Comments on RBS Pending Regulation

Comment #134

From Kim Blakeley

§161

(c) A training provider shall provide handouts, electronic files, or transcripts detailing its RBS training course content to aid alcohol servers in refreshing their knowledge after they complete an approved RBS training course.

Question:

This states to provide handouts “after” server completed training. My intent was to send this viaemail when registration for training occurs to better prepare servers for content before and follow along throughout the training session for retention purposes. Then, use study guide while taking the exam.

§170

(b) Alcohol servers shall register with the department’s electronic certification system prior to taking the alcohol server certification exam ….

(1) Legal name; (2) Birthdate; (3) Email; (4) Zip code of current residence; and (5) Personal identification information….If this information is required to register online prior to taking exam.

Questions:

What is the “minimal” information approved training providers need to obtain to register servers for a training session?

Is it permissible for servers to sign into electronic certification system and take the exam by smartphone, laptop, tablet and desktop?

(f) Alcohol servers must answer at least 70% of questions on the alcohol server certification exam correctly in order to be issued an alcohol server certification by their training provider.

Questions:

Answer 70% of how many multiple choice questions on the exam?

What foreign languages will the online exam be offered from initial start up?

(h) The department shall provide results of alcohol server certification exams to the training provider who provided the associated RBS training course. If the alcohol server has a passing score, the training provider shall issue the valid alcohol server certification as specified…..

Questions:

Since the exam is an online process with no hard copies of certificates sent to servers, how will the training provider “issue” the valid certificate upon successful completion?

Will training providers by given information of pass/fail (via email) and a certificate no. or identifier no. to send each server via email?

After the server takes the online exam, will they also receive an email notification from department of pass/fail on exam results?

ABC Response

While this comment includes questions that were outside the scope of changes made prior to the second modification public comment period, the department responds as follows:

1. Training providers must provide alcohol servers with these documents either before, during, or after the alcohol server takes the training provider’s RBS training course. However, if it is provided after the RBS training course, it should be done within a reasonable amount of time for the alcohol server to use it as a study aid when completing the alcohol server certification exam.
2. Neither regulations or statute requires a training provider to obtain anything from and alcohol server but their unique identifier within the department’s online certification system. Training providers can request any information they wish when registering alcohol servers for an RBS training course. They should be able to identify the identity of the alcohol server in order to correctly provide access to the alcohol server certification exam and should also keep all private information obtained through their registration process protected using data security protocols required by statute and regulation.
3. Yes, the intent of the department is to provide the exam on many internet accessible computing devices.
4. It is anticipated there will be fifty multiple choice questions, but the department will work with educational experts to determine the best number and delivery for the questions using the regulated curriculum.
5. The department will provide, at a minimum, the English and Spanish languages required by statute, but anticipates having other top spoken languages as defined in the 2020 census results.
6. The training provider’s account that recorded the completion of an RBS training course within the department’s electronic system will issue the certification to the alcohol server automatically upon completion of the alcohol server certification exam. The training provider will also receive automatic notices when this occurs if desired.
7. Certification information will be stored within the department’s online certificate database and all notifications and number will be generated automatically when conditions are met.
8. When the alcohol server takes the certification exam the results are captured and delivered to both the alcohol server and the training provider’s account that recorded the completion of an RBS training course for that alcohol server. This report will report whether the alcohol server passed or failed and information about topics the alcohol server answered incorrectly. The training provider will also have access to aggregate data and analytics for all alcohol servers they have trained through the department’s online certification system.

This comment does not require a change to the current regulatory package.

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Comment #135

From Pete Downs, Family Winemakers of California

Comments on proposed amendments to Responsible Beverage Service Regulation

Family Winemakers of California appreciates the opportunity to comment on the language regarding the Responsible Beverage Service Training Program Regulations proposed by the California Department of Alcoholic Beverage Control.

After reading both the text of modified proposed language for adoption Of Article 25 and the Second Addendum to Initial Statement of Reasons we submit the following comments on the modified sections that have a direct impact on my members specifically Section 169.

With regard to subsection (e) and the assertion of the affirmative defense, you require evidence, supplied by the licensee, to include date of initial employment for the employee in question as well as payroll records for all employees at the licensed premises where the alleged violation occurred. We understand why you need the records for the employee in question; but we fail to see the need or usefulness for the additional information. Recognizing that the Department can make a demand for such information – the Department seeks to make the Licensee prove “that the records of the initial employment provided are truly the alcohol server’s initial employment and that they had not been employed by the ABC licensee previously in any capacity.” This is to prevent a falsification or modification of such records.

Notwithstanding the “guilty until proven innocent” premise of this logic and demand; it is not uncommon for an employee to work for a Licensee in a capacity that does not involve serving alcohol for a period of time – and then being promoted or deciding on their own to take a new career path to a server position – making his or her initial employment date irrelevant. The important date in such an instance is when the promotion/career change to server occurred, not the date of initial employment. The same logic also applies to subsection (f).

The more logical approach would be to ask for the employment records of the Licensee’s employees identified as working in a hospitality/tasting room function. But not the entirety of the Licensee’s workforce.

ABC Response

The department understands commenter’s concern that this could be a large amount of records that is required to prove the accused alcohol server is within the first sixty days of employment by the licensee. However, this is necessary for all persons employed at the licensed premises where the violation occurred because the affirmative defense is for the first sixty days from initial employment, not the first sixty days of initial employment as an alcohol server or manager.

It is common for ABC licensees to rely on other employees outside the normal alcohol server staff to serve alcohol for events or when a licensed premises is busy. These fill in alcohol servers are employees or contractors of the licensee and are required by law to be certified prior to serving alcohol for consumption, even if it is not a normal part of their job duties. The Department is requiring a licensee attempting to use the statutory affirmative defense to ensure the violating employee was not otherwise employed at the licensed premises prior to their employment as a dedicated alcohol server. The large amount of payroll records required effectively limits the ability for licensee to recreate new hire paperwork and create a new initial date of employment for an offending licensee.

This standard does not establish a “guilty until proven innocent” standard as suggested by commenter as it is used as an affirmative defense. An affirmative defense is asserted at a hearing only after the department has proven that the violation exists. If the violation is not proven at hearing, the licensee need not enter these records into evidence because it does not need to assert the statutory affirmative defense. Additionally, the standard does not change or expand the rights of the department to ask for licensee records found in statute under Business and Professions Code Section 25753.

This comment does not require a change to the current regulatory package.