I got some questions about this...

Just sent this e-mail to the members of the PA Senate Law and Justice committee (and my own Senator, Robert Tomlinson). I'll be at the hearings on Tuesday, and I'll report on what happens.

Honorable Senators,
I'll be attending Tuesday's joint hearing conducted by the Law and Justice Committee and the House Liquor Control Committee regarding the recent Bureau of Liquor Control enforcement (BLCE) "raids" in Philadelphia. This is a matter of great interest and concern to me (and to quite a few others, as evidenced by the public outcry at the injustice of these events). I've taken the liberty of creating the following list of questions I'd like to see addressed at these hearings. I hope you would consider them.

•    What purpose is served by brand registration? How does this arcane and clearly imperfect process best meet that need? If that need can be met by simpler means, why not do away with beer registration altogether?

•    Why was the cost of registration recently raised from $25 per brand to $75 (especially when other states have registration fees as low as $1)? Can there at least be an exemption of registration for brewpubs that only sell beer on-premises?

•    Why was the response to this complaint three simultaneous raids carried out by multiple armed BLCE agents, during lunch hour? Why not one plainclothes agent armed with a clipboard to straighten out what is clearly a bureaucratic issue?

•    What is being done to insure that the BLCE's “anonymous complaint” process is not used to harass licensees, either by competitors or malcontents?

•    Where is the oversight on the BLCE? The PLCB repeatedly said, in the aftermath of the raids, that it was not responsible for the actions of the BLCE; the State Police also distanced themselves. For that matter, who does the PLCB answer to, other than indirectly to the Legislature, through the Liquor Code?

•    At the heart of things, is the PA Liquor Code just too byzantine and confusing for licensees – and enforcement agents! – to understand? Could the Code be substantially simplified without undercutting taxation and enforcement?

•    And of course: why does the State continue to hold a retail monopoly on the sale of wine and liquor? As an American citizen in 2010, how is it possibly fair that I cannot legally travel 15 miles into New Jersey, buy a bottle of wine, and bring it home to drink? The monopoly is unfair, and there are no compelling reasons in the public good to continue it.

As I said, I will be present on Tuesday to see how the hearing proceeds, and to report on those proceedings. I hope the hearing is fruitful, and brings progress to the process of making Pennsylvania's liquor laws more fair, more transparent, and more responsive to the desires of the citizens of the Commonwealth.

Sincerely,

Lew Bryson

Another voice calls for simplifying the liquor code...in Connecticut

Just saw this editorial from Chris Powell in the Middletown (Conn.) Press. His thesis: the reason there are so many "mom and pop" liquor stores in Connecticut is because it's about political patronage. Take a look at these bits:

Through licensing regulations state government has erected many barriers to entry, particularly barriers to doing business on a large scale with low cost and efficiency. There are more than 40 categories of liquor permits and they are tightly controlled. Supermarkets can sell only beer, not other alcoholic beverages. State government controls the hours of operation for alcohol sales, and Sunday sales are banned. The state also controls and pushes up liquor prices...
Liquor takes up 100 pages in the Connecticut General Statutes, but state regulation is just a start. Then there are the usual municipal zoning regulations. State law even allows towns to forbid liquor sales on their own, and some towns still do, as if their own liquor traffic is properly foisted on neighboring towns.
The scheme has been to diminish competition, drive costs up, put more people into the business, and make them dependent on political favor.

Sound familiar? Go read the rest. We're not alone, either in our problems or in our desire for a solution.

Action...maybe

Today's Inquirer reports that there is some action being considered in Harrisburg on the beer registration raids.

But in Harrisburg, several lawmakers are wondering whether the registration regulation - as well as other portions of the state's liquor code - are in need of updating. Rep. Robert Donatucci (D., Phila.), who chairs the House Liquor Control Committee, will be holding hearings to determine just that, Lynn Benka-Davies, the committee's executive director, said yesterday.

Well...that's a start. But what we should be doing is using this issue as the fulcrum to plant our lever to topple the whole thing, to bring down The Almighty Liquor Code.

Here's your course of action. First, instruct the BLCE to immediately stop enforcement activity on the registration law. Cut their budget, if necessary. Don't cry: this kind of thing happens all the time, it happened during Prohibition. It's an admission that a law needs fixing. The law serves no good purpose.

Next, quick-fix the beer registration part of the Code -- by deep-sixing it. Don't try to "fix" it, don't do the stupid Alabama thing where they lifted the 'cap' on beer ABV from a ridiculously low 5% to a higher but no less nonsensical 13.9% out of some misguided vision that they were preserving something. Brand registration is a relic, a fossil; the important thing is tax collection. Unless someone can come up with a really good reason to keep brand registration, dump it. Because the way it's being implemented and enforced is broken.

THEN...create a group to examine The Almighty Liquor Code with an eye to completely rewriting it. The group should include sitting legislators, PLCB reps, industry reps (brewers/importers, wholesalers, and retailers), a lawyer specializing in PA booze law, a rep from an anti-alcohol group (because their agenda has to be considered to get buy-in), and, most importantly, consumer representation...because we keep getting forgotten and locked out.

Rewrite the Code! Clean up the beer laws. Dump all the fossil relic crap that no one even remembers the reasons for why it's there. Privatize liquor and wine sales. Fix the licensing system. Level the market. If three-tier is left in place -- which I'm not against -- make it more fair to all involved. Break up the functions of the PLCB. Re-cast the Johnstown Flood Emergency Tax. Create new incentives for self-policing (stuff like rewards for seizing fake IDs, for instance).

Don't be afraid. Citizens: neighboring states don't have these laws, and yet their alcohol problems are not greater or worse than Pennsylvania's. Licensees: if you get involved in the process instead of balking it, you can help make it beneficial by freeing you to do more with your business (full-service "all-alcohol" retail stores, inventory delivered to bars by wholesalers at reasonable prices, the ability to amass wine cellars on par with New York restaurants, less paperwork). Brewers: you can stop looking over your shoulders. PLCB employees: jobs will be created, opportunities will be created, and if the process is at all fair, you will be provided for (early retirement packages, preferential hiring on state jobs, loan packages to open your own private wine stores, etc.).

We have put up with this shit for almost 80 years. It's time to reap the fruits of Repeal.

New Facebook page

This seemed like the right time to grab hold of the wave -- this blog just had its biggest day ever for hits yesterday, five times the previous highest day, and almost as much as the biggest day I ever had on Seen Through A Glass -- so I started a Facebook group: "Abolish the PLCB -- Rewrite the Code!" If you're on Facebook, come join us. We'll have tips on how to contact your legislators and what to say, advice on how and when to write letters/e-mails to newspapers, and maybe...we'll start talking about rallies and events. Stay tuned. This might be approaching critical mass.

More details (thanks to Don Russell and Bob Warner)

The Daily News has more details on last week's raids here (be sure to read the comments; public anger is high on this one). Highlights:

• four kegs and 317 bottles were seized, which will be kept at "a secured location, as evidence, until the case is resolved, probably in six to eight months." If the beers are found to be unregistered, they will be destroyed (if they're found to be registered, well, they might as well be, after 6-8 months in unrefrigerated storage).
• Leigh Maida estimated the value of the beers at $7,200, and said over half of them were properly registered; beers like Duvel and Monk's Cafe Sour, both of which are sold all over the state (but the name on the list doesn't match the label exactly...which would seem to be the fault of the State).
• "State Police Sgt. William N. La Torre, commanding officer of the Philadelphia office of the Bureau of Liquor Control Enforcement, said that he was not aware of any beers that had been mistakenly confiscated." 
• Francesca Chapman, a PLCB spokeswoman, said that the registration requirement helps the state assure payment of state beer taxes and helps prosecutors identify alcoholic beverages in drunk-driving cases or any other type of prosecution. (Because just taxing every beer that comes in isn't enough? Because looking at the label won't do it? If you're not putting the right name of the beer on the "list" to begin with, how much help is it?)
• La Torre said that the investigation was sparked by "a citizen complaint. It doesn't matter where the complaint is coming from," he said. (I would say that if the "citizen complaint" came from the owner or employee of another beer-related business...it does matter.)

Nice work. Now...let's dig further into this. Sgt. La Torre is hardly in any position to decide whether where the complaint is coming from "matters." No offense to the officer, but he's a tool being used by the complaining party, and his willingness to protect that person does him no honor. One of the basic principles of American justice is the right to face your accuser. Brendan Hartranft and Leigh Maida, the owners of the three businesses, their partners, and their employees deserve to know who chose to lodge this complaint specifically against them, while these supposedly unregistered beers are sold at bars across the city, the region, and the state. Why not get lists from the wholesalers who delivered these beers and raid every single bar and distributor who received them? Is the BLCE a tool or is it an enforcement agency?

The reasons given for brand registration do not hold up. TAX EVERY BEER, and it doesn't matter what beers are brought in. Every retailer, bar or distributor, is required to keep paperwork on where they buy beers -- wholesaler or direct from a self-distributing PA brewery -- so that's your assurance of payment of state beer taxes. Why do you need to identify the alcohol beverage in a DUI, and why isn't the label identification enough? This is the Internet age: Google the damned thing if you need to know (and you won't be able to identify a draft beer anyway, so what's the point?).
 
Which brings up another question. Is brand registration actually about ensuring that wholesalers are getting every sale they should be from retail accounts, and retailers are not buying from the "wrong" wholesaler? If it is, why is the state in that business? That should be a problem for the wholesaler to bring in civil court; why are we spending tax dollars to proactively enforce that?

Again, this is an issue for the Legislature. Rewrite the Code. Abolish the PLCB.

Tennis match continues: Wegmans beer sales now okay, says PA Commonwealth Court

The Pennsylvania Commonwealth Court has upheld the PLCB's original actions in granting licenses to two Wegmans supermarkets (in Bethlehem and Williamsport). [Follow-up: SHOCKER! The Malt Beverage Distributors Association has said it will appeal this ruling to the State Supreme Court! Wow! Didn't see that coming... Sheesh.] This AP story (the link is to the Wilkes-Barre Times Leader) tells the story in a somewhat cock-eyed manner; read that second sentence:

Beer sales at restaurants run by the Wegmans supermarket chain got court approval Monday in a pair of cases that expand where consumers can buy take-out alcohol.

The unanimous decision in Commonwealth Court allows patrons to circumvent beer distributors where customers may only purchase beer by the case. The court rejected arguments by the state beer retailers' association that Wegmans created a "legal fiction" by routing suds sales through cafes that are attached by an interior passageway to their grocery stores.

The ruling upheld license approvals by the Pennsylvania Liquor Control Board for Wegmans stores in Bethlehem and Williamsport. The Pennsylvania Malt Beverage Distributors Association sued last March to appeal the agency's decisions.

The bolded sentence makes me wonder who on the staff of the Times Leader decided this story should be cast as so unfair against beer distributors. It would have been more accurate to simply state "The unanimous decision in Commonwealth Court allows Wegmans to use the restaurant licenses they legally acquired to sell beer by the drink and up to two six-packs to go, just like other restaurant licenses."

But here's my takeaway from the article, in that this is a non-event:

"There hasn't been a change in the law, there hasn't been a change in restaurant licenses, there hasn't been a change in the LCB policy," said liquor board spokesman Nick Hays. "What has happened is some of these stores have made business decisions to incorporate full-service restaurants in their businesses."

Like I keep saying: this is not new law. This has been legal for years, it's just that no one's done it. Now that supermarkets like Wegmans are doing nice in-store restaurants, though, why not? It's just a restaurant. Is the MBDA against restaurants and bars?

The real problem here is the case law, the concomitant "2 sixers at a bar" law, and the artificial and arbitrary nature of booze laws in general in the Commonwealth. Supermarkets can't sell beer, beer stores can't sell groceries, delis can sell both...why?

There is no answer, because the reasons are ridiculous. Just one more Reason...

Reason #11: It's Your Move

Try to imagine something more frustrating for a licensee, a business owner, than trying, trying honestly and energetically, to do the right thing by The Almighty Liquor Code, only to have the rules change or be re-interpreted, or find out that there's another set of rules you didn't even know about. You'll be crossing your eyes, ready to scream about how you just want to do the right thing if only you could figure out what the right thing is. Hey, that's what lawyers are for, y'know? So pony up, buy one, and go do battle. That's how things get done.

Then you can really lose your mind when your lawyer writes up your paperwork, sends it to Harrisburg, and...
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........................................ nothing happens .....

Reason #11:

Harrisburg Is A Black Hole

I've heard the same story many times from licensees. They've got a perfectly reasonable request, one that's clearly allowed under The Almighty Liquor Code, and they properly make it through channels, and they sit, and sit, and sit waiting for a response. Repeated telephone calls, visits, letters seem to have no effect...and sometimes it just goes too long. An event they needed a special permit for, a beer they tried to get registered -- with the willing assistance of the brewer or importer -- a routine license approval that was the only thing keeping them from opening their doors and doing business...whoops. Sat on the desk too long.

It's an arbitrary time period for these things. Or maybe not; there have been rumors of state legislators using influence to speed up or delay applications. I don't know if any of it's true, but it certainly happens at the federal level -- I used it to get a quicker passport for a sudden business trip a while back -- and what's sauce for the Congressional goose is sure to be sauce for the State Senate gander.

If there has been influence used to speed things up, more power to 'em, anything to push things, but using influence to slow things down? Arrest-worthy. Legislators are public servants, and if they want to serve the public by lighting a fire under some bureaucrat, bully for them. But if you're slowing things down because you've got some squealy New Dry in your district scared of a bar opening on Sunday afternoons, well, sorry, but there's clear law on that in The Almighty Liquor Code: it's legal, get out of the way. And if you're slowing things down to benefit another constituent's business, well, remember what your fifth-grade teacher used to say: "I hope you've got enough of that sweet influence for everyone, Miss Smith."
However, there shouldn't be any influence needed. All that's needed is triage. Some bar wants an exemption to open early once on a Sunday in order to show live Tour de France to patrons? Quick decision, and it ought to be yes: where's the harm? Some restaurant asks for a quick registration on a brand for a new beer they'd like to get for a dinner? That's good for a Pennsylvania business and hurts no one: quick decision, and how much work does it take? (Hint: if it takes too much...your system is screwed, because "brand registration" is just an easy source of money for The State anyway.) Those are quick, clear 'em, just hit 'em with your big "HELL YEAH!" stamp and send 'em back; better yet, do it by freakin' e-mail.

Say there are neighborhood complaints about a nuisance bar: top of the pile, get that crap straightened out. Someone wants to transfer a license: have a set time period for a decision, including public hearings if needed, and stick to it.

We have a PLCB CEO now, right? So why aren't performance standards in place? I hear too many stories from licensees about things sent to Harrisburg and not a word back in weeks or months. These people are not drug dealers, they're business people who want to hire Pennsylvanians.

The PLCB should be abolished because it doesn't even work as well as PENNDOT. Let me tell you: I've lived in six other states, and getting licenses, tags, and titles there was -- every one of them -- a chore, a freaking nightmare. At one point, I told my friends that I was probably going to drop dead in a Maryland DMV line, either from a stroke or old age. Getting things done with driver and vehicle registration is one of the best things Pennsylvania government does, and they do it with a beautiful combination of private business and efficient bureaucracy. Why can't the PLCB learn a lesson?

Handle the paperwork, make the decisions, keep records, and get more things online. It's 2008, fergodssake, and you can't even create an online ordering system that works; Amazon's been doing it for over ten years!

If things take so long because there are so many ambiguities in The Almighty Liquor Code, could you tell us? Then maybe we'd push the legislature to fix it. Things can be efficient and still be fair. But when things are this slow, it's not fair to anyone.

Reason #9: Can I Get A Ruling?

Anyone know about growlers? Growlers are jugs of draft beer, filled and capped at the retailer level (bar, restaurant, club, brewpub), that have become popular since the rise of craft-brewed beer. I've got one in my fridge right now; some Grisette I bought at Sly Fox last week (and very nice: dry, refreshing, kind of like a spicier, brisker saison, just had some with lunch).

I remember buying beer by the pound this way in Kentucky back in the 1980s: bring in your jug (I had a plastic milk jug, cleaned out and dried), have it weighed empty, fill it from the tap of your choice (I got Busch, just for the experience), have it weighed full, and pay the poundage fee on the difference. Brewpubs and the bars and bottleshops that do sell growlers in the Commonwealth generally only fill two sizes, half-gallon and two-liter, which simplifies the pricing.

The devil is in the details. Some places will fill practically anything; my Sly Fox Grisette, for instance, is in a growler clearly labeled as Iron Hill. Some places will not fill anything but their own growlers; not even unlabeled ones. Some compromise by slapping their own label on whatever growler you bring in. Some places insist on "sealing" the screw-on caps with a heat-shrink plastic band or tape; some don't. Some places won't do it. Weyerbacher, for a while, would only fill gallon growlers.

Why all the confusion? Check the Code...I dare ya.

Reason #9:

What to do about growlers?

This is a very small thing, to be sure. Growlers are a tiny little part of a relatively small niche of Pennsylvania's beer sales, which are about as privatized as it gets in the Commonwealth...but even here, the PLCB gets involved. Talk to different brewpub servers and brewers, talk to bar owners, talk to deli license guys, and you'll soon find out that the PLCB has all kinds of rules about growlers.

Or do they? I've been combing the PA Liquor Code for the past week, and I've got a request into the LCB itself. But I can't find any reference to this kind of off-premises sale of draft beer --about labeling, or sealing -- except for this, about containers and packages from the manufacturer which does kind of mention it, in context of sales at breweries and brewpubs:

SECTION 4-440. Sales by manufacturers of malt or brewed beverages; minimum quantities

No manufacturer shall sell any malt or brewed beverages for consumption on the premises where sold, nor sell or deliver any such malt or brewed beverages in other than original containers approved as to capacity by the board, nor in quantities of less than a case or original containers containing sixty-four ounces or more which may be sold separately; nor shall any manufacturer maintain or operate within the Commonwealth any place or places other than the place or places covered by his or its license where malt or brewed beverages are sold or where orders are taken.

As for actual filling and selling... There's language about cleaning the taplines, about putting clear labeling on the tap knobs, about off-premise sales...but nothing about growlers.

Until I hear otherwise from the PLCB, I'm going to have to assume that there is no allowance for growlers in the Code other than that they should be at least 64 oz. That in itself would be fine: why exactly do we need such regulation? The bartender almost always fills the thing right in front of you, so you know what you're getting and labeling would be superfluous (though useful if you were getting multiples: "Licensee shall provide a Sharpie and labels so customer doesn't open the Pilsner instead of the Maibock", now that would be a good law), the cleaning is usually up to you as much as to them.

But the problem is...if there is no law about growlers, what's all this stuff brewers tell me they're hearing from their local enforcement officer? "Interpretation"? Of what? Tea leaves? There is no law to interpret! All you're really doing is selling a big glass (or small glass keg), so there's no regulation needed, but where do these guys get away making stuff up?

The PLCB should be abolished because of the arbitrary nature of the interpretation of the PA Liquor Code, brought on by the density of the Code and the nigh-unrestricted power of the local PLCB enforcement agents. Growlers are harmless sales of beer; any policy on their sale should be left up to the individual licensee.

Common sense in the Code, common sense in its enforcement. That's what's needed.

Photo credit: Adem Tepedelen (thanks to Scott @ East End for permission!) *and I did edit the original post: thanks to Scott again for pointing me to that 64 oz. reference.

Reason #6: the Pennsylvania Legislature

I have to be fair about this; I don't like to, but I have to. The PLCB's constant refrain to criticism -- "We just enforce the rules, we don't make them." -- has a strong underlying validity to it. Yes, there's a certain latitude of interpretation to that enforcement that is sometimes mean-spirited and sometimes mindlessly arbitrary (I've got a story to tell you one of these days that will absolutely curl your hair on that aspect); yes, the PA Liquor Code -- "the rules" -- is positively byzantine in its overwrought complexity; and yes, they are hampered by their duality of mission. But at the base of that, the PLCB can indeed point to the Pennsylvania Liquor Code, Title 40 of Pennsylvania law, and claim "We were only following orders."

And whose fault is that?

Reason #6:

The Politicians' Plaything

The Pennsylvania Liquor Code (hereafter referred to as "the Code") is a plaything of various interests in the Pennsylvania legislature. The most recent example of this kind of thinking is the whole Sheetz/Wegmans uproar, in which politicians who are aligned with either the beer distributors or the New Drys say they are contemplating changes to the Code to keep beer out of grocery stores. Now you'll note that nothing has actually happened yet...and you'll also note that the "six-pack bill" is still diddle-fiddling around in committee.

It's been my experience that no changes to the Code are ever simple. I remember that when the Code was changed to allow beer distributors to accept credit cards -- wow! -- I talked to the legislator who introduced the bill. She told me that it was initially one sentence that would be added. By the time everyone was done tacking things on? "Pages," she said.

The legislators appear simultaneously fascinated and terrified by changing the Code. Fascinated, because the State's monopoly power with wine and liquor sales (and yes, "monopoly" power over beer sales, because you cannot sell beer in PA without a state-issued license) gives the legislators such opportunities to reward or punish groups and individuals, or raise oodles of tax revenue (the PLCB, after all, didn't institute or increase the Johnstown Flood Emergency Tax). Terrified, because almost anything you do to booze law is going to piss off some constituency.

Sometimes it's not the Legislature, it's the Governor. For reasons unknown (because I'm pretty sure the reasons stated weren't the most important), Governor Rendell suddenly added a highly-paid CEO to the PLCB's towering structure of managing bureaucrats in late 2006, a post that was filled by an out-of-work legislator, apparently with no interview process. The appointment stunk of patronage, and precipitated the resignation of Jonathan Newman, possibly the PLCB's most popular Chairman ever (words that might otherwise never have been strung together in that order...I mean, the mind boggles). It's unclear why the position was needed, but at $100,000+ a year, we've got it to pay for, you and me, taxpayers. Plaything. Patronage source.

And some of the stuff doesn't even make sense. Take a look at this one, for example, a change that was added to the infamous "case law" section of the malt beverage sales part of the Code in 1996:

(1) To salvage one or more salable cases from one or more damaged cases, cartons or packages of malt or brewed beverages, a distributor or importing distributor may repackage consequent to inadvertent damage and sell a case, carton or package of identical units of malt or brewed beverages.
(2) Repackaging is permissible only to the extent made necessary by inadvertent damage. Repackaging not consequent to damage is prohibited.
(3) The term "identical units" as used in this subsection means undamaged bottles or cans of identical brand, package and volume.

So...what this means is that if a distributor dropped a case of Sly Fox Dunkel Lager and a case of Sly Fox Pikeland Pils, for example, and three cans from each case burst, he would be forbidden by law to combine those two cases and sell a mixed case. He would be forced to send them back to the wholesaler. God help him if he were crazy enough to mix the cases on purpose, because, you know, chaos might result.

What drives this kind of meddling, making the requirements of a wholly unloved law even stricter? I don't know, because the legislator who proposed it retired and went into lobbying (for a medical group, so the obvious answer doesn't apply).

What I do know is that the Code has rarely been touched by the legislature with results that made things simpler or better for the consumer...the consumer, of course, better known as the taxpayer, or the voter, or you. The upside of this is that while we are virtually powerless to affect the actions of the bureaucrats at the PLCB, we can do something about the legislators. All that's required is passion. Passion for privatization, passion for simplification, a passion for Pennsylvania's alcohol policy to enter the 21st Century. As it is, we're barely past 1934.

The PLCB should be abolished because the Code would be better off simplified and streamlined, without an entrenched, unneccesary, and expensive bureaucracy to serve as a patronage pit for politicians. Do away with the PLCB: privatize booze sales, put licensing and inspection in the hands of the Dept. of Agriculture, tax collection in the purview of the Dept. of Revenue (they've got some experience with that), put the anti-alcoholism and underage drinking prevention programs under the Dept. of Health, and fully hand over enforcement to the State Police. Give a re-write of the Code over to a commission that includes interested consumers for a change, and charge them with writing a simpler, more understandable Code.

You'll lose the revenue stream from the mark-up in the State Stores (and we could stand to change the Johnstown Flood Emergency Tax to a more reasonable amount (and God knows, a better name)), but you'd make up a lot of it by getting the PLCB payroll and lease payments off the books, and getting more taxes on sales made in PA rather than across the border. Offer early retirement to PLCB employees, bump them up in hiring preference for other state jobs, offer them low/no-interest loans to start their own stores, and, eventually, realize that this was a business that the State should never have been in at all, and that this is not an employment plan.

It would be complicated, and probably messy, but only for a while. More to the point, it would be the right thing to do. There's a feeling of reform in the air in Pennsylvania; why not blow that wind of change through the barroom and liquor store, while we're at it?

More flummery

I've posted about some PLCB stuff on my other blog because it's more about beer. Still applies to this audience, so go read it there. We need to re-write the Pennsylvania Liquor Code.