As seen in the San Diego Daily Transcript on December 6, 2016

By Kathleen Spero

Breweries across California, and specifically in San Diego County, have long struggled with deciphering complex environmental health department regulations and their application to breweries and tasting rooms. A new chapter in this story may be in the works, if the San Diego County Board of Supervisors moves forward on December 14, 2016, to adopt new regulations regarding service of food by caterers at breweries, wineries, and other businesses.

Those who are familiar with the craft beer business in San Diego may remember the struggles of The Lost Abbey and several other breweries in summer 2010. After an anonymous complaint was received that The Lost Abbey – which did not operate a food facility or kitchen – may not be compliant with health department facility requirements, officers from the San Diego Environmental Health Department began a countywide series of inspections which resulted in several orders for breweries to comply with strict restaurant health department regulations.

In 2011, the California Legislature stepped in, and enacted revisions to the California Retail Food Code that created statewide exemption of breweries from the definition of a “food facility” provided that the breweries complied with certain beverage requirements and offered “no food, except for crackers, pretzels, or prepackaged food that is not potentially hazardous food . . for sale or for onsite consumption.” The purpose of this proposal was to clarify that breweries and tasting rooms that did not directly provide food to customers would not have to install restaurant grade equipment or comply with stringent health department regulations.

While that seemed to be the end of the story, despite the clear language of the California Retail Food Code, breweries and tastings rooms statewide continue to battle local county health departments with application of this exemption. Over the last year, several breweries and tasting rooms statewide have received individual warnings or ad-hoc inspections that claim the “food facility” exemption does not apply if any third-party or outside food is permitted in the brewery. This has been applied even in the case of mobile food trucks and restaurant takeout or delivery, where the actual provider of the food is in fact subject to restaurant health department regulations and inspections.

The proposed San Diego County Board of Supervisors ordinance would continue this erosion of the “food facility” exemption, by creating a new required permit if the brewery or tasting room wanted to host an outside caterer (although not a mobile food vendor, such as a food truck.) The proposed ordinance would require outside caterers providing direct sales to brewery customers to obtain a catering permit, but goes further and now requires the host venue to also obtain a permit. While breweries and tasting rooms would continue to play no role in the preparation and service of the food, they would nevertheless be required to undergo health department inspections, pay annual permit fees, and provide certain facilities for use by the catering staff during service.

Certainly, expanding safe food options available for customers of breweries and tasting rooms is an important public safety goal. Consumption of alcohol in isolation results in more rapid absorption of alcohol, and access to food during consumption diminishes the possibility of negative effects, both physical and mental, that alcohol consumption can have on a person. Breweries and tasting rooms also want to ensure consistent, high-quality, and safe food offerings for its patrons. However, enacting regulations that impose health department burdens on the venue of service, rather than the actual food preparer only, creates a divide with statewide policies that have premised health department inspections not on whether outside beverages and food are sold or consumed on-site, but solely on whether the food was prepared and offered by the brewery itself.

This new ordinance also creates a separate system of permitting and inspection based on the food vendor. Mobile food trucks, which are inspected and permitted, would not subject a host venue to an additional permitting process, but a mobile private caterer, which is also inspected and permitted, would create a host venue obligation.

Additionally, while the goal is for this ordinance to be a statewide model, its enactment would affect solely those breweries operating in San Diego County and provide a barrier to new breweries seeking to open and expand in the region. Breweries may choose to open or expand in counties that have less stringent regulations in the event this ordinance is enacted, or may decide to forgo a caterer or dedicated food program altogether. In either event, San Diego residents are the ones who lose out.

As attorneys dedicated to representing the craft beer community, we applaud efforts to make dedicated and safe food options available for breweries and tasting rooms without commercial kitchen facilities. However, efforts that place additional burdens on the venue are inconsistent with statewide law and create new and costly inspection requirements will not have that desired result.

Kathleen Spero, Esq. is an attorney for The Craft Beer Attorney APC, a boutique law firm based in San Diego.