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SB-846 Alcoholic beverages: retail on-sale license: off-sale privileges.(2021-2022)

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Date Published: 01/13/2022 09:00 PM
SB846:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 846


Introduced by Senator Dodd
(Principal coauthors: Assembly Members Bauer-Kahan and Friedman)
(Coauthor: Senator Wiener)
(Coauthor: Assembly Member Eduardo Garcia)

January 13, 2022


An act to amend Section 23401.5 of, and to add Section 23394.6 to, the Business and Professions Code, relating to alcoholic beverages.


LEGISLATIVE COUNSEL'S DIGEST


SB 846, as introduced, Dodd. Alcoholic beverages: retail on-sale license: off-sale privileges.
(1) 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. Under existing law, a retail package off-sale beer and wine license authorizes the sale, to consumers and not for resale, of beer in containers, and wine in packages, as specified, for consumption off the premises where sold. Existing law prohibits the exercise of off-sale license privileges at a customer-operated checkout stand located on the licensee’s physical premises.
This bill would authorize a licensee with off-sale retail privileges to deliver alcoholic beverages to consumers away from the licensed premises if specified requirements are met. The bill would except common carriers from the application of its provisions. The bill would require, among other things, that the licensee be authorized to sell alcoholic beverages for off-sale consumption, to determine which alcoholic beverages are available for delivery, and to set the prices for these beverages. The bill would require a licensee to be responsible for accepting or rejecting the delivery order and, prior to acceptance, the purchaser to affirm that both the purchaser and the recipient are not under 21 years of age. The bill would prescribe requirements for consumer delivery services operating in this context and would require the Department of Alcoholic Beverage Control to issue a consumer delivery service permit to a service that satisfies specified requirements.
The bill, in context of the authorization described above, would exempt a licensee from discipline for the sale, delivery, or furnishing of an alcoholic beverage to an obviously intoxicated person, or to a person under 21 years of age, if certain requirements are met. The bill would authorize the Department of Alcoholic Beverage Control to impose administrative penalties, as specified, against the holder of a consumer delivery service permit that violates its provisions.
(2) Existing law, until December 31, 2026, authorizes the holder of an on-sale license for a bona fide public eating place that has off-sale privileges, or a licensed beer manufacturer, licensed wine manufacturer, or licensed craft distiller that operates a bona fide public eating place at its premises of production, to exercise additional off-sale rights and privileges, subject to specified requirements such as a requirement that the sale also include a meal. In this regard, existing law requires that the consumer that places an order from the licensee pick up the order in person.
This bill would provide that a consumer may pick up an order directly from the above licensees or the beverages may be delivered to the consumer as described in paragraph (1). The bill would eliminate the requirement that the sale include a meal. The bill would also extend these additional off-sale privileges to holders of an on-sale general license.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 23394.6 is added to the Business and Professions Code, to read:

23394.6.
 (a) A licensee with off-sale retail privileges may deliver an alcoholic beverage to a consumer away from the licensed premises only if all of the following requirements are met:
(1) The licensee shall be authorized to sell the alcoholic beverage for off-sale consumption. The licensee shall determine which alcoholic beverages are available for delivery and set the prices for these beverages.
(2) The delivery shall be made by the licensee or the holder of a consumer delivery service permit.
(3) The licensee shall be responsible for accepting or rejecting the delivery order, and the purchaser shall pay the licensee prior to delivery, directly or through a payment processor. Prior to the licensee accepting a delivery order, the purchaser shall affirm that both the purchaser and the recipient of the order are not under 21 years of age.
(4) Any alcoholic beverage to be delivered shall be removed from the licensed premises during the hours in which the licensee is permitted to sell, and the delivery shall be complete no later than 60 minutes after the time the licensee is required to end sales.
(5) The delivery shall be made by a person who is at least 21 years of age. The person to whom the alcoholic beverages are delivered shall be at least 21 years of age.
(6) The delivery shall be made by a person who has completed a responsible beverage service training course for delivery personnel, using materials approved by the department, that covers the following subjects:
(A) The social impact of alcohol.
(B) The impact of alcohol on the body.
(C) State law and regulations relating to alcoholic beverage control.
(D) Intervention techniques to prevent the service or sale of alcoholic beverages to underage persons or intoxicated persons.
(7) If the licensee uses a consumer delivery service, the following shall apply:
(A) The service shall be provided pursuant to a valid, written contract between the licensee and the consumer delivery service that acknowledges the requirements of this section.
(B) The licensee shall disclose to the consumer delivery service if an order to be delivered contains alcoholic beverages.
(b) The department shall issue a consumer delivery service permit to a service that satisfies the following:
(1) The service pays the required application and annual fee.
(2) The owners and officers of the service have not been convicted of any crimes of moral turpitude, as that term is applied to licensees under subdivision (d) of Section 24200.
(c) (1) A licensee is not subject to discipline for the sale, delivery, or furnishing of an alcoholic beverage to an obviously intoxicated person, if the delivery of the alcoholic beverage is made by the holder of a consumer delivery service permit acting for the licensee and the licensee did not have notice that the person was obviously intoxicated on or before the time that the consumer delivery service picked up the order.
(2) A licensee is not subject to discipline for the sale, delivery, or furnishing of an alcoholic beverage pursuant to the authorization granted by this section to a person under 21 years of age if both of the following conditions are met:
(A) Prior to the licensee accepting the order, the purchaser affirms that both the purchaser and the recipient are not under 21 years of age.
(B) The licensee identifies to the consumer delivery service that the order to be delivered contains alcoholic beverages.
(d) (1) The department may impose the following administrative penalties against the holder of a consumer delivery service permit who violates any provision of this section:
(A) A fine of up to one thousand dollars ($1,000) for a first violation.
(B) A fine of up to one thousand five hundred dollars ($1,500) for a second violation within 12 months of a previous violation.
(C) A fine of up to two thousand five hundred dollars ($2,500) for a third violation within 12 months of a previous violation, or for any subsequent violation thereafter.
(2) This subdivision shall not be construed to limit the department’s authority and discretion to suspend or revoke a consumer delivery service permit when the circumstances warrant that discipline.
(3) Any fines collected by the department pursuant to this subdivision shall be treated in the same manner as payments in compromise pursuant to Section 23096.
(e) This section does not apply to the delivery of alcoholic beverages by common carrier.

SEC. 2.

 Section 23401.5 of the Business and Professions Code, as added by Section 1 of Chapter 657 of the Statutes of 2021, is amended to read:

23401.5.
 (a) Notwithstanding any other law to the contrary, the holder of an on-sale license for a bona fide public eating place that has off-sale privileges, or a licensed beer manufacturer, licensed wine manufacturer, or licensed craft distiller that operates a bona fide public eating place at its premises of production, or a holder of an on-sale general license may exercise the following rights and privileges subject to the requirements of this section:
(1) The licensee may sell the distilled spirits for off-sale consumption for which their license permits on-sale consumption provided the beverages are in manufacturer-prepackaged containers and are either ordered and picked up by the consumer in compliance with subdivision (b). or delivered in compliance with Section 23394.6.
(2) In addition to the privilege provided by paragraph (1), the licensee may sell the alcoholic beverages, except beer, for off-sale consumption for which their license permits on-sale consumption when the beverages are not in manufacturer prepackaged containers if the following conditions are met:
(A) The alcoholic beverages are packaged in a container with a secure lid or cap sealed in a manner designed to prevent consumption without removal of the lid or cap by breaking the seal.
(B) Wine is sold only in single-serve containers. For purposes of this subparagraph, “single-serve containers” means containers that have a standard of fill between 187 milliliters and 355 milliliters that is authorized for wine under Section 4.72 of Title 27 of the Code of Federal Regulations.
(C) Mixed drinks and cocktails sold for off-sale consumption pursuant to the authorization granted by this section shall not exceed four and one-half ounces of distilled spirits.

(D)Alcoholic beverages sold pursuant to this paragraph shall be sold in conjunction with a bona fide meal, and shall be limited to two such drinks per bona fide meal. For purposes of this requirement, a “bona fide meal” shall conform to the guidance issued by the department on July 5, 2020, entitled “What is required to be considered a ‘meal’?,” available on the department’s internet website.

(E)

(D) The container is clearly and conspicuously labeled or otherwise identified as containing an alcoholic beverage.

(F)

(E) (i) The following warning sign is posted in a manner that notifies consumers of restrictions regarding open container laws:

“Alcoholic beverages that are packaged by this establishment are open containers and shall not be transported in a motor vehicle except in the vehicle’s trunk or, if there is no trunk, the containers shall be kept in some other area of the vehicle that is not normally occupied by the driver or passengers. This does not include a utility compartment or glove compartment (See Vehicle Code Section 23225). Additionally, these beverages shall not be consumed in public or in any other area where open containers are prohibited by law.”

(ii) For purposes of this subparagraph, “post” means to prominently display on the premises, post online, or present in whatever manner is necessary to ensure that the consumer purchasing the beverages to which this section applies is given notice of this warning.

(G)The alcoholic beverages are ordered and picked up by the consumer in compliance with subdivision (b).

(3) Nothing in this section shall require a licensee to sell alcoholic beverages for off-sale consumption whether or not the alcoholic beverage is in a manufacturer-sealed prepackaged container or otherwise.

(b)An alcoholic beverage sold pursuant to subdivision (a) shall meet both of the following conditions:

(1)The alcoholic beverage shall be ordered by the consumer online, over the telephone, or in person, for pickup by the consumer.

(2)The consumer who places the order for an alcoholic beverage shall pick up the order directly from the licensee and shall present a bona fide identification card for purposes of confirming the age and identity of the consumer who placed the order. The alcoholic beverage shall not be ordered or picked up for delivery.

(c)

(b) Prior to exercising the privileges authorized in paragraph (2) of subdivision (a), the licensee shall notify the department in writing of its intent to do so.

(d)

(c) Notwithstanding any law to the contrary, the department may at any time impose conditions on a license restricting or prohibiting the licensee from selling or furnishing any alcoholic beverage pursuant to this Section.
(1) Any conditions imposed pursuant to this subdivision shall be based upon a showing of good cause. Good cause includes, but is not limited to, a written request, including the reason for the restriction or prohibition, from a local law enforcement agency or local governing body, or its designated subordinate officer or agency.
(2) A licensee may petition the department to modify or remove a condition within 10 days following imposition of the condition.
(A) A petition under this paragraph shall be subject to the same fee as provided in Section 23803.
(B) If the department denies the licensee’s petition, the licensee may request a hearing, which shall be conducted in the same manner as provided in Section 23805.
(C) In any hearing pursuant to this paragraph, the licensee shall have the burden to establish that the condition is unreasonable or that no good cause exists for its imposition. The condition shall remain in effect during any appeal of its imposition.

(e)

(d) Nothing in this section shall preclude privileges authorized pursuant to Sections 23401 and 23661.3.

(f)

(e) This section shall be operative until December 31, 2026, and as of that date is repealed.