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Sip, Sip; Snip, Snip: Examining the Implementation of the Drybar Bill in California

Kavin Williams | September 28, 2018 | 7:34 AM
Kavin Williams of Murphy Pearson Bradley & Feeney

As of January 1, 2017, AB 1322, also known as the “Drybar Bill” amended California Business & Professions Code section 23399.5 to permit salons and barbershops to serve complimentary beer or wine to customers who are over the age of 21 without a liquor license.  Supporters viewed the Drybar Bill as legalizing a widely-held custom which provides a positive experience for customers. 

However, not everyone supported the Drybar Bill, and it overcame determined opposition.  Opponents expressed concern with the unintended consequences of allowing alcohol consumption at beauty/barbering establishments.[1] Some predicted a “veritable tsunami of alcohol-related harm” if California allowed 42,000-plus beauty salons and barber shops to serve free alcohol to customers.[2]  Opponents also questioned how the Department of Alcohol Beverage Control (“ABC”) could possibly monitor whether salons or barber shops were in compliance.[3]

This article reviews the implementation of AB 1322 by discussing the statutory requirements for compliance under Business & Professions Code section 23399.5 and later analyzes the implementation of the Drybar Bill in light of the concerns raised by its opponents.

Compliance with Business & Professions Code § 23399.5

In California, it is unlawful for any corporation, club, or organization to sell, give, serve, dispense, keep, or allow to be consumed on its premises any alcoholic beverage unless licensed or permitted by law.[4] This prohibition includes the serving of free alcohol with the purchase of another good or service.[5]  Business & Professions Code § 23399.5 provides an exception to the liquor license requirement for serving free alcohol with barber shop or beauty salon service if certain conditions are met. 

First, only beer and wine may be served; other forms of alcohol likely require a liquor license. [6]  Also, there must not be an extra charge or fee for the wine or beer, which means the fee for the barber or beauty service must be same regardless of whether the drink is included.[7]  No more than 12 ounces of beer or six ounces of wine by the glass may be offered to a client.[8]  Also, drinks may only be provided during business hours and no later than 10 p.m.  Lastly, the exception under Business & Professions Code § 23399.5 only applies to barber shop and beauty salon establishments in good standing with the California State Board of Barbering and Cosmetology (“CBBC”).[9]

City and counties retain authority to regulate alcohol consumption through zoning or other regulations.[10]  Therefore, barber shops and beauty salons interested in or already providing complimentary beer or wine should investigate whether city or county regulations place additional restrictions on the practice.

Barber shops and beauty salons should take care to comply with the requirements Business & Professions Code § 23399.5 if providing beer or wine to customers.  Although Business & Professions Code § 23399.5 does not expressly delegate enforcement responsibility, it could be conceivably be enforced by the ABC, the CBBC, or by local officials.  Selling alcoholic beverages without a valid license is a strict liability criminal offense where even good faith mistakes have no defense.[11]  Furthermore, serving alcohol without a license and out of compliance with Business & Professions Code § 23399.5 could be grounds for a disciplinary action from the CBBC.[12]

Evaluation of Implementation

After nearly two years, the wave of alcohol-related harm predicted by opponents of the Drybar Bill has yet to arrive.  This author’s research did not uncover a single reported case in which a complimentary serving of beer or wine with a barber or beauty service led to alcohol-related harm.  The absence of harm may provide support for other industries, such as art galleries, seeking their own liquor license exception.[13]

As practice develops, future research of the enforcement methods of the ABC, CBBC, and local governments may reveal additional guidance to barber shops or beauty salons seeking to provide a complimentary drink with service. 

[1] 3 Cal. Jur. 3d Alcoholic Beverages § 21

[2] Bus. & Prof. Code, § 7404

[3] See e.g., 2017 California Assembly Bill No. 629, California 2017-2018 Regular Session

[4] 2015 California Assembly Bill No. 1322, California 2015-2016 Regular Session

[5] Michael Scippa, Marin Voice: Barbershop beer bill will increase alcohol-related harm, Marin Independent Journal, July 21, 2016. 

[6] 2015 California Assembly Bill No. 1322, California 2015-2016 Regular Session

[7] See Bus. & Prof. Code, § 23300 et. al.

[8] Id

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Bus. & Prof. Code, § 23399.5(c)(5)

Originally posted on Salon Today.

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