DeMartini v. Department of Alcoholic Beverage Control

Decision Date07 May 1963
Citation215 Cal.App.2d 787,30 Cal.Rptr. 668
CourtCalifornia Court of Appeals Court of Appeals
PartiesDario DeMARTINI and Emilio J. Maionchi, Plaintiffs and Respondents, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL of the State of California, Defendant and Appellant. Dario DeMARTINI and Emilio J. Maionchi, Plaintiffs and Appellants, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL of the State of California, Defendant and Respondent. Civ. 19938, 20051.

Stanley Mosk, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., San Francisco, for Dept. of Alcoholic Beverage Control.

M. Mitchell Bourquin, San Francisco, for respondents DeMartini and maionchi.

SULLIVAN, Justice.

We are presented with cross-appeals from a judgment reviewing a single administrative record. In 1 Civil No. 19938, the Department of Alcoholic Beverage Control (hereinafter called the Department) appeals from a judgment of the trial court ordering the issuance of a peremptory writ of mandate commanding the Department to vacate and set aside its decision that the off-sale general license of Dario DeMartini and Emilio J. Maionchi (hereinafter called the licensees) be suspended. In 1 Civil No. 20051, the licensees appeal from that part of the above judgment which commands the Department to take such further steps in the proceedings against them as are not inconsistent with the trial court's findings of fact and conclusions of law.

We observe that both the Department and the licensees also separately appeal from the peremptory writ of mandate issued pursuant to the judgment. Section 963 of the Code of Civil Procedure here applicable (Code Civ.Proc. § 1110) makes provision for appeals from judgments, orders or decrees but not from writs. (Butler v. City & County of San Francisco (1951) 104 Cal.App.2d 126, 128, 231 P.2d 75; Kindig v. Palos Verdes Homes Ass'n (1939) 33 Cal.App.2d 349, 355, 91 P.2d 645.) Each of the attempted appeals from the peremptory writ of mandate must be dismissed.

On February 27, 1957, the Department filed an accusation in nine counts against the licensees doing business as the Liquor Mart, 264 Kearny Street, San Francisco. The first seven counts charged said licensees with selling to the same vendee on seven specified dates in August, September, October and November 1956, various brands of alcoholic beverages at retail at prices less than the so-called fair trade price. The eighth count charged that the licensees made sales and deliveries of alcoholic beverages to the vendee designated in the first seven counts and over the period of time embraced thereby, that is from August 28, 1956, through November 30, 1956, 'pursuant to an order and did fail to accompany said orders with delivery orders.' The ninth count charged that the licensees made sales and deliveries of alcoholic beverages to the vendee and over the period of time designated in the eighth count 'pursuant to an order and failed to keep on file a copy of said delivery orders.'

The acts set forth in all nine counts were charged as providing grounds for suspension or revocation of the licensees' license under article XX, section 22 of the California Constitution and section 24200, subdivision (a) of the Business and Professions Code. 1 It was also charged that additional grounds for suspension or revocation under section 24200, subdivision (b), 2 existed in that the sales set forth in the first seven counts were in violation of section 24755 and of rule 99(f) of the Department's rules (Title IV, § 99(f), Cal.Admin.Code).

In response to the Department's accusation, the licensees filed an amended notice of defense in which they: admitted that the sales allegedly made in the first seven counts of the accusation had been made at the prices therein alleged; denied that the 'fair trade prices' alleged in said counts were stipulated or fixed in any fair trade contract; alleged that section 24755 and rule 99 were unconstitutional; alleged that the alcoholic beverages subject of said accusation 'were not, and are not, in free and open competition with alcoholic beverages of the same general class produced by others within the meaning of the laws exempting price fixing from the public policy of the state'; that the fair trade contracts involved 'were, and are, within the provisions of the Sherman Anti-Trust Act and the Cartright Act'; that rule 99 was violative of section 11374 of the Government Code; and that the allegedly fair trade prices were not supported by a valid contract but were the result of compulsory agreements.

The hearing officer found in terms of the accusation that the allegations of all nine counts were true. The Department, adopting the proposed decision of the hearing officer but increasing the penalty recommended, suspended licensees' license for a total period of 45 days. The licensees appealed to the Alcoholic Beverage Control Appeals Board (hereinafter called the Appeals Board) which affirmed the Department's decision on the first eight counts but reversed it on the ninth count. A petition for writ of mandate was then filed by the licensees in the court below.

The trial court 3 found, so far as is pertinent here, that there was no substantial evidence: that the alcoholic beverages subject to the accusation were in fair and open competition with alcoholic beverages of the same general class produced by others; that the minimum retail prices of the beverages subject to the first seven counts 4 and the schedules filed with the Department 'were fixed or agreed upon by the manufacturers or brand-owners thereof with the retail licensees party and signatory to the agreements aforesaid' or that said retail licensees were even consulted; that any retail licensee received anything of value from the manufacturers or brand owners who were parties to the agreements; or that the licensees wilfully or with intent to evade the rules or regulations of the Department failed to accompany delivery of the alcoholic beverages with a delivery order. The court concluded that in ordering the suspension of the license without finding that the alcoholic beverages subject of the accusation were in fair and open competition with those of the same class produced by others, the Department proceeded without and in excess of its jurisdiction and not as required by law; that the decision was not supported by the findings nor the findings by the evidence; and granted judgment accordingly, ordering issuance of a peremptory writ of mandate. This appeal followed.

It is the position of the Department that the findings of the trial court unfavorable to it are not supported by the administrative record and are therefore erroneous. Specifically, the Department claims that the evidence in such record establishes: (1) That the beverages involved were in fair and open competition; (2) that the minimum retail price schedules were part of the fair trade contracts 5; (3) that the fair trade contracts were valid; and (4) that the licensees were guilty of a violation on the eighth count. 6 It is the position of the licensees that the findings of the trial court thus attacked were not erroneous and that the judgment below should be affirmed for the additional reason that the hearing officer failed to make findings as required by law that the alcoholic beverages in question were in fair and open competition with alcoholic beverages of the same general class produced by others.

The facts as disclosed by the administrative record can be briefly stated. All sales charged in the first seven counts were of distilled spirits and embraced various brands of bourbon whiskey, scotch whiskey and gin. At the hearing, the licensees stipulated that they sold the particular beverages listed in such counts on the dates, to the persons and at the prices alleged therein. There were also received in evidence upon the offer of the Department and over the objections of the licensees, 7 certified copies of certain fair trade contracts and fair trade contract price schedules filed with the Department and covering in the aggregate all of the brands of distilled spirits subject of the foregoing sales. 8 The general effect of this documentary evidence was to establish the alleged minimum resale prices specified for the respective brands. There was also testimony introduced by the Department that during the period of time covered by the accusation, the fair trade prices filed with the Department were published in an industry publication and regularly distributed to all licensees at all levels of distribution in the Northern California trading area, including San Francisco where the licensees herein conducted their business. The licensees in the instant case stipulated at the hearing that the fair trade prices set forth in the various fair trade contracts and schedules received in evidence appeared in specified issues of the above publication. Thus, in summary, the administrative record shows that while the licensees herein admitted that they made the sales in question at the prices alleged and thus in effect at prices less than those set forth in the contracts and schedules, they denied that any 'fair trade prices' had been effectively fixed or established by the contracts. This represents the hard core of the record upon which the hearing officer made his findings.

As we have pointed out, the trial court made several findings of its own declaring the insufficiency of the evidence to support the determination of the Department in a number of respects. It is important that we place the latter findings, now under attack, in proper focus and to that end set forth the rules which governed the trial court's function of review and now govern ours. It must not be lost sight of that the Department is an agency upon which the Constitution has conferred limited judicial powers. (Cal.Const. art. XX, § 22.) The trial court therefore was not entitled...

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    ...the proper conduct of the trial court in its review of the decision of the Appeals Board. (De Martini v. Department of Alcoholic Beverage Control (1963) 215 Cal.App.2d 787, 798, 30 Cal.Rptr. 668.) At the outset we emphasize that the fundamental distinction between factual determinations and......
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