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HomeMy WebLinkAbout04/04/1995, C-4 - DELEGATION OF ALCOHOLIC BEVERAGE LICENSE DETERMINATIONS PURSUANT TO SECTION 23958.4 OF THE CALIFORNIA BUSINESS AND PROFESSIONS CODE TO THE COMMUNITY DEVELOPMENT DEPARTMENT. MEETING SATE: u�il�p` �► city Of San raIS OBISPO Aril 4, 199 ITEM COUNCIL AGENDA REPORT NUMBEA: FROM: Arnold B. Jonas, Community Development Director Prepared By: Ronald Whisenand, Development Review ManageO SUBJECT: Delegation of alcoholic beverage license determinations pursuant to Section 23958.4 of the California Business and Professions Code to the Community Development Department. CAO RECOND4ENDATION: Adopt the attached resolution delegating the review of certain alcoholic beverage licenses pursuant to Section 23958.4 of the California Business and Professions Code to the Community Development Director subject to Police Department review and City Council appeal authority. DISCUSSION The State passed legislation in 1994 amending the Business and Professions Code relating to alcoholic beverage licensing which affects local governing bodies of cities and counties. Specifically, Section 23958.4 was added (attached) to define and regulate the over-concentration of establishments that are regulated by the Alcoholic Beverages Commission (ABC). The ABC now has the authority to deny an application if it would result in or add to an "undue concentration" of licenses, or if issuance would tend to create a law enforcement problem. In certain cases (see attached summary of legislation), the ABC has authority to grant exceptions provided they find "public convenience and necessity warrant the issuance of a license notwithstanding a determination that there is an undue concentration of licenses." In the remaining cases, the ABC will defer to the local jurisdiction for the "public convenience" determination. As pointed out in the attached notice from the ABC, the Council may delegate the authority to make "public convenience" determinations to the Community Development Director. These determinations are similar to others that are routinely made by the department and could be easily handled in the same manner. It is felt that delegation as recommended would lessen the amount of "routine" items that the Council has to address. It is important to note that the process will involve coordination with the Police Department prior to making a "public convenience" determination. Also, any determination made by the Community Development Director will be appealable to the Council pursuant to Chapter 1.20 of the San Luis Obispo Municipal Code. CONCURRENCES The Police Department and City Attorney's Office have concurred with the recommended approach. city of san L.AIs OBISPO - mmw- is COUNCIL AGENDA REPORT City Council Report - ABC Licensing Page 2 ALTERNATIVES The Council could review all exceptions referred to the City by the ABC. If this is the approach that the Council desires, no response is required. Referrals will be sent automatically to the City Council by the ABC for placement on an available agenda. ATTACHMENTS 1. Resolution 2. ABC Notice 3. AB 2897 RESOLUTION NO. (1995 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO GRANTING AUTHORITY TO THE COMMUNITY DEVELOPMENT DIRECTOR TO MAKE "PUBLIC CONVENIENCE" DETERMINATIONS PURSUANT TO SECTION 23958.4 OF THE CALIFORNIA BUSINESS AND PROFESSIONS CODE WHEREAS, the State has adopted Section 23958.4 of the California Business and Professions Code that establishes additional alcoholic beverage licensing criteria by the Department of Alcoholic Beverage Control, and WHEREAS, pursuant to this new legislation, the City may be asked to determine if public convenience and necessity will warrant the issuance of a license notwithstanding a determination that there is an undue concentration of licenses in the area, and WHEREAS, as a local governing body, the Council may delegate the duties of determining whether or not public convenience and necessity are met to the Community Development Director, and WHEREAS, there would be no benefit to the Council to hear every request for a "public convenience" determination. NOW, THEREFORE, BE IT RESOLVED, that pursuant to Section 23958.4 of the California Business and Professions Code, the City Council of the City of San Luis Obispo does hereby delegate the authority to determine when public convenience and necessity warrant an exception to the over concentration of establishments subject to alcoholic beverage licensing to the Community Development Director who will consult with the Police Department. BE IT FURTHER RESOLVED, that determinations of the Community Development Director may be appealed to the City Council pursuant to Chapter 1.20 of the San Luis Obispo Municipal Code. City Council Resolution No. (1995 Series) Page 2 On motion of , seconded by and on the following roll call vote: AYES: NOES: ABSENT: the foregoing resolution was passed and adopted this _ day of , 1995. Mayor ATTEST: - City Clerk APPROVED: r✓!sa *itto?ey STATE OF CALffORNIA—BUSINESS.TRANSPORTAT. u.0 HOUSING AGENCY PETE WILSON,Governor DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL 381 0 ROSIN COURT, SUITE 150,SACRAMENTO,CA 95834 (91" 153.6900 March 8, 1995 CD RECEIVED To: County Board of Supervisors *M 13 1995 City Councils CITY COUNCIL Mayors SAN LI ur OgICPO.CA During the 1994 Legislative Session amendments and additions were made to certain provisions of the Business and Professions Code relating to alcoholic beverage licensing which affect the local governing bodies of cities and counties. Section 23958.4 was added to the Business and Professions Code to define "undue concentration" of licenses and to establish the procedure for determining if public convenience and necessity will warrant the issuance of a license notwithstanding a determination that there is an undue concentration of licenses. A copy of the chaptered Assembly.bill creating Section 23958.4 is enclosed. With respect to non-retail licenses, bona fide public eating place licenses, certain hotel, motel, or specified lodging establishments and retail licenses issued in conjunction with a beer manufacturing or winegrower's license, if the applicant shows that public convenience or necessity would be served, a license may be issued by the Department. In this situation the local governing body does not make a determination of public convenience and necessity. However, nothing would preclude a city or county from protesting the issuance of a license on these grounds or any other grounds. With respect to all other retail licenses, most notably all off-sale beer and wine licenses, off-sale general licenses, and all other.on-sale licenses, the determination of whether or not public convenience and necessity is met will be determined by the local governing body of the appropriate city or county. In other words, if there is an undue concentration of licenses in the area of a proposed licensed premises and the local governing body determines that issuance of the license would meet public convenience and necessity standards, the Department of Alcoholic Beverage Control will be bound by that determination and the license could be issued, assuming other factors, such as the personal qualification of the applicant, citizen protests and other non-public convenience and necessity factors do not preclude the issuance of the license. On the other hand, if the local governing body determines that public convenience and necessity would not be served, that determination by itself would preclude the issuance of the license by the Department. The Department is asking that all determinations of satisfying public convenience and necessity be in writing and submitted to the local office of the Department. As the local governing body you may elect to delegate the duties of determining whether or not public convenience and necessity are met to a subordinate agency such as a zoning, planning, or law enforcement official if desired. If this is your decision please submit a written notice of such delegation to the Department's Headquarters address within 30 days of the date of this notice. If such a delegation is not made within that period we will assume that the local governing body itself will be making these determinations Please send all notifications of delegation of these duties to: Department of Alcoholic Beverage Control Office of the Director 3810 Rosin Court, Suite 150 Sacramento, CA 95834 we appreciate your cooperation in these matters and we feel that the changes in the law as outlined above will serve to give local officials the ability to better deal with alcoholic beverage licensing issues. Sincerely, enton P. Byers Chief Counsel Assembly Bill No. 2897 CHAPTER 630 An act to amend Section 23958 of, and to add Section 23958.4 to, the Business and Professions Code, relating to alcoholic beverages. [Approved by Governor September 19, 1994. Filed with Secretary of State September 20, 1994.1 LEGISLATIVE COUNSEL'S DIGEST AB 2897, Caldera. Alcoholic beverages: retail licenses: undue concentration. Existing law provides that the Department of Alcoholic Beverage Control may deny an application for a license if the issuance would, among other things, result in or add to an undue concentration of licenses, and the applicant fails to show that public convenience or necessity would be served by the issuance. Existing regulatory law defines "undue concentration" with regard to applications for on-sale and off-sale retail licenses. This bill would instead require the Department of Alcoholic Beverage Control to deny an application if issuance would tend to create a law enforcement problem, or would result in or add to an undue concentration of licenses. The bill would change the definition of undue concentration, and would provide that, notwithstanding the requirement that the department deny an application that would result in or add to an undue concentration of licenses, a license may be issued with respect to a nonretail license, a retail on-sale bona fide eating place license, a retail license issued for a hotel, motel, or other lodging establishment, as defined, a retail license issued in conjunction with a beer manufacturer's license, or a winegrower's license, if the applicant shows that public convenience or necessity would be served by the issuance, and with respect to any other license, if the local governing body of the area in which the applicant premises are located determines that public convenience or necessity would be served by the issuance. The people of the State of California do enact as follows: SECTION 1. Section 23958 of the Business and Professions Code is amended to read: 23958. Upon receipt of an application for a license or for a transfer of a license and the applicable fee, the department shall make a thorough investigation to determine whether the applicant and the premises for which a license is applied qualify for a license and whether the provisions of this division have been complied with,and shall investigate all matters connected therewith which may affect the public welfare and morals. The department shall deny an 94 110 -�—� Ch. 630 —2— application 2— application for a license or for a transfer of a license if either the applicant or the premises for which a license is applied do not qualify for a license under this division. The department further shall deny an application for a license if issuance of that license would tend to create a law enforcement problem, or if issuance would result in or add to an undue concentration of licenses, except as provided in Section 23958.4. SEC. 2. Section 23958.4 is added to the Business and Professions Code, to read: 23958.4. (a) For purposes of Section 23958, "undue concentration" means the applicant premises for an original or premises-to-premises transfer of any retail license are located in an area where any of the following conditions exist: (1) The applicant premises are located. in a crime reporting district that has a 20 percent greater number of reported crimes, as defined in subdivision (c), than the average number of reported crimes as determined from all crime reporting districts within the jurisdiction of the local law enforcement agency. (2) As to on-sale retail license applications, the ratio of on-sale retail licenses to population in the census tract or census division in which the applicant premises are located exceeds the ratio of on-sale retail licenses to population in the county in which the applicant premises are located. (3) -As to off-sale retail license applications, the ratio of off-sale retail licenses to population in the census tract or census division in which-the applicant premises are located exceeds the ratio of off-sale retail licenses to population in the county in which the applicant premises are located. (b) Notwithstanding Section 23958, the department may issue a license as follows: (1) With respect to a nonretail license, a retail on-sale bona fide eating place license,a retail license issued for a hotel,motel,or other lodging establishment, as defined in subdivision (b) of Section 25503.16, a retail license issued in conjunction with a beer manufacturer's license, or a winegrower's license, if the applicant shows that public convenience or necessity would be served by the issuance. (2) With respect to any other license, if the local governing body of the area in which the applicant premises are located determines that public convenience or necessity would be served by the issuance. (c) For purposes of this section, the following definitions shall apply: (1) "Reporting districts" means geographical areas within the boundaries of a single governmental entity (city or the unincorporated area of a county), that are identified by the local law - enforcement agency in the compilation and maintenance of statistical information on reported crimes and arrests. 94 140 —3— Ch. 630 (2) "Reported crines"means the most recent yearly compilation by the local law enforcement agency of reported offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors, except traffic citations. (3) "Population within the census tract or census division" means the population as determined by the most recent United States decennial or special census. The population determination shall not operate to prevent an applicant from establishing that an increase of resident population has occurred within the census tract or census division. (4) "Population in the county" shall be determined by the annual population estimate for California counties published -by the Population Research Unit of the Department of Finance. (5) "Retail licenses" shall include the following: (A) Off-sale retail licenses: Type 20 (off-sale beer and wine) and Type 21 (off-sale general). (B) On-sale retail licenses: All retail on-sale licenses, except Type 43 (on-sale beer and wine for train),Type 44 (on-sale beer and wine for fishing party boat), Type 45 (on-sale beer and wine for boat), Type 46 (on-sale beer and wine for airplane), Type 53 (on-sale general for train and sleeping car), Type 54 (on-sale general for boat), Type 55 (on-sale general for airplane), Type 56 (on-sale general for vessels of more than 1,000 tons burden), and Type 62 (on-sale general bona fide public eating place intermittent dockside license for vessels of more than 15,000 tons displacement). (6) A"premises to premises transfer" refers to each license being separate and distinct and transferable upon approval of the department. (d) For purposes of this section, the number of retail licenses in the county shall be determined by the most recent yearly retail license count published by the department in its Procedure Manual. (e) The enactment of this section shall not affect any existing rights of any holder of a retail license issued prior to April 29, 1992, whose premises were destroyed or rendered unusable as a result of the civil disturbances occurring in Los Angeles from April 29 to May 2, 1992, to reopen and operate those licensed premises. (f) This section shall not apply where the premises have been licensed and operated with the same type license within 90 days of the application. O s4 160 G►_�_