatory cap, and the market should govern as to the amount of the fee set by the on-premises establishment. RAMW requested that the cap on the corkage fee be eliminated, but if the Board is inclined to impose one, the current $25.00 cap should be increased to reflect today’s market.
Mr. Kline also requested the Board amend Section 1204 to add the word “available” so that retailers who keep and maintain their records electronically will be required to have those electronic records available upon the licensed premises. The rationale is that ABRA will have access to the electronic records for regulatory inspection, so it does not matter where the hard data of electronic records is physically located.
The Board received no other testimony or written comments. The Board considered the testimony of RAMW, and the addition of other technical changes to the existing regulations. The Board is in agreement with RAMW’s comments regarding the corkage fee, and the electronic recordkeeping amendment, and has added those modifications below. Additionally, the Board made further amendments to Title 23 with respect to Section 200 regarding stipulated licenses, Section 1609 regarding settlement agreements, and Section 711 regarding tasting permits.
The rules were published in the D.C. Register as a Notice of Proposed Rulemaking on April 12, 2013 at 60 DCR 5641. Pursuant to D.C. Official Code § 25-211(b)(2) (2012 Supp.), the proposed rules were transmitted to the Council of the District of Columbia (Council), for a ninety (90) day period of Council review on May 30, 2013. The rules were approved by Council Resolution, R20-302, the “Technical Amendment Approval Resolution of 2013”, adopted by the Council at its July 10, 2013 legislative meeting. These final rules were adopted by the Board on July 31, 2013, on a vote of five (5) to zero (0) and they will become effective five (5) days after publication in the D.C. Register.
Title 23 of the D.C. Municipal Regulations is amended as follows:
Section 200, STIPULATED LICENSES, of Chapter 2, LICENSE AND PERMIT CATEGORIES, of title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by replacing Subsections 200.1, and 200.1(a) through 200.1(c) to read as follows:
200 STIPULATED LICENSES.
200.1 The ABC Board will permit an applicant who has submitted a completed license application involving a Manufacturer’s license, Wholesaler’s license, or Retailer’s license to apply for a stipulated license under the following conditions:
(a) The applicant must be applying for or must hold a Manufacturer’s license, Wholesaler’s license, or Retailer’s license; and
(b) The applicant must submit to the ABC Board written correspondence from an ANC Officer where the applicant’s premises is located stating that the ANC has voted with a quorum present to either support or not to object to the issuance of a stipulated license to the applicant pending completion of the 45-day protest period; and
(c) The applicant must stop serving or selling alcoholic beverages under the stipulated license if a valid protest is filed against the applicant during the 45-day protest period.
Section 203, WINE AND BEER PURCHASING PERMIT, of Chapter 2, LICENSE AND PERMIT CATEGORIES, of Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by replacing Subsections 203.1, 203.2, and 203.3 to read as follows:
203 WINE AND BEER PURCHASING PERMIT.
203.1 A wine and beer purchasing permit shall allow the holder of a Retailer's A, Class B, brew pub, or wine pub license to sell wine and/or beer to the public at the premises of a Temporary or a Retailer's Class C or Class D license holder.
203.2 Beer or wine that is purchased at the authorized location from the Class A, Class B, brew pub, or wine pub licensee under the wine and beer purchasing permit shall not be opened or consumed at the authorized location.
203.3 A District off-premises retailer, brew pub, or wine pub authorized to sell containers of beer or wine at the authorized location may remove closed containers of beer and/or wine from the authorized premises but shall not be permitted to remove opened containers of beer and/or wine from the authorized premises. This subsection also applies to customers who purchase or receive alcoholic beverages at the authorized location.
Section 209, PERMIT AND ENDORSEMENT FEES, of Chapter 2, LICENSE AND PERMIT CATEGORIES, of Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by adding a new Subsection 209.12 to read as follows:
209 PERMIT AND ENDORSEMENT FEES.
209.12 The annual fee for a Wine Pub permit shall be five thousand dollars ($ 5,000).
Section 210, APPLICATION FEES, of Chapter 2, LICENSE AND PERMIT CATEGORIES, of Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by adding a new Subsection 210.7 to read as follows:
210 APPLICATION FEES.
210.7 The fee for a stipulated license shall be one hundred dollars ($ 100).
Section 711, PERMITS FOR SAMPLING OF ALCOHOLIC BEVERAGES, of Chapter 7, GENERAL OPERATING REQUIREMENTS, or Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by replacing Subsection 711 to read as follows:
711. RETAIL PERMITS FOR SAMPLING OF ALCOHOLIC BEVERAGES.
711.1 The holder of a Retailer's license Class A and B may utilize a portion of the licensed premises for the sampling of alcoholic beverages during the hours of sale authorized in D.C. Official Code § 25-722(a). Containers of alcoholic beverages used for sampling purposes shall be labeled as such and may not be sold.
711.2 No licensee may use any portion of the licensed premises for the sampling of alcoholic beverages without a permit issued by the Board. A request for a permit shall be in writing and shall:
(a) State in detail the type of beverages to be offered in the sampling;
(b) Include drawings of the premises indicating the areas where the sampling is to take place; and
(c) State the hours and days during which the sampling is to take place.
711.3 A permit issued under this section shall be valid for two years. The permit shall expire on the same date as the applicant's Class A and B Retailer's license.
711.4 The annual fee for a permit issued under this section shall be one-hundred and thirty dollars ($130). Payment shall be made at the same time that the second year fee or renewal fee for Class A and B Retailer's licenses is due.
711.5 The holder of a permit issued under this section shall be authorized to provide to one customer in any one day samples that do not exceed the following quantities:
(a) Three ounces (3 oz.) of spirits;
(b) Six ounces (6 oz.) of wines; and
(c) Twelve ounces (12 oz.) of beer.
711.6 The holder of a tasting permit may hold public tastings during the hours it is permitted to sell and serve alcoholic beverages under its Class A and B Retailer's license unless restricted by Board order or settlement agreement.
Section 717, CORKING FEE, of Chapter 7, GENERAL OPERATING REQUIREMENTS, of Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by deleting Subsection 717.2 in its entirety and retaining Section 717.1 to read as follows:
717. CORKING FEE.
717.1 The holder of an on-premises retailer's license may permit a patron to bring to and consume on the licensed premises an alcoholic beverage that the licensee is permitted to sell or serve under its on-premises retailer's license; provided that the alcoholic beverage is opened by an employee of the establishment, However, the holder of an on-premises retailer's license shall not permit any alcoholic beverage opened on the licensed premises to be removed from the licensed premises.
717.2 The holder of an on-premises retailer’s license shall be permitted to charge a corking fee provided that the corking fee is disclosed to the patron prior to the opening of the alcoholic beverage.
Section 1204, RETAILERS BOOKS AND RECORDS, of Chapter 12 RECORDS AND REPORTS, of Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by replacing Subsection 1204.1 to read as follows:
1204. RETAILERS BOOKS AND RECORDS.
1204.1 Each holder of a Retailer's license shall keep and maintain available upon the licensed premises, either physically or electronically, records which include invoices and delivery slips and which adequately and fully reflect all purchases, sales, and deliveries of all alcoholic beverages, except beer, made to it.
Section 1502, NOTICE OF A NEW APPLICATION FOR A NEW LICENSE, RENEWAL OF A LICENSE, OR TRANSFER OF A LICENSE TO A NEW LOCATION, of Chapter 15, APPLICATIONS: NOTICE OF HEARINGS INVOLVING LICENSES, of Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by replacing Subsection 1502.3 to read as follows:
1502. NOTICE OF AN APPLICATION FOR A NEW LICENSE, RENEWAL OF A LICENSE, OR TRANSFER OF A LICENSE TO A NEW LOCATION.
1502.3 At least forty-five (45) days prior to the roll call hearing, the Board shall give notice of an application to the entities set forth in D.C. Official Code § 25-421(a). This notice requirement shall not apply to renewal applications in those instances where the Applicant’s new license or transfer to a new location application has a 45 day public comment period ending within thirty (30) days of the renewal deadline for that license class.
Section 1605, FILING A PROTEST, of Chapter 16, CONTESTED HEARINGS, NON-CONTESTED HEARINGS, PROTEST HEARINGS, AND PROCEDURES, of Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by replacing Subsection 1605.4 to read as follows:
1605. FILING A PROTEST.
1605.4 The Board may require protestants to appear in person before the Board for the purpose of determining that a sufficient number of individuals exist to have standing pursuant to D.C. Official Code § 25-601.
Section 1609, COOPERATIVE OR VOLUNTARY AGREEMENTS of Chapter 16, CONTESTED HEARINGS, NON-CONTESTED HEARINGS, PROTEST HEARINGS, AND PROCEDURES, of Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by replacing § 1609.1 to read as follows, and adding new Subsections 1609.6, 1609.7, and 1609.8 to read as follows:
1609. SETTLEMENT AGREEMENTS.
1609.1 The terms of a settlement agreement submitted by the parties shall be consistent with District of Columbia law and shall be in compliance with D.C. Official Code §§ 25-446.01 and 25-446.02.
1609.6 The phrase “settlement agreement” found in Title 25 of the D.C. Official Code shall be deemed equivalent to the term “cooperative agreement”, or “voluntary agreement” used in Title 23 of the D.C. Municipal Regulations.”
1609.7 If the Board determines that a settlement agreement submitted by the parties does not comply with all applicable laws and regulations, or otherwise exceeds the Board’s expertise to enforce, the Board may condition approval of the settlement agreement on the parties’ acceptance of modifications of the agreement proposed by the Board. If the parties reject the modifications proposed by the Board, they may submit a new settlement agreement for Board review that complies with D.C. Official Code §§ 25-446.01 and 25-446.02 and is within the Board’s expertise to enforce, or proceed to a protest hearing.
1609.8 Settlement agreements must be submitted by the parties to the Board for the Board’s consideration no later than ninety (90) days after the execution of the settlement agreement by parties who are signatories to the settlement agreement.
Section 2000, CATERER’S LICENSE, of Chapter 20, CATERER’S LICENSE, of Title 23, ALCOHOLIC BEVERAGES, of the DCMR, is amended by replacing Subsection 2000.3 to read as follows:
2000. CATERER’S LICENSE.
2000.3 Holders of a caterer’s license may purchase alcoholic beverages from Wholesalers and holders of an off-premises license, class A, for catered events of one hundred (100) persons or less. Holders of a caterer’s license shall purchase alcoholic beverages from an off-premises license, class A, for catered events in excess of one hundred (100) persons except that holders of a caterer’s license may also purchase alcoholic beverages from Wholesalers for catered events in excess of one hundred (100) persons when the licensed caterer also holds another type of on-premise, retailer’s license.
