Amended in Senate April 17, 2013

Senate Bill No. 635

Introduced by Senator Leno

February 22, 2013

An act to amend Section 25631 of, and to add Section 25634 to, the Business and Professions Code, relating to alcoholic beverages.

LEGISLATIVE COUNSEL’S DIGEST

SB 635, as amended, Leno. Alcoholic beverages: hours of sale.

The Alcoholic Beverage Control Act provides that any on- or off-sale licensee, or agent or employee of the licensee, who sells, gives, or delivers to any person any alcoholic beverage between the hours of 2 a.m. and 6 a.m. of the same day, and any person who knowingly purchases any alcoholic beverages between those hours, is guilty of a misdemeanor.

This bill would allow begin delete the local governing body of a county or a city and county end delete begin insert an on-sale licensee end insert to apply to the Department of Alcoholic Beverage Control to authorize, with or without conditions on the begin delete licensees within those jurisdictions end delete begin insert on-sale license end insert , the selling, giving, delivering, or purchasing of alcoholic beverages at begin delete an on-sale end delete begin insert the end insert licensed premises between the hours of 2 a.m. and 4 a.m., begin insert upon completion of specified requirements by the local jurisdiction in which the licensee is located, end insert as provided. This bill would require the begin delete local governing body end delete begin insert applicant end insert to notify specified persons of the application for additional hours and would provide a procedure for protest and hearing regarding the application.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert The Legislature finds and declares all of the
following: end insert

begin insert

(a) It is the policy of the state to promote the responsible
consumption of alcoholic beverages through making multiple
planning options available to local communities and entertainment
areas of the state, including the option of extended services hours
up to a limit of 4 a.m. in communities and areas of the state where
those extended hours are found by the governing body of the
responsible community to be proper and appropriate.

end insert begin insert

(b) It is the policy of the state to encourage local communities
to implement local entertainment and licensed venue operation
policies designed for their specific communities and to support
those local initiatives by all appropriate means.

end insert begin insert

(c) It is the policy of the state that modified closing times can
improve the quality of life in local jurisdictions by mitigating public
safety and nuisance issues associated with the uniform 2 a.m.
closing hour.

end insert begin insert

(d) It is the policy of the state that local communities consider
different approaches to address issues of the 2 a.m. uniform closing
hour and encourage responsible consumption by, including, but
not limited to, extending service hours within a limited
geographical area, staggering service hours to alleviate stress on
public services, differentiating between the end of sale hour and
the end of consumption hour, and extending service hours only on
holidays or specific days of the week.

end insert begin insert

(e) At least 15 states across the country delegate complete or
partial authority for setting service hours to local jurisdictions or
allow local jurisdictions to extend the hours of service, subject to
state approval.

end insert begin insert

(f) The Legislature supports a well-planned and managed
nightlife that can have a profound positive impact on a local
economy, generating direct tax revenues, and growing public funds
through increased property value, revitalized business districts,
and increased tourism.

end insert begin insert

(g) The Legislature supports the world-renowned California
licensed restaurant, venue, and entertainment industry, which
generates more than fifty billion dollars ($50,000,000,000) every
year in consumer spending in California communities on jobs,
goods and services, and related industries, and that attracts
world-class acts as well as tourists to visit and enjoy California.

end insert begin insert

(h) The Legislature has determined that it is in the best interest
of the State of California for extended hours of operation policies
to be administered by the Department of Alcoholic Beverage
Control in connection with applications for additional hour
privileges, with the fees for those applications to be determined
and assessed by the department at a rate that will fully reimburse
the department for administrative expenses.

end insert

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

Section 25631 of the Business and Professions Code
is amended to read:

25631.  

(a) (1) Except as provided in subdivision (b), any on-
or off-sale licensee, or agent or employee of that licensee, who
sells, gives, or delivers to any persons any alcoholic beverage or
any person who knowingly purchases any alcoholic beverage
between the hours of 2 a.m. and 6 a.m. of the same day, is guilty
of a misdemeanor.

(2) For the purposes of this subdivision, on the day that a time
change occurs from Pacific standard time to Pacific daylight saving
time, or back again to Pacific standard time, “2 a.m.” means two
hours after midnight of the day preceding the day such change
occurs.

(b) (1) In a begin insert city, end insert county begin insert , end insert or city and county that has additional
serving hours pursuant to Section 25634, any on-sale licensee, or
agent or employee of the licensee, who sells, gives, or delivers to
any person any alcoholic beverage or any person who knowingly
purchases any alcoholic beverage between the hours of 4 a.m. and
6 a.m. of the same day, is guilty of a misdemeanor.

(2) For the purposes of this subdivision, on the day that a time
change occurs from Pacific standard time to Pacific daylight time,
or back again to Pacific standard time, “4 a.m.” means four hours
after 12 midnight of the day preceding the day the change occurs.

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

Section 25634 is added to the Business and Professions
Code, to read:

25634.  

(a) Notwithstanding Section 25631, the department
may authorize, with or without conditions begin delete on the licensees end delete , the
selling, giving, delivering, or purchasing of alcoholic beverages
at an begin insert individual end insert on-sale licensed premises between the hours of 2
a.m. and 4 a.m. within a begin insert city, end insert county begin insert , end insert or a city and county if the
local governing body of that begin insert city, end insert county begin insert , end insert or city and county, or
its designated subordinate officer or body begin delete , applies to the department
and shows the departmentthe public convenience or necessity
served by the additional hours. end delete begin insert does the following: end insert

begin insert

(1) Develops and approves a local plan that meets the following
requirements:

end insert begin insert

(A) Shows that the public convenience or necessity will be served
by the additional hours.

end insert begin insert

(B) Identifies the area that will be affected by the additional
hours and demonstrates how that area will benefit from the
additional hours.

end insert begin insert

(C) Shows that residents and businesses within the additional
hours service area support the additional hours.

end insert begin insert

(D) Includes an assessment by local law enforcement regarding
the potential impact of an additional hours service area and the
public safety plan, created by local law enforcement, for managing
those impacts that has been approved by the local governing body.

end insert begin insert

(E) Shows that transportation services are readily accessible
in the additional hours service area during the additional service
hours.

end insert begin insert

(F) Includes programs to increase public awareness of the
transportation services available in the additional hours service
area and the impacts of alcohol consumption.

end insert begin insert

(2) Resolves and certifies the local plan and submits the local
plan to the department.

end insert begin insert

(b) Upon receipt of a local plan developed pursuant to
paragraph (1) of subdivision (a), the department shall review the
local plan to ensure compliance with existing law and regulations
promulgated by the department. The department shall review the
local plan within ____ days of receipt and shall notify the local
governing body of its approval or denial of the plan. During the
review process the department shall post the local plan on its
Internet Web site.

end insert begin insert

(c) An on-sale licensee shall not apply for additional hours
pursuant to this section until the department has approved the
local plan of the city, county, or city and county in which the
licensed premises is located.

end insert begin delete

(b)

end delete

begin insert (d) end insert  (1) Upon receipt of an application begin insert by an on-sale licensee end insert
for additional hours pursuant to this section, the department shall
make a thorough investigation to determine whether the additional
hours begin delete would serve the public convenience or necessity end delete begin insert sought by
the applicant would unreasonably interfere with the quiet
enjoyment of their property by the residents of the city, county, or
city and county in which the applicant end insert begin insert ’s licensed premises are
located end insert .

(2) The begin delete local governing body of the county or city and county end delete
begin insert app end insert begin insert licant end insert shall notify the law enforcement agencies of the begin delete county
or city and county end delete begin insert city, county, or city and county end insert , the residents
of the begin insert city, end insert county begin insert , end insert or city and county begin insert located within 500 feet of
the premises for which additional hours are sought end insert , and any other
interested parties, as determined by the local governing body, of
the application begin insert by an on-sale licensee end insert for additional hours pursuant
to this section within 30 consecutive days of the filing of the
application, in a manner determined by the local governing body.

(3) Protests may be filed at any office of the department within
30 days from the first date of notice of the filing of an application
begin insert by an on-sale licensee end insert for additional hours. The time within which
a local law enforcement agency may file a protest shall be extended
by the period prescribed in Section 23987.

(4) The department may reject protests, except protests made
by a public agency or public official, if it determines the protests
are false, vexatious, frivolous, or without reasonable or probable
cause at any time before hearing thereon, notwithstanding Section
begin delete 24016 or end delete 24300. If, after investigation, the department recommends
that additional hours be authorized notwithstanding a protest by a
public agency or a public official, the department shall notify the
agency or official in writing of its determination and the reasons
therefor, in conjunction with the notice of hearing provided to the
protestant pursuant to Section 11509 of the Government Code. If
the department rejects a protest as provided in this section, a
protestant whose protest has been rejected may, within 10 days,
file an accusation with the department alleging the grounds of
protest as a cause for revocation of the additional hours and the
department shall hold a hearing as provided in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title
2 of the Government Code.

(5) This section shall not be construed as prohibiting or
restricting any right that the individual making the protest might
have to a judicial proceeding.

begin delete

(c)

end delete

begin insert (e) end insert  (1) If, after investigation, the department recommends that
additional hours be authorized, with or without conditions on the
begin delete licensees, end delete begin insert applicant’s license, end insert notwithstanding that one or more
protests have been accepted by the department, the department
shall notify the local governing body and all protesting parties
whose protests have been accepted in writing of its determination.

(2) Any person who has filed a verified protest in a timely
fashion pursuant to subdivision begin delete (b) end delete begin insert (d) end insert that has been accepted
pursuant to this begin delete article end delete begin insert section end insert may request that the department
conduct a hearing on the issue or issues raised in the protest. The
request shall be in writing and shall be filed with the department
within 15 business days of the date the department notifies the
protesting party of its determination as required under paragraph
(1).

(3) At any time prior to the issuance of the license, the
department may, in its discretion, accept a late request for a hearing
upon a showing of good cause. Any determination of the
department pursuant to this subdivision shall not be an issue at the
hearing nor grounds for appeal or review.

(4) If a request for a hearing is filed with the department
pursuant to paragraph (2), the department shall schedule a hearing
on the protest. The issues to be determined at the hearing shall be
limited to those issues raised in the protest or protests of the person
or persons requesting the hearing.

(5) Notwithstanding that a hearing is held pursuant to paragraph
(4), the protest or protests of any person or persons who did not
request a hearing as authorized in this section shall be deemed
withdrawn.

(6) If a request for a hearing is not filed with the department
pursuant to this section, any protest or protests shall be deemed
withdrawn and the department may begin delete issue the license end delete begin insert approve the
on-sale licensee’s application for additional hours end insert without any
further proceeding.

(7) If the person filing the request for a hearing fails to appear
at the hearing, the protest shall be deemed withdrawn.

begin delete

(d)

end delete

begin insert (f) end insert  The department shall notify the begin delete on-sale licensees within the
county or city and county end delete begin insert applicant end insert of the outcome of the
application for additional hours. Any conditions placed upon the
begin delete licensees end delete begin insert license end insert pursuant to this section shall be subject to Article
1.5 (commencing with Section 23800).

begin delete

(e)

end delete

begin insert (g) end insert  The begin delete local governing body end delete begin insert applicant end insert shall, at the time of
application for additional hours pursuant to this section, accompany
the application with a fee of ____ dollars ($____). Fees collected
pursuant to this section shall be deposited in the Alcohol Beverage
Control Fund.

begin delete SEC. 3. end delete
begin insert SEC. 4. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.