Ranch Insurance and Operating Companies

When I read articles like these, I questions whether my clients maintain enough insurance and have proper operating companies in place to protect their personal assetts from these types of claims:

$17 million Zaca Fire costs repaid

Four corporations connected to La Laguna Ranch in the Santa Ynez Valley have made the final payment in a $17 million settlement to compensate the state and federal governments for the costs of fighting the largest wildfire in Santa Barbara County history.

La Laguna Ranch LLC, Rancho La Laguna LLC, La Laguna Cattle Company LLC and Rancho Reata LLC made the final $5.5 million payment Tuesday to the U.S. Treasury in a $14 million federal settlement over the 2007 Zaca Fire, according to the U.S. Attorney’s Office in Los Angeles
The companies, which agreed to the settlement without admitting fault, also paid $3 million to the California Department of Forestry and Fire Prevention, the U.S. Attorney said.
The Zaca Fire ignited on July 4, 2007, when employees of La Laguna Cattle Company were using a grinder to repair a section of metal pipe.
Sparks from the grinder ignited dry vegetation, which started the fire.
It quickly spread from the ranch property to state and then federal land in Los Padres National Forest, where it burned 228,000 acres until it was fully controlled months later, on Oct. 28, 2007.
The Zaca Fire was the second largest wildfire in California history. At its peak, thousands of fire personnel were assigned to the blaze, which injured 43 people and destroyed one outbuilding.
However, no one was killed and no major structures were lost as the fire was steered away from communities and into Los Padres National Forest.

Wine Snobbery

I read an article on food snobbery in the New York Times. http://www.nytimes.com/2011/08/25/opinion/bruni-unsavory-culinary-elitism.html?em&exprod=myyahoo  It struck a cord with me, partly because of the fact that Gary Vanerchuck, a guy that I have always associated with bringing a distinctly unsnobbish view to the wine industry, retired from reviewing wine on line.  I am wondering if any readers know of people out there that are doing a good job of bringing wine out of the aura of high scores and high prices and down to talking about how to get good wine at really reasonable prices.

Please comment and let me know(comments would allow me to assume that someone actually reads this stuff.)

Dropping a Million Dollars Worth of Wine

When was the last time you reviewed your insurance policy to determine if you have coverage for dropping a pallete of wine?  Does your policy cover you for replacement costs? What about lost profits?

Million dollar drop as wine tumbles

• Staff writer
• From:Herald Sun
• July 22, 201112:00AM

IT was certainly an expensive drop - more than $1 million worth of shiraz wine has gone down the drain after it was dropped by a malfunctioning forklift.

The 462 cases of 2010 Mollydooker Velvet Glove shiraz - at $185 a bottle - fell more than 6m to the ground as it was being loaded for export from Adelaide to the US.

The drop was so forceful, the bottles punched through the top of the cartons. Winemaker Sparky Marquis said the accident had cost him a third of his annual production.

"We just couldn't believe it," Mr Marquis said.

"This wine is our pride and joy, so to see it accidentally destroyed, and not consumed, has left us all a bit numb."

Mr Marquis now is working with insurance agencies to help recoup the losses.

Signs in Los Olivos

It appears that one of our neighbors has complained about signs in Los Olivos and some 40 property/business owners have received notices about their signs.  One of my favorite things about living in Los Olivos is that my neighbors are incredibly helpful, whenever I have needed something.  Thus, I am posting what I know abut properly having a sign approved in Los Olivos.  As always, if you have questions, please feel free to give me a call.  Also, I hope this will inspire whoever filed the complaints to seek other means of resolving their issues the next time.

For Sign approval:

1.       Do an overall sign plan for the entire building – based on building size, etc, and then board of architectural review 35.82.150 - Overall Sign Plans – p494 of LUDC

2.       Submit the sign to theBoard of Architectural Review for approval.  35.82.070 - Design Review

-In the Santa Ynez Valley the regional BAR is the Central County Board of Architectural Review

(CBAR) see pg201 SYV Community plan (pdf p211 of 260).

-Board of Architectural Review in compliance with Section 35.82.070 (Design Review) see Appendix A SYV Community Plan.

Notes:

I)                    Need frontage of lot to be 125’ or longer to have 2 signs (realestate style)

II)               Property owner needs to overall sign plan, each tenant needs to get an SCC (sign cert of conformance)

Sign Permitting (256)

35.38.090 - Signs Allowed in Commercial and Industrial Zones Outside of Shopping Centers (p256)

C. Wall signs.

1. For each enterprise, one on each street frontage.

a. The sign area on each frontage shall not exceed one-eighth of the square footage of the structure façade of that portion of the floor occupied by the enterprise and upon which façade the wall sign is to be located.

b. In the case where an enterprise occupies more than one floor of a structure, then the sign area shall not exceed one-eighth of the structure façade of that portion of one floor occupied by the enterprise.

D. Under canopy signs.

1. One for each enterprise having entrance under or offering service under the canopy.

2. Not exceeding six square feet in sign area.

3. Lower edge of the sign shall be at least eight feet above finished ground level.

E. Projecting signs.

1. One projecting sign on each street frontage consisting of only a symbol with or without words relating to the activity on the premises.

2. Shall not project more than three feet beyond the structure façade.

3. Shall not exceed three square feet in sign area.

4. The lower edge of the sign shall be at least eight feet above finished ground level.

5. Shall not be lighted

H. Freestanding signs.

1. One on each lot occupied by an enterprise, if the lot has a street frontage of at least 125 feet.

a. Not more than two separate signs may be placed on each freestanding sign structure.

b. If only one sign is placed on a freestanding sign structure, it shall not exceed 100 square feet in sign area.

c. If two signs are placed on a freestanding structure, the lower sign shall not exceed 20 square feet in sign area, and the total area of both signs shall not exceed 100 square feet. The lower sign area may be a changeable copy sign or a multiple copy sign.

d. The height of a freestanding sign shall not exceed 30 feet. Height shall be measured from the centerline of the improved portion of the public right-of-way to which the property has access and more specifically, from that point in the centerline that is closest to the sign. If the sign is located an equal distance from several centerlines, the 30 feet shall be measured from the highest of these centerlines.

e. A part of the sign or supporting structure shall not project over the street right-of-way.

f. The base of the supporting structure shall comply with the front setback of the applicable zone and shall be set back at least five feet from the street right-of-way.

Design Review (p473)

35.82.070 - Design Review

B. Applicability.

2. Design Review action required. Design Review action shall be required for all of the following:

b. Any structure or sign requiring Design Review as specifically provided under Article 35.3 (Site Planning and Other Project Standards).

E. Processing.

1. Applications for Preliminary and Final review by the Board of Architectural Review shall be accepted only if the application is accompanied by a development application or if the Department is processing an existing development application for the proposed project.

2. The Board of Architectural Review shall hold as least one noticed public hearing on an application for Preliminary or Final Approval and approve, conditionally approve or deny the request in compliance with Section 2-33.15 of Chapter 2, Article V of the County Code and this Section.

F. Findings required for approval.

1. Findings required for all Design Review applications. A Design Review application shall be approved or conditionally approved only if the Board of Architectural Review first makes all of the following findings:

a. Overall structure shapes, as well as parts of any structure (buildings, fences, screens, signs, towers, or walls) are in proportion to and in scale with other existing or permitted structures on the same site and in the area surrounding the subject property.

h. Signs, including associated lighting, are well designed and will be appropriate in size and location.

G. Local design standards. Additional design standards for a particular geographic area or zone may be developed as part of or independently of a Community Plan. Such standards serve to provide further guidance in the review of projects for the geographic area beyond those standards or findings contained in this Section.

Overall Sign Plan (p494)

35.82.150 - Overall Sign Plans

A. Purpose and intent. This Section establishes procedures and findings for the approval of Overall Sign Plans that regulate signs located within a shopping center. The intent is to ensure that signs within a shopping center are visually attractive and are in a harmonious relationship to one another.

B. Applicability. The provisions of this Section shall apply to all proposed signs located within shopping centers.

C. Allowed modifications. The review authority may allow the following sign modifications as part of the approval of an Overall Sign Plan:

1. Freestanding signs. An increase in the height, number and size limitations on freestanding signs.

3. Under canopy sign. An increase in the area limitation of under canopy signs.

4. Wall sign. An increase in the area limitation of wall signs.

D. Contents of application. An application for an Overall Sign Plan shall be submitted in compliance with Chapter 35.80 (Permit Application Filing and Processing).

E. Processing.

1. An application for an Overall Sign Plan shall be submitted concurrently with an application for a Development Plan for a shopping center and shall be processed in conjunction with such Development Plan application, except as provided below.

a. An application for an Overall Sign Plan may be submitted independently if the Overall Sign Plan is for an existing shopping center and the processing of a new or revised Development Plan is not required.

2. Review authority.

a. The review authority for the application for the Development Plan for the shopping center shall be the review authority for the application for the Overall Sign Plan.

b. The review authority for an application for an Overall Sign Plan submitted in compliance with Subsection 1.a, above, shall be the Zoning Administrator.

3. After receipt of an application for an Overall Sign Plan, the Department shall review the application in compliance with the requirements of the California Environmental Quality Act.

4. The Overall Sign Plan shall be subject to Design Review in compliance with Section 35.82.070 (Design Review).

a. The Board of Architectural Review shall provide a recommendation to the review authority on:

(1) The effect of the proposed Overall Sign Plan on:

(a) The various parts of and commercial enterprises within the shopping center.

(b) The streets and properties surrounding the shopping center.

(c) The overall continuity of design and signs within the shopping center.

(2) The number, type, height, location, size, design, color, materials, and lighting of signs contained within the Overall Sign Plan.

b. If the area of menu boards for drive-through restaurants, under canopy signs, or wall signs, or the area, height, or number of freestanding signs is proposed to be in excess of that otherwise allowed in compliance with this Development Code, then the Board of Architectural Review shall make specific recommendations to the review authority on any such modification.

5. The review authority shall hold at least one noticed public hearing on the requested Overall Sign Plan and approve, conditionally approve, or deny the request. The review authority shall consider the effect of the proposed Overall Sign Plan upon:

a. The various parts of and commercial enterprises within the shopping center.

b. The streets and properties surrounding the shopping center.

c. The overall continuity of design and signs within the shopping center.

6. Notice of the hearing shall be given and the hearing shall be conducted in compliance with Chapter 35.106 (Noticing and Public Hearings).

a. In addition to mailed notice required in compliance with Chapter 35.106 (Noticing and Public Hearings) notice shall also be mailed a minimum of 10 days prior to the public hearing to all tenants within the shopping center.

7. The action of the review authority is final subject to appeal in compliance with Chapter 35.102 (Appeals).

F. Findings required for approval. If an Overall Sign Plan includes any modifications in compliance with Subsection C. (Allowed modifications) above, then the Overall Sign Plan application shall be approved or conditionally approved only if the review authority first makes all of the following findings, as applicable:

1. Freestanding signs. The proposed area, height, or number of freestanding signs is architecturally harmonious in relation to the size and location of the shopping center.

3. Under-canopy signs. The proposed area of the under-canopy sign is architecturally harmonious in relation to the size and location of the building area occupied by the enterprise proposing the sign.

4. Wall signs.

a. The proposed area of the wall sign is architecturally harmonious in relation to the size and location of the structure on which it will be placed.

b. The proposed area of the wall sign is architecturally harmonious in relation to the size and location of the area on which the structure is constructed.

TTB Streamlines Cola Review Process

In an effort to streamline the COLA application process and use their resources more efficiently, the TTB has announced that they will no longer evaluate labels for legibility and type size requirements. Alcoholic beverage industry members will be required to continue to comply with the current regulations; however the TTB will not review labels for type size, characters per inch or contrasting background. More information can be found in the TTB industry circular Number 2011-04 at http://ttb.gov/industry_circulars/archives/2011/11-04.html.

This does not mean that your COLAs will be approved any faster, as it appears to be still taking in excess of 30 days to get your COLA reviewed by the TTB.

HR 1161

It seems that everywhere you turn these days, people are fighting and arguing over entitlements.  HR 1161 is a perfect example.  This bill is sponsored by the alcoholic beverage wholesalers and would allow states to shut down out of state wineries from shipping directly to consumers, while allowing in state wineries to ship to consumers.  In my opinion, this is a battle over their belief that they are entitled to protection of their government enforced monopoly on a distribution network.  One that exempts local winery shipments to consumers, because their lobbyists tell that they will never get support for that in the state legislatures.

First, do not let anyone tell you that this bill has anything to do with protecting individuals from receiving alcohol.(I think they actually had the guts to call it the Care Act.)  The only thing that has changed on that front is that the Supreme Court has ruled that you cannot allow in state wineries to ship wine to consumers and then ban out of state wineries from shipping wine to consumers.  If there actually was a problem with direct shipment of wine, both in state and out of state shipments can be shut down right now.  This is what Utah does, and so do nine other states.

Second,  I do not have a problem with distributors.  They provide a service to wineries that is not going away any time soon. In fact, I wish that there were more distributors, as I believe that they do an excellent job of getting wines into retail storesa nd restaurants throughout the country.  Most small to midsize wineries do not have the ability to market their wines on a national level and would never reach these consumers in their local stores without a distribtor to help them.

What I can't stand is that the distributors feel entitled to protection of this plan from direct wine shipments to consumers.  In many ways, it is similar to so many other examples of entitlements.  We hear about Teacher's entitled to tenure after only a few years of teaching. I regularly hear about citizens feeling entitled to tell people what they can do with their property and what types of businesses they can rent that property to, even though the zoning law allows the owners proposed use. Finally, our President, adn the majority of the Republicans in Congress, feel entitled to unilaterally decide to enter a civil war in Libya without so much as as a real explanation to the Country, which I find incredibly disappointing as one of his supporters. (This is the best post I have read on the Lybia situation. http://www.colonyinc.com/chairmanscornerblog.htm?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+tombarrackchairmanscorner+%28Tom+Barrack+-+Chairman%27s+Corner%29&utm_content=Google+Reader#spicecontinues)

Going back to our friends the Wholesalers and HR 1161, I would urge everyone to write their Congressmen and ask them not to support this bill.  There is no moral basis for the entitlement program urged by the wholesalers. Further, they are not going away and still serve a very important role in the marketing and sale of wine. If we create this entitlement program, we set up yet another lobbying group that will distract our representatives from doing their jobs.

AB No. 1356 - Tasting Room Regulation

In a move to require Tasting Rooms to be treated more like bars and nightclubs, Assembly Member Mike Eng has proposed AB No. 1356. This bill is being sponsored by Santa Barbara County.  It will require that any application for an off-site tasting room be denied, if it would result in an undue concentration of licenses.

In fact, many tasting rooms are located in rural communities in and around the wine country.  As an example, Los Olivos contains more than 20 tasting rooms and has become known for its tasting room row on Grand Ave.  This group of tasting rooms would constitute an undue concentration, as we have only 800 people in this town.

If denied due to undue concentration of licenses, a Winery could request a finding of Public Convenience of Necessity (PCN) from the local governing jurisdiction.  This is the same procedure that bars and nightclubs go through now.  This proposed law would provide a powerful tool to communities that want to restrict the number of off-site tasting rooms that can open in the small communities through out wine country.

Link to the proposed law:  http://www.aroundthecapitol.com/Bills/AB_1356/20112012/

Thanks Robert Parker

Many of us have heard the news that Robert Parker is no longer going to be reviewing California wines.  As a person that makes a goog portion of his living working with California wineries, I want to thank Mr. Parker for his incredible support.  I am not sure that there is any single person that brought greater recognition to such a broad array of California wines as Mr. Parker.

That being said, Mr. Parker is just one man with a particular pallete.  There are many serious wine drinkers that disagree with his taste and the particular styles of wine that he lauded high scores upon.  However, no other critic or publication came close to his sway over the high end wine buyer.

Without a doubt, many wineries created wines specifically for these scores.  This is neither Mr. Paker's fault nor do I blame the wineries.  For both Mr. Parker and the wineries that got the high scores, this made economic sense.  While a vast wave of consumers enjoyed the styles of wine that Mr. Parker lauded, many wines did not fit this style and some consumers palletes did not match with his.

With the changing of the guard at e bob, it is a great opportunity for wineries, other critics and wine drinkers.  It is an opportunity for wineries to step back from having to create wines for Mr. Parker and to create wines that may be more appropriate for the vineyards and the type of grapes that grow there. It is an opportunity for critics to revise their expectations and to allow for this variation.  Finally, it is a chance for wine drinkers to seek out critics that have a similar pallete to their own and to rely upon good local wine shops, online retailers and their favorits wineries to source these types of wines.

Thank you Mr. Parker for doing so much for California wine, for your love of wine in general and for brining so many great wines to the attention of the world.  We will miss you, but change is good, and I look forward to the industry's and the consumers' next phase.

Mediation in the Wine Business

I really want to echo the sentimenets of a recent Wines & Vines article. http://www.winesandvines.com/template.cfm?section=news&content=83772&htitle=Mediation%20for%20Wine%20Industry%20Disputes The winery and vineyard industry has undergone some dramatic changes in the past few years.  With the demand for grapes and bulk wine dropping, there have been a handful of winery failures and a lot of reductions in volume.  This has invetiably lead to some disputes.

As a lawyer, I often counsel my client's to try and resolve their claims as quickly as possible.  If you have not taken part in litigation, it is often eye opening as to both the sheer cost and the time that it takes.  While it is often the only sure way to get a resolution, it is generally not a productive use of time and money.

If you find yourself with a handful of disputes with your suppliers or customers, try and resolve these matters before they wind up in litigation.  If you can't, try and get them into a mediation as soon as you can.

Prediction for 2011 - Mr. Toads Wild and Crazy Ride

I am still reading all of the predictions about the wine industry for 2011.  The only good thing that I can say about them so far is that there are at least more of them than my already broken New Years Resolutions.  As you can tell by the title, I am predicting some massive instability and here is why.

In the last month, I have watched as yet another billionare has swooped into the California wine market and paid top dollar for an "almost" blue chip winery.  I say almost, because, while the winery has a great reputation, it is not from an area that most would consider to be blue chip on the world market.

In the meantime, I have watched as it appears our large corporate wineries are basically dumping their Australian assets.  I realize that some of this has to do with the Ausie dollar and some with unfortunate marketing and style of many Aussie Shiraz's.  However, a few years back, everyone was worried that these Aussie wines would rule the market place, and this is not the only baffling issue.

On the local scene (Central Coast of California), I have watched retailers and wineries dive head long into discounting wine.(My inbox yesterday contained an offer for six single vineyard pinots which claim to retail for $230 on sale for $99 with tax and shipping included.)  I have seen incredible producers shift production away from the high end vineyard designated wines to create wonderful and affordable blends.  Clearly, the price pressure being felt by the average winery is intense.

Finally, I was shocked when I read this morning about the sale of a Bourdeaux Chateau for a record high sale price.  I have some knowledge of Bourdeaux wines and have been lucky enough to drink a few, but I am not even close to the level of an aficianodo.  Thus, maybe I have simply missed all of the hub bub about this Chateaus in the past, but I had never heard of it.  While I do not doubt that it produces nice wines, a little known Chateau sold for a record price.

"Its vines today cover 4.7ha, with a further 3 hectares of parkland. This means the sale price equates to €3.8m per hectare – which according to local paper Sud Ouest is the highest amount ever paid per hectare for a vineyard in Bordeaux, even taking into account that some of that price will have been paid for the adjoining park, and attractive 19th century chateau."  I realize that the Far East Market is driving crazy prices for high end Bourdeaux wines, but I still do not get this purchase.  I think we are in for a new era.

Our World economy seems to be seperating between the top and the bottom.  If you are considered a rare luxury good, there appears to be strong demand and no pricing pressure.  However, below that, there appears to be massive pressure for value.  This pressure is supported by the fact that the wine market is awash in quality wines from all over the world at very reasonable price points.

When new owners pay records prices, I have to assume that they are shooting to be in the luxury brand.  Otherwise, I just do not see the margins for those in the value catagory that would justify these record prices.   Justin and Chateau Carmes may prove their purchasers right, and they may transcend the boundary between value and luxury status, I simply do not know how much room for growth exists in the luxury arena.  However, I no longer believe that simply putting Napa on the label or Haut Brion will guaruntee you that status.  As the title, inspired by a recent trip to Disneyland with my children states,  I think that this is part of the wild ride that the wine industry is about to take.  In the meantime, I am enjoying picking up some wonderful wines at prices that seem very reasonable.

Cheers

Matt

Gabrielle Giffords Shooting

This post is seemingly way off topic to the world of wine law.  However, with the fact that wineries/retailers and distributors are in a political dispute over HR 5034, I for one think that anyone involved in politics needs to sit back and think about the shootings in Arizona.  The events in Arizona are a tragedy that will be made worse, if we do not learn from them.

In reading about the events, I wanted to quote from Marty Kaplan's blog, as it resonated with me for two reasons.  "If you're worried that violent video games may make kids prone to bad behavior; if you think that misogynic and homophobic rap lyrics are dangerous to society; if you believe that a nipple in a Superbowl halftime show is a threat to our moral fabric - then surely you should also fear that the way public and media figures have framed political participation with shooting gallery imagery is just as potentially lethal." http://www.huffingtonpost.com/marty-kaplan/gabrielle-giffords-shooting_b_806232.html  Marty is specifically refering to the Palin Pac ads with gunsights on Ms. Giffords district, and the fund raising efforts of Ms. Giffords opponent that included the opportunity to shoot a fully automatic M 16.  This resonated with me for two reasons.  The first is that rhetoric does matter.  The second is that there is no way to correlate these events with any rhetoric, as opposed to the mental imbalance of the shooter. Finally, I am not advocating the we regulate anybody but ourselves in the face of this tragedy.
When we look back at history, we see the strong effect that rhetoric has had.  I do not think anyone in England during the World War II era would doubt the part that Winston Churchills speaches played in keeping England strong and unified.  The civil rights and politics of the 60s immediately bring up images and language of Martin Luther King and John F. Kennedy in my mind.  Words have power, and I am not just saying that as a lawyer.

Back on the issues of winelaw, I have not seen any sort of incendiary language used to describe the battle between wholesalers and those that wish to ship wine from out of state.  However, I do know that the two sides are very polarized and assume that both sides want to ruin the other.  Last fall, I attended an event in Chicago, where I was very excited to see a debate on HR 5034, as I know that I have strong opinions about the motivations of the two sides.(The true debate did not occur, because the representative for the wholesalers could not make it.) Going forward, we need to remain mindful of the force and affect our choice of lanuage may have and continue to remember these events in Arizona.  We need to remember that we can disagree on issues, without using the symbolism and rhetoric that links the issues with war.  Finally, we do not need to waste any time trying to change anyone but ourselves.

God Bless and keep all of those harmed in the recent shootings in Arizona.

Getting Paid for Grapes

I hear it all the time; the wine industry is so small that people can still make agreements on a handshake.  They go on to say that reputation is so important in this industry and there is no need to worry.  However, I also get calls every year at about this time from growers wondering how they can enforce their sales agreements.

Grapes Sales Contracts do not need to be lengthy, but they do need to be more than a handshake.  The industry is growing rapidly and the economy has put a big strain on wineries ability to pay. Thus, more and more growers are finding themselves in a position where they have to enforce these agreements.

In California, you can enforce a "Growers Lien" that is an automatic lien placed upon the grapes sold.  This will allow you to go to court and seize the wine made from your grapes or the funds received from the sale of the grapes.  The growers lien is not canceled by the filing of a bankruptcy and will give the grower priority over all but wages or a warehouse lien claims.

The Growers lien is in addition to the normal contract remedies.  If the winery has the funds, a grower could also recover damages beyond the value of the wine, as this economy has left bulk wine worth less then many grape contracts, and attorney fees if provided for in the agreement.  This is one very strong reason to have a grape sales agreement.

A grower can also file a complaint with the California Department of Food and Agriculture.  The CDFA market enforcement branch will investigate your complaint and issue a finding. The CDFA can also provide arbitration proceedings for the parties.  The CDFA can utilize license revocation and/or criminal proceedings to enforce your sales agreement.

While we may all wish that our tight knit industry will insure that all parties comply with their agreements, this is not always the case. Further, the economy in some instances has simply left parties unable to comply with their agreements.  Good grape purchase agreements and knowing your rights as a grower are essential.