Gianni’s Hard Stop at 8

I just wanted a place where I could make wine, age it in barrels and serve it to devoted enthusiasts in a simple tasting room with daytime hours. I never had any desire to operate a bar, or a nightclub, or a lounge. In fact, at my age I don’t even much like going to bars, nightclubs or lounges. 

Now, you might not think getting a license to produce and serve wine on Newport Avenue in Ocean Beach would be a big deal, but it is. The ABC (Alcohol Beverage Control) is the State of California agency that manages such matters. In San Diego County, the ABC has two offices: one in North County San Marcos and one in downtown San Diego. Then there is the San Diego Police Department who must give their blessings as well. 

When I filed for my application, the local ABC office was forthright in telling me that the SDPD will be protesting it.  Because of the high volume of calls to the police from our particular census tract, they would put restrictions on my license. I would have to agree to the restrictions if I wanted to operate as I had planned. 

The application was filed. The police protested. Here were the restrictions:

NOW, THEREFORE, the undersigned petitioner does hearby petition for a conditional license as follows, to-wit:

1. Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 10:00am and 12:00 midnight each day of the week. 
2. There shall be no live entertainment of any type, including but not limited to live music, disc jockey, karaoke, topless entertainment, male or female performers or fashion shows.
3. There shall be no dancing allowed on the premises. 

You are probably thinking the same thing I thought way back in 2015. “Dancing? Fashion shows? What in the hell is that all about? Is somebody in charge around there?!!” 

Nevertheless, the restrictions sounded reasonable. I agreed, signed the document and got the license. 

When I got the license 2015 my vision had come to fruition; I now had a place where I could make wine, age it in barrels and serve it to devoted enthusiasts in a simple tasting room with daytime hours.

I knew it was going to be a tough sell in a beer-soaked community like OB. But by having a great product, a smart, but simple tasting room and a knowledgeable staff it was sure to work. It had to work. I didn’t have a Plan B. 

Starting out was more challenging than anticipated. Not many people were coming in for tasting. Folks would curiously pop their heads in to see what this new place was, but not so curious as to actually come in to try the wine. The organic growth that I was sure would carry us to winedom greatness wasn’t happing. Or, if it was, it was slow. Too slow. I needed a Plan B. 

I thought that having live music might bring people through the front door to try my wine. That became my Plan B. 

At my local ABC office, I inquired about applying for music permit. They told me the same story as before. The SDPD Western Division wouldn’t allow it. Because of the high volume of calls to the police from our particular census tract, they would deny my request. 

That seemed really arbitrary, if not unbelievable. So, I went to the SDPD Western Division HQ and asked to speak with someone who knew about this kind of stuff. In the end, they told me that it’s the ABC that grants licenses, not them. So, I got back to the ABC. Again, they insisted that it was the Western Division’s call. 

I could see where this was going. Nowhere. 

A few months later I figured I’d give it one last try.

I called the San Diego ABC office again and was connected with someone who sounded empathetic to my cause. He told me to send in a check for $140.00. In turn, they would mail a petition form to everyone living within 500 feet of the winery and give them 30 days to protest live entertainment at the winery. A similar petition would also be sent to community “consideration points;” Ocean Beach Preschool, Ocean Beach Elementary, Pioneer Day School, OB One Church, The Response Church, the Way Church, and the Brazilian Church Assembly of God. 

At $140 that sounded like a heck of a deal. I was in. I sent the check. 

After 35 days I contacted the San Diego ABC and fortunately got the same helpful guy on the phone. He told me there had been no protests filed, but because they were using the US Postal Service, they like to allow for an extra two weeks. 

Two weeks pass. I called the guy at the ABC and left a voice mail. No reply. Tried again. Voicemail. No reply. I send him an email. Days pass. No reply. After a month of this I contact the ABC office again and learned that the guy was no longer with the ABC and at the moment they were sorting through all of his files and they would get back to me. 

I was back at square one. And frankly, I didn’t think I had the energy to continue chasing my tail trying to get this stupid license anyway. 

In November 2017 I surrendered. 

Screw this. Business was picking up. The organic growth was finally kicking in. We were doing well enough without live music. I didn’t need the aggravation. 

In March 2019 COVID hit. We were forced to shut down the tasting room. No guests. That’s not a great thing for an upstart business. Particularly a winery with a tasting room that relies on foot traffic. 

Somehow, we made it through to the other end of COVID. We opened up the tasting room again. The business continued to grow. Happy winemaker, happy customers, happy employees, happy, happy, happy. 

Then last February, as in 2022, I saw a call was coming in to my cell from the 916 area code. That’s Sacramento. That means that either the Franchise Tax Board is looking for more money, the Department of Agriculture is looking for delinquent harvest reports, or the ABC is making sure nobody was dancing at the winery. 

It was the ABC.

A very pleasant sounding young woman named Naomi told me she was calling about the status of my 02-Winegrowers License. 

Oh, oh! Did I forget to mail them my annual fee? Have there been complaints? Are they shutting me down. In a fraction of a second impending doom overcame me. I was sure that horrible news was coming.  

I replied to her, “Oh?….. My license?”

She said, “Yes the ABC has decided its willing to remove condition #3 from your license if you withdraw your request for modification of condition #2.” 

I excused myself for not knowing what the hell she was talking about. And explained I that I don’t have a clue what #2 and #3 were.  

Then it dawned on me. I asked, “Does this have something to do with the paperwork I filed back in…….ahh, about 2017 for live music.” 

She looked through the documents in front of her and replied to the affirmative, “ Yes. You filed in 2017.” 

“That was five years ago!” I exclaimed.” I could have earned a Bachelor’s at UCSD and been half way through a Masters in that time.”  

“I’m sorry, sir. We have been very busy,” she politely replied.

She explained that basically, they would be willing to remove the restrictions on my license prohibiting dancing, if I withdrew my application for live music. 

As ridiculous as this all sounded, at least NOW I have someone on the phone from the main ABC in Sacramento. 

I told her I was not interested in the deal they offered. Truth be told, I really wasn’t much interested in having live music anymore anyway, but at this point I thought what the hell. I have had a five-year rest from the bureaucratic BS and tail chasing. I was fully rested and ready to take this on again with new vigor. 

First, I asked her to clarify what the ABC meant by dancing. Would they now allow me to have a disco ball and turn the winery into a club? Is that what dancing meant? She said she didn’t think so, but she’d look into it and get back to me. (sidenote: I haven’t heard back yet) 

I asked what the next step would be, “Is there some kind of appeal mechanism written into this process? 

She said, ‘Yes. First you’ll have to file a Petition for Modification of Restrictive Conditions of License with the San Diego ABC office. Once that is denied, which it will be, you can request the San Diego office send it to the State Administrative Hearing Office. They will schedule a hearing before an Administrative Judge who will make a final ruling. 

It all sounded straightforward enough. I mean, what could possibly go wrong?

I filed the petition. San Diego office acknowledged receipt. 

One month later I called to check on its status. It had not left San Diego yet, but it was on the desk of the director. I was able to contact the director and I was informed that it would be forwarded along soon. Now, on the surface, “soon” might sound a bit nebulous, but it was much better than “never.” 

I tried to stay positive. 

After three more weeks I phoned the director again. I learned that my petition had left San Diego and was now in the hands of the Administrative Hearing Office. Their function is to schedule hearings. 

I called the Administrative Hearing Office and they told me that Lucy and Margie handle these things and I was given their phone number. I called. It rolled straight to voicemail. After a week with no return call, I phoned the Administrative Hearing Office again and I explained that I have not heard back from Lucy or Margie. They suggested that I send them an email at administratiehearingoffice@abc.ca.gov.

Now, I might not be the sharpest knife in the drawer, but I’m sharp enough to know that sending an email to a generic governmental email address was probably not going to produce the quick action I was looking for. I expressed my frustration with the process and the person on the other line was very understanding. She suggested I contact the Senior Legal Analyst for the ABC and gave me his phone number. 

I called. Someone picked up on the first ring. It was like that were waiting for my call. However, when he greeted me and introduced himself it was abundantly clear something was afoul. Either he hated his job or his cat hated him or he was just having a bad day. In the background I could hear the familiar “Come on Down!” announcement blasting on his TV with the accompanying music. 

It seems that I had inadvertently taken the Senior Legal Analyst for the ABC away from watching The Price is Right on company time.  

And he was none too pleased about it. 

My bad. 

He told me to call Lucy and Margie. I told him I had already done that. It had been two weeks without a return call. He said he’d follow up with them as they report to him. 

It took all of my willpower not to suggest that they probably were also watching The Price is Right during business hours. 

My self-discipline prevailed. 

I really was tired of dinking around with this, so I asked him for the name of the judge who presides over the hearings. He gave me the name of the judge and a phone number.

I immediately called. 

He had given me the fax number. 

About an hour later I got a call from Lucy from the Lucy and Margie department whatever the hell that was. Lucy said she was calling to inform me with news that my hearing had not yet been scheduled. 

WHAT?????!!!!! She called to tell me she had no news? It was a quick call. Quick enough that it could have been made during a TV commercial break.

The next week I got a call from Lucy again. She informed me that the hearing had been scheduled and that I would be receiving written confirmation with details via Certified Mail. 

You are hereby notified that a hearing on the petition will be held before an Administrative Law Judge of the Administrative Hearing Office on December 8, 2022 at 9:30 am at the Department of Alcohol Beverage Control San Marcos District Office. 

• You may be present at the hearing
• You have the right to be represented by an attorney at your own expense. You are not entitled to appointment of an attorney to represent you at public expense.
• You are entitled to represent yourself without an attorney.
• You are not entitled to and will not be permitted to be represented by anyone who is not an attorney authorized to practice law in California. 
• You will be permitted to present relevant, admissible evidence and to cross-examine all witnesses testifying for the Department. 

STATEMENT OF ISSUES TO BE DETERMINED

Whether the following conditions should be modified or removed:

Whether the following conditions should be removed and premises expanded:

Whether the continuance of the license with removed or modified conditions and premises would be contrary to the public welfare and morals. 

Contrary to the public welfare and morals? In Ocean Beach?!!

Off the top of my head, it’s tough to even think of something that would be contrary to the morals in OB. 

At this point, I’m not saying that I was doing an end zone touchdown dance, but if that’s where they were setting the bar, I figured if I had a pretty good shot at getting whatever it was I stared out trying to get. 

Now I’m in for the sport of it. 

I decided to represent myself before the judge. I had a month to put together a compelling argument.

Having no experience in this area, the first week was spent researching how to represent myself before a judge. (most resources were unambiguously clear that representing one’s self before a judge is a bad idea). 

The following week was spent creating my watertight argument. 

The hearing date arrived. 

I printed out copies of my arguments. There would be enough copies to share with everyone. They highlighted why Gianni Buonomo Vintners should be granted a license to have live music at the winery on Newport Avenue in Ocean Beach. 

I got to the ABC office shortly after 9:00 am for the 9:30 am hearing. 

Now, based on my previous experience dealing with the ABC, lets suffice it to say that my expectations were not exactly soaring with the eagles. I envisioned sitting across a weathered and warped banquet table from a bulbous middle-aged guy with scuffed shoes, a wrinkled shirt that used to be white 500 washes ago wearing a bad neck tie with the mornings oatmeal still on it. 

Man, was I ever off base……by a lot. 

I walked into a shiny new, fully appointed hearing room. There were six women and me. 

The judge sat on a raised platform in front. To her immediate right was a young court reporter, probably in her early 20s. I was directed to my table where two empty chairs awaited. At the table to my right were two very smartly dressed ABC attorneys. One had come in from Sacramento for this hearing. The other represented the regional San Diego ABC. In the back of the hearing room were two female representatives of the San Diego Police Department. 

It was 15 minutes before the scheduled 9:30 am faceoff and everyone was ready. 

Gulp. 

I had asked for a hearing and damn it, I got a hearing!

Ball is in my court now. Put up or shut up. It was my day to shine. (add additional cliché here) 

It was my day to get before an impartial judge and convince her that having music at Gianni Buonomo Vintners is a good thing and not a bad thing. And good not only for the winery, but for the community and for the performing artists. All good. No bad. All positive. 

I was ready for this.

Just after unpacking my laptop and supporting documents from my bag is when the attorney from the State asked if she could have a moment with me in the hall. 

I followed her out of the hearing room. She asked if I fully understood the deal they had offered. They would remove the dancing restriction if I withdrew my appeal for live entertainment. She continued by explaining to me that if the judge rules against me, my license will have a black mark, or a negative strike or something bad on it. 

I told her I understood the deal. I thanked her for coming all the way from Sacramento and how grateful I was to be standing in front of an ABC attorney who could explain to me what “dancing” was. I explained that in the 7 ½ years we have been in operation I have never seen anyone dancing. No dancing, no ice hockey, no unicorns and no skinny guys in Green Bay Packer hoodies. None of that. Ever.

Without speaking a word, her reflective look intimated that she was well aware how absurd the dancing restriction was.

I explained, “We are not looking to be a night spot. In fact, we have a soft close at 7:00 pm every night. Including weekends! We are a winery with a tasting room. I’m sure you’ve been to wineries up in NorCal. You know the demographic. Several years ago we wanted to have a children’s choir doing Christmas carols, but decided against it because of the restrictions on our license. We don’t want to do anything that would jeopardize our license.”

She seemed reasonable. She told me I could go back into the hearing room. She followed me in and summoned the two SDPD officers to the hall. 

After 20 minutes sitting alone listening the judge and the reporter sniffling and snorting, I started to go a little crazy. I figured making small talk with the judge might not be the best idea. So, I started chatting-up the court reporter. I asked about her school, where she was from and how many hearings she had today. 

Mine was the only hearing. 

All this fuss for little ol’ me. 

The State attorney returned to the room and asked me to join her in the hall with the two cops. 

She said SDPD was willing to allow live entertainment until 6:00 pm. 

I remined them that a lot of working people don’t even get home from work by 6:00 pm. 

They came back; 7:00 pm. 

I explained, “Lets say someone gets home from work at 6:00 pm. That’s a reasonable hour. They get change, grab a quick bite on the fly and get to the winery by 6:40 for 20 minutes of live music. 

“How about 8:00 pm?,” I bargained.

The ABC attorney raised her eyebrows enthusiastically as if to silently convey to the two police officers, “that’s OK with us.” 

The senior officer shrugged her shoulders as if to say “I have way more important things to do today.” She looked down at her shoes and begrudgingly acquiesced. 

Then she emphasized, “But a hard stop at 8!”

The deal was done. 

Gianni’s Hard Stop at 8 was born. 

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