Big Boy Liquors, Limited v. Alcoholic Beverage Control Appeals Bd.

• Citation: 71 Cal.2d 1226,81 Cal.Rptr. 258,459 P.2D 674
• Decision Date: 21 October 1969
• Docket Number: S.F. 22623
• Parties: , 459 P.2d 674 BIG BOY LIQUORS, LTD., Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent; Edward J. KIRBY, as Director, etc., Real Party in Interest.
• Court: United States State Supreme Court (California)

Page 258

81 Cal.Rptr. 258

71 Cal.2d 1226, 459 P.2d 674

BIG BOY LIQUORS, LTD., Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent Edward J. KIRBY, as Director, etc., Real Party in Interest.

S.F. 22623.

Supreme Court of California,

In Bank.

Oct. 21, 1969.

Rehearing Denied Nov. 19, 1969.

Robert Edmondson, San Francisco, and Howard Engelskirchen, Santa Clara, for petitioner.

Thomas C. Lynch, Atty. Gen., and L. Stephen Porter, Deputy Atty. Gen., for respondent and for real party in interest.

MOSK, Justice.

We here review a decision of the Alcoholic Beverage Control Appeals Board (board) which affirmed a decision of the Department of Alcoholic Beverage Control (department) suspending the retail offsale general liquor license of Big Boy Liquors, Ltd. (licensee). (See Bus. & Prof.Code, § 23090 et seq.) ¹

On February 23, 1967, the department filed an accusation in two counts against the licensee doing business as Big Boy Liquors, 731 Columbus Avenue, San Francisco. The first count charged the licensee with selling to an investigator of the department on or about January 18, 1967, two four-fifth quart bottles of a brand name bourbon whiskey at a retail price less than that provided for in the minimum retail price schedule filed with the department. The second count charged the licensee in exactly the same terms as count I except that the violation was alleged to have occurred on or about January 20, 1967.

The acts set forth in both counts were charged as providing grounds for suspension or revocation of the licensee's license under article XX, section 22, of the California Constitution and section 24200, subdivision (a), of the Business and Professions Code. Additional grounds for suspension or revocation of the license were charged to exist under section 24200 subdivision (b), in that because of the sales set forth in counts I and II the licensee had violated or permitted the violation of section 24755 and department rule 99(a) (Cal.Admin.Code, tit. 4, § 99(a)).

In response to the department's accusation, the licensee filed a notice of defense pursuant to Government Code section 11506 in which it requested to be heard relative to the violations alleged in the accusation. On June 5, 1967, a hearing was conducted by a hearing officer of the Office of Administrative Procedure. On August 17, 1967, the hearing officer issued his proposed decision in which he found in terms of the accusation that the allegations of both counts were true, and recommended that the licensee's license be suspended for 15 days on each count, the periods of suspension to run consecutively. The department adopted the proposed decision in its entirety. The licensee appealed to the board, which affirmed to department's decision on both counts. We thereafter issued a writ of review.

The licensee seeks to have the decision of the board vacated and the decision of the department reversed on the grounds (1) that section 24755 is invalid in that it violates the Fourteenth Amendment to the United States Constitution and the antitrust laws of the United States and of the State of California; (2) that the suspension of the licensee's license is not supported by substantial evidence in that the actual bottles allegedly purchased from the licensee were not introduced into evidence and the department failed to prove publication in accordance with the provisions of section 24755, subdivision (b); and (3) that the department does not have the power to suspend a license for sales below the prices specified in the minimum retail price schedule filed with the department in light of section 24755.1, which section purports to prevent the sanctions of suspension or revocation for such sales.

Section 24755 provides for the filing of a minimum retail price schedule for distilled spirits which are to be sold at retail for consumption off the licensed premises. At the time of the sales here involved, the statute required that the schedule be filed with the department and be published prior to its effective date. Once the schedule becomes effective no off-sale licensee is permitted to sell any package of distilled spirits for less than the price specified in such schedule. Section 24755.1, effective on September 17, 1965, provides that if any licensee sells distilled spirits for less than the effective filed price the penalties to be imposed therefor by the department are limited to monetary fines, and the department is prohibited from suspending or revoking the violating licensee's license.

The licensee asserts that the minimum retail price maintenance provisions of the Alcoholic Beverage Control Act (act) are invalid under the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States and under the antitrust laws of the United States and the State of California. In Samson Market Co., Inc. v. Alcoholic Beverage Control Appeals Board, Cal., 81 Cal.Aptr. 251, 459 P.2d 667, we clearly indicated that the 1961 revisions of the retail price maintenance provisions substituting a unilateral minimum retail price schedule for a negotiated fair trade contract amounted to a change in form only and not in substance and did not compel us to modify our previous holdings that the retail price maintenance provisions were constitutional. (See Samson Market Co., Inc. v. Alcoholic Bev. Control Appeals Board, 81 Cal.Rptr. 251, at pp. 253--254, 459 P.2d 667, at pp. 669--670; Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control (1966) 65 Cal.2d 349, 55 Cal.Rptr. 23, 420 P.2d 735; Allied Properties v. Dept. of Alcoholic Bev. Control (1959) 53 Cal.2d 141, 346 P.2d 737.) The licensee's contentions that the pricing statutes violate the due process and equal protection clauses of the Fourteenth Amendment are presented without supporting arguments or citation of authority. (See Samson Market Co., Inc. v. Alcoholic Bev. Control Appeals Board, 81 Cal.Rptr. 251, at p. 254, fn. 4, 459 P.2d 667, at p. 670, fn. 4.)

The licensee asserts that the order of suspension is not supported by substantial evidence for two reasons. First, it argues that because there was a conflict in the evidence as to what size bottles were purchased by the department's investigator, Mr. Etter, it was the department's duty to introduce into evidence the actual bottles purchased as the best evidence of the accused violations. In this respect the licensee also asserts the board erred in failing to consider Evidence Code sections 412 and 413 ² when passing on the weight of the evidence.

The evidence introduced at the hearing before the department consisted in part of the testimony of Mr. Etter. He stated unequivocally on direct examination that he purchased four-fifth quart bottles of whiskey from the licensee on two different occasions and his official report to the department, which was introduced into evidence, verified the size of the bottles as being four-fifth quarts. On cross-examination by the licensee, Mr. Etter's notes, which he made immediately after he purchased the whiskey from the licensee, were introduced into evidence. They showed that he had purchased quart bottles from the licensee and not four-fifth quarts as he had stated on direct examination. When confronted with this inconsistency, Mr. Etter stated that the quart notation was a mistake and that he was certain that he had purchased four-fifth quart bottles.

Technical rules of evidence do not apply to administrative hearings. Government Code section 11513, subdivision (c), provides that 'Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs * * *.' Thus neither the trier of fact nor the board was required to weigh the evidence in accordance with the provisions of sections 412 and 413 of the Evidence Code. At most there is a conflict in the evidence and we are required to resolve all conflicts in the evidence in favor of the department's decision. (DeMartini v. Department of Alcoholic Beverage Control (1963), 215 Cal.App.2d 787, 799, 30 Cal.Rptr. 668.) There is thus substantial evidence to support the finding that the bottles sold to Mr. Etter were four-fifth quarts.

The licensee's second reason for claiming a lack of substantial evidence to support the department's findings is that there was no proof that the minimum retail price schedule was published in accordance with the former provision of section 24755, subdivision (v), that such schedule be published 'prior to the effective date thereof.' ³ The licensee further asserts that in order to prove publication in a trade journal of general circulation there must be introduced into evidence, at the very least, an affidavit of mailing of the journal stating the date on which it was mailed.

Evidence relating to publication consisted of the testimony of Mr. LeRoy Page, a publisher of the Beverage Industry News (News). He testified that on the first day of every month the News published a price book which was sent to every distilled spirits licensee in the northern California trading area; that the prices contained in the book corresponded to those contained in the minimum retail price schedules which were filed with the department; that the News obtained its prices from the brand owners who filed them with the department; that the licensee was on the January 1967 mailing list of the News and that the News had not received any notice from the post office that the licensee was not receiving its issues. In addition, two pages from the January 1967 issue of the News price book were introduced into evidence showing the minimum retail price of four-fifth quarts of the brand whiskey involved in the accusation. Also introduced was a certified copy of the minimum retail price schedule for the whiskey filed with the department on June 15, 1966, which showed its effective date to be August 1, 1966. ⁴ No proof whatsoever...