Every licensee in California will be at risk of closure without an effective right of defense if the legislation proposed in AB 2082 (Campos) takes effect. AB 2082 authorizes an immediate shutdown of any licensee by the ABC and effectively suspends all current due process protections and rights to a hearing in the interim. All that it takes to close a business down would be a complaint made by a police department or public official to the ABC that there is “direct evidence” of an “immediate threat” to the public safety. This “threat” could either be the result of the operation of the premises, or a result of potentially dangerous conditions in areas close to the affected business. Under this bill most licensees in cities like Oakland, San Francisco, LA, Fresno and San Jose could be at immediate risk of being put out of business simply because of the dangerous neighborhoods they are located in.
This bill is a hunting license for the police and a lethal weapon for the politicians. While we believe that most police departments and political officials act in good faith and in accordance with their responsibilities to the public, it is also unfortunately the case that an active minority do not. What this bill does is empower the minority of enforcement officials who do not respect, and are frustrated by, the due process safeguards built into the current system.
Unlike current law, which requires notice of violation and a hearing at which a licensee can defend itself, as well a right to an appeal to the ABC Appeals Board (the governing agency over the ABC, and often the only real source of justice because ABC hearing officers are all retired ABC prosecutors), AB 2082 permits the business to be closed first and defenses raised later. This presupposes (of course) that the licensee can immediately find and engage a lawyer; all the while avoiding going bankrupt from being out of business during what will most certainly be months if not years of litigation. This is regardless of the attempt to build impossible to manage expedited procedures into the legislation. Few licensees can make payroll and rent if they can’t remain open, and getting expedited hearings is next to impossible considering the nature of the current hearing system.
This bill is also an open invitation to public official and law enforcement abuse of licensees whose businesses are not well liked because they attract young people, people of color, or the licensee hosts events that irritate neighbors because they create noise, or have experienced substance abuse problems or cause allegedly hazardous traffic conditions. This includes nightclubs, restaurants that provide entertainment, dancing and music to the younger crowd as well as supplier licensees (such as wineries, breweries and now distilleries) that host events where traffic, noise and substance abuse are alleged to be a problem for the neighbors. This can also include grocery and liquor stores in undesirable neighborhoods where the clientele is poor and struggling.
All it takes to close a business under AB 2082 is an alleged “immediate threat to public safety.” Who interprets what the threat really is and what really caused it are at the heart of the danger that this bill poses. For example, we are involved in a current case where the police allege that public safety was threatened because patrons of a club where a hip-hop entertainer played went to a pizza parlor across the street after the club closed and got into a fight with a police officer. How was that the fault of the club? Yet that is what the police alleged and attempted to prove. Their theory is that the fight would not have occurred had the Club been closed and no patrons been at the show.
Oher “threats” to public safety that have been alleged in recent cases include fights in a parking lot down the block from a nightclub (but not part of the premises, and that services multiple clubs), assaults causing serious injury by one girl against another at a bachelorette party at a winery, incidents on the sidewalk in front of a grocery store involving teen-agers hanging out and harassing passers-by, being caught with drugs at a rock concert in a licensed venue, and a fatal auto accident in the middle of the night on a road in wine county where the driver had been drinking at the licensed premises earlier in the evening.
These are all incidents which could, under AB 2082, have resulted in the immediate closure of the subject licensed business. In our experience, some police officers (usually acting as surrogates for public officials) consider any licensed business that offers alcohol, music and/or dancing to be a potential threat to public safety. The fact that due process currently exists forces law enforcement to adopt measured responses to situations that they believe threaten public safety. AB 2082 strips away measured responses, as well as due process, and leaves in its place the potential for arbitrary and punitive reactions.
Do you trust public officials and police to be free from bias against specific businesses, or specific operators? While the great majority of police officers and public officials are responsible and act in good faith, our experience is that there are a minority of police and public officials who hold grudges for all kinds of reasons. This legislation gives the minority who are frustrated by the concept of due process and having to prove their case the cover they need to go after those who opposed them in the past with immediate retribution.
This is a bill that must be defeated for the licensed alcohol industry to be able to stand up to overzealous officials, whether law enforcement or politicians. This bill is not intended to solve a public safety problem but rather to hand law enforcement and politicians a lethal weapon to use against licensees.