The Worse Part of Discretion

Wine Bottle

In the legal profession, we refer to two types of permitting processes: Discretionary and Ministerial.  Planners, architects, and builders are also familiar with these terms.  Ministerial permits are also often referred to as “over the counter” permits.  In other words, the law defines whether or not, and under what circumstances, you qualify for the permit.  There is no subjective decision to be made as to whether or not you qualify for the permit, i.e., there is no discretion.  You either get it or you don’t, subject only to paying a fee, and perhaps some other inflexible conditions.   In contrast to ministerial permits, there are “discretionary permits.”  Often these involve uses that might be controversial in certain neighborhoods.  The “discretion” refers to a decision that must be made by either a hearing officer or a commission of some sort.  Its not just the discretion of a government employee made at the time of application.  Rather, its typically a formal decision, made after public notice and a hearing, with right of appeal to a higher body.   Additionally, its not usually a yes or no decision, but also often involves the imposition of custom tailored conditions or restrictions, into which “the public,” i.e. whoever shows up to the hearing, has input.

In many cities in California, the discretionary permit process has become burdensome and r

edundant.  Some of this appears to result from poor inter-agency coordination or inter-agency jealousy.  Each agency covets its own discretionary process, which may be  redundant with another agency’s process, and regardless of whether the first agency had input into the original process.  In the City of San Diego’s downtown, for example, a convenience store selling alcoholic beverages or a nightclub must first obtain a conditional use permit (CUP) from the planing agency (CCDC).  Such permits concern themselves, with among other things, law enforcement and nuisance issues.  Residents and the Police Dept. are notified of the hearing and requested to give input, which is normally given great weight by the hearing officer.   Despite this process, in 2000, the Police Department lobbied and obtained their own similar discretionary permit process in the form of the Entertainment permit for nightclubs and in the form of the Public Convenience or Necessity Finding process for convenience stores.   These processes/permits are essentially redundant with the CUP process in one or more respects.  Then on top of those processes, the State Department of Alcoholic Beverage Control has  for nearly a century had essentially the same discretionary permit process resulting in approval, denial and a permit with custom tailored restrictions.

Obviously, these multiple discretionary processes add greatly to the expense and time it takes to get a business open.  Strangely, these agencies all communicated and worked closely together when there was only the State ABC license.  They still do.  However, the process has become so complex that often the agencies do not understand their own laws.  For example, in downtown San Diego, the Police Department has been routinely imposing conditions that are far more restrictive than the conditional use permits, despite an ordinance that requires the entertainment permit to mirror the CUP.  This ordinance was adopted expressly for the purpose of avoiding such onerous redundancy and potentially conflicting permits.   Unknowing applicants have failed to bring this fact to their attention.   Thus, it pays not to assume the local agency is familiar with their own procedure.

About William Adams

Attorney at Norton, Moore, & Adams, LLP.
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