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During his 24 years as an elected member of the Virginia House of Delegates, Dave Albo either wrote or helped write every change to Virginia’s ABC (“Alcohol Beverage Control”) laws for almost two decades. He authored laws dealing with alternate ways to calculate the food to alcohol ratio for restaurants that serve high-end distilled spirits, Sunday sales of alcohol at ABC stores, advertising rules, specialty and banquet license changes, franchise act amendments, and some of the nation’s toughest penalties for drunk driving, just to name a few. His landmark legislation changed the ABC from an Agency to an Authority, thus allowing it to be run more like a business than a government agency.
In his law career, Dave has helped manufacturers, wholesalers, and retailers negotiate the complex world of the Virginia Alcoholic Beverage Control Authority. For example, he helped a wholesaler sell its business to another wholesaler, represented a winery in its efforts to register with another wholesaler after that wholesaler failed to sell its wine, represented numerous restaurants in ABC law violation hearings, represented a retailer in an ABC hearing to overcome community objections to their new location, helped a convenience store chain transfer licenses to a new owner, and helped a distillery get listed with the ABC so it could sell through ABC stores.
The following are some interesting “frequently asked questions” for you to review. Just skim the list and click on the questions that interest you.
We would be honored to assist you in dealing with the Virginia Alcoholic Beverage Control Authority. Our services include all aspects of ABC law, from acquiring a license to helping you keep it if something goes wrong.
For most of Virginia’s history, there were few to no laws concerning the brewing of beer, distilling of liquor, or making wine from grapes. Thomas Jefferson made wine, and George Washington’s distillery on Rt. 1 in Fairfax County, Virginia, is still in operation!
All Alcohol Beverage and Control laws started following the end of Prohibition in 1933 with the enactment of the 21st Amendment. While Prohibition was intended to save people from the “evils” of alcohol, it really just drove the alcohol business underground, thus making criminals and bootleggers rich. Consequently, Congress left it to the states to decide whether to allow alcohol. Virginia approved the sale of alcohol in December 1933 and established a complex regulatory framework for its sale and distribution.
Basically, Virginia has a “Three Tier System.” The three tiers are:
As you can already tell, there are different rules for Distilled Spirits and for Beer and Wine. And this fact is evident in almost all aspects of the ABC laws.
For beer and wine, each tier is completely independent of the other. Beer and Wine manufacturers cannot sell to the public or to retailers. Retailers must get their beer and wine from wholesalers. For example, they cannot go directly to the brewery, nor can they go to another retailer (e.g., a restaurant cannot go to Costco to buy beer and then sell it at its place).
The three-tier system also exists with distilled spirits, except that the ABC acts as the wholesaler to restaurants and the retailer to the public. Distillers have to give their wares to the ABC, and restaurants and people have to buy their liquor from ABC stores.
Have you ever noticed in some big cities that there are bars where you can walk in and get a drink, but not any food? Not in Virginia. We only have restaurants. While there are a few minor exceptions for niche businesses like Day Spas or Oyster Bars, to serve alcohol, you must have a full-service restaurant with a menu that includes entrees. And to serve distilled spirits, there is a food-to-alcohol ratio requirement: 45% of the restaurant’s gross receipts must come from food and non-alcoholic beverages.
An ABC License can be obtained by simply logging in to the ABC website and filling out the forms. Like anything, there is no law that says you need an attorney. Many people successfully acquire a license on their own. However, if a problem arises, it may result in your being excluded from a license. These problems could often have been avoided had the applicant first sought legal counsel.
The ABC license for a restaurant is most likely that restaurant’s most important profit generator. We always find it strange that a restaurant owner will pay for architects, builders, or consultants, but not a lawyer to handle their most important profit asset – their ABC license. For example, choosing the type of license is essential. Can you generate food sales to support a mixed beverage (liquor) license, or will a beer and wine license that does not require a food-to-alcohol ratio work better? Where in the restaurant will the ABC allow sales? Is your menu sufficient to qualify for an ABC license? Is the business form (e.g., corporation, LLC, partnership) and the persons involved in that entity eligible for a license? The list goes on and on. If you consult a lawyer in advance, these types of questions can be answered appropriately, enhancing your chances of obtaining a license.
There is no comprehensive list of ABC violations. Any violation of the ABC Regulation or ABC Code can result in a violation. There are basically three major types of violations.
The first and most common class of violations involves serving underage persons. Most think that they can be protected from this just by “carding” patrons. But let’s face it, many people who work in restaurants just can’t get it right. As a business owner, you are responsible for your staff’s actions. There is a way to protect your license in advance. Recent changes in the law give the ABC the ability to consider the employer’s previous steps to train his/her staff to ensure no underage sales are made. In fact, the ABC agents will even help you with training.
The second classification of violations is those related to not following the intricacies of the ABC regulations. For example, here are a few of the many types of violations: A restaurant must acquire all its liquor from a Virginia ABC store. When a liquor bottle is empty, it must be destroyed. All liquor must be served by the restaurant – patrons cannot pour their own drinks. (The one exception to this is the Korean liquor Soju, which is a ceremonial drink that, by tradition, calls for people to pour others a drink.)
The third classification involves financial and reporting violations. There are extensive reporting requirements. Believe it or not, failure to simply file a report on time can result in the complete revocation of a license. In addition to reports, there are issues with food ratios. A beer and wine license only requires the restaurant to have a full-service kitchen and sell a bare minimum amount of food. A liquor license (called “mixed beverage license) requires the licensee to sell a certain percentage of food (as measured by the amount of sales of food versus the amount of sales of liquor). Failure to meet the minimum food sales threshold is a common violation. Recently, a number of clients have approached us with this problem, which stems from selling high-end liquor. This can be best described with an example. A vodka tonic made with rail vodka at $7 and a vodka tonic made with Grey Goose at $14 have the same amount of vodka. But the Grey Goose requires twice as much food to be sold. So, restaurants that sell a lot of high-end liquor often have more trouble meeting their minimum food requirement.
This list is not meant to be exhaustive of all violations. Rather, it is just an illustration of a few types of violations to give you an idea of what traps are out there for restaurant owners.
We assume that most readers of this site and the blog already have ABC retail licenses. Consequently, you already know how the ABC works (or, for those frustrated with the system, how it does not). So, why not represent yourself in an ABC Hearing?
You would expect our answer to be, “You should never represent yourself.” After all, as lawyers, we don’t get paid by people who don’t use our services. But to be honest, there is no law or regulation that says you have to have a lawyer in an ABC hearing. For that matter, there is no law that says you have to have a lawyer in any hearing in a court of law. Even people charged with the death penalty can waive a lawyer. So if you think you are competent and know the law and the rules of evidence, you could save some money and do it yourself.
But let me tell you what we just witnessed during a recent ABC hearing. While we were in the hearing room, a series of six violations for a restaurant were being heard. The subject of the violations, the owner, chose to represent himself. He was an intelligent man. And we are sure he knows a lot more about running a restaurant than we do. But we know a lot more about the rules of evidence and the process of trying a case than he does. Because he was not trained in the rules of evidence, he failed to object to testimony. Consequently, all of this objectionable testimony is now part of the record. And since that record is permanent, if he wants to appeal the ruling, the ABC Board will be able to read it all.
Let us give you just a few examples.
We could go on and on, but we think you get the point.
Put it this way. No good restaurant owner would let us take over the business for a weekend. It would be out of business in a short time because we do not know how to order the right amount of food or alcohol, don’t know the proper staffing levels to provide good service without overspending on labor costs, don’t know about health code requirements, nor do we know how to cook if the cook does not make it into work. Likewise, no good lawyer would let a restaurant owner try his case.
Let’s face it. The stakes are high. How much money does a restaurant lose if its license is suspended for a day, a week, or a month? The loss in revenue and damage to the restaurant’s reputation make the expense on a lawyer very small.
Dave Albo has helped write changes to the Alcoholic Beverage Control (ABC) laws for almost twenty years. He has been the author of laws related to restaurant food and alcohol ratio calculations for high-end spirits, advertising rules, ABC store Sunday sales, banquet and specialty license changes, franchise act amendments, tougher penalties for drunk driving, and more. Dave Albo – Attorney is happy to help clients with all aspects of ABC law, such as acquiring a license and preventing things from going wrong. Please do not hesitate to reach out to our Fairfax, VA ABC lawyer for further assistance.
Throughout Virginia’s history, there have been various laws for distilling liquor, turning grapes into wine, and brewing beer. The Alcoholic Beverage Control laws began being implemented after Prohibition ended. Now, you can get an ABC License by visiting the ABC website and completing the needed forms. Many people are able to get their license successfully on their own or with a lawyer’s help. However, if an issue arises, it can prevent you from obtaining a license. Such problems could have been prevented if legal assistance was sought from the start. Restaurant owners may hire builders, consultants, or even architects, and it comes as a surprise to us that they may not turn to a lawyer for their ABC license, which is their most profitable asset. As our knowledgeable ABC attorney explains, choosing the correct type of license and business formation is an essential step in building a strong foundation for your restaurant. If you have questions about an ABC license, contact Dave Albo at your next convenience.
ABC Violations To Avoid
One of the most prevalent ABC violations is serving underage persons. You may think that carding patrons would be the way to avoid it, but it can still happen. As a business owner, you are responsible for every person who enters your restaurant. You are also responsible for how your staff acts and whether they can properly examine identification on a consistent basis. Another example of a violation to avoid is failing to acquire liquor from a Virginia ABC store and failing to destroy all bottles when they are empty. Liquor must be served by the restaurant. Patrons are not permitted to pour their own drinks. The only exception to this rule is the Korean liquor Soju, as this is a ceremonial drink and the tradition entails people pouring drinks for others. For more information about violations to avoid, contact our law firm today.
Dave Albo – Attorney
Dave Albo understands that your business is your livelihood. You have likely taken a good amount of time, thought, and preparation to put your goals into action. Do not jeopardize what you have built by accidentally not abiding by Virginia rules for serving alcohol. Dave Albo – Attorney can ensure that your restaurant receives the ABC license it needs, business operations do not violate the law, and that you are ultimately put in a position for the best success. For a consultation, our VA ABC attorney Dave Albo is ready to hear from you.
