BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1798
                                                                  Page  1

          Date of Hearing:   April 21, 2010

                   ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
                                   Joe Coto, Chair
                     AB 1798 (Evans) - As Amended:  April 5, 2010
           
          SUBJECT  :   Alcoholic beverages: Alcoholic Beverage Control  
          Appeals Board: tied-house restrictions.

           SUMMARY  :   Makes a minor clarifying change, as well as code  
          maintenance changes, to existing provisions of the Alcoholic  
          Beverage Control Act (Act) in order to reduce paperwork  
          requirements of the Department of Alcoholic Beverage Control  
          (ABC).  In addition, increases from 60 to 75 days the period  
          upon which the Appeals Board must enter its order after the  
          filing of an appeal.  Specifically,  this bill  : 

          1)Retains the requirement that the winegrower, or the officer,  
            director, or agent of the winegrower meet the specified  
            conditions regarding the sale or furnishing of wine under the  
            circumstances described above, but would eliminate the  
            requirement that statements describing these conditions be  
            made pursuant to an undertaking approved by the department.

          2)Requires the Alcoholic Beverage Control Appeals Board (Appeals  
            Board) to enter its order within 75 days after the filing of  
            an appeal.
           
          EXISTING LAW  :

          1)Existing provisions of the Act, known as "tied-house"  
            restrictions, generally prohibit a winegrower from having an  
            ownership interest in an on-sale alcoholic beverage license,  
            with limited exceptions. Among other exemptions, existing law  
            exempts from the tied-house restrictions any licensed  
            winegrower who meets specified conditions, including that the  
            winegrower, or his or her officer, director, or agent, enters  
            into an undertaking, approved by the Department of Alcoholic  
            Beverage Control, that makes specified statements regarding  
            the sale or furnishing of wine by the winegrower, or any  
            officer, director, or agent of the winegrower.

          2)Establishes in state government an Appeals Board, of which the  
            members are appointed and serve as provided in the  
            Constitution, and receive an annual salary.








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          3)Provides that an appeal must be filed at the Appeals Board  
            office within 40 days from the date of the ABC decision.   
            However, if ABC's decision states it is to be "effective  
            immediately," an appeal must be filed within 10 days after the  
            date of ABC's decision.  Documents not filed within the time  
            limits are untimely and cannot be accepted by the Appeals  
            Board.

          4)Specifies that no decision of the ABC shall become effective  
            during the period in which an appeal may be filed and the  
            filing of an appeal shall stay the effect of the decision  
            until such time as a final order is made by the Appeals Board.

          5)Provides that the review by the Appeals Board of a decision by  
            ABC shall be limited to specified questions.

          6)Provides that the Appeals Board is required to enter its order  
            within 60 days after the filing of an appeal.

           FISCAL EFFECT  :   Unknown.

           COMMENTS  :  

           Purpose of this bill:   According to the author, this bill  
          attempts to address a growing concern by the alcohol industry,  
          law enforcement, and citizens of California relating to the time  
          frame upon which an appeal is rendered by the Appeals Board.   
          The Appeals Board has been faced with a substantial increase in  
          caseload, which has resulted in a backlog of appeals.  ABC's    
          enforcement activities have increased in response to legislative  
          mandates to curtail underage drinking, which has lead to more  
          rulings and, in turn, the number of appeals to the Appeals Board  
          has increased.  The author is concerned with the length of time  
          it is taking to process the appeals.  In many cases, it has been  
          reported that it is taking up to 12 to 18 months before the       
             Appeals Board renders a final order.  The author is concerned  
          with the current appeals time frame because while the case is  
          being reviewed the "bad apples" continue to operate which         
            troubles law enforcement and residents within the community.   
          The author believes that it is essential that the Appeals Board  
          be held to better accountability relating to meeting specific     
                timelines specified in current law.

          The author further adds that with the increase in industry  








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          license fees (Wesson and Oropeza, Chapter 488, Statues of 2001)  
          there should be sufficient funds within the Appeals Board budget  
                   to maintain the staffing levels necessary to expedite  
          appeals in a more diligent manner.  This measure is necessary to  
          ensure that the principles of the appeals process within the ABC  
          Act are preserved and upheld as they relate to a licensee's  
          right of due process.

          The bill also makes a change to current law by retaining the  
          requirement that the winegrower meet specified conditions  
          regarding the sale or furnishing of wine under the circumstances  
          as described but would eliminate the requirement that statements  
          describing these conditions be made pursuant to an "undertaking  
          approved by ABC."  

          Additionally, this measure makes other minor technical changes  
          to this section of law.  In summary, these changes are intended  
          to streamline, simplify and provide for a more conforming  
          tied-house exception without materially impacting its effect. 

           Background  :  The Appeals Board provides quasi-judicial  
          administrative review of decisions of the ABC.  The questions  
          that may be considered by the Appeals Board are limited by the  
          California Constitution and by statute.

          The Appeals Board is made up of three members appointed by the  
          Governor.  Funding for the Appeals Board comes entirely from a  
          surcharge on all ABC license renewals.  All Appeals Board  
          activities, staff functions, and budget expenditures are  
          directed toward the review and finalization of appeals.  The  
          Appeals Board conducts 10 hearings throughout the year in both  
          Northern and Southern California.

          The Appeals Board determines appeals solely on the record of ABC  
          and any briefs filed by the parties.  No additional evidence may  
          be received by the Appeals Board.  However, the parties to        
             appeals may present oral argument during the Appeals Board's  
          monthly hearings.  The Appeals Board issues written decisions  
          with orders affirming, reversing, and/or remanding ABC    
          decisions.  Judicial review of the Board's order may be obtained  
          by filing a petition for writ of review with the California  
          Supreme Court or the Court of Appeal.

          The timely issuance of orders by the Appeals Board is a critical  
          part of the state's regulation of the alcoholic beverage  








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          industry and enforcement of the ABC Act.  When an appeal is  
          filed, any action by the ABC on its decision is stayed until the  
          appeal is concluded by a final order of the Appeals Board.   
          During the appeal period, a license that is subject to the  
          appeal may not be suspended or revoked; in the case of an  
          application for a license, the ABC may not issue or transfer the  
          license while the process is in effect.

          The number of new appeals filed with the Appeals Board on  
          average is around 200 cases per year.  A majority of the cases  
          reviewed by the Appeals Board relate to alcohol sales to minors.  
           According to the Appeals Board, approximately 3 % of the sales  
          to minor cases or approximately 17% of the overall cases are  
          reversed or partially reversed. 

           Prior legislation  :  AB 1245 (Torrico) of 2007-2008 Regular  
          Session.  Would have required the Alcoholic Beverage Control  
          Appeals Board to enter its order within 75 days after the filing  
          of an appeal.  (Passed off the Assembly floor 75-0 but was a gut  
          and amend in the Senate)

          SB 359 (Rainey) Chapter 529, Statutes of 1997.  Modified an  
          existing tied-house exception that permits a licensed winegrower  
          to hold an ownership interest in an on-sale license, if certain  
          conditions are met, to include a winegrower who has a wholesale  
          license to sell wine only.
                     
          SB 1376 (Thompson) Chapter 318, Statutes of 1994.  Among other  
          things, created a tied-house exception applicable to winegrowers  
          owning restaurants or bed and breakfast inns, provided certain  
          conditions are met.
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None on file

           Opposition 
           
          None on file
           

          Analysis Prepared by  :    Eric Johnson / G. O. / (916) 319-2531