Attachment 1
STATE OF CALIFORNIA - BUSINESS. CONSUMER SERVICES AND HOUSING AGENCY Gavin Newsom, Governor
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL
EUREKA DISTRICT OFFICE
1105 6TH STREET, STE C
EUREKA, CA 95501
(707) 445-7229
January 27, 2023
Fortuna City Council
Office of the City Clerk
PO BOX 545
Fortuna, CA 95540
RE: Public Convenience or Necessity
23958.4 CA Business & Professions Code
Designation of Subordinate Officer or Body
To Whom It May Concern:
Pursuant to Section 23958 of the California Business and Professions Code (BPC), the Department of Alcoholic Beverage Control (ABC) shall deny an application for a license if issuance would result in or add to an undue concentration of licenses. Section 23958.4 BPC defines what constitutes an "undue concentration" of ABC licenses.
Section 23958.4 further states, with respect to certain license types, e.g., off-sale (types 20,21), public premises (types 42,48), certain club-type licenses (types 50,51,57) and the On-Sale General Music Venue License (type 90), the Department may issue said licenses if the local governing body, or its designated subordinate officer or body, determines that issuance of the license would serve a public convenience or necessity (PCN).
In accordance with the above, the Department of Alcoholic Beverage Control (ABC) is requesting that the local governing body for each jurisdiction complete the applicable section below. With this information the Department will be able to assist our customers with the Public Convenience or Necessity (PCN) process, including but not limited to, which entity to contact for a PCN determination. Please complete one of the below sections and return to the Department of Alcoholic Beverage Control (ABC) so our records may be updated with current information.
The City Council or Board of Supervisors of the City/County of will make determinations of Public Convenience or Necessity (PCN) for persons/premises applying for an ABC license.
The City Council or Board of Supervisors of the City/County of has designated the following subordinate officer or body to make determinations of Public Convenience or Necessity (PCN) for persons/premises applying for an ABC license.
• The City/County of has declined to make determinations of Public Convenience or Necessity (PCN) for persons/premises applying for an ABC license.
Under this circumstance, determinations for Public Convenience or Necessity (PCN) will revert to the Department of Alcoholic Beverage Control (ABC).
Pursuant to Section 23958.4 BPC, if the local governing body, or its designated subordinate officer or body, does not make a determination of Public Convenience or Necessity (PCN) within a period of 90 days, then the authority to make the determination will revert to the Department of Alcoholic Beverage Control (ABC).
Please contact us if you have any questions or concerns.
Sincerely, s
HEATHER WILLIAMS
Licensing Manager
707-576-2191
Heather. [email protected]
Enclosure: 23958 & 23958.4 B.P.
Business & Profession Code § 23958
Upon receipt of an application for a license or for a transfer of a license and the applicable fee, the department shall make a thorough investigation to determine whether the applicant and the premises for which a license is applied qualify for a license and whether the provisions of this division have been complied with, and shall investigate all matters connected therewith which may affect the public welfare and morals. The department shall deny an application for a license or for a transfer of a license if either the applicant or the premises for which a license is applied do not qualify for a license under this division.
The department further shall deny an application for a license if issuance of that license would tend to create a law enforcement problem, or if issuance would result in or add to an undue concentration of licenses, except as provided in Section 23958.4.
Business & Profession Code § 23958.4
(a) For purposes of Section 23958, "undue concentration" means the case in which the applicant premises for an original or premises-to-premises transfer of any retail license are located in an area where any of the following conditions exist:
(1) The applicant premises are located in a crime reporting district that has a 20 percent greater number of reported crimes, as defined in subdivision (c), than the average number of reported crimes as determined from all crime reporting districts within the jurisdiction of the local law enforcement agency. (2) As to on-sale retail license applications, the ratio of on-sale retail licenses to population in the census tract or census division in which the applicant premises are located exceeds the ratio of on-sale retail licenses to population in the county in which the applicant premises are located. (3) As to off-sale retail license applications, the ratio of off-sale retail licenses to population in the census tract or census division in which the applicant premises are located exceeds the ratio of off-sale retail licenses to population in the county in which the applicant premises are located. (b) Notwithstanding Section 23958, the department may issue a license as follows:
(1) With respect to a nonretail license, a retail on-sale bona fide eating place license, a retail license issued for a hotel, motel, or other lodging establishment, as defined in subdivision (b) of Section 25503.16, a retail license issued in conjunction with a beer manufacturer's license, or a winegrower's license, if the applicant shows that public convenience or necessity would be served by the issuance. (2) With respect to any other license, if the local governing body of the area in which the applicant premises are located, or its designated subordinate officer or body, determines within 90 days of notification of a completed application that public convenience or necessity would be served by the issuance. The 90-day period shall commence upon receipt by the local governing body of (A) notification by the department of an application for licensure, or (B) a completed application according to local requirements, if any, whichever is later.
If the local governing body, or its designated subordinate officer or body, does not make a determination within the 90-day period, then the department may issue a license if the applicant shows the department that public convenience or necessity would be served by the issuance. In making its determination, the department shall not attribute any weight to the failure of the local governing body, or its designated subordinate officer or body, to make a determination regarding public convenience or necessity within the 90-day period.
(c) For purposes of this section, the following definitions shall apply:
(1) "Reporting districts" means geographical areas within the boundaries of a single governmental entity (city or the unincorporated area of a county) that are identified by the local law enforcement agency in the compilation and maintenance of statistical information on reported crimes and arrests. (2) "Reported crimes" means the most recent yearly compilation by the local law enforcement agency of reported offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors, except traffic citations.
(3) "Population within the census tract or census division" means the population as determined by the most recent United States decennial or special census. The population determination shall not operate to prevent an applicant from establishing that an increase of resident population has occurred within the census tract or census division.
(4) "Population in the county" shall be determined by the annual population estimate for California counties published by the Population Research Unit of the Department of Finance. (5) "Retail licenses" shall include the following:
(A) Off-sale retail licenses: Type 20 (off-sale beer and wine) and Type 21 (off-sale general). (B) On-sale retail licenses: All retail on-sale licenses, except Type 43 (on-sale beer and wine for train), Type 44 (on-sale beer and wine for fishing party boat), Type 45 (on-sale beer and wine for boat), Type 46 (on-sale beer and wine for airplane), Type 53 (on-sale general for train and sleeping car), Type 54 (on- sale general for boat), Type 55 (on-sale general for airplane), Type 56 (on-sale general for vessels of more than 1,000 tons burden), and Type 62 (on-sale general bona fide public eating place intermittent dockside license for vessels of more than 15,000 tons displacement). (6) A "premises-to-premises transfer" refers to each license being separate and distinct, and transferable upon approval of the department.
(d) For purposes of this section, the number of retail licenses in the county shall be established by the department on an annual basis.
(e) The enactment of this section shall not affect any existing rights of any holder of a retail license issued before April 29, 1992, whose premises were destroyed or rendered unusable as a result of the civil disturbances occurring in Los Angeles from April 29 to May 2, 1992, to reopen and operate those licensed premises.
(f) This section shall not apply if the premises have been licensed and operated with the same type license within 90 days of the application.