Spill the wine...

Nov. 7, 2010

Spill the Wine... Bottle ban wrecking the party for Northern Michigan businesses
By Rick Coates
Here in the heart of Michigan’s wine country, diners and restaurateurs
are taking heat from local police for a ‘bring your own bottle’
practice that’s popular -- and legal -- across the nation.
When Mike Curths opened the InsideOut Gallery in TC’s Warehouse
District five years ago, he wanted to create a unique art gallery and
a space for musical, theatrical and cinematic performances. He didn’t
want to be in the bar business.
The same could be said for chefs Eric Patterson and Jennifer Blakeslee
who opened The Cook’s House in Traverse City a couple of years ago.
Their 18-seat bistro was too small to qualify for a liquor license.
From the opening day of their businesses, both Curths and Patterson
allowed their patrons to bring wine and beer to their establishments
in a practice that’s common across the country. But that has since
changed after being notified by the Traverse City Police Department
that this was against the law.

CONTRADICTIONS
This is where the confusion sets in.
“What I was told by the officer was that I was breaking the law by
allowing people to bring their own beer and wine to events at my place
that have a ticket price attached to them,” said Curths.
“Even though I am not giving them the alcohol -- they are bringing
their own -- I can’t do it. But here is where it gets screwy. If I
have a gallery reception and I do not charge for the event, I can
actually give alcohol away.”
Patterson is up against a similar situation.
“I was told that because I am serving food it is called
‘consideration’ and I am not allowed to have anyone bring their own
bottle of wine in anymore,” said Patterson. “But I am told that if I
do not charge people for food I could give away free wine as well.
Here is the real kicker -- this law does not apply to hotels, so had I
opened my restaurant in a hotel this would be legal.”

A WARNING
Both Patterson and Curths said the Traverse City Police approached
them in a non-threatening way and asked that they get in compliance
with a state statute.
“I was told that the prosecutor  was going to start charging
businesses not in compliance and it could even be a felony,” said
Patterson. “So we stopped. Though someone called the police and said
we were still allowing this and they sent a couple of officers over
who went table to table to ask my guests what they had in their
glasses.”
To make matters worse, both businesses have lost a significant amount
of revenue and customers as a result.
“We felt it immediately. People started opting out of coming to shows
when we told them we couldn’t allow them to come in with their bottle
of wine or their growler of beer,” said Curths. “When I started
exploring a liquor license, they were around $80,000. Way out of my
league.”
Patterson is equally frustrated.
“We were allowed to do this for two years. Since June, I have had to
stop and I have lost over 400 reservations through this past week. And
a group of 14 just cancelled for next week,” said Patterson. “We are
not even opening on New Year’s Eve this year, a big night for us
because no one will come without having an opportunity to bring their
own wine in for dinner. Our food at The Cook’s House is made to go
with wine or craft beer. Michigan is the only major wine-producing
state that does not allow the ‘bring your own bottle’ program. Had I
known this I would have opened in Chicago where this is legal.”

SEEKING LICENSES
Both have taken steps to get liquor licenses. Curths has partnered
with a person who currently owns a liquor license and The Cook’s House
has moved to their Wellington Street Market location that has more
seats in hopes of qualifying for one of the new $20,000 liquor
licenses being offered by the State of Michigan for smaller
restaurants.
There is another aspect of the law that grinds Curths and Patterson.
“The enforcement and interpretation is up to the local authorities,”
said Curths. “So in some communities around the state, law enforcement
has looked away. Plus, when you read the code there are some definite
gray areas. In fact, earlier this year the Liquor Control Commission
held their monthly meeting here in Traverse City and when I explained
what I was doing they looked at each other and basically were baffled
as to whether I was breaking the law or not. And the head of the
commission responded back to me that it was up to the local law
enforcement agencies to decide.”
In a statement posted on the Michigan Liquor Control website from
Chairperson Nida R. Samona dated March 25, 2009, the following was
presented:
“Recently, the Michigan Liquor Control Commission has received
numerous inquiries regarding the legality of non-licensed businesses
allowing consumers to consume alcoholic beverages in their
establishments, and numerous inquiries regarding non-licensed
businesses offering free samples of alcoholic beverages to consumers.
The Liquor Control Code of 1998 generally prohibits alcoholic beverage
consumption in non-licensed establishments pursuant to MCL 436.1913
and MCL 436.2027. However, since the participating establishments do
not hold liquor licenses,
the Commission does not have jurisdiction over them and is powerless
to take enforcement action against these unlicensed businesses.
Therefore, the ultimate determination of whether a violation has
occurred rests with the local law enforcement agency and the local
prosecutor.”

DOUBLE STANDARD
“What is frustrating is there are all sorts of events where
establishments in this town that are not restaurants are allowed to
give away free alcohol,” said Patterson. “We were never giving it
away; we were simply letting people bring it in and we are not the
only ones that have been doing it. It has been going on for a long
time, not only in Traverse City but elsewhere. I also know that some
area wine shops have lost out on a lot of sales because myself, other
restaurants and certainly the InsideOut Gallery were directing our
guests to area shops to get their wine.
Curths feels it’s time that local business, the community, government
and law enforcement leaders create some sort of ordinance and language
that everyone understands.
Grand Traverse Prosecutor Alan Schneider stated that his office has
yet to have a complaint on this matter. When asked what the office’s
interpretation was, he was not in a position to answer.
“We do not work in hypothetical situations. Because facts in a
hypothetical scenario change,” said Schneider. “I have not had
conversations with the police on this. How we work in our office is if
the police feel that someone is breaking the law they file charges and
we investigate those charges and decide if we want to prosecute.”

FELONY THREAT
For Curths and Patterson the possibility of being charged with a
misdemeanor is one thing, but “felony” charges was presented to them
by the police.
“I am told that I can make a wine sauce to serve with my meals without
having a license and some sauces are served on the side in a separate
dish,” said Patterson. “What if my wine sauce is served chilled and in
a glass or served at room temperature in a glass? After all, I am the
chef and if I say that this particular dish is served with a room
temperature Pinot Noir sauce in a glass how is that different then me
making a bourbon sauce and pouring it over the top of the dish? Both
result in the guest having alcohol.”

Next week, local law enforcement, state officials, business and
government leaders weigh in on the ‘bring your own bottle’ issue --
including who is making the decision on how this law is being
enforced.