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 ----------------------------------------------------------------- |Author: |Campos | |-----------+-----------------------------------------------------| |Version: |6/22/2016 Amended | ----------------------------------------------------------------- ------------------------------------------------------------------ |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Arthur Terzakis | | | | ----------------------------------------------------------------- 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, AB 2082 (Campos) Page 2 of ? 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%. AB 2082 (Campos) Page 3 of ? 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 AB 2082 (Campos) Page 4 of ? 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. AB 2082 (Campos) Page 5 of ? 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 AB 2082 (Campos) Page 6 of ? 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 AB 2082 (Campos) Page 7 of ? 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 AB 2082 (Campos) Page 8 of ? 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 AB 2082 (Campos) Page 9 of ? 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 AB 2082 (Campos) Page 10 of ? 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." AB 2082 (Campos) Page 11 of ? 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."