Amended in Senate June 22, 2016

Amended in Assembly May 23, 2016

Amended in Assembly April 13, 2016

Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2082

Introduced by Assembly Member Campos

February 17, 2016

An act to add Section 23059 to the Business and Professions Code, relating to alcoholic beverages.

LEGISLATIVE COUNSEL’S DIGEST

AB 2082, as amended, Campos. Alcoholic beverages: licenses: emergency orders.

Existing law, the Alcoholic Beverage Control Act, which is administrated by the Department of Alcoholic Beverage Control, regulates the application, issuance, and suspension of alcoholic beverage licenses. The act authorizes the department to investigate potential violations of the act, authorizes the Director of the Department of Alcoholic Beverage Control to bring an action to enjoin a violation or the threatened violation of the act, and provides for a hearing process held on a protest, accusation, or petition for a license.

This bill would authorize the director, by emergency order, to temporarily suspend, limit, or condition any license begin insert that authorizes consumption of alcohol on the premises of the licensee, except as specified, end insert prior to any hearing when, in the opinion of the department, the action is urgent and necessary to protect against an immediate threat to health or safety that is reasonably related to the operation of the licensed business. The bill would, among other things related to the issuance and application of an emergency order, authorize a licensee against whom the order has been issued to petition for relief by written argument. begin insert The bill, upon order of the department, would authorize the hearing to be conducted electronically. The bill would authorize a licensee to bring a cause of action seeking damages against a local civil authority, law enforcement, or another public official acting in his or her official capacity, if the licensee can establish that the direct evidence proffered to the department to support the existence of an immediate threat to health or safety was false and presented with malicious intent. end insert

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

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

SECTION 1.  

Section 23059 is added to the Business and
Professions Code, to read:

23059.  

(a) (1) The director may, by emergency order,
temporarily suspend, limit, or condition any license issued pursuant
to this division by emergency order prior to any hearing when, in
the opinion of the department, the action is urgent and necessary
to protect against an immediate threat to health or safety that is
reasonably related to the operation of the licensed business.

(2) If an immediate threat to health or safety is alleged, direct
evidence of the threat must be presented to the director prior to
the issuance of an emergency order pursuant to this section. The
standard in any subsequent evidentiary hearing shall be whether
the licensee begin delete knew, or should have known, end delete begin insert knew end insert about the threat.

(b) For purposes of this section:

(1) “Direct evidence” includes, but is not limited to, police
reports, citations from the relevant local civil authority,
photographs, and video footage provided by law enforcement or
another public official acting in his or her official capacity.

(2) “Immediate threat to health or safety” means the trafficking
or dealing of controlled substances, prostitution, human trafficking,
gambling, or violence involving great bodily injury or death that
occurs on begin delete or immediately adjacent to end delete the licensee’s premises.

begin insert

(3) “License” means a license issued pursuant to this division
that authorizes consumption of alcohol on the premises of a
licensee, excluding the licensed premises of production of a winery,
brewery, or distillery.

end insert

(c) (1) The emergency order shall set forth the grounds upon
which it is based, including a statement of facts constituting the
alleged emergency necessitating the action.

(2) The emergency order shall be effective immediately upon
issuance and service upon the licensee or any agent of the licensee.
The department shall serve the licensee with the emergency order,
a copy of available discovery, and other relevant evidence in
possession of the department, including, but not limited to,
affidavits, declarations, and any other direct evidence upon which
the department relied in issuing the emergency order. The
department shall notify the licensee of the licensee’s right to
petition for relief.

(d) (1) Once the emergency order has been served, a licensee
may petition for relief from the order by written argument.

(2) If a petition for relief is filed, using a preponderance of the
evidence standard, the director shall modify or vacate the
emergency order if either:

begin delete

(A) There is a reasonable probability that the licensee will
prevail in the accusation.

end delete begin insert

(A) The department has determined that the evidence is not
substantial enough to prevail in a hearing or the department has
acknowledged an error on its behalf.

end insert

(B) The likelihood of immediate threat to the health or safety
in not sustaining the emergency order does not outweigh the
likelihood of injury to the licensee in sustaining the emergency
order.

(e) The department shall respond, in writing, to a petition for
relief, either by sustaining, modifying, or vacating the emergency
order, within three business days of receipt of the petition. If the
department does not sustain or modify the emergency order within
three business days of receipt of the petition, the emergency order
shall be dissolved.

(f) The emergency order shall remain effective until further
order of the department or disposition at an accusation proceeding.

(g) The department shall file an accusation against the licensee
with any additional, available pertinent discovery that was not
provided to the licensee at the time the emergency order was issued
within five business days after the issuance of an emergency order.
The emergency order shall be dissolved if the department does not
file an accusation within five business days after the issuance of
the order.

(h) The licensee is entitled to a hearing. If a hearing is requested,
it shall commence within 10 business days after the department’s
receipt of the Notice of Defense.

(i) Nothing in this section precludes a licensee from proceeding
directly to a full evidentiary hearing on an accusation without first
petitioning the department for relief.

(j) At the accusation hearing, the administrative law judge shall
issue a verbal decision which sustains or vacates the emergency
order or shall issue a written order sustaining or vacating the
emergency order within 24 hours of the close of the hearing. The
administrative law judge shall submit a written proposed decision
within 10 days after the close of the hearing.

begin insert

(k) Notwithstanding any other law, upon order of the
department, the hearing required by this section may be conducted
electronically.

end insert begin insert

(l) If a licensee can establish that the direct evidence proffered
to the department to support the existence of an immediate threat
to health or safety pursuant to this section was false and presented
with malicious intent, the licensee may bring a cause of action
seeking damages against a local civil authority, law enforcement,
or another public official acting in his or her official capacity.

end insert