Harris v. Alcoholic Beverage Control Appeals Bd.

• Decision Date: 21 January 1963
• Citation: 28 Cal.Rptr. 74,212 Cal.App.2d 106
• Parties: Malcom E. HARRIS, Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner and Appellant, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California; and Bernice Keene and Lovitta Richardson, dba Nellie's, 789 Howard Street, San Francisco, California, Respondents. Civ. 20215.
• Court: California Court of Appeals Court of Appeals

Page 74

28 Cal.Rptr. 74

212 Cal.App.2d 106

Malcom E. HARRIS, Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner and Appellant, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California; and Bernice Keene and Lovitta Richardson, dba Nellie's, 789 Howard Street, San Francisco, California, Respondents.

Civ. 20215.

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

Jan. 21, 1963.

Rehearing Denied Feb. 5, 1963.

Hearing Denied March 20, 1963.

Stanley Mosk, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., San Francisco, for appellant.

Leo K. Gallant, Sacramento, for respondent Alcoholic Beverage Control Appeals Board.

Anthony E. O'Brien, San Francisco, for respondents Bernice Keene and Lovitta Richardson.

SULLIVAN, Justice.

This is an appeal by the Department of Alcoholic Beverage Control (hereinafter called the Department) through its director, Malcom E. Harris, from a judgment of the trial court denying a petition for a writ of mandate or writ of certiorari, and discharging an alternative writ of mandate directing the Alcoholic Beverage Control Appeals Board (hereinafter called the Appeals Board) reverse its decision reversing the decision of the Department that the on-sale beer and wine license of Bernice Keene and Lovitta Richardson (hereinafter called the licensees) be revoked. ¹

On May 6, 1959, the Department filed a first amended accusation in two counts against the licensees doing business as Nellie's at 789 Howard Street, San Francisco. ² Count I charged that in the six-month period between September 1, 1958, and February 28, 1959, the licensees exercised the privileges conferred upon them by their license at the above premises in such a manner as to constitute a law enforcement problem for the police department of the City and County of San Francisco. Count II charged that during the same six-month period the licensees permitted the licensed premises to be used as a disorderly house and a place to which people resorted for purposes injurious to the public morals, health, convenience and safety in that intoxicated persons were permitted to frequent the establishment.

The above acts set forth in both Counts I and II were charged as providing grounds for the suspension or revocation of licensees' license under article XX, section 22 of the California Constitution and section 24200, subdivision (a) of the Business and Professions Code. ³ It was also charged that the acts set forth in Count II provided additional grounds for such suspension or revocation under section 24200, subdivision (b) in that such acts were a violation of section 25601 (keeping a disorderly house). ⁴ There had been no prior disciplinary action against the licensees.

The Department, adopting the proposed decision of the hearing officer who found all of the charges to be true, revoked the license on each of the two counts. The licensees appealed to the Appeals Board. That board determined that the Department's findings were not supported by substantial evidence in the light of the whole record and reversed the decision of the Department. The Department then filed in the court below its petition for a writ of mandate and for writ of certiorari and the matter was submitted on such petition, the return thereto, and the entire administrative record, not only of the proceedings before the Department but also of those before the Appeals Board but without the court receiving any additional evidence. The trial court found that 'the Appeals Board correctly decided that the decision of the Department was not supported by substantial evidence in the light of the whole record' and denied the petition. It is from such judgment that the Department now takes this appeal.

The appellant makes two contentions before us: (1) That there is substantial evidence in the record to support the determination of the Department that the licensed premises were a police problem; and (2) that there is such substantial evidence to support the findings that the premises were a disorderly house.

We first make some observations concerning the nature and scope of our review. The Constitution of California confers upon the Department of Alcoholic Beverage Control 'the power, in its discretion, to * * * suspend or revoke any specific alcoholic beverage license if it shall determine for good cause that the * * * continuance of such license would be contrary to public welvare or morals * * *.' (Cal.Const., art. XX, § 22.) The same section of the Constitution confers upon the Alcoholic Beverage Control Appeals Board the power, upon an appeal thereto by any aggrieved person, to review the decision of the department 'subject to such limitations as may be imposed by the Legislature. In such cases, the board shall not receive evidence in addition to that considered by the department. Review by the board of a decision of the department shall be limited to the questions whether the department has proceeded without or in excess of its jurisdiction, whether the department has proceeded in the manner required by law, whether the decision is supported by the findings, and whether the findings are supported by substantial evidence in the light of the whole record.' (Cal.Const., art. XX, § 22.) In addition, and insofar as is pertinent here, section 23084 provides that '[t]he review by the board of a decision of the department shall be limited to the questions: * * * (d) Whether the findings are supported by substantial evidence in the light of the whole record.' The powers thus conferred upon the Appeals Board are strictly limited and 'certainly no greater than those previously exercised by the courts on judicial review of the decisions of the State Board of Equalization.' (Martin v. Alcoholic Beverage Control Appeals Board (1959) 52 Cal.2d 238, 246, 340 P.2d 1, 6, citing Covert v. State Board of Equalization (1946) 29 Cal.2d 125, 173 P.2d 545.) The phrase 'substantial evidence in the light of the whole record' signifies no more than the adoption of the substantial evidence rule 'as generally applied in judicial proceedings in this state' and therefore the Appeals Board in its review of the sufficiency of the evidence to support the administrative findings of the Department is governed by such substantial evidence rule. (Martin v. Alcoholic Beverage Control Appeals Board, supra, 52 Cal.2d pp. 246-247, 340 P.2d pp. 5-6.)

It is also well and long established that the judicial review of a decision of the Department, invoked by the filing in the superior court of a petition for a writ of mandate, is also limited in scope. Such court in not entitled to exercise its independent judgment on the effect and weight of the evidence as it is permitted to do when reviewing the findings of legislatively created statewide administrative agencies, but is simply called upon to determine whether the findings of the Department are supported by substantial evidence. (Morell v. Department of Alcoholic Beverage Control (1962) 204 A.C.A. 852, 855, 22 Cal.Rptr. 405; Benedetti v. Department of Alcoholic Beverage Control (1960) 187 Cal.App.2d 213, 216-217, 9 Cal.Rptr. 525; Brice v. Department of Alcoholic Beverage Control (1957) 153 Cal.App.2d 315, 314 P.2d 807; Oxman v. Department of Alcoholic Beverage Control (1957) 153 Cal.App.2d 740, 744, 315 P.2d 484.) ⁵ In many instances and in all of the immediately preceding cases, the Appeals Board has affirmed the Department and judicial review by mandamus is sought in respect to the decision of the Department as affirmed by the Appeals Board. In the instant matter it is to be noted that the Appeals Board has not upheld the decision of the Department. Where therefore, as here, the judicial review sought in the superior court is directed at the decision of the Appeals Board reversing the decision of the Department, it is clear 'that any judicial determination of whether the Appeals Board had exceeded its 'limited' powers would incidentally require a review of the decision of the Department and of the record upon which the Department's decision had been based.' (Martin v. Alcoholic Beverage Control Appeals Board, supra, 52 Cal.2d 238, 245, 340 P.2d 1, 5.)

The cause at bench now rests on the third successive level of review. We must determine whether the trial court properly reviewed the decision of the Appeals Board by reviewing 'the evidence and the findings of the Department in the same fashion that an appellate court reviews the findings of trial courts.' (Brice v. Department of Alcoholic Beverage Control, supra, 153 Cal.App.2d 315, 323, 314 P.2d 807, 812.) It is equally obvious at this point that any determination on our part as to whether or not the court below has erred implicitly requires us to consider whether the Appeals Board has exceeded its limited powers, and in turn enjoins our review of the very fundament of the proceedings, the decision and record of the Department itself.

We reach this final result: The scope of review at each of the three levels of review is the same and consists in the application of the substantial evidence rule to the original record of the Department. It is now our function, as it was that of the Appeals Board and the court below, merely to determine whether the findings of the Department are supported by substantial evidence. In making this determination we must resolve all conflicts in the evidence in favor of the Department's decision and indulge in all legitimate and reasonable inferences to support it. (Morell v. Department of Alcoholic Beverage Control, supra, 204 A.C.A. 852, 856, 22 Cal.Rptr. 405; Oxman v. Department of Alcoholic Beverage Control, supra, 153 Cal.App.2d 740, 744, 315 P.2d 484; Marcucci v. Board of Equalization (1956) 138 Cal.App.2d 605, 608-609, 292 P.2d 264.) This is the extent of our review. Neither the Appeals Board nor the courts 'may disregard or overturn a finding of fact of the Department * * * for the reason...