BILL NUMBER: AB 2296 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 1, 2004
INTRODUCED BY Assembly Members Leno and Aghazarian
FEBRUARY 19, 2004
An act to amend Section 24013 repeal and
add Section 24015 of the Business and Professions Code,
relating to alcoholic beverage control.
LEGISLATIVE COUNSEL'S DIGEST
AB 2296, as amended, 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.
Existing law requires, in the case of a protest of the issuance of
a liquor license, that a hearing be held not more than 60 days after
the receipt of the protest by the State Office of Administrative
Hearings.
This bill would repeal this hearing requirement and instead would
establish procedures to be followed in cases in which the department
recommends that a license be issued, notwithstanding that one or more
protests have been accepted by the department. Under these
procedures, the department would be required to notify the applicant
and any party whose protest has been accepted in writing of the
recommendation. The bill would provide for a hearing upon the
request of any of these protesting parties who have filed a timely
verified protest, authorize the department to accept a late request,
limit the issues that may be determined at the hearing, provide that
the protests of any person who did not request a hearing under these
provisions shall be deemed withdrawn, and authorize the department to
issue the license without any further proceedings if no request for
hearing is filed with the department.
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
SECTION 1. Section 24015 of the Business and Professions Code is
repealed.
24015. Notwithstanding any other provision of law, in the case of
a protest of the issuance of a license to engage in the sale of
alcoholic beverages filed pursuant to Sections 24013 to 24016,
inclusive, the hearing shall be held not more than 60 days after
receipt of the protest by the State Office of Administrative
Hearings.
SEC. 2. Section 24015 is added to the Business and Professions
Code, to read:
24015. (a) If, after investigation, the department recommends
that a license be issued, with or without conditions, notwithstanding
that one or more protests have been accepted by the department, the
department shall notify the applicant and all protesting parties
whose protests have been accepted in writing of its determination.
(b) Any person who has filed a timely verified protest that has
been accepted pursuant to this article 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 calendar days of the date the department
notifies the protesting party of its determination as required under
subdivision (a).
(c) 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.
(d) If a request for a hearing is filed with the department
pursuant to subdivision (b), 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.
(e) Notwithstanding that a hearing is held pursuant to subdivision
(d), the protest or protests of any person or persons who did not
request a hearing as authorized in this section shall be deemed
withdrawn.
(f) If no request for a hearing is filed with the department
pursuant to this section, any protest or protests shall be deemed
withdrawn and the department may issue the license without any
further proceeding. 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) 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 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 protest
is false, vexatious, or without reasonable or probable cause at any
time before hearing thereon. 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.
(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.
(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.