Current through Register 2022, No. 38, September 23, 2022
(a) The penalty guideline for an ABC licensee in violation of Business and Professions code § 25683 is a 10-day suspension.
(b) For an administrative penalty imposed upon an ABC licensee for violation of Business and Professions code § 25683, an administrative law judge may consider the following factors, among others, for either aggravation or mitigation:
(1) percentage of employees without a certification;
(2) the length of time one or more employees is employed without a certification; and
(3) any prior warnings given to the ABC licensee regarding alcohol server certification requirements under the RBSTPA.
(c) A suspension imposed for violation of Business and Professions code § 25683 is to be served consecutively, not concurrently, with other alcohol-service related offenses.
Note: Authority cited: Sections 25681(a) and 25685(a), Business and Professions Code. Reference: Sections 25682, 25683, 25684 and 25685, Business and Professions Code.
1. New section filed 5-20-2020; operative 5-20-2020 pursuant to Government Code section 11343.4(b)(3) (Register 2020, No. 21).
The goal of ABC's disciplinary procedures is to secure voluntary compliance among licensees.
Administrative penalties. Any person licensed by ABC, and his employees, must abide by all the laws of the State. If ABC has evidence of a violation involving a licensee or a licensed premises, it will file an administrative complaint, called an accusation. An accusation, if proven, will lead to the suspension or revocation of the license. An accusation is in addition to, and not a substitute for, possible criminal and civil penalties that local city and district attorneys may bring against the licensee or employee who committed the violation.
Criminal penalties can result from violations that are criminal offenses. For example, the sale or service of alcoholic beverages to a minor or an obviously intoxicated person is not only grounds for an accusation, but constitutes a criminal offense. Thus, the seller/server could be arrested, charged with a crime, and face a fine, community service work or imprisonment in county jail.
Civil penalties are money judgments and penalties resulting from a lawsuit or a permanent injunction. A local district or city attorney may bring an injunction against a licensee in cases such as a public nuisance. Also, ABC may seek an injunction against a licensee for ongoing violations by sending its request to the Attorney General, who files in the local Superior Court. ABC will seek injunctive relief in aggravated cases when there have been prior, recent, similar violations and/or there is a pending accusation involving similar violations. (Sections 24201, 24023, 23053.1, 25602.2 and Government Code Section 11503)
The disciplinary process begins when ABC is informed of an alleged violation involving a licensee or a licensed premises. The information can come from a citizen complaint, police report, local legislative body, or ABC's own investigators who are sworn peace officers. A police report is usually sufficient in itself to warrant an accusation. With citizen complaints, an independent investigation by ABC is usually required. Citizens can assist the law enforcement effort by documenting violations. Neighbors are encouraged to keep logs of disruptive or illegal activities they see or hear at or around the premises. This can include incidents that disrupt the neighborhood, including noise, intoxicated patrons, fights, and the like.
Investigations to detect violations may be conducted by ABC investigators and/or other law enforcement agencies. Investigations may include any of the following strategies: (a) undercover operations to target specific incidents of unlawful activity (e.g., drunks, narcotics, drink solicitation activity, condition violations, minors, etc.); (b) surveillances to check for loitering, drinking in public, graffiti, litter, excessive signage, excessive noise, etc.; (c) premises inspections (the law authorizes peace officers to inspect licensed premises for violations of the ABC Act during the times when the license privileges are being exercised); and/or (d) contacting nearby residents and business owners (an accusation to revoke a license of a disorderly premises may be based solely on the testimony and/or other evidence from citizens who live or work near the licensed premises). After completing the investigation, the investigator submits a completed assignment sheet and/or case report.
After the investigation, the District Office evaluates the case and takes one of six different actions, depending on the evidence and facts of the case.
Any person. Accusations must be verified unless filed by a public officer acting within official capacity. An accusation must state facts constituting legal grounds to suspend or revoke a license. (Sections 24201-24207)
The accusation must contain a written certification or declaration by the party making the accusation attesting the accusation to be true "under penalty of perjury," or it must be sworn to before a notary public with a statement that either by the party's own knowledge, or information and belief, the alleged facts are true. (Government Code Section 11503, Code of Civil Procedure Section 2015.5)
Facts stated in an accusation must have at least one of the following grounds:
Any other facts which would make the continuation of the license contrary to public welfare and morals (Section 24200)
The licensee is entitled to have a public hearing on the accusation to present a defense against the charges made. The hearing will be presided over by an Administrative Law Judge of the Administrative Hearing Office. At the hearing the licensee is entitled to the issuance of subpoenas to compel the attendance of witnesses and materials and may be represented by counsel (but not at public expense), may present relevant evidence and may cross-examine all witnesses. The Administrative Law Judge makes a proposed decision which is filed with the ABC Director. (Government Code Sections 11500-11528)
Yes. If the ordered period of the suspension does not exceed 15 days and ABC finds that public welfare and morals would not be impaired by the substitution of a fine for the actual suspension of the licensed business, the retail licensee may pay a sum of money equal to 50% of the estimated gross receipts from the sale of alcoholic beverages during the period of suspension. Such offer in compromise shall not be less than $1,500 nor more than $6,000 except that the limits are $75 - $3,000 when no accusation filed against a retail licensee has resulted in a final decision within the prior 3 years. For non-retailers the formula is more complex-refer to Section 23095. (Section 23095)
No Petition for an Offer in Compromise shall be granted for a second or subsequent violation of Section 25602 (sales of alcoholic beverages to obviously intoxicated persons) which occurs within 36 months of the initial violation. (Section 25602.3)
The law requires the suspension of a license for a second or subsequent violation within a 36-month period. The section also authorizes the revocation of a license for a third violation within a 36-month period. ABC may revoke a license prior to a third violation when the circumstances warrant it. (Section 25658.1 )
Additional information may be obtained by contacting:
Alcoholic Beverage Control3927 Lennane Drive, Suite 100
Sacramento, CA 95834