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Hill Farmstead, Bourbon, and the Ethics of DC's Gray Laws

On Tuesday, March 4, the Adams Morgan bar Bourbon sold Heady Topper and Hill Farmstead beers (among others), using DC’s “gray laws” that allow retailers like bars, restaurants, and liquor stores to act as importers as well.

Section § 25-90 of the DC Code, Article V, allows for alcoholic beverages “imported or brought into the District by a licensee under a retailer’s license,” provided the retailer pays taxes on the goods and purchases a permit for $5 per each importation.

James Woods, managing partner and co-owner of Bourbon, noted of the gray laws via email that “DC is more a place to share and celebrate, where the guidelines and regulations allow exclusivity to be harnessed and special profiles to be showcased. It’s like America’s craft beer show and tell.”

The Alchemist’s Heady Topper appeared, per usual, in cans, while Hill Farmstead beers were in bottles and growlers. When Shaun Hill, brewer and owner of Hill Farmstead (HF) found out about the event, he called Bourbon to ask Woods to not serve the beer.

“I called and asked which Hill Farmstead beers were being poured. He mentioned Motueka [Single Hop Pale Ale] - which hadn't been on tap for some weeks at our retail shop. I asked how he acquired the beers. He said that a friend of his had brought them back from a visit. I asked him to please not pour the beers because we didn't want a herd of bar managers or other industry individuals attempting to do the same thing. I made it clear that I didn't want him to pour the beers. He said he was in a tough spot because he had already sold the tickets - he mentioned that he should have asked me in advance, but hadn't thought of it. I told him that if he was going to pour the beers, despite my request, that I would prefer if he did one of two things - either donating the proceeds to charity, or only pouring the beer from the bottle conditioned bottles (rather than growlers),” Hill said via email.

When asked for a comment about the situation, Woods issued this statement:

“While we regret that Mr. Hill did not want participation in an event that showcased the beauty of Hill Farmstead beers, we did not [do] anything unscrupulous and adhered to all laws applicable to the event. Bourbon prides itself in bringing the highest quality beer and cocktails to Washington DC. We would never serve anything that was compromised or we felt fell short in any way regarding taste, freshness, or quality. After all, our reputation relies on the quality of everything we serve.”

Woods later spoke to DCBeer via email, writing, “Bourbon didn't shoot to make a ton of cash off anyone's name. We celebrated a few Vermont beers with some folks who already celebrate these brands themselves. And for those who hadn't ever had the chance to try these beers, we delivered it. It was a fair price of admission to experience the hype that [the] beer community has for these beers."

For his part, Hill agreed to an interview with DCBeer via email where he elaborated on his thoughts. That interview follows here in lightly edited form.

DCBeer: Bourbon sold not only bottles of Hill Farmstead, but also growlers. Did you have concerns about the quality of both formats? One more than another?
SH: We fill multiple types of growlers here - including glass that is not our own. We have no way of knowing if Bourbon was pouring Hill Farmstead beer from, say, a DC Brau growler, that had not been properly sanitized or cleaned prior to filling. If a customer fills a non-Hill Farmstead growler with our beer, at our shop, at the point of sale, the intention is that the customer properly cleaned and has cared for their container, and that they will consume the beer within just a few days. There is no worry of misrepresentation - and the customer is accountable for the quality of their reusable container. We have not the means nor the space to yet begin cleaning/swapping out growlers for our customers. We have no idea what sort of condition the beer was in, at Bourbon, when they were pouring glasses of beer, for sale, via a container that was filled off of a tap many weeks prior.   

DCBeer: Bars and stores in DC are able to "self-import" beers thanks to some strange laws. What is your opinion on this, and do you see any tension between the legality of self-importing and the ethics of it?
SH: Absolutely. The argument is, of course, that once we sell the beer, a consumer can do whatever they want with it. They can bathe in it. They can leave it in the sunlight. This is true. But when reselling a product enters the picture, it allows for the misrepresentation of the original intention. Especially if the contents are not as intended - but are being sold, for a profit, on the basis of the quality of the brewer's beers. I have read the laws/statutes for DC, and it appears that self importation is legal if a product is not available in the market... as well as if it is available, through a wholesaler, but in limited supply (i.e. a shortage). There is no mention of a brewer's consent or desire to have their product in a particular market.  

DCBeer: Once a beer is sold to someone, what is their obligation to abide by the wishes of the brewer? And here we are talking in terms of ethics as opposed to legality.
SH: As mentioned above - there is no obligation when the beer is sold to a consumer. You can purchase a new car and then intentionally drive it off of a cliff. When the beer is being resold, for a profit, at an authorized (i.e. licensed and legal) establishment (especially one that claims to be… focused on quality!), there is a perennial understanding, archived in the vaulted halo of good practice, that they honor their meta-narrative.

DCBeer: Someone who comes to HIll Farmstead and fills, hypothetically, 15 growlers is not going to consume that beer by him- or herself. Do you wonder what happens to that beer once it's sold?
SH:  You would actually be incredibly surprised, Jacob. We have several customers that do this on a monthly basis.

Note that Hill is not debating the legality of DC’s laws, but rather the ethics of serving beer a brewer has asked a retailer to not serve. The use of growlers, in particular, is a point of contention.

Woods also gave us his side of the story:

“At the end of the discussion we confirmed that I would be quality checking the growlers specifically and would be making a judgment call on it. He seemed to understand the legalities of what I could do in DC and simply felt slighted by our in-house decision to make this sort of move without any personal authorization from himself.  He said ‘if I wanted to distribute to DC then I would myself.’  I then asked ‘well if I were to ask your permission ahead of time what would you have said,’ and he said ‘no.’“

And yet, the quality of the growler was good, right? Our statistically-minded friends at Beergraphs noted eight Untappd check-ins at Bourbon that night that rated HF beers at three stars or less. In particular, the Motueka, served from a growler, received lower than average scores.

However, DCist beer writer and DCBeer contributor John Fleury was at the event at Bourbon and had kind words for Hill Farmstead’s beer served from growlers:

"I thought there was nothing wrong with what was poured from growlers. I've been to Hill Farmstead and the Burlington area and have had most of these beers fresh. I didn't notice any pronounced oxidizing, and the carbonation was adequate for styles. I personally think many people were more excited about Heady Topper (which may be reflected in Untappd scores) for reasons beyond brand preference. I personally liked getting a whole can of HT versus a 4oz pour of HF, and that would've affected my overall enjoyment. I personally didn't care for the HF Motueka but through no fault of the beer itself. It is a stunningly balanced beer-- I simply don't like that hop's flavor profile."

Woods, as he points out above, has an incentive to serve quality products, lest he risk Bourbon’s reputation: “Did these growlers stand fresh after 7-10 days in our controlled conditions, also known as the trunk of a Volvo, for the trip down in the dead of a northeast winter and then straight to a walk-in fridge? Yes. So, we quality checked it all [before serving].”

Had guests consumed beers in poor condition, it stands to reason that there would be a trail of complaints across social media and Bourbon would be punished in the marketplace. These complaints never materialized. On the contrary, those who consumed these beers seemed grateful for that opportunity, and in offering these beers, Bourbon got some attention in a crowded market. Adds Woods, “Events like our most recent are very successful for the bar but most importantly for our culture here in DC.”

While self-importation causes headaches for distributors, who have lobbied for an end to the law on the part of retailers, they have been a boon to consumers. Want a bottle of Russian River’s double IPA, Pliny the Elder? A store in Dupont Circle sells them. It’ll cost you, and it might not be fresh, but it’s there. Contrast this situation with one in which a distributor and/or local brewery representative acts as a steward for their beers, buying older product from the retailer to ensure that customers get a beer in good condition.

Breweries themselves also benefit from self-importation. DCBeer.com editor emeritus Andrew Nations partnered with ChurchKey earlier in the month to serve he and his wife’s Great Raft Brewing’s beers in DC, the first time the beer was served outside of Louisiana. Nations explains:

“We needed to prove interstate commerce to keep our trademarks on a handful of brands, so DC was an obvious choice for us. If someone wants to bootleg a delicate lager or beautiful saison in a growler I suppose I can’t control that and only hope [they] transport and present the beer as the brewer intended. I absolutely understand Shaun’s issues, but last time I checked people’s heads were still exploding [from the deliciousness]. In fact, ISO:HF.”

When Pretty Things brewer Dann Paquette found out that Pizzeria Paradiso’s Greg Jasgur was self-importing bottles of his beer, he was initially concerned (h/t to the Washington City Paper and Tammy Tuck). But Paquette

“was quickly comforted by how much care Paradiso's Jasgur had taken to fetch his far-flung suds and deliver it safely to the District. ‘He was apologetic to the point where I could see he really cared about the beer. The last thing he said was, “I won’t serve it if you tell me not to.” I thought that was the craziest thing I’ve ever heard. This is the beer business.””

The above article has other instances of breweries condoning self-importation by DC retailers, but a commonality therein concerns the ethics of self-importation: the retailers interviewed all said they wouldn’t sell a beer if asked not to. Woods, on the other hand, sold beer against the wishes of the brewery.

DCBeer itself has benefited from self-importation, partnering with restaurants for “Bootlegger Beer Dinners” on two occasions. At no point were we contacted by the breweries whose beer was served, but if we were, what would we do?

Our friend Nick Anderson has offered one solution to this:

“I’d posit that there is a way to handle the direct-import possibilities of D.C. that works for everyone: by building personal relationships with breweries, and respecting the wishes of those who don’t want to see their wares presented in a way they feel doesn’t allow them to make their best impression — even if those wishes have no basis in reality at all.”

But Woods writes:

“Legally, Mr. Hill made a beer. He sold it. Cash was exchanged. Who is anyone to tell anyone else what’s to be done with it? Mr. Hill sold something. He is selling it, in fact. It's for sale. Not everywhere, Mr. Hill may answer. Mr. Hill may say it is up to him whether he sells his beer in DC. Thankfully, this is legally not so in DC. It can be for sale in DC. Craft beer culture wins...We celebrated a few Vermont Beers with some folks who already celebrate those brands themselves. For those who hadn't had the chance, we delivered it. There was a fair price of admission to experience the hype that has been created. It was a DC kind of event, well within DC's guidelines, outside of Mr. Hill’s comfort zone, but within the pleasure of ours. At Bourbon or not, it's probably going to happen again.”

When I asked if we’ll see Hill Farmstead sold in DC with Hill’s blessing, the brewer and owner was coy.

DCBeer: On occasion, kegs of Hill Farmstead make it outside of Vermont. Any plans to send a few down to DC? Seeing the demand for Hill Farmstead here, as I'm sure is the case elsewhere, do events like the one Bourbon put on make it more or less likely that officially sanctioned beers will be served in DC?

SH: Our beer has been served, with our enthusiasm!, once, at ChurchKey, during the Craft Brewer's Conference.  Greg [Engert] seems to be a great guy, and a very thoughtful and honorable retailer =)

For the beer community, issues surrounding DC’s gray laws will certainly continue to be a point of conversation, as they were yesterday when Beergraphs and #dcbrews folks took to Twitter. Are we, as consumers, too used to getting what we want, when we want it? Is that a good thing? Is craft beer too much of a business for the kinds of relationships that Anderson describes?

As for Bourbon, they still have twelve bottles, not growlers, of Arthur, a Hill Farmstead saison.

The author thanks Bill DeBaun and John Fleury for their assistance with this article.

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