ABCs of ABC License Defense (Part II)
This is the second and final post in the “ABCs of ABC License Defense” series. In the first post, the basic events and procedures in an ABC proceeding leading up to a hearing were explained. This post picks up where the last one left off: the hearing on an ABC accusation.What Should I Expect at a Hearing?
The licensee must timely request a hearing on the Accusation. To be timely, the licensee must submit a written Notice of Defense to the ABC Department within 15 days from the date the Accusation was served on the licensee.
Once the Notice is submitted to the ABC Department, a hearing will be scheduled at the local district office. For example, if the licensed premises is located in Bellflower or Norwalk, California, the hearing will be held in Cerritos, California.
At the hearing, the licensee should be prepared to present its case. While a hearing on an ABC accusation is informal compared to a civil trial, there are rules of evidence that must be followed. The hearing on an ABC accusation also follows many of the same trial procedures as civil court. Attorneys for the Department of Alcoholic Beverage Control will call witnesses and present other evidence at the hearing. The licensee must, among other things, cross-examine the Department’s witnesses, such as the agent who was involved with the investigation and the minor to whom the alcohol was allegedly sold; object to documents that the Department offers into evidence; present its own witnesses or other evidence to disprove the Department’s case; and make an opening and closing statement. Neither the licensee nor the employee who is alleged to have sold alcohol to a minor is obligated to testify at the hearing.
After the hearing, Administrative Law Judge, who works for the ABC Department, will decide whether the licensee violated a law involving the liquor license and what penalty, if any, should be ordered.
A trial attorney with experience defending liquor licenses can assist licensees at an ABC hearing.What if I Lose at the Hearing?
If the ruling on the Accusation is unfavorable to the licensee, the licensee can appeal the decision. The first level of appeal is the Alcoholic Beverage Control Appeals Board. The Appeals Board reviews the final decisions of the ABC Department. When reviewing a decision, the Appeals Board will consider solely what is in the record; it will not consider any evidence from the licensee or the Department of Alcoholic Beverage Control that was not presented earlier. Significantly, any appeal will automatically stay, or stop, the imposition of any penalty; so, there will be no suspension or revocation of the liquor license until the Appeals Board issues a ruling.
The next level of appeal after the Alcoholic Beverage Control Appeals Board is a judicial review by the Court of Appeals. And after the Court of Appeals is an appeal to the California Supreme Court. Whether the Appeals Court or Supreme Court hear a licensee’s appeal is at the court’s discretion.Is an ABC Proceeding a Criminal Case?
No. By definition, an ABC proceeding is administrative. The ABC Department has authority to license and regulate the sale of alcoholic beverages, including suspending or revoking a liquor license. It does not have authority to prosecute criminal liability against the licensee.
However, violation of an ABC law could lead to criminal liability, prosecuted by a district or city attorney in the Superior Court of California. A licensee, or employee of a licensee, who sells, or causes to be sold, alcohol to a minor may be charged with a misdemeanor. (California Business & Professions Code § 25658.) The criminal charge may arise out of the same incidents underlying the Accusation of the ABC.
If your business or employee has been cited by the California Department of Alcoholic Beverage Control or a local District Attorney’s or City Attorney’s office for an ABC violation, contact Lakewood ABC License Defense Law Firm Yash Law Group.