Glossary of Commonly Used Terms
ABC or DEPARTMENT
An abbreviated designation of the Department of Alcoholic Beverage Control which has the duty under the law to regulate the importation, manufacture, sales, and consumption of alcoholic beverages.
ABC ACT (ALCOHOLIC BEVERAGE CONTROL ACT)
Statutes found in Business and Professions Codes (§23000 to 25762) which set forth the powers and duties of the Department, concerning most aspects of importation, manufacture, distribution, sales, and consumption of alcoholic beverages in California.
The Act sets forth the statutes under which the Appeals Board operates.
ABUSE (OF DISCRETION)
The standard of review used by the Appeals Board to determine whether the Department abused its discretion in suspending a license. Other terms, such as “arbitrary” or “capricious,” are often used.
A pleading filed by the Department against a licensee (a manufacturer, wholesaler, or retailer) alleging a violation of a statute, condition on a license, or a regulation.
ADMINISTRATIVE LAW JUDGE (ALJ)
A judge who sits for the Department and receives evidence (testimony and documents) during an administrative hearing or other proceeding before the Department. The judge, commonly called an Administrative Law Judge, renders a proposed decision which the Department may accept or reject.
AFFIRMING THE DECISION
The Appeals Board agrees with the decision of the Department.
A term which means that the Department has found facts during its investigation or at the hearing which causes the Department to increase a penalty over the standard penalty imposed for a violation.
A beverage which contains one-half of one percent or more of alcohol by volume.
A party to the original proceedings before the Department who appeals the Decision to the Appeals Board.
A person who has petitioned the Department for a license or the transfer of a license to a designated location for the right to sell or allow consumption of alcoholic beverages.
ARBITRARY OR CAPRICIOUS
Terms sometimes used by the Appeals Board in considering whether the Department has acted in a manner which is unreasonable.
Papers filed by both the appellant and the Department and submitted to the Appeals Board before a decision is made. In the appellant’s case, a brief should inform the Appeals Board why they believe the Department’s decision is incorrect. The Department’s brief should inform the Appeals Board why they believe their decision is correct. The appellant can submit a closing brief to the Appeals Board addressing the Department’s arguments.
BURDEN OF PROOF
A term of law meaning that the person who advocates a particular issue has the burden of proving that issue. If the Department files an accusation against a licensee, it has the burden to prove that the allegations are true. This burden may shift in matters such as in an application for a license; if the Department has denied the application, its burden is to prove that the facts are such that the license should be legally denied. If the issue is nearby residents, after the Department sustains its burden, the burden shifts to the applicant to prove the issuance of the license will not disturb the quiet enjoyment of the nearby residents.
The listing of cases to be heard by the Appeals Board during oral arguments.
CERTIFICATE OF DECISION
If the Department accepts a proposed decision of an ALJ, the Department attaches a Certificate of Decision and upon mailing to all parties, the proposed decision becomes the decision of the Department.
A license which has been issued with certain conditions imposed which restricts the use of the license in some manner. Conditions can limit the hours of operation, the number of containers that need be sold, etc.
An appellant or the Department may request a continuance (or a delay) of their hearing date if good cause is shown.
DECISION OF THE DEPARTMENT AFTER APPEALS BOARD DECISION
A decision by the Department rendered after an appeal that has either been remanded or returned to the Department for further action. This decision may also be appealed.
DECISION OF THE DEPARTMENT
A written document by the Department which imposes discipline on a licensee; grants or denies an application for a license; or sustains or dismisses a protest by a person who filed a protest against the issuance of a license.
DECISION OF THE DEPARTMENT UNDER GOVERNMENT CODE §11517, SUBDIVISION (c)
Where the Department has rejected the proposed decision of an ALJ and issues its own decision which becomes the final decision.
Law enforcement or the Department are authorized to send minors (individuals under 20 years of age) into a licensed premise to attempt to purchase alcoholic beverages. The minors must be under the constant supervision of a law enforcement officer or Department investigators.
A hearing before the Department where the responding licensee or license applicant fails to appear at a hearing after proper notice has been given of the date, time, and place of the hearing.
DETERMINATION OF ISSUES
A section of the Department’s decision which are its ultimate conclusions.
A term used where the Department is allowed to decide between two solutions to a problem. The Appeals Board may not second-guess or substitute its views for Department unless the Department’s discretion was exercised in an abusive or arbitrarily manner.
A cancelled or withdrawn appeal. The Appeals Board may dismiss an appeal for lack of jurisdiction, lack of paperwork, late payment, or a missed deadline. An appellant may withdraw their own appeal by writing to the Appeals Board.
A term used for liquor or hard liquor, other than wine or beer.
FINAL DECISION OF THE DEPARTMENT
A Department decision is final when it is certified and sent to all the parties. Only final decisions of the Department may be appealed to the Appeals Board. Notwithstanding that a decision is “final,” during an appeal, the operational effect of the decision is stopped or “stayed.”
FINDINGS OF THE DEPARTMENT
The Department’s factual determinations in a decision which are the basis for the Determination of Issues. Findings must be supported by substantial evidence.
A sum of money paid in lieu of a suspension. Commonly called POICs, or Petitions for Offers in Compromise. Decisions of the Department call for suspensions of a license only. After the matter is concluded (either the decision is final, the appeal is completed, stipulation and waiver signed, etc.), the Department may permit licensees to pay a fine instead of serving a suspension.
HOURS OF SALE
California law prohibits all sales or consumption of alcoholic beverages from the hours of 2 a.m. to 6 a.m. of the same day. However, conditions on a license may shrink time in which sales and consumption are allowed.
IMPUTATION OF LIABILITY
In most circumstances, a licensee is responsible for the criminal or unlawful acts of an employee where the acts are committed on the premises. Depending on the type of unlawful act committed, the negligence of the licensee, if any, could create an aggravated or mitigated penalty.
The Department is authorized to permit persons to distribute alcoholic beverages in various ways. Such authorization is called a “license.”
Licenses issued by the Department are of different types: sales for consumption off the premises (convenience and liquor store type operations) or on the premises (bars, restaurants, and nightclubs). The ABC license types are listed on their website.
Under the ABC Act, the word “minor” refers to a person under 21 years of age.
A term which means that the Department has found facts during its investigation or at the hearing which causes the Department to decrease a penalty from the standard penalty imposed for a violation.
PERMIT (TO ALLOW)
The word can be used in the sense that a licensee allowed some violation to occur on the premises, such as employees illegally soliciting drinks from customers or employees selling alcoholic beverages to obviously intoxicated persons.
The usual wording for denoting a licensed operation’s physical location or plant. It is a specific place, set by boundaries and diagramed on forms of the Department.
PRIVILEGES OF A LICENSE
All licenses have certain privileges, and a license must be used within the privileges granted, such as allowing minors into an on-sale public eating place license (a restaurant) but not into an on-sale license (a bar).
PROPOSED DECISION OF THE ALJ
After an administrative hearing is concluded, the ALJ writes his or her opinion, which is submitted to the Department outlining the facts, findings, conclusions, and a resulting order. The Department may adopt that written opinion or reject it and render its own decision.
By law, any person may file a protest against the issuance of a license to an applicant or a particular location, and such protestant becomes a party in any litigation between the Department, the applicant, and the protestant. Being a party in the Department’s action, the protestant may appeal to the Appeals Board if the decision is contrary to the protestants’ cause, or if an applicant appeals, the protestant may respond in the appeal.
Some of the penalties imposed by the Department are stayed (e.g., 30 days suspension with 10 of those days stayed) for a probationary period. Also, a revocation of the license may be stayed upon certain conditions and terms. If violations occur during probation the stay is lifted, and the full penalty is imposed.
RECORD ON APPEAL
The full record of the proceedings before the matter is appealed to the Board. Such record usually contains the transcript of the hearing (trial), and the pertinent parts of the Department’s file (e.g., motions, correspondence, etc.). The Appeals Board may at any time request the Department to augment or add to the record.
The Appeals Board may affirm or reverse the decision of the Department, in whole or in part, including the penalty order. The statutes also allow the Appeals Board to remand the matter back to the Department to take further evidence where it is shown there is evidence the Department should consider. Where the decision of the Department is affirmed by the Appeals Board, but the penalty is excessive, the Appeals Board may remand to the Department for reconsideration. The Department may, under those circumstances, decrease the penalty or leave it as is. There is no statutory authority for the Board simply to remand.
A decision of the Appeals Board may reverse a Department’s decision, nullifying it so that it does not have any force or effect. The Department must change its action as to that licensee or appeal the decision of the Board to the California Court of Appeal.
REVOCATION OF A LICENSE
The Department may revoke a license where continued operation would be “contrary to public welfare or morals,” or as otherwise authorized by statute.
Both the Department and the Appeals Board have formulated rules that apply to their particular operations. The Board’s rules set forth the appeal process, such as the format for documents filed on appeal, the time allowed for oral arguments before the Board, and other concerns.
During an appeal, the operational effect of the ABC decision is stopped or “stayed.”
A legal term that means that enough evidence exists to reasonably support a particular fact or issue. In Appeals Board matters, if the Department’s finding of facts are supported by substantial evidence, the Board must sustain the decision even if another conclusion is equally as reasonable.
A license may be suspended for a violation of the law. This suspension prohibits the licensee from exercising the privileges of the license during the period of suspension. During this period, the Department posts large banner-type posters, which must not be removed except by Department personnel.
If protests have been filed in opposition to the issuance of a license, and the Department determines the issues raised by the protestants are valid, it sustains the protests and denies the applicant’s request for a license.
The word “violation” is used where a licensee has engaged in behavior in contravention to a state statute or Department regulation.