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:
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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:
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*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.
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