Legal?

[caver95]

I just read this thread and want my 15 minutes back. This is a train wreck and I couldn't stop looking.

 

[emjay]

Every time this topic comes up, I love all the people who think they can come up with a crafty way to make the transaction not technically a "sale". Pretty bottles, coincidental gifts, markup on ingredients...

This is not how our legal system works.

Every time this topic comes up I’m amazed at how many people actually believe the government will prosecute them for bartering small amounts of homebrew.

Way to miss his point, he said nothing of the sort. He was merely making the valid observation that all the legal loopholes these armchair attorneys constantly come up with are not going to get around the law.

So the point is, it's an absolutely frivolous and futile practice. If you're going to break the law (which is doubtlessly low-risk in cases like this), then just go ahead and break the law... these bogus loopholes aren't going to accomplish a damn thing.

Besides, if the OP was sincere when he said this (though somewhat doubtful since he even bothered to create this thread)...

i insisted pay was not needed, but he insisted right back that he wanted to pay me.

... then the obvious decision for him would be to just tell his friend that payment would be illegal and thus he will not accept it. Which, as a fellow homebrewer, I can say without a single doubt would be the RIGHT thing to do - and I don't just mean that in the legal sense, either.

 

[Yooper]

What I would like to know is how many of these scenarios that so many of these posts have hypothetically described have actually been prosecuted? What type of precedent is there for prosecuting homebrewers in scenarios like those described throughout this thread? Does anyone who has posted to this thread know of anyone who has run into legal troubles with their homebrew (in states where homebrewing is legal)?

Well, the question wasn't, 'Will I get prosecuted?". He probably won't get caught, or prosecuted. The question was "Is this legal?". It certainly is not, and no thinking of ways around it will make it so.

It's like speeding- it's not legal. Will YOU get caught and fined for going 5 over the speed limit? No, probably not. Not getting caught is not the same as something being legal- that needs to be clear.

Having a 'tasting party' won't making selling homebrew legal, no matter how you phrase it. Getting caught and prosecuted is highly unlikely.

 

[brewkinger]

+1 to what Yoop said.

 

[MalFet]

There's nothing particularly unusual about how little these laws are enforced. A great many things work like this, where the laws are written broadly to allow discretion in enforcement but where you will almost certainly escape notice if you don't make a nuisance of yourself. Most of us, for example, live in places with all sorts of ordinances about how we keep our houses, but if you don't piss off your neighbor enough for him to start pestering the police, it is unlikely that anyone will care.

There are two things that are probably relevant to the OP:
1) As was mentioned earlier, there's a good chance the owners of wedding venue will have strong opinions about whether or not they want homebrew in their space. People don't get busted for selling homebrew, perhaps, but businesses lose their liquor licenses all the time.
2) If you're breaking the law, even nominally, you're more vulnerable to civil lawsuits from the other guests. Imagine some guy gets drunk, does something stupid, decides he needs to sue somebody, and then recalls that there was this weird "homebrew" stuff that everybody was drinking, you'll find yourself under a bit more scrutiny.

 

[JeepDiver]

100% NOT TRUE!! In fact I am going to the Southern California Homebrewers Festival in a few weeks. Something like 500 beers being served.

lot of states do make exceptions for contest and tastings..

http://www.homebrewersassociation.org/pages/government-affairs/statutes/california

California state statute § 23356.2 allows the manufacture of beer for personal or family use, and not for sale by a person over the age of 21. The aggregate amount of beer with respect to any household shall not exceed 200 gallons or 100 gallons if only one adult resides in such household.

California represents one of the most comprehensive state statutes. §23356.2 also provides for the removal of beer manufactured in the home for use in competitions, tastings, or judgings.

Nothing in there about giving the beer away to a friend for his wedding, for him to take home, or anything else.

 

[Phunhog]

http://www.homebrewersassociation.org/pages/government-affairs/statutes/california

California state statute § 23356.2 allows the manufacture of beer for personal or family use, and not for sale by a person over the age of 21. The aggregate amount of beer with respect to any household shall not exceed 200 gallons or 100 gallons if only one adult resides in such household.

California represents one of the most comprehensive state statutes. §23356.2 also provides for the removal of beer manufactured in the home for use in competitions, tastings, or judgings.

Nothing in there about giving the beer away to a friend for his wedding, for him to take home, or anything else.

So is there any reason why he can't have a "tasting" at the wedding? I was disputing the fact that in CA you can't remove homebrew from your house. Obviously you can for "tastings" which is pretty open ended. If I bring kegs of beer to a homebrew festival or a wedding there really is no difference.

 

[JeepDiver]

So is there any reason why he can't have a "tasting" at the wedding? I was disputing the fact that in CA you can't remove homebrew from your house. Obviously you can for "tastings" which is pretty open ended. If I bring kegs of beer to a homebrew festival or a wedding there really is no difference.

There is a big difference. One is a festival set up by the leagle definition of beer tasting. The others is someone wanting to take his beer somewhere he wants. Words in a leagle statute have a legal definition. If there isn't one clearly spelled out in the statutes, then a Judge gets to decide the meaning, based on the intent of the law, not just someone who wants to make it fit his definition.

 

[thadius856]

there is a big difference. One is a festival set up by the leagle definition of beer tasting. The others is someone wanting to take his beer somewhere he wants. Words in a leagle statute have a legal definition. If there isn't one clearly spelled out in the statutes, then a judge reviews precedent beforehe gets to decide the meaning, based on the intent of the law, not just someone who wants to make it fit his definition.

ftfy.

 

[Phunhog]

There is a big difference. One is a festival set up by the leagle definition of beer tasting. The others is someone wanting to take his beer somewhere he wants. Words in a leagle statute have a legal definition. If there isn't one clearly spelled out in the statutes, then a Judge gets to decide the meaning, based on the intent of the law, not just someone who wants to make it fit his definition.

That's a good way of explaining it. However in CA there is no legal definition of what constitutes a "homebrew tasting". I have scoured the ABC site and have come up with nothing. There are rules governing commercial beer and wine tastings but nothing pertaining to homebrew. So there is no legal defintion of "homebrew tasting". I can't imagine a court actually taking the time on something like the definition of "homebrew tasting". So that leaves us operating in a gray area which is both good and bad. It leaves the interpretation/enforcement up to the local ABC office. I know someone in the bay area was holding a homebrew comp with 500 "judges". The ABC came in and said that a comp could only have 5-7 judges max. I don't where they got that from. It certainly doesn't say that in the law nor has it been decided by a judge. The ABC just wants to make it fit their "definition"

 

[JeepDiver]

That's a good way of explaining it. However in CA there is no legal definition of what constitutes a "homebrew tasting". I have scoured the ABC site and have come up with nothing. There are rules governing commercial beer and wine tastings but nothing pertaining to homebrew. So there is no legal defintion of "homebrew tasting". I can't imagine a court actually taking the time on something like the definition of "homebrew tasting". So that leaves us operating in a gray area which is both good and bad. It leaves the interpretation/enforcement up to the local ABC office. I know someone in the bay area was holding a homebrew comp with 500 "judges". The ABC came in and said that a comp could only have 5-7 judges max. I don't where they got that from. It certainly doesn't say that in the law nor has it been decided by a judge. The ABC just wants to make it fit their "definition"

Good luck fighting the ABC, when they are the ones that right most of the rules.

And yes it is a Gray area, but the reason I posted on this to begin with what the guy in the "Legal Field" telling someone they can give away all the beer they want when they can't.

And as mentioned above, say you give the beer to someone to use at their wedding, which is at a facility with a liqour license. Now lets assume a waiter, or maybe one of the other vendors working the wedding (Flowers, photographs, etc) notices the corny kegs of beer. They are married to a beer distribuitor who happens to have the contract with that facility, and is also connected to someone in the DA's office.

The facility fingers your firend, who fingers you. Do you think the DA will accept your definition of a beer tasting, when his friend is jumping down his neck about the money he lost by not having his beer at the wedding.

Far fetched? maybe. Worth the risk? I might do it myself. Worth telling someone on the internet that there is no way they will get in trouble for it. Sorry but I'm not going to take the risk that A) it could come back and bite me in the A**, and B) Risk someone else getting in trouble because they heard it from me that there is no way they can get in trouble for it.

Fact of the matter when it comes to the Law, if you get the wrong person (Cop, DA, friend of Cop, DA, Judge etc) on the wrong day, and they decide to make an example out of you, you can find your self with a major headache, no matter how many other people have done it 1000s of times.

So go ahead and make the decision for yourself, but know that you take a Risk, and sure as hell don't tell someone else there is no risk

 

[xtian116]

I don't even know if I should admit this here, but I work on many ABC cars. I talked to one of the agents about homebrewing, we actually did a few bottle swaps.

Technically illegal, right? They are only trying to bust people who try to make it a side business. They aren't out to catch the little guy brewing with/for a buddy.

 

[Phunhog]

Good luck fighting the ABC, when they are the ones that right most of the rules.

And yes it is a Gray area, but the reason I posted on this to begin with what the guy in the "Legal Field" telling someone they can give away all the beer they want when they can't.

And as mentioned above, say you give the beer to someone to use at their wedding, which is at a facility with a liqour license. Now lets assume a waiter, or maybe one of the other vendors working the wedding (Flowers, photographs, etc) notices the corny kegs of beer. They are married to a beer distribuitor who happens to have the contract with that facility, and is also connected to someone in the DA's office.

The facility fingers your firend, who fingers you. Do you think the DA will accept your definition of a beer tasting, when his friend is jumping down his neck about the money he lost by not having his beer at the wedding.

Far fetched? maybe. Worth the risk? I might do it myself. Worth telling someone on the internet that there is no way they will get in trouble for it. Sorry but I'm not going to take the risk that A) it could come back and bite me in the A**, and B) Risk someone else getting in trouble because they heard it from me that there is no way they can get in trouble for it.

Fact of the matter when it comes to the Law, if you get the wrong person (Cop, DA, friend of Cop, DA, Judge etc) on the wrong day, and they decide to make an example out of you, you can find your self with a major headache, no matter how many other people have done it 1000s of times.

So go ahead and make the decision for yourself, but know that you take a Risk, and sure as hell don't tell someone else there is no risk

Actually ABC doesn't write the laws, the CA legislature does. The ABC's job is enforcement and to some degree interpretation of current laws. That is why we need to petition our lawmakers for more homebrewing friendly laws.
If a facility doesn't want you to bring homebrew for whatever reason you must abide by that. Their house....their rules. End of story
Your story is a bit far fetched. Lets assume that really happened though. The "evidence" is a friend of friend of a co-worker saw something suspicious? Do you really think that would hold up in any court? I can't imagine in my wildest dreams that anyone would spend the time/money investigating something like this.

 

[Beer_Eugenics]

Way to miss his point, he said nothing of the sort. He was merely making the valid observation that all the legal loopholes these armchair attorneys constantly come up with are not going to get around the law.

So the point is, it's an absolutely frivolous and futile practice. If you're going to break the law (which is doubtlessly low-risk in cases like this), then just go ahead and break the law... these bogus loopholes aren't going to accomplish a damn thing.

Besides, if the OP was sincere when he said this (though somewhat doubtful since he even bothered to create this thread)...



... then the obvious decision for him would be to just tell his friend that payment would be illegal and thus he will not accept it. Which, as a fellow homebrewer, I can say without a single doubt would be the RIGHT thing to do - and I don't just mean that in the legal sense, either.

Didn’t miss his point I was merely piggybacking off the “every time this topic comes up” statement.

 

[Oddball]

We will pretend you didn't mention it and assume you won't blab about it if it happens.....

 

[tennesseean_87]

I will never take legal advice from someone who spells legal 'leagle'.

 

[dkwolf]

I don't know if I can find an example but I do find it hilarious that some people on this board really do think that this forum is monitored.

While I'm not going to say they ARE monitored, I wouldn't bet any amount of money that they AREN'T.

Take for instance, a fairly popular outdoors forum in the state of Iowa. I can tell you with 100% certainty that officers with the Iowa DNR have accounts on that forum, and do monitor the messages posted there. This knowledge came to me directly from a college roomate of mine, who is a DNR officer (although at the time he did not do any of the online stuff).

Don't think it can't happen.

 

[jefferym09]

Well if i cant remove my homebrew from my house then i MAY HAVE broken that rule plenty of times already. i know theres not much chance they would find out. but i also figure it would be good to get my liquor license at some point anyway, prob not anytime soon if it really is a pain in the ass to get.

 

[jefferym09]

and for the record i never posted my intentions online to actually sell him the beer in this fashion. I assumed it was illegal and just wanted to clarify.

 

[krackin]

and for the record i never posted my intentions online to actually sell him the beer in this fashion. I assumed it was illegal and just wanted to clarify.

We all know that, Honest Jeff.

 

[trujunglist]

Any lawyer worth his/her salt will rip that CA language to threads. Where is the legal definition for most of what they are saying? What constitutes a "tasting," anyway? Pretty sure if I drink a beer I am tasting it. Pretty sure that an "organized affair" could be me calling my buddy and saying to come over, or vice versa. If he randomly showed up, that might be a different story.

 

[Phunhog]

Any lawyer worth his/her salt will rip that CA language to threads. Where is the legal definition for most of what they are saying? What constitutes a "tasting," anyway? Pretty sure if I drink a beer I am tasting it. Pretty sure that an "organized affair" could be me calling my buddy and saying to come over, or vice versa. If he randomly showed up, that might be a different story.

I am sure the ABC knows that. That is why if they can get away WITHOUT enforcing the law then they will. Their limited budget is directly funded by revenue from alcohol licensing and licensee fines. They receive no money from homebrewers so they don't really want to deal with them. I am participating in a "tasting/organized affair" in a few weeks along with some commerical breweries and other home breweries. It is just such a grey area we are just rolling with it.....

 

[MalFet]

Well if i cant remove my homebrew from my house then i MAY HAVE broken that rule plenty of times already. i know theres not much chance they would find out. but i also figure it would be good to get my liquor license at some point anyway, prob not anytime soon if it really is a pain in the ass to get.

It's more than just a pain in the ass. In most states (including, I believe, California), you need to hold lease on a dedicated commercial property before you can even apply.

 

[JeepDiver]

It's more than just a pain in the ass. In most states (including, I believe, California), you need to hold lease on a dedicated commercial property before you can even apply.

That is the fed requirement before you even get to state stuff. And to sell homebrew you need a federal brewing license plus whatever your state requires. Not just a liquor license

 

[BigFloyd]

Any lawyer worth his/her salt will rip that CA language to threads. Where is the legal definition for most of what they are saying? What constitutes a "tasting," anyway? Pretty sure if I drink a beer I am tasting it. Pretty sure that an "organized affair" could be me calling my buddy and saying to come over, or vice versa. If he randomly showed up, that might be a different story.

The problem is that YOU have to pay the lawyer ($$$ cha-ching!!).

The other side has taxpayer-funded lawyers, investigators, etc. who can spend as little or as much time as they like going after you. And, especially in CA, you never know what kind of judge you may end up in front of.

 

[BucknerBrauhaus]

Why not just give him the beer as a wedding present -- what he does with it after that will be his problem (providing you are allowed to gift it by law).
As is previously stated in here, receiving any money or goods in return for your beer, no matter how convoluted your scheme, is illegal.
Also, not only may the Feds be monitoring this site, some may even be members.

 

[GrogNerd]

don't need a human to crawl these sites, just need one to release the spiders

I worked for the S&T division at ATF HQ back in the 90s. there are no stupid people working there

well... not anymore

 

[Phunhog]

don't need a human to crawl these sites, just need one to release the spiders

I worked for the S&T division at ATF HQ back in the 90s. there are no stupid people working there

well... not anymore

I am sure they could but really why would they? I am sure they have much better things to do. I can't believe they would spend the time to investigate what someone said on an internet forum. What if someone was just spouting off lies? Sure if it was an issue of national security or potential violence I could see them checking up on it. But homebrewing?? Really?? Actually it would be fun to play a little game...openly talk about selling homebrew and play it up like you really do all over various homebrew forums. But don't do it. See if anyone takes the bait.

 

[GrogNerd]

I am sure they could but really why would they? I am sure they have much better things to do. I can't believe they would spend the time to investigate what someone said on an internet forum. What if someone was just spouting off lies? Sure if it was an issue of national security or potential violence I could see them checking up on it. But homebrewing?? Really?? Actually it would be fun to play a little game...openly talk about selling homebrew and play it up like you really do all over various homebrew forums. But don't do it. See if anyone takes the bait.

because they don't chase down moonshiners at all.

it's only partially about someone doing something illegal. it's ALL about Uncle Sam not getting his cut.

 

[MalFet]

because they don't chase down moonshiners at all.

Sure they do:

http://www.tennessean.com/article/2.../Moonshine-still-seized-from-Clarksville-home
http://arkansasmatters.com/fulltext?nxd_id=646502
http://blog.al.com/wire/2013/03/blount_county_homebewer_was_ac.html