Website lawsuits, events regulations, environmental rules: What’s new in California wine business law

Vexing the California North Coast wine industry in recent years have been lawsuits over winery website lack of access for the those with visual challenges, the new political debate over winery events, and ever-changing environmental regulations.

Journal researcher Michelle Fox surveyed a handful of attorneys on some of those issues, posing questions from Journal wine reporter Jeff Quackenbush.

Dozens of lawsuits have been filed against North Coast wineries in the past 12 months over website compliance with state and federal accessibility laws. What is the significance of this situation for the industry? What can vintners do to help protect themselves from and in such actions?

Gregg Ficks

Coblentz Patch Duffy & Bass LLP, 700 Main Street, Suite 301, Napa, CA 94559; 415-772-5779;

Gregg Ficks is a litigation partner and leads the firm’s Bankruptcy and Creditors’ Rights Practice Group. He represents landlords, lenders, real estate developers, aircraft lessors, hotels, suppliers, and various other secured and unsecured creditors, both inside and outside of bankruptcy court. Ficks has experience in contract and lease litigation for hotels/hotel management companies.

Gregg Ficks: This is an issue that affects most consumer-facing industries in California, and in the country.

Under the California statute on which most plaintiffs filing these lawsuits in California rely, a successful plaintiff can recover his or her attorneys’ fees, in addition to statutory damages.

This unfortunately appears to have incentivized professional plaintiffs (aka “website testers”) and their attorneys to file these lawsuits without regard to those plaintiffs’ intent to patronize the wineries or other businesses they are suing, based on technical or temporary website accessibility glitches, and often without advance notice to the business with a chance to correct the alleged problem (at least not without the plaintiffs and their attorneys demanding money in order not to sue).

…. these lawsuits have increased exponentially over the past decade and even faster since the onset of COVID, and most businesses choose to settle these lawsuits because of the expense and business disruption that litigation would cause.

This remains true even though some businesses recently have successfully challenged website accessibility claims in federal courts in the Bay Area based on lack of “standing” by the plaintiff (that is, that the plaintiff was not an actual or potential customer of the business) and similar theories. For now, at least, some plaintiffs and their law firms simply have started filing these lawsuits in other courts seeking different results there.

One longer-term approach to try to solve this problem is to focus on lobbying and legislation to change how these laws are applied, and to change how some plaintiffs and their attorneys (mis)use them.

While no one would suggest that people with disabilities should be denied access to our businesses, changing the current legislation with regard to, for example, excessive/repeat lawsuit filers or lawsuits based on minimal, technical, or non-material violations of website accessibility guidelines, and adding or expanding legal mandates for plaintiffs to provide reasonable notice to businesses and an opportunity for them to cure any website accessibility shortfalls before any attorneys’ fees and statutory damages could be available, could serve the intent and purpose of the accessibility laws while not unnecessarily harming businesses, and not feeding the coffers of a few non-customer professional plaintiffs/website testers and their attorneys.

Beyond that, and in the short and medium term, businesses in our community should be proactive in seeking to comply with accessibility laws and standards for their websites and apps (and also for elements of their physical premises that are visited by the public) in order to minimize the risk of becoming targets for these lawsuits, and in order to comply with the law.

Towards those ends, businesses in our community may want to update their digital properties practices....

Jeremy Little

Carle, Mackie, Power & Ross, LLP, 100 B Street, Suite 400, Santa Rosa; 707-526-4200;

Jeremy Little helps guide CMPR’s Food and Alcoholic Beverage Group. For the last 15 years, his practice has had an emphasis on business formation, corporate governance, alcoholic beverage compliance, and the purchase and sale of land and companies.

Jeremy Little: Most of these suits have settled. CMPR had the privilege of representing over 20 wineries involved in these disputes. Unfortunately, part of this is the cost of doing business.

Some people view the wine industry as made up of people with deep pockets, and plaintiff’s attorneys will continue to sue to settle.

The industry and vintners can remain vigilant and should talk to each other about new developments in this area as they emerge. They should consult experts and conduct routine examinations of their business, whether online, in the tasting room, or the crush pad.

What are key complexities that have arisen from California’s laws and rules over COVID safety and sick leave? In now the third year of the pandemic and amid rapidly rising cases statewide, what is working well, and what needs revisiting?

Jeremy Little: Complexities experienced by California employers include the requirement to comply with multiple sources of law, which sometimes directly conflict with each other.

Also, having to seek out reliable and up to date sources of information as guidance and legal obligations change frequently. Finally, political and philosophical opinions of employees may interfere with an employer’s decisions regarding COVID protection measures, causing frustration and distrust between them.

Katherine Philippakis

Farella Braun + Martel LLP

899 Adams St., St. Helena, CA


Bio: Philippakis is a partner in St. Helena and chairs the firm’s Wine Industry Group.

She is a grape-to-glass wine practitioner who helps her clients buy, sell, develop, and operate California wineries and vineyards. She assists cult, luxury, and premium wine brands with their efforts to protect or grow their businesses by acquiring or divesting assets, renegotiating with lenders, developing brands, and increasing debt or equity investments. She is president of the Napa County Bar Association.

Katherine Philippakis: With my focus on the wine industry, I know that wineries’ primary concern was with ensuring the safety of their visitors and employees.

Wineries and local agencies worked hard to develop interim regulations that would allow for winery hospitality programs in a safe and controlled environment, generally outside, and this has worked fairly well.

In general, wineries did not institute testing, masking or vaccine mandates for their visitors but instead focused on having tastings in locations where social distancing and good ventilation were available.

As the pandemic continues on into its third year, this appears to have been a wise choice, because it balances safety considerations with respect for the privacy and autonomy of their guests.

I expect we will continue to see a focus on outdoor hospitality, and I would expect land use regulations to evolve so that these outdoor facilities can become permanent installations at wineries.

With our beautiful California weather, and with the scenic setting of most wineries, I doubt we will ever see a return to full indoor tastings.

How should Napa County’s approaches to winery events and visitation inform, if at all, the movement toward such regulations in Sonoma County? How does the evolution of winery land use law in Napa Valley suggest what is ahead for other parts of the North Coast?

Thomas S. Adams

Dickenson Peatman & Fogarty, 1500 First St., Ste. 200, Napa, CA 94559; 707-261-7000;

Thomas Adams leads DP&F’s Land Use practice group. With over 20 years of experience providing legal counsel, he primarily focuses on land use strategies necessary to achieve their individual business objectives, including pre-acquisition due diligence, permitting strategies for new entitlements, and regulatory compliance for ongoing operations.

Adams has extensive experience working with vineyard and winery permits, use permits, water rights, Lake and Streambed Alteration Agreements, timber conversion, and California Environmental Quality Act (CEQA) compliance, in addition to greenhouse gas compliance, water quality permits, and wetland permitting. He also provides experienced counsel on a broad range of land use matters including lot line adjustments, certificate of compliance parcels, and other client concerns related to property development, planning and zoning.

Thomas S. Adams: I think it helps to start with a quick summary of Napa as a reference point, recognizing that what has “worked” in Napa may not be best for other wine growing regions.

Napa’s regulation of wineries has been largely accomplished on a winery-by-winery basis subject to general standards such as setbacks, minimum parcel size, and tastings by appointment-only, with production and visitation maximums set at the discretion of the county.

The result of this regulatory approach is that wineries often have vastly different visitation allowances compared to other similarly-sized wineries with equivalent site constraints.

In response to a recognized need to create more certainty in the winery permit process (and to lower costs), Napa County has implemented alternative permitting processes for existing qualifying wineries and micro-wineries that allow for staff level approvals, as opposed to requiring a full Planning Commission hearing.

Other counties will need to find the right balance between visitation and the environment based on each’s own local needs.

An alternative method would be to set visitation and marketing event allowances as generally applicable standards that apply to all qualifying properties equally subject to site-specific conditions and mitigation measures.

This could be done on a sliding scale, with daily visitation increasing based on some agricultural variable, such as production or vineyard acres, to ensure visitation remains accessory to the primary agricultural use.

This would lead to more transparency for new business investment and provide additional certainty for new wineries, as well as existing wineries looking to expand, while ensuring that visitation does not consume the agricultural use it is intended to support.

Jeff Dodd

Coblentz Patch Duffy & Bass LLP, 700 Main St., Suite 301, Napa, CA 94559; 707-603-2722;

Jeff Dodd is a real estate and land use partner. He provides counsel on real property and environmental issues related to local, state, and federal government regulations, including general plan and zoning amendments, design review permits, affordable housing, water rights, water quality, endangered species, Williamson Act contracts, conservation easements, and eminent domain.

Jeff Dodd: While some will view Napa County’s event and visitation regulations as having been successful at their original goals in 1991, Sonoma County and the entire North Coast should see those regulations as information only and move forward with 21st century best practices focused solutions.

The entire North Bay and North Coast have to address the fact that, going forward, regardless of climate change, ongoing viticultural improvements have, and will continue, to require additional production capacity—while creating a new winery or modifying an existing one is getting harder and harder.

Jeremy Little: Napa County has taken a completely different approach to this issue from Sonoma County, given Napa County’s Winery Definition Ordinance.

Sonoma County has no such ordinance. Sonoma County staff continue to review, seek public comment, and create regulations that are very different from those in Napa. It is important in Sonoma County and other parts of the North Coast to differentiate between basic winery sales activities and what should be defined as a special event, and not blur the two.

Katherine Philippakis: The benefit of Napa County’s highly structured marketing and hospitality regulations is the level of certainty in the planning process: applicants know what they will be allowed to do and generally plan their marketing programs accordingly.

The downside of the Napa County approach is that it is highly restrictive and stifles innovation.

Sonoma has generally had a looser approach to hospitality, without a clear definition of what is a marketing event or a special event.

Although this results in more uncertainty, it also means there is a wider variety of visitor experience in Sonoma County. This can help retain a sense of authenticity, because there’s a greater diversity of marketing programs available.

That being said, I would expect Sonoma and other North Coast regions to develop more structured regulations over time, because the tendency unfortunately always seems to be toward greater regulation.

However, I would hope that Napa County would recognize that winery hospitality is an ever-evolving business and that innovation should be welcomed.

I foresee a trend toward a greater focus on farming and growing of non-grape crops alongside the vineyards at winery estates, and I would hope that the land use regulations could evolve to allow for the sale and marketing of non-wine agricultural products in association with winery hospitality.

This would be a more holistic agricultural approach and would highlight the diversity of agriculture that helps keep our winegrowing regions sustainable.

What do recent high-profile California Environmental Quality Act lawsuits involving climate change and wildfire risk such as over the Walt Ranch vineyard project in Napa County and the Guenoc Valley luxury housing project in Lake County say, if anything, about the future of rural winery and vineyard projects in the North Coast?

Thomas S. Adams: Environmental constraints are tightening due to climate change, and these heighten barriers to entry for the already highly-regulated wine industry.

Examples of the currently evolving regulatory requirements include water right curtailment orders, sustainable groundwater management plans, drought emergency orders, fire safe access requirements, and vehicle miles traveled limitations, among others.

As each county develops its long-term development goals, projections for their general plan updates, local climate action plans, sustainable groundwater management plans, sensitive habitat resource mapping, etc., they will need to be more sustainability-minded, balancing and compromising each community’s social, environmental, and economic goals with real world data that reflects the carrying capacity of the land.

In addition, the wine industry will collectively need to continue to invest in sustainable wine growing practices to play their part as trusted stewards of the land.

It is easy for some to say, “Enough is enough,” and truthfully, at some point we will likely get there, but I believe we have yet to realize the benefits of technological advances in carbon farming, smart irrigation, recycled water use, sustainable forest management, fire protection, and alternative energy sources that will provide for continued development opportunity for creative and forward-thinking winery and vineyard projects.

I have always seen the practicality in putting a limited portion of land to work to provide the means to protect the remaining open space that we all treasure.

Jeremy Little: Rural winery and vineyard projects have faced an uphill battle for years. This is another item in a long list that those looking to develop such projects must face. Careful planning with attorneys, engineers, land use experts, and others are essential to minimize obstacles.

How well have key questions over contract and insurance law on smoke damage to grapes and resulting wine been resolved after the major wildfires in recent years? What new questions have arisen? What is still unclear?

Scott Greenwood-Meinert

Coblentz Patch Duffy & Bass LLP, 700 Main Street, Suite 301, Napa, CA 94559; 707-603-2722;

Scott Greenwood-Meinert is a real estate partner. He focuses on real estate, land use, and business matters and winery law. He represents companies, investors, commercial and light industrial developers, wineries of all sizes, hoteliers, pension investment groups, hospitals, and farmers. Greenwood-Meinert also assists in forming limited liability companies, corporations, and other business entities, and handles related corporate matters, including business acquisition, financing, disposition and dissolution.

Scott Greenwood-Meinert: It seems insurance companies have paid on smoke taint claims for the most part. Certainly a variety of grape purchase agreement clauses have been developed to better address smoke taint at the contract level. As research on the chemistry of smoke taint and testing for smoke taint markers continues to develop, certainly insurance and contract provisions will further evolve.

Jeremy Little: This is an evolving area in the industry. I don’t see this as being resolved, it will continue to be an issue between growers and wineries.

However, there is a growing recognition in the industry that each side needs the other and the more they can work together the better. Grape purchase agreements have added page-long sections dealing with smoke taint and testing procedures.

The labs and the industry are grappling with the impact, short and long-term, of smoke taint. Until the science is clear, the legal approach to this issue remains in flux.

What other significant legal issues are emerging for the wine industry?

Jeff Dodd: Other significant legal issues for the wine industry are: (i) water availability for vineyard and winery development based on new state and local regulations, (ii) compliance with State Minimum Fire Safe Regulations, which are undergoing updates by California Board of Forestry and Fire Protection, for new vineyard and winery development, and (iii) New greenhouse gas regulations of the BAAQMD for vineyard and winery development.

Jeremy Little: The responsible beverage service certification becomes mandatory on Aug.ust 31, 2022. This requires all servers of alcohol and those that manage them be certified by the ABC. The impact is widespread, and I expect some court action surrounding the acts implementation.

Further, while much of the Covid-era regulatory relief has been rescinded, I see the industry working to make permanent some of the relief measures.

Owners may also look to buy or sell given the potential of an economic contraction or recession, requiring a legal examination of their companies and prospects for a transaction.

Lastly, brand owners are increasingly looking to work with other producers to enhance or create new brands and products. We are seeing more joint ventures and creative ways those in the industry can leverage the strengths of other owners.

Katherine Philippakis: Napa County has adopted a new micro-winery ordinance in the past year, which allows for vineyard properties to establish very small wine production facilities as a means of promoting onsite visitation and retail sale of wine.

Although no projects have yet been approved under the new ordinance, I welcome the trend toward a greater diversity of winery types and sizes.

Similarly, Napa County adopted a winery streamline ordinance early in 2020 that allowed for an expedited hearing process for existing wineries that wanted to make minor modifications.

This was also a very welcome change for both the county and the wine community, because the unduly lengthy use permit process had become burdensome to all.

Another key legal issue in the land use area relates to pending changes to the Board of Forestry’s FireSafe regulations, which are focused on the road and street standards for development in areas of high wildfire risk.

The proposed regulations have been the subject of extensive public comment and thus no final set of regulations has yet been adopted, but from the different commentary received, we see the tension between the need to accommodate existing and proposed human habitation in areas of wildfire risk, and the need to minimize that risk.

It’s a balancing act that will be tricky to get right, and the proposed regulations place a great onus on individual landowners to make often costly improvements to their properties.

This is in some ways an anomalous approach, as the most effective way of preventing and mitigating wildfire risk is through community-wide action: undergrounding of utilities, creation of large-scale firebreaks, maintenance of defensible space, and vegetation clearing.

An unmanaged landscape is a fire risk, and no one landowner can manage the landscape by itself; it has to be done as a collective action in order to be effective, and this requires community involvement and support. I hope we will see a trend toward greater funding for community-wide fire prevention.

I also welcome the input of greater scientific study into wildfire mitigation.

I know the fire science group at UC Berkeley is doing great work, as are other scientists around the world. Our understanding of how wildfires start, and how they spread, is changing greatly and will continue to change.

The key task in the land use world is for our regulations to remain nimble so that we can take advantage of and implement scientific progress.

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