Amended  IN  Assembly  February 16, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 61

Introduced by Assembly Member Gabriel

December 07, 2020

An act to add Section 25750.5 to, to add Article 7 (commencing with Section 23520) to Chapter 3 of Division 9 of, and to add Article 6 (commencing with Section 24100) to Chapter 6 of Division 9 of, the Business and Professions Code, to add and repeal Section 65907 of the Government Code, to amend Sections 113980, 114069, and 114266 of the Health and Safety Code, and to amend Section 22358.4 of the Vehicle Code, relating to local government. business pandemic relief.


LEGISLATIVE COUNSEL'S DIGEST


AB 61, as amended, Gabriel. Local government. Business pandemic relief.
(1) Existing law, the Alcoholic Beverage Control Act, is administered by the Department of Alcoholic Beverage Control and regulates the granting of licenses for the manufacture, distribution, and sale of alcoholic beverages within the state. The act requires the department to make and prescribe rules to carry out the purposes and intent of existing state constitutional provisions on the regulation of alcoholic beverages, and to enable the department to exercise the powers and perform the duties conferred upon it by the state constitution and the act, not inconsistent with any statute of this state. The act makes it unlawful for any person other than a licensee of the department to sell, manufacture, or import alcoholic beverages in this state, with exceptions. The department, pursuant to its powers and in furtherance of emergency declarations and orders of the Governor under the California Emergency Services Act regarding the spread of the COVID-19 virus, has established prescribed temporary relief measures to suspend certain legal restrictions relating to, among other things, the expansion of a licensed footprint, sales of alcoholic beverages to-go, and delivery privileges.
This bill would authorize the department to issue a third-party delivery license to a third-party delivery service for delivery to a consumer of alcoholic beverages from a licensee under the act who is authorized to sell alcoholic beverages for consumption off the licensed premises. The bill would require delivery by a third-party delivery licensee to be consistent with deliveries by licensees who are permitted by license privileges or by regulatory relief adopted by the department to sell off-sale and deliver those alcoholic beverages to consumers. Because the violation of a provision of a license is punishable as a misdemeanor and the bill would create a new category of license, the bill would expand the definition of a crime, thereby imposing a state-mandated local program.
The bill would authorize the department to adopt rules to establish procedures for the imposition of a reasonable condition, or the suspension of the operation and enforcement of a condition, in a license for a period not to exceed an unspecified number of days from the date of imposition or suspension. The bill would limit the purpose of such temporary license modification to specified and unspecified purposes.
The bill would require the department to adopt rules to extend certain temporary regulatory relief measures relating to expanded outdoor dining areas and outdoor to-go sales privileges. The bill would also require the department to adopt rules to remove a hard barrier requirement for outdoor alcohol service in order to streamline the creation of permanent outdoor dining areas in the public right-of-way. The bill would require these rules to operate for a period of 2 years following the expiration of local emergency declarations pursuant to the California Emergency Services Act relating to the COVID-19 pandemic.
(2) The Planning and Zoning Law authorizes the legislative body of any city or county to adopt ordinances that regulate zoning within its jurisdiction, as specified. Under that law, variances and conditional use permits may be granted if provided for by the zoning ordinance.
This bill would, until January 1, 2024, prohibit a city, county, or city and county, from taking discretionary actions that would have the effect of delaying the final decision on an application for a parking zone variance or conditional use permit, including, but not limited to, a discretionary review, in connection with the outdoor expansion of a business to mitigate COVID-19 pandemic restrictions on indoor dining.
(3) Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for, and provides for regulation by the State Department of Public Health of, retail food facilities. Existing law requires every permanent food facility to be fully enclosed in a building consisting of permanent floors, walls, and an overhead structure, as specified. Existing law exempts dining areas or any other operation approved for outdoor food service from these provisions.
This bill would additionally exempt kitchens and outdoor coffee bars from these provisions.
Existing law requires that all food be, among other things, produced, prepared, kept for sale, and served so as to be pure and free from adulteration and spoilage, and to be protected from, among other things, dirt, vermin, or other environmental sources of contamination. Existing law limits the sale of food outdoors by a food facility to prepackaged nonpotentially hazardous food or uncut produce that meets specified criteria.
This bill would exempt outdoor coffee bars from these provisions.
(4) Existing law authorizes a local authority, whenever the local authority determines, upon the basis of an engineering and traffic survey, that the established prima facie speed limit of 25 miles per hour is more than is reasonable or safe, to determine and declare a prima facie speed limit of 20 or 15 miles per hour, as specified. Existing law provides that the ordinance or resolution is not effective until appropriate signage is erected or as specified.
This bill would provide that a local authority may, by ordinance or resolution, determine and declare prima facie speed limits of 15 or 20 miles per hour in an area where outdoor dining has been authorized. This bill would provide that the ordinance or resolution is not effective until appropriate signage is erected, as specified.
(5) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, the California Emergency Services Act, permits the Governor to proclaim a state of emergency during conditions of disaster or of extreme peril to the safety of persons and property, including epidemics. Existing law provides that the proclamation takes effect immediately, affords specified powers to the Governor, and terminates upon further proclamation by the Governor or by concurrent resolution of the Legislature. The Governor proclaimed a state of emergency March 4, 2020, related to the COVID-19 pandemic.

This bill would state the intent of the Legislature to enact legislation that would relate to authorizing local jurisdictions to enact and operate programs that facilitate outdoor dining that is safe and consistent with public health guidelines during the COVID-19 pandemic.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Article 7 (commencing with Section 23520) is added to Chapter 3 of Division 9 of the Business and Professions Code, to read:
Article  7. Third-party Alcohol Delivery License

23520.
 The department may issue a third-party delivery license to a third-party delivery service for delivery to a consumer of alcoholic beverages from a licensee under this division who is authorized to sell alcoholic beverages for consumption off the licensed premises. Except as provided in this article, delivery by a licensee under this article shall be consistent with deliveries by licensees who are permitted by license privileges or by regulatory relief adopted by the department to sell off-sale and deliver those alcoholic beverages to consumers.

SEC. 2.

 Article 6 (commencing with Section 24100) is added to Chapter 6 of Division 9 of the Business and Professions Code, to read:
Article  6. Temporary License Modification

24100.
 The department may adopt rules to establish procedures for the imposition of a reasonable condition, or the suspension of the operation and enforcement of a condition, in a license for a period not to exceed ____ days from the date of imposition or suspension. A temporary license modification pursuant to this chapter shall be limited to the following purposes:
(a) In furtherance of state emergency declarations and orders pursuant to the California Emergency Services Act.
(b) ____.

SEC. 3.

 Section 25750.5 is added to the Business and Professions Code, to read:

25750.5.
 The department shall do both of the following:
(a) Adopt rules to extend the temporary regulatory relief measures adopted in furtherance of state emergency declarations and orders pursuant to the California Emergency Services Act regarding the COVID-19 pandemic, as follows:
(1) Extend regulatory relief for expanded outdoor dining areas as provided by any applicable department notice of regulatory relief as of ____, as it relates to outdoor dining, and by COVID-19 Temporary Catering Authorizations for a period of two years following the expiration of local emergency declarations pursuant to the California Emergency Services Act regarding the COVID-19 pandemic.
(2) Extend regulatory relief for outdoor to-go sales privileges as provided by any applicable department notice of regulatory relief as of ____, as it relates to outdoor to-go sale privileges, for a period of two years following the expiration of local emergency declarations pursuant to the California Emergency Services Act regarding the COVID-19 pandemic.
(b) Adopt rules to remove the hard barrier requirement for outdoor alcohol service in order to streamline the creation of permanent outdoor dining areas in the public right-of-way for a period of two years following the expiration of local emergency declarations pursuant to the California Emergency Services Act regarding the COVID-19 pandemic.

SEC. 4.

 Section 65907 is added to the Government Code, to read:

65907.
 (a) Commencing January 1, 2022, a city, county, or city and county, shall not take discretionary action that would have the effect of delaying the final decision on an application for a parking zone variance or conditional use permit, including, but not limited to, a discretionary review, in connection with the outdoor expansion of a business to mitigate COVID-19 pandemic restrictions on indoor dining.
(b) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.

SEC. 5.

 Section 113980 of the Health and Safety Code is amended to read:

113980.
 (a) All food shall be manufactured, produced, prepared, compounded, packed, stored, transported, kept for sale, and served so as to be pure and free from adulteration and spoilage; shall have been obtained from approved sources; shall be protected from dirt, vermin, unnecessary handling, droplet contamination, overhead leakage, or other environmental sources of contamination; shall otherwise be fully fit for human consumption; and shall conform to the applicable provisions of the Sherman Food, Drug, and Cosmetic Law (Part 5 (commencing with Section 109875)).
(b) This section does not apply to an outdoor coffee bar.

SEC. 6.

 Section 114069 of the Health and Safety Code is amended to read:

114069.
 (a) Only prepackaged nonpotentially hazardous food or uncut produce may be displayed or sold outdoors by a food facility if all of the following conditions are satisfied:

(a)

(1) Outdoor displays have overhead protection that extends over all food items.

(b)

(2) Food items from the outdoor display are stored inside the fully enclosed food facility at all times other than during business hours.

(c)

(3) Outdoor displays comply with Section 113980 and have been approved by the enforcement agency.

(d)

(4) Outdoor displays are under the control of the permitholder of the fully enclosed food facility and are checked periodically on a regular basis.
(b) This section does not apply to an outdoor coffee bar.

SEC. 7.

 Section 114266 of the Health and Safety Code is amended to read:

114266.
 (a) Each permanent food facility shall be fully enclosed in a building consisting of permanent floors, walls, and an overhead structure that meet the minimum standards as prescribed by this part. Food facilities that are not fully enclosed on all sides and that are in operation on January 1, 1985, shall not be required to meet the requirements of this section until the facility is remodeled or has a significant menu change or significant change in its method of operation.
(b) Notwithstanding subdivision (a), this section does not require the enclosure of dining areas areas, kitchens, outdoor coffee bars, or any other operation approved for outdoor food service.
(c) Notwithstanding subdivision (a), a produce stand that was in operation prior to January 1, 2007, shall have no more than one side open to the outside air during business hours.

SEC. 8.

 Section 22358.4 of the Vehicle Code is amended to read:

22358.4.
 (a) (1) Whenever a local authority determines upon the basis of an engineering and traffic survey that the prima facie speed limit of 25 miles per hour established by subdivision (b) of Section 22352 is more than is reasonable or safe, the local authority may, by ordinance or resolution, determine and declare a prima facie speed limit of 20 or 15 miles per hour, whichever is justified as the appropriate speed limit by that survey.
(2) An ordinance or resolution adopted under paragraph (1) shall not be effective until appropriate signs giving notice of the speed limit are erected upon the highway and, in the case of a state highway, until the ordinance is approved by the Department of Transportation and the appropriate signs are erected upon the highway.
(b) (1) Notwithstanding subdivision (a) or any other provision of law, a local authority may, by ordinance or resolution, determine and declare prima facie speed limits as follows:
(A) A 15 miles per hour prima facie limit in a residence district, on a highway with a posted speed limit of 30 miles per hour or slower, when approaching, at a distance of less than 500 feet from, or passing, a school building or the grounds of a school building, contiguous to a highway and posted with a school warning sign that indicates a speed limit of 15 miles per hour, while children are going to or leaving the school, either during school hours or during the noon recess period. The prima facie limit shall also apply when approaching, at a distance of less than 500 feet from, or passing, school grounds that are not separated from the highway by a fence, gate, or other physical barrier while the grounds are in use by children and the highway is posted with a school warning sign that indicates a speed limit of 15 miles per hour.
(B) A 25 miles per hour prima facie limit in a residence district, on a highway with a posted speed limit of 30 miles per hour or slower, when approaching, at a distance of 500 to 1,000 feet from, a school building or the grounds thereof, contiguous to a highway and posted with a school warning sign that indicates a speed limit of 25 miles per hour, while children are going to or leaving the school, either during school hours or during the noon recess period. The prima facie limit shall also apply when approaching, at a distance of 500 to 1,000 feet from, school grounds that are not separated from the highway by a fence, gate, or other physical barrier while the grounds are in use by children and the highway is posted with a school warning sign that indicates a speed limit of 25 miles per hour.
(2) The prima facie limits established under paragraph (1) apply only to highways that meet all of the following conditions:
(A) A maximum of two traffic lanes.
(B) A maximum posted 30 miles per hour prima facie speed limit immediately prior to and after the school zone.
(3) The prima facie limits established under paragraph (1) apply to all lanes of an affected highway, in both directions of travel.
(4) When determining the need to lower the prima facie speed limit, the local authority shall take the provisions of Section 627 into consideration.
(5) (A) An ordinance or resolution adopted under paragraph (1) shall not be effective until appropriate signs giving notice of the speed limit are erected upon the highway and, in the case of a state highway, until the ordinance is approved by the Department of Transportation and the appropriate signs are erected upon the highway.
(B) For purposes of subparagraph (A) of paragraph (1), school warning signs indicating a speed limit of 15 miles per hour may be placed at a distance up to 500 feet away from school grounds.
(C) For purposes of subparagraph (B) of paragraph (1), school warning signs indicating a speed limit of 25 miles per hour may be placed at any distance between 500 and 1,000 feet away from the school grounds.
(D) A local authority shall reimburse the Department of Transportation for all costs incurred by the department under this subdivision.
(c) (1) Notwithstanding subdivision (a), or any other provision of law, a local authority may, by ordinance or resolution, determine and declare prima facie speed limits of 15 or 20 miles per hour in an area where outdoor dining has been authorized.
(2) An ordinance or resolution adopted under paragraph (1) shall not be effective until appropriate signs giving notice of the speed limit are erected upon the highway, and, in the case of a state highway, until the ordinance is approved by the Department of Transportation and the appropriate signs are erected upon the highway.

SEC. 9.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
SECTION 1.

It is the intent of the Legislature to enact legislation that would relate to allowing local jurisdictions to enact and operate programs that facilitate outdoor dining that is safe and consistent with public health guidelines during the COVID-19 pandemic.