Use This Idea to Save on Taxes

No one likes paying too much in taxes. In this post we’ll review an idea to use an outside service to reduce one of your tax obligations: the dreaded, and ever-increasing property tax.

Property tax is calculated by multiplying the tax rate by the assessed value of the property – land and buildings. For breweries, this can be a sizable expense.

Both the property tax rate and the assessed value change on a regular basis. Some years the rate goes up and the assessment goes down. In other years it’s just the opposite – the rate goes down and the assessment goes up.

The one thing that doesn’t change is that the total tax bill always goes up.

The process to assess the value of a property is subjective at best. Assessors will use comparable property sales and other metrics to gauge value, but rarely are two properties alike. Therefore, the value assigned to our properties is an approximation, an estimate, a best guess.

So, why not hire your own consultant to make a better estimate?

That’s what we did and the result was a savings of $20,000 per year on our tax bill.

The firm of DuCharme, McMillen and Associates guided us through the process, took up very little of our time, and saved us a lot of money in taxes.

DMA performs Assessment Reviews to identify opportunities for reducing real and personal property tax assessments. DMA’s comprehensive review is customized to your specific needs, and we focus on reducing both current and past assessments.

Our property tax professionals will review your entire portfolio of properties or individual properties of concern to you. Both real and personal property tax assessments are scrutinized to determine the accuracy of the data used by the taxing authority, valuation issues, state-specific treatment of property, and overlooked exemptions.

We communicate the results of each property’s review and, with your approval, take all necessary steps to implement the assessment reduction strategies available, including refund recovery. DMA’s property tax professionals have generated billions of dollars in real and personal property tax savings for our clients, many of which pertain to the beverage and bottling industry. We are leaders in identifying industry-specific issues having an impact on value.

Our property tax professionals have reviewed thousands of assessments in nearly every jurisdiction. DMA’s national scope and jurisdictional expertise means our clients realize the maximum benefit available.

If you’re interested in following in our footsteps, reach out to the folks at DMA. There are other firms that do similar work, but we had a good experience with these guys.

No one likes paying too much in taxes. Check out this idea and reduce property taxes in your beer business today.

New Brewery, Winery or Distillery Start Up

By: Kris Bohm: Distillery Now Consulting, LLC  

Starting up a new beverage alcohol business is hard. Whether making beer, wine, or spirits, the challenges are daunting and upfront costs are huge. No one takes the leap to start a new business knowing it will fail, but many of them will. Based on industry data, up to 40% of new beverage alcohol businesses fail. To create a successful business, there is a common question that arises during the planning phase of launching a new beverage alcohol business.

What is the difference between a successful business and one that fails?

  This massively important question should be answered early on for a new business. In doing so, key strategies will be defined for the business from the beginning as it ventures forward. In the following paragraphs, you will find not only the answer to this question, but also a further analysis of successful business practices.

Defining Success: Let’s take a moment to define and measure success in a beverage alcohol business. This definition applies whether in a brewery, winery, or a distillery. These measurements of success will allow us to look closer at the internal workings of the business. As you look closer you will find common traits among nearly every business that is successful. For the sake of this article we will narrowly define success using the specific individual metrics of profitability, sustainability and velocity.

Profitability: The first key metric and measurement of success is profitability. A business must either be profitable, or at a minimum near self-sustaining, with revenue covering the cost of operating the business. Achieving profitability is one of the biggest metrics that defines success. Reaching profitability is essential, as every successful business must be self-sustaining after a certain amount of time. If a business is not profitable for too long of time, it is almost certain to fail.

Sustainability: A successful business must be sustainable in the capacity to produce the products it intends to sell. To clarify, we do not mean sustainability from an environmental impact or energy usage standpoint. Sustainability in this model means the ability to sustain and meet demand for products through growth. For a business model to be sustainable the equipment must have the capacity to grow and meet new demand as the company grows. The reason this metric is so essential is that most businesses must grow to reach profitability. If your business cannot sustain growth it most likely can not grow to become profitable.

Velocity: A business needs to have regular sales to provide consistent revenue for the business. Velocity is a measurement of how quickly your business is turning raw materials into finished goods and selling those goods. High velocity of product means there will be more consistent cash flow for the business. As product velocity increases it is followed by increases in revenue and often economies of scale. Both of which help a business become successful.

Tripod Business Model: Most businesses achieve some of these measures of success, but not too many will achieve them all. Among those who do succeed in meeting all three, there is a common thread that these successful businesses share. They will usually have three separate divisions that perform distinct business activities. These three divisions are production, sales, and marketing. This concept we will refer to as the tripod business model. If the top of a tripod is a successful beverage alcohol business as measured by our success metrics, then there almost always exists these three divisions in the business that make up equally important legs that hold up the business. If you remove any of the three legs, it only leaves the business on two unstable legs, and in time the business will fall and is likely to fail. It is easy to take this observation and call it as incorrect, but if one was to look closely at established successful beverage alcohol businesses they would find truth in this observation.

  When a sizable amount of time and resources are heavily invested into sales and marketing, the business has a strong probability that it will flourish. Often the business will flourish so strongly that production will often feel constrained in the resources it needs to meet the demand of the business. This is the correct way to invest time, financial resources and manpower to grow. If too many resources are dedicated to production in most instances production will have far too much capacity and there will not be enough demand for product to keep production running near its capacity.

  Now that we have defined some measures of success and the business practices that support them, let’s look closer at the three practices that hold up a successful beverage alcohol business, through the lens of a distillery.

SALES: Sales is essential and paramount to the success of nearly any business that has a product they sell. It can be the easier path for a new distillery to focus on their production with a plan to only sell spirits through a tasting room or cocktail lounge that is part of the distillery. A business plan like this can work, but it has a low ceiling that will often restrict a distillery from growing to a successful level. Real sales of considerable volume come from a distillery selling products in the same market as its competitors. This means working to sell spirits in liquor stores, bars, restaurants and other venues. In this market there is immense competition. The only way to compete in the larger spirits market is by investing into sales. This means having people working for your business who are full time employees whose job is to pull your spirits through the market and drive sales.

MARKETING: Marketing is the driving force that directly links to the success of sales. Marketing can come in a multitude of forms, some obvious and some not so obvious. Public facing platforms, such as social media, websites, billboards, magazines, newspapers, and influencers are all forms of marketing in action. The more a consumer or target consumer encounters a brand, the higher the chance that the consumer will buy your brand. Without an active marketing plan in place, consumers will quickly lose sight of your brand. A strong marketing plan and the person or people to continually implement, monitor, and drive a marketing plan is paramount to achieving success. Marketing is the key difference that will take a brand to the next level and keep pulling it up from there. Although it can be easy to not put an emphasis on channeling resources to marketing, it would be a mistake to do so. Many businesses have launched with little to no resources committed to marketing. Often these launches feel successful, but by our measurements are in fact not truly successful. Oftentimes the business will get going and be selling some amounts of product but in most instances a lack of marketing will cause a business to plateau quickly.

PRODUCTION: This practice of manufacturing is easy to give too much focus in the business of distilling. Whether you are distilling whiskey from scratch or bottling sourced spirits, the production part of this business is extremely important. While production is absolutely paramount to the business, this does not mean that the bulk of resources the business has should be invested into the production of spirits, nor the labor or equipment to produce the spirits. If the bulk of resources go towards production thus starving sales and marketing, there will invariably be a lack of sales to cover the costs of production. Now the manufacturing of distilled spirits is in no way inexpensive. Considerable resources have to go to production for it to function. We are trying to urge you to consider all resources the business has and properly allocate them to all three practices.

The battle between the practices: If you ask most folks who work in this industry, whether they work in sales, marketing, or production, they will all likely tell you that their business function is the most important to the success of the business. To be fair, all these folks can probably make a reasonably sound argument to support that statement. It is normal that there is some friction between all three practices because they all have unique functions and priorities that often do not align with one another. For a business to be successful, production, sales, and marketing must work together to achieve the goals of the business. When common goals are shared it is much easier for each part of the business to work in harmony.

Beware the Franchise Law Lurking Behind Your Distribution Agreement  

By: Louis J. Terminello, Esq. and Bradley Berkman, Esq

No party enters a contract with the expectation that its terms will be unfavorable to them. Having drafted innumerable agreements of all sorts, including beverage alcohol distribution agreements, we have learned that the underlying principle for successful contract negotiations and drafting is fairness. Put another way, the rights and duties of the contracting parties must be clear on the face of the agreement and the detriment or consequences to the non-performing party are clearly stated and actionable. Brewers and their distributors are no exception. Each has their own expectations and definitions of success.

Generally, for the brewer it’s to gain points of distribution at on and off premise venues with the goal of obtaining volume expectations. For the distributor it is to see the long terms benefits of their distribution efforts within its assigned territory.  Distributors generally want a long-term relationship where they know their upfront efforts and costs will come back to them when any given brand attains a level of organic or self-sustained sales success. Brewers beware, however. Within the context of an ideal equitable agreement lies the malt-beverage franchise statute. These laws tend to favor the beer wholesaler and are superior in affect to any agreement executed between the parties. Many established brewers are aware of these statutes but many new brewers and brand owners are not. The purpose of this article is to introduce the new brewer and/or brand owner to franchise law basics and offer a few contract drafting suggestions that they can pass on to their contract lawyers that ultimately will create a brand success story that will benefit all parties to the agreement.

The Beer Franchise Law – the Basics

  First, virtually every state has codified the concept of “franchise” into law. An informal and unscientific survey reveals that only three (3) states in the U.S. do not have beer franchise laws on their books. As a brewer, it’s best to assume, without research, that the new wholesaler you’re considering appointing has the benefit of the law and to negotiate any distribution agreement with that in mind. By now, you’re likely wondering what these laws are.

  The National Beer Wholesalers Association (NBWA) rightfully states that that these laws are creatures of the 21st Amendment which grants the states the rights to regulate the distribution and sale of beverage alcohol within their borders. NBWA on its website states that these laws provide a number of positive regulatory contributions including providing consumers with beer choices by promoting the availability of diverse products,  they allow brewers access to the marketplace while preserving the distributors’ independence and act as a public safeguard by requiring responsible sales through the three-tier system. These benefits indeed may be true.

  But a closer look at the beer franchise laws also reveal that many statutory mandated provisions arguably benefit and favor the wholesaler operation and makes cancellation or termination of any brewer/distributor agreement an overwhelmingly difficult task for the brewer/brand owner. Broadly speaking, many beer franchise laws contain the following common elements:

•    Franchise agreements can be made either orally or written.

•    Franchise agreements appoint the distributor as the exclusive seller within an assigned territory and take effect at the time of first shipment by the brewer to distributor.

•    A franchise agreement can only be terminated or cancelled on a showing of good cause and by the showing of a material breach by a party. Almost always, the brewer bears the burden of the showing of material breach by the distributor.

•    Notice procedures and the timing of the same are explicitly stated in the statute(s) and must be complied with. Put another way, the brewer must notify the distributor that they are not performing according to the terms of the agreement.

•    Opportunities to cure must be provided by brewer to distributors in accordance with the statutory timeframes.

•    Buyout provisions and formulas to calculate brand buy-back are often included should the brewer desire to regain control over the brand.

  The above provides the reader with a basic framework of a franchise law. Given that these authors concentrate their legal efforts in Florida, a closer look at the Florida franchise law follows and provides a good example of some of the language that a brewer will likely see in the laws of other states. Florida codifies its franchise law in Florida statute 563.022. That statute is entitled “Relations between beer distributors and manufacturers.” Florida Statute 563.022 is lengthy indeed with over twenty-one (21) parts. To address each part and its subparts exceed this publication’s length requirements for this article. As a caveat, though, to the brewer/brand owner reader, the statute is detailed, carefully drafted and will be relied upon by the courts of Florida in any breach of contract case likely brought by a distributor as Plaintiff and brewer as Defendant.  A summary of the key points of the statute are offered below with an emphasis placed on unfair practices by the brewer/brand owner (supplier) and the grounds and procedures for terminating the distribution agreement.

Florida Statute 563.022

•    “Franchise” means a contract or agreement, either expressed or implied, whether oral or written, for a definite or indefinite period of time in which a manufacturer grants to a beer distributor the right to purchase, resell, and distribute any brand or brands offered by the manufacturer.

•    Any person who enters into agreement with beer distributors in Florida is subject to this section.

•    It shall be deemed a violation by supplier to:

o   Coerce or compel distributor to accept product they have not voluntarily ordered.

o   For supplier not to deliver reasonable quantities within a reasonable time after receiving a distributors order.

o   Coerce or compel or attempt to coerce or compel, a beer distributor to enter into any agreement (written or oral) supplementary to a franchise agreement by the threat of cancelling the franchise agreement.

o   To fix or maintain the price at which a distributor must resell the beer.

•    DISTRIBUTOR’S RESIGNATION, CANCELLATION, TERMINATION, FAILURE TO RENEW, OR REFUSAL TO CONTINUE. Notwithstanding any agreement a manufacturer shall not cause a distributor to resign from an agreement, or cancel, terminate, fail to renew, or refuse to continue under an agreement unless the manufacturer has complied with all of the following:

o    Has satisfied the applicable notice requirements.

o    Has acted in good faith.

o    Has good cause for the cancellation, termination, nonrenewal, discontinuance, or forced resignation. Good cause is defined as all the below occurring:

•    There is a failure by the distributor to comply with a provision of the agreement which is both reasonable and of material significance to the business relationship between the distributor and the manufacturer.

•    The manufacturer first acquired knowledge of the failure described in paragraph (a) not more than 18 months before the date notification was given.

•    The distributor was given written notice by the manufacturer of failure to comply with the agreement.

•    The distributor was afforded a reasonable opportunity to assert good faith efforts to comply with the agreement within the time limits provided for.

•    The distributor has been afforded 30 days in which to submit a plan of corrective action to comply with the agreement and an additional 90 days to cure such noncompliance in accordance with the plan or to sell his or her distributorship consistent with the provisions of this section.

•    BURDEN OF PROOF.—For each termination, cancellation, nonrenewal, or discontinuance, the manufacturer shall have the burden of showing that it has acted in good faith, that the notice requirements under this section have been complied with, and that there was good cause for the termination, cancellation, nonrenewal, or discontinuance.

•    The manufacturer shall furnish written notice of the termination, cancellation, nonrenewal, or discontinuance of an agreement to the distributor not less than 90 days before the effective date of the termination, cancellation, nonrenewal, or discontinuance; in no event shall the contractual term of any such franchise or selling agreement expire without the written consent of the beer distributor involved prior to the expiration of at least 90 days following such written notice. The notice shall be by certified mail and shall contain all of the following:

o    A statement of intention to terminate, cancel, not renew, or discontinue the agreement.

o    A statement of the reason for the termination, cancellation, nonrenewal, or discontinuance.

o    The date on which the termination, cancellation, nonrenewal, or discontinuance takes effect.

General Applicability, Takeaways and Contract Drafting Suggestions

  Although the above is specific to Florida, hopefully it provides the reader with a bit more knowledge concerning these franchise statutes. Once again, many of the concepts codified in Florida law can also be found in similar laws of other states. An essential term in the Florida law that will likely be found in the franchise laws of other states is “Good Cause.” A showing of good cause must be made by the brewer to terminate or cancel a distribution agreement with a wholesaler. In Florida all the elements noted above (see the italicized language) must be present to show good cause. Another essential element which will guide the next part of our discussion is this:

  “There is a failure by the distributor to comply with a provision of the agreement which is both reasonable and of material significance to the business relationship between the distributor and the manufacturer.”

  For the brewer, brand owner or manufacturer, it is elemental that the agreement contains provisions which are both reasonable and of material significance, which if breached and all other requirements are adhered to, may provide them with legally defensible grounds for termination or cancellation of the agreement. Many times distributors try to avoid the inclusion of material terms for obvious reasons by handing over boilerplate agreements for consideration by the brewer. These boilerplate agreements may look reasonable on their face but almost always lack “teeth” and rely solely on the statutory language that overwhelmingly favors the distributor.  But the smart brewer’s attorney will include reasonable material terms such as volume or points of distribution goals over a stated time period. Such material terms may be as simple as stating that the distributor must sell 100,000 cases for the first twelve months from the effective date of an agreement or establishing points of distribution by stating, as a rudimentary example, the distributor will achieve 75 placements (defining “placements” in a reasonable manner) in the first three months of the agreement and another 75 placements in the second three month period. As a contract drafting suggestion it is important to state that if the distributor fails to meet these goals these will be treated by the Parties as a material breach.

  The above recommendations are provided as suggestions only and are not intended as legal advice. The point of this article is to arm the new brewer with useful information so they may level the playing field to a limited degree with their wholesaler partners at the start of the sales and distribution relationship.  After all, the goal is to draft a fair agreement for all parties with the reasonable expectations of all are clearly stated. As a final caveat, beer wholesalers are powerful actors on the state stage. It is of paramount importance that the new brewer hire an experienced alcohol beverage attorney to assist in negotiations and contract drafting.

Is it Time to Order More Brick-and-Mortar Locations for Your Bar or Restaurant?

By: Raj Tulshan, Founder of Loan Mantra

Is commercial real estate making a comeback in the hospitality industry? After several extremely disruptive years of a global pandemic – and the resulting lockdowns, inflation, supply chain disruptions, and staffing shortages – is the future finally brighter for hospitality and real estate? Is it time to invest in more bars and restaurants – and if so, where exactly should you invest and when do you know if it is the right time?

Investing in real estate is a major, long-term commitment requiring careful consideration. Business owners must do their homework before signing a real estate contract, thinking about a host of factors, including the building’s location, the economy, zoning laws, the projected value of the property, and its expected appreciation over the coming years.

  Location is a huge factor. Is the property you’re considering in a good spot that will attract customers? Is the property attractive, in a safe, high-traffic location? Is the community vibrant and growing, with a history of economic stability? Is there easy access with ample parking, or is there a subway or bus stop nearby? What’s the neighborhood like? Is there considerable competition in your space, with tons of other bars and restaurants nearby? Is the neighborhood hungry (pardon the pun) for your type of establishment? Are the demographics right for your type of business? For instance, a heavy metal-themed bar might not flourish in a neighborhood with an older demographic.

  Despite major difficulties in 2020 and 2021, the hospitality and commercial real estate industries are finally in growth phases again, and this growth is likely to continue in 2022. Some things to consider include:

  People are going out again. Demand for in-person goods and services is rising again, as people want to eat at restaurants and go out for some beers. This pent-up demand is good for commercial real estate – and the bars, restaurants, and other businesses that occupy these buildings.

  Hospitality is rebounding. Now that the worst of the pandemic is (hopefully) behind us, business and leisure travel will start increasing again, and people will be dining out more frequently. The growing travel demand means hotels, restaurants, and bars may take on renovation and expansion projects that stalled during COVID. And, increasingly, hospitality business owners will invest in real estate to house their bars and restaurants.

  Secondary markets are growing. The evolution of remote and hybrid work means many employers and employees are moving out of high-rent cities into smaller markets that are more cost-effective. Recently, people have been leaving big, expensive cities like New York in droves, in favor of smaller, more affordable markets like Nashville and Tampa. If you’re thinking of opening a bar – or expanding your brand to new markets – consider these geographies.

  Operators are opting for building ownership. Some restaurant and bar brands are opting to own real estate rather than leasing. When leasing, the building owner is making money, regardless of whether your business is profitable. However, when you own the property, you’ll be building equity regardless of how your business is performing. Many restaurateurs and bar owners are choosing to buy instead of lease because it makes more financial sense over the long term. If you’re the property owner, you won’t have to worry about surprise rent increases. You also won’t need to abide by your landlord’s rules, giving you more freedom with your business and your property.

  Add new revenue streams to boost profitability. With labor shortages impacting the operating hours (and bottom lines) of hospitality businesses, restaurants and bars have realized the importance of having multiple revenue streams to increase profitability, especially if they’re working to cover the cost of their mortgage. Some brands are selling their own beers online or selling branded merchandise at their brick-and-mortar location and online. While people are finally coming back to dine and drink in-person, it’s wise to have additional revenue streams to keep a steady stream of revenue flowing – and so you can cover your mortgage and property taxes if you’re the building owner.

  If you’re financially able to swing it, buying property for your bar or restaurant can be a wise move. As experts predict that the worst of the pandemic is behind us, it looks like the hospitality and commercial real estate industries are poised for a rebound. If you’re thinking about a real estate investment for your hospitality business, be thoughtful and consider the decision carefully before signing the contract.

About the Author:

  Neeraj (Raj) Tulshan is the Founder and Managing Member of Loan Mantra, a financial advisory firm with best-in-class and proprietary fintech, BLUE (“Borrower Lender Underwriting Environment”). Loan Mantra, Powered by BLUE, is next-level finance: a one-stop-shop for business borrowers to secure traditional, SBA or MCA financing from trusted lenders in a secure, collaborative, and transparent platform. Clients turn to Raj because they know he will always pick up the phone and offer unparalleled financial counsel in a remarkably human—even friendly—way.

About Loan Mantra

  Loan Mantra is a financial services company designed to serve small and medium businesses with offices in New Jersey, Charleston, SC and New York. At Loan Mantra your success is our success. This means that our attention, purpose, and intention are all focused on you, our client. We are your ally to overcome obstacles, bringing peace through uncertain times to achieve your highest goals and aspirations. Your friendly, responsive agent will listen respectfully, and service your account actively through one of three locations in the US. We speak your language whether it’s English, Spanish, Hindi, Bengal, Hospitality, Laundry or Manicure, let us help you today. Connect with us at…www.loanmantra.com or 855.700.BLUE (2583)

Optimizing Same Day At Home Beverage Delivery  

By: Anar Mammadov

It’s not easy to make a beverage brand succeed. The marketing must be just right, including packaging, positioning, and placement of ads. Securing distribution is another step; hitting your sales numbers starts with getting your product in stores. Even when those two are achieved, brands still need to find a customer base that will adopt them, sharing their enthusiasm and spreading the word about their products.

  In 2022, beverage brands that want to be successful can add another task to their to-do list: providing same-day delivery. Consumers, responding in large part to the stay-in-place culture that was inspired by the COVID-19 pandemic, have come to expect that most any item can be delivered to their door in a matter of hours, if not minutes. This is true of everything from bandages to burgers to big screen TVs. And it definitely includes beverages. When a customer realizes that they don’t have the beer they want for the cookout or decides a nice bottle of wine would go well with tonight’s dinner, they are looking more and more to same-day delivery options.

The Current State of Same-day Delivery

  For beverage brands that want to meet the same-day delivery expectation, there are a handful of delivery services that can help them. Looking at the reviews for those companies, however, reveals they leave quite a bit to be desired for the brand that is concerned about providing service that consistently inspires glowing reviews.

  Forbes recently ran an article rating alcohol delivery services. At the top of its list was Drizly, which is an online platform that allows users to get alcohol delivered from local retailers. Drizly promises delivery in less than 60 minutes and the “biggest selection for on-demand alcohol in the history of ever.”

  Forbes rated Drizly as the “Best Alcohol Delivery Service Overall,” but reviews show it to be hit or miss. According to the consumer review website Trustpilot, Drizly needs to do some work to become a five-star service. While 39 percent of the reviews described Drizly as “excellent,” 46 percent labeled it “bad.” The most frequent complaints from users focused on delivery times and fees that could be improved.

  Minibar is an online alcohol delivery platform that Forbes rated as “Best Quick Alcohol Delivery Service.” According to user reviews submitted to the online review site Influenster, Minibar provides better than four-star service, but still struggles in some areas, such as providing reliable ETA info.

If you are ordering alcohol with a takeout food order, Forbes says DoorDash is your best option. But users are not kind to DoorDash in their ratings on Trustpilot or Reviews.io.

The Issues That Make Same-day Delivery Challenging

  What is keeping these companies from achieving consistently reliable delivery service?  Anar Mammadov, CEO of Senpex, has some ideas. Senpex is a logistics company that provides safe and reliable on-demand pickup and delivery services for a wide range of companies, including beverage companies. Central to the service that Senpex provides is an AI-powered engine that ensures all of the delivery factors are considered and routes are optimized.

  “There are a lot of factors that need to be considered if you are going to provide delivery in a timely, professional way,” explains Anar. “These include the volume of product, which dictates the size of the delivery vehicle needed, as well as traffic and other road conditions. When you have multiple drivers making multiple deliveries, it gets exponentially more difficult to plan. At Senpex, we rely on our route optimization algorithm to make sure that deliveries are possible and profitable.”

  Sen has some experience in making deliveries. Having worked with more than 3,000 corporate clients, Senpex has more than 500,000 successful deliveries and a 98 percent customer satisfaction rate. And thanks to the help of AI, it is able to achieve that for as little as $7 per delivery stop.

  Anar also highlights the need for reliable in-house logistics that simplify the delivery process by bringing inventory, ordering, and fulfillment together. In addition to partnering with companies to provide a delivery team, Senpex also offers its logistics platform as a SaaS solution for companies that want to increase the efficiency of their own delivery teams.

  “Having your own delivery fleet is not enough to meet same-day delivery expectations,” Anar explains. “You need sophisticated logistics that convert delivery details into optimized delivery routes. The platform needs to keep drivers updated in real-time to make sure that deliveries are not delayed. Being able to stay on top of ETAs allows you streamline deliveries and keep customers informed.”

  In its own operations, Senpex has found it essential to have an AI-empowered dispatch management tool that also provides drivers with an app to track and verify the delivery process.

  “Customers have a lot of expectations when it comes to same-day delivery, regardless of what the product is,” Anar explains. “They want safe and transparent delivery, competitive pricing, and instant real-time status updates. And they want it all to be managed by a professional delivery team. Businesses that can’t meet these expectations are risking their reputations.”

Navigating the Risks Associated with Same-day Delivery

  So what does all of this mean for beverage companies who are contemplating providing same-day delivery. The bottom line is that it is risky. There is a huge potential for craft beverage makers to grow their following through alcohol delivery, as the financial services platform Square recently reported. However, a bad delivery process can come across as a bad brand.

  Is there a solution? The answer may be found in a delivery system that provides a brand with more control than what is typically available through a generalized delivery service like DoorDash. Professional delivery services like Senpex exist to take your delivery to the next level.

  In addition to providing you with the tools that you need to do delivery well, a professional delivery service can also help you to scale that aspect of your business. They give you access to a large fleet while only requiring you to pay for the deliveries that you need. As the demand for delivery grows, you have additional drivers at the ready.

  As you explore the possibilities that are available, here are a few things you will want to consider.

Work with Drivers Who Know Your Business

  Delivering alcohol is not like delivering anything else. Several states have laws that regulate it. Before committing to working with a delivery service, make sure that they can provide drivers that comply with all applicable laws. In other words, choose a professional service that vets its drivers. Let them do the HR work for you.

  Also, make sure that the delivery service has the type of vehicles that are needed to facilitate your deliveries. Not only should they have refrigerated vehicles when that is necessary, but they should also have the right size vehicle. Vehicles that are too small will not be able to handle the load. But vehicles that are too big will often cost you more than you need to be paying. Ensuring that the right vehicle is available is one of the functions of route optimization.

Work with Companies Who Understand Delivery Logistics

  Whether you are partnering with a delivery company to utilize their drivers or simply taking advantage of their delivery logistics platform to optimize the efforts of your own delivery team, there are some things you should look for. For example, look for a platform that integrates with your existing ERP system. If you truly want to take advantage of delivery automation, it is better to avoid working with multiple systems.

  Dispatch management functionality should include tools that allow for real-time fleet tracking. This includes automatic status updates, electronic proof of delivery, and secure driver chat through simple and intuitive apps that are native to both iOS and Android.

  One often overlooked element of logistics optimization is deliveries that are managed by regular drivers on regular routes. Regular drivers know what to expect from both the route and the delivery destination, making them more capable of delivering the type of experience that will lead to repeat business. A company with a lot of driver turnover will not be the best option for businesses that want to provide a consistent customer experience.

  Finally, tools that empower route optimization are critical to success. Last mile delivery is one of the biggest challenges facing businesses today. It takes the most time, it costs the most money, and it serves as the key point of contact between the customer and the brand. It should be a top priority for any delivery service with which you choose to work.

  Overall, same-day delivery provides another revenue stream that beverage businesses should seriously consider tapping. The market clearly exists, even if the price that consumers are willing to pay has yet to be firmly established. Now is the time to explore the options that are available to create a system that can be profitable and provide a positive customer experience.

The Impact of COVID on Beer Tourism

By: Becky Garrison

As expected, brewery tours were among those hospitality offerings impacted by the ongoing global pandemic. While some experimented with online offerings, others simply closed shop or halted operations intermittently.

  For example, prior to COVID, Abil Bradshaw regularly gave tours of the Seattle-based Pike Brewing Company. Also, the brewery engaged Savor Seattle, a local tour provider, who gave tours daily. However, during COVID, Bradshaw moved to Spokane. Also, Savor Seattle ceased operations. While Pike remains understaffed and not in a position to offer tours, founder Charles Finkel can meet for a special tour at the brewery if given adequate notice. 

  Following are examples from a range of brewery tour operators regarding how they pivoted their operations during the past few years, as well as any plans they have for the future.

City Brew Tours, Portland, OR 

  At the end of 2019, City Brew Tours, a tour operator with operations in over 16 cities, had just taken over the operation of Brewvana Portland Brewery Tours. In this capacity, they operated the Original Portland Brew Tour and the Pacific Northwest is Best Tour, as well as private tours. Their Original Tour ran five hours long, visited four of their brewery affiliates and included a meal and beer pairing. The Pacific Northwest is Best tour is a shorter tour at  3 1/2 hours, with three stops and a craft beer pretzel snack.

  Like many other businesses in the hospitality industry, they stopped running their tours in March 2020 with no idea how long they would have to suspend operations. Also, they were unable to provide adequate employment for their beer guides and full-time staff. Chad Brodsky, the founder & CEO of CBT Group, LLC, reflects on this period of time. “There was no workaround and no safe solution to resume in-person tours during the worst of COVID-19. It took 15 months before we could slowly reopen brew tours in Portland, and even then, we had to take every precaution possible, including the limited number of guests, mask mandates, proof of vaccination and strict sanitation protocols.

  During the shuttering of their brew tours, they pivoted to virtual experiences under the brand Unboxed Experiences. Also, they repurposed Brewvana to be a beer lifestyle brand that offered a beer of the month club that explored a new beer city every month along with beer-making kits. This enabled them to bring their full-time staff back. Also, they were able to utilize some of their beer guides in leading online events, such as beer-making at home, beer and cheese pairings and ice cream float experiences.

  Since resuming operations in the summer of 2021, they’ve been able to reintroduce the two tours they were running before COVID-19. However, at times they had to temporarily suspend one or both of their Portland public tours due to the lingering issues brought about by the rise of COVID variants.

  According to Brodsky, staffing and finding reliable tour vans remain the biggest lingering challenges of COVID-19. He noted, “Our hiring process includes multiple steps and trial runs to ensure that new guides can safely lead a tour and are comfortable with the responsibility. The process takes time, and when potential hires decided it wasn’t for them, it would set us back and affect our ability to operate regular tour schedules. Plus, with a country-wide vehicle shortage, it took a long time to secure another passenger van to run more tours.”

Seattle Brewery Walking Tours, Seattle, WA

  Pre-COVID, Tim Lorang offered walking tours of breweries mostly in Seattle’s Ballard or Georgetown neighborhoods. These tours consisted of visiting three breweries for a guided beer tasting of four beers at each brewery. During this tour, he would talk about the beers and beer styles, along with the history of beers and focus on why Seattle was at the forefront of the craft brewing renaissance.

  Once COVID hit, he experienced a 69 percent reduction in his tours in 2020. Lorang experimented with designing webinars and making guides for beer tastings. However, he found this venture became problematic because he could not deliver beer samples to consumers, as he lacked the needed licenses required to send beer through the mail. Also, most breweries had a much more limited supply of beer on stock, and it proved tricky for him to come to a given brewery so he could film his segments. 

  In 2021, his numbers went up 340 percent from the previous year once breweries opened to the public. While Seattle was still not open to tourism, Lorang found that locals within the greater Seattle area booked his tours as they were desperate to go outside and socialize.

  As a number of breweries closed or changed hands, Lorang found he needed to reestablish a number of connections with breweries, hotel concierges, and other businesses that catered to the tourist trade, as many individuals were no longer working in the hospitality industry. Initially, he was limited to hosting tours outside with breweries, only allowing five people per table. Along those lines, the influx of customers wishing to explore the breweries, especially during the weekends, made it difficult at times to find space to host his tour group. During this time, proof of vaccination was a requirement to go on a tour.

  In reflecting on why he remains in business when so many other tour operators have closed shop, Lorang notes that one of the key reasons he survived is that he is a solo entrepreneur. “I don’t have a lot of overhead. I don’t have a van. I don’t have a lot of employees. I’m semi-retired. This is just a passion for me.”

Pedal Bike Tours, Portland, OR

  Since 2008, Pedal Bike Tours has combined two of Portland’s favorite activities by offering pub crawls on a bike. A typical three-hour bike tour would travel five miles and feature a tour of three breweries with a taster tray of six beers offered at each brewery. During the tour, the guide would talk about the history of the microbrewery movement in Portland.

  During COVID, they had no business in 2020, though they could resume business as usual in 2020 with only one of the breweries they frequented remaining closed. They gathered outside where there were no COVID requirements other than the occasional need to mask to go inside the brewery. Also, during this time period, they ceased doing scenic van tours in the Columbia Gorge area after losing their van. 

  At present, they are back to full operations. They do not plan on resuming van tours, choosing instead to focus on their cycling tours. Moving forward, they just added electric bikes, though the tours will not expand the distance they cover. At present, their biggest challenge remains the price of tours, as they had to raise their prices due to the cost of beer.

BeerQuest Walking Tours, Portland, OR

  Pre COVID, they offered a brewery tour and haunted pub tour and would average five to seven public tours a week. In addition, they offered private corporate tours. Once COVID hit, their sales were down by 80 percent. They had to shut down their brewery tour altogether after two of their partners went out of business. Also, those partners who remained open reduced their hours and days of operations. 

  Since COVID hit, their private tour business with corporate clients remains non-existent. Also, they struggle to find employees and remain low-staffed. At present, they offer three or four public tours per week. In particular, they could offer a lower-priced shorter version of their haunted pub tour, which appears to work better for their customers. 

Santa Rosa Beer Passport, Santa Rosa, CA

  In 2016, Visit Santa Rosa created the Santa Rosa Beer Passport as a way to explore and celebrate the world-class craft beer scene in Santa Rosa. While Sonoma County is best known for producing world-class wine, a band of brewery brothers and sisters began pioneering the production of artfully crafted local beers. As a result, this city evolved into a mecca for microbrew maniacs.

  Based on the massive popularity of Russian River Brewing Company’s annual two-week February release of Pliny the Younger, Visit Santa Rosa launched FeBREWary. This venture was a way to promote Santa Rosa’s brewing heritage, showcase artisan producers in the craft beer industry, educate the greater public and unite those who make local beer with those who love it during an otherwise slow time for tourism in Santa Rosa.

  Participation in the self-directed Beer Passport program is simple. At their leisure, craft brew lovers can take their passports to each of the participating 14 breweries and receive a stamp. After collecting at least 11 brewery stamps during the entire month of FeBREWary, participants receive a custom-designed, commemorative oversized Santa Rosa Beer Passport bottle opener medal and lanyard.

  This model proved to be a low-cost way to introduce visitors to the local brewery scene and a tool to inform potential consumers of the changing developments.

How to Get a Grant to Support Your Craft Beverage Business

By: Alyssa L. Ochs

Starting a brewery or distillery can typically cost anywhere from $250,000 to $2 million, which is a lot of money to raise if you’re starting your new endeavor from scratch. Craft beverage businesses often need money from outside sources to launch and continue operations, and one potential source to look into is grant money.

  Grants can be hard to come by in this industry, but they do exist and can be worth the time and effort of applying for a sizable sum of no-strings-attached cash. If your brewery or distillery is looking for funding to get off the ground, keep going or make an expansion, a grant may be precisely what you need to achieve your goals.

Common Needs and Financing Options

  There are many reasons a craft beverage business might seek grant money, such as upgrading a brewing or distilling system, building or expanding a taproom or increasing production capabilities. Grants can also be helpful if you are looking to hire more staff, invest in more eco-friendly approaches or save a struggling business from having to close its doors. During the COVID-19 pandemic, the food and beverage industry saw an increase in grant opportunities to help brewers and distillers stay in business despite public gathering restrictions and government-mandated closures. However, those opportunities were somewhat short-lived and not intended to sustain these types of businesses long-term.

  However, grants are just one of the many ways a brewery or distillery might support itself during challenging times. It is possible to solicit donations or loans from family and friends, tap into savings accounts, apply for a Small Business Association loan or connect with professional investors for funding. Mainvest is an example of a specialized investment platform for professional craft brewers. At the same time, crowdfunding campaigns are still popular options for businesses with good outreach skills and a solid social media following. Yet grants are a preferred source of funding in many instances because they do not require repayment but likely just a follow-up report in the future to prove that grantees are putting the funds to good use.

Examples of Craft Beverage Grant Opportunities

  Grantmakers typically make their awards in cycles that occur once or twice yearly. The opportunities are ever-changing, so it is up to brewery and distillery owners to keep up with what is available and the relevant deadlines. Some funders offer grants annually, while others are more responsive to urgent needs and step up to help during times of emergency.

  For example, the Washington Department of Agriculture Relief and Recovery Grant for Wineries, Meaderies, Breweries, Cideries and Distilleries was a response to COVID-19 and intended to support businesses disrupted by the pandemic because they primarily rely on in-person sales. The money for these $15,000 grants came from a Disaster Response Account managed by the State of Washington Office of Financial Management. Aside from government organizations, some corporations award grants in this industry as part of a commitment to the local community. Yelp recently awarded $25 million in total relief to support independent and local restaurant and nightlife businesses impacted by COVID-19, Amazon started a $5 million Neighborhood Small Business Relief Fund to help small businesses in Seattle with fewer than 50 employees or less than $7 million in annual revenue and Facebook launched its Small Business Grants Program that awarded $100 million in grants and ad credits for up to 30,000 small businesses in over 30 countries. The Restaurants Act was part of the American Rescue Plan Act of 2021 and allowed alcoholic beverage trade groups to specifically include tasting and tap rooms in the definition of establishments that were eligible for grants.

  However, one of the best grantmakers to know is the Brewers Association, which regularly awards Craft Beer Research and Service Grants with priorities that include hop and barley research, draught beer quality studies, sustainability-related projects, supply chain programs and applied research opportunities. In a recent year, the Brewers Association awarded 13 of these grants, totaling nearly $400,000. The Brewers Association also awards Diversity, Equity and Inclusion Mini-Grants to support a more well-rounded and welcoming craft beverage industry through media productions, educational trainings and special events.

  Meanwhile, breweries and distilleries may benefit from the USDA grant program that the USDA’s Agricultural Marketing Service administers and that supports research projects to improve marketing, transportation and distributed-related services. The USDA’s Value-Added Producer Grant Program is an opportunity for farmers that grow products for distilleries in rural parts of the U.S.

  Also, on the distillery side of things, there is the Spirit Hub Independent Distillery Preservation Fund that supports independent distillers and the American Distilling Institute Distilling Research Grant. The Kentucky Distillers’ Association Lifting Spirits Foundation and the Nearest & Jack Advancement Initiative offer additional spirit-related funding and resources.

  Early in 2022, the Michigan Craft Beverage Council recommended $335,000 in grant funding for 13 projects related to research and education to advance the efforts for craft beer, spirits, hard cider and wine. The council’s priorities included climate change impacts, pest and disease management, sustainable water use, wastewater discharge projects, new hop varieties and soil health. Meanwhile, Bottleshare Grant Programs has provided emergency assistance to the craft beverage industry for at least 29 breweries, six state guilds and 175 individuals. Bottle Share Inc. is a charitable organization founded by Christopher Glenn and based in Kennesaw, Georgia that supports industry workers and businesses facing adversity and hardship. Other resources to bookmark for potential funding needs in the future are the Michael Jackson Foundation for Brewing & Distilling and the Pink Boots Society New Mexico State University Course for Brewing & Distilling in Belgium and the Netherlands.

Pros and Cons of Grant Funding

  Many breweries and distilleries are unaware of grant opportunities that exist due to limited promotion and public awareness but could very well be eligible to submit an application. Yet there are benefits to seeking a grant rather than pursuing other funding avenues. First, grants do not have to be repaid, which is a significant advantage over applying for a loan. However, grant applications can be time-consuming, and eventually getting the money in hand can take a substantial amount of time. Grants don’t typically cover overhead, indirect and administrative costs, yet each opportunity is unique and may focus on a specific project or equipment upgrade. There are not nearly as many grant opportunities in the craft beverage industry compared to the nonprofit sector. But applying for grants can get your business onto the radar of major corporations and foundations, thereby boosting your networking power with local community leaders and influencers.

  Some of the biggest names to know for brewery and distillery grants are the Brewers Association, distilling associations like the American Craft Spirits Association and American Distilling Institute and the USDA. State departments of agriculture and restaurant organizations also provide grant funding for the industry, as well as private donors who have personal interests in craft beverages and major corporations with a commitment to niche philanthropy.

Applying for a Brewing or Distilling Grant

  A basic internet search can lead you to current and open grant opportunities for breweries and distilleries, although the funding pool is limited, and the competition can be tough. Craft beverage producers should consider getting involved with industry associations and subscribing to publications and mailing lists to be among the first to know about grant opportunities and deadlines.

  Aside from funding in response to disasters and emergencies, one of the biggest trends in craft beverage grantmaking is encouraging diversity. These grants often help educate and employ women, people of color and members of the LGBTQ community in this industry. Promoting sustainability and eco-friendly practices is another current funding trend among grantmakers that care about craft beer and spirits.

  Although some grants have rolling deadlines and chances to apply at any time of the year, most opportunities have a series of established dates that require applicants to pay close attention. Look into the times when grant deadlines occur before your business even needs funding, just for informational purposes, and mark deadlines on a calendar in case an unexpected need should arise.

  If your business is eligible for a grant, read the guidelines closely, including the best ways to contact the funder for follow-up after you submit your materials. As you review grant proposal guidelines, important details to pay attention to include the budget year dates, duration of funding, funding policies and submission process. Use online applications whenever possible to expedite your application, and be specific in your application concerning the project budget and how you will meet measurable goals. In many instances, it is best to introduce your business and an initial description of what you need to a funder before submitting any official paperwork, either by telephone call, general inquiry email or by scheduling an in-person meeting. And if your business is fortunate enough to secure a grant, keep up with reporting requirements in good faith to set yourself up for potential support in the future if and when you might need it.

  Grants are just one piece of the puzzle to keep a brewery or distillery operational and successful, but they are oftentimes an underutilized asset that might be just what you need to get by or take a new direction with your beverage business.

A Key Metrics Dashboard Just for Beer Wholesalers

At last, a key metrics dashboard, just for beer wholesalers.

Beer Business Finance and GP Analytics have combined forces to create a new software tool that takes the guesswork out of which key metrics to track to achieve your financial goals.

This new analytical tool is custom developed exclusively for beer distributors.

It provides real time data on the most important numbers of your beer business.

This tool will allow you to link key metrics from every department to top line company financial objectives. This creates alignment and synergy, so that everyone is driving the business towards the same financial outcomes.

Do You Need a Financial Metrics Dashboard for your Beer Wholesaler Business?

We are accepting a limited number of Founding Members to help us beta test and develop this new software tool.

Founding members get first access to analytical tools, may provide input to guide the future development of the dashboard tools, and a receive a Founding Member Discount off the standard price, which is good forever.

Are you interested in learning more about this new analytical tool? Email me at Kary@BeerBusinessFinance.com to book a time to talk.

The Data Problem

Wholesaler business data lives in many different places: route accounting system, payroll software, Excel spreadsheets, etc.

It is difficult and time consuming to extract, combine and analyze the information in order to make timely business decisions.

The Data Solution

Our software solution aggregates data from multiple platforms and automatically combines it into an easy-to-read dashboard.

Track only your most important members in real time with simple dashboards. Metrics that align department KPIs to the overall company financial and operational objectives.

How it works…

The software integrates seamlessly with your other applications to aggregate data in real time.

The key metrics dashboard utilizes historical performance along with industry benchmarks to provide a 360-degree view of the financial results your business.

The beer wholesaler dashboard includes our standard set of key metrics for sales, gross profit, operating expense, and profitability, along with inventory, accounts receivable, and cash flow metrics.

You’ll get real time data for only the most important numbers of your beer business.

Ready to get started?

We are accepting a limited number of Founding Members to beta test the new wholesaler dashboard software.

Founding members get first access to analytical tools, may provide input to guide the future development of the dashboard tools, and a receive a Founding Member Discount off the standard price, which is good forever.

Tracking, measuring, and monitoring the most important numbers in your business will transform your financial results.

The Indemnification Clause: A Lease Landmine?

Lease Renting Contract Residential Tenant Concept

By: Brian D. Kaider, Esq.

Most breweries and distilleries are built on leased property.  Negotiating the lease can be a daunting task, as these contracts are commonly over fifty pages long and full of dense legal language that can be difficult to understand.  Additionally, many landlords have “standard” leases to which they expect the tenant to agree with minimal changes.  Aside from definitions of rent and the duration of the lease, many tenants simply accept the remainder of the lease, as is.  More savvy tenants may negotiate issues such as the right to penetrate walls or ceilings for equipment ventilation, the use of outdoor space/common areas, or the state to which the premises must be restored following termination of the lease.  But, there is a section in virtually every lease that is typically ignored and has important consequences: the “indemnification clause.”

What is an Indemnification Clause?

  In the simplest terms, an indemnification clause identifies who is responsible if a third party (e.g., a customer) is injured on or around the leased property.  Most often, the injury refers to a physical injury, such as when a customer slips and falls on a wet floor.  The language of the clause typically provides that in such a case, if an injured customer sues the landlord as a result of the fall, the tenant agrees to compensate the landlord for any expense associated with the claim.  This makes sense, because the landlord cannot be expected to supervise every action of the tenant and if the tenant allows a hazardous condition, like a wet floor, to exist, the landlord should not be held responsible for the tenant’s negligence.  Of course, circumstances are often not as simple as this example and there is a lot of gray area in these clauses that may not be immediately apparent.

  After reading this article, it may be tempting to try to negotiate taking the indemnification clause out of the lease entirely.  First, it is unlikely any landlord would agree to the deletion.  Second, it would actually cause more problems that it solves.  Absent the indemnification provisions of the lease, the landlord could still file a legal claim against the tenant under a variety of legal theories to recover any damages they suffer as a result of the third-party claim.  The better course is to negotiate the terms of the indemnification clause to minimize exposure of the tenant and ensure that the terms are clear and unambiguous.

The Guts of an Indemnification Clause

  The typical indemnification clause is composed of very long sentences with multiple subparts that make it difficult to even read, much less understand.  The following is a breakdown of some of the key terms.

  Definition of the Parties – “Landlord Parties” and “Tenant Parties,” or similar terms are defined to include each respective company along with their owners, officers, directors, shareholders, affiliates, agents, employees, representatives, etc.  In other words, if an injured customer sues the owner of the landlord company, this definition includes the owner as an indemnified party, just as if the customer had sued the landlord company, itself.

  Required Actions – Every indemnification clause will use some or all of the following terms: “indemnify,” “defend,” and “hold harmless.”  While at first glance these terms would appear to mean the same thing, they are very different and which terms are used has important consequences.  In particular, “indemnify” and “hold harmless” seem similar and, in fact, the differences between them varies from state to state.  In general, “hold harmless” means that the landlord will not be held liable for any injuries or damages caused by the tenant.  In other words, if the tenant is sued by an injured customer, tenant will not blame the landlord or try to bring the landlord into the case as a separate defendant.  “Indemnify,” on the other hand, means that if the landlord is sued by the injured customer, the tenant agrees to reimburse them for costs incurred as a result of the lawsuit.  “Defend,” however, means that tenant is responsible for defending the landlord from lawsuits.  That word in the clause should then trigger other questions, such as, who chooses the counsel to defend the landlord? Does the landlord have the right to approve the proposed counsel?  And what happens if there is a conflict of interest between the landlord and tenant being represented by the same counsel?  Those issues should all be addressed in the indemnification clause.  If the word “defend” is not in the clause, though, that means the landlord is free to choose its own counsel to represent them and tenant is still responsible for the landlord’s legal fees, meaning tenant may be paying two different law firms to fight the same case.

  Scope of Covered Claims – The clause should have some description of the types of expenses that are covered.  In some cases, it is extremely broad, such as “any and all costs suffered by or claimed against landlord, directly or indirectly, based on, arising out of, or resulting from tenant’s use and occupancy of the premises or the business conducted by tenant therein.”  The description may be limited to only physical injury, death, or damage to property.  In some cases, it may refer to “reasonable claims.”  Of course, what is reasonable is a subjective question and likely to spur additional legal battles.  In some cases, the lease may require the tenant to warrant that they do not and will not infringe on another party’s trademark rights.  The tenant should always try to limit the scope of such terms to only “knowingly” infringe or infringing “known” trademark rights.  Otherwise, it would impart on the tenant an obligation to scour the earth for all trademarks that could possibly be asserted against it; an impossible task.

  Scope of Covered Property – It should be clear exactly what property is covered by the indemnification clause.  Often a lease will make a distinction between the “Premises” and the “Property.”  Premises usually refers to the actual unit that the tenant is renting, whereas Property refers to the entire parcel of real estate owned by the landlord, which may include other rented units and common areas.  Obviously, a tenant should not be required to indemnify the landlord against something done by another tenant in a separate unit.  But, common areas are much more tricky.  Often, either explicitly in the lease or by oral agreement, a landlord will permit a brewery tenant to occupy common areas, including parking lots, to serve beer and/or allow customers to eat and drink.  If someone drops a glass in the parking lot and the brewery does not clean it up promptly and a customer is cut by the broken pieces, the indemnification clause should protect the landlord if the customer sues.  But, if the landlord is responsible for snow removal in the parking lot and fails to adequately perform its obligations and a customer slips and falls when getting out of her car, the tenant will want such incidents to be outside the scope of indemnification.  If the clause is not worded carefully, that distinction may not be recognized by a court.

  Carve-Outs for Landlord’s Activity – This raises the broader issue of carve-outs in the indemnification clause for landlord’s activity that contributed to the injury.  For example, if the landlord was responsible for the build-out of the premises and was negligent in the installation of the electrical system, then if a customer is electrocuted, the tenant should not be required to indemnify the landlord against such latent defects.  Even then, the choice of wording in the clause is important.  Some leases only carve out “gross negligence,” “recklessness,” or “willful misconduct.”  In that case, if the injury is caused by landlord’s “ordinary negligence” that does not rise to the level of gross negligence, the tenant would still be required to indemnify the landlord against such claims.  It is worth noting, however, that some states hold such clauses to be against public policy, void, and unenforceable.  Those cases, however, often turn on whether the part of the property in question was under the exclusive control of the tenant.

Conclusion

  Landlords generally provide the first draft of a commercial lease and, not surprisingly, they are drafted heavily in favor of the landlord.  While a tenant’s focus may be on maximizing building improvement allowances and minimizing rent, they should review the entire lease thoroughly, and preferably with assistance from an attorney knowledgeable about the beverage industry.

Often, the landlord will be in a position with greater bargaining power than the tenant, but the law will view both parties to a commercial lease as being sophisticated enough to negotiate the terms of the agreement they consider important.  A court is unlikely to be persuaded that the tenant did not understand the terms or had no choice but to accept them.  The indemnification clause should clearly set forth the responsibilities of each party in clear and unambiguous terms, including: the covered property, the scope of covered claims, what actions the tenant is required to perform in the event of a complaint, and what landlord activity is excluded from the indemnification.

  Brian Kaider is the principal of KaiderLaw, a law firm with extensive experience in the craft beverage industry. He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation.

Move Over Scotch, Here Comes American Single Malt

 

By: Kris Bohm: Distillery Now, LLC  

Just about anyone you meet who says they like whiskey has probably heard of single malt whiskey. When it comes to whiskey in America, bourbon is the undisputed reigning champion in sales, with Canadian whiskey right behind it. There are many craft distilleries making bourbon and rye whiskey, but there are not nearly as many distilleries making single malt whiskey. American single malt whiskey is a lesser known subcategory of whiskey and is growing quickly in popularity. American single malt whiskey, or ASMW, is a unique spirit made in America from malted barley. ASMW presents an opportunity for distillers to show creativity with a whiskey whose flavor profile is far different from the wood dominant flavor profile that most American whiskies exhibit. Let’s explore what ASMW is by examining the rules that define the spirit and how it is typically made. With this understanding, let’s meet the people who are leading this newly emerging spirit category. By developing an understanding of ASMW we hope to give you the confidence to consider making malt whiskey and joining this new spirit category.

Redefining Single Malt

  The average consumer of spirits logically assumes that single malt whiskey is just another phrase for Scotch whiskey. In liquor stores and bars, Scotch is the predominant malt whiskey that people see. While Scotch is malt whiskey, not all malt whiskey is Scotch. Malt whiskey is defined by the ingredient used in production, malted barley. And to further specify, malt whiskey that uses only whiskey from one distillery is known as single malt whiskey. While it is beneficial to the distillers and producers in Scotland to imply their region is what makes Scotch, well, Scotch, it is in fact the ingredients and production methods that make a great malt whiskey a single malt whiskey. American single malt whiskey strives to break away from Scotch whiskey and become a separate, recognized category.

Defining the Spirits

Malt whiskey is defined by the TTB in The United States as a whiskey that is made from at least 51% malted barley and aged in new American oak barrels. This definition does not meet the expectation of most consumers or distillers of malt whiskey. This standard of identity has held back the potential for malt whiskey made in America to be the best whiskey possible. Most malt whiskey made outside America is made from 100% malted barley aged in used barrels. American single malt whiskey does not have a legal definition. This is a hurdle to the spirit becoming an accepted category of whiskey. Several American distillers and their respective distilleries have banded together to form the American Single Malt Whiskey Commision in 2016. The mission of ASMWC is to establish, promote, and protect the category of American single malt whiskey. Prior to 2016 there were already distilleries producing malt whiskey in America, but most distillers felt the TTB standard of identity was outdated. The goal of establishing the commission was to define a unique standard of identity and type to allow ASMW to be the best whiskey possible. The ASMWC set forth and created new standards of identity for American single malt whiskey and is working with the TTB to incorporate those standards into federal guidelines.

AMERICAN SINGLE MALT WHISKEY COMMISSION

NEWLY PROPOSED STANDARD OF IDENTITY

MADE FROM 100% MALTED BARLEY

________________________________________

DISTILLED ENTIRELY AT ONE DISTILLERY

________________________________________

MASHED, DISTILLED, AND MATURED IN

THE UNITED STATES OF AMERICA

________________________________________

MATURED IN OAK CASKS OF A CAPACITY

NOT EXCEEDING 700 LITERS

________________________________________

DISTILLED TO NO MORE THAN 160 (U.S.)

PROOF (80% ALCOHOL BY VOLUME)

________________________________________

BOTTLED AT 80 (U.S.) PROOF OR MORE

(40% ALCOHOL BY VOLUME)

  These proposed standards of identity are thoughtful with specific intent, laid forth by the distillers who wrote them. This new proposal came together to allow for creativity in the hands of those producing the whiskey within this standard of identity.

How is ASMW Made?

  For the sake of discussing single malt production methods, we will give an overview of the traditional method of distilling malt whiskey as it is done in Scotland.

  Malted barley is crushed by a mill and mixed with hot water. This hot water and barley mixture is mixed in a vessel called a lauter tun. This lauter tun separates the sugary liquid (called wort) from the barley. As the wort is drained away from the grain it is cooled off and transferred to a fermentation vessel. The fermentation takes place and the sugar in the wort is consumed by yeast to become alcohol and carbon dioxide. This now fermented beverage is referred to as distiller’s beer or wash. The alcohol content of the wash will vary but can be as low as 5% to upwards of 12%. The wash is pumped to a still where the alcohol is distilled out of it. This alcohol, also known as white whiskey, is then placed in barrels to age. The ABV of the whiskey entering the barrel will vary for some folks as low at 50% to upwards of 75% ABV. This process is a very general overview. There are many different ways to go about producing malt whiskey, and most distillers all have unique processes that produce amazing spirits.

The Folks Behind ASMW

  Steve Hawley is the vocal individual who is leading the charge of the American Single Malt Whiskey Commision. Steve, who is the president of the commission, had much to say about ASMW. On the growth of this newer whiskey category, Steve credited the distillers producing the spirits and working to grow their brands as the primary force growing the ASMW category. Hawley went further to talk about the future of single malt, saying he believes that for single malt to grow and reach the levels of popularity of other whiskies that single malt producers must be unified in the language of how they promote their spirits. Being a member of the commission is a great step for distilleries to be a part of this new category. Hawley also pointed out that the key to unlock more category growth is for distilleries to focus and educate the consumer on what ASMW is.

  In the state of Oregon and beyond Rogue Ales and Spirits is well known for their beer and whiskies. In a discussion with Jake Holshue, the Head Distiller for Rogue Spirits in Oregon, Holshue had the following to say. American single malt is best kept simple. Good base malt makes exceptional single malt whiskey. Holshue has years of experience producing single malt whiskey and has learned many things the hard way through experimentation. “Don’t add chocolate malt and definitely do not add hops,” says Holshue, “These unnecessary ingredients can ruin the magic of good whiskey made from malted barley.” Jake’s perspective on producing a wonderful ASMW is summed up well, “You should keep it simple.”

  One of the pioneers that started production of ASMW early on is the founder of Santa Fe Spirits, Colin Keegan. Santa Fe Spirits opened in 2010 in New Mexico and produces a whiskey called Colkegan. Their particular ASMW is made from malted barley with a portion of the malt being mesquite smoked. This whiskey is reminiscent of a smokey Scottish whiskey, but their smoke carries flavors of southwest mesquite instead of traditional Scottish peat. Colkegan is firmly rooted in the traditions of Scottish single malt production, but the use of mesquite smoke and dry New Mexico climate has created a whiskey that is truly unique.

  When it comes to whiskey in America there is no question that ASMW is a fast growing category with many new entrants. While there are many craft distilleries making bourbon and rye whiskey, there are not nearly as many making ASMW. This category of whiskey has big opportunities for a distillery that does not necessarily exist in other categories of spirits. As more brands become established players in the whiskey business ASMW and the demand for it will continue to grow. We highly encourage you to join the American Single Malt Whiskey Commision to help be a part of the collective voice of distillers. If you are just considering making single malt whiskey and not sure where to start you can contact the author for more info. There is no doubt that ASMW is the next big trend in whiskey. Are you ready to be a part of it?

  The author of this article is Kris Bohm, owner of Distillery Now Consulting LLC.  When Kris is not helping distilleries he can often be found seeking out adventures on two wheels, or defending his beer mile record.