Harris v. Alcoholic Beverage Control Appeals Bd.

• Decision Date: 26 October 1966
• Citation: 54 Cal.Rptr. 346,245 Cal.App.2d 919
• Court: California Court of Appeals Court of Appeals
• Parties: Malcolm E. HARRIS, Director, Department of Alcoholic Beverage Control, State of California, Petitioner and Respondent, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, State of California, Respondent, James A. GUNKEL, Real Party in Interest and Appellant. Civ. 7987.

Page 346

54 Cal.Rptr. 346

245 Cal.App.2d 919

Malcolm E. HARRIS, Director, Department of Alcoholic Beverage Control, State of California, Petitioner and Respondent, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, State of California, Respondent, James A. GUNKEL, Real Party in Interest and Appellant.

Civ. 7987.

District Court of Appeal, Fourth District,

Division 1, California.

Oct. 26, 1966.

[245 Cal.App.2d 920] Cleveland Smith, Coronado, for real party in interest and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Lynn Henry Johnson, Deputy Atty. Gen., for respondent.

OPINION

WHELAN, Justice.

The Alcoholic Beverage Control Appeals Board (Board) reversed a decision of the Department of Alcoholic Beverage Control (Department) which suspended an on-sale general license for 30 days.

Department filed a petition for writ of mandate seeking judicial review of Board's decision. The writ was granted. James A. Gunkel, the appellant herein (Licensee), was named in the petition as a real party in interest, the suspension of whose license was involved. It is stated in the briefs that he was served with a copy of the petition and of the alternative writ that issued.

On January 22, 1963, an accusation in three counts was filed before Department, charging Licensee with violating TITLE 4, SECTION 143, CALIFORNIA ADMINISTRATIVE CODE¹, in that on three different occasions Licensee permitted a female employee in and upon the licensed premises to accept a drink of vodka, an alcoholic beverage, purchased by another person and intended for the use and consumption of the female employee.

At a hearing held on the accusation, the hearing officer found the charges to be true and recommended that Licensee's license be suspended for 10 days for each count, the suspensions to run consecutively. The Department adopted the hearing officer's decision. The Licensee appealed the decision to the Board.

The following evidence was presented at the administrative hearing: On the evening of September 7, 1962, at two different and separated times, two special investigators for Department went to Licensee's bar and purchased drinks for a waitress who consumed them.

On October 26, 1962, another special investigator went to Licensee's bar. He asked the same waitress if she cared for a drink. She ordered her drink from the bartender; said 'he's paying for it'; and pointed to the investigator. The investigator then told her that any time she wanted a drink to let him know, whereupon she immediately held up her empty glass for the bartender to see. The bartender served her another drink. ²

Board held that the agents violated public policy by instigating the offenses and reversed Department's decision solely on that ground.

LICENSEE'S RIGHT TO APPEAL

Department contends that Licensee has no right to appeal the trial court's judgment because he did not respond to the alternative writ of mandate, in which he was not named, nor participate in the proceedings in the superior court.

It was the choice of Department that the alternative writ of mandate was not directed to Licensee as well as to Board.

Code of Civil Procedure, section 938, provides in part:

'Any party aggrieved may appeal in the cases prescribed in this Title.'

Licensee is an aggrieved party seeking a remedy under Code of Civil Procedure, section 963(1) and entitled to bring this appeal.

In Estate of Sloan, 222 Cal.App.2d 283, 292, 35 Cal.Rptr. 167, 173, the court distinguishes all the cases cited in respondent's brief by saying:

'These cases hold that in addition to being a party 'aggrieved' under section 938 of the Code of Civil Procedure and entitled to appeal, a party must also be a party to the 'record' and move to vacate or otherwise formally oppose the judgment appealed from below. An analysis of the cases * * * indicates that the 'parties of record' requirement was usually applied to exclude parties who were not properly 'aggrieved' and whose interest with the particular litigation was not clearly established * * *. It would be anomalous to hold that a party bound by res judicata * * * is not entitled to appeal.'

The test in this regard is whether the party seeking to appeal has an interest which appears on the record. (Estate of Levy, 4 Cal.2d 223, 48 P.2d 675)

Licensee is named in the body of the petition for writ of mandate as a real party in interest. No doubt he would have been permitted to intervene. His right of appeal should not be cut off because he did not do voluntarily that which Department could have compelled him to do; that is, to show cause why the peremptory writ should not issue.

DID THE INVESTIGATORS ENTRAP LICENSEE'S EMPLOYEES?

The scope of review by Board of findings of Department is limited to a determination whether there is substantial evidence to support the findings. (Harris v. Alcoholic Bev. Con. Appeals Bd., 212 Cal.App.2d 106, 112, 28 Cal.Rptr. 74; Business & Professions Code § 23084(d).)

The decision of Board in the case under review states as the reason for its reversal of Department:

'In this case, the department has exercised not only the traditional roles of investigator, prosecutor, judge, and sentencing authority, but the additional role of instigator of the offense itself. To us this transgresses the bounds of sound public policy within the framework of the facts of this case, constitutes the department proceeding other than in the manner required by law, * * *'

Department contends that Board made a finding of fact when it determined that Department had instigated the offense, which Board, an appellate body, is not entitled to do.

Department contends additionally that the issue of 'instigation' or entrapment was not raised before Department and cannot be raised for the first time before Board. (Harris v. Alcoholic Bev. Con. Appeals Bd., 197 Cal.App.2d 182, 187, 17 Cal.Rptr. 167.) Had that issue been raised before Department, Department's findings would be construed to resolve the issue against Licensee. If based upon substantial evidence, the findings in that respect could not be reversed by Board.

The language quoted from Board's decision makes it clear that Board considered the undisputed facts to show entrapment as a matter of law. On that theory Board could have considered the matter even though an affirmative defense on that ground had not been pleaded. The rule that a party may not deprive his opponent of an opportunity to meet an issue in the trial court by changing his theory on appeal does not apply when the facts are not disputed and the party merely raises a new question of law. (Burdette v. Rollefson Construction Co., 52 Cal.2d 720, 725--726, 344 P.2d 307.)

Entrapment as a matter of law requires a showing of more than an act committed at the instance of a government official. Persuasion or allurement must be shown and not merely the furnishing of an opportunity to commit an offense that one is ready and willing to commit. (United Liquors, Inc. v. Department of Alcoholic Bev. Con., 218 Cal.App.2d 450, 32 Cal.Rptr. 603.)

Putting aside the question whether the defense of 'entrapment,' well recognized in the field of criminal law, has been or should be incorporated into administrative law, it is clear that entrapment, as recognized in criminal law enforcement, does not appear as a matter of law in the record of the proceedings under review.

There is no evidence here of 'tempting innocent persons into violations,' or of an 'originally well-intended defendant who is seduced into crime by...