Van De Veer v. Department of Alcoholic Beverage Control

• Decision Date: 09 December 1957
• Court: California Court of Appeals Court of Appeals
• Parties: Lillian VAN DE VEER, Petitioner and Appellant, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL and Alcoholic Beverage Control Appeals Board of the State of California, Defendants and Respondents. Civ. 22679.

Page 686

318 P.2d 686

155 Cal.App.2d 817

Lillian VAN DE VEER, Petitioner and Appellant, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL and Alcoholic Beverage Control Appeals Board of the State of California, Defendants and Respondents.

Civ. 22679.

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

Dec. 9, 1957.

Carl B. Sturzenacker and Walter Monarch, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Edward M. Belasco, Deputy Atty. Gen., for respondents.

FOURT, Justice.

This is an appeal from a judgment denying a petition for a writ of review and affirming a decision and order of the Department of Alcoholic Beverage Control (hereinafter referred to as the 'Department'), and affirming a decision of the Alcoholic Beverage Control Appeals Board (hereinafter referred to as 'Appeals Board') revoking petitioner's on-sale general liquor license.

Appellant sought by her petition to have vacated and set aside a decision and an order of the Department revoking her general on-sale liquor license, and the decision of the Appeals Board granting the motion of the Department to dismiss appellant's administrative appeal, which such motion was made upon the ground that the appeal was not filed within the statutory time.

Appellant had a general on-sale liquor lecense for premises known as the 'La Vie Club' in Altadena. A charge was filed with the Department to the effect that appellant permitted persons to resort to the premises for the purposes of engaging in homosexual activities, and alleging that continuance of the license would be contrary to public welfare and morals.

On January 17, 1956, a hearing was held on the charges, and on June 14, 1956, the Department, in its decision, found the charges to be true and ordered the license revoked. The decision was mailed from the Department in Sacramento to appellant in Altadena on June 14, 1956, and she thereafter filed a petition for reconsideration, which was denied by the Department on July 9, 1956.

On July 23, 1956, appellant mailed a notice to the Appeals Board which was received and filed by the Appeals Board on July 25, 1956, or forty-one days after the Department had mailed its decision to the appellant. The Department moved to dismiss the appeal upon the ground that it was filed beyond the forty-day period provided for in section 23081, Business and Professions Code, and that the Appeals Board was without jurisdiction to consider the appeal. The motion was granted and the appeal was dismissed by the Appeals Board. As heretofore indicated, the judge of the trial court agreed with the Department and the Appeals Board and denied the petition for a writ of review.

Section 22 of Article XX of the California Constitution provides in part as follows:

'* * * When any person aggrieved thereby appeals from a decision of the department * * * revoking any license for the * * * sale of alcoholic beverages, the board shall review the decision subject to such limitations as may be imposed by the Legislature.'

Section 23081 of the Business and Professions Code provides:

'Within 40 days after the decision of the department is delivered or mailed to the parties, any party aggrieved by a final decision of the department may appeal to the board from such decision. The appeal shall be in writing and shall state the grounds upon which a review is sought. A copy of the appeal shall be mailed by the appellant to each party who appeared in the proceeding before the department, including the department which shall thereafter be treated in all respects as a party to the appeal.'

The Appeals Board is a constitutional administrative appellate body whose sole function is to consider appeals as a part of the administrative control of liquor sales in California. Cal.Const., Art. XX, § 22.

This court through Justice Drapeau recently stated in Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control, 153 Cal.App.2d 523, 314 P.2d 1007, 1009:

'When an administrative remedy is provided by law, relief must first be sought from the administrative body, and this remedy must be exhausted before the courts will act. Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90, 106, 280 P.2d 1, and cases cited.

'In the leading case of Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942, 132 A.L.R. 715, Mr. Chief Justice Gibson, speaking for the Supreme Court, states the above rule; also that a court violating it acts in excess of jurisdiction; and also that administrative remedies are not exhausted until an administrative appeal, if the law provides for it, is fully prosecuted.'

In this case the Department mailed its revocation decision to appellant on June 14, 1956, and on July 23, 1956, thirty-nine days later, appellant deposited her notice of appeal in the mail. The notice of appeal was received and filed by the Appeals Board on July 25, 1956, the forty-first day after the decision was mailed. In other words, the appeal was filed one day after the running of the forty-day statutory period.

This court said in the Hollywood Circle case, supra, 153 Cal.App.2d at page 526, 314 P.2d at page 1009:

'But it is the policy of our law that time limits for filing notices of appeal in all legal proceedings must be complied with literally and exactly. This is generally held to be a jurisdictional prerequisite. Cf., In re Estate of Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250 * * *; 3 Cal.Jur.2d 653.

'Therefore, in this case, the administrative appeal was filed too late, the Appeals Board correctly held that it had no further jurisdiction over it, the Department's decision became final, and the courts have no jurisdiction to review the proceeding.

* * *

* * *

'Section 1013 of the Code of Civil Procedure does not affect the time specified in section 23081 of the Business and Professions Code.'

Appellant contends (1) the time to file an appeal with the Appeals Board should commence to run from the date sh...