Disclaimer- This information is provided to assist you in complying with proper procedures. However, it is not intended to be a complete discussion of legal procedures. If you need furttier assistance, you may contact your local ABC district office or seek independent legal advice.
Public Notice of Application
A person or business planning to open a new ABC-licensed business, change the
ownership, or move an existing outlet to a new site must apply for the proper
license at an ABC district office. As part of the process, notice must be given
to the public and to local officials. This notice occurs in several ways:
· Public Notice -The applicant must post a white or yellow public
notice (Form ABC-207 or -207-B) in a prominent place at the proposed premises
for 30 days. (sec. 23985 Bus- & Prof. Code)
· Written Notice by Mail - ABC mails a copy of the application
to the sheriff, chief of police, district attorney, and city council (or the
board of supervisors if in an unincorporated area). In some cases, the applicant
must also mail written notice to residents who live within a 500' radius of
the proposed business. (Sees. 23987 and 23985.5 Bus. & Prof. Code)
· Newspaper Publication -Certain applicants must publish a notice
in the local newspaper. (set:. 23986 Bus. & Prof Code)
Filing Your Protest
Any person may protest an ABC license application. You must file your protest
at any ABC district office within 30 days. The 30 days runs from whichever date
is lager:
o The date the Public Notice is first posted at the proposed business; or
o The date the applicant mails written notice to residents living within a 500'
radius
Protests received after 30 days cannot be considered. (Sec. 24013 Bus. & Prof. Case)
You may fax your protest. However, the original protest must be received by
ABC within ten (IO) days of the fax date.
You may contact the local ABC district office to find out the exact deadline
for filing your protest or to speak with the assigned staff member about your
concerns. Please provide the exact address of the proposed business and the
applicant's name, if known.
A copy of your valid and verified protest will be given to the applicant. This
is because the law requires the applicant be famished with a "statement
of issues" to be determined if a public hearing is scheduled (see Public
Hearing). The statement of issues lists the grounds that form. the basis for
your objection.
Professional legal advice is not required to file a protest.
Contents of Protest
Your protest must contain the following:
1. The particular grounds) for objection acrd the facts that support these objections.
2.The name of the applicant and the exact address of the proposed business.
3. The name, address, and signature of any and all protestant(s).
4. A declaration signed by the protestant(s), as follows: "I (name of protestant),
declare under penalty of perjury that I am the protestant herein; that I have
read the above protest and know the contents thereof; that the same is true
of my own knowledge except as to those matters which are therein stated on information
and belief, and as to those matters I believe them to be true." This declaration
is contained on Form ABC-510-A, which you may use to file your protest.
If a petition is circulated, the person circulating the petition should sign first. Each petitioner must sign an individual declaration. If the protest is made by a public officer, acting in his official capacity, the declaration under penalty of perjury is not required, but the protest should be on Department letterhead to show official capacity.
Grounds for Protest
The California Constitution provides that the sale, purchase, and consumption
of alcoholic beverages in licensed premises is legal. 'Therefore, ABC cannot
deny a license solely because a protestant has personal beliefs against the
use of alcoholic beveragesdenial must relate to public welfare and morals. Some
of the grounds of protest, which could relate to public welfare and morals,
are as follows:
1. The premises is located within the immediate vicinity of a School church,
hospital, or children's playground and the normal operation of the licensed
premises would interfere with their functions. (Be specific as to how the-sale
of alcoholic beverages will adversely affect the facility. Mere proximity to
such a facility is not sufficient legal grounds to deny the license.)
2. The premises is located in a residential area and the-nomual operation of
the licensed premises would interfere with the quiet enjoyment of their property
by the residents of the area. (lie specific as to how the sale of alcoholic
beverages will adversely affect the residents.)
3. The premises or parking lot is located. within 1 U0 feet of a residence and
the applicant has failed to establish that the operation of the licensed premises
would not interfere with the quiet enjoyment of the property by the residents.
('This only apples to premises that have not been operated with the same type
license within 90 days of the application.)
4. Licensing the premises would create a public nuisance as defined in Penal
Code Section
370, in that: (state specific facts leading to this conclusion).
5. Issuance of the license. would result in or add to an undue concentration
of licenses (List any problems that existing licensed businesses in the area
may be causing.)
5. The applicant is not the true or sole owner of the business to be licensed.
(You must present
testimony or other evidence as to the true ownership.)
The following are grounds usually cited by city or county enforcement agencies
only. But
they can be used by persons who have independent, adequate evidence of same:
6. Issuance of the license to the premises would tend to create a law enforcement
. problem or
aggravate an existing police problem.
8. Licensing the premises would be contrary to the provisions of a valid zoning
ordinance.
9. The applicant has been convicted of a felony, a crime involving moral turpitude,
or one of
the offenses listed in Section 24200(b) of the Alcoholic Beverage Control Act.
10. The applicant has a police record that disqualifies him or her for a license.
11. The applicant has misrepresented a material fact in obtaining a license.
Tips:
For your protest to be more effective, it should be specific and not just a
restatement of the above examples.
Some people find it worthwhile to meet with the applicant before filing a protest.
'This lets the applicant know that someone is concerned about the proposed business.
It gives the applicant a chance to respond to your concerns.
By meeting with the applicant, you can find out:
(a) Who is the applicant? Is the applicant a local business person in good
standing? Has the applicant owned other licensed businesses in a responsible
manner?
(b) What type of business is planned?
(c) What type of patrons will the business attract? Is a youthful crowd expected?
(d) Will there be ample, trained staff?
(e) Will the applicant have and enforce written house/store policies? For example,
what are the applicant's plans for responsible marketing and promotions, safe
rides, promotion of non-alcohol and low-alcohol drinks and food, checking identification
of youthful patrons, drink limits, and crowd control/security?
· In some cases, the applicant may agree to certain assurances or conditions. For example, if there could be late-night noise, the applicant may agree that no alcohol will be sold after a certain time. If a compromise is reached, the parties should contact the ABC staff member assigned to the case. The staff member will draft the formal language of the license conditions.
Investigation
After a person or business applies for the ABC license, ABC conducts a thorough
investigation, as required by law. The ABC investigator or licensing representative
looks into the applicant's personal history, their source of funds, the suitability
of the proposed premises, and any issues raised in the protest(s). (Sm. 23958
Bus.& Pros. coat)
Interim Retail Permit. If ABC
recommends approval of a protested license application, the applicant may apply
for an Interim Retail Permit. This allows the business to sell alcoholic beverages
pending the protest hearing end any appeals. (sec. 74044:5 Bus. 8t Prof. Code.
Public Hearing
Purpose. Under the California Alcoholic Beverage Control Act, a hearing
must be held on a valid protest. This affords the applicant the right to meet
the objections with any evidence he or she may have.
However, the submission of your protest does not complete the
matter. You will need to attend the hearing to present testimony and/or evidence
to support your protest.
Time and Place of Hearing. The hearing will take place typically within db days of the submission of the Report of Investigation to ABC Headquarters in Sacramento. It will be held in the county seat for the business. However, if the governing body of a city files an official protest, the hearing shall be held within such city.
After the hearing. After the hearing, the administrative law judge will
take the protest under advisement. The judge will make a ruling, usually within
30 days, for review by the ABC Director. A13C may adopt or reject the proposed
decision of the judge.
Once ABC has rendered a decision, any parry to the matter may appeal the decision
to the ABC Appeals Board, an independent, threemember Board appointed by the
Governor.
The ABC Appeals Board decision can then be appealed to the State Court of Appeals
and to the state Supreme Court.
Tips:
· If you are protesting with a group, decade who will speak on behalf
of the group at the hearing. An attorney is not needed for this role. In fact,
local community members may be most effective in raising community issues.
· To be. most effective, all presentations should be short and concise
and not repeat other presentations.
Protestants may submit testimony and other evidence such as graphs, tables,
pictures, photographs, video tapes, etc. These items do not need to be professionally
done. However, because this hearing is a legal proceeding, any evidence submitted
is subject to objection. The judge will be able to study any written materials
entered into evidence.