Harris v. Alcoholic Beverage Control Appeals Bd. of Cal.

• Decision Date: 21 November 1961
• Citation: 197 Cal.App.2d 182,17 Cal.Rptr. 167
• Parties: Malcolm E. HARRIS, Director of The Department of Alcoholic Beverage Control of the State of California, Petitioner and Respondent, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD OF the State of CALIFORNIA; Robert L. Swann, doing business as The Lariat, 2752 North Lee Avenue, South El Monte, California, Respondents and Appellants. Civ. 25426.
• Court: California Court of Appeals Court of Appeals

Page 167

17 Cal.Rptr. 167

197 Cal.App.2d 182

Malcolm E. HARRIS, Director of The Department of Alcoholic Beverage Control of the State of California, Petitioner and Respondent, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD OF the State of CALIFORNIA; Robert L. Swann, doing business as The Lariat, 2752 North Lee Avenue, South El Monte, California, Respondents and Appellants.

Civ. 25426.

District Court of Appeal, Second District, Division 1, California.

Nov. 21, 1961.

Leo K. Gallant, Loomis, Associate Counsel Alcoholic Beverage Control Appeals Bd., for appellant.

Stanley Mosk, Atty. Gen., and Warren H. Deering, Deputy Atty. Gen., for respondent.

WOOD, Presiding Justice.

The Alcoholic Beverage Control Appeals Board reversed a portion of a decision of the Department of Alcoholic Beverage Control (that portion which pertained to the last four counts of an accusation--Counts VIII, IX, X, and XI). The Department petitioned the superior court for a writ of mandate directing the Appeals Board to vacate its reversal of said portion of the Department's decision. The petition was granted and the writ was issued. The Board appeals from the judgment granting the petition and ordering the issuance of a peremptory writ of mandate.

On May 15, 1959, the Department of Alcoholic Beverage Control filed an accusation against Robert L. Swann, a holder of an 'on-sale' alcoholic beverage license, who was doing business as 'The Lariat' in El Monte. The accusation alleged, in 11 counts, that the licensee had violated, or permitted violations of, certain sections of the Business and Professions Code, namely: section 25658, subdivisions (a) ¹ and (b) ²; and section 25665 ³. (The provisions of said sections are to the effect that it is a misdemeanor (1) to sell alcoholic beverage to a minor, (2) for a minor to consume alcoholic beverage in any on-sale premises, and (3) to permit a minor to enter and remain in the licensed premises without lawful business therein.)

Count I of the accusation alleged that the licensee Swann, 'by his waitress,' sold an alcoholic beverage, beer, to one Evans, a minor, who was 18 years of age.

Counts II and III were in substance the same as Count I, except that other minors (Hagan and Bane) were named as vendees.

Counts IV, V, VI, and VII alleged that the licensee permitted said minors, Evans, Hagan, and Bane (who were named in the preceding counts), and another minor, Tipton, to consume beer upon the licensee's premises.

Counts VIII, IX, X, and XI alleged that the licensee permitted the said minors, Evans, Hagan, Tipton, and Bane, respectively, to enter and remain on the licensed premises when they were without lawful business therein.

The date of the violations, as alleged in the counts pertaining to each minor except Bane, was May 2, 1959. The date, as alleged in the counts pertaining to Bane (Counts III, VII, and XI), was April 12, 1959.

At the hearing upon the accusation, on June 12, 1959, before a hearing officer of the Department, the licensee Swann stipulated that the charges in the accusation were true. The hearing officer made his 'Proposed Decision' wherein, under the heading of 'Findings of Fact,' he set forth the 11 counts of the accusation, and then stated that the licensee stipulated as to the truth of all counts of this accusation but offered nothing by way of defense or in mitigation. Under the hearing of 'Determination of Issues,' he stated that the licensee violated said section 25658, subdivision (a), as to Counts I, II, and III, and permitted a violation of said section 25658, subdivision (b), as to Counts IV, V, VI, and VII, and permitted a violation of said section 25665 as to Counts VIII, IX, X, and XI. He also stated therein that grounds constituting a basis for suspension of the license, under section 24200, subdivision (b), of the Business and Professions Code, 'have been established as to each and every count herein.' He recommended that the licensee be suspended for 5 days on each count for a total suspension of 55 days.

The proposed decision of the hearing officer was adopted by the Department as its decision.

The licensee (Swann) appealed from that decision to the Appeals Board. The Board reversed the portion of the decision of the Department with respect to the last four counts of the accusation--Counts VIII, IX, X, and XI, which pertained to violations of said section 25665 (permitting minors to enter and remain in the premises without lawful business therein). In reversing that portion of the decision, the Appeals Board stated that the violation of section 25658, subdivision (b) [relative to permitting a minor to consume alcoholic beverage on the premises], necessarily involved a violation of section 25665 (relative to permitting a minor to enter and remain in the premises); and that the presence of the minors in the premises was necessarily a part of the violation charged under section 25658, subdivision (b) [relative to consuming the beverage], and 'accordingly could only form the basis for a single charge against appellant [licensee].' The Appeals Board also stated that the Department erred in charging and finding 'two separate offenses pertaining to each single transaction and therefore, Counts VIII, IX, X, and XI of the Department's decision are reversed.' The Board also said that the acts charged under section 25658, subdivision (a) [selling to a minor], are not included within the violation charged under said section, subdivision (b) [permitting a minor to consume the beverage on the premises].

The Department petitioned the superior court for a writ of mandate directing the Appeals Board to vacate its reversal of said portion of the Department's decision.

The court found, among other things, that the licensee personally appeared at the hearing before the hearing officer and stipulated that each and all of the counts were true; that during the pendency of the proceeding before the Department, the licensee did not object to allegations of the accusation or to the form of the accusation, nor assert a defense that the doctrine of 'included offense' applied to the proceedings, or assert any other defense or objection; that there was substantial evidence in the light of the whole record before the Department to support each finding of the Department as to Counts VIII, IX, X, and XI; that the findings of the Department support its decision; that the licensee (Swann) interposed the defense of 'included offenses' and 'double jeopardy' in the proceedings before the Appeals Board but did not interpose such a defense during the proceedings before the Department; that the licensee was given a fair hearing and due process of law in the hearing before the Department.

Appellant (Appeals Board) asserts that in the present proceeding a violation of section 25658, subdivision (b) [permitting minor to consume the beverage on the premises], inevitably and necessarily involves a violation of section 25665 (permitting minor to enter and remain on the premises) and 'so the latter is an offense necessarily included in the former.' The appellant asserts further that 'without a showing that...