Chapter 6.104 — ALCOHOLIC BEVERAGE SALE REGULATIONS

The provisions of this chapter shall be known as the alcoholic beverage sale regulations.

(Ord. 2002-83 § 1 (part))

There exists in the unincorporated portion of Alameda County conditions associated with the sale of alcoholic beverages by establishments that are deleterious to the public health, safety, and general welfare, and constitute a public nuisance. The general purposes of the alcoholic beverage sale regulations are to protect and promote the public health, safety, comfort, convenience, prosperity, and general welfare in the unincorporated area by requiring that alcoholic beverage sale commercial activities comply with the performance standards of Section 6.104.060 of this chapter and to achieve the following objectives:

A.

To protect residential, commercial, industrial, and civic areas and minimize the adverse impacts of activities that are deleterious to the public health, safety and general welfare;

B.

To provide opportunities for alcoholic beverage sale commercial activities to operate in a mutually beneficial relationship to each other and to other commercial and civic services;

C.

To provide mechanisms to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels;

D.

To provide that alcoholic beverage sale commercial activities are not the source of undue public nuisances in the community; and

E.

To provide for properly maintained alcoholic beverage sale establishments so that negative impacts generated by these activities are not harmful to the surrounding environment in any way.

(Ord. 2002-83 § 1 (part))

A.

The alcoholic beverage sale regulations shall apply to the extent permissible under other laws, to all eating and drinking establishments, convenience stores, dance halls, liquor, beer and wine stores, neighborhood specialty food markets, retail sales establishments, and service stations within the unincorporated areas of the county that sell alcoholic beverages for on- or off-sale consumption; provided, these regulations shall not apply to wineries.

B.

Whenever any provision of the alcoholic beverage sale regulations and any other provision of law, whether set forth in these regulations, or in any other law, ordinance, or regulations of any kind, imposes overlapping or contradictory regulations, or contain restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in the alcoholic beverage sale regulations.

(Ord. 2002-83 § 1 (part))

"Alcoholic beverage" means alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirit, wine, or beer, which contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances, and sales of which requires a State Department of Alcoholic Beverage Control license.

"Alcoholic beverage sales commercial activity" means the retail sale, for on- or off-premises consumption, of liquor, beer, wine, or other alcoholic beverage.

"Alcoholic beverage sale establishment" means any eating and drinking establishment, convenience store, dance hall, liquor, beer and wine store, neighborhood specialty food market, retail sales establishment, or service station that sells alcoholic beverages for on- or off-sale consumption; with the exception of wineries.

Board of Zoning Adjustments. As established in the Administrative Code, Chapter 2.40.

"Condition of approval" means a requirement which must be carried out by the establishment in order to cure its violation of the performance standards of Section 6.104.060 and to ensure its compliance with those standards.

"Enforcement officer" means the Alameda County planning director or designee and the Alameda County sheriff or designee.

"Illegal activity" means an activity which has been finally determined to be in noncompliance with the performance standards in Section 6.104.060, or any other condition, standard, ordinance, regulation or statute.

"Performance standards" means regulations prescribed in the performance standards in Section 6.104.060 of this article.

"Premises" means the space devoted to alcoholic beverage sales, to include property legally associated with the establishment and parking lots.

Public Nuisance. As defined in Civil Code Sections 349 and 3480, and in Penal Code Section 370, as presently written or as subsequently amended.

(Ord. 2005-28 § 1 (part); Ord. 2002-83 § 1 (part))

All eating and drinking establishments, convenience stores, dance halls, liquor, beer and wine stores, neighborhood specialty food markets, retail sales establishments, and service stations selling alcoholic beverages for on- or off-sale consumption; provided, these regulations shall not apply to wineries. Each such establishment shall comply with the performance standards in Section 6.104.060 and all other applicable conditions, standards, ordinances, regulations and statutes.

(Ord. 2002-83 § 1 (part))

A.

The purpose of the performance standards is to control dangerous or objectionable environmental effects of alcoholic beverage sales commercial activities and to prevent such activities from becoming a public nuisance. These standards shall apply to all alcoholic beverage sale establishments described in Section 6.104.050.

B.

An alcoholic beverage sale establishment shall comply with the following performance standards. It shall assure:

1.

That it does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area;

2.

That it does not result in jeopardizing or endangering the public health or safety of persons residing or working in the surrounding area;

3.

That it does not result in repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance 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, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, police detentions and arrests and sales to minors;

4.

That it does not result in violations of this chapter, Title 12, or any other applicable provision of any other county, state, or federal regulation, ordinance or statute;

5.

That its upkeep and operating characteristics are compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood;

6.

That its owner(s), operator(s), licensee(s), server-supervisor(s), server(s) and all other employees that serve and/or sell alcoholic beverages receive responsible beverage service training no less frequently than biennially and within sixty (60) days of employment and no later than thirty (30) days after the effective date of this ordinance. To meet this requirement at least one individual described above shall receive training from and be certified by a responsible beverage service training program operated by the county of Alameda. The person certified as having completed such training program shall be responsible in turn for training the remaining owner(s), licensee(s), server-supervisor(s), server(s) and all other employees that serve and/or sell alcoholic beverages in the establishment. The person responsible for such training shall document in a form approved by the county that the remaining owner(s), licensee(s), server-supervisor(s), server(s) and employees shall have been trained to the standards of the county training program;

7.

That the person certified as having completed responsible beverage server training trains the remaining owner(s), licensee(s), server-supervisor(s), server(s) and all other employees of the establishment, documents such training on the approved county form, and submits the completed form to the enforcement officer by January 31st each year and at other times when requested by the enforcement officer.

(Ord. 2008-2 § 1 (part); Ord. 2005-28 § 1 (part); Ord. 2002-83 § 1 (part))

(Ord. No. 2010-2, § 1, 1-12-10)

A.

The enforcement officer shall notify the owner of each alcoholic beverage sale establishment, and also the property owner if not the same, of its obligations under this chapter.

B.

Such notice shall be sent via certified return receipt mail; shall include a copy of the performance standards of Section 6.104.060 with the requirement that these be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review, notification that the activity is required to comply with all of these same performance standards; and that the activity is required to comply with all other aspects of the alcoholic beverage sale regulations.

(Ord. 2002-83 § 1 (part))

A.

Purpose and Intent. The purpose and intent of this section is to impose a fee which shall provide for the enforcement and regulation of the performance standards and regulations for such establishments as set forth in this chapter and in Chapter 6.12 of the Alameda County Ordinance Code.

B.

Annual Alcohol Sales Education and Regulatory Fee. An annual alcohol sales education and regulatory fee is hereby established to recover all or a portion of the cost of the services described in this chapter, including inspections and administrative hearings subject to the following provisions of this section.

C.

Definitions. For the purpose of this section the following words and phrases are defined and shall be construed as having the following meaning:

1.

"Annual alcohol sales permit fee" or "fee" means the fee that is required by this chapter and which is set and periodically altered by the board of supervisors by resolution.

2.

"Licensee" means any person or business licensed by the state of California Department of Alcoholic Beverage Control that was actively conducting retail alcohol sales as of November thirtieth of the calendar year immediately prior to the billing date. In any case where a person or business maintains duplicate licenses or catering licenses at a location, such person or business shall be deemed a single "licensee."

"Billing cycle" refers to the calendar year for which the fee is assessed. "Billing date" means the first day of the billing cycle (January first). In the case of the first calendar year of the ordinance codified in this chapter, the billing date is the first full month following the month in which the ordinance codified in this chapter takes effect. In this case the billing cycle and fee shall be prorated to account for the months occurring before the billing date.

4.

"Payment due date" means the last day of the month in which the billing date occurs (January 31st). When the payment due date occurs on a Saturday or Sunday, payments made on the next business day will be considered timely.

5.

"Winery" refers to winery as defined in Title 17, Section 17.04.010.

D.

Fee Imposed.

1.

Each licensee shall pay an annual fee in accordance with this chapter.

2.

The enforcement officer shall administer the fee.

3.

The enforcement officer shall be responsible for administering funds derived from the fee, for purposes of enforcement activities that are authorized by this chapter.

E.

Total of Fees to be Collected. "Total of fees to be collected" means the aggregate of all fees to be collected in the next billing cycle by the county. The total fee shall be equal to the cost of the enforcement officer for next billing cycle.

F.

Collection of Fees.

1.

The fee will be paid annually for a calendar year. Licensees will be billed as of the first day of the billing cycle, January first. Payment will be due the last day of the first month of the billing cycle, January thirtyfirst. Licensees will receive an annual billing statement setting forth the amount of the fee.

2.

The fee shall be non-refundable.

3.

The enforcement officer or his or her designee may arrange payment plans upon demonstrated financial hardship. When the enforcement officer or his or her designee deems it appropriate, a payment plan may include a waiver, in whole or part, of the delinquency penalty and/or the interest obligation imposed by subsections (F)(4) and (F)(5) below.

4.

Any licensee who fails to remit the proper fee by the payment due date shall be in violation of this chapter and shall pay a delinquency penalty of ten (10) percent of the fee per month, or fraction thereof, up to a maximum of twenty (20) percent, in addition to the amount of the fee.

5.

In addition to the penalties imposed, any licensee who fails to remit the proper fee, or portion thereof, by the payment due date shall pay interest at the rate of one and one-half percent per month, or fraction thereof, on the amount of the unpaid balance of the fee, exclusive of penalties, from the payment due date until the date of actual payment.

6.

The fee imposed under this chapter shall constitute a debt to the county, and any person owing such fee shall be liable in an action brought in the name of the county for its recovery. Should any person fail to pay the fees assessed pursuant to the provisions of this chapter, the county may institute legal action in any court of competent jurisdiction to collect any fees and charges. Such fees and charges may be due, payable and collected in the same manner as any other debt owed to the county. Where the county is a prevailing party in such legal action, it reserves the right on a case by case basis, to seek to recover costs, including reasonable attorney fees as set forth in Government Code Section 25845, subdivision (c).

(Ord. 2008-2 § 1 (part): Ord. 2005-28 § 1 (part))

(Ord. No. 2010-2, § 2, 1-12-10)

Any alcoholic beverage sale establishment found by the enforcement officer to be maintained in violation of Section 6.104.060 of this chapter or the legal requirements incorporated therein shall be declared in violation of the alcoholic beverage sale regulations by the enforcement officer.

(Ord. 2008-2 § 1 (part))

Whenever the enforcement officer declares an alcoholic beverage sale establishment to be in violation pursuant to Section 6.104.090 the enforcement officer shall give written notice ("notice to comply") to the owner and/or operator of the alcoholic beverage sale establishment. Such notice shall be served in

accordance with the provisions of Section 6.104.110. If the violation is not corrected within the time specified in the notice to comply, the enforcement officer shall issue a "notice of hearing" in accordance with the provisions in Section 6.104.130, and the matter shall be heard by the applicable board of zoning adjustments. If, however, the enforcement officer, in his or her sole discretion, determines that the violation is not capable of correction, presents a serious threat to public health or safety, or otherwise warrants expedited action, he or she may issue a "notice of hearing" in accordance with Section 6.104.110 in lieu of issuing a notice to comply.

(Ord. 2008-2 § 1 (part))

(Ord. No. 2010-2, § 3, 1-12-10)

If the enforcement officer determines that a violation exists, then a notice to comply shall be provided in person or by prepaid certified mail, return receipt requested and shall include a copy of this chapter and a statement describing the sections found to be violated and may include a notice of civil penalties to be imposed. It shall further set forth a reasonable time for correcting the violation(s), but in no event less than seven calendar days nor more than sixty (60) calendar days and may also set forth suggested methods of correcting the same. The enforcement officer shall inspect subject property within the time limit for correcting the violation(s) to determine whether the violation(s) has been corrected. If the property is found to be in compliance with this chapter, the matter shall be dropped and no further enforcement action taken. If the property is not found to be in compliance with this chapter, further enforcement action shall occur as set forth herein, which may include the imposition of civil penalties.

(Ord. 2008-2 § 1 (part))

(Ord. No. 2010-2, § 4, 1-12-10)

If the enforcement officer issues a notice of hearing, the applicable board of zoning adjustments shall conduct an administrative hearing within forty-five (45) calendar days after the date of issuance of the notice of hearing to ascertain whether a violation has occurred and, if so, the sanctions to be imposed, which may include civil penalties.

(Ord. 2008-2 § 1 (part))

(Ord. No. 2010-2, § 5, 1-12-10)

Notice of said hearing shall be served upon the owner and/or operator not less than seven calendar days before the time set for hearing. Notice of hearing shall be served in person, or by prepaid certified mail return receipt requested to the owner's last known address. Notice of hearing shall be posted on the establishment in public view for no less than seven days prior to the hearing date. Service shall be deemed to be complete at the time notice is personally served or deposited in the mail. Failure of any person to

receive notice shall not affect the validity of any proceedings hereunder. Notice shall be substantially in the format set forth below:

COUNTY OF ALAMEDA

NOTICE OF ADMINISTRATIVE HEARING ON VIOLATION OF ALCOHOLIC BEVERAGE SALE REGULATIONS

This is a notice of hearing before the Alameda County (East or West) Board of Zoning Adjustments to ascertain whether the alcoholic beverage sale establishment situated in the County of Alameda, State of California, known and designated as (street address) _______ and more particularly described as (assessor's parcel number) _______ is in violation of the Alcoholic Beverage Sale Regulations. If the establishment is found to be in violation it will be sanctioned in accordance with law.

The alleged violations consist of the following:______________________ in violation of Alameda County General Ordinance Code Section 6.104.060.

The recommended method(s) of compliance are:

---

---

All persons having an interest in these matters may attend the hearing and their testimony and evidence will be heard and given due consideration.

Dated this ____ day of 20______

Enforcement Officer

Time and Date of Hearing: ___________

Location of Hearing: ________________

(Ord. 2008-2 § 1 (part))

(Ord. No. 2010-2, § 6, 1-12-10)

At the time stated in the notice, the board of zoning adjustments shall hear and consider all relevant evidence, objections or protests, and shall receive testimony under oath relative to such alleged violation(s). The hearing may be continued from time to time. The board of zoning adjustments shall determine whether the establishment conforms to the performance standards set forth in Section 6.104.060 and to any other legal requirements incorporated therein, and may find the establishment in compliance or require such changes or impose such reasonable conditions of approval as are in the judgment of the board of zoning adjustments necessary to ensure conformity to such requirements. Any new conditions of approval shall be made a part of the board of zoning adjustments' decision and the establishment shall be required to comply with those conditions. In the alternative, if supported by the evidence, the board of zoning adjustments may determine that civil penalties should be imposed and/or that the activities occurring at the establishment constitute a public nuisance and may order the establishment to cease and desist from all commercial activities. The findings and decision of the board of zoning adjustments shall be based upon

information, testimony and other evidence submitted by the enforcement officer and the business owner, community members, and other interested parties.

(Ord. 2008-2 § 1 (part))

• (Ord. No. 2010-2, § 7, 1-12-10)

The owner and/or operator may appeal to the Alameda County board of supervisors the board of zoning adjustments' findings and order by filing an appeal with the clerk of the board of supervisors within ten (10) days from the date of service of the board of zoning adjustments' decision. The appeal shall contain:

A.

A specific identification of the subject alcoholic beverage sale establishment;

B.

The names and addresses of all appellants;

C.

A statement of appellant's legal interest in the subject establishment;

D.

A statement in ordinary and concise language of the specific order or action protested and the grounds for appeal, together with all material facts in support thereof;

E.

The date and signatures of all appellants; and

F.

The verification of at least one appellant as to the truth of the matters stated in the appeal.

As soon as practicable after receiving the appeal, the board of supervisors shall set a date to hear the appeal which date shall be not less than seven calendar days nor more than forty-five (45) calendar days from the date the appeal was filed. The board of supervisors shall give each appellant written notice of the time and the place of the hearing at least five calendar days prior to the date of the hearing, either by causing a copy of notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant(s) at the address(es) shown on the appeal. Continuances of the hearing from time to time may be granted by the board of supervisors on request of the appellant for good cause shown, or on the board's own motion.

(Ord. 2008-2 § 1 (part))

(Ord. No. 2010-2, § 8, 1-12-10)

Upon the conclusion of the hearing the board of supervisors shall determine whether the establishment is in violation of this chapter. If the board so finds, the board shall adopt a resolution setting forth its findings and ordering compliance and/or civil penalties in the manner and means specifically set forth in its resolution. The resolution shall set forth the time within which compliance shall be completed.

(Ord. 2008-2 § 1 (part))

(Ord. No. 2010-2, § 9, 1-12-10)

Editor's note— Ord. No. 2010-2, § 10, adopted January 12, 2010, repealed § 6.104.170, which pertained to appeal procedure—hearing by board of supervisors and derived from Ord. No. 2008-2.

The enforcement officer, board of zoning adjustments, and/or board of supervisors may impose penalties as follows:

First violation of this chapter, seven hundred fifty dollars ($750.00);

A second violation shall result in a one thousand five hundred dollars ($1,500.00) penalty;

A third or subsequent violation shall result in a two thousand five hundred dollars ($2,500.00) penalty.

In determining the penalty the board of zoning adjustments may consider among other factors the following:

Aggravating factors may include, but are not limited to:

• Prior disciplinary history;

• Prior warning letters;

• Owner involvement;

• Premises located in high crime area;

• Lack of cooperation by owner in investigation;

• Continuing course or pattern of conduct;

• Delinquent payment of annual alcohol sales education and regulatory fee.

Mitigating factors may include, but are not limited to:

• Length of licensure at subject premises without prior discipline or problems;

• Positive action by owner to correct problem;

• Documented training of owner and employees;

* Cooperation by owner in investigation.

All funds collected under this section shall be retained by the county in a separate account and used exclusively to fund the enforcement of this chapter and related requirements.

(Ord. 2008-2 § 1 (part))

Any action seeking judicial review of the board of supervisors' decision shall be commenced within thirty (30) calendar days of the date of service of the decision. Judicial review of any civil penalties imposed under Section 6.104.180 shall be taken pursuant to Government Code Section 53069.4 and commenced within twenty (20) days of the date of service of the decision.

(Ord. 2008-2 § 1 (part): Ord. 2002-83 § 1 (part))

When an establishment which has been finally determined to be in noncompliance with the performance standards set forth in Section 6.104.060 and any other applicable criteria by a decision of the board of zoning adjustments or board of supervisors which finds its activities to be a public nuisance and orders the establishment to cease and desist all commercial activities, pursuant to the provisions of this chapter, the owner of the establishment and property owner shall cease such activities immediately. Any activity in violation of such decision shall be an illegal use.

(Ord. 2008-2 § 1 (part); Ord. 2002-83 § 1 (part))

A.

Except as otherwise provided, any person, firm, or corporation violating or causing, or permitting to be violated any of the provisions of this chapter or decision of the board of zoning adjustments or board of supervisors rendered pursuant to this chapter is guilty of a misdemeanor, and upon conviction is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for a period not exceeding six months, or by both.

B.

Reserved.

C.

Each person, firm, or corporation shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued or permitted by such person and shall be punishable accordingly.

D.

The enforcement officer shall have the power to designate particular officers or employees to enforce particular provisions of this chapter. Officers or employees so designated shall have the authority to issue citations pursuant to provisions of this chapter.

E.

In addition to the punishment provided by law, a violator is liable for such fees, attorney fees, costs, expenses, and disbursements paid or incurred by the county or any of its contractors in correction, abatement, and/or prosecution of the violation. Reinspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the owner. Said fees, attorney fees, costs, expenses, and disbursements shall be deemed a debt owed to the county, and the county may instate an action in any court of competent jurisdiction to collect any fees and charges which may be due and payable in the same manner as any other debts owing to the county may be collected.

(Ord. 2008-2 § 1 (part); Ord. 2002-83 § 1 (part))

Nothing in this chapter shall be deemed to prevent the board of supervisors from ordering the commencement of a civil proceeding to enforce the provisions of this chapter and/or decision of the board of zoning adjustments or board of supervisors pursuant to applicable law.

(Ord. 2008-2 § 1 (part); Ord. 2002-83 § 1 (part))

The enforcement officer, or his or her duly authorized representatives, may enter on any site or into any structure for the purpose of investigation, provided they shall do so in a reasonable manner, whenever they have cause to suspect a violation of any provision of this chapter, or whenever necessary to the investigation of violations of the performance standards or conditions of approval prescribed in this chapter. An owner or occupant or agent thereof who refuses to permit such entry and investigation shall be subject to the violations and penalties of this chapter. In addition, every establishment shall be inspected at least once a year to determine compliance with this chapter.

(Ord. 2008-2 § 1 (part): Ord. 2002-83 § 1 (part))

A.

Notwithstanding any other provision of this code, for the purposes of California Business and Professions Code, Division 9 (Alcoholic Beverages), the Alameda County Board of Supervisors shall be the local governing body deciding whether to make the required findings of "public convenience and necessity" as set forth in Business and Professions Code Sections 23817.7 and 23958.4, or any other applicable provision of Division 9.

B.

The Board of Supervisors designates the applicable Board of Zoning Adjustments to make the initial determination as set forth in subsection A of this section. The determination of the Board of Zoning Adjustments shall be deemed final unless appealed to the Board of Supervisors within ten days of the decision being announced.

C.

The following factors are examples of criteria that shall be used to evaluate if public convenience and necessity would be served by the proposed premises:

1.

Presence of elevated rates of alcohol-related crime (i.e., disturbing the peace, public intoxication, prostitution, vandalism, graffiti, etc.) in the vicinity of the proposed premises;

2.

Long-term levels of undue concentration (twenty (20) percent higher than state average);

3.

Proximity of sensitive land uses (i.e., schools, churches, residences, parks, areas designated for economic development);

4.

Whether the locale in question already draws excessive amounts of law enforcement resources;

5.

Business operations (i.e., percentage of alcohol vs. other items sold, late-night sales, underage staff, sale of inexpensive or fortified wines, etc.); or

6.

Health indicators in the locale in question (including alcoholism rates, homelessness, etc.).

(Ord. 2008-2 § 1 (part); Ord. 2006-21 § 1)