Upstate New York (USA) here. I have been homebrewing beer for many
years and I am interested in opening up my own microbrewery/brewpub.
Before I consult an attorney and CPA I want to do some of my own
informal digging/quasi-due diligence which is the motivation for this
The microbrewery would produce and sell its own beer and food. It
would also possibly distribute the produced beer to other restaurants
and beverage centers within the area (all within NY state).
To my knowledge, the main authoritative bodies that would have
licensing and governing/auditing control over such a business are:
New York State Liquor Authority --> at the state level; and Alcohol
and Tobacco Tax and Trade Bureau (TTB) --> at the federal level To
anyone's knowledge, are there any other authorities (state or federal)
that would have regulatory control, other than tax authorities (IRS
and NYS DTF), over how that business produced and sold/distributed
beer and produced/sold food?
Local municipalities in territory within a municipality and county government in territory outside a municipality would have significant regulatory authority over zoning, building codes, health regulation enforcement (including food service regulation), and the imposition of a requirement to have a general business license applicable to all businesses. Certain kinds of special events may be regulated this way, requiring special permits, and these local governments also often have noise regulations, public nuisance laws, and regulate hours of operation for businesses generally distinct from the hours of operation regulations imposed by state alcohol regulation laws. If there is dancing on the premises this typically requires a special permit after notice and hearing in addition to the alcohol license permit.
These local governments are also the primary agencies enforcing local criminal laws and often respond to incidents at alcoholic beverage serving establishments. It wouldn't be uncommon for local law to require, or strongly encourage you, to hire bouncers who are off duty police officers.
The U.S. Occupational Safety and Health Administration (OSHA) establishes workplace safety rules that apply to all businesses outside the mining industry. There may be a parallel organization in the New York State government as well. A state labor department will require you to have worker's compensation and unemployment insurance in place.
Determining that there are no defects in your brewing machinery is also important and often the subject of both common law requirements and detailed engineering standards of care. You probably want to have a state licensed engineer sign off on the adequacy of your beer manufacturing equipment in terms of health and safety (and your insurer may require you to do so).
Your landlord or mortgage lender will require you to obtain, and any other prudent investor would, in any case, obtain a Comprehensive General Liability insurance policy (CGL) with industry specific endorsements (e.g. endorsements for dramshop liability for serving alcohol to people who then get in drunken driving accidents).
The U.S. Food and Drug Administration (FDA) has some minor regulatory authority over the food part of a microbrewer, and may mandate some disclosures on menus (or available on request) of ingredients in food so that people with allergies can protect themselves and so that menus do not make misleading health claims.
The Federal Trade Commission (FTC) and parallel state regulators (probably in the New York Attorney General's office) regulate deceptive advertising, as your business will probably have advertisements that must comply with these laws.
The Center for Disease Control implements national COVID regulations (and other disease control regulations such as a requirement to report certain food borne disease outbreaks) and there are parallel state and local agencies with overlapping authority.
Often a microbrewery will receive U.S. Small Business Administration guaranteed or subsidized loans which are subject to regulation by that agency.
The U.S. Department of Labor, the Equal Employment Opportunity Commission, and parallel state agencies, regulate employment law requirements, including the minimum age at which one can work in this kind of establishment. I believe that federal immigration law regulation of employment on the employer side is done through the U.S. Department of Labor, but it might also be done by the Immigrations and Customs Enforcement (ICE) agency within the U.S. Department of Homeland Security. If you employees unionize or consider unionizing, the National Labor Relations Board (NLRB) has regulatory authority.
There are local taxing authorities in addition to the IRS, the TTB (formerly the ATF), and state tax authorities.
There are many common law and statutory obligations of businesses in their contractual dealings, tenant finish construction process, property rights, internal entity organizational governing documents, products liability, obligations related to customer safety, intellectual property, etc. that are mostly regulated through litigation in the court system, predominantly in the state courts. But, other agencies also play a role.
For example, real estate records (e.g. the purchase of a building) must be filed with the county, security interests demonstrating loans with non-real estate as collateral and registration of legal entities in New York must be filed with the New York Department of State, federal trademark claims must be filed with the U.S. Patent and Trademark Office, and copyright filings (while optional pre-suit) can be filed with the Copyright Registrar which is a division of the U.S. Library of Congress.
The Investor Protection Bureau of the New York State Attorney General's office and the U.S. Securities and Exchange Commission regulates disclosures to and fraud perpetrated upon passive investors in businesses in New York State. Among other things, these regulations will frequently require even closely held businesses with third-party passive investors to prepare and disclose to investors financial statements prepared in accordance with Generally Accepted Accounting Standards (GAAP) which are promulgated by the private sector non-profit Financial Accounting Standards Board and implements by certified public accounts who are regulated by the New York State government. Tax authorities, in any case, require you to maintain at least books and records sufficient to comply with applicable tax laws. Usually, a business like this would be financed in part through passive investors who would need to receive a private placement memorandum prepared by counsel. Often a buy-sell agreement would be put in place as well.
The U.S. EPA and New York State EPA imposes environmental regulations on restaurants and pubs. Among the most consequential are the requirements pertaining to grease traps and the requirements pertaining to the disposal of certain kinds of cleaning and beer production chemicals. Clean air regulations may also apply if you have, for example, a vented brewing process or a smoking or BBQ grill that emits smoke. This agencies also enforce CERCLA (a.k.a. the Superfund law) that could impose legal liability on you as a potentially responsible party if there is toxic waste from a prior user of your premises on the site that needs to be abated.
Canned and bottled beverages sold in New York State have to participate in the can/bottle deposit system for those, although while I think of this as an environmental regulation, I don't know which agency actually enforces this law.
The U.S. Department of Justice and the New York Attorney General and possibly other agencies, enforce compliance with the Americans With Disabilities Act and sometimes related state laws and regulations. This impacts you mostly via your building design and parking requirements indirectly enforced through local governments, but could also impact, for example, menu availability requirements or your policies for dealing with disabled customers. These agencies also enforce general civil rights laws applicable to public accommodations against discrimination on other grounds, for example, with respect to customers.
The U.S. Postal Service imposes regulatory standards on your mailbox, and on how you handle mis-delivered mail or unsolicited package deliveries, and regulates what you can send in the mail (often not alcohol or large amounts of cash).
While not strictly regulatory in nature, it is often necessary for a microbrewery to reach an individually negotiated arrangement with local utility, water and sewer companies to get expanded or upgraded services for premises not previously set up to handle that level of use. Some of these entities may be governmental agencies or may be subject to state utilities regulation which governs how this is done.
If you want to sell CBD products, you need to determine which agency handles that in New York State (I haven't lived in New York or practiced there since that development arose).
If you want to make representations concerning organic products, there are both FDA and private certifying organization entities you have to deal with to make that representation legally.
While strictly speaking, this is a matter of tax law, there are many places in Upstate New York that qualify as "Opportunity Zones" which are subject to significant special tax treatment that implicate your form of organization and scope of operations and site location at the outset. There are also a variety of tax laws specific to businesses in the manufacturing industry that many CPAs are not familiar with (including the domestic production activities deduction for which you must file IRS Form 8903 and meet certain requirements which are easy to do if you set out to do so in the first place, but hard to shoehorn into if you have a mistake in compliance requirements after the fact).
This list, is, of course, not exhaustive. But, it hits some of the more common ones.
One of the main reasons to hire a lawyer is to do a more focused, detailed, and individualized version of what this post does which is called "issue spotting" and is one of the main things that genuine licensed lawyers with relevant practices do that someone who self-studies and tries to do it themselves cannot do competently.
Knowing what you need to look into as much harder that looking into the answer once you have actually correctly identified an issue to address.
You need to budget a fairly substantial "war chest" just for legal, accounting, engineering, environmental, banking, insurance, and H.R. due diligence and set up before you even actually start putting down money for equipment, furnishings, premises, etc., and you need to have working capital left over after all of that to function as your business gets started so you don't become regulated by the bankruptcy courts.