Givens v. Department of Alcoholic Beverage Control

• Decision Date: 22 December 1959
• Citation: 176 Cal.App.2d 529,1 Cal.Rptr. 446
• Court: California Court of Appeals Court of Appeals
• Parties: James R. GIVENS, dba Royal Palms, 1000 E. Anaheim, Long Beach, California, Petitioner and Appellant, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL and Alcoholic Beverage Control Appeals Board, Defendants and Respondents. Civ. 23985.

Page 446

1 Cal.Rptr. 446

176 Cal.App.2d 529

James R. GIVENS, dba Royal Palms, 1000 E. Anaheim, Long Beach, California, Petitioner and Appellant, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL and Alcoholic Beverage Control Appeals Board, Defendants and Respondents.

Civ. 23985.

District Court of Appeal, Second District, Division 2, California.

Dec. 22, 1959.

Edwin J. Wilson, Long Beach, for appellant.

Stanley Mosk, Atty. Gen., Warren H. Deering, Deputy Atty. Gen., for respondents.

FOX, Presiding Justice.

Petitioner's on-sale beer license was ordered revoked. He sought a writ of mandate to set aside this order. From an adverse judgment, he has appealed.

Givens was a cafe proprietor in Long Beach in connection with which he had an on-sale beer license. On May 17, 1957, an accusation was filed with the Department of Alcoholic Beverage Control, hereinafter referred to as the Department, charging petitioner with violations of section 24200, subdivisions (a) and (b), and section 25601, Business and Professions Code. ¹ On May 20 petitioner was duly served and on May 23 he filed a notice of defense to the accusation. On June 3 the Department served upon petitioner a notice that the hearing on the accusation would be held on July 18, 1957, and further advised petitioner that he 'may be but need not be represented by counsel.' Givens appeared at the hearing without counsel and made an unsupported oral motion for a continuance on the ground that his attorney was engaged in trial and would not be available for several days. Petitioner's motion for a continuance was denied and the hearing proceeded. The hearing officer found the allegation of the accusation to be true and recommended revocation of petitioner's license. This recommendation was approved by the Department. Petitioner then appealed to the Alcoholic Beverage Control Appeals Board, which affirmed the decision of the Department. Thereupon petitioner filed a petition for a writ of mandate to set aside the order or revocation. It is from the ensuing judgment denying him relief that petitioner appeals.

Two questions are presented: (1) Was Givens accorded due process in the administrative hearing; and (2) was the decision of the hearing officer supported by his findings of fact?

Givens argues that he was denied a fair hearing due to the fact that the hearing officer refused to grant a continuance and he was thus without the aid of counsel of his choice in the subsequent proceedings. This major contention contains two separate arguments: (1) That Givens was denied the right to counsel of his choice; and (2) that the hearing officer abused his discretion in refusing to grant a continuance. The first argument is devoid of merit for the reason that Givens was not denied the right to counsel; he was in fact notified of his right to employ and appear by counsel by the terms of the Notice of Hearing served upon him on June 3, 1957, some 46 days before the day set for the hearing. The Notice of Hearing, pursuant to section 11509 of the Government Code, stated in part: 'You may be present at the hearing, may be but need not be represented by counsel, may present any relevant evidence, and will be given full opportunity to cross-examine all witnesses testifying against you.' (Emphasis added.) No denial of this right by the hearing officer is revealed by the record. Rather, the action taken by the hearing officer was a refusal to grant a continuance. As a result of this ruling, Givens, who had failed to provide himself with counsel who could appear on the day of the hearing, was without counsel during the proceedings. Therefore, unless the refusal of the hearing officer to grant a continuance was an abuse of discretion, there was no denial of due process.

In such proceeding as this, there is no absolute right to a continuance. Section 11524 of the Government Code provides for continuances in such proceedings at the discretion of the hearing officer and for 'good cause shown.' Moreover, there is no absolute right, even in a criminal trial, to be represented by a particular attorney, when this is made the grounds for a motion for a continuance. People v. Dowell, 204 Cal. 109, 266 P. 807, certiorari denied 278 U.S. 660, 49 S.Ct. 7, 73 L.Ed. 568; People v. Manchetti, 29 Cal.2d 452, 458, 175 P.2d 533; People v. Shaw, 46 Cal.App.2d 768, 774, 117 P.2d 34. Since the only showing made by Givens in support of his motion was his oral statement that his attorney was engaged elsewhere, the refusal of the hearing officer to grant the motion was not an abuse of discretion, and may not be disturbed on appeal. Schlothan v. Rusalem, 41 Cal.2d 414, 417, 260 P.2d 68; Mann v. Pacific Greyhound Lines, 92 Cal.App.2d 439, 445, 207 P.2d 105; Maynard v. Bullis, 99 Cal.App.2d 805, 807, 222 P.2d 685.

We come now to a consideration of the second question presented by this appeal: whether or not the decision of the hearing officer is in conflict with his findings of fact. Givens does not contend that the findings are not supported by the evidence in the light of the whole record. However, he does urge that the findings do not support the determination that he was guilty of a violation of sections 24200(a) and 24200(b) and section 25601 of the Business and Professions Code. (See Note, supra.) Givens argues that the findings of the hearing officer show that he made reasonable attempts to control his customers and that he neither permitted nor consented to any of the violations which occurred on the premises and which the hearing officer set forth in the findings as the basis of the revocation of his license. Givens points out that the hearing officer found as a fact that: '* * * respondent [Givens] has tried to keep the disturbances down and tried to prevent persons from bringing in wine and whiskey and starting fights but that the rough element frequenting this business will often start a fight if they...