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Distilled Spirits Plants cannot be located in a residence QUESTION


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I see that the TTB says

"Distilled Spirits Plants cannot be located in a residence"

Does this mean that a distillery can not be in a small commercial space on the ground floor of a building with apartments above like in the below image?

I will ask TTB too but figured I would get a faster answer here :)

 

Thanks!

 

 

image.png.c3f7a89579f9aa1fc8a7392d804d1478.png

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In addition to fire officials, local building officials will have more to say. The answer to OP's question is highly dependent on location and the building codes and fire codes that are in effect. OP will have to deal with all of that before even trying to run it past TTB.

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It does not mean that you cannot and it does not mean that you can.  I helped qualify a DSP in a building with apartments above it in 2012 and have done so a number of times since then.  But TTB states, in a private letter ruling from 2012, that it makes the decision on a case by case basis.  That means there are no guarantees and TTB has not provided guidelines that you can follow.  My experience is that if you can show a separate entrance to the DSP, which does not require that you share an entry with the apartments, TTB will approve it. 

From my experience, the issue of residency seems to come down to whether their is sufficient separation between the DSP and a residence located on the same property that the residents do not have a right to limit TTB's right of access on the grounds that the constitution prohibits warrantless entry whiteout consent.   In legal terms, the issue seems to be whether the DSP is within the curtilage of the residence.  But I know of no cases that have been decided, so I say this based on experience.  Again, to the best of my knowledge, TTB has made no public statement and you will not find the word curtilage in any public, TTB document, of which I am aware.  I've qualified a dozen or so DSP's that are located on the same tract as a residence.  Each time that was done after full disclosure of the circumstances.    

When I try that, I look at all the circumstances and construct arguments, which I make in a formal letter.  The NRC specialists sometimes refer the question to the Regulations and Rulings Division and that can extend the time needed to get approval.  But we have moved the bar a long way from the times in 2009, when at a TTB Expo, TTB declared that the ban was absolute and included a DSP that was located in back of the woodlot at the rear of the house.  I would not hesitate to say that in most such circumstances, we could now get approval.  

I've got to add here that I am not an attorney and this is not legal advice.  That is usually accompanied by a statement that if you have any questions, consult your attorney.  That is usually sound advice, but in this instance, an attorney would have to answer, I don't know.  There is no case law; it is all administrative precedent, and no administrative precedent is binding.  

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My assumption of a No was more about code and local jurisdictions approval. Don’t know if picture you posted is of the actual building or one like it but fire rated partitions like walls and floors would be the factor I think in getting approved. More than likely the floors are wood and wouldn’t meet a one hour barrier at a minimum and and cost to do so would be way more than you will want to spend. Stairwell would need to be rated as well, unless there is one on the outside of the building for emergency use but but that’s just a guess. Is the building sprinkled? So many life safety issues to address that unless it a more modern building I just don’t see how it would be possible without spending a ton of money. Just some of my thoughts from a guy who builds hospitals for a living. 

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My advice to all is to always get your local issues settled before your begin to consider federal issues.  My experience is also that those who came to me for advice and assistance  have not incurred any objections from state and local jurisdictions.  And,. because we are talking about multi-use buildings, I am talking about urban areas.  To be clear, I am not saying some have not been denied, , or even that a majority have not, etc.  because I do not know.  Maybe nine out of ten times the fire marshals turn thumbs down or the local development agency responds, "You gotta be kidding," but I've not seen that.  While my experience is broader than most, it is far from broad enough to offer any sort of reliable opinion on what is generally true.  I can only say, don't rule out the possibility because you think a code will slam the door to it.  Ask.  And the only persons you should be asking, once you understand the issues, is the local authorities who have the jurisdictional power to say yes or no.  

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When I first applied for my DSP, I was originally declined because the TTB agent interpreted any parcel of land on which there was a residence as ineligible. I had to argue that my DSP would be on a piece of agricultural farm property of 60+ acres, and that the DSP would be located in an outbuilding 100 yards away from the residence. It was a heated discussion, since clearly farms almost always have a farmers house on the parcel of land and that is not unusual. In the end they demanded that I put a fence around my DSP in case someone from the residence...? I don't really know. In the end I was approved and everything is fine. But it seems like the TTB has discretion on a case by case basis to interpret the rules differently.

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How long ago? 

The "funny" thing is that the fence, in case law, such as it is, serves as a demarcation between portion of the property that is within the curtilage of the residence and that which is not.  Not all always is.  When a fence is involved, the question the courts ask is whether the outbuilding  is located within the boundaries of a fence that surrounds the residence, not whether the outbuilding is within a fence that surrounds it. 

But your point is well taken.  TTB does decide on a case by case basis and the decision is based on "multiple factors," not just whether there is a fence or not.  In fact, if you are far enough away, you don't need any fence.  How far is far enough?  Shrug!

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6 hours ago, Sator Square Distillery said:

When I first applied for my DSP, I was originally declined because the TTB agent interpreted any parcel of land on which there was a residence as ineligible. I had to argue that my DSP would be on a piece of agricultural farm property of 60+ acres, and that the DSP would be located in an outbuilding 100 yards away from the residence. It was a heated discussion, since clearly farms almost always have a farmers house on the parcel of land and that is not unusual. In the end they demanded that I put a fence around my DSP in case someone from the residence...? I don't really know. In the end I was approved and everything is fine. But it seems like the TTB has discretion on a case by case basis to interpret the rules differently.

I had a similar experience back in 2005/2006. Once I had a separate address for my outbuilding, poof the problem disappeared, no fence required. Of course nothing on the ground was actually different.

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The separate address is one factor.  But, since the address applies to the building, and not the surrounding grounds, which are deemed to be a part of the same parcel, whatever the addresses may be, TTB may require a fence.  That was the case with the last one I helped get approved, in November or December of last year.  We had a fence, but the specialist sent it to Regulations and Rulings Division and came back with a request asking the height of the fence, why it was different in different places, whether there were gates, why it didn't extend all around the DSP.  What is the Seinfeld line, "Yada, yada."   It got approved, but even with a different address, TTB asked questions. 

So, you can't know what TTB will do.  Sometimes its "poof" things just go away and sometimes we have to stick a pin in the balloon of potential objections.  So I'd warn people not to rely on kkbodin's experience with the separate address.  It worked for him, but there is no guarantee it will again.  Now, if you subdivide the land, that is different, because the DSP and residence are not located on the same tract and the restrictions in §5178 no longer apply.  

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16 hours ago, dhdunbar said:

The separate address is one factor.  But, since the address applies to the building, and not the surrounding grounds, which are deemed to be a part of the same parcel, whatever the addresses may be, TTB may require a fence.  That was the case with the last one I helped get approved, in November or December of last year.  We had a fence, but the specialist sent it to Regulations and Rulings Division and came back with a request asking the height of the fence, why it was different in different places, whether there were gates, why it didn't extend all around the DSP.  What is the Seinfeld line, "Yada, yada."   It got approved, but even with a different address, TTB asked questions. 

So, you can't know what TTB will do.  Sometimes its "poof" things just go away and sometimes we have to stick a pin in the balloon of potential objections.  So I'd warn people not to rely on kkbodin's experience with the separate address.  It worked for him, but there is no guarantee it will again.  Now, if you subdivide the land, that is different, because the DSP and residence are not located on the same tract and the restrictions in §5178 no longer apply.  

I'm glad you added to this. I was definitely lucky and it could have easily gone the other way. My experience has varied in different TTB regions and with different personnel at different times. One never knows until one knows and this can be very frustrating to new people; and us old ones too.

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