Chapter 8.03
ALCOHOLIC BEVERAGE RETAIL OUTLET NUISANCE ABATEMENT PROGRAM
Sections:
8.03.050 Prohibited activities.
8.03.070 Creation of program—Operation and inspection.
8.03.090 Local certification of responsibility for existing outlets.
8.03.110 Local certification of responsibility for new outlets.
8.03.130 Payment of certification fee.
8.03.160 Denial, suspension, or revocation of the local certification of responsibility.
8.03.170 Referral to Board of Supervisors for filing of accusation.
8.03.010 Purposes.
(A) This chapter shall be known as the “Alcoholic Beverage Retail Outlet Nuisance Abatement Program Ordinance.” This chapter (1) creates the alcoholic beverage retail outlet nuisance abatement program; (2) requires local certification for all alcoholic beverage retail outlets based on adherence to performance standards set forth in this chapter; (3) establishes performance standards and an enforcement process to review violations of those standards in order to protect the general health, safety, and welfare of the residents of the County and to prevent public nuisances associated with alcoholic beverage retail outlets; and (4) creates a financing mechanism to pay for the costs directly related to program operations.
(B) The County has adopted the regulations described in this chapter for the following purposes:
(1) To protect residential, commercial, industrial, civic and institutional areas and minimize the adverse impacts of public nuisances associated with alcoholic beverage retail outlets;
(2) To provide mechanisms to address problems often associated with the public consumption of alcoholic beverages such as litter, loitering, graffiti, unruly behavior, violence and escalated noise levels, and ensure that alcoholic beverage retail outlets are not the source of public nuisances in the community;
(3) To provide for properly maintained alcoholic beverage retail outlets so that the negative impacts generated by them are not harmful to the surrounding environment in any way;
(4) To monitor locally certified alcoholic beverage retail outlets to ensure they do not substantially change in mode or character of operation;
(5) To reimburse the County of Santa Cruz for the reasonable costs associated with providing specific services and products to alcoholic beverage retail outlets and issuing local certifications, performing investigations, inspections, and audits, and enforcing and adjudicating the local certification process and the regulations created herein; and
(6) To prohibit the use of any fees collected pursuant to this chapter for purposes unrelated to the program.
(C) This chapter is not intended to act as a zoning ordinance and it is not intended to regulate the actual sale of alcoholic beverages. Instead, it is intended to act as a permissible nuisance regulation ordinance consistent with the principles outlined in City of Oakland v. Superior Court (1996) 45 Cal. App. 4th 740 and Korean Am. Legal Advocacy Foundation v. City of Los Angeles (1994) 23 Cal. App. 4th 376. [Ord. 5304 § 13, 2019; Ord. 5261 § 1, 2017].
8.03.030 Definitions.
As used in this chapter, the following words and phrases shall have the meanings set forth below:
(A) “Alcoholic beverage” means alcohol, spirits, liquor, wine, beer, alcopops, and any liquid or solid containing alcohol, spirits, wine, or beer, that contains one-half of one percent or more of alcohol by volume and that is fit for consumption as a beverage either alone or when diluted, mixed, or combined with other substances, the sale of which requires a license from the California Department of Alcoholic Beverage Control.
(B) “Alcoholic beverage retail outlet” or “outlet” means a venue where alcoholic beverage sales activity occurs. Alcoholic beverage retail outlets include but are not limited to the following recognized types of outlets if alcoholic beverage sales occur: liquor stores; beer and wine stores; convenience markets; neighborhood specialty food markets; grocery stores; wine shops and tasting locations; service stations; taverns; clubs; cocktail lounges, ballrooms, cabarets, dance bars, piano bars; billiard or game parlors, bowling alleys; nightclubs and cafes; dance halls; bars; restaurants with bars; full-service restaurants; and fast food outlets.
(C) “Alcoholic beverage retail outlet activity” or “activity” means the retail sale of alcoholic beverages.
(D) “Alcoholic beverage retail outlet nuisance abatement program” or “program” means the program created by this chapter and more fully described in SCCC 8.03.070, under which the County will provide alcoholic beverage retail outlets with education on State and local laws, including this ordinance, issue the local certification authorized under this chapter, and enforce the provisions of this chapter.
(E) “Alcohol Compliance Officer” or “ACO” means the individual assigned to manage and implement the provisions of this chapter.
(F) “California Department of Alcoholic Beverage Control” or “ABC” refers to the department of the State of California empowered to act pursuant to Article 20, Section 22, of the California Constitution and authorized to administer the provisions of the California Alcoholic Beverage Control Act.
(G) “Certification fee” means the levy imposed on an alcoholic beverage retail outlet under the provisions of this chapter to reimburse the County for (1) the specific government services or products provided directly to the fee payer under this chapter that are not provided to those not charged, and which do not exceed the reasonable costs to the County of providing the services or products, and/or (2) the reasonable regulatory costs to the County of issuing local certification, providing education, performing investigations, inspections, and audits, and the administrative enforcement and adjudication of the regulations set forth herein.
(H) “Condition of approval” means a requirement that must be carried out by a new outlet in order to obtain and maintain a local certification of responsibility.
(I) “Existing outlet” means an outlet that is engaging in activity on the date this chapter goes into effect.
(J) “Financial interest” means any direct or indirect interest in the management, operation, ownership, profits or revenue (gross or net) of an alcoholic beverage retail outlet. A “financial interest” means a monetary investment in an alcoholic beverage retail outlet, including any premises or business enterprises directly related to it.
(K) “Hearing Officer” means an Administrative Hearing Officer, as provided for in SCCC 8.03.150(C).
(L) “Law enforcement call for service” means any instance in which law enforcement personnel is contacted to investigate an alleged violation of law with regard to an alcoholic beverage retail outlet activity.
(M) “License” means the license issued to an alcoholic beverage retail outlet, or a person operating an outlet, by the ABC to sell alcoholic beverages pursuant to Division 9 of the California Business and Professions Code.
(N) “Licensee” means an alcoholic beverage retail outlet, including a person owning and/or operating an outlet, which holds a license issued by the ABC to sell alcoholic beverages.
(O) “Local certification of responsibility” or “certification” is the documented official acknowledgement that an alcoholic beverage retail outlet is intending and attempting to comply with the performance standards set forth in this chapter.
(P) “New outlet” means an outlet that seeks the ability to engage in activity after the date this chapter is enacted (including an existing outlet that loses its certification of responsibility and seeks to obtain a new certification per the terms of this chapter).
(Q) “Notice of determination” means the written notice to an outlet from the ACO documenting a decision to suspend or revoke the local certification of responsibility.
(R) “Off-sale activity” means sales of alcoholic beverages for consumption off the premises where sold.
(S) “On-sale activity” means sales of alcoholic beverages for consumption on the premises where sold.
(T) “Performance standards” means the regulations set forth in SCCC 8.03.070(E).
(U) “Premises” means the actual space within a building devoted to alcoholic beverage sales.
(V) “Training requirements” means the regulations set forth in SCCC 8.03.070(E)(5). [Ord. 5304 § 13, 2019; Ord. 5261 § 1, 2017].
8.03.050 Prohibited activities.
It is unlawful, and shall constitute a public nuisance, for an alcoholic beverage retail outlet to operate without the local certification of responsibility required by this chapter. It is also unlawful, and shall constitute a public nuisance, for an alcoholic beverage retail outlet to violate any of the performance standards set forth in this chapter.
This chapter does not authorize alcoholic beverage retail outlet activity in any location where it is not otherwise allowed or permitted under the applicable zoning district regulations and the County’s General Plan.
The provisions of this chapter are intended to regulate public nuisances associated with alcohol sales. This chapter is not intended to replace or usurp any powers vested in the California Department of Alcoholic Beverage Control or the State of California, or regulate in any area where the County is preempted from doing so. [Ord. 5261 § 1, 2017].
8.03.070 Creation of program—Operation and inspection.
(A) There is hereby created the alcoholic beverage retail outlet nuisance abatement program. The Santa Cruz County Sheriff shall be given the opportunity to operate and manage the program, and will have full responsibility for all aspects of the program for as long as the Sheriff agrees to maintain such responsibility. If the Sheriff declines to accept the opportunity to manage the program or seeks to divest responsibility over the program after accepting it, the County Administrative Officer, or a department selected and supervised by the County Administrative Officer, shall operate and manage the program.
(B) The Sheriff (or, if applicable, the County Administrative Officer or designated department) shall appoint an Alcohol Compliance Officer (ACO) to oversee the program.
(C) ACO’s Responsibilities.
(1) The ACO or their designees shall conduct investigations and issue the certifications required by this chapter; educate outlets regarding such issues as underage drinking, sales to minors, local licensing standards and requirements, and ABC rules and regulations; ensure that outlets understand and are in compliance with the performance standards set forth herein; enforce the regulations set forth in this chapter with regard to noncompliant outlets; and represent the County in any appeals or enforcement actions that result from the actions authorized by this chapter.
(2) The ACO shall provide regular reports to the community on administration, monitoring, enforcement, and compliance with this chapter. The ACO may also engage in additional activities that directly further the purpose of education and outreach with regard to this ordinance.
(D) Regulatory Investigations, Inspections and Audits.
(1) The ACO shall develop and implement regulatory investigations, inspections, and audits to ensure compliance with the provisions of this chapter. Inspections, investigations, and audits shall include but not be limited to scheduled and unannounced visits to an outlet by the ACO or their designees, including but not limited to uniformed or nonuniformed law enforcement officers, to inspect the operational practices of the outlet and to determine compliance with the performance standards set forth in this chapter and with State laws prohibiting alcohol service to minors or obviously intoxicated persons.
(2) Outlets shall be inspected at least once per calendar year. The ACO shall have the discretion to determine the specific types of inspections, investigations, and audits to be conducted. Implementation of the inspections, investigations, and audits shall begin within one year of adoption of this chapter.
(3) The ACO or their designees may inspect any outlet that is the subject of a law enforcement call for service for the purposes of determining whether the outlet is out of compliance with any provision of this chapter.
(4) If violations of the performance standards set forth herein are observed during an inspection, investigation or audit, the inspector may issue the outlet a citation specifying the violation and providing a schedule for corrective action, and may require the payment of a $500.00 fine as set forth in Section 8.03.150(A). The inspector may also serve the outlet with a notice to abate any ongoing conditions that violate this chapter. A notice to abate will be provided via both U.S. first class mail to the owner of the outlet and the property owner, if not the same person or entity. The notice to abate shall notify the outlet owner and property owner of the violations recorded by the inspector and that continued noncompliance may result in penalties set forth in this chapter. The notice to abate shall set forth a reasonable period of not less than 30 calendar days within which to abate any violations.
(5) At the end of the abatement period, the inspection official may conduct a reinspection visit. If the inspection official determines that the violations have not been abated within the prescribed abatement period, the inspection official shall determine that the outlet is in persistent violation of the performance standards and the ACO shall determine whether to issue additional citations, or suspend or revoke the outlet’s local certification of responsibility.
(E) Performance Standards. The purpose of these performance standards is to control dangerous or objectionable environmental effects of alcoholic beverage retail outlet activities. The following performance standards shall apply to all outlets that hold a local certification of responsibility, and an outlet will only maintain its certification as long as it conforms to these performance standards.
(1) An outlet must not engage in activity that jeopardizes, endangers, or results in adverse effects to the health, peace, or safety of persons residing or working in the surrounding area.
(2) An outlet must not engage in activity that results in public nuisances within the outlet or in close proximity to the outlet, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, sale of alcohol to minors, drinking in public, open containers of alcohol on or close to the outlet premises stemming from off-sale activity, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises (especially in the late night or early morning hours), traffic violations, curfew violations, lewd conduct, or police detentions and arrests.
(3) An outlet must comply with all provisions of local, State, and Federal laws, regulations and orders (including orders issued by the ABC). This includes timely payment of the certification fee and any taxes owed to any public entity.
(4) An outlet must comply with any conditions of approval associated with its local certification.
(5) An outlet must comply with the following training requirements:
(a) All persons who either own or are employed in the operation of an outlet, and who are personally engaged in the sale or service of alcoholic beverages or who supervise or otherwise control the sale or service of such beverages shall (i) be required to undergo a certified training program in responsible methods and skills for selling and serving alcoholic beverages, within six months of the effective date of this chapter or, if employed after the effective date of this chapter, within six months of employment; and (ii) review and become familiar with the educational materials concerning the program that are circulated by the ACO.
(b) In order to meet the training requirements set forth above, a certified training program must meet the standards of the California Coordinating Council on Responsible Beverage Sales or other certifying/licensing body designated by the State of California.
(c) Outlets shall keep sufficient records of accomplished training to allow the ACO to conduct appropriate audits. [Ord. 5304 § 13, 2019; Ord. 5261 § 1, 2017].
8.03.090 Local certification of responsibility for existing outlets.
(A) Every existing outlet within the unincorporated area of the County on the effective date of this chapter will be presented with a local certification of responsibility. The occurrence of any of the following shall result in a revocation of an existing outlet’s certification and the outlet shall be required to apply for and obtain a new certification in the manner provided by Section 8.03.110 before continuing to engage in activity:
(1) An existing outlet changes its activity such that ABC requires a different type of license.
(2) There is a substantial change in the mode or character of an outlet’s operation. For purposes of this section, “substantial change in the mode or character of operation” shall include, but not be limited to, the following:
(a) Significant or repeated violation of the performance standards set forth herein.
(b) A pattern of conduct in violation of other laws or regulations.
(c) An extension of operating hours.
(d) The addition of entertainment, or a change in the type of entertainment provided.
(e) Expansion of a customer service area primarily devoted to the sale or service of alcoholic beverages and/or increase in the number of customer seats primarily devoted to the sale or service of alcoholic beverages.
(f) Reinstatement of alcohol sales after the ABC has either revoked or suspended the outlet’s license for a period greater than 30 days.
(g) The outlet voluntarily discontinues active operation for more than 90 consecutive days or ceases to be licensed by the ABC.
(B) Notification to Outlets Regarding Certification. The ACO shall notify the owner of each existing outlet, and the owner of the real property containing the outlet (if not the same as the person or entity operating the outlet) that the outlet has received the local certification of responsibility. The notice shall be sent by U.S. first class mail and shall include a copy of the performance standards in SCCC 8.03.070(E) with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the outlet for public review. The notice shall also (1) be accompanied by a copy of this chapter; and (2) communicate the requirement that the outlet comply with all requirements of this chapter. Failure of any person to receive notice given pursuant to this section shall not affect the validity of the local certification of responsibility.
(C) If a revocation of local certification occurs pursuant to subsection (A) of this section, above, the outlet may avail itself of the appeal procedures set forth in Section 8.03.150(C). A failure to timely follow the appeal procedures constitutes a failure to exhaust administrative remedies and the ACO’s decision shall be final. [Ord. 5304 § 13, 2019; Ord. 5261 § 1, 2017].
8.03.110 Local certification of responsibility for new outlets.
(A) New outlets must file a certification application as set forth in subsection (C) of this section and obtain a local certification of responsibility before engaging in any alcoholic beverage retail sales activity.
(B) Application for Local Certification of Responsibility.
(1) Any person, association, partnership, corporation, or other entity desiring to open a new outlet shall file an application for a local certification of responsibility with the ACO on a form provided by the ACO. The application shall be accompanied by a nonrefundable application processing fee in the amount established by the Board of Supervisors.
(2) Contents of Application. The application for a local certification shall contain the following information:
(a) The name, address, and telephone number of the applicant. If the applicant is a corporation, the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible management officer.
(b) The name, address, and telephone number of each lender or shareholder with a five percent or more financial interest in the proposed business or any other person to whom a share or percentage of the income of the new outlet is to be paid.
(c) The name, address, and telephone number of the person who shall manage and operate the new outlet for which the certification is requested.
(d) The name, address, and telephone number of all existing schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship, hospitals, alcohol or other substance abuse recovery or treatment facilities, or County social service offices within 600 feet of the proposed new outlet.
(e) The name, address, and telephone number of all other outlets within a 600-foot radius of the proposed new outlet and a 1,000-foot radius of the proposed new outlet.
(f) The name, address, and telephone number of a person authorized to accept service of legal notices.
(g) The proposed business name of the new outlet and a description of all operating aspects of the proposed business.
(h) The type of ABC license the applicant is seeking for the new outlet.
(i) The street address of the proposed new outlet and the assessor parcel number for the property.
(j) A plot plan for the property depicting the location of the building housing the new outlet on the property and all existing and proposed parking, exterior lighting, signage, and landscaping, trash enclosures, waiting or queuing areas.
(k) Any other information reasonably necessary to accomplish the purposes of this chapter as determined by the ACO.
(3) Referral to Other County Departments and Agencies. The ACO may refer the application to other County departments and agencies to determine whether the premises where the new outlet will be located complies with the County’s building, health, zoning and fire ordinances or other applicable ordinances or laws. County departments may conduct an inspection of the proposed new outlet’s premises to determine compliance with the ordinances and other laws they administer. County departments may prepare reports summarizing their inspections and recommending whether to approve or deny the application based on their inspections.
(C) Action on Certification Application.
(1) The ACO shall approve issuance of a certification of responsibility to allow a new outlet to open for business upon making the following findings:
(a) A finding that the new outlet’s activity will not aggravate existing problems in the neighborhood created by the sale of alcohol such as loitering, public drunkenness, alcoholic beverage sales to minors, noise and littering;
(b) A finding that the proposed new outlet will not detrimentally affect nearby neighborhoods considering the distance of the new outlet to residential buildings, schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship, hospitals, alcohol or other substance abuse recovery or treatment facilities, county social service offices, or other outlets;
(c) A finding that the proposed new outlet is not located in what has been determined to be a high crime area, or where a disproportionate number of police service calls occur;
(d) A finding that the proposed new outlet has agreed to operate pursuant to any conditions of approval required under subsection (D) of this section;
(e) A finding of “public convenience and necessity” (California Business and Professions Code Section 23958.4(b)(2)), if the activity will be located in an area that has been determined by ABC to have an undue concentration of licenses as defined in Business and Professions Code Section 23958.4(a); and
(f) A finding that the proposed new outlet has agreed to the conditions of approval imposed by the ACO.
(2) If an application for a local certification submitted under this section is denied, the ACO shall notify the applicant of the denial and the reason(s) for the denial. If an application is denied, the outlet may avail itself of the appeal procedures set forth in SCCC 8.03.150(C). A failure to timely follow the appeal procedures constitutes a failure to exhaust administrative remedies and the ACO’s decision shall be final.
(D) Conditions of Approval for New Outlets. In order to provide a new outlet with a local certification of responsibility, the ACO may impose reasonable conditions of approval, including but not limited to the following subjects:
(1) Appropriate Lighting. Depending on location, lighting may be required during all hours of darkness. Any broken or burned out lights may be required to be replaced within 72 hours.
(2) Hours of Operation. An outlet’s hours of operation may be restricted to certain hours of each day of the week.
(3) Paper or Plastic Cups. The sale or distribution to the customer of single paper or plastic cups in association with off-sale activity may be prohibited.
(4) Signs. The following signs may be required to be prominently posted in a readily visible manner in English, Spanish, and the predominant language of the patrons:
(a) “California State Law prohibits the sale of alcoholic beverages to persons under twenty-one years of age”;
(b) “No Loitering or Public Drinking on Premises”; and
(c) “It is illegal to possess an open container of alcohol in the vicinity of this Outlet”.
(5) Presentation of Documents. A copy of the conditions of approval and the ABC license may be required to be kept on the premises and presented to the ACO or their designee, or law enforcement officials, upon request.
(6) Security Cameras. At least two 24-hour time-lapse security cameras may be required to be installed and properly maintained on the exterior of the building at locations recommended by the ACO. An outlet may be required to report all criminal and suspicious activities recorded on this surveillance equipment to local law enforcement. To the extent allowed by law, the outlet’s operators may be required to provide any tapes or other recording media from the security cameras to the ACO or other law enforcement officials.
(7) Employee Age. Employees may be required to be at least 21 years of age to sell and serve alcohol.
(8) Special Requirements for Brewpubs.
(a) Brewpubs may be required to make food available at all hours that the outlet is open for business; however, the kitchen need not be continually open or staffed.
(b) Additional security measures such as security guards and burglar alarm systems may be required.
(9) Special Requirements for Outlets Engaging in On-Sale Activity.
(a) Off-sale activity may be prohibited at outlets that engage in on-sale activity.
(b) Additional security measures such as security guards and burglar alarm systems may be required at outlets that engage in on-sale activity.
(E) Notification to New Outlets Regarding Certification. The ACO shall notify the owner of each new outlet, and also, if not the same, the owner of the real property containing the new outlet (based on the information contained in the County’s property tax assessment records) that the outlet has received the local certification of responsibility. The notice shall be sent by U.S. first class mail and shall include a copy of the performance standards in SCCC 8.03.070(E) with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the outlet for public review. The notice shall also (1) be accompanied by a copy of this chapter; (2) be accompanied by any relevant conditions of approval; and (3) communicate the requirement that the outlet must comply with all requirements of this chapter, including any relevant conditions of approval. Failure of any person to receive notice given pursuant to this section shall not affect the validity of the local certification of responsibility.
(F) Renewal of Certification of Responsibility for New Outlets. Each new outlet shall submit an application for renewal of its certification of responsibility prior to the beginning of each calendar year by a date determined by the ACO. The application shall include any information regarding changes in the operations of the outlet, the number of employees who will be attending responsible beverage sales trainings, and any other information determined by the ACO. [Ord. 5304 § 13, 2019; Ord. 5261 § 1, 2017].
8.03.130 Payment of certification fee.
(A) Each outlet shall pay an annual certification fee to reimburse the County of Santa Cruz for the reasonable regulatory costs of issuing certifications, performing investigations, inspections, audits, appeals and for providing relevant education services and materials to outlets, and for administering, enforcing, and adjudicating the regulations that comprise the program.
(B) The certification fee will be calculated and assessed based on the actual costs necessary to operate and administer the program, including the anticipated costs of conducting inspections, investigations, and audits, enforcing the performance standards, recordkeeping, and the time and materials associated with education efforts. The certification fee shall be added to the County’s Unified Fee Schedule and updated as needed. [Ord. 5304 § 13, 2019; Ord. 5261 § 1, 2017].
8.03.150 Citations.
(A) A citation issued pursuant to SCCC 8.03.070(D)(4) shall result in a fine of $500.00.
(B) Citations may be issued by the ACO and their designees, as well as any Santa Cruz County Deputy Sheriff.
(C) All recovered fines shall be placed in a special fund to be used to cover the costs of alcohol-related law enforcement activities. [Ord. 5304 § 13, 2019; Ord. 5261 § 1, 2017].
8.03.160 Denial, suspension, or revocation of the local certification of responsibility.
(A) If the ACO determines that an outlet is engaging in activity that constitutes a public nuisance, the ACO may modify the terms of any conditions of approval to the extent authorized under this chapter, and may suspend or revoke any local certification of responsibility. Such a determination may be made if the ACO determines that an outlet is responsible for the existence of any of the following conditions, all of which are hereby declared a public nuisance:
(1) Any condition which has caused or resulted in repeated activities which are harmful to the health, peace or safety of the public, including, but not limited to, disturbances of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, loitering, excessive littering, illegal parking, excessively loud noises (especially in the late night or early morning hours), traffic violations or traffic safety based upon last-drink statistics, curfew violations, lewd conduct, detention and arrests, alcohol sales to minors or inebriates, or other conduct detrimental to public health and safety; or
(2) Any condition which violates any of the requirements, conditions, or prohibitions contained in this chapter or any other local, State, or Federal law where the violation creates a public nuisance.
(B) In determining whether to suspend or revoke a certification, as well as the appropriate amount of time for any suspension, the ACO shall use for reference the Penalty Guidelines used by ABC set forth at Title 4, California Code of Regulations, Section 144.
(C) The ACO may deny, suspend or revoke a local certification, pursuant to the terms of this chapter, by delivering a notice of determination to the owner of the outlet and the owner of the real property containing the outlet (if different from the person or entity operating the outlet). The notice of determination shall notify the outlet of the basis for the notice of determination and inform the outlet of its right to appeal the ACO’s decision to the Hearing Officer as provided in SCCC 8.03.165.
(D) During any period of suspension or revocation, the outlet shall remove all alcoholic beverage products from public view, and the outlet is prohibited from engaging in any alcohol beverage retail sales activity.
(E) A violation by a certification holder at one location shall not be construed as a violation applying to another location operated by the same certification holder, nor shall violations by a prior certification holder be accumulated against a subsequent certification holder at the same location.
(F) Any outlet that wishes to challenge a decision of the ACO to deny, suspend, or revoke a local certification of responsibility may appeal the notice of determination to the Hearing Officer within 30 days after the date the notice of determination is issued. [Ord. 5304 § 14, 2019].
8.03.165 Appeal procedures.
(A) A person served with a notice of determination to deny, suspend, or revoke a local certification of responsibility, or modify the terms of any conditions of approval associated with a local certification, may appeal that determination by filing a request in writing with the ACO within 30 calendar days of service of the notice. Failure to timely file an appeal shall be deemed a waiver of the right to challenge the determination and a failure to exhaust administrative remedies. The County Agency responsible for the alcoholic beverage retail outlet nuisance abatement program shall provide a Hearing Officer to hear appeals, review evidence, prepare a record of the proceedings, and issue orders with regard to violations.
(B) Within 20 days after receiving a timely written request for a hearing, the Hearing Officer shall schedule the appeal hearing.
(1) The Hearing Officer shall send a notice of hearing to the appellant containing notice of the time, date and location of the hearing to be held before the Hearing Officer. The Hearing Officer shall deliver the notice of hearing by personal service or by U.S. first class mail.
(2) The hearing shall be noticed to the general public by posting notices within 300 feet of the parcel containing the subject outlet. Notice shall also be given by mail or delivery to all persons shown on the last available equalized assessment roll as owning real property in the County of Santa Cruz, and all persons residing, within 300 feet of the subject property. All such notices shall be given or posted not less than 21 days prior to the date set for the hearing. Fees for notification shall be consistent with those approved for notification in the Unified Fee Schedule and shall be paid by the outlet. A notice of the hearing, sized 20 inches by 30 inches, provided by the ACO, shall also be posted in a visible location at the outlet (preferably in a window facing the street; if such a window is not present, then posted on the exterior of the front of the building). All notices shall advertise the time, date, purpose and location of the public hearing.
(C) Specific Hearing Procedures.
(1) Burden of Proof. At the administrative hearing, the ACO has the burden of proving by a preponderance of the evidence that the alleged violation(s) supporting the administrative action occurred.
(2) Continuances. The Hearing Officer may continue the hearing as determined appropriate by the Hearing Officer.
(3) Failure to Appear. The failure to appear at the administrative hearing shall constitute an abandonment of the appeal and a failure to exhaust administrative remedies. In the event of a failure to appear, the ACO’s decision shall be the final decision issued in the matter.
(4) Administrative Interpretations. In conducting the hearing, the Hearing Officer shall consider the previously established interpretation of an ordinance provision by the department charged with its enforcement unless that interpretation is shown to be clearly erroneous or unauthorized.
(5) Hearing Officer Decision. Within 10 calendar days after the close of the hearing, the Hearing Officer shall issue a written decision, including a statement of the basis for the decision, which determines whether the outlet has committed, maintained, or permitted the alleged violation(s). The decision shall determine and specifically state whether the decision set forth in the notice of determination shall be upheld or modified. The Hearing Officer’s written decision shall constitute the final administrative decision of the County. [Ord. 5304 § 14, 2019].
8.03.170 Referral to Board of Supervisors for filing of accusation.
Notwithstanding any other provision of this chapter, if at any time the ACO believes it is appropriate for an action to be taken against an outlet’s State license to sell alcoholic beverages, including but not limited to suspension or revocation, the ACO shall notify the Board of Supervisors and request that the Board authorize the filing of an accusation against that outlet pursuant to California Business and Professions Code Section 24203. In requesting such action, the ACO shall notify the Board of Supervisors whether the public safety, health, or welfare requires an immediate hearing of the accusation such that the hearing must be held within 60 days after the accusation is filed with the California Department of Alcoholic Beverage Control. [Ord. 5304 § 13, 2019; Ord. 5261 § 1, 2017].
8.03.190 Severability.
If any section, subsection, sentence, clause, phrase, or word of this ordinance is for any reason held to be invalid, the validity of the remaining portions of this ordinance shall not be affected. [Ord. 5261 § 1, 2017].