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HomeMy WebLinkAbout1995-04-04; City Council; 13094; CITY'S AUTHORITY TO DETERMINE PUBLIC CONVENIENCE AND NECESSITY FOR ALCOHOLIC BEVERAGE LICENSINGz 2 I- 0 a d z 3 0 0 positive. FISCAL IMPACT The City currently does not make a determination for alcoholic licenses, The fiscal impact is unknown at this time. Page 0 ,3p?Y e Aqenda Bill No. EXHIBITS 1. Resolution No. 95-h 2. A letter to the City Council from the Department 3. Business and Professions Code section 23958.4. of Alcoholic Beverage Control dated March 8, 1995. *I 2 1 2 3 4 5 6 7 8 g 10 11 12 13 y;g: 14 00, Y uuh a08 t-dE ,.VO 15 zwv)o 8Z:d 16 ~ y ~ 17 i3 18 19 20 21 22 23 SUF $?4": J ,$k <>m< E:: aoJ 24 25 26 27 28 e 0 RESOLUTION NO. 95-86 A RESOLUTION OF THE CITY COUNCIL OF THE CI CARLSBAD, CALIFORNIA, DELEGATING THE CITY' AUTHORITY TO DETERMINE PUBLIC CONVENIENCE NECESSITY FOR ALCOHOLIC BEVERAGE LICENSING TO THE POLICE DEPARTMENT WHEREAS, the State Legislature in 1994, en Business and Professions Code section 23958.4, authorizin City to determine whether an alcoholic beverage applic meets public convenience and necessity notwithstandi determination of an undue concentration of licenses, and WHEREAS, the City Council may delegate the duti determination to a board, individual, or department; and WHEREAS, the determination of whether an applic meets public convenience and necessity is based on, among things, crime statistics and the ratio of licenses to popul in the area; and WHEREAS, the City Council finds that the E Department has the ability and resources to determine inci of crime and the effect of undue concentration of liquor e and/or bars. NOW, THEREFORE, BE IT RESOLVED by the city count the City of Carlsbad, California, as follows: 1. That the above recitations are true and COI 2. That the Police Department is authoriz determine whether an application for a alcoholic bey license should be approved based on public convenienc necessity notwithstanding a determination that there is an concentration of licenses. The Police Department shall pi ABC and the Applicant with written Notice of Determinatic 1 2 3 4 5 6 7 8 9 10 11 12 22: 13 <os ow2 iUC3 14 OkSC ~('SE 15 $$$x- 16 0 su: 2;;s szg$ 4 >"Z 17 60 rdI 0 aoJ 18 19 20 21 22 23 24 25 26 27 28 0 0 3. That Applicant may appeal the Police Departm determination to the City Council by filing a written a with the City Clerk within 10 days of mailing of notice. 4, That the City Council will send Applican Department of Alcoholic Beverage and Control Notice of the Council final determination. 5. That Department of Alcoholic Beverage and Cc will be bound by the City's decision in those cases authc by Business and Professions Code section 23958.4. PASSED, APPROVED, AND ADOPTED at a Regular Meet] the City Council of the City of Carlsbad, California, on 4th day of APRIL , 1995, by the following vote, tc * AYES: Council Members Lewis, Nygaard, Kulchin, Finnil, NOES: None ABSENT: None ATTEST: ALETHA L. RAUTENKRANZ, City Cl$rk 2 . <T.\TE ___- __--- <':: ~',~lJFORNIA - BUSINESS. 'TRANSPORT a AND HOLYiING AGENCY 0 Prn WILSC c . .I>Cr ARTMENT OF ALCOHOLIC BEVERAGE CONTROL .>::I:) KOSIN COURT. SUITE [SO. SACRAMENTO. CA 95834 (9 16) 763-6900 Cliu; Z;'WJkCIL READING FIlE March 8, 1995 ,. DATE- 3/13 -7r To: County Board of Supervisors City Councils iM a y o r s During the 1994 Legislative Session amendments and additions were made to certair provisions of the Business and Professions Code relating to alcoholic beverage licensing which affect the local governing bodies of cities and counties. Section 23958.4 was added to the Business and Professions Code to define "undue concentration" of licenses and to establish the procedure for determining if public convenience and necessity will warrant the issuance of a license notwithstanding a determination that there is an undue concentration of licenses. A copy of the chaptered Assembly bill creating Section 23958.4 is enclosed. With respect to non-retail licenses. bona fide public eating place licenses, certain hotel. motel, or specified lodging establishments and retail licenses issued in conjunction with a beer manufacturing or winegrower's license. if the applicant shows that public convenience or necessity would be served, a license may be issued by the Department. In this situation the local governing body does not make a determination of public convenience and necessity. However. nothing would preclude a city or county from protesting the issuance of a license on these grounds or any other grounds. ',x With respect to all other retail licenses, most notably all off-sale beer and wine hether or not public convenience and necessity is met will be determined bv the local fovernmg bodv ot the appropriate city or county. In other words. if there is an undue concentration of licenses in the area of a proposed licensed premises and the local governing body determines that issuance of the license would meet public convenience and necessity standards, the Department of Alcoholic Beverage Control will be bound by that determination and the license could be issued, assuming other factors, such as the (--- pjrsonal qualification of the applicant. citizen protests and other non-public convenience and necessity factors do not preclude the issuance of the license. On the other hand, if the \ local governinp body determines that public convenience and necessity would not be served. that determination by itseif would preclude the issuance of the license by the Department. < Iicenses, off-sale general licenses. and all other on-sale licenses, the determination of / / The Department is asking that all determinations of satisfying public convenience and necessity be in writing and submitted to the local office of the, Department. I 0 e As the local governing body you may elect to delegate the duties of determining whether or not public convenience and necessity are met to a subordinate agency such as a zoning, planning, or law enforcement official if desired. If this is your decision please submit a written notice of such delegation to the Department's Headquarters address within 30 days of the date of this notice. If such a delegation is not made within that period we w:ll assume that the local governing body itself will be making these determinations Please send all notifications of delegation of these duties to: Department of Alcoholic Beverage Control Office of the Director 3810 Rosin Court. Suite 150 Sacramento, CA 95834 law as outlined above will serve to give Iocal officials the ability to better deal with alcoholic beverage licensing issues. We appreciate your cooperation in these matters and we feel that the changes in the Sincerely, I WGf!?! 45 Lion P. By&T Chief Counsel 0 0 1 BUSINESS MD PROFESSION$ CODE S 23954.5 0 23958.4. ‘Cndue concentration: licensure for public convenience or necessity; definitions: exciu- (a) For purposes oi Section 23958, “undue concentration” means the appiicant premises for an original or premises-to-premises transIer oi any retail license are located in an area where any of the following conditions exist: (1) The appiicant prermses are located in a crime reporting district that has a 90 percent greater determined from all crime reporunq districts within the jurisdiction ox the local law enforcement agency. (2) As to on-de retaxi license applications. die ratio of on-saie retaii licenses to population in the census tract or census division in which the applicant premises are located exceeds the ratio of on-sale retad licenses to population in the county in which the applicant premises are iocated. (3) As to oif-sale retad license appiications, the ratio of off-saie retail licenses to population in the census tract or census division in which the applicant premises are located exceeds the ratio of off-sale retail licenses to population in the county in which the applicant premises are located. sions; Los Angeles premises destroyed by civil distilrbmces number of reported crimes. as deiined in subdivision (e). than the averape number oi reported crimes as Additions or changes indicated by underline; deletions by asterisks * 26 -~ .- . .. ~~ ..- ~ - ~..~ _._____ __ . . ..~ , , (b 0 0 23959 3USINESS iL PROFESSIONS CODE ,. , (b) Notwithstanding Section 23958, the department may issue a license as follows: (1) With respect to a nonretail license, a retail on-saie bona fide eating place license, a retail license issued for a hotel. motel, or other iodgmg establishment, as defined in subdivision (b) of Section 25503.16, a retail license issued in conjunction with a beer manufactureis liceme, or a fieg-wefs license, if %e apphmt shows that pubiic convenience or necessity would be served by the issuance. !2) With respect to any other license, if the local governing body of the area in which the applicant premises are located determines that public convenience or necessity would be served by the &juace. (e) For purposes of this section, the following definitions shall apply: (1) “Reporting districts” means geographical areas within the boundaries of a single governmental entity (city or the unincorporated area of a county), that are identified by the local law enforcement agency in the compilation ana mainwnance of statistical information on reported crimes and arrests. 12) “Reported crimes“ means the most recent yearly compilation by the local law enforcement agency of reponed offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny theft, and motor venicle theft, combined with all arrests for other crimes, both felonies and misdemean- ors, except traffic citations. 13) “Population within the census tract or census division” means the population as determined by the most recent United States decennial or special census. The population determination shall not operate to prevent an applicant from establishing that an increase of resident population has occurredwithin the census tract or census division. (4) “Popdation in the county“ shall be determined by the annual population estimate for California counties published by the Population Research Unit of the Department of Finance. (5) “Retail licenses” shall include the following (A) Off-sale retail licenses: Type 20 (off-sale beer and wine) and Type 21 (off-sale general). iB) On-sale retad licenses: All retail on-sale licenses, except Type 43 (on-sale beer and wine for train), Type 44 (on-sale beer and wine for fishing party boat), Type 45 (on-sale beer and wine for boat), Type 46 (on-sale beer and wine for aupiane), Type 5.3 (on-sale general for train and sleeping car), me 54 (on-sale general for boat), Type 55 (on-sale general for airplane), Type 56 (on-sale general for vessels of more than 1,000 tom burden), and Type 62 (on-saie general bona fide public eating place intermittent dockside license for vessels of more than 15,000 tons displacement). (6) A “premises to premises transfer” refers to each license being separate and distinct and transfer- able upon approval of the department. (d) For purposes of this section, the number of retail licenses in the county shall be determined by the nost recent yearly retad license count published by the department in its Procedure Manual. (e) The enactment of this section shall not affect any kting rights of any holder of a retail license issued prior to April 29. 1992. whose premises were destroyed or rendered unusable as a result of the chi1 disturbances occurring in Los Angeles from April 29 to May 2, 1992. to reopen and operate those licensed premises. (0 This section shall not apply where the premises have been licensed and operated with the same type license lcithin 90 days of the application. !Added by Stats.1994. c. 630 (AB.2897), 0 2.) 9 23959. Denial or withdraw&, tax credit and refund If an appiication is denied or withdrawn, one-fourth of the license fee paid, or not more than * * * one ’iundred dollars (9%). shall be deposited in the * * * Alcohol Beverage Control Fund as provided in Section 25761. The balance oi this amount shall be credited on any taxes then due from the applicant under Part 14 (cornmencine nith Section 32001) of Division 2 of the Revenue and Taxation Code or the Sales and Use EL, Law,l and the remaining portion shall be returned to the applicant. !.Amended by Stats.1992, c. 900 (AB.432). § 12, eff. Sept. 25. 1992.) 1 Revenue and Taxation Code 9 6001 et seq. Code of Regulations References License reinstatement after automauc revocation. see 4 C‘d. Code of Regs. P 63. Additions or changes indicated by underline; deletions by asterisks * 27 t 1 . . . ._-_. .--_I___ .