Transcript Document
“Piranha” questions “Be my lawyer” questions “Do my legal research for me” questions “Get Out of Jail Free Card” questions “How do you interpret the law” questions Examples: Are there any state laws that prohibit someone from bartending if they have a DUI conviction? How old do you have to be to work in a bar? Can you give me the exact wording that would need to be used [in a local option petition] and also the exact information the person signing would need to supply, such as, name address, etc.? Example: Example: Example: Tightening of governmental budgets resulting in fewer agency employees (more work for fewer employees) Retirement of key employees with institutional knowledge Ease of modern communications- websites, cell phones, emails Complexity of laws and new business models Increased interest in alcoholic beverage businesses and alcohol sales People not wanting to hire private attorney Staff Attorney Email: Steve, Can I work comp time over the weekend if need be? I am trying to get ready for a deposition on Tues. and not having much luck avoiding piranhas. Thanks, Kimberly Agency attorneys only have so many hours in a day. Attorneys have higher priorities/responsibilities such as administrative case preparation and trial, original and appellate court litigation, drafting regulations, etc. Negative public complaints if do not respond Difficulty finding balance Is legal division providing adequate legal services to client agency? When does a state attorney cross the line from being a helpful public servant to providing legal advice to a private citizen? What are my ethical duties as a state attorney about providing legal advice and opinions to private citizens? Does state attorney subject himself to possible negligence or liability claims when person financially acts on provided information and the business fails or other problems arise? SCR 3.020 Practice of law defined The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. Kentucky law prohibits state employees from using state paid time or resources to perform work or receive private benefits for self or others. See KRS 11A.005; EBEC AO 99-7. The Department is also prohibited from endorsing or promoting a specific product or company. See, KRS 11A.020(1)(d). Example: I have to [sic] additional questions. Wine Galas: Wine galas within our grocery stores, which are conducted after hours when our store is closed under our off-premise license, can this occur? If yes, would the sampling/tasting guidelines remain the same? Store to Store Transfer of ABC Products and Inventory within the State/County/City (e.g. closing one store within the State/County). If yes, please let me know the procedures of how we should handle such transfer and, if necessary, which forms needs to be completed. Please advise. Thank you. [Paralegal for National Retailer] Example: I am interested in opening a business where customers come and “brew” their own beer on premises. I will supply all of the materials for the beer production and teach each customer how to make their own beer. I want to allow the customer to take their “homemade” beer home as well as consume on premise simultaneously during the same visit that they have made their beer. What are your thoughts? I would like to have a face to face sit down with you as soon as possible. I have their hole [sic] business plan ready for you to review. When are you available for a meeting? Thanks [Person] Example: I am in charge of our parish festival this year and I want to educate myself on ABC laws and charitable fundraising events. I have many questions I could start with a few... Are I.D. Bracelets required? Do signs need to be posted regarding alcohol purchase? We have always sold beer, is wine covered under this license? Is sealed alcohol allowed in raffle baskets? I have seen "wheel barrels" of liquor raffled off at other festivals. Is that legal. Are liquor ring toss games legal? I think that will give you an idea of my lack of knowledge! I appreciate any guidance you can provide me. [Person] Example: I want to start an internet sales company shipping spirits out of state from [an] Ohio county. What permits do I need. Thanks [Person] Polite Form Response: Your inquiries call for legal research and opinions more appropriately addressed to a private attorney. Kentucky law prohibits me from using state paid time or resources to conduct legal research for the benefit of a private entity. See KRS 11A.005. Links to the alcoholic beverage control statutes and regulations are available at http://abc.ky.gov/Pages/ default.aspxlaws. The National Association of Alcoholic Beverage Licensing Attorneys (http://www.naabla.com/) has several private attorneys who might assist you. The Kentucky Bar Association (http://www.kybar.org/26) provides contact information for all Kentucky attorneys. I hope these links may be of help to you. Responses to Polite Form Responses: “I can’ afford an attorney. That’s why I emailed you.” “I pay taxes and my taxes pay your salary so you work for me. Answer my question OR ELSE.” “It is great to know what my tax dollars do and do not pay for. I am a volunteer running a charity event, which means I do not have the funds to hire a lawyer. Although, the questions I asked were many, I didn't think they would require legal research for a knowledgeable individual employed in your field.” Example: Thank you for your message. We understand that the proposed activity does not fall exactly within 804 KAR 1:110, we were not able to find another law or regulation that would applicable. Since that is the case and with our intent to be in compliance, will you please advise whether the proposed activity would be permissible in Kentucky? Perhaps under a different section or the federal rule? [Out of State Attorney] Example: I have an on-premise restaurant client that would like to do beer sampling/tastings in your state, and my research is not resulting in a definitive determination as to exactly what they can and can’t do. I would very much appreciate your response to the following questions: Can restaurants licensed to sell beer, wine and spirits offer free beer tastings to consumers on the restaurant premises? Are there any special license or permit requirements (besides its regular retail license) in order to provide tastings to consumers? Are there any other restrictions or requirements pertaining to tastings/samples offered by restaurants to their customers? [Out of State Attorney] Example: I am writing on behalf of [NAME], a marketing and advertising agency based in [CITY]. I am writing to seek approval for a planned consumer loyalty program that my agency will be licensing to and/or administering on behalf of certain of our clients who are alcoholic beverage importers and/or distributors. The program will… [details]. Please feel free to contact me with any questions or concerns. If none, please provide your approval via email as soon as possible. [Out of State Marketing Company] Out-of-State Attorneys and advertising/marketing firms often send the Department multi-page question forms about state law to fill out and return. Problem with many of these types of questions is that state attorneys are directly performing legal research and work for private businesses or attorneys who are being paid for the work. Dept. cannot endorse companies. Precious legal time spent on unregulated persons and companies located outside the state. Example: Thank you for talking with me on Tuesday afternoon regarding KY ABC’s position on Texas Hold ‘Em in ABC licensed premises. As a responsible small business owner, I have read the ABC regulations on line and in print, as well as the opinion statements posted monthly online. We believe we have complied completely with all regulations. I am sending you the structure of how we conduct our games and our business. Please review and let us know where you feel we have an issue that we need to address. I look forward to hearing your opinion as soon as possible. [Third Party Promoter] Example: We represent [NAME], a licensed Kentucky wholesaler, in its alcoholic beverage licensing and regulatory matters. [NAME] would like to offer a 12-week course of instruction to retailers and their employees, specifically bar tenders, called the [BARTENDER SCHOOL]…[details of BARTENDER SCHOOL]. The state law that most resembles the course of instruction described above is Section 804 KAR 1:110. The section permits educational meetings sponsored by wholesalers under certain guidelines including but not limited to the following:… We want to ensure that we are in compliance with KY laws and regulations. [Out of State Attorney] Department has a problem with answer shoppers/ “fishermen”. Callers leave out important facts (often purposely) that change answers or analysis. Many callers are often reluctant to put questions in writing. Many times these questions come from third party vendors attempting to market products to licensees. They try to use Department responses as endorsements to market products. State attorneys are not malpractice insurers. Example: I work in the legal department of [LARGE RETAILER] and we are considering using electronic transfers for payment purposes for malt beverages received from our distributors. Section 244.040(d) provides that such transfers need to be initiated by the distributor. It has been suggested to us that this should be interpreted as meaning …. [interpretation]. Could you tell me if this interpretation of the statute is correct? Thank you in advance for any guidance you can provide. [IN HOUSE ATTORNEY FOR LARGE RETAILER] Example: We inquire as to whether the conviction of a principal officer (of an existing license holder) of any of the following California crimes as misdemeanors will result in the refusal to renew of a license in Kentucky….: Dry reckless driving offense…. Wet reckless driving…. Hit and run driving offense…. Child endangerment offenses…. Driving under the influence, a DUI offense. Will a permit holder’s conviction under any one or any combination of these crimes result in the refusal to renew of a license in Kentucky [by operation of KRS 243.100]? [OUT OF STATE COUNSEL] Example: The question concerns KRS 243.270 (Special Private Club License) and what type of licenses are compatible (KRS 243.110). In looking at the history of this license my read is that a Special Private Club Licensee (NQ3) cannot also have a retail or equivalent license for public service at the same property location. See Pendennis Club, Inc. v. Alcoholic Beverage Control Board, 151 S.W.2d 438 (Ky. 1941) (attached). My specific question is whether …[legal issue]. My initial thought is that …[legal opinion]. Aside from what I might think, I did not want to go through the process of having my client apply for a license only to have that application rejected on this point. So, any guidance would be greatly appreciated. [ATTORNEY] Example: Thanks so much. I am not sure if you will be able to answer this but - you say you would be "concerned" about the serving of minors or intoxicated people [through self dispensing machines].… So the question is - Would we ever be denied a license or fail a field inspection due only to concern of something happening? Second question - regarding to the sale of minors…. Is it legal to not allow unaccompanied minors into a restaurant? This could be a way to prevent underage people from drinking. Or the use of stamps when people come into the establishment… I will follow up with legal counsel but if you have answers to the above questions I would appreciate a response :) I will also follow up with our local state enforcement officer - who I believe is ___________ [Person] These are the hardest type of questions as they are often asked by industry members wanting to comply with the law, but they are unable to determine the law. The law is sometimes unclear. A Kentucky Supreme Court Justice once described the Kentucky alcoholic beverage statutes as “a maze of obscure statutory language,” which were “confusing at best,” and whose meaning was “anybody’s guess.” Howard v. Salyer, 695 S.W.2d 420, 427 (Ky. 1985). This is problematic when an industry member must make substantial financial investments dependant upon the law. Authority to issue an opinion on the legality of an activity rests with the Kentucky Attorney General, not the Department. KRS 15.025. Department cannot expand upon, or limit, a statute or administrative regulation, by use of an internal policy, memorandum, or other form of action (email?). KRS 13A.130(1)(b). Any administrative body memorandum, internal policy, or other form of action violative of this section or the spirit thereof is null, void, and unenforceable. KRS 13A.130(2). Does the agency with statutory duty to enforce laws have an obligation to give legal interpretation opinions if legitimate question asked? Licenses are issued by Distilled Sprits and Malt Beverage Administrator, so they are often the ultimate adjudicator of mixed questions of law and fact regarding license issuance. If Administrators disagree with state attorney’s opinion, is the state attorney subject to negligence or liability claim if applicant invested substantial sums of money in reliance on opinion? What attorney conflict or other potential ethic issues are implicated? Many requests for legal opinions involve “dueling” interpretations by different industry groups. Most requests for legal opinions have far greater impact on other statutes and Department policies than requestor realizes or appreciates. All state emails are subject to Open Record Requests. (Kentucky equivalent to Freedom of Information Act requests.). Any expressed opinion is open for the world to see. Email disclaimer: “Any opinions of the author expressed in this email do not constitute policy of the Department, Kentucky Alcoholic Beverage Control Board, or controlling law. Information provided in this email is not legal advice, should not be relied upon as legal advice, and does not create an attorneyclient relationship between the sender and recipient.”