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HOTEL BUSINESS REVIEW

DECEMBER FOCUS: Hotel Law

 

The Challenges Involved in Obtaining Liquor Licenses for Hotels

By Robert J. O'Hara III Attorney, Flaherty & O'Hara, PC | December 2018

Upon the repeal of Prohibition, in fact as a result of the repeal of Prohibition, each state was tasked with coming up with their own schemes for regulating the alcohol industry. (The 21st Amendment to the U.S. Constitution establishes that the states, individually, would have primary control and responsibility over how alcohol is sold within their borders.) Some states settled on a statewide, state-only form of regulation (where the state issues all licenses and makes all relevant regulations over alcohol), and other states further delegated to local control (municipal and / or county) the issuance of liquor licenses and the regulation of sales.

How Did Getting A Liquor License Become So Difficult And Crazy?

The result is that in some states, one license is required for the sale of alcohol at the retail level, at restaurants, hotels, bars and nightclubs, and at package stores, for example, while in other states the same business may be required to obtain two or three liquor licenses – one issued by the state, one issued by the municipality in which the business is located, and one issued by the county. A further twist on how these businesses are licensed, in the first instance or in the case of a subsequent ownership transfer, is that at the repeal of Prohibition, some states became "quota" states and others became "open" or "direct issue" states.

Generally speaking, in quota states, the number of licenses issued to retail on- and / or off-premises locations is limited, typically by municipality or county. And any person or entity who wishes to open a new retail location has to buy one from an existing owner. The price for the sale and purchase of quota licenses is established by the seller, it is a "supply and demand," or "what the market will bear" pricing system, and the state does not receive any of the consideration. In some states, notably New Jersey, Pennsylvania, New Mexico and Montana, the price of licenses approach, and in some cases exceed $1 million dollars.

In open or direct issue states, the system is far less costly, as those wishing to open a new retail licensed establishment simply apply to the state or local agency on the appropriate forms and write the state or local agency a check for license and application fees – which can vary, but which do not typically exceed $10,000 on the high end – and the state or local agency issues the license to the applicant, assuming that the applicant is qualified to hold the license.

Of course, since liquor licensing is a subset of administrative law, it is fraught with exceptions. For example, there are states that have a combined quota and direct issue system, depending on the sort of place that the applicant is attempting to license. California and Florida are such states. And in virtually all states, hotels are exempted from the quota – that is, while restaurants and bars and the like must purchase licenses from existing owners, hotels (typically if they meet certain minimum requirements, such as a minimum number of rooms and they offer meals) – are able to obtain direct issued liquor licenses (rather than pay those potentially exorbitant prices for quota licenses).

When Prohibition was repealed, most businesses were either locally owned, or were at least owned by folks who resided within the same state, if not the same town or city. The explosive growth of interstate business post-WWII was not anticipated by the politicians and bureaucrats who drafted the statutes, rules and regulations post-Prohibition. As a result, no thought was given to the problems that a myriad of regulations, differing from state to state, but all regulating the same thing – the sale of alcohol – would cause for businesses as they entered new states across the county and opened new licensed businesses. On the one hand, states were welcoming and even encouraging new chain restaurants and hotels to enter their borders and open new locations, but on the other hand their liquor authorities – state and / or local – could make entering the state to open a licensed business fairly challenging.

With the development of national chain hotels and restaurants that sold alcohol, alcohol sales grew in importance in mid-century and the businesses simply were not willing to go without liquor licenses. Despite this, states were unyielding on their liquor licensing requirements.

During Prohibition, an estimated 90% or more of the taverns and restaurants that sold alcohol were owned or controlled, through debts and loans, by one manufacturer of alcohol (almost always, breweries). This brewer control of retail outlets was seen as increasing intemperance, which may be arguable, but also as suppressing competition. Local taverns that were owned or controlled by one brewer would, of course, only sell the products produced by that brewer. As a result, with the repeal of Prohibition, as politicians and bureaucrats were creating the laws to regulate the sale of alcohol post-Prohibition, they were uniformly concerned with this "tying" of manufacturers and retailers, and they wanted to bring it to an end. The pre-Prohibition tying of manufacturers and retailers was referred to as the Tied House Evil problem.

This quaint nomenclature referred to the tying of public houses, or taverns, and the ills or evils (intemperance and a lack of competition) resulting from the taverns being owned or controlled by manufacturers. There is a direct, strong link between states' desire to eliminate the Tied House Evil problems while drafting the post-Prohibition laws and the challenges faced today by applicants for liquor licenses.

Generally, state (and federal) liquor laws require that applicants reveal all the immediate and indirect owners of the licensed entity; some states do not care whether the equity owners own tiny fractions of indirect interests in the licensed entity, or whether those owners are limited partners, or whether the general partner or other principal has an agreement with the limited partners not to disclose who they are in the context of such permit applications, or whether the names of the limited partners are proprietary, confidential, or contain the identities of privacy-minded high net worth individuals. On the other hand, there is a group of states that limit their investigation of equity owners to only those who own 10% or more (and in other cases, 5% or more) of the licensed entity. Still other states only require the license holder to disclose its parent or parent and grandparent.

For most full-service hotels, holding a liquor license that allows for the sale of alcohol to guests in their dining areas, and via room service, or to catering customers at weddings and other events held in the hotel ballrooms and conference centers, is absolutely indispensable; the owners and management companies at such hotels have to bite the bullet, and swallow their distaste regarding and their objections to liquor license costs and the disclosure of equity owners and personal information that may be required.

But other hotels, notably limited service hotels, whose liquor operations may consist of manager's receptions or other happy hour-type offerings, where alcohol is either provided free of charge, or is included in the room, or perhaps is offered at steep discounts, the challenges involved with obtaining liquor licenses may well not be worth the effort. And for those hotels, depending on where they are located, the option of foregoing the acquisition of liquor licenses, but still providing "free" alcohol may be available. Ironically, while limited service hotels may be eligible to provide free alcohol in one state, they will be required to obtain a liquor license for the exact same activity in another state.

Given the challenges involved with obtaining liquor licenses, as well as the potential dram shop or liquor liability involved with selling and serving alcohol, many hotel owners prefer that their independent management companies hold the liquor licenses. This can be a wise choice, if the state or other licensing agency allows the management company, rather than the owner, to hold the license. As a result of the state-by-state nature of liquor laws, some states insist that the entity that derives the primary financial benefit from all sales at the hotel hold the liquor license, which would typically mean that the owner is required to hold the license.

Other states allow the management company to hold the license. And further, there are states that may, depending on the financial arrangements between the owner and management company, require the owner and management company to be co-licensees, or that both entities be "on" the liquor license. And, there are a handful of states that allow the fee owner, operating lessee or management company to hold the license.

Hotel acquisitions often close very quickly after the onset of negotiations to sell and buy a hotel. In fact, the closings happen so quickly in many cases that there is no possible way for the new owner or new management company to obtain the appropriate liquor license prior to closing, as is required in most states. Obtaining a liquor license, and even a temporary permit (where they are available, which is in a limited number of states), typically takes in excess of thirty days, on the short side, to up to six months or more in the slowest of states. Closings are not often delayed to allow for liquor license acquisition, so a solution for the interim sale of alcohol has to be put in place.

Many states do issue temporary licenses shortly after the filing of a full application (they take anywhere from a week to a month to be issued), but many other states do not issue temporary licenses. A group of states offer formal interim arrangements, whereby either the seller continues to operate the alcohol sales for the buyer after closing, or the buyer operates the alcohol sales after closing, but with express permission from the liquor authority to "use" the seller's liquor license (even though the seller has departed the premises and is no longer actively involved in any aspect of the operation).

A final group of states offers no temporary license and no formal interim arrangement, so what does one do if the closing must occur prior to the liquor agency's issuance of a liquor license? There are a variety of potential contractual interim arrangements that the seller and buyer may enter, which typically allow operations and the sale of alcohol to occur during the period between closing and license issuance (the "interim" period), but the parties who enter such agreements must do so with full disclosure of the risks – it is possible that the state would object to such interim agreements, taking the position that the closing must be postponed or cannot occur until the state issues a license to the buyer, whether that is within a month or six months.

When determining the closing date, and analyzing how long an application process will take, there is a list of potential hiccups that can delay license issuance. For example, nearly all states require that the seller's taxes be fully filed and paid before a license will be issued to the buyer. Some states require that the seller does not owe any money to an alcohol wholesaler. Also, any complaints or citations against the seller must be fully resolved before the buyer will be approved by the liquor authorities. All disclosures of all equity owners, and of all personal information (which may include fingerprints and sensitive financial information, such as bank account numbers and net worth, and sensitive information on the family members of officers and directors) must be completed before the license will be issued.

Thorough information on the source of the funds used by the buyer / licensee is often required and sometimes difficult to satisfy, as is ownership information on non-licensed parties (such as landlords and non-licensed owners), before the applicant will be issued a license. The applicant may be required to demonstrate that all other non-liquor permits that are required to operate the hotel have been required (such as health and occupancy permits, as well as any conditional use permits), and some states require new inspections by all relevant government agencies, as well as local police department sign-off, before the new license will be issued. In many states, criminal background checks on the principal officers, directors and equity owners must be received, and must be satisfactory, before liquor licenses will be issued. (DUIs and the like on principals may delay or prohibit the issuance of liquor licenses.)

Finally, certain groups often have the right to protest the issuance of a liquor license, such as residents, other liquor licensees, and restrictive institutions (schools, churches and charities) located within prescribed distances from the hotel. If they protest, oftentimes a hearing is required. Hearings delay everything, and if a lawyer was not used to prepare and file the application in the first instance (we, of course, recommend that a lawyer be involved), a lawyer certainly ought to be involved when a hearing is scheduled. The closing date and its relationship to the estimated time for issuance of the liquor license(s) should be thought out by the principals and a conscious decision about the approach should be made.

Once a liquor license is obtained, the license holder ought to be aware that if any information that it submitted to the liquor licensing authorities in order to obtain the license changes at any subsequent time, the license holder is required to notify the licensing authorities. In other words, if new investors take equity interests in the licensed entity after the license is obtained, or if the officer or directors change, or the licensed premises are altered, the changes must be timely reported. For the most part, every liquor license has to be renewed annually (in some places, more often, in some less often). Every renewal application expressly includes a representation by the person who is signing the renewal that there have been no changes to the ownership, officer and directors or the premises.

If there are changes and those changes were not previously reported, to report them as part of the renewal will delay issuance of the renewed license. If this requirement is not expressly included in the renewal form, it is included in the relevant statute, regulations or agency rules. Since renewal forms are often considered "sworn statements," providing a false representation in this regard may be regarded as perjury, carrying related possible penalties.

Given the challenges that applicants and owners can face when obtaining liquor licenses, and the potential importance of liquor licenses to many hotel operations, it is wise to have a solid plan in place for filing for the required liquor license, and obtaining them, in a timely manner - a plan that includes knowledgeable professional assistance.

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This Agreement shall be governed by and construed in accordance with the laws of the State of California notwithstanding any conflict of laws provisions. You and HotelExecutive agree that the venue for all legal disputes, controversies, actions of any kind arising under or related to this Agreement shall be San Francisco, California. You and HotelExecutive further agree that in case of any litigation regarding this Agreement, you irrevocably and unconditionally (i) consent to submit to the exclusive jurisdiction of the state and federal courts in the County of San Francisco, California for any litigation or dispute arising out of or relating to this Agreement, (ii) agree not to commence any litigation arising out of or relating to this Agreement except in the California Courts, (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum, and (iv) agree the California Courts represent the exclusive jurisdiction for all litigation relating to this Agreement.

11. MEMBERSHIP FEES

Hotel Business Review Subscriptions

If you choose to purchase a subscription, member subscription payments can be made in U.S. Dollars, as well as a variety of international currencies. Membership terms are Annual Recurring, and Monthly Recurring. The Annual Recurring subscription is an annual commitment and subscribers will be charged each consecutive billing cycle. Annual Recurring subscriptions can be cancelled after the first billing cycle and within 30-days of the billing date for a full refund. Monthly Recurring subscriptions are ongoing and subscribers will be charged each consecutive monthly billing cycle. Monthly Recurring subscriptions can be cancelled after the first month and within 7 days of the monthly billing cycle for a full refund.

12. PAYMENT AUTHORIZATION

Payment for the services provided to you in, at, through or in association with HotelExecutive may be made by automatic credit card, debit card, direct debit, bankwire or Paypal and other approved payment means offered in, at, through or in association with HotelExecutive, and you hereby authorize HotelExecutive and its agents to transact such payments on your behalf.

You hereby authorize HotelExecutive's Internet Payment Service Provider to charge your credit card to pay for your membership to HotelExecutive. You further authorize HotelExecutive's Internet Payment Service Provider to charge your credit card for any and all purchases of products, services in association with HotelExecutive. You agree to be personally liable for all charges incurred by you in association with your access or other use of any content provided by HotelExecutive or any third party in association with HotelExecutive. You acknowledge and agree that your liability for all such charges shall continue after termination of your access or any type of membership arrangement with HotelExecutive.

In the event that you have chosen to have your membership automatically rebilled, unless and until you notify HotelExecutive that you wish to cancel or terminate your membership to HotelExecutive, you hereby agree and authorize HotelExecutive's Internet Payment Service Provider to automatically renew your membership to HotelExecutive on a continuing basis and to charge your credit card (or other payment means you have selected) to pay for the ongoing cost of your membership. You hereby further authorize HotelExecutive's Internet Payment Service Provider to charge your credit card (or other approved payment means you have selected) for any and all purchases of products, services and entertainment provided to in, at, through or in association with HotelExecutive.

13. PRIVACY POLICY

The following is the Privacy Policy for HotelExecutive

We can be reached via telephone, email, or online at our contact page. When you visit our site we do not log any information regarding your domain or email address. Information Sharing: We do not share user information with any third parties other than via press release distribution as described below.

Hotel Newswire is a newswire service that distributes press releases on behalf of our users. If you decide to submit a press release for distribution through our system we will transmit your entire press release including any personal information therein contained to our media contacts and online distribution points including search engines. This is the only redistribution of your information that we engage in. Your submission of press releases through our system indicates consent with this policy. The information we collect during your registration process is used to notify users about updates to our service and inform users of any special events hosted by Hotel Newswire. This information is not shared with other organizations for commercial or non-commercial purposes.

Cookies: Our system requires the use of cookies to enable the user to log back into our website to access information from the newswire, without having to log in each time using the required username and password.

If you do not want to receive email from us in the future, please let us know by following instructions included in our communication with you. Users who supply us with telephone numbers online may receive telephone contact from us regarding their account, or informing them of new products and services available on the HotelExecutive website. If you do not wish to receive such telephone calls, please edit your account and remove your phone number from your account profile. This can be done from your user account menu.

Ad Servers: We do not partner with or have any relationship with any ad server companies. From time to time, we may use customer information for new uses not previously disclosed in our privacy notice. If our information practices change at any time, we will post the policy changes to our website to notify you of these changes and provide you with the ability to opt out of these new uses. If you are concerned about how your information is used, you should check back at our website periodically.

Upon request we provide site visitors with access to all information (including proprietary information) that we maintain about them. Users can access this information by logging in to their account.

Security: We always use industry-standard encryption technologies while transferring and receiving user data exchanged with our site. We have appropriate security measures in place in our physical facilities to protect against the loss, misuse, or alteration of information that we have collected from you on our site. We do not store credit card information in our systems.

If you feel that this site is not following its stated information policy, you may contact us.

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