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

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Date Published: 03/21/2017 04:00 AM
SB378:v98#DOCUMENT

Corrected  March 21, 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 administrated 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 the Department of Alcoholic Beverage Control to bring an action to enjoin a violation or the 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 director, by emergency order temporary restraining order, to temporarily suspend, limit, suspend or condition any alcoholic beverage license that authorizes consumption of alcohol on the premises of the licensee, except as specified, prior to any hearing when, in the opinion of the department, 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. The bill would, among other things related to the issuance and application of an emergency order, authorize a licensee against whom the order has been issued to petition for relief by written argument. The bill, upon order of the department, would authorize the hearing to be conducted electronically. The bill would authorize 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 proffered to the department to support the existence of an immediate threat to health or safety was false and presented with malicious intent. would, in proceedings not initiated by the department, require direct evidence, as defined, to be presented prior to the issuance of temporary restraining order, which would include an affidavit signed, under penalty of perjury, by specified persons.
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: NOYES  

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 director may temporarily suspend or condition any license issued pursuant to this division by temporary restraining order when, in the opinion of the department, 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) Any proceeding brought hereunder shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure.
(3) Unless initiated by the department, direct evidence of the threat must be presented to the director prior to the issuance of temporary restraining order pursuant to this section, and include an affidavit signed by the city’s chief of police, or county sheriff of that region, and the city manager or mayor requesting the order.
(b) Notwithstanding Section 24300, upon order of the department, the initial hearing conducted pursuant to this section may be conducted electronically.
(c) The department shall adopt regulations to develop the procedures necessary to implement this section.
(d) For purposes of this section:
(1) “Direct 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” means a temporary injunction issued by an administrative law judge.

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.
SECTION 1.Section 23059 is added to the Business and Professions Code, to read:
23059.

(a)(1)The director may, by emergency order, temporarily suspend, limit, or condition any license issued pursuant to this division by emergency order prior to any hearing when, in the opinion of the department, 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)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. The standard in any subsequent evidentiary hearing shall be whether the licensee knew about the threat.

(b)For purposes of this section:

(1)“Direct 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)“Immediate threat to health or safety” means the trafficking or dealing of controlled substances, prostitution, human trafficking, gambling, or violence involving great bodily injury or death that occurs on the licensee’s premises.

(3)“License” means a license issued pursuant to this division that authorizes consumption of alcohol on the premises of a licensee, excluding the licensed premises of production of a winery, brewery, or distillery.

(c)(1)The emergency order shall set forth the grounds upon which it is based, including a statement of facts constituting the alleged emergency necessitating the action.

(2)The emergency order shall be effective immediately upon issuance and service upon the licensee or any agent of the licensee. The department shall serve the licensee with the emergency order, a copy of available discovery, and other relevant evidence in possession of the department, including, but not limited to, affidavits, declarations, and any other direct evidence upon which the department relied in issuing the emergency order. The department shall notify the licensee of the licensee’s right to petition for relief.

(d)(1)Once the emergency order has been served, a licensee may petition for relief from the order by written argument.

(2)If a petition for relief is filed, using a preponderance of the evidence standard, the director shall modify or vacate the emergency order if either:

(A)The department has determined that the evidence is not substantial enough to prevail in a hearing or the department 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.

(e)The department shall respond, in writing, to a petition for relief, either by sustaining, modifying, or vacating the emergency order, within three business days of receipt of the petition. If the department does not sustain or modify the emergency order within three business days of receipt of the petition, the emergency order shall be dissolved.

(f)The emergency order shall remain effective until further order of the department or disposition at an accusation proceeding.

(g)The department shall file an accusation against the licensee with any additional, available pertinent discovery that was not provided to the licensee at the time the emergency order was issued within five business days after the issuance of an emergency order. The emergency order shall be dissolved if the department does not file an accusation within five business days after the issuance of the order.

(h)The licensee is entitled to a hearing. If a hearing is requested, it shall commence within 10 business days after the department’s receipt of the Notice of Defense.

(i)Nothing in this section precludes a licensee from proceeding directly to a full evidentiary hearing on an accusation without first petitioning the department for relief.

(j)At the accusation hearing, the administrative law judge shall issue a verbal decision which sustains or vacates the emergency order or shall issue a written order sustaining or vacating the emergency order within 24 hours of the close of the hearing. The administrative law judge shall submit a written proposed decision within 10 days after the close of the hearing.

(k)Notwithstanding any other law, upon order of the department, the hearing required by this section may be conducted electronically.

(l)If a licensee can establish that the direct evidence proffered to the department to support the existence of an immediate threat to health or safety pursuant to this section was false and presented with malicious intent, the licensee may 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.

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CORRECTIONS:
Digest—Page 1.
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