BILL NUMBER: AB 2296	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Members Leno and Aghazarian

                        FEBRUARY 19, 2004

   An act to amend Section 24013 of the Business and Professions
Code, relating to alcoholic beverage control.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2296, as introduced, Leno.  Alcoholic beverages:  issuance of
liquor licenses:  protests.
   Existing law provides that protests against the issuance of a
liquor license may be filed with the Department of Alcoholic Beverage
Control. Existing law permits the department to reject protests,
except protests made by a public agency, public official, or
governing body of a city or county, it determines to be false,
vexatious, or without reasonable or probable cause.  Existing law
also permits a protestant whose protest has been rejected to file an
accusation with the department, in which case the department is
required to hold a hearing, as specified.
   This bill would establish a procedure by which an applicant for a
liquor license whose license is being protested may file with the
department, no later than 30 days before the date set for a hearing
on the protest, a verified motion to dismiss the protest on grounds
that the protest is false, vexatious, or without reasonable or
probable cause.  The bill would require the department to grant the
motion to dismiss the protest if it determines that there is no
evidentiary support for the protest on which reasonable minds may
differ.  This bill would permit a protestant whose protest has been
dismissed, in addition to a protestant whose protest has been
rejected, to file an accusation with the department and would require
the department to hold a hearing in this instance.
   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 24013 of the Business and Professions Code is
amended to read:
   24013.  (a) Protests may be filed at any office of the department
at any time within 30 days from the first date of posting the notice
of intention to engage in the sale of alcoholic beverages at the
premises, or within 30 days of the mailing of the notification
pursuant to Section 23985.5, whichever is later.
   (b)  The   Any applicant for a license whose
license is being protested may file, no later than 30 days before the
date set for a hearing on the protest, with the department a
verified motion to dismiss the protest on grounds that the protest is
false, vexatious, or without reasonable or probable cause.  The
motion shall be served on the protestant together with a copy of this
section. The protestant, not later than 15 days after the filing of
the motion, may file and serve on the applicant an opposition to the
motion.  The motion and any opposition to the motion may be supported
by verified declarations.  The motion to dismiss the protest shall
be granted if the department determines that there is no evidentiary
support for the protest on which reasonable minds may differ.  This
subdivision does not apply to protests made by a public agency, a
public official acting in an official capacity, or the governing body
of a city or county.
   (c) With respect to any motion made under subdivision (b), the
following shall apply:
   (1) The date for hearing the underlying protest shall be continued
until the department grants or denies the motion.
   (2) The applicant may request oral argument on the motion, to be
scheduled at the discretion of the administrative law judge.  The
oral argument on the motion may be by telephone conference.  A court
reporter is not required.
   (3) Not later than 10 days after the oral argument on the motion
or, if no oral argument is requested, not later than 10 days after
the filing of the protestant's opposition to the motion, the
administrative law judge shall issue a decision on the motion.  The
decision shall be based on whether the opposition papers and verified
declarations demonstrate that there is competent evidence supporting
the protest upon which reasonable minds may differ.  The burden of
proof shall be on the protestant.  If the protestant does not oppose
the motion, the protest may be dismissed.
   (4) If the motion to dismiss the protest is granted, the protest
shall have no legal effect and may not be used by the department on a
basis to deny the license or to impose conditions on the license, or
for any other purpose. Nothing in this subdivision shall be
construed as otherwise limiting the department's authority to deny or
impose conditions on a license under this division.
   (5) If the motion to dismiss the protest is denied, the protest
shall thereafter be set for hearing pursuant to Sections 24016 and
24300.
   (d) Notwithstanding any other provision of law, the 
department may reject  protests   a protest
 , except protests made by a public agency or public official
 acting in his or her official capacity  or protests made by
the governing body of a city or county, if it determines the
 protests are   protest is  false,
vexatious, or without reasonable or probable cause at any time before
hearing thereon  , notwithstanding Section 24016 or 24300
 .   If,   The department's power to
reject a protest shall not be affected by the failure of the
applicant to file a motion to dismiss the protest pursuant to
subdivision (b).  
   (e) If,  after investigation, the department recommends that
a license be issued notwithstanding a protest by a public agency, a
public official, or the governing body of a city or county, the
department shall notify the agency, official, or governing body 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  
   (f) If  the department  dismisses or  rejects a
protest as provided in this section and issues a license, a
protestant whose protest has been  dismissed or  rejected
may, within 10 days after the issuance of the license, file an
accusation with the department alleging the grounds of protest as a
cause for revocation of the license 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.  
   (c)  
   (g)  Nothing in this section shall be construed as
prohibiting or restricting any right which the individual making the
protest might have to a judicial proceeding.