BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
                              Senator Isadore Hall, III
                                        Chair
                                2015 - 2016  Regular 

          Bill No:           AB 2082          Hearing Date:    6/28/2016
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          |Author:    |Campos                                               |
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          |Version:   |6/22/2016    Amended                                 |
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          |Urgency:   |No                     |Fiscal:      |Yes             |
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          |Consultant:|Arthur Terzakis                                      |
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          SUBJECT: Alcoholic beverages:  licenses:  emergency orders


            DIGEST:    This bill adds a new section of law to the Alcoholic  
          Beverage Control (ABC) Act that grants the Director of ABC the  
          authority, by emergency order, to temporarily suspend, limit, or  
          condition any license that authorizes the consumption of alcohol  
          on the premises of the licensee, except as specified, prior to  
          any hearing when, in the opinion of the director, 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.

          ANALYSIS:
          
          Existing law:
          
          1)Establishes the Department of ABC and grants it exclusive  
            authority to administer the provisions of the ABC Act in  
            accordance with laws enacted by the Legislature.  This  
            involves licensing individuals and businesses associated with  
            the manufacture, importation and sale of alcoholic beverages  
            in this state and the collection of license fees or occupation  
            taxes for this purpose.

          2)Authorizes ABC to investigate potential violations of the ABC  
            Act and grants the director authority 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,  







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            or petition for a license.

          3) Provides that the ABC may place reasonable conditions upon  
            any licensee in certain situations, including, but not limited  
            to, the following:  (a) where grounds exist for the denial of  
            an application for a license or where a protest against the  
            issuance of a license has been filed; (b) where findings are  
            made by the ABC which would justify suspension or revocation  
            of the license, and imposition of the conditions is reasonably  
            related to those findings; and, (c) where findings are made by  
            the ABC that the licensee has failed to correct objectionable  
            conditions within a reasonable period of time.  Furthermore,  
            the law provides that the ABC may suspend or revoke a license  
            for failure to take reasonable steps to correct objectionable  
            conditions, as described.

          4)Authorizes ABC, in its discretion, to suspend or revoke any  
            license to sell alcoholic beverages if it determines for good  
            cause that the continuance of such license would be contrary  
            to the public welfare or morals.  ABC may use a range of  
            progressive and proportional penalties, as specified.

          5)Provides that if an accusation is filed against a licensee,  
            the licensee is entitled to have a public hearing on the  
            accusation to present a defense against the charges made.  The  
            hearing will be presided over by an Administrative Law Judge  
            of the Administrative Hearing Office.  At the hearing, the  
            licensee is entitled to the issuance of subpoenas to compel  
            the attendance of witnesses and materials and may be  
            represented by counsel (but not at public expense), may  
            present relevant evidence and may cross-examine all witnesses.  
             The Administrative Law Judge makes a proposed decision, which  
            is filed with the ABC Director.  (Government Code Sections  
            11500 to 11528) 

          6)Generally provides that the ABC shall deny an application for  
            a license if the issuance or transfer of the license would  
            tend to create a law enforcement problem or add to undue  
            concentration of licenses, unless issuing the license would  
            serve a public convenience or necessity.  The law defines  
            "undue concentration" in terms of a specified ratio of  
            licensed premises-to-population within a census tract or a  
            crime reporting district in which the reported crime rate  
            exceeds the crime rate of the entire local law enforcement  
            jurisdiction by more than 20%.








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          7)Requires that notice of an application for a license be  
            conspicuously posted on applicant premises and requires ABC to  
            notify various local officials in the jurisdictions in which  
            the premise is located that an application has been received.   
            The law also sets out procedures by which public agencies or  
            public officials may protest the issuance of a license.

          8)Defines an "on-sale" license as authorizing the sale of all  
            types of alcoholic beverages: namely, beer, wine and distilled  
            spirits, for consumption on the premises (such as at a  
            restaurant or bar).  An "off-sale" license authorizes the sale  
            of all types of alcoholic beverages for consumption off the  
            premises in original, sealed containers.  


          This bill:

          1)Authorizes the Director of ABC, by emergency order, to  
            temporarily suspend, limit, or condition any license, as  
            defined, prior to any hearing when, in the opinion of the  
            director, 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)Defines "license" to mean a license issued pursuant to this  
            subdivision that authorizes consumption of alcohol on the  
            premises of a licensee, excluding the licensed premises of  
            production of a winery, brewery, or distillery.

          3)Provides that 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.  Also, provides that the standard in  
            any subsequent evidentiary hearing shall be whether the  
            licensee "knew" about the threat.

          4)Defines "direct evidence" to mean police reports, citations  
            from the relevant local civil authority, photographs, and  
            video footage provided by law enforcement or another public  
            official acting in his/her official capacity.

          5)Defines "immediate threat to health or safety" to mean the  
            trafficking or dealing of controlled substances, prostitution,  
            human trafficking, gambling, or violence involving great  








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            bodily injury or death that occurs on the licensee's premises.

          6)Provides that the emergency order must set forth the grounds  
            upon which it is based, including a statement of facts  
            constituting the alleged emergency necessitating the action.

          7)Stipulates that the emergency order shall be effective  
            immediately upon issuance and service upon the licensee or any  
            agent of the licensee. 

          8)Provides that ABC shall serve the licensee with the emergency  
            order, a copy of available discovery, and other relevant  
            evidence in its possession, including but not limited to,  
            affidavits, declarations, and any other direct evidence.  The  
            ABC must also notify the licensee of his/her right to petition  
            for relief.

          9)Provides that once the emergency order has been served, a  
            licensee may petition for relief from the order by written  
            argument.  If a petition for relief is filed, using a  
            preponderance of the evidence standard, the director must  
            modify or vacate the emergency order if either:

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

             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.

           10)Requires ABC to respond, in writing, to a petition for  
             relief within three business days.  If the ABC does not  
             sustain or modify the emergency order within three days of  
             receipt of the petition, the order must be dissolved.

           11)Provides that the emergency order shall remain effective  
             until further order of the ABC or disposition at an  
             accusation proceeding.  

           12)Provides that the licensee is entitled to a hearing and if a  
             hearing is requested, it must commence within 10 business  
             days, as specified.  Also, permits a hearing to be conducted  
             electronically.








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           13)Provides that nothing in this section precludes a licensee  
             from proceeding directly to a full evidentiary hearing on an  
             accusation without first petitioning the ABC for relief.

           14)Authorizes 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 offered to ABC to support the existence of an  
             immediate threat to health or safety was false and presented  
             with malicious intent. 

          Background

          ABC in brief.  The enactment of the 21st Amendment to the U.S.  
          Constitution in 1933 repealed the 18th Amendment and ended the  
          era of Prohibition.  Accordingly, states were granted the  
          authority to establish alcoholic beverage laws and  
          administrative structures to regulate the sale and distribution  
          of alcoholic beverages.  In California, this responsibility was  
          originally entrusted to the State Board of Equalization.  In  
          1955, however, the State Constitution was amended to shift this  
          responsibility to the newly established Department of Alcoholic  
          Beverage Control (ABC).

          The intent in establishing the ABC was to create a governmental  
          organization which would ensure strict, honest, impartial, and  
          uniform administration and enforcement of the state's liquor  
          laws.  The ABC was vested with the exclusive authority to  
          license and regulate the manufacture, distribution and sale of  
          alcoholic beverages within California.  The ABC has the  
          authority to suspend, revoke or deny a license if it determines  
          that granting or continuance of the license would be contrary to  
          public welfare or morals.  The law requires notice of violation  
          and a hearing at which a licensee can defend itself, as well as  
          a right to an appeal to the ABC Appeals Board, a 3-member body  
          appointed by the Governor, subject to Senate confirmation.

          ABC licensing.  There are currently more than 88,000 alcoholic  
          beverage licenses throughout the state - this includes both  
          on-sale and off-sale establishments which sell beer and wine,  
          and on-sale and off-sale general licensees that are authorized  
          to sell distilled spirits, including beer and wine.  The ABC is  
          required to investigate both the applicant and the premises for  








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          which a license is applied to determine if the public would be  
          adversely affected by the license issuance.  These  
          investigations include an evaluation of the moral character of  
          the applicant and the suitability of the proposed premises.

          The ABC must deny an application for a license if issuance would  
          create a law enforcement problem or if issuance would result in,  
          or add to, an undue concentration of licenses in the area where  
          the license is desired.  For liquor stores and other specified  
          retail licenses, however, the ABC is authorized to issue a  
          license if the respective local government determines that  
          public convenience or necessity would be served by granting the  
          license.

          State law caps the number of new on-sale and off-sale general  
          licenses issued by the ABC at one for every 2,500 inhabitants of  
          the county where the establishment is located (2,000:1 for  
          on-sale licenses).  If no licenses are available from the state  
          due to the population restrictions, those people interested in  
          obtaining a liquor license may purchase one from an existing  
          licensee, for "whatever price the market bears."  

          State v. local control of alcohol policy.  Over the years, local  
          governments have often petitioned the Legislature (see "related  
          legislation") for greater authority to directly regulate  
          establishments that sell alcohol (e.g., restricting the hours of  
          operation of problem premises, or limiting the sale of certain  
          products such as fortified wines or high alcohol content malt  
          beverages).  Much of this activity has been centered on local  
          government's use of zoning laws and conditional use permits that  
          place operating conditions on new businesses that sell alcohol.   
          While current law prohibits the ABC from issuing a new license  
          in an area not locally zoned for that type of business activity,  
          those establishments in existence prior to any local zoning  
          action are  generally "grandfathered" and therefore beyond the  
          reach of the local government - a source of contention for local  
          governments.

          Purpose of AB 2082.  According to the author's office, large  
          cities throughout the state (e.g., Los Angeles, San Francisco,  
          and San Jose in particular) have witnessed an increase in  
          illegal activity surrounding alcohol-serving establishments.   
          The author's office contends that illegal activities in such  
          businesses may go unpunished for weeks or even months, while  
          local law enforcement and ABC officials build a case against the  








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          business establishment.  Even in urgent situations, such as gang  
          related crimes or human trafficking, local authorities have  
          their hands tied in the short-term and must let the businesses  
          continue operation.  Furthermore, these establishments may be  
          run by the same group of business partners or family members who  
          merely transfer the alcohol license amongst each other when  
          authorities are finalizing the process of shutting down the  
          business.

          The author's office states that the San Jose Police Department  
          has had success in dealing with and shutting down these  
          establishments, but their authority is still lacking.  For  
          example, the Chief of Police can immediately suspend an  
          entertainment license of a business in the case of an emergency,  
          but this practice is only applicable within the city's  
          "entertainment zone."  The Department of Consumer Affairs, the  
          Bureau of Gambling Control, and the Department of Public Health  
          also have the authority to pull licenses or close businesses  
          swiftly if they are found to be engaged in illegal activities  
          that endanger the health and safety of individuals.  

          The author's office believes this bill will be a tool that can  
          be used, with caution, when residents face dangerous  
          circumstances because of problem businesses.  The author's  
          office notes that this bill was crafted in close collaboration  
          with the San Jose Police Department and other local and  
          statewide officials.  In addition, the author's office claims  
          that at least 10 other states have broad authority to suspend  
          alcohol licenses in cases of emergency.

          In summary, the author's office states that this bill will  
          provide the Director of ABC with the authority to suspend an  
          alcohol license in the case of an emergency that threatens the  
          health and safety of the public.  To do so, the Director must  
          produce an emergency order with a statement of facts containing  
          the alleged emergency, any relevant evidence upon which ABC  
          relied in issuing the emergency order, and a notice of the  
          licensee's right to petition for relief.  The author states this  
          bill allows the licensee to petition for relief from the order  
          by written argument.

          Comments.  Currently, the director of ABC has broad authority to  
          suspend and revoke an alcoholic beverage license - such an  
          action requires notice of violation and allows for a hearing at  
          which a licensee can defend itself as well as a right to an  








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          appeal.  This bill will allow the ABC, by emergency order, to  
          "immediately" suspend, limit, or condition a license (wineries,  
          breweries and distilleries are excluded) when there is  
          sufficient evidence documenting that the licensee "knew" there  
          was human trafficking, drug dealing, prostitution, or violence  
          occurring in their business.  Once the emergency order has been  
          served, the licensee may petition for relief by written  
          argument, to which ABC must respond within three business days  
          with a document sustaining, modifying, or vacating the emergency  
          order.  If a hearing is requested by the licensee it must begin  
          within 10 business days after ABC's receipt of the Notice of  
          Defense.

          Prior/Related Legislation
          
          AB 2151 (Jones, 2008) among other things, would have granted ABC  
          the authority to deny the issuance or transfer of an off-sale  
          retail license where the department determines that the issuance  
          or transfer of the license will contribute to conditions of  
          blight, as provided.   (Vetoed by Governor)

          AB 2893 (Hancock, Chapter 253, Statutes of 2008) granted ABC the  
          authority to impose restrictions on retail license transfers in  
          instances where the license transferor has been cited for  
          multiple violations of the ABC Act during his/her ownership of  
          the license. 

          SB 148 (Scott, Chapter 625, Statutes of 2006) among other  
          things, provided additional basis for the suspension or  
          revocation of an alcoholic beverage license, when a licensee  
          fails to take reasonable steps to correct objectionable  
          conditions on the licensed premises or any public sidewalk  
          abutting a licensed premise, as provided, after specified notice  
          from the district attorney, city attorney, or a county counsel.
           
           AB 624 (Oropeza, Chapter 931, Statutes of 2001) permitted ABC to  
          take into account neighboring crime statistics in the area of  
          the site of the establishment when transferring an alcohol  
          license.  Furthermore, this bill extended the time local  
          entities have to respond to the notice of a new or transferred  
          license and required the notification of local property owners  
          around the site.
           
           AB 1092 (Lowenthal, Chapter 499, Statutes of 1999) authorized  
          ABC to place reasonable restrictions upon retail licenses or any  








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          licensee in the exercise of retail privileges if ABC adopts  
          conditions requested by a local governing body.

          AB 2897 (Caldera, Chapter 630, Statutes of 1994) among other  
          things, granted ABC the authority to deny an application for a  
          license if issuance would tend to create a law enforcement  
          problem, or would result in or add to an undue concentration of  
          licenses.  In addition, provided that a license may be issued if  
          the local governing body of the area in which the applicant  
          premises are located determines that public convenience or  
          necessity would be served by the issuance. 
          
          AB 463 (Tucker, Chapter 627, Statutes of 1994) authorized ABC to  
          suspend or impose new conditions on a licensee who has failed to  
          correct "reasonable conditions" as noticed by a local official.   

          
          AB 2742 (Lee, Chapter 629, Statutes of 1994) made a series of  
          changes relating to ABC licensing and standards, including: (a)  
          establishing general operating standards with respect to the  
          licensed premise of retailers of alcoholic beverages; (b)  
          providing that the existing 30-day review process shall be  
          extended by 20 days to give the local jurisdictions more  
          authority and opportunity for related input; (c) requiring the  
          ABC to notify the entity or official in writing as to why they  
          recommend that a license be issued after a protest has been made  
          by an entity or official, as specified; and, (d) providing  
          additional regulation of a licensee, as specified.

          FISCAL EFFECT:                 Appropriation:  No    Fiscal  
          Com.:             Yes          Local:          No


            SUPPORT:  

          Alcohol Justice
          California Alcohol Policy Alliance
          California Council on Alcohol Problems
          California Police Chiefs Association
          Eden Youth and Family Center
          FreeMUNI - San Francisco
          Friday Night Live Partnership
          Institute for Public Strategies
          Koreatown Youth and Community Center, Los Angeles
          League of California Cities








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          Los Angeles Drug & Alcohol Policy Alliance
          Lutheran Office of Public Policy - California
          Partnership for a Positive Pomona
          Paso por Paso, Inc.
          Pueblo y Salud, Inc.
          San Rafael Alcohol & Drug Coalition
          Saving Lives Drug & Alcohol Coalition
          SF DogPAC
          The Wall Las Memorias Project
          UCEPP Social Model Recovery Systems
          Youth for Justice.  
           
          OPPOSITION:

          CalSmallBiz
          Taxpayers for Improving Public Safety

          ARGUMENTS IN SUPPORT:  Proponents state that "while the  
          Department of ABC has exclusive authority to revoke the alcohol  
          license of problem retailers, it lacks the ability to act  
          swiftly when alcohol-serving establishments are found to be  
          involved in severe illegal acts.  AB 2082 closes a problematic  
          enforcement gap by allowing ABC to address problem liquor stores  
          and bars within the timeframe expected by the neighborhoods  
          housing these licensees."


          Proponents also note that "the state already suffers more than  
          $38 billion dollars in alcohol-related harm and over 10,000  
          alcohol-related deaths annually.  Proponents believe this bill  
          will help safeguard public health and safety and reduce the  
          number of problem alcohol retailers in California."  


          ARGUMENTS IN OPPOSITION:   Opponents state that this bill is  
          "fraught with constitutional concerns and relies upon arbitrary  
          determinations, not the least of which are an unclear standard  
                                              of evidence, due process violations based upon a subjective  
          standard of threat to health or safety, and taking punitive  
          action against a licensee without regard to any presumption of  
          innocence.  In effect, this bill requires the accused to  
          disprove their guilt in order to avoid punishment.  The issuance  
          of an 'emergency action' by the Director of ABC relies upon mere  
          allegations (police report, citation, photos) which need not be  
          vetted by any finding of fact or formal proceedings."  








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          Additionally, opponents argue that "current law already allows  
          local authorities and law enforcement to file complaints against  
          a licensee with the ABC which is then required to hold a hearing  
          within 60 days if the allegations are deemed to be urgent.   
          Perhaps instead of eliminating the due process rights of the  
          accused, the author may consider reducing the timeframe in which  
          a hearing must be held from 60 to 45 or 30 days."