Friday, June 4, 2010

PLCB Hearings, Part II: Enter the Bureaucrats

I was looking at an old blog post this morning -- 2/26/12!! -- when I realized that I had written most of a post about the testimony of Joe "CEO" Conti at the beer registration raid fiasco hearings back in 2010...and never finished it or put it up. I know it's out of date now, but it's still illustrative of how the PLCB is inept, incompetent, and determined to mislead the Legislature into allowing it to continue to exist, despite the clear will of Pennsylvanians. So I put it up. Apologies for not doing so sooner. Feel free to ream me for this, but remember; I could have just left it in limbo!

It was Joe "CEO" Conti's turn, the PLCB CEO. Remember, Conti is very familiar with this venue; he was a legislator himself (until he decided not to run for re-election in the wake of some questionable attitude problems involving -- I kid you not -- a $5,000 water heater after the pay-raise foofaraw in 2005...and Ed Rendell bestowed this $150,000 a year plum on him). Conti was flanked by Jerry Waters (director of the PLCB's office of regulatory affairs, the man responsible for brand registration (and, we assume, all the screw-ups that went with it)) and Rod Diaz, a PLCB lawyer.

Conti opened up (again, these are direct quotes from written testimony, and I'll warn you: it's dense legal stuff. You might want to get a cup of coffee) with his interpretation of what was going on, and it was shady at best; at worst, it was deliberately misleading. First: boilerplate from the feds and The Almighty Liquor Code. "Both state and federal law require that all brands of malt and brewed beverages including beer must be registered prior to being sold in Pennsylvania. Federal law provides that no manufacturer, wholesaler or importer of beer" [...okay, look, I'm going to paraphrase here, because this is lawyer bullshit: you can't sell packaged beer unless it's labeled in conformity with ATTTB regulations, which say labels must include the brand, "class designation," name and address of the bottler/importer, net contents, and alcohol content. I'll go back to full quotes here.] 

"In Pennsylvania, section 445 of the Liquor Code and section 9.108 of the Pennsylvania Liquor Control Board's Regulations [note: there's the Code, and then there's the Regs] require that all beer be registered with the Board prior to it being offered, sold or delivered. Registering a beer in Pennsylvania consists of filling out the application, paying the appropriate fee, providing a copy of the federal Certificate of Label Approval or COLA (which contains a copy of the label) and providing a copy of all territorial agreements affecting the beer." (Like I said before...it really looks to me that 'brand registration' is really about the state marking wholesalers' territory for them. Can anyone tell me why it's the state's responsibility to enforce exclusivity agreements?)

Conti then proceeded to show the COLA for Monk's Cafe Flemish Sour Red Ale. The COLA has a slot for "Brand Name," which the importer, Win-It-Too of Santa Barbara, CA, has indicated is "MONK'S CAFE." Conti seizes on this to prove that it's not the agency's fault, it's the fault of the feds:

"...there is very little guidance on what constitutes a brand name; nor does there appear to be any strict rules as to the conformity between the actual name registered and the name on the label...you will see the COLA for Win-It-Too Inc., which has registered the brand "Monk's Cafe." However, as you can see from the label, which is located at the bottom of the COLA, the label on the bottle actually reads: Monk's Cafe Flemish Sour Ale...there is no way to be completely confident that the brand name and the label name are referring to the same thing other than by looking at the actual label attached to the COLA. The Board has no independent authority to question whether the brand name listed on the COLA is accurately reflected on the attached label."

Pardon my French, but does the Board need "independent authority" to wipe its own butt? The labels provided to the ATTTB say either "Monk's Cafe Flemish Sour Ale" or "Monk's Cafe Flemish Sour Red Ale." They say it very clearly, and I would suggest that only a damned lawyer could care whether it said Flemish Sour Ale or Flemish Sour Red Ale. Brand registration is a hollow-cored piece of garbage anyway; these guys are getting excited over whether it's Monk's Cafe Ale, Monk's Cafe Flemish Sour Ale, or Monk's Cafe Flemish Sour Red Ale on the label? You're got to be kidding me! When you're talking about a database that is so full of errors that even after this spotlight was shone on them, they're STILL getting things wrong (I quote to you from the PLCB's Registered Malt or Brewed Beverages Brands database, dated May 31, 2010: SIERRA NEVADA 30TH ANNIVERSARY SERIES- FITZ & KEN'S ALE. Really? That's the famous "Fitz" Maytag, I guess.), does it really matter whether the brewers get the name right?

(Let me take a little chuckle break, too: if you'll flip back to this post, the one about the letter the BLCE sent to Local 44 about the final disposition of all this? You'll see that they still can't get this right: "YOU, BY YOUR SERVANTS, AGENTS, OR EMPLOYEES, IDENTIFIED MONKS ALE BEER WITH A TAP LABELED MONKS FLEMISH SOUR ALE BEER ON MARCH 4, 2010." And the PLCB's "data"base still calls the beer that the BLCE is quibbling about...MONK'S CAFE ALE. Not "MONKS ALE," which is apparently what the BLCE thinks it should be. Talk about the Gang That Couldn't Shoot Straight; even when they're trying to cover their ass, they miss by a mile.)

He then talked about the dangers of unregistered beers. "Unregistered beer present in the Commonwealth is problematic for a number of reasons. First, without confirmation that the beer has a valid COLA issued by the TTB, the Board has no way of knowing whether the contents of the container conform to what is represented on the bottle." Joe, Joe, Joe...I hate to rock your world, but even if there is a valid COLA, you still have no way of knowing if the contents of a bottle conform to what is represented on the bottle. All the valid COLA means is that if the contents DON'T conform, you can fine them. Ooooo...

Then he brings up the use of brand registration to save us from beer gone bad, bringing up the e.coli contamination of produce, and how difficult it was to track the source of the contamination. "This difficulty would not have been encountered if the product recalled had been beer. Brand Registration enables interested parties, including the Board, to determine the source of any beer to its manufacturer in a matter of hours rather than days."

Really. This ignores Dominic Origlio's testimony of how he and other wholesalers pulled Samuel Adams beers off the shelves -- beginning in hours after the first alert -- and without any need for "brand registration." They had their own records. They needed no prodding from the State, and to the best of my knowledge, received none, nor thanks, either. It also ignores the pathetically bad job the PLCB did in maintaining the database that Conti claims would allow them to swing into action in hours. Not likely. Finally..."determine the source of any beer to its manufacturer"? Look above: federal regulations require the name and address of the bottler/importer to be on the label. You don't need a damned database, just pick up a bottle and look at it.

This whole rant was indicative of this really weird thing going on with both the legislators and the bureaucrats. They seemed to have this bizarre concern that there was some massive "homebrew" ring that was slipping unsafe beer into the system. Folks: there is no such problem. First, you're the PLCB; you don't give a damn about whether the beer we buy is in good shape as long as the taxes get paid. Second, as has been said, no human pathogens -- organisms that can kill ya -- can grow in beer. Beer can go stale, it can get sour, but it is not a disease-carrying vector. Finally, there just isn't enough margin in making 'moonshine' beer -- because PA's beer taxes are blessedly low. High taxes on spirits are essentially a subsidy for moonshiners and smugglers: if there isn't a big tax burden, there's no point to evading the system. This is a non-issue.
 
This is vintage Conti: this is the law, we're right, and that's all there is to it. He read the regs to bury the proceedings in bullshit, to obscure the real problem, which is that the Code is inadequate to the situation, and that the PLCB -- specifically Director Waters' division -- has failed significantly in keeping up the registration database that was the whole basis of this hearing. He seemed to be deliberately missing the point: not that some of the beers were indeed unregistered, which no one was really contesting. The points were that
  1. The PLCB's "list" of registered beers was so full of errors and omissions as to be useless, something that would be bitterly expanded upon by the BLCE officers;
  2. The raids were an absolute overreaction;
  3. The raids were obviously motivated by personal issues, not concern for the law, indicating a serious issue with the complaint process and with the delegation of enforcement responsibility to the Pennsylvania State Police;
  4. The wrong people/entities were catching the heat: the responsibility for brand registration lies on the brewer or importer, not the wholesaler or retailer.

Jerry Waters was up next. The first words out of his mouth (after salutations) were significant (again, these are direct quotes from written testimony): "It is important to note at the outset that it is the Pennsylvania State Police, BLCE and not the PLCB that enforces the Liquor Code...While the Board is often called upon to provide information to the BLCE to assist in its investigations, the Liquor Code does not authorize the Board to take an active role in enforcement actions." Translation: he was throwing the cops under the bus. They did the raids, not us. (And of course, when it's the cops' turn, they will reach out from under the transit vehicle and grab Waters by his finely tailored suit and yank him in there with them; watch for it.)

There was more of this...but I have to apologize, it's now history. I just thought you'd like to be able to look back and see the kind of butt-covering bullshit that went on. Sorry I didn't get this up earlier. 

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