A mistake by an employee of the Alaska Alcohol and Marijuana Control Office is allowing the state’s distilleries to continue serving cocktails through at least the first half of this summer.
On Monday, members of the state Alcohol Beverage Control Board were told at a regularly scheduled meeting that their January vote forbidding distilleries from serving alcoholic mixed drinks is invalid. According to the Alaska Department of Law, public notice of that vote was improperly posted beforehand.
The newly discovered mistake means the board will not be able to re-vote upon the distillery issue until June at the earliest, and any decision barring mixed drinks may be enforced until July or later.
Assistant Attorney General Harriet Milks, who advises the ABC board, wrote by email that the printed public notice was published in the Anchorage Press, which does not qualify as a “newspaper of general circulation” under the Administrative Procedures Act.
Under that act, “at least 30 days before the adoption, amendment, or repeal of a regulation, notice of the proposed action shall be published in the newspaper of general circulation or trade or industry publication that the state agency prescribes.”
“The staff person who posted the notice thought that newspaper qualified, but it was later recognized that the Anchorage Press does not meet the requirements of the APA. There was no substantive issue with the proposed regulation at all. It was a simple procedural error. It has been corrected by reposting,” Milks wrote.
The problem for the alcohol industry and regulators is that the incorrect posting means that January’s decision, and the laborious public process before it, is now invalid. The state must re-collect public testimony, prepare another vote, then resubmit the proposed regulation for review by the Department of Law and the office of Lt. Gov. Byron Mallott.
“It looks like we’re going to have to go through all of it again,” said Brandon Howard, one of the owners of Juneau’s Amalga Distillery and one of the people who opposed the board’s action.
Howard has been seeking a legislative fix for a problem that was created by the Alaska Legislature in 2014. In that year, lawmakers approved a bill allowing distilleries to open tasting rooms attached to their manufacturing facilities.
That law states that distilleries “may sell not more than three ounces a day of the distillery’s product to a person for consumption on the premises.”
It does not define “a distillery’s product.”
Until late 2017, that wasn’t a problem. Distilleries operated under the assumption that cocktails were allowed by existing law, and because the issue was never brought to the state’s attention, it was never considered.
In August 2017, AMCO received a complaint that Amalga was mixing its alcohol with vermouth, an alcoholic bitter, that it bought elsewhere. That kicked off a monthslong debate among board members about whether lawmakers intended to allow mixed drinks or not. Distilleries across the state have made mixed drinks a staple of their tasting rooms, but holders of other alcohol licenses have said allowing distilleries to serve cocktails makes them too much like bars.
Members of the Legislature have introduced bills to define a distillery’s product and allow distilleries to serve cocktails, but those appear to be stalled in the legislative process, leaving the matter to the alcohol board.
With the board’s decision on hold, “we are still doing what we are doing,” Howard said.
His distillery will continue to serve mixed drinks: Other distilleries in the state have begun serving “virgin” cocktails with a shot of local alcohol and having customers mix their drinks themselves.
“It’s a strange world out there,” Howard said.
• Contact reporter James Brooks at jbrooks@juneauempire.com or 523-2258.
