Kirby v. Alcoholic Bev. etc. Appeals Bd.
| Citation | 87 Cal.Rptr. 908,8 Cal.App.3d 1009 |
| Court | California Court of Appeals |
| Decision Date | 23 June 1970 |
| Parties | Edward J. KIRBY, Director of the Department of Alcoholic Beverage Control of the State of California, Plaintiff and Respondent, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Defendant, and Marino Del Cario, Defendant and Appellant. Civ. 26543, 26544. |
Dooling, Kelly & Moiseeff, Joseph I. Kelly, San Francisco, for appellant.
Thomas C. Lynch, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., San Francisco, for respondent.
In each of these consolidated actions the licensee has appealed from a judgment of the superior court 1 granting the Director of the Department of Alcoholic Beverage Control a peremptory writ of mandate commanding the Alcoholic Beverage Control Appeals Board to set aside a decision and order which had reversed a decision of the Department suspending the licensee's license for sales of liquor at less than the effective minimum price. (Bus. & Prof.Code, § 24755.) In each case the Appeals Board had determined that the evidence did not support the findings of the Department with respect to whether or not there was a publication mailed to all, or substantially all, of the licensees affected by the minimum price schedule which the licensee admittedly violated. 2
The licensee's sole contention 3 on appeal is that the court below erred because the Department's finding of publication in compliance with the statute is based solely on hearsay and therefore the finding is not supported by substantial evidence and was properly set aside by the Appeals Board. The record reveals that the licensee stipulated to facts which satisfy the legal requirements of publication as interpreted by the courts; that the controversial testimony is not necessarily hearsay on the material issue involved; that the licensee failed to properly raise the issue before the Department; and that the licensee failed to meet the burden of proof which shifted to him because of the presumption of regularity which arose from the Department's certification of the price schedules. Accordingly the judgments must be affirmed.
Action 1 Civil 26544 involves sales which occurred on March 25, 1965 and April 29, 1965. An accusation charging these two offenses, and an additional offense which was dismissed, was filed September 8, 1965. After a hearing, the Department adopted the proposed decision of the hearing officer on February 17, 1966, and ordered the licensee's license suspended for 15 days on each of two counts severally, separately, and consecutively for a total of 30 days.
Meanwhile sales on September 18, 1965 and October 16, 1965 resulted in the proceedings which are the subject of action 1 Civil 26543. An accusation was filed on October 27, 1965, and after hearing and the submission of a proposed decision, the Department on February 17, 1966 adopted the decision and suspended the license for 15 days on each count, severally, separately and consecutively for a total of 30 days, and ordered that this suspension follow the suspension imposed in the prior case.
Thereafter the two matters followed parallel courses, through the Appeals Board and superior court, to this court.
The licensee admits that the evidence in each case is sufficient to support the findings that sales did occur at the prices indicated in the findings, and that the sales price was less than the price set forth in the price schedule filed with the Department by each of the respective brand owners.
At the hearing on the first accusation, photostatic copies of pages of the Beverage Industry News, a monthly publication, for the months of March and April 1965, which set forth the prices for the beverages in question as found in the schedules filed with the Department, were introduced in evidence without objection. Counsel stipulated as follows: 'Mr. Leroy Page is the publisher and/or editor of the Beverage Industry News Price Book, that the Price Book is a publication and trade journal published monthly, and that it contains the wine prices and Fair Trade prices and discounts, if any, and distilled spirits minimum retail prices and discounts, if any, and the malt beverage minimum retail prices and discounts, if any * * * applicable in the Northern California Trading Area, including the counts as set forth in Rule 99, Title IV, Chapter I of the California Administrative Code; that the publication has been in general circulation in the area since 1946; and that since July 1946, copies of the said publication have been mailed to a majority of the offsale retail licensees of the Department of Alcoholic Beverage Control.'
The licensee's attorney commented, '* * * this is not a publication within the meaning of the statute because it is done not by an official agency of the State.'
Subsequently, as a result of a discussion between the hearing officer and counsel for the Department, 4 the Department requested and was granted a continuance to secure Mr. Page as a witness. When called as witness Mr. Page testified as follows: that he published the Beverage Industry News; that his publication is a trade paper in the alcoholic beverage industry in California in the Northern California trading area; that the publication includes a price book which is published on the first of each month and which contains the prices of distilled spirits sold on that market and gives the wholesale and retail prices as posted with the state as the same are set forth in minimum price schedules received from the brand owner and from the Department; and that the prices are published prior to the effective date and a list of changes is printed in the front of each issue of the price book, including when the information is available, changes which will only become effective in the future.
Mr. Page further testified that the publication was sent to every distilled spirits licensee in the Northern California trading area; that the licensee was not a subscriber who paid for the publication, but, nevertheless, as a licensee regularly had been mailed copies of the publication since 1961. 5
On cross-examination of the witness the licensee brought out that the state did not pay for the publication, that it was not licensed by the state in any way nor controlled in any way by a state agency; that it was not filed with any state agency; and that the publisher did not know of any requirement which made it necessary that he receive copies of the schedules from the Department. The witness testified that all brand owners subscribe to the publication.
In argument the licensee's attorney advanced the following contention: 'We just want to raise the issue that the publication is not a publication by the State within the purview of the Alconholic Beverage Control Act in that, since it is a private publication, it is an unlawful delegation of powers or duties to a private individual.'
At the hearing on the second accusation, Mr. Page testified that he was the publisher of Beverage Industry News. He identified the price books published for September and October 1965, and state that his business records showed that the licensee was an addressee of the publication in those months. It was stipulated that the testimony of Mr. Page as set forth in the reported questions and answers in the prior proceedings would be incorporated in the record of the hearing on the second accusation.
In Kirby v. Alcoholic Beverage Control Appeals Board (1969) 71 A.C. 1245, 81 Cal.Rptr. 241, 459 P.2d 657, the court approved the decision of this court in Reimel v. Alcoholic Beverage etc. Appeals Bd. (1967) 256 Cal.App.2d 158, 64 Cal.Rptr. 26, 65 Cal.Rptr. 251, and held that the publication of the minimum retail price schedule in a trade journal of general circulation in the licensee's trade area, pursuant to the former provisions of California Administrative Code, title 4, rule 99(k), satisfies the publication requirements of section 24755, and that rule 99 and section 24755 are constitutionally valid.
In Samson Market Co. v. Alcoholic Bev. Con. App. Bd., supra, the court after noting the foregoing principles continued: (71 A.C. at p. 1268, fn. omitted, 81 Cal.Rptr. at p. 255, 459 P.2d at p. 671.)
The stipulation regarding the testimony in connection with the first accusation is substantially the same as the record which this court approved in Reimel v. Alcoholic Beverage Control Appeals Bd., supra. 6 The stipulated evidence therefore is adequate to sustain the finding of the Department that the publication satisfied the requirements of subdivision (b) of section 24755. 7
Moreover, in that hearing, and by reference in the second hearing, the Department had before it the testimony of Mr. Page that the publication was mailed to every distilled spirits licensee in the Northern California trading area (see fn. 5 above). The licensee's attacks on this testimony are resolved against him below. It...
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