Comments on Administrative Emergency Decisions Pending Emergency Regulation
Comments received during the week of November 23, 2020 to November 29, 2020
I am submitting comments regarding the ABC’s proposed changes to Chapter 147, paragraph (b), subsection (6) for “Emergency Decision Procedures for Administrative Actions against Alcohol Licenses.” This specific subsection seems to apply to the ABC’s enforcement of rules and edicts issued under the current Covid-19 emergency declaration. Although they would presumably be applicable under any kind of emergency orders, regardless of whether they are legal as determined by adjudication before a court.
My first objection can be summed up in two words, “Due Process.” The proposed changes remove the protections provided by the current appeals procedure and affords the ABC with the ability to circumvent such protections by simply declaring that a given determination is intended to “protect the public health, safety, and welfare.” This provides a much too broad justification for eliminating the due process protections provided by accepted administrative procedures.
My second objection relates to jurisdiction. The ABC or Department of Alcoholic Beverage Control by its very name is tasked with enforcement of rules relating to the sale and distribution of alcoholic beverages. Period. Determinations of public health are the responsibility of each county’s Department of Public Health and the State’s Department of Public Health. Each of these public agencies have their own staff who are trained and qualified to address issues of public health. ABC agents do not have the necessary background, training or qualifications to assess threats to public health in a meaningful or a legally defensible manner.
The combination of agents of questionable competence making potentially incorrect determinations that would then result in irreparable damage to private businesses without recourse because of the denial to these businesses of adequate due process rights is a recipe for abuse.
As such, I oppose this specific proposed change.
In addition, I note that the ABCs role is typically one of enforcement. During this collective emergency, enhanced enforcement should only be used after other approaches have been exhausted. That is, first and foremost, health inspectors, not an expanded police force, should be deployed to assist and guide food & beverage establishments in how to best comply with recommendations from governmental authorities. One overriding problem is that governmental and expert guidance and edicts change from day to day and are frequently contradictory. What the public is being told to do changes at a moment’s notice and yet, on top of trying to operate a business in an uncertain environment, the citizens doing so are expected to be prepared to change practices that are currently acceptable with little or no notice. Failure to do so would then result in any number of draconian consequences assuming the proposed changes to the ABC procedures are approved. This is unacceptable. As such, the justification for this action needs a much more thorough evaluation and would be more appropriately addressed through legislative changes to the enabling laws.
Comments will be addressed at the end of the comment period.