Cal. Code Regs., tit. 18, § 35057 — 35057. Cigarette and Tobacco Products Licensing Act Appeal

Reference: Sections 22973.1, 22974.7, 22977.2, 22978.7, 22979 and 22979.7, Business and Professions Code; Section 15570.54, Government Code.

# (a)

General. Notwithstanding any other provision in this chapter, the provisions of this regulation are applicable to an appeal of a denial of a license pursuant to regulation 4503 and to an appeal of a warning notice or a notice of violation issued pursuant to regulation 4600 for an alleged violation of the Cigarette and Tobacco Products Licensing Act and the regulations promulgated thereunder.

# (b)

Notice of denial of license. If BTFD denies an application for a new license pursuant to regulation 4503, it must mail notice of that denial to the applicant ("taxpayer"). A taxpayer may appeal the denial by filing a written request for conference within 30 days of the date the notice of denial was mailed or personally delivered to the taxpayer. If the taxpayer does not file a request for conference within 30 days of the date the notice of denial was mailed or personally delivered to the taxpayer, the taxpayer has waived any right to appeal the denial of the license and that denial is final.

# (c)

Appeal of a warning notice or notice of violation. A taxpayer may appeal a warning notice or notice of violation by filing a written request for conference within 30 days of the date the warning notice or notice of violation was mailed or personally delivered to the taxpayer. If the taxpayer does not file a request for conference within 30 days of the date the warning notice or notice of violation was mailed or personally delivered to the taxpayer, the taxpayer has waived any right to appeal the warning notice or notice of violation, and the violation or violations stated therein will be entered into the taxpayer's license record at CDTFA and the penalty or penalties stated in the warning notice or notice of violation become final.

# (d)

Filing an appeal. A taxpayer who files a request for conference has the burden of proof as to the grounds for issuing a license pursuant to regulation 4503 or as to the grounds for dismissal of any violation or for the reduction of penalties.
(1) The request for conference must state the specific grounds upon which the taxpayer contests the denial or contests the warning notice or notice of violation.
(2) The request for conference must be signed by the taxpayer or the taxpayer's authorized representative and include that person's telephone number.
(3) The request for conference must be accompanied by all documentation, which may include written statements made under penalty of perjury, and all written argument that the taxpayer wishes to be considered in support of the appeal.
(4) The request for conference must be filed as set forth in this subdivision, or as otherwise expressly provided on CDTFA's website at www.cdtfa.ca.gov:
(A) By hand delivery to: Appeals and Data Analysis Branch, MIC 33, California Department of Tax and Fee Administration, 651 Bannon Street, Suite 100, Sacramento, CA 95811.
(B) By mail addressed to: Appeals and Data Analysis Branch, MIC 33, California Department of Tax and Fee Administration P.O. Box 942879, Sacramento, CA 94279-0033.
(C) By email sent to: adab@cdtfa.ca.gov.
(D) By facsimile to: (916) 323-9497.

# (e)

Scheduling of Conference. Where a timely request for conference is filed, BTFD will schedule a conference to be conducted by telephone by its Compliance Branch, and will mail to the taxpayer a notice of conference stating the date and time of the scheduled conference.
(1) The notice of conference will be mailed at least 15 days prior to the date of the scheduled conference.
(2) BTFD may grant one request to reschedule the conference if it receives such request by the day prior to the date of the scheduled conference. If a timely request is granted, the conference will be rescheduled for a date no more than 45 days after the date the conference was originally scheduled to be held, unless the Deputy Director approves a later date.

# (f)

Conference. The conference is intended to be an informal, non-adversarial proceeding to discuss the relevant facts and applicable law and regulations. Upon request during the conference, BTFD may allow up to 15 days after the date of the conference for the submission of additional information. The conference will not be recorded by BTFD, but the taxpayer may record the conference provided the taxpayer agrees to provide BTFD a copy of the recording, and does so. The recording and the providing of copies is at the taxpayer's own expense.

# (g)

Decision. The Compliance Branch of BTFD will prepare a written decision setting forth its findings and conclusions. For an appeal of a denial of a license, the decision will state whether the license will be issued or why the denial of the license is upheld. For an appeal of a warning notice or notice of violation, the decision will state whether the asserted violation occurred, and if so, the applicable penalty or penalties. BTFD will mail its decision to the taxpayer within 90 days of the conference. BTFD will also include a notice of decision when mailing its decision, and if the decision is adverse to the taxpayer, in whole or in part, the notice will explain that the taxpayer may request review of the decision by the Appeals Bureau by filing a request for appeals conference within 30 days, and will also explain how the taxpayer may file that request.

# (h)

Request for Appeals Conference. A request for appeals conference must be in writing and must state the specific grounds upon which the taxpayer contests the findings and conclusions in the decision of the Compliance Branch of BTFD, must be signed by the taxpayer or by the taxpayer's authorized representative and include that person's telephone number, and must be filed in the same manner as provided in subdivision (b)(4) for the filing of the request for conference.

# (i)

Failure to File Timely Request for Appeals Conference. If the taxpayer does not file a timely request for appeals conference, the taxpayer has waived the right to appeal the decision of the Compliance Branch of BTFD: if the appeal is of a denial of a license, the denial becomes final; if the appeal is of a warning notice or notice of violation, the violation or violations upheld by the decision will be entered into the taxpayer's license record at CDTFA and the penalty or penalties as stated in the decision become final.

# (j)

Scheduling the Appeals Conference. When the taxpayer files a timely request for appeals conference, BTFD will forward the appeal to the Appeals Bureau for the scheduling of an appeals conference.
(1) The Appeals Bureau will schedule an appeals conference, to be conducted by telephone, and will mail notice of the conference in accordance with regulation 35061.
(2) Upon the taxpayer's request, the Appeals Bureau may reschedule the conference to be held within 30 days of the date specified in the notice of appeals conference. The conference may be scheduled for a later date only with the approval of the Assistant Chief Counsel of the Appeals Bureau, or his or her designee.

# (k)

Appeals Conference, Decision, and Finality. The provisions of regulation 35064 are applicable to the conduct of the appeals conference. The provisions of regulation 35065 are applicable to the contents, issuance, and finality of the decision of the Appeals Bureau, except that the letter described in subdivision (d) of regulation 35065 will explain, if applicable, that the taxpayer can appeal the decision by submitting an appeal to the Office of Tax Appeals within 30 days of the date of mailing of the Appeals Bureau letter. The provisions of regulation 35066 are not applicable to a Cigarette and Tobacco Products Licensing Act appeal. If the Appeals Bureau decision denies the appeal, in whole or in part, and the taxpayer does not file an appeal to the Office of Tax Appeals within 30 days of the mailing of the Appeals Bureau letter, the taxpayer has waived the right to appeal the decision of the Appeals Bureau: if the appeal is of a denial of a license, the denial becomes final; if the appeal is of a warning notice or notice of violation, the violation or violations upheld by the Appeals Bureau decision will be entered into the taxpayer's license record at CDTFA and the penalty or penalties as stated in the decision become final.
History-New article 6 (regulations 35057 and 35058) and regulation filed March 19, 2018, as an emergency; effective and operative March 19, 2018. Article and regulation refiled September 17, 2018, as an emergency; effective and operative September 17, 2018. Article and regulation refiled December 17, 2018, as an emergency; effective and operative December 17, 2018. Certificate of Compliance transmitted to OAL on February 20, 2019 and filed March 19, 2019. (The regulation incorporates provisions from regulations 4508, 4609, 4700, and 4701 in division 2.)
Amended November 26, 2024. Changes without regulatory effect to replace "Registration and Licensing Section, MIC 88" with "Appeals and Data Analysis Branch, MIC 33" in subdivisions (d)(4)(A) and (B); replace "450 N Street, Sacramento, CA 95814" with "651 Bannon Street, Suite 100, Sacramento, CA 95811" in subdivision (d)(4)(A); replace "0088" with "0033" in subdivision (d)(4)(B); add new subdivision (d)(4)(C) and renumber old subdivision (d)(4)(C) as subdivision (d)(4)(D); and replace "445-6122" with "323-9497" in renumbered subdivision (d)(4)(D); filed November 26, 2024, pursuant to section 100, title 1, California Code of Regulations (Register 2024, No.49-Z).
Note.-Authority cited: Section 22971.2, Business and Professions Code; Sections 15570.40 and 15606, Government Code.