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SB-378 Alcoholic beverages: licenses: emergency orders.(2017-2018)

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Date Published: 05/03/2017 09:00 PM
SB378:v96#DOCUMENT

Amended  IN  Senate  May 03, 2017
Amended  IN  Senate  April 19, 2017
Amended  IN  Senate  March 20, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 378


Introduced by Senator Portantino

February 14, 2017


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


LEGISLATIVE COUNSEL'S DIGEST


SB 378, as amended, Portantino. Alcoholic beverages: licenses: emergency orders.
Existing law, the Alcoholic Beverage Control Act, which is administered 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 Alcoholic Beverage Control to bring an action to enjoin a violation or a 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 department, by temporary restraining order, to temporarily suspend or condition any alcoholic beverage license when, in the opinion of the department, and supported by a preponderance of the evidence, 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, subject to specified provisions, including provisions related to notice and judicial review. The bill would, in proceedings not initiated by the department, require evidence, as defined, to be presented prior to the issuance of temporary restraining order, which shall include an affidavit signed, under penalty of perjury, by specified persons. The bill would require that a licensee be granted the opportunity to present evidence, as specified, and oral argument at an initial hearing and would permit the licensee to be represented by counsel. For orders granted without notice, the bill would require the department to accept certain evidence from the licensee into the record.
By expanding the scope of the crime of perjury, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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 department may temporarily suspend or condition any license issued pursuant to this division by temporary restraining order when, in the opinion of the department, and supported by a preponderance of the evidence, 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) Unless initiated by the department, evidence of the threat must be presented prior to the issuance of temporary restraining order pursuant to this section, and shall include an affidavit describing the basis for the request signed by the city’s chief of police, or county sheriff of that region, and the city manager or mayor requesting the order.
(3) A petition under this section may be initiated by the department, a city attorney, or a city counsel.
(4) The licensee shall be granted the opportunity to present affidavits and other documentary evidence and to present oral argument at the initial hearing conducted pursuant to this section. The licensee may be represented by counsel. If the order is granted without notice, the department shall accept affidavits and other documentary evidence from the licensee into the record.
(b) The decision of the department on the petition for the temporary restraining order is final, subject only to judicial review in accordance with subdivision (e).
(c) No temporary restraining order shall be granted without notice to the opposing party, unless both of the following requirements are satisfied:
(1) It appears from facts shown by affidavit or by the petition that great or irreparable injury will result before the matter can be heard on notice.
(2) Unless initiated by the department, the petitioner or the petitioner’s attorney certifies one of the following to the department by affidavit:
(A) That within a reasonable time prior to the petition, the petitioner informed the licensee or the licensee’s attorney at what time and where the petition would be made.
(B) That the petitioner in good faith attempted but was unable to inform the licensee or the licensee’s attorney, specifying the efforts made to contact them.
(d) Upon the granting of a temporary restraining order, with or without notice to the licensee or the licensee’s attorney, the following shall occur:
(1) The matter shall be made returnable on an order requiring cause to be shown why a preliminary injunction should not be granted, on the earliest day that the business of the department will admit of, but not later than 15 days or, if good cause is appears to the department, 22 days from the date the temporary restraining order is issued.
(2) The party who obtained the temporary restraining order shall, within five days from the date the temporary restraining order is issued or two days prior to the hearing, whichever is earlier, serve on the licensee or the licensee’s attorney a copy of the petition if not previously served, the order to show cause stating the date, time, and place of the hearing, any affidavits to be used in the application, and a copy of the points and authorities in support of the petition. The court may for good cause, on motion of the petitioner or on its own motion, shorten the time required by this paragraph for service on the licensee or the licensee’s attorney.
(3) When the matter first comes up for hearing, if the party who obtained the temporary restraining order is not ready to proceed, or if the party has failed to effect service as required by paragraph (2), the department shall dissolve the temporary restraining order.
(4) The licensee is entitled to one continuance for a reasonable period of not less than 15 days or any shorter period requested by the licensee, to enable it to respond to the petition for a preliminary injunction. If the licensee obtains a continuance under this paragraph, the temporary restraining order shall remain in effect until the date of the continued hearing.
(5) Upon the filing of an affidavit by the petitioner that the licensee or the licensee’s attorney could not be served within the time required by paragraph (2), the department may reissue any temporary restraining order previously issued. The reissued order shall be made returnable as provided in paragraph (1), with the time for hearing measured from the date of reissuance.
(e) A temporary restraining order issued under this section shall be subject to judicial review in the same manner as if it were a final order of the Alcoholic Beverage Control Appeals Board, pursuant to Article 5 (commencing with Section 23090). The review of an order shall be limited to a determination of whether the order was not issued in the manner required by law, or if the court determines that the order is not supported by substantial evidence in light of the whole record.
(f) The order may be modified or dissolved by the department upon a showing that there has been a material change in the facts upon which the temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the temporary restraining order.
(g) Following the issuance of the temporary restraining order and prior to the hearing specified in paragraph (1) of subdivision (d), an accusation alleging cause for discipline of the license shall be filed with the department.
(h) Failure to comply with an order issued pursuant to this section shall constitute a separate cause for disciplinary action against the license. Allegations of noncompliance with the order may be filed at any time prior to the rendering of a decision on the accusation. Violation of the order is established upon proof that the licensee was on notice of the order and its terms, and that the order was in effect at the time of the violation. The finding of a violation of an order made at the hearing on the accusation shall be reviewed as a part of any review of a final decision.
If the order issued by the department provides for anything less than a complete suspension of the license and the licensee violates the order prior to the hearing on the accusation provided for in subdivision (d), the department may, upon notice to the licensee and proof of violation, modify or expand the order.
(i) The orders provided for by this section shall be in addition to, and not a limitation on, the authority to seek injunctive relief provided in any other provision of law.
(j) Notwithstanding Section 24300, upon order of the department, the initial hearing conducted pursuant to this section may be conducted electronically, including by telephone or by video. The hearing need not be held in the county in which the premises or licensee are located.
(k) The department shall adopt regulations to develop the procedures necessary to implement this section.
(l) For purposes of this section:
(1) “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) “Temporary restraining order” and “preliminary injunction” mean a temporary or interim emergency order issued by the department.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.