Dep't of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd.

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent;

CIRCLE K STORES, INC., Real Party in Interest.

E065144

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

August 8, 2016

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

ORIGINAL PROCEEDINGS; petition for writ of review. Decision annulled.

Kamala D. Harris, Attorney General, Chris A. Knudsen, Assistant Attorney General, Celine M. Cooper and Jodi L. Cleesattle, Deputy Attorneys General, for Petitioner.

Linda A. Mathes for Respondent.

Solomon Saltsman & Jamieson, R. Bruce Evans and Jennifer L. Oden, for Real Party in Interest.

In this matter we interpret section 25666 of the Business and Professions Code¹ as it existed prior to its amendment by Assembly Bill 776 (2015-2016 Reg. Sess.) effective January 1, 2016. We conclude that when the subject proceedings were held in 2014, the statute meant then what it more clearly means now. Accordingly, respondent, Alcoholic Beverage Control Appeals Board (Board) erred in ruling that the accusation had to be dismissed.

STATEMENT OF THE CASE

The underlying proceeding involves an accusation filed by the Department of Alcoholic Beverage Control (ABC) against Circle K Stores, Inc. (Circle K) in which it was alleged that on May 20, 2014, 19-year-old Mariah Daily was sold an alcoholic beverage by a Circle K clerk.

On the date set for hearing of the matter, September 18, 2014, Daily—who had acted as a decoy—failed to appear. Counsel for the ABC requested a continuance, noting that the minor had been properly subpoenaed and also informing the court that the minor was apparently in route. The administrative law judge (ALJ) granted a continuance.

At the renewed hearing on November 19, 2014, counsel for Circle K attempted to inquire about the subpoena, apparently hoping to challenge whether it had been properlyserved on Daily. However, the ALJ refused to permit such inquiry, casting the matter in terms of whether it was appropriate to revisit a ruling on the previous continuance. The ALJ subsequently issued a proposed decision, finding that Circle K's clerk sold an alcoholic beverage to Daily without properly verifying the latter's age, and that Daily "displayed the appearance which could generally be expected of a person under 21 years of age . . . ." A license suspension of 15 days was imposed by the ALJ.

Circle K appealed the decision to the Board. Circle K's argument was that the continuance of the original hearing was unauthorized under section 25666, and the matter should have been dismissed when the minor failed to appear. Circle K cited a very recent decision of the Board, Purciel v. Department of Alcoholic Beverage Control (2015) AB-9454 (Purciel).)² In that case, the Board held that section 25666 only allows a continuance due to the absence of a decoy minor witness in very limited circumstances. (See infra.)

The Department responded that in several cases preceding Purciel, the Board had uniformly held that a hearing officer had general discretion to continue a hearing when the minor decoy was absent, and argued that Purciel wrongly interpreted recent amendments to section 25666. However, the Board reaffirmed its position in Purciel and upheld Circle K's appeal, reversing the decision of the hearing officer.

DISCUSSION

1. The Petition is Not Untimely

First, we deal with a procedural issue. Circle K argues that we must reject the petition because it was not timely filed. Section 23088 provides that a decision of the Board "shall be filed by delivering copies to the parties personally or by mailing copies to them by certified mail." Section 23090 provides for judicial review and specifies that the application for review "shall be made within 30 days after filing of the final order of the board."

Here, the Board issued its original decision on December 7, 2015. It then purported to "amend" its decision on December 10, 2015; the "amendment" was merely to attach a copy of the decision by the ALJ.³ The instant petition was not physically filed and stamped until January 12, 2016.⁴

We have concluded that the decision was never properly "filed" within the meaning of section 23088. The proof of service indicates that the decision was served onthe Department by "messenger mail." Our inquiries⁵ concerning this notation produced the explanation from both the Board and the Department that the usual practice is for a Board employee to place documents in a "pick-up box" from which they may be retrieved by a Department employee. Obviously this is not the "certified mail" required by section 23088.

The Board argues that its method of delivery is quicker and more efficient than mailing by certified mail. The Legislature required certified mail or personal delivery. (§ 23088.) The problem with "messenger mail" is made obvious by this case. Unlike either certified mail or personal service, it results in no official "paper trail" establishing the date on which the receiving party actually received the document.⁶ Accordingly, the petition was not untimely filed.

2. The Continuance was Lawful

First, as a state agency, the Department is subject to the Administrative Procedures Act. (Gov. Code, §§ 11340 et seq.) Government Code section 11524, part of the chapter governing hearing procedures, has provided essentially since 1945 that "[t]he agency may grant continuances" and that "[a] continuance may be granted for good cause . . . if the party seeking the continuance is not responsible for and has made a good faith effort to prevent the condition or event establishing the good cause." The hearing officer is guided by the same general principles which influence the granting or denying acontinuance in judicial proceedings, and the decision-maker has broad discretion. (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 864 (Bussard).)

However, the Department is also subject to various rules set out in the Business and Professions Code specifically governing the regulation of alcohol sales. Section 25666 deals specifically with accusations brought concerning the sale or furnishing of alcohol to minors and its primary purpose is to ensure that the minor (or alleged minor) is present at the hearing. Prior to January 1, 2016, section 25666 in its entirety provided: "In any hearing on an accusation charging a licensee with a violation of Sections 25658, 25663, and 25665, the department shall produce the alleged minor for examination at the hearing unless he or she is unavailable as a witness because he or she is dead or unable to attend the hearing because of a then-existing physical or mental illness or infirmity, . . . When a minor is absent because of a then-existing physical or mental illness or infirmity, a reasonable continuance shall be granted to allow for the appearance of the minor if the administrative law judge finds that it is reasonably likely that the minor can be produced within a reasonable amount of time . . . ."

As indicated above, in 2015 the Board issued its decision in the Purciel case, interpreting Business and Professions Code section 25666 as limiting the power of the ALJ to continue a matter due to the absence of a minor solely to circumstances relating to death or illness. This interpretation read Business and Professions Code section 25666 as a more specific statute applicable to sale-to-minor cases that superseded the generalprovisions of Government Code section 11524. (See Department of Corrections & Rehabilitation v. Superior Court (2015) 237 Cal.App.4th 1472, 1482.)

Shortly after the decision in Purciel, Assembly Bill 776 (2015-2016 Reg. Sess.), which had dealt with brewery events, was amended to add a provision modifying section 25666. This amendment added subdivision (b)(2), which now reads "This section is not intended to preclude the continuance of a hearing because of the unavailability of a minor for any other reason pursuant to Section 11524 of the Government Code." Hence, since the effective date of January 1, 2016, it is clear that section 25666 operates in harmony with Government Code 11524.

The question before us, however, is whether the amendment constituted a change in the law as the Board would believe, or confirmed prior law. We conclude the latter is correct.

The laws relating to the sale or furnishing of alcohol to minors were enacted in their current form beginning in 1953. (Bus. & Prof. Code, § 25658.) From that time until the enactment of Business and Professions Code section 25666 in 1963, Government Code section 11524 necessarily controlled the granting of continuances in proceedings before the Board. (See Givens v. Department of Alcoholic Beverage Control (1959) 176 Cal.App.2d 529, 532.) As we have noted, whether to grant a continuance under Government Code section 11524 rests within the decision-maker's discretion. Business and Professions Code section 25666, on the other hand, requires that a continuance begranted in specified circumstances. The nature of those circumstances, we think, is the key to the answer.

Government Code section 11524 generally requires that when a party seeks a continuance, that party must have good cause for the request and must have acted with diligence to prevent the problem which necessitates the request. (See Bussard, supra, 164 Cal.App.4th at p. 865; Mendez v. Superior Court (2008) 162 Cal.App.4th 827, 835.) Business and Professions Code section 25666 contains no such requirement, and for obvious reasons: the Department has no ability to influence or improve the health of a minor essential to the...