Reimel v. Alcoholic Bev. etc. Appeals Bd.

• Decision Date: 21 November 1967
• Citation: 256 Cal.App.2d 158,64 Cal.Rptr. 26
• Court: California Court of Appeals Court of Appeals
• Parties: James O. REIMEL, as Director, etc., Plaintiff and Appellant, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Defendant and Respondent; Charles COHON and Irving Sirbu, Real Parties in Interest and Respondents (and5 other cases). * Civ. 22905.

Page 26

64 Cal.Rptr. 26

256 Cal.App.2d 158

James O. REIMEL, as Director, etc., Plaintiff and Appellant, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Defendant and Respondent;

Charles COHON and Irving Sirbu, Real Parties in Interest and Respondents (and5 other cases). ^*

Civ. 22905.

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

Nov. 21, 1967.

Rehearing Denied Dec. 15, 1967.

See 65 Cal.Rptr. 251.

Hearing Denied Jan. 17, 1968.

Thomas C. Lynch, Atty. Gen. of the State of California and L. Stephen Porter, Deputy Atty. Gen., San Francisco, for appellants.

J. Bruce Fratis, San Francisco, for respondents Charles Cohon, Irving Sirbu, Jack Dorian and Walter Matoff.

Charles P. Just, Chief Counsel, Alcoholic Beverage Control Appeals Bd., Sacramento, for respondent Appeals Bd.

Saveri & Saveri, Richard Saveri, San Francisco, for respondents Catherine Carella and Michael Carella.

Rinaldo A. Carmazzi, Barbagelata, Broderick, Carmazzi & Arnold, San Francisco, for respondents Fred and Henry J. Lancelotti.

ELKINGTON, Associate Justice.

These consolidated appeals primarily concern the interpretation of Business and Professions Code ¹ section 24755 as amended in 1961 which relates to minimum retail price schedules for branded distilled spirits. The section is part of the Alcoholic Beverage Control Act (§§ 23000--25762) which herein will be called the Act.

The individual respondents and real parties in interest were holders of off-sale general liquor licenses issued by the Department of Alcoholic Beverage Control (hereinafter called Department). Against each respondent licensee the Department filed an accusation alleging the sale of branded distilled spirits at prices less than the stipulated minimum retail schedules duly filed with the Department. After hearings the Department found the charges to be true. As to some of respondent licensees, license suspension was ordered; as to the others the sanction was license revocation.

Appeals in each case were taken to the Alcoholic Beverage Control Appeals Board (hereinafter called Appeals Board). The Appeals Board reversed the several decisions of the Department. It held in each case that the record did not establish publication as required by section 24755; therefore the evidence did not support the Department's findings that the licensees sold at prices 'below the minimum retail price schedule duly filed.'

The Department thereupon filed in the superior court applications for mandate (Code Civ.Proc. § 1094.5) seeking reversal of the decisions of the Appeals Board. The superior court, after hearings, entered judgment in each case denying the prayed for relief. Each of the judgments recited: 'The foregoing judgment is rendered by this Court upon the grounds that, as determined by the Appeals Board in its decision, the record does not contain substantial evidence that the petitioner sustained its burden of proving publication of the price schedule in the manner required by section 24755 of the Business and Professions Code.'

It is from these judgments that the instant appeals were taken.

As pertinent here section 24755 provides:

'(a) No package of distilled spirits which bears the brand, trademark or name of the owner or person in control shall be sold at retail in this State for consumption off the license premises unless a minimum retail price for such package first shall have been filed with the department in accordance with the provisions of this section.

'(b) A price for each of such packages shall be in a minimum retail price schedule setting forth with respect to each package the exact brand, trademark or name, capacity, and type of package, type of distilled spirits, age and proof, where stated on the label, and the minimum selling price at retail. * * * Any person filing such schedule shall cause such schedule to be published in a manner which will result in each retailer affected by such schedule being advised of the contents of such schedule prior to the effective date thereof.

(c) Such schedule shall be filed by (1) the owner of the brand (or any of certain other designated persons) * * * (e) No offsale licensee shall sell any package of distilled spirits at any price less than the effective filed price of such package * * *.' ² (Emphasis added.)

Under the authority of section 24757 ³ the Department adopted its rule 99(k) (tit. IV, Cal.Adm.Code) which as pertinent here states: '(k) Publication. The person filing minimum retail price schedules shall cause prices for all items on every original price schedule and for every change of price or new price on every replacement price schedule To be published in a trade journal of general circulation in the trading areas affected on or before the effective date thereof. * * *' (Emphasis added.)

It seems proper at this point before discussing the respective contentions of the parties to consider certain fundamental principles relating to the enforcement of the Act.

Our Supreme Court in Allied Properties v. Department of Alcoholic Beverage Control, 53 Cal.2d 141, 147, 346 P.2d 737, 740, has said, 'A state has particularly wide powers with respect to the * * * traffic in alcoholic beverages and may provide for their prohibition or impose such conditions and regulations as it may deem proper.'

This court in State Bd. of Equalization v. Superior Court, 5 Cal.App.2d 374, 377, 42 P.2d 1076, 1077, stated: 'Unlike the rule with respect to the right to deal in ordinary commodities * * * there is no inherent right in a citizen to sell intoxicants (citations); and a license to do so is not a proprietary right within the meaning of the due process clause of the Constitution ((Cal.) Const., art. I, § 13), nor is it a contract (citation); it is but a permit to do what would otherwise be unlawful, * * *' (See also Kirchhubel v. Munro, 149 Cal.App.2d 243, 247--248, 308 P.2d 432; Schaub's Inc. v. Dept. of Alcoholic Beverage Control, 153 Cal.App.2d 858, 869--870, 315 P.2d 459.)

Section 24755 does not require as an element of its violation that a sale below the effective minimum retail price schedule be made Knowingly. A strict liability is imposed on those exercising the privilege of selling alcoholic beverages. (See DeMartini v. Department of Alcoholic Beverage Control, 215 Cal.App.2d 787, 815, 30 Cal.Rptr. 668; Morell v. Department of Alcoholic Beverage Control, 204 Cal.App.2d 504, 513, 22 Cal.Rptr. 405; Munro v. Alcoholic Beverage Control Appeals Board, 154 Cal.App.2d 326, 329, 316 P.2d 401; Mercurio v. Department of Alcoholic Beverage Control, 144 Cal.App.2d 626, 630--631, 301 P.2d 474.)

The duty to enforce and administer the Act is vested in the Department, and 'it has been given a broad range of power and discretion in carrying out this duty.' (Harris v. Alcoholic Beverage Control Appeals Board, 238 Cal.App.2d 24, 30, 47 Cal.Rptr. 424, 428.)

We shall state the several contentions on these appeals as they are outlined by respondents.

The first and principal contention of respondents ⁴ may be stated as: The record discloses that the Department did not sustain its burden of proving publication of the minimum retail price schedules as required by section 24755.

The specific contention of respondents takes the following form. In order that section 24755 be violated there must be a sale below the 'effective' filed minimum retail price schedule (§ 24755(e)). For such a schedule to be 'effective' there must have been a compliance with paragraph (b) of the section which provides that the 'person filing such schedule shall cause (it) to be published in a manner which will result in each retailer affected by such schedule being advised of (its) contents.' The schedule was not so published; it follows that there was no 'effective' price schedule and accordingly no violation.

Further it is contended: The specification that the schedules be published in a manner which will result in each retailer being advised of their contents is a requirement of some form of actual notice by personal service or by mail.

The records of the administrative hearings show the following: Publication of the minimum retail price schedules was made in the Beverage Industry News, a privately owned monthly publication in business since 1946. It was a trade journal of the liquor industry in general circulation in the area here concerned. Its subscription price was $7.50 per year. Since 1946, copies of the publication had been mailed monthly to a majority of the offsale retail licensees authorized to sell alcoholic beverages in the northern California trading area.

It is clear that publication here was not made in a manner designed to effect actual notice by personal service on, or mailing to, each retailer affected.

In cases dealing with a statutory requirement of publication in a newspaper, California's appellate courts have defined publish as to 'disclose, reveal, proclaim, circulate, or make public' (Application of Monrovia Evening Post, 199 Cal. 263, 266, 248 P. 1017, 1020; Western States Newspapers, Inc. v. Gehringer, 203 Cal.App.2d 793, 795, 22 Cal.Rptr. 144, 147) and "to proclaim, to advertise." (Arthur v. City of Petaluma, 27 Cal.App. 782, 788, 151 P. 183.) ⁵

Black's Law Dictionary (4th ed. 1954) defines 'publish' as 'To make public; to circulate; to make known to people in general. * * * An advising of the public or making known of something to the public for a purpose.' It defines 'publication' as 'To make public; to make known to people in general; * * * The act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny.' Webster's New International Dictionary, Unabridged (2d ed. 1953), defines 'publish' as 'To make public announcement of; to make known to people in general; * * * To promulgate or proclaim, as a law or an edict. * * * To make public in a newspaper, book, circular or the like.' (See also 73 C.J.S. 1250--1251.)

'Publish' has been held not to be synonymous with 'communica...