Comments on License Application Protests Procedures

Comment #1

To Whom It May Concern:

Thank you for providing the opportunity to comment on the proposed rule §146 et al. As a consultant who has overseen 10,000 California alcoholic beverage license applications, I am uniquely familiar with the Department’s process for administering protests. I applaud the Department’s reasons for promulgating these regulations and agree with the statement of benefits that would be realized should the rule be adopted. I also believe that the proposed regulations could be improved by considering the following:

§ 146(a)

The definitions should be amended to include the following so that ABC staff, licensees, and the public know how to interpret and understand the proposed regulations and the protest process:

“Local Law Enforcement Agency” as used in BPC §24013(a) & §23987 “Resident’ as used in BPC §23985.5 “Owner of Real Property” as used in BPC §23985.5 “Protest Period” is defined as the time frame described in §146.l(e)

The comments to the subsections in which these definitions are relevant below explain why they were included.

§146(a)
No comment.

§146(a)(l)
No comment.

§146(a)(2)
No comment.

§146(a)(3)
No comment.

§146(a)(4)
No comment.

§146(a)(5)
No comment.

§146(a)(6)
No comment.

§146(a)(7)
No comment.

§146(a)(8)
No comment.

§146(a)(9)
No comment.

§146.l(a)
No comment.

§146.l(b)
No comment.

§146.l(c)
No comment.

§146.l(d)

The published necessity statement provides “The proposed subsection establishes a timeline for when a protest must be filed with ABC to be considered timely under statute. It provides an individual or organization with a 30-day period to make a protest from the date of either the public posting of notice on the proposed licensed premises, or a mailing sent to the individual or organization if required by statute due to their proximity to the proposed licensed premises, whichever date is later. This subsection is necessary to inform ABC staff, applicants, the public, and protestants the deadline for when a protest must be filed to be considered timely.” However, it not match the context of the proposed text of the Rule, which states, “A protest made by an individual or organization must include contact information consisting of, at a minimum, a mailing address and an email address.” The necessity statement enumeration for sections 146.l(d) through 146.l(h) is inconsistent with the enumeration of the text of the proposed rule.

§146.l(e)

The necessity statement enumeration for section 146.l(d) appears be 146.l(e)

§146.l(e)(l)

The necessity statement enumeration for section 146.l(d)(l) appears be 146.l(e)(l)

§146.l(e)(2)

The proposed text states, “The date the applicant mails the required notice to the individual or organization pursuant to Business and Professions Code section 23985.5.” However, §23985.5(a) requires “Notwithstanding any other provision of this article, in any instance affecting the issuance of any retail license at a premises that is not currently licensed or for a different retail license, the department shall require that the applicant mail notification of the application to every resident and owner of real property within a 500-foot radius of the premises for which the license is to be issued.” Therefore, the subsection should be amended to refer to resident and owner of property regarding the mailing of the notice and the definitions section should be amended to define those terms. The subsection, as written, improperly assumes that the individual or organization is the same as a resident or owner of real property. In addition, the rule does not define an individual but does define the other potential protestants such as organization, public agency and governing body. The necessity statement enumeration for section 146.1(d)(2) should be 146.l(e)(2)

§146.l(e)(2)(i)

The necessity statement enumeration for section 146.l(d)(l)(l) appears be 146.l(e)(l)(i)

§146.l(f)

The subsection should be amended to allow the Department to notify a protestant during the “Protest Period” as defined as the time frame described in §146.l(e) so that a protestant may cure the defect or error before the expiration of the “Protest Period.” The proposed modification will allow but not mandate that the Department inform a protestant of a defect or error while maintaining the statutory time frames for submitting a protest. It also will eliminate confusion with the language of §146.l(i), which requires the Department to state the reason for rejecting a protest in whole or in part. The necessity statement enumeration for section 146.l(e) appears to be 146.l(f)

§146.l(g)

While I agree that the proposed subsection intends to establish a burden upon ABC to notify the applicant of all accepted protests by an individual or an organization during the application investigation. The rule should be amended to add a time frame from when the protest was accepted and when the Department must provide the protest to the applicant. The timely dissemination of the protests is critical to an applicant so that they can determine the best way to address the concerns of the protestant without unnecessarily delaying the application. Also, the burden should be upon the Department to provide the protest to the applicant regardless of whether the applicant requested it. As written, the rule is confusing because the Department must notify the applicant of all protests but does not have to provide them unless requested? What is the difference between notifying and providing?

The necessity statement enumeration for section 146.l(f) should be 146.l(g). In addition, the necessity statement “§146.l(g) The proposed subsection establishes the process for notifying a protestant that ABC recommends that the protested application be issued along with a deadline to ensure protestants are notified in a timely manner. This subsection is necessary to ensure all protestants are noticed in a timely manner of ABC recommending the issuance of a license to an applicant after investigating the issues raised in all accepted protests received pursuant to that application. This is necessary to provide protestants time to request a hearing in a timely manner and to not slow the application process for the applicant further” appears to correspond to §146(1).

§146.l(h)

The necessity statement enumeration for section 146.l(h) appears to correspond to 146.1(1) of the proposed rule text. At the same time, the necessity statement enumeration for section 146.l(i) seems to correspond to 146.l(h) of the proposed rule text.

§146.l(h)(l)

The necessity statement enumeration for section 146.l(h)(l) appears to correspond to 146.1(1)(1) of the proposed rule text. While the necessity statement enumeration for section 146.l(i)(l) appears to correspond to 146.l(h)(l) of the proposed rule text.

§146.1(h)(2)

The necessity statement enumeration for section 146.1(h)(2) appears to correspond to 146.1(1)(2) of the proposed rule text. While the necessity statement enumeration for section 146.1(i)(2) appears to correspond to 146.1(h)(2) of the proposed rule text.

§146.1(h)(3)

The necessity statement enumeration for section 146.l(h)(3) appears to correspond to 146.1(1)(3) of the proposed rule text. While the necessity statement enumeration for section 146.1(i)(3) appears to correspond to 146.1(h)(3) of the proposed rule text.

§146.l(h)(4)

The necessity statement enumeration for section 146.1(h)(4) appears to correspond to 146.1(1)(4) of the proposed rule text. While the necessity statement enumeration for section 146.1(i)(4) appears to correspond to 146.1(h)(4) of the proposed rule text.

§146.l(h)(5)

The necessity statement enumeration for section 146.l(i)(5) appears to correspond to 146.l(h)(5) of the proposed rule text.

§146.l(h)(6)

The necessity statement enumeration for section 146.l(i)(6) appears to correspond to 146.l(h)(6) of the proposed rule text.

§146.l(i)

The necessity statement appears to omit a justification for this subsection.

§146.l(j)

No comment.

§146.l(k)

The necessity statement enumeration for section 146.1(1) appears to correspond to 146.l(k) of the proposed rule text.

§146.1(1)

The necessity statement enumeration for section 146.1(1) appears to correspond to 146.l(k) of the proposed rule text.

§146.1(1)(1)

As noted above, the necessity statement enumeration for section 146.l(h)(l) appears to correspond to 146.1(1)(1) of the proposed rule text, and there is no necessity statement for this subsection.

§146.1(1)(2)

As noted above, the necessity statement enumeration for section 146.1(h)(2) appears to correspond to 146.1(1)(2) of the proposed rule text, and there is no necessity statement for this subsection.

§146.1(1)(3)

As noted above, the necessity statement enumeration for section 146.l(h)(3) appears to correspond to 146.1(1)(3) of the proposed rule text, and there is no necessity statement for this subsection.

This subsection is inconsistent with the underlying statutory authority in BPC §24015. Specifically, §24015(c) provides that “(c) At any time prior to the issuance of the license, the department may, in its discretion, accept a late request for a hearing upon a showing of good cause.” However, the test of the proposed rule states, “The Department shall accept an untimely request for hearing upon a showing of good cause.” As proposed, the rule removes the Department’s statutory discretion and mandates that the Department accept a late request for a hearing upon showing good cause. As written, removing the Department’s discretion could violate an applicant’s due process as the Department has abdicated its statutory discretion and increased the applicant’s exposure to an untimely hearing request.

§146.1(1)(4)

As noted above, the necessity statement enumeration for section 146.l(h)(4) appears to correspond to 146.1(1)(4) of the proposed rule text, and there is no necessity statement for this subsection.

§146.2(a)

No comment.

§146.2(b)

This subsection contradicts the underlying statutory authority in BPC §24013 and §23987. Specifically, §24013(a) provides that “Protests may be filed at any office of the department within 30 days from the first date of posting the notice of intention to engage in the sale of alcoholic beverages at the premises, within 30 days of the mailing of the notification pursuant to Section 23985.5, or within 30 days of the mailing of the notices of the department to public officials as required by Section 23987, whichever is later. The time within which a local law enforcement agency may file a protest shall be extended by the period prescribed in Section 23987, pursuant to a request made under that section. Furthermore, §23987 states, “Except as specified in paragraph (2) of subdivision (el of Section 23800, no license shall be issued or transferred by the department until at least 30 days after the mailing by the department of the notices required by this section. The department may extend the 30-day period specified in the preceding sentence for a period not to exceed an additional 20 days, upon the written request of any local law enforcement agency that states proper grounds for extension. Proper grounds for extension are limited to the requesting agency or official being in the process of preparing either a protest or proposed conditions with respect to the issuance or transfer of a license.” However, the proposed rule provides that “The Department shall notify the applicant of all protests under this section during its investigation of the application. A public agency or governing body may request up to an additional 20 days for a timely filing of their protests upon written request made to the Department prior to the expiration of the time period set forth in subdivision (a) of this section.” The proposed rule defines in §146(a)(8) “Public agency” shall mean the sheriff, chief of police, district attorney, or city or county planning director” and in §146(a)(4) “Governing body” shall mean a tribal government, the board of supervisors of a county, or the city council of a city. Both of these definitions include agencies and bodies that are beyond the plain language of the statute that provides that only local law enforcement agencies can request an extension of the protest period under BPC §24013 and §23987. If the legislature intended to give the ability to extend the protest period to the other bodies and agencies included in the proposed text, they would not have specifically identified only local law enforcement agencies as opposed to the broader group of local government bodies and public agencies. By adopting regulations that expand the definition of the group of public agencies and bodies that can extend the protest period, the Department is violating the statutory protest timeliness protections given to applicants for alcoholic beverage licenses. The regulations should be amended to provide for a definition of local law enforcement agency. They should also be amended to reflect that the protest timeframe extension provisions of the regulation apply only to local law enforcement agencies as defined.

§146.2(c)

The necessity statement refers to §146.2(c); however, the text of the rule does not include said section.

§146.2(d)

The necessity statement refers to §146.2(c); however, the text of the rule does not include said section.

§146.3(a)

No comment.

§146.3(b)

No comment.

§146.3(c)

No comment.

§146.3(d)

No comment.

§146.4(a)

No comment.

§146.4(b)

No comment.

Thank you again for the opportunity to comment.

Sincerely,
Michael J. Brewer
President

ABC Response

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

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