Existing law, the Alcoholic Beverage Control Act, requires a record of any administrative hearing of the Department of Alcoholic Beverage Control, and if an appeal is made to the Alcoholic Beverage Appeals Board, requires the board to determine the appeal upon the record of the department and upon any briefs authorized to be filed by the parties.

Existing law requires proceedings at an administrative hearing to be reported by a stenographic reporter unless there is consent for an electronic report.

This bill would prohibit the department from creating a videographic recording of a hearing as a record and provide that a videographic recording is inadmissible in specified hearings.

Existing law, the Alcoholic Beverage Control Act, requires a record of any administrative hearing of the Department of Alcoholic Beverage Control, and if an appeal is made to the Alcoholic Beverage Appeals Board, requires the board to determine the appeal upon the record of the department and upon any briefs authorized to be filed by the parties.

Existing law requires proceedings at an administrative hearing to be reported by a stenographic reporter unless there is consent for an electronic report.

This bill would prohibit the department from creating a videographic recording of a hearing as a record and provide that a videographic recording is inadmissible in specified hearings.

Existing law, the Alcoholic Beverage Control Act, requires a record of any administrative hearing of the Department of Alcoholic Beverage Control, and if an appeal is made to the Alcoholic Beverage Appeals Board, requires the board to determine the appeal upon the record of the department and upon any briefs authorized to be filed by the parties.

Existing law requires proceedings at an administrative hearing to be reported by a stenographic reporter unless there is consent for an electronic report.

This bill would authorize an audio record to be kept as the official record of any administrative hearing conducted by the Department of Alcoholic Beverage Control. In an appeal to the Alcoholic Beverage Appeals Board, when a hearing record has been created by audio recording, the bill would require the department to provide the board and each party with a written transcription and would also authorize the board to request that the department provide the board and each party with a copy of the audio recording in lieu of a transcript as a record of the administrative hearing. prohibit the department from creating a videographic recording of a hearing as a record and provide that a videographic recording is inadmissable in specified hearings.

Existing law, the Alcoholic Beverage Control Act, requires a record of any administrative hearing of the Department of Alcoholic Beverage Control, and if an appeal is made to the Alcoholic Beverage Appeals Board, requires the board to determine the appeal upon the record of the department and upon any briefs authorized to be filed by the parties.

Existing law requires proceedings at an administrative hearing to be reported by a stenographic reporter unless there is consent for an electronic report.

This bill would authorize an audio record to be kept as the official record of any administrative hearing conducted by the Department of Alcoholic Beverage Control. In an appeal to the Alcoholic Beverage Appeals Board, when a hearing record has been created by audio recording, the bill would require the department to provide the board and each party with a written transcription and would also authorize the board to request that the department provide the board and each party with a copy of the audio recording in lieu of a transcript as a record of the administrative hearing.

If any party to the appeal requests the right to appear before the board, existing law requires the Alcoholic Beverage Appeals Board to fix a time and place for argument.

This bill would authorize the Alcoholic Beverage Appeals Board to keep a record of the argument before the board by audio recording.

Existing law, the Alcoholic Beverage Control Act, requires a record of any administrative hearing of the Department of Alcoholic Beverage Control, and if an appeal is made to the Alcoholic Beverage Appeals Board, requires the board to determine the appeal upon the record of the department and upon any briefs authorized to be filed by the parties.

Existing law requires proceedings at an administrative hearing to be reported by a stenographic reporter unless there is consent for an electronic report.

This bill would require authorize an audio record to be kept as the official record of any administrative hearing conducted by the Department of Alcoholic Beverage Control. In an appeal to the Alcoholic Beverage Appeals Board, when a hearing record has been created by audio recording, the bill would require authorize the board to request that the department to provide to the board and each party with a copy of the audio recording in lieu of a transcript as a record of the administrative hearing. The bill would also require the board to adopt a regulation establishing a fee to be paid for an audio recording, as specified.

If any party to the appeal requests the right to appear before the board, existing law requires the Alcoholic Beverage Appeals Board to fix a time and place for argument.

This bill would require authorize the Alcoholic Beverage Appeals Board to keep a record of the argument before the board by audio recording.

Existing law, the Alcoholic Beverage Control Act, requires a record of any administrative hearing of the Department of Alcoholic Beverage Control, and if an appeal is made to the Alcoholic Beverage Appeals Board, requires the board to determine the appeal upon the record of the department and upon any briefs authorized to be filed by the parties.

Existing law requires proceedings at an administrative hearing to be reported by a stenographic reporter unless there is consent for an electronic report.

This bill would require an audio record to be kept as the official record of any administrative hearing conducted by the Department of Alcoholic Beverage Control. In an appeal to the Alcoholic Beverage Appeals Board, when a hearing record has been created by audio recording, the bill would require the department to provide to the board and each party a copy of the audio recording in lieu of a transcript as a record of the administrative hearing. The bill would also require the board to adopt a regulation establishing a fee to be paid for an audio recording, as specified.

If any party to the appeal requests the right to appear before the board, existing law requires the Alcoholic Beverage Appeals Board to fix a time and place for argument.

This bill would require the Alcoholic Beverage Appeals Board to keep a record of the argument before the board by audio recording.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1285

Author:(Gipson)

As Amended Ver:June 19, 2017

Majority vote

Original Committee Reference: G.O.

SUMMARY: Prohibits the Department of Alcohol Beverage Control (ABC) from creating an official record of any administrative hearing by videographic recording and provides that this type of recording is inadmissible in any proceeding before the ABC Appeals Board or other proceedings, as specified.

The Senate amendments:

1. State ABC shall not create a record by videographic recording.
2. Provide that the videographic recording of a hearing shall be inadmissible in any proceeding before the ABC Appeals Board or in any proceeding hearing, as specified.

EXISTING LAW:

1. Establishes ABC and grants it exclusive authority to administer the provisions of the Alcoholic Beverage Control Act (Act) in accordance with laws enacted by the Legislature.
2. Requires a record of any administrative hearing of the ABC, and if an appeal is made to the ABC Appeals Board, requires the Board to determine the appeal upon the record of the ABC and upon any briefs authorized to be filed by the parties.
3. Requires proceedings at an administrative hearing to be reported by a stenographic reporter unless there is consent for an electronic report.
4. States that if any party to the appeal requests the right to appear before the ABC Appeals Board, the Board is required to fix a time and place for argument. The ABC Appeals Board shall not receive any evidence other than that contained in the record of the proceedings of ABC.
5. States any person affected by a final order of the ABC Appeals Board, including ABC, may, within the time limit specified in this section, apply to the Supreme Court or to the court of appeal for the appellate district in which the proceeding arose, for a writ of review of such final order. The application for writ of review shall be made within 30 days after filing of the final order of the Board.

AS PASSED BY THE ASSEMBLY, the bill authorized the ABC Appeals Board to keep an audio recording of its proceedings and clarifies that an audio recording, and not a video recording, may be kept as the official record of any administrative hearing conducted by ABC. These recordings may be given to each party upon request.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS:

Purpose of the bill: According to the author's office, "a significant number of the witnesses testifying at ABC hearings are undercover police officers or minors. Some licensees have attempted to videotape those witnesses' testimony. This poses a risk to the officers and the minors."

The author's office states that, "currently ABC holds administrative hearings for issuing liquor licenses and to discipline liquor licenses for criminal or administrative violations. It is not expressed in statute that video recordings are prohibited in ABC administrative proceedings. By clearly expressing video recording is prohibited in ABC administrative hearings, this bill will add protection to the identity of undercover ABC peace officers and minors at the hearing."

Administrative hearings: In California, when a disagreement exists pertaining to an action taken by a government agency against an individual or business, that action can generally be challenged. This can sometimes be done by requesting an administrative hearing.

In the case of an ABC licensee, the licensee is entitled to have a public hearing on the accusation to present a defense against the charges made. Contested cases are scheduled for a hearing presided before an administrative law judge (ALJ). At the hearing, the licensee is entitled to the issuance of subpoenas to compel the attendance of witnesses and may be represented by counsel (but not at public expense). Additionally, he or she may present relevant evidence and may cross-examine all witnesses. The ALJ makes a proposed decision, which is filed with the Director of ABC. The Director of ABC adopts or rejects the ALJ's proposed decision.

As previously stated, existing law requires ABC to utilize a stenographic reporter for all administrative hearings, unless each of the parties consent to an electronic record. ABC believes they have implied general authority to prohibit video recordings. However, this bill codifies existing practice and makes it expressly clear in statute that video recordings are prohibited in ABC administrative proceedings.

A licensee who is not satisfied with the decision may appeal to the ABC Appeals Board within 40 days. The ABC Appeals Board is comprised of three members appointed by the Governor and provides quasi-judicial administrative review of decisions made by ABC. The questions that may be considered by the ABC Appeals Board are limited by the California Constitution and by statute. The ABC Appeals Board reviews the record of the administrative hearing and accepts written or oral arguments. It may not accept new evidence that was not offered at the original hearing. The ABC Appeals Board usually makes a decision within 120 days.

An ABC licensee can appeal to the California District Court of Appeal (DCA) within 30 days of the ABC Appeals Board decision. The DCA reviews the record and renders a decision. The Attorney General represents ABC at the hearing. There is no mandated time period for the DCA to render its decision. Further, the ABC licensee may appeal to the California Supreme Court within 30 days of the DCA decisions.

This bill prohibits ABC from creating an official record of any administrative hearing by videographic recording. Additionally, the bill provides that videographic recording is inadmissible in any proceeding before the ABC Appeals Board, the DCA, and the Supreme Court.

The Minor Decoy Program: The Minor Decoy Program uses individuals, who are under the age of 20, to attempt to purchase alcoholic beverages at ABC licensed premises. If an individual sells to the minor decoy, the seller is issued a criminal citation. In addition, ABC may file an administrative disciplinary action against the licensee. Following any completed sale, but not later than the time of citation, if any, is issued, the undercover peace officer directing the decoy shall make a reasonable attempt to enter the licensed premises and have the minor decoy who purchased the alcoholic beverages make a face-to-face identification of the alleged seller.

As mentioned, the existing law requires ABC to produce the minor at the administrative hearing. The minor decoy must be willing and able to testify at criminal proceedings and administrative hearings. Failure to comply will generally result in dismissal of the disciplinary action. The law does not require an officer to be inside the premise during the time of the transaction. However, it is often helpful to have an officer testify as to his/her observations of the transaction.

This bill seeks to help protect the identity of minors, such as a minor decoy, as well as undercover ABC peace officers, by prohibiting video recording of an ABC administrative hearing.

Prior Legislation: AB 1971 (Cooper) in 2016 would have allowed ABC to utilize an audio recording as the official record of any administrative hearings and would have clarified the procedure for requesting a transcript where the hearing was audio recorded. (Held on Senate inactive file)

AB 776 (Cooper), Chapter 519, Statutes of 2015, modified, among other things, the terms for which an ABC administrative hearing involving the sale of alcohol to a minor may be delayed, to include reasonable situations where the minor is generally unavailable.

SB 937 (Governmental Organization Committee), Chapter 327, Statutes of 2012, provided, among other things that for any hearing held pursuant to the Act, ABC may delegate the power to hear and decide to an ALJ appointed by the Director of the ABC, as specified.

Analysis Prepared by: Eric Johnson / G.O. / (916) 319-2531 FN: 0001169

 CONSENT  

Bill No: AB 1285

Author:

:

Vote:

SENATE GOVERNMENTAL ORG. COMMITTEE: 13-0, 6/27/17

AYES: Dodd, Berryhill, Bradford, Cannella, Gaines, Galgiani, Glazer, Hill, Hueso, Lara, Mendoza, Portantino, Vidak

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 76-0, 5/4/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill prohibits the Department of Alcohol Beverage Control (ABC) from creating an official record of any administrative hearing by videographic recording and provides that this type of recording is inadmissible in any proceeding before the ABC Appeals Board or other specified proceeding.

ANALYSIS:

Existing law:

1. Establishes the Department of ABC and grants it exclusive authority to administer the provisions of the ABC Act in accordance with laws enacted by the Legislature. This involves licensing individuals and businesses associated with the manufacture, importation, and sale of alcoholic beverages in this state and the collection of license fees for this purpose.
2. Authorizes the Department of ABC to conduct administrative hearings for, among other things, violations of the ABC Act by a licensee, and except as otherwise provided, the proceedings shall be conducted in accordance with the procedures, rules, and limitations prescribed in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
3. States that when an agency itself hears a case, an Administrative Law Judge (ALJ) shall preside at the hearing, rule on the admission and exclusion of evidence, and advise the agency on matters of law; the agency itself shall exercise all other powers relating to the conduct of the hearing but may delegate any or all of them to the ALJ. When the ALJ alone hears a case, he or she shall exercise all powers relating to the conduct of the hearing. A ruling of the ALJ admitting or excluding evidence is subject to review in the same manner and to the same extent as the ALJ’s proposed decision in the proceeding.
4. Specifies that for any hearing held pursuant to the ABC Act, the Department of ABC may delegate the power to hear and decide to an ALJ appointed by the Director of ABC.
5. Requires the Department of ABC, in any hearing on an accusation charging a licensee with a violation of specified provisions relating to minors, to produce the alleged minor for examination at the hearing unless he or she is unavailable as a witness because he or she is dead or unable to attend the hearing because of a then-existing physical or mental illness or infirmity, or unless the licensee has waived, in writing, the appearance of the minor.
6. Requires an official record of any administrative hearing conducted by the Department of ABC, and specifies the proceedings at the hearing shall be reported by a stenographic reporter. However, upon the consent of all the parties, the proceedings may be reported electronically.
7. Requires the ALJ to prepare, within 30 days after the case is submitted to him or her, a proposed decision in a form that may be adopted by the Director of ABC as the final decision in the case.
8. Requires, if an appeal is made, the ABC Appeals Board to determine the appeal upon the record of the Department of ABC and upon any briefs authorized to be filed by the parties. States that if any party to the appeal requests the right to appear before the ABC Appeals Board, the Board is required to fix a time and place for argument.
9. Provides that any person requesting a transcript from the Department of ABC in a case on appeal to the ABC Appeals Board shall pay the transcript cost, as specified.
10. States that any person affected by a final order of the ABC Appeals Board, including the Department of ABC, may, within the time limit specified, apply to the Supreme Court or to the court of appeal for the appellate district in which the proceeding arose, for a writ of review of such final order. The application for writ of review shall be made within 30 days after filing of the final order of the ABC Appeals Board.

This bill prohibits the Department of ABC from creating an official record of any administrative hearing by videographic recording and provides that this type of recording is inadmissible in any proceeding before the ABC Appeals Board or other specified proceeding.

Background

Purpose of the bill. According to the author’s office, “a significant number of the witnesses testifying at Department of ABC hearings are undercover police officers or minors. Some licensees have attempted to videotape those witnesses’ testimony. This poses a risk to the officers and the minors.”

The author’s office states that, “currently the Department of ABC holds administrative hearings for issuing liquor licenses and to discipline liquor licenses for criminal or administrative violations. It is not expressed in statute that video recordings are prohibited in ABC administrative proceedings. By clearly expressing video recording is prohibited in ABC administrative hearings, this bill will add protection to the identity of undercover ABC peace officers and minors at the hearing.”

Administrative hearings. In California, when a disagreement exists pertaining to an action taken by a government agency against an individual or business, that action can generally be challenged. This can sometimes be done by requesting an administrative hearing.

In the case of an ABC licensee, the licensee is entitled to have a public hearing on the accusation to present a defense against the charges made. Contested cases are scheduled for a hearing presided before an ALJ. At the hearing, the licensee is entitled to the issuance of subpoenas to compel the attendance of witnesses and may be represented by counsel (but not at public expense). Additionally, he or she may present relevant evidence and may cross-examine all witnesses. The ALJ makes a proposed decision, which is filed with the Director of the Department of ABC. The Director of the Department of ABC adopts or rejects the ALJ’s proposed decision.

As previously stated, existing law requires the Department of ABC to utilize a stenographic reporter for all administrative hearings, unless each of the parties consent to an electronic record. The Department of ABC believes they have implied general authority to prohibit video recordings. However, AB 1285 codifies existing practice and makes it expressly clear in statute that video recordings are prohibited in ABC administrative proceedings.

A licensee who is not satisfied with the decision may appeal to the ABC Appeals Board within 40 days. The ABC Appeals Board is comprised of three members appointed by the Governor and provides quasi-judicial administrative review of decisions made by the Department of ABC. The questions that may be considered by the ABC Appeals Board are limited by the California Constitution and by statute. The ABC Appeals Board reviews the record of the administrative hearing and accepts written or oral arguments. It may not accept new evidence that was not offered at the original hearing. The ABC Appeals Board usually makes a decision within 120 days.

An ABC licensee can appeal to the California District Court of Appeal (DCA) within 30 days of the ABC Appeals Board decision. The DCA reviews the record and renders a decision. The Attorney General represents the Department of ABC at the hearing. There is no mandated time period for the DCA to render its decision. Further, the ABC licensee may appeal to the California Supreme Court within 30 days of the DCA decisions.

This bill prohibits the Department of ABC from creating an official record of any administrative hearing by videographic recording. Additionally, the bill provides that videographic recording is inadmissible in any proceeding before the ABC Appeals Board, the DCA, and the Supreme Court.

The Minor Decoy Program. The Minor Decoy Program uses individuals, who are under the age of 20, to attempt to purchase alcoholic beverages at ABC licensed premises. If an individual sells to the minor decoy, the seller is issued a criminal citation. In addition, the Department of ABC may file an administrative disciplinary action against the licensee. Following any completed sale, but not later than the time of citation, if any, is issued, the undercover peace officer directing the decoy shall make a reasonable attempt to enter the licensed premises and have the minor decoy who purchased the alcoholic beverages make a face to face identification of the alleged seller.

As mentioned, the existing law requires the Department of ABC to produce the minor at the administrative hearing. The minor decoy must be willing and able to testify at criminal proceedings and administrative hearings. Failure to comply will generally result in dismissal of the disciplinary action. The law does not require an officer to be inside the premise during the time of the transaction. However, it is often helpful to have an officer testify as to his/her observations of the transaction.

This bill seeks to help protect the identity of minors, such as a minor decoy, as well as undercover ABC peace officers, by prohibiting video recording of an ABC administrative hearing.

Related/Prior Legislation

AB 1971 (Cooper, 2016) would have required, among other things, the Department of ABC to utilize an audio recording as the official record of any administrative hearings and would have clarified the procedure for requesting a transcript where the hearing was audio recorded. (Held on Senate inactive file)

AB 776 (Cooper, Chapter 519, Statutes of 2015) modified, among other things, the terms for which an ABC administrative hearing involving the sale of alcohol to a minor may be delayed, to include reasonable situations where the minor is generally unavailable.

SB 937 (Committee on Governmental Organization, Chapter 327, Statutes of 2012) provided, among other things, that for any hearing held pursuant to the ABC Act, the Department of ABC may delegate the power to hear and decide to an ALJ appointed by the Director of the Department of ABC, as specified.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 7/10/17)

None received

OPPOSITION: (Verified 7/10/17)

None received

ASSEMBLY FLOOR: 76-0, 5/4/17

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Travis Allen, Bigelow, Cristina Garcia, Patterson

Prepared by:

7/12/17 8:47:38

**** END ****

SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION

Senator Bill Dodd

Chair

2017 - 2018 Regular

Bill No: 1285 Hearing Date: 6/27/2017

SUBJECT: Alcoholic Beverage Control Act: administrative hearings: records

DIGEST: This bill prohibits the Department of Alcohol Beverage Control (ABC) from creating an official record of any administrative hearing by videographic recording and provides that this type of recording is inadmissible in any proceeding before the ABC Appeals Board or other specified proceeding.

ANALYSIS:

Existing law:

1. Establishes the Department of ABC and grants it exclusive authority to administer the provisions of the ABC Act in accordance with laws enacted by the Legislature. This involves licensing individuals and businesses associated with the manufacture, importation, and sale of alcoholic beverages in this state and the collection of license fees for this purpose.
2. Authorizes the Department of ABC to conduct administrative hearings for, among other things, violations of the ABC Act by a licensee, and except as otherwise provided, the proceedings shall be conducted in accordance with the procedures, rules, and limitations prescribed in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
3. States that when an agency itself hears a case, an Administrative Law Judge (ALJ) shall preside at the hearing, rule on the admission and exclusion of evidence, and advise the agency on matters of law; the agency itself shall exercise all other powers relating to the conduct of the hearing but may delegate any or all of them to the ALJ. When the ALJ alone hears a case, he or she shall exercise all powers relating to the conduct of the hearing. A ruling of the ALJ admitting or excluding evidence is subject to review in the same manner and to the same extent as the ALJ’s proposed decision in the proceeding.
4. Specifies that for any hearing held pursuant to the ABC Act, the Department of ABC may delegate the power to hear and decide to an ALJ appointed by the Director of ABC.
5. Requires the Department of ABC, in any hearing on an accusation charging a licensee with a violation of specified provisions relating to minors, to produce the alleged minor for examination at the hearing unless he or she is unavailable as a witness because he or she is dead or unable to attend the hearing because of a then-existing physical or mental illness or infirmity, or unless the licensee has waived, in writing, the appearance of the minor.
6. Requires an official record of any administrative hearing conducted by the Department of ABC, and specifies the proceedings at the hearing shall be reported by a stenographic reporter. However, upon the consent of all the parties, the proceedings may be reported electronically.
7. Requires the ALJ to prepare, within 30 days after the case is submitted to him or her, a proposed decision in a form that may be adopted by the Director of ABC as the final decision in the case.
8. Requires, if an appeal is made, the ABC Appeals Board to determine the appeal upon the record of the Department of ABC and upon any briefs authorized to be filed by the parties. States that if any party to the appeal requests the right to appear before the ABC Appeals Board, the Board is required to fix a time and place for argument.
9. Provides that any person requesting a transcript from the Department of ABC in a case on appeal to the ABC Appeals Board shall pay the transcript cost, as specified.
10. States that any person affected by a final order of the ABC Appeals Board, including the Department of ABC, may, within the time limit specified, apply to the Supreme Court or to the court of appeal for the appellate district in which the proceeding arose, for a writ of review of such final order. The application for writ of review shall be made within 30 days after filing of the final order of the ABC Appeals Board.

This bill prohibits the Department of ABC from creating an official record of any administrative hearing by videographic recording and provides that this type of recording is inadmissible in any proceeding before the ABC Appeals Board or other specified proceeding.

Background

Purpose of the bill. According to the author’s office, “a significant number of the witnesses testifying at Department of ABC hearings are undercover police officers or minors. Some licensees have attempted to videotape those witnesses’ testimony. This poses a risk to the officers and the minors.”

The author’s office states that, “currently the Department of ABC holds administrative hearings for issuing liquor licenses and to discipline liquor licenses for criminal or administrative violations. It is not expressed in statute that video recordings are prohibited in ABC administrative proceedings. By clearly expressing video recording is prohibited in ABC administrative hearings, this bill will add protection to the identity of undercover ABC peace officers and minors at the hearing.”

Administrative hearings. In California, when a disagreement exists pertaining to an action taken by a government agency against an individual or business, that action can generally be challenged. This can sometimes be done by requesting an administrative hearing.

In the case of an ABC licensee, the licensee is entitled to have a public hearing on the accusation to present a defense against the charges made. Contested cases are scheduled for a hearing presided before an ALJ. At the hearing, the licensee is entitled to the issuance of subpoenas to compel the attendance of witnesses and may be represented by counsel (but not at public expense). Additionally, he or she may present relevant evidence and may cross-examine all witnesses. The ALJ makes a proposed decision, which is filed with the Director of ABC. The Director of ABC adopts or rejects the ALJ’s proposed decision.

As previously stated, existing law requires the Department of ABC to utilize a stenographic reporter for all administrative hearings, unless each of the parties consent to an electronic record. The Department of ABC believes they have implied general authority to prohibit video recordings. However, AB 1285 would codify existing practice and make it expressly clear in statute that video recordings are prohibited in ABC administrative proceedings.

A licensee who is not satisfied with the decision may appeal to the ABC Appeals Board within 40 days. The ABC Appeals Board is comprised of three members appointed by the Governor and provides quasi-judicial administrative review of decisions made by the Department of ABC. The questions that may be considered by the ABC Appeals Board are limited by the California Constitution and by statute. The ABC Appeals Board reviews the record of the administrative hearing and accepts written or oral arguments. It may not accept new evidence that was not offered at the original hearing. The ABC Appeals Board usually makes a decision within 120 days.

An ABC licensee can appeal to the California District Court of Appeal (DCA) within 30 days of the ABC Appeals Board decision. The DCA reviews the record and renders a decision. The Attorney General represents the Department of ABC at the hearing. There is no mandated time period for the DCA to render its decision. Further, the ABC licensee may appeal to the California Supreme Court within 30 days of the DCA decisions.

This bill prohibits the Department of ABC from creating an official record of any administrative hearing by videographic recording. Additionally, the bill provides that videographic recording is inadmissible in any proceeding before the ABC Appeals Board, the DCA, and the Supreme Court.

The Minor Decoy Program. The Minor Decoy Program uses individuals, who are under the age of 20, to attempt to purchase alcoholic beverages at ABC licensed premises. If an individual sells to the minor decoy, the seller is issued a criminal citation. In addition, the Department of ABC may file administrative disciplinary action against the licensee. Following any completed sale, but not later than the time of citation, if any, is issued, the undercover peace officer directing the decoy shall make a reasonable attempt to enter the licensed premises and have the minor decoy who purchased the alcoholic beverages make a face to face identification of the alleged seller.

As mentioned, the existing law requires the Department of ABC to produce the minor at the administrative hearing. The minor decoy must be willing and able to testify at criminal proceedings and administrative hearings. Failure to comply will generally result in dismissal of the disciplinary action. The law does not require an officer to be inside the premise during the time of the transaction. However, it is often helpful to have an officer testify as to his/her observations of the transaction.

This bill seeks to help protect the identity of minors, such as a minor decoy, as well as undercover ABC peace officers, by prohibiting video recording of an ABC administrative hearing.

Prior/Related Legislation

AB 776 (Cooper, Chapter 519, Statutes of 2015) among other things, modified the terms for which an ABC administrative hearing involving the sale of alcohol to a minor may be delayed, to include reasonable situations where the minor is generally unavailable.

AB 1971 (Cooper, 2016) among other things, would have required the Department of ABC to utilize an audio recording as the official record of any administrative hearings and would have clarified the procedure for requesting a transcript where the hearing was audio recorded. (Held on Senate inactive file)

SB 937 (Committee on Governmental Organization, Chapter 327, Statutes of 2012) among other things, provided that for any hearing held pursuant to the ABC Act, the Department of ABC may delegate the power to hear and decide to an ALJ appointed by the Director of ABC, as specified.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT:

None received

OPPOSITION:

None received

SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION

Senator Bill Dodd

Chair

2017 - 2018 Regular

Bill No: AB Hearing Date: 6/13/2017

SUBJECT:

DIGEST: This bill allows the Department of Alcohol Beverage Control (ABC) to utilize an audio recording as the official record of administrative hearings and prohibits videographic recordings at such hearings. The bill also authorizes an audio record to be kept as a record of any argument presented before the ABC Appeals Board.

ANALYSIS:

Existing law:

1. Establishes the Department of ABC and grants it exclusive authority to administer the provisions of the ABC Act in accordance with laws enacted by the Legislature. This involves licensing individuals and businesses associated with the manufacture, importation, and sale of alcoholic beverages in this state and the collection of license fees for this purpose.
2. Authorizes the Department of ABC to conduct administrative hearings for, among other things, violations of the ABC Act by a licensee, and except as otherwise provided, the proceedings shall be conducted in accordance with the procedures, rules, and limitations prescribed in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
3. Provides that for any hearing held pursuant to the ABC Act, the Department of ABC may delegate the power to hear and decide to an Administrative Law Judge (ALJ) appointed by the Director of ABC.
4. Requires a record of any administrative hearing conducted by the Department of ABC, and specifies the proceedings at the hearing shall be reported by a stenographic reporter. However, upon the consent of all the parties, the proceedings may be reported electronically.
5. Requires the ALJ to prepare, within 30 days after the case is submitted to him or her, a proposed decision in a form that may be adopted by the Director of ABC as the final decision in the case.
6. Requires, if an appeal is made, the ABC Appeals Board to determine the appeal upon the record of the Department of ABC and upon any briefs authorized to be filed by the parties.
7. States that if any party to the appeal requests the right to appear before the ABC Appeals Board, the Board is required to fix a time and place for argument. Additionally, the ABC Appeals Board shall not receive any evidence other than that contained in the record of the proceedings of the Department of ABC.
8. Provides that any person requesting a transcript from the Department of ABC in a case on appeal to the ABC Appeals Board shall pay the transcript cost, as specified.

This bill:

1. Authorizes an audio record to be kept as the official record of any administrative hearing conducted by the Department of ABC.
2. Prohibits the Department of ABC from creating an official record of any administrative hearing by videographic recording and provides that this type of recording is inadmissible in any proceeding before the ABC Appeals Board.
3. Requires the Department of ABC, when a hearing record has been created by audio recording, to provide the ABC Appeals Board and each party with a written transcription.
4. Authorizes the ABC Appeals Board to request that the Department of ABC provide the Board and each party with a copy of the audio recording in lieu of a transcript as a record of the administrative hearing.
5. Authorizes an audio record to be kept as a record of any argument presented before the ABC Appeals Board.

Background

Purpose of the bill. The author’s office states that, “AB 1285 would seek to create cost and time savings by allowing the Department of ABC to utilize an audio recording as the record of administrative hearings.” The author’s office also notes that this bill is a sensible change to the law that will “ensure efficiency in administrative hearing record keeping.”

Further, according to the author’s office, “a significant number of the witnesses testifying at Department of ABC hearings are undercover police officers or minors. Some licensees have attempted to videotape those witnesses’ testimony.” The author’s office states that the bill will “protect the identity of undercover ABC peace officers and minors by also prohibiting video recording of the hearing.”

Additionally, the author’s office states that, “the ABC Appeals Board currently does not keep a transcript of its decisions, neither by audio nor stenographic reporter. Without a record, there is no documentation of the rationale used by the board in reaching its decisions. AB 1285 also authorizes a record of proceedings before the ABC Appeals Board.”

Administrative hearings. In California, when a disagreement exists pertaining to an action taken by a government agency against an individual or business, that action can generally be challenged. This can be done by requesting an administrative hearing.

In the case of an ABC licensee, the licensee is entitled to have a public hearing on the accusation to present a defense against the charges made. Contested cases are scheduled for a hearing presided before an ALJ. At the hearing, the licensee is entitled to the issuance of subpoenas to compel the attendance of witnesses and may be represented by counsel (but not at public expense). Additionally, he or she may present relevant evidence and may cross-examine all witnesses. The ALJ makes a proposed decision which is filed with the Director of ABC.

The Director of ABC adopts or rejects the ALJ’s proposed decision. A licensee who is not satisfied with the decision may appeal to the ABC Appeals Board within 40 days. The ABC Appeals Board provides quasi-judicial administrative review of decisions of the Department of ABC. The questions that may be considered by the ABC Appeals Board are limited by the California Constitution and by statute. The ABC Appeals Board is comprised of three members appointed by the Governor.

The ABC Appeals Board reviews the record of the administrative hearing and accepts written or oral arguments. It may not accept new evidence that was not offered at the original hearing. The ABC Appeals Board usually makes a decision within 120 days. According to the Department of ABC, they conduct on average about 350 hearings per year.

This bill creates a new section of law that authorizes the Department of ABC to utilize audio recordings for administrative hearings and prohibits video recordings at such hearings. AB 1285 also requires that when a hearing record has been created by audio recording, the Department of ABC needs to provide the ABC Appeals Board and each party with a written transcription. Additionally, this bill authorizes the ABC Appeals Board to create a record of oral argument hearings and allows such record to be by audio recording.

Additional rationale for the bill. As previously stated, existing law requires the Department of ABC to utilize a stenographic reporter for all administrative hearings, unless each of the parties consent to an electronic record. The use of a stenographic reporter generally adds a 50-75 day delay to the appeals process because preparation of the transcript takes time, which ultimately delays the imposition of penalties (fines, suspensions, license revocation), and potentially endangers the public. This being the case, the Department of ABC notes that this bill would result in greater administrative efficiencies as it pertains to hearings.

Also, stenographic reporter appearance fees alone cost the Department of ABC between $200 and $500 per day, for each hearing. In FY 2014-2015, the Department of ABC spent over $47,000 on stenographic reporter fees alone, with the ABC Appeals Board, the Department of ABC, and the affected parties spending an additional $38,000 in transcript preparation fees.

Further, it should be noted that the Department of ABC anticipates cost savings with the utilization of audio recordings. The savings would be offset by minimal one-time expenses to acquire audio recording technology and minimal costs for ongoing maintenance, training, and regular upgrade of equipment. Some additional costs can be expected for transcription of audio records when necessary.

Existing law also requires that an ALJ issue a proposed decision within 30 days of the hearing. The expense and time associated with the preparation of a transcript from a stenographic recorder prohibit the Department of ABC from routinely providing transcripts prior to the issuance of a proposed decision. As a result, ALJs prepare decisions without the benefit of a copy of the record. Existing law requires both the ABC Appeals Board and the judicial branch to give deference to the ALJs findings of fact, yet those findings must be reached without the ability to review testimonial evidence.

Finally, the Department of ABC notes that other agencies have been exempted from the stenographic reporting provisions as contained in this bill. Other agencies that have been exempted from the stenographic reporting provisions of Government Code §11512 include, the Departments of Health Care Services and Public Health which is exempt under Health and Safety Code §100171(f), and the Department of Motor Vehicles which is authorized to utilize audio recordings as the hearing record under Vehicle Code §14104.2.

As it pertains to the existing appeals process, current law requires the ABC Appeals Board to hear oral arguments on an appeal where a party requests it. However, the statute does not authorize a record of said hearing. According to the Department of ABC, this lack of clear statutory direction creates two problems. First, there is no authority to create a record of the hearings. The ABC Appeals Board currently does not record, by an audio or stenographic reporter, its hearings. Second, to the extent that a record is created, the lack of authority for the record may create issues on appeal.

Prior/Related Legislation

AB 1971 (Cooper, 2016) among other things, would have required the Department of ABC to utilize an audio recording as the official record of any administrative hearings and would have clarified the procedure for requesting a transcript where the hearing was audio recorded. (Held on Senate inactive file)

SB 937 (Committee on Governmental Organization, Chapter 327, Statutes of 2012) among other things, provided that for any hearing held pursuant to the ABC Act, the Department of ABC may delegate the power to hear and decide to an ALJ appointed by the Director of ABC, as specified.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT:

None received

OPPOSITION:

California Court Reporters Association (Unless amended)

ARGUMENTS IN OPPOSITION: California Court Reporters Association states that, “this bill would allow the Department of ABC to use audio recording equipment to capture the official record of a proceeding. This proposal moves away from the more effective use of in-person reporters in administrative hearings.”

Additionally, the California Court Reporters Association note that, “specifically, when used to capture witness testimony, electronic recording has countless flaws; failing to pick up the tone of a witnesses voice, or masking the witnesses testimony with recordings of background noises from the hearing room. These recordings are often rendered inaudible and therefore useless as documentation of the boards rational. For example, when used in the courts, one electronic recoding system failed to pick up the tone of the presiding judge’s voice in a proceeding, the proceeding was inaudible and useless as an official record.”

Date of Hearing: April 26, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 1285

Author:(Gipson) – As Amended Ver:April 19, 2017

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill authorizes Alcoholic Beverage Appeals Board (ABC Appeals Board) to keep an audio recording of its proceedings and and clarifies that an audio recording, and not a video recording, may be kept as the official record of any administrative hearing conducted by the Department of Alcoholic Beverage Control (ABC). These recordings may be given to each party upon request.

FISCAL EFFECT:

Minor and absorbable costs to the Department of Alcoholic Beverage Control (ABC).

COMMENTS:

Background and Purpose. According to the author, AB 1285 will ensure efficiency in administrative hearing record keeping and will protect the identity of ABC peace officers and minors by encouraging the use of audio recordings instead of video recordings.

Existing law requires the ABC Appeals Board to hear oral arguments on an appeal where a party requests it, but the statute does not require a record of the hearing. According to ABC staff, the lack of clear statutory direction creates two problems. First, there is no mandate to create a record of the hearing. The ABC Appeals Board currently does not record, by audio or stenographic reporter, its hearings. Second, to the extent that a record is created, the lack of authority for the record may create issues on appeal.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: March 29, 2017

ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION

Adam Gray, Chair

ABPCA Bill Id:AB 1285 (

Author:Gipson) – As Introduced Ver:February 17, 2017

SUBJECT: Alcoholic Beverage Control Act: administrative hearings: records

SUMMARY: Would allow the Department of Alcohol Beverage Control (ABC or department) to utilize an audio recording as the record of administrative hearings. The bill would also create a record of proceedings before the Alcoholic Beverage Appeals Board (ABC Appeals Board). Specifically, this bill:

1) Requires an audio record to be kept as the official record of any administrative hearing conducted by ABC. In an appeal to the ABC Appeals Board, when a hearing record has been created by audio recording, ABC shall provide to the Board and each party a copy of the audio recording in lieu of a transcript as a record of the administrative hearing.

2) Requires the ABC Appeals Board to keep a record of the argument before ABC by audio recording.

3) Requires the ABC Appeals Board to adopt a regulation establishing a fee to be paid for an audio recording, as specified.

EXISTING LAW:

1) Establishes ABC and grants it exclusive authority to administer the provisions of the Alcoholic Beverage Control Act (Act) in accordance with laws enacted by the Legislature.

2) Requires a record of any administrative hearing of the ABC, and if an appeal is made to the ABC Appeals Board, requires the Board to determine the appeal upon the record of the ABC and upon any briefs authorized to be filed by the parties.

3) Requires proceedings at an administrative hearing to be reported by a stenographic reporter unless there is consent for an electronic report.

4) States that if any party to the appeal requests the right to appear before the ABC Appeals Board, the Board is required to fix a time and place for argument. The ABC Appeals Board shall not receive any evidence other than that contained in the record of the proceedings of ABC.

FISCAL EFFECT: Unknown

COMMENTS:

Background. According to ABC staff, existing law requires the department to utilize a stenographic reporter for all administrative hearings, unless each of the parties consents to an electronic record. However, respondents in ABC hearings generally do not consent to an electronic record because the use of a stenographic reporter adds 50-75 day delays to the appeals process waiting for preparation of the transcript.  Delayed appeals, delay the imposition of penalties (fines, suspensions, license revocation), and potentially endanger the public. The cost to ABC for a stenographic reporter is between $200-500 per day, for each hearing. Additional costs are assessed to the ABC Appeals Board, the department, and the affected parties for transcripts and copies of the transcripts. Based upon the number of hearings held annually, the costs for court reporters simply to appear can exceed $42,000. In addition, it is estimated that ABC spends in excess of $47,000 annually to prepare transcripts of hearings.

Furthermore, existing law requires that a Department Administrative Law Judge (ALJ) issue a proposed decision within 30 days of the hearing. The expense and time associated with the preparation of a transcript from a stenographic record prohibits ABC from routinely providing transcripts prior to the issuance of a proposed decision. As a result, ALJs prepare decisions without the benefit of a copy of the record. Existing law requires both the ABC Appeals Board and the judicial branch to give deference to the ALJs findings of fact, yet those findings must be reached without the ability to review testimonial evidence.

Existing law also requires the ABC Appeals Board to hear oral arguments on an appeal where a party requests it. The statute does not require a record of said hearing. According to ABC staff, the lack of clear statutory direction creates two problems. First, there is no mandate to create a record of the hearing. The ABC Appeals Board currently does not record, by audio or stenographic reporter, its hearings. Second, to the extent that a record is created, the lack of authority for the record may create issues on appeal.

ABC staff notes that other agencies have been exempted from the stenographic reporting provisions as contained in this bill.

Purpose of the bill. The author states this bill is a sensible change to the law that will ensure efficiency in administrative hearing record keeping and will protect the identity of undercover ABC peace officers and minors by also prohibiting video recording of the hearing. AB 1285 would allow ABC to utilize an audio recording as the record of administrative hearings. It would also create a record of proceedings before the ABC Appeals Board.

The author further states that efficiency is an important part of government, and when certain procedures are out of date and do not reflect current technology or practices, we have an obligation to update them for the benefit of everyone. Privacy is also an important liberty and right, and protecting the privacy of minors and undercover police officers is essential to any investigation or court hearing. AB 1285 will promote efficiency and privacy in the administrative hearing process of the Act.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

None on file

Analysis Prepared by: Eric Johnson / G.O. / (916) 319-2531