Samson Market Co. v. Kirby

• Decision Date: 26 April 1968
• Court: California Court of Appeals Court of Appeals
• Parties: SAMSON MARKET COMPANY, a California corporation, Petitioner, v. Edward J. KIRBY, Director of the Department of Alcoholic Beverage Control ofthe State of California, and the Department of Alcoholic Beverage Control, Respondents. Civ. 32647.

Page 130

68 Cal.Rptr. 130

261 Cal.App.2d 577

SAMSON MARKET COMPANY, a California corporation, Petitioner, v. Edward J. KIRBY, Director of the Department of Alcoholic Beverage Control ofthe State of California, and the Department of Alcoholic Beverage Control, Respondents.

Civ. 32647.

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

April 26, 1968.

Hearing Denied June 19, 1968.

Leslie & Rubin and Lawrence Teplin, Los Angeles, for petitioner.

Thomas C. Lynch, Atty. Gen. and Kenneth Scholtz, Deputy Atty. Gen., for respondents.

McCOY, Associate Justice. ^*

This is a proceeding for a writ of mandate to respondent, the director of the Department of Alcoholic Beverage Control, 'to extend the period of time for cancellation of the liquor license of petitioner for a reasonable period of time after such time as the pending accusations against the license are ultimately determined, or until such time as the Department consents to the transfer of said license to other persons.' Upon the filing of this petition we issued our alternative writ to determine whether this court or the superior court has jurisdiction to grant the relief petitioner seeks.

Prior to July 25, 1967, petitioner held an offsale general license for the sale of alcoholic beverages on the premises at 6656 Sunset Boulevard in Los Angeles. On July 31, 1967, the lease for the premises expired and the landlord refused to renew the lease. Accordingly, on July 25, as required by California Administrative Code, title 4, rule 65(a), petitioner surrendered its license to the department.

Rule 65(d), California Administrative Code, title 4, reads: 'Any license voluntarily surrendered under subsection (a) of this rule shall be cancelled if it is not transferred to another person or for use at another premises, or redelivered and the licensed activity resumed, within six months from the date of such surrender unless the period is extended by action of the department.' Under this rule the license was subject to cancellation at any time after January 25, 1968. By the declaration of the principal counsel for the department filed February 21, 1968, one week before oral argument, we were informed that the department 'has not extended the surrender (sic) period as to said license,' and that 'the Department, in light of the pending litigation in the above-entitled matter, intends to retain the status quo as to said license during the pendency of said litigation before the Court of Appeal of the State of California, Second Appellate District, Division One.'

On December 13, 1967, petitioner opened an escrow for the sale of its license to one Pellerin to conduct a liquor business in Covina. On the same day, by letter, petitioner requested the department pursuant to rule 65(d) to extend the time for cancellation of the license for a period of ninety days from January 6, 1968, in order to allow the proposed sale to take place and afford the department an opportunity to consent to the transfer. On December 21 the department informed petitioner by letter that its against the license. We must further caucellation 'is denied. We must also remind you that a license cannot transfer to other persons while there are pending accusations against the license. We must further caution you that licenses surrendered pursuant to Rule 65 must be reactivated prior to the termination of the six (6) month period provided or be subject to cancellation.' On January 9, 1968, when the present petition was filed three matters were pending before the Alcoholic Beverage Control Appeals Board; (1) the department's decision of July 28, 1966, ordering the license suspended for ninety days; (2) the department's decision of July 1, 1966, ordering the license revoked; and (3) the department's decision of October 9, 1967, ordering the license revoked.

The petition now before us was filed January 9, 1968. One week before that, on January 2, 1968, petitioner sought and obtained an alternative writ of mandate and a stay order from the Superior Court for Los Angeles County in action number 924160, entitled Samson Market Company v. Kirby, basing its petition therein on the facts alleged in the petition herein. That alternative writ was returnable before the superior court on January 22, 1968. We have been advised by the Attorney General that on February 5, 1968, that proceeding was placed off calender for lack of jurisdiction, the court having been informed of the pendency of this proceeding. On January 19, 1968, petitioner again requested the department to extend the time for the cancellation of the license until the pending accusations against the license were resolved, or until the department consented to a transfer of the license to a third party. By letter dated January 30, 1968, petitioner was advised by the department that it would not grant the extension.

The primary question raised by the pleadings goes to the jurisdiction of this court. The question arises by reason of the provisions of section 23090.5 of the Business and Professions Code enacted in 1967, which became effective November 8 in that year. Unless otherwise indicated, all code references in this opinion are to the relevant sections of the Business and Professions Code. ¹ Petitioner here seeks a writ of mandate to compel the director to grant an extension of time under rule 65 within which the license may be cancelled. Both parties agree that the issues framed by the pleadings will not justify the issuance of a writ of review under section 23090, but that any relief which may be granted can only be by a writ of mandate. ² Petitioner earnestly contends that such relief may be granted by this court under the provisions of section 23090.5.

Section 23090.5 reads: 'No court of this state, except the Supreme Court and the courts of appeal to the extent specified in this article, shall have jurisdiction to review, affirm, reverse, correct, or annul any order, rule, or decision of the department or to suspend, stay, or delay the operation or execution thereof, or to restrain, enjoin, or interfere with the department in the performance of its duties, but a writ of mandate shall lie from the Supreme Court or the courts of appeal in any proper case.' This section is a part of Article 5 of Chapter 1.5, Division 9 of the Business and Professions Code relating to the administration of the Department of Alcoholic Beverage Control. Article 5 was added to the code in its entirety in 1967.

As we have seen, sections 23090 through 23090.4 establish a new procedure for the review of 'a final order of the board' in a case involving the exercise of the limited judicial powers of the department. We conclude, therefore, that in enacting section 23090.5, the Legislature did not intend to establish an alternative procedure for judicial review of such orders or decisions even though section 23090.5 relates to the power of the courts to 'review, affirm, reverse, correct, or annul any order * * * or decision of the department.' As we read section 23090.5, the Legislature intended thereby to provide for jucidial review of the orders, rules or decisions or other acts of the department in the performance of its duties when acting in its administrative rather than in its limited judicial capacity. As to such matters the section provides that 'a writ of mandate shall lie from the Supreme Court or the courts of appeal in any proper case.'

Although we have no recorded legislative history of sections 23090 through 23090.7, it appears, as pointed out by the Attorney General, that the language of sections 23090 through 23096 was based on the provisions of sections 5950 through 5956 of the Labor Code relating to judicial review of orders, decisions, etc., of the Workmen's Compensation Appeals Board. Thus, section 5950 of the Labor Code provides for a writ of review to be issued by the Supreme Court or the appropriate court of appeal 'for the purpose of inquiring into and determining the lawfulness of the original order, decision, or award or the order, decision, or award following reconsideration' by the Workmen's Compensation Appeals Board. This, of course, is comparable to the provisions of section 23090 of the Business and Professions Code. Section 5955 of the Labor Code as amended in 1967 (Stats. 1967, ch. 17, § 104) reads: 'No court of this state, except the Supreme Court and the courts of appeal to the extent herein specified, has jurisdiction to review, reverse, correct, or annul any order, rule, decision, or (a)ward of the appeals board, or to suspend or delay the operation or execution thereof, or to restrain, enjoin, or interfere with the appeals board in the performance of its duties but a writ of mandate shall lie from the Supreme Court or a court of appeal in all proper cases.' In Loustalot v. Superior Court, 30 Cal.2d 905, p. 911, 186 P.2d 673, p. 677, the court said that the legislative history of section 5955 of the Labor Code 'shows without question that section 67 of the Public Utilities Act provided the model for section 5955 and that the decisions interpreting section 67 are likewise applicable thereto.' ³ Similarly the decisions interpreting section 5955 of the Labor Code are applicable in interpreting section 23090.5 of the Business and Professions Code.

In Loustalot v. Superior Court, supra, 30 Cal.2d at pp. 911--912, 186 P.2d at p. 677, the court, after reviewing the decisions interpreting section 67 of the former Public Utilities Act, said: 'It is thus settled that a superior court has 'no jurisdiction directly or indirectly to overrule an order of the Railroad Commission. The power to reverse, review, correct or annul orders of that commission rests solely in the Supreme Court (sec. 67 of the Public Utilities Act, supra) and the superior court is without jurisdiction in the premises.' (Wallace Ranch Water Co. v. Foothill Ditch Co., supra, 5 Cal.2d 103, at 121, 53 P.2d 929.) 'Even though the order by the Railroad Commission be...