Calif Alcohol Beverage Controle & the Penal Code

[Rossini]

Several days ago local area bars and restaurants got their annual visit by the local ABC office. Not finding these biz's in violation of The Alcohol Beverage Controle Act ( for example: no minors no obviously drunk no drugs ) the proceeded to check liquor bottles with their flashlights. Light on the bottom shows floaters ( dust or small insects that may have fallen in a bottle.) They pulled several bottles from several biz's citing them for violation of penal code 347(b) "selling or offering for sale poisonous or deletrious potable alcohol."
First, a bug in a bottle MAY be construed as contaminated but hardly poisionous, as you can purchase tequila new with a WORM in it! and Secondly, wasn't this written in the P.C. to stop moonshiners that use poisionous CHEMICALS in the distilling process. It seems to me as another attempt to collect revenue as they will probably not prosicute but settle for a small "fine". The ABC mission is to uphold and enforce the Alochol Beverage Controle Act, not the Penal Code, however they are authorized to cite and make arrests on PC violations, as is any peace officer, but do they really have the trainig to write PC citations. Should I attempt to reason with them about the absurdity of these citations or take the not guilty trial option or pay the $1,000 "fine". Does anyone out there have anything to offer on this?
Thanx
Rossini

 

[racer72]

Would you want to eat or drink something that had a dead bug in it? Your reasoning is what is absurd, not the fine. I applaud the gentlemen for doing a fine job.

 

[Rossini]

The question is: is this a penal code violation? I am not looking for opinions on the tequila worm or any other bug for that matter, I am looking for opinions on the interpratation of the penal code.
Thanx again for any meaningful responses.
Rossini

 

[racer72]

The officers are sworn to uphold the laws of the state of California, not just the rules and regulations of ABC. And as such they have the authority to cite you for violating the law. Why would they do something like cite you if they were not authorized to do so?

 

[Rossini]

Penal Code 347B

The panal code says "Selling or offering for sale harmful or delterious potable alcohol". My question is- how can tequila with a gnat in it be considered harmful, but tequila with a worm at the bottom of the bottle is ok to sell? Are they interpreting the Code to mean that because the gnat was uninvited but the worm was that the alcohol is harmful? And besides the very nature of alcoholic beverages is deleterious.
And as to the question of why would an officer do something like write a citation for a non-violation, even trained professionals make mistakes.
Read the code before 347B and it appears that this section of code was written to punish intentional contaminators.
Thanx again for the insight.
Rossini



347. (a) (1) Every person who willfully mingles any poison or
harmful substance with any food, drink, medicine, or pharmaceutical
product or who willfully places any poison or harmful substance in
any spring, well, reservoir, or public water supply, where the person
knows or should have known that the same would be taken by any human
being to his or her injury, is guilty of a felony punishable by
imprisonment in the state prison for two, four, or five years.
(2) Any violation of paragraph (1) involving the use of a poison
or harmful substance that may cause death if ingested or that causes
the infliction of great bodily injury on any person shall be punished
by an additional term of three years.
(b) Any person who maliciously informs any other person that a
poison or other harmful substance has been or will be placed in any
food, drink, medicine, pharmaceutical product, or public water
supply, knowing that such report is false, is guilty of a crime
punishable by imprisonment in the state prison, or by imprisonment in
the county jail not to exceed one year.
(c) The court may impose the maximum fine for each item tampered
with in violation of subdivision (a).


347b. It shall be unlawful for any person, firm or corporation to
manufacture, sell, furnish, or give away, or offer to manufacture,
sell, furnish, or give away any alcoholic solution of a potable
nature containing any deleterious or poisonous substance, and the
burden of proof shall be upon the person, firm, or corporation
manufacturing, selling, furnishing, or giving away, or offering to
manufacture, sell, furnish, or give away, any such alcoholic solution
of a potable nature containing any deleterious or poisonous
substance, to show that such alcoholic solution of a potable nature
did not contain any deleterious or poisonous substance. Every person
who violates any of the provisions of this section is guilty of a
misdemeanor, and shall be punished by a fine not exceeding two
thousand five hundred dollars ($2,500), or by imprisonment in a
county jail not exceeding one year, or by both such fine and
imprisonment.

 

[wtd]

The bugs in your liquor are a deleterious substance.

To use your worm in the tequila example.
A clean, disease and bacteria free worm is quite edible with no deleterious effect. Much like, say fresh shrimp at the grocery store.
The grocery store couldn't simply go catch some shrimp, bring them into the store and offer them for sale. They must be cleaned and processed to bring them into compliance with applicable health laws.
Similarly, the worms in the teuqila are not simply picked off of the bushes and tossed into the bottles, or allowed to climb into the bottles of their own accord (like your gnats). They are processed like any fresh food and it matters not whether they are put in tequila bottles or on ice at Von's, they are offered unburdened by deleterious substances.
The gnats in your liquor are a different story. The have not had the benefit of being processed into a consumable food item before unceremoniously drowning in your liquor bottles.

Thus your gnats are a disease and germ laden 'deleterious substance' as the term is used in 347b, worms in tequila bottles are not.

In regard to the question in your first post, if I were you I don't know if I would plead not guilty or not, but I don't think that I would attempt to convince them of the 'absurdity' of the charges.

Good luck,
wtd