Comments on Administrative Emergency Decisions Pending Emergency Regulation

Comments received during the week of November 16, 2020 to November 22, 2020

Comment #6

From Nicholas Zanoni

To whom it may concern,

As a current licensee trying to navigate this tumultuous year, I am concerned that this amendment to the Department’s “Emergency Rules” further strips licensees of due process protections – if such licensee is merely accused of violations related to “public health, safety and welfare”.

As written in June and as amended, these rules are overly vague and broad. The discretionary judgment of what constitutes a ‘risk’ to “public health, safety and welfare” could encompass almost limitless variations under current pandemic related regulations. No one in leadership, let alone a small business licensee, can 100% control people’s behavior during this pandemic. As written, any of the following broad and vague questions could lead to an adverse determination of safety, leading to Departmental accusation of violation and suspension of a licenese.

Safety Measures:
Was the venue safely practicing social distancing or using ‘proper’ barriers? Were masks worn? Properly worn? Made of proper materials? Did a customer really have a medical reason to stray from such rules? Were rules properly posted? Legible? Adhered to? Was a good faith effort made to accomplish ___________ ? Is __________ a relevant factor in determining a licensee’s risk to “public health, safety and welfare”? Who makes the determination? An ABC agent? Health Dept? Decoy? Police? Anonymous complaint?

Food Requirements:
Food was available but was food properly provided? Properly served? Consumed? The Dept. has already questionably determined that bona-fide meal service increases “public safety” related to Covid, yet the Dept. has also stated it is “easier to describe what is not a bona-fide meal, than describe what is”. Is it also easier to describe which licensee action is not a health risk, than to describe what is a health risk?

Contact Tracing:
I’ve personally heard from the Health Department stating two patrons, who tested positive for Covid-19 in June, claimed they were at my venue, when in fact my venue was closed for 3 weeks during the time they claimed to be on site. I am supportive of contact tracing but am not aware of any strong evidentiary basis for any data collecting, or contact tracing. It would appear that the Departments new regulations could wrongfully close down a venue with similar errors (even good faith errors) being made as per the above example.

Timeframe for Regulations:
I am also concerned as to when these Temporary Emergency Rules will end, as the risk of Covid 19 (or past infectious diseases) will not ever disappear completely.

I feel these proposed regulations need to be aired out more with a public hearing, and incorporate the latest scientific consensus regarding public health and safety, as well as a timeframe for such regulations. We are under now illusions to the challenges faced by the Department in these times. All of the agents we have spoke with have been helpful and professional. Moreover, operators such as myself want to work with the regulatory agencies and beat this virus back, while keeping our businesses safely open. However, we are already bending over backwards to operate under crushing and knowingly unsustainable operational restrictions in an effort to merely mitigate losses (let alone break even), as well adapting to real time rule changes (daily, weekly) issued from various regulatory agencies. Any rule that puts suspension (and causes further economic loss) before due process would be another nail in the coffin for licensee’s teetering on the brink of closure through no fault of their own. Thank you

ABC Response

Comments will be addressed at the end of the comment period.

Comment #7

From Joshua Kaplan

Please see attached correspondence in the above matter. The original has been sent by U.S. Mail.

ABC Response

Comments will be addressed at the end of the comment period.

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Comment #8

From Malari Nebens

I am writing in opposition of the proposed Emergency Administrative Decisions.

In the State of California, liquor licenses are deemed an asset. You can buy them, sell them, transfer them to a surviving spouse. The ABC themselves has the ABC License value listed on their own application forms (See ABC Form 217 as an example). While each holder of an ABC license has a set of rules and regulations they must follow in order to maintain the ownership of said license, that license still belongs to the holder.

The proposed Emergency Administrative Decisions will give the ABC and more specifically, anyone with power or influence over the ABC, the power to seize a private asset without due process of the law. Under the California Constitution Article 1: Section 7, states “(a) A person may not be deprived of life, liberty, or property without due process of law.” By removing the administrative review and hearing process, you are removing the due process. These proposed Emergency Administrative Decisions are opening a doorway for unconstitutional seizure of property. These changes are unconstitutional and MUST not be allowed.

Thank you for your time,
Malari Nebens

ABC Response

Comments will be addressed at the end of the comment period.