Kirby v. Alcoholic Bev. etc. App. Bd.

• Decision Date: 31 December 1969
• Citation: 83 Cal.Rptr. 89,3 Cal.App.3d 209
• Court: California Court of Appeals Court of Appeals
• Parties: Edward J. KIRBY, as Director of Alcoholic Beverage Control of the State of California, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent; Samuel J. LOPEZ, doing business as Kleenway Market, Real-Party in Interest. Civ. 35249.

Page 89

83 Cal.Rptr. 89

3 Cal.App.3d 209

Edward J. KIRBY, as Director of Alcoholic Beverage Control of the State of California, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent Samuel J. LOPEZ, doing business as Kleenway Market, Real-Party in Interest.

Civ. 35249.

Court of Appeal, Second District, Division 3, California.

Dec. 31, 1969.

Thomas C. Lynch, Atty. Gen., and David W. Halpin, Deputy Atty. Gen., for petitioner.

Leo K. Gallant, Loomis, for respondent.

Edward C. Dowd, Escondido, for real party in interest.

FEINERMAN, Associate Justice Pro Tem. ^*

This is a review of a decision by the Alcoholic Beverage Control Appeals Board reversing a decision of the Department of Alcoholic Beverage Control ordering revocation of an off-sale beer and wine liquor license.

On June 19, 1968, the department filed an accusation against real party in interest, Samuel J. Lopez, doing business as Kleenway Market. The pertinent portions of the accusation are as follows:

'COUNT I

'Continuance of the above-designated license would be contrary to public welfare and morals and grounds for suspension or revocation of the license exist within the meaning of Article XX, Section 22, of the California State Constitution and Sections 24200(a) and (d) of the Business and Professions Code, in that respondent/licensee, Samuel J. Lopez, holder of an off-sale beer and wine license, licensed since April 25, 1955, and the holder of the above-designated license since June 19, 1961, has been convicted of a crime involving moral turpitude.

'(a) Between June 1, 1967, and June 30, 1967, Samuel J. Lopez, licensee at above-designated premises, violated Section 496.1 of the California Penal Code, in that he did buy, receive, conceal and withhold from the owners thereof certain property, to-wit: ladies clothing, which had been stolen, knowing the same to be stolen; and, on or about March 12, 1968, Samuel J. Lopez, licensee at above-designated premises, entered a plea of Nolo Contendere to one count of Section 496.1 of the California Penal Code, was convicted of the crime of receiving stolen property knowing same to have been stolen (496.1 PC) as charged and set forth in an Information filed by the District Attorney, San Diego County, on October 20, 1967, and was fined $1,850.00 and placed on three (3) years probation under the supervision of the Probation Officer of San Diego County.'

An administrative hearing was held before a hearing officer of the Office of Administrative Procedure on August 29, 1968. At this hearing various documents were introduced in evidence including certified copies of records of the superior court action conducted in San Diego County in which Lopez had entered a Nolo contendere plea to a violation of Penal Code section 496, subdivision 1. Officer Capps of the San Diego Police Department was called as a witness by the department. He testified that he went to the Kleenway Market on August 31, 1967, with three other police officers, to serve an arrest warrant on Lopez. Officer Capps served the warrant on Lopez, advised him of his constitutional rights, and subsequently searched the storeroom area of the store and the living quarters on the second floor of the store building. The articles discovered which were suspected of being contraband were inventoried Of these articles, all women's wear, approximately 75 percent were identified by employees of Haggarty's Department Store as being the property of that store. Many of the articles contained tags marked: 'Haggarty's.' Some of the clothing items bore the brand label 'Dynasty,' an exclusive Haggarty's label.

Lopez, who testified at the hearing on his own behalf, admitted that he had received the merchandise from a person identified only as 'Mr. McCutchin.' There were four transactions between March and June of 1967. The price paid on the first occasion was $80 for a box containing approximately 45 to 50 blouses, skirts and sweaters. Lopez admitted seeing 'a couple of tags on several dresses,' but he said that the tags meant nothing to him. Lopez also testified that he had no reason to suspect the clothing had been stolen. On cross-examination Lopez stated that the clothing found in his living quarters had been retained for the personal use of his wife and daughter.

With respect to the first purchase, Lopez testified that McCutchin offered no invoice and that Lopez had made out a bill which McCutchin marked 'Paid' but did not sign. The name of the seller, 'J & J Jobbers' was placed on the document by Lopez, but no address was inserted thereon. Lopez paid $50 for a second lot which contained some articles with Haggarty's price tag on them. Again, no invoice was offered and a bill prepared by Lopez was marked 'Paid' by McCutchin, but it was unsigned as well.

In May or June of 1967, Lopez purchased a third lot of clothing for $50. The same procedures were followed by Lopez and McCutchin with reference to the preparation of a bill. At this point Lopez stated he began to get suspicious, but he made no inquiry of McCutchin as to the source of the merchandise. Lopez paid $50 for a fourth lot in June 1967. No invoice was presented, but McCutchin promised to make out a bill and mark it 'Paid' on his next visit. Lopez testified that he did not ask McCutchin for any positive identification. Lopez indicated that he made no further purchases from McCutchin because McCutchin never showed up again.

The articles acquired from McCutchin did not sell very well at Kleenway Market; so Lopez entered into a consignment agreement with a Chuck Owens in Tijuana. The merchandise was transported to Owens in Tijuana, as a favor to Lopez, by customer acquaintances of Lopez. At no time was there any bulk shipment. The shipments were packaged in lots small enough to fit in the back seat of a car.

On September 19, 1968, the department adopted the proposed decision of the hearing officer as its decision. The proposed decision, revoking Lopez' license, was as follows:

'FINDINGS OF FACT:

'COUNT I

'Respondent Samuel J. Lopez has been convicted of a crime involving moral turpitude, as follows:

'Between March, 1967 and June, 1967 respondent, at the above designated licensed premises, violated Section 496.1, Penal Code of California, in that he bought, received and withheld from the owners thereof certain ladies clothing which had been stolen, with knowledge that said clothing had been stolen. On March 12, 1968 respondent entered a plea of nolo contendere to one count of violating Section 496.1, Penal Code of California (receiving stolen property knowing the same to be stolen), on which plea he was convicted of the offense as charged in an information filed by the District Attorney of San Diego County on October 20, 1967. On April 2, 1968 imposition of sentence on respondent was suspended for three years and respondent was placed on probation to the Probation Officer of San Diego County for three years on conditions, including that he pay a fine of $1500 plus a penalty assessment of $350 on or about April 10, 1968 through the said probation officer. By order dated April 30, 1968 nunc pro tunc April 2, 1968 the offense of respondent was adjudicated a misdemeanor.

'FINDINGS AS TO PREVIOUS RECORD:

'Has held Type 20 license at the above described premises, with a partner from April 25, 1955 to June 19, 1961 and as sole owner since June 19, 1961. Accusation Reg. No. 4442, violation of Section 23402, Business and Professions Code of California and Section 496, Penal Code of California; on October 8, 1964 order of revocation was imposed, with revocation stayed on condition that the license be suspended for sixty days, operative October 22, 1964, and that there be no cause for disciplinary action within three years from October 22, 1964. If cause found during said three year period, the stay of revocation shall be vacated.

'DETERMINATION OF ISSUES PRESENTED:

'Respondent violated and has been convicted of violation of Section 496.1, Penal Code of California. Grounds exist for the suspension or revocation of the license pursuant to the provisions of Article XX, Section 22, California Constitution, and Sections 24200(a) and 24200(d), Business and Professions Code of California. Continuance of the license would be contrary to public welfare and morals.

'PENALTY: The license is revoked.'

An appeal was taken by Lopez and on August 11, 1969, the board filed its written decision reversing the decision of the department. It is the opinion of the board that 'the department's finding of fact is not supported by substantial evidence in the light of the whole record and that the finding does not support the department's decision.' In reaching its conclusion the board decided that a conviction based upon a Nolo contendere plea does not constitute a 'plea, verdict, or judgment of guilty to any public offense involving moral turpitude' as provided by section 24200(d) of the Business and Professions Code.

Petitioner now contends that the appeals board disregarded substantial evidence in the light of the whole record before the department in support of the findings in the department's decision and in support of said decision; that the appeals board erred in law when it concluded that the plea of Nolo contendere was not a plea of guilty to a public offense involving moral turpitude within the meaning of Business and Professions Code section 24200(d); and that in determining that the license should not be revoked, the appeals board substituted its discretion for that of the department.

The findings of the Department of Alcoholic Beverage Control must be sustained if they are supported by substantial evidence in the light of the whole record. (Bus. & Prof.Code § 23090.2(d).) Neither the appeals board nor this court may disregard or overturn a finding of fact of the department because it is considered that a contrary finding would have been equally or more reasonable. In...