This blog entry is for all licensees of the California Department of Alcoholic Beverage Control (“ABC”). We were compelled to write this article to warn ABC licensees of the perils of attending an ABC “309 meeting” also known as a “309 hearing” at a regional office of ABC.
The 309 meeting is an internal name of ABC for a pre-accusation conference or settlement meeting. In other words, ABC investigators have already investigated the case against you, have gathered evidence against you, and plan to discipline your license before contacting you for such a meeting. And attending such a meeting, especially ill-prepared, can be devastating.
Keep in mind that the contents of the ABC’s investigation and the evidence are confidential. They are not public and not discoverable unless and until a formal action is taken. Accordingly, as the licensee, you will not have had an opportunity to see the results of the investigation, evidence compiled, or the identified alleged misconduct prior to the meeting. Rather, the design of the 309 meeting is to keep you in the dark and then overwhelm you with the findings while in an uncomfortable setting.
Our law firm is used to agency investigations being confidential – that is not the extraordinary part. The Medical Board and Contractor’s State Licensing Board, etc. all have confidential investigations. However, what made the 309 hearing unique was its genuine coercive nature. This may have been more the fault of the local ABC office or investigator than anything, however if it was happening there, it is likely to be happening elsewhere. And so, it is best you are prepared – for the salacious content, negative tone, and overall brow-beating. It was extraordinary.
Most Recent Experience
The ABC investigator started by brandishing a twelve-inch stack of alleged “complaints” to a local police department regarding our client’s establishment. He claimed there were nearly three hundred of complaints from the local police over the past six years. Immediately, we pressed to review the substance of the complaints or at least receive some specific examples. In response, the ABC investigator deferred to confidentiality and would not disclose anything specific other than to say that the issues rose to the level of an alleged “disorderly house.”
As the meeting continued, the ABC investigator eventually disclosed – whether intentionally or not – that ABC’s concern was on approximately 37 of those 300+ complaints. Immediately, we did the math and cut-to-the-chase – only 12% of the complaints listed had enough merit to be pursued. Furthermore, these took place over 6 years – meaning, there was 1 incident every other month.
Granted, this is not an exemplary record. But how we attacked the investigator’s presentation certainly deflated the case he had intended to make. This was proven by his initial offer being a 45-day suspension and leaving the meeting with a standing offer of a 15-day suspension.
Again, our firm prides ourselves on having a great relationship with the ABC. And we have had cordial meetings with many ABC investigators, at the local or state level. We have had reasonable, constructive 309 meetings, as well.
That said, our experience in this setting took place. And it did so with counsel present. As a result, it is better to assume for the worst than to go in wide-eyed and optimistic: your license is at-stake.
Perils of attending the 309 meeting.
The following are the main areas of danger from attending a 309 meeting, especially without legal counsel:
- Attendees – Because of the ABC representing that these meetings are informal, a licensee may never think to take an attorney with him or her. The meeting is usually instigated by a simple phone call or a letter innocuously requesting the licensee to come in and meet with an investigator. Nowhere on the notice does it say this is a 309 meeting.
- Admissions – The investigator is taking notes as you spill your guts and try to unknowingly defend yourself. These admissions will be used against you later.
- Pressure – We have rarely seen such pressure and browbeating as the investigators do at 309 meetings. Anyone unfamiliar with the territory would be intimidated by such tactics.
- Settling blindly – ABC’s purpose to settle the case sounds noble but not in the situation where you have no idea what the case is about or its potential merit. An intelligent decision cannot be made on the spot, under pressure, without time to consider the circumstances. We recommend leaving the conference and considering any settlement offer with your colleagues. And contact an attorney with experience settling ABC claims.
As a result, we would always recommend attending a 309 meeting with legal counsel with whom you have consulted in advance, and with a plan going in. Competent representation can turn a terrifying session of negative admissions and certain license discipline into an information-gathering and settlement-negotiation session. Remember the ABC has decided to discipline you and you cannot change their mind at this point. Rather, it predominantly offers you an opportunity to make it worse.